Patent

Manner of Manufacturing Life? Dimminaco and the Ghost of Ayyangar


theothersThis was the tacky title of my BCL thesis submitted at the University of Oxford several years ago. To make matter’s worse, I began with a quote from Nicole Kidman in “The Others” (a thriller from Alejandro Amenabar):

Sometimes the world of the living gets mixed up with the world of the dead.”

As one might expect, it didn’t go down very well with my stiff examiners who decided to reward me with rather parsimonious grades. But thankfully, the Stanford Technology Law Review (STLR) restored my self esteem and ranked it as the second best article in a writing competition.

I then published the piece in the IPQ (Intellectual Property Quarterly) with a more sober sounding title: “Policy Style Reasoning at the Indian Patent Office”.

All of which brings me to our OpenIP initiative, which is really the key thrust of this post. Some days ago, as part of our Diwali offerings, we offered you access to the Ayyangar Report. And now, we bring you the landmark Dimminaco decision. Unfortunately, this decision is not available in any of the existing electronic databases and in the last month alone, I received 3 email requests for a copy.

So read away and enjoy the rather straightforward analysis of a judge who found absolutely no legal basis for denying patent protection to inventions on the mere ground that they involved “living material”. The court also castigated the patent office for relying on “secret” internal circulars. A great judgment therefore from the perspective of transparent decision making.

In my paper analysing this case and its larger context, I’ve argued that it is a compelling tale of the continuing influence of the Ayyangar report on the Indian patent office. I conclude as below:

“Given this history of a rather conservative approach to the issue of patentability, it is likely that such ‘‘policy style’’ reasoning will continue even in the post-pharmaceutical patent era. Illustratively, the Patents Act has several patent eligibility exclusions such as the ‘‘new use’’ exclusion, method of medical treatment exception, and the ‘‘product of nature’’ exclusion that could be interpreted in a fairly liberal manner to limit the scope of protection to pharmaceutical inventions. Apart from this, the traditional patentability criteria of novelty, non-obviousness or utility could be strictly construed to limit the scope of such patent grants.

In other words, notwithstanding the ‘‘paper’’ version of the 2005 Act, the actual construction of these provisions at the hands of the Patent Office is what will finally determine the exact ambit of protection accorded to pharmaceutical inventions in India. One can almost take it as a given that the Ayyangar report will exert an overarching influence over this process of ‘‘policy style’’ reasoning.”

ps: Thanks to Sai Vinod, our main Open IP architect for uploading the Dimminaco decision. In the coming weeks, we will continue uploading more materials on our IP resources page. If you know of any IP decisions that you don’t find in the legal databases, let us know and we’ll find it and upload it. And more importantly, if you are privy to any rare IP material and are willing to share it, please send it our way.

Shamnad Basheer

Shamnad Basheer

Prof (Dr) Shamnad Basheer founded SpicyIP in 2005. He is currently the Honorary Research Chair of IP Law at Nirma University and a visiting professor of law at the National Law School (NLS), Bangalore. He is also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof Amartya Sen. Professional History: After graduating from the NLS, Bangalore Professor Basheer joinedAnand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Prof Basheer has published widely and his articles have won awards, including those instituted by ATRIP and the Stanford Technology Law Review. He is consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also serves on several government committees.

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