Section 3(d) and Utility Model


What an idea! Sirji reminds us of a popular TV advertisement featuring a bollywood actor innovating on imparting education through the use of cell phones. Economic Times, in an interesting manner, uses this catch line to highlight that India’s stringent patent law is playing spoilsport in blocking almost 50,000 innovations from seeing the light of the day. Section 3(d) of the Patents Act is thought to be at the centre of the problem in recognizing incremental innovations as patentable subject matter. An official of the DIPP (department of industrial policy and promotion) is quoted ruing the fact that the Indian rural hinterland is home to thousands of innovations but a patent is elusive as most of these are improvements which cannot be patented. Prof. Anil Gupta, from IIM Ahmedabad and the executive vice-chairman of the National Innovation Foundation, is also quoted advocating the cause of granting intellectual property protection to incremental improvements. He very categorically expresses that incremental improvements once protected can prove to be a buoyant area of R&D in the country.
One can very well wonder aloud that why the stakeholders as well as enthusiasts are not talking about adoption of a lesser form of patent protection such as a utility model or petty patent [ET refers about proposals to scrap the controversial section 3(d)] for all those incremental improvements enhancing the lives of people across rural India. For instance, ET refers to a number of innovations, an improvised tractor that costs one-third of a brand new, ATM that doesn’t require pin numbers and works on fingerprint recognition and a Pukapura – a smoke house used to dry rubber sheets – requiring 60% less fuel.
A brilliant paper by Prof. Ayse Nuriye Odman Boztosun, Faculty of Law, Erciyes University titled “AN ARGUMENT IN FAVOUR OF ADOPTING LESSER FORMS OF PATENT PROTECTION FOR TECHNICAL ADVANCES” elucidates in a very succinct way the inquiry into the pros and cons of the co-existence of the lesser forms along with the conventional patent regime. Chapter VI of the paper lists out the essential components of a lesser rights system which would be conducive to innovation. Very aptly the author makes this point that adoption of a lesser rights system is a policy choice and that such a system should be engineered in a fashion which ensures the accessibility and functionality of sustainable innovation. Prof. Anil Gupta’s remark, in the ET feature, seems to be in sync when he points about the potential of thousands of innovations remaining as mere ideas in the far flung areas in the rural hinterland in absence of a legal protection.
Channeling incremental advances of certain sectors, like incremental improvements in the pharmaceutical sector, to a lesser form of patent protection may be a progressive enforcement of utility model in the Indian context where the scene is rife with rejects under section 3(d).
I would very much welcome a discussion thread expounding on the possibility of Utility Model protection in India. Definitely the sheer number of blocked innovations would very much prefer.

7 comments.

  1. AvatarAnonymous

    Kamakhya, how do you propose to bring Utility model patents within the framework of Indian Patents Act, considering most utility improvements happen in technology and software?

    Reply
  2. AvatarAnonymous

    Thank you for kindly referring to my paper. I would very much like to be part of the discussion on the appropriateness of adopting a utility model regime in India and elaborate further on the ideas I have expressed in my article regarding the potential effectiveness of the utility model system vis-a-vis the patent system. Asc. Prof. Dr. N. Ayse Odman Boztosun

    Reply
  3. AvatarAnonymous

    just to wanted to let you that a revised version of the paper is now available in the bepress website…
    Asc. Prof. Dr. N. Ayse Odman Boztosun

    Reply
  4. AvatarPriyanka A. Adate

    I am unable to find paper of Prof. Ayse Nuriye Odman Boztosun, Faculty of Law, Erciyes University, mentioned in above article. Can anyone please share a link or doi for the same.

    Reply

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