The much anticipated first of several meetings discussing the Draft Patent Manual was chaired by NN Prasad in
However, already the meetings have run into controversy by creating more of a flutter and garnering criticism from all sources.
Our readers will remember our Spicy recommendation to the interpretation of Section 3(d) as well our interpretation of the draft in light of the Novartis litigation as well as our report on the Software Patent Vigil conducted in
Managing IP carries this interesting comprehensive piece on the meeting held thus far as well as the various comments received. We reproduce the same for our readers below:
“Patent manual causes debate in
A draft of
IP India is holding a series of consultations on the manual. NN Prasad, joint secretary of the Department of Industrial Policy and Promotion at the Ministry of Commerce, chaired the first meeting in
If approved, the Manual of Patent Practice and Procedure would not have the force of law, but would act as a guide for examiners. It contains a section that explains to examiners how to interpret the controversial section 3(d) of
The manual states that, to calculate increased efficacy the examiner should compare “the known substance and the new form of known substance. In case the new form is further converted into another new form, the comparison is made between the already existing form and another new form but not between the base compound and another new form”.
“This appears to be a clear attempt to prejudge the Novartis case,” said Shamnad Basheer, academic and founder of the blog Spicy IP. The case, which is still before the Intellectual Property Apellate Board, concerns Novartis’ application for a patent for imatinib mesylate, which is sold by Novartis under the brand name Glivec. The Chennai Patent Office rejected the patent application citing section 3(d). Deciding what is the known substance against which imatinib mesylate should be compared is crucial to deciding if it is patentable in
According to Basheer, the way the manual is phrased assumes that a new salt that emerges during an invention will be a “known substance”, which will make it harder to prove increased efficacy.
The Federation of Indian Chambers of Commerce and Industry has criticised the phrasing in the draft manual, stating: “This section does not cover guidelines about those inventions in which one crystalline form is converted into another crystalline form.”
Campaigners for open source software are also worried that the manual will open the way for software patents in
But Red Hat
Section 4.11.6 seeks to draw a distinction between “software per se” and “software having its technical application in the industry”.
On August 23, the Free and Open Source Software group held a candlelit vigil in
We at SpicyIP certainly hope that the participation in these meetings will result in significant changes to the problematic portions of the policy, and the policy ultimately ends up well reasoned and balancing all sides as best possible.