Delhi High Court Issues notice regarding working of Patented inventions
The Delhi High Court has issued
a notice to the government on Sep 01, 2015 in a PIL (Public Interest Litigation)
filed by Mr. Shamnad Basheer in regard to the “working statement” of patented
inventions in India.
Statutory
Provisions in the Indian Patents Act
According to Section
146(2) of the Patents Act, 1970 read with Rule 131 of the Patent Rules, 2003, every
patentee and every licensee has to make an annual disclosure (Form-27) as to
how far and to what extent the patent has worked on a commercial scale in India.
Furnishing such
information is important mainly during compulsory licensing cases in order to
establish whether the patented invention has fulfilled the reasonable
requirements of the public by interalia
selling the patented product at an affordable price.
This information played a
pivotal role in the compulsory licensing dispute between Bayer Corporation vs.
Natco Pharma Ltd.
The petitioner, Mr.
Basheer has prayed that: the Hon’ble Court may, in public interest, be pleased
to issue a Writ of Mandamus, or any other appropriate writ or order directing
the authorities:
- To strictly enforce compliance with Section 146(2) read with Rule 131(1) of the Patents Act, 1970 and Rules thereunder in relation to disclosure of information on commercial working of patent by every patentee and licensee;
- To initiate proceedings under Section 122(1) of the Patents Act, 1970 against errant patentees and licensees who have failed to comply with the mandatory requirement of Section 146(2) read with Rule 131(1) of the Patents Act, 1970 and Rules;
- To issue notices under Section 146(1) of the Patents Act, 1970 to patentees and licensees to furnish true and complete information in relation to incomplete disclosure of information on commercial working of the patent;
- To immediately rectify the ‘comprehensive online filing services for patents’ to enable patentees and licensees to submit full and complete working information;
- To publish and upload the entire information relating to commercial working of all patents for all years of operation of the patent on their website as per Section 146(3) of the Patents Act, 1970 and Rules thereunder;
- To declare that the present format of Form-27 as contained in Schedule II of the Patents Rules, 2003 is insufficient to sub-serve the purpose of the Patents Act, 1970;
- To constitute a committee of experts to suggest reforms to improve the public disclosure norms around the of patents;
- Grant such other reliefs, including the costs of this writ petition, in the interests of justice.
Further, the petitioner
has submitted the data in regard to non-compliance and defective declarations
of working of patented inventions along with other relevant supporting
documents in the PIL, reproduced here:
YEAR
|
PATENTS IN FORCE
|
FORM-27
|
%
NON
COMPLIANCE
|
|
FILED
|
NOT FILED
|
|||
2009
|
37334
|
24009
|
13325
|
35.69
|
2010
|
39594
|
34112
|
5,482
|
13.84
|
2011
|
39989
|
27825
|
12,164
|
30.41
|
2012
|
43920
|
27946
|
15,974
|
36.37
|
According to the
petitioner, approximately 35% of patentees did not disclose any working
information for the years 2009 to 2012. Also a significant number of defective declarations
were submitted which were incomplete, incomprehensible or inaccurate.
The government has now accepted
notice and has been given 4 weeks to file a reply. The matter is now posted to
Nov 17, 2015.
Click to access the PIL:
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