Patent Waiver under WTO | Types of Patent | Patent System in India | UPSC  

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UPSC Current Affairs: 
EU to discuss U.S. vaccine patent plan at Friday summit Patent waiver will help fight virus: govt.

UPSC Syllabus: Prelims: International Relations, Economy | GS Paper II – International Relations | GS Paper III – Economy


In order to ensure Affordable, Inclusive and Equitable access to healthcare, in Dec 2020, India and South Africa had asked for patent waiver on the vaccines, medicines and diagnostic tests for CoVID-19. Both these countries had asked the WTO to allow all the countries not to grant or enforce patents for a temporary duration of time.

So far, it was opposed by number of countries including USA. Now recently, the Joe Biden administration has agreed to this proposal of waiver on Patents. A number of other countries, including France and NZ have also indicated their support for waiver. Supporters of the proposal say the waiver will allow for the faster manufacturing of COVID-19 vaccines for use by developing countries.

On the other hand, pharmaceutical companies claim that granting the waiver could hurt future innovation and will not lead to the quick production of coronavirus vaccines.

So, clearly, there are both pros and cons of IPR waiver on various technologies related to Covid-19.

What has been demand of India and South Africa before WTO?

India and South Africa submitted a joint communication to the TRIPS Council at the WTO, titled “Waiver from certain provisions of the TRIPS agreement for the prevention, containment and treatment of COVID-19”. The proposal requests a waiver to be granted to WTO members so that they do not have to implement, apply or enforce certain obligations related to COVID-19 products and technologies.

Mechanism for Waivers under WTO Agreements

Marrakesh Agreement which led to establishment of WTO provides that a waiver under WTO treaties, such as TRIPS, can be decided at the WTO Ministerial Conference. The waiver needs to contain a justification based on the exceptional circumstances. Waivers longer than one year will be reviewed by the Ministerial Conference annually until its termination.

What are Patents?

A Patent is a statutory right for an invention granted for a limited period of time. Upon being granted the patent, the patent holder enjoys exclusive monopoly with respect to making, using, or selling the patented product/process for certain period of time. To get a patent, technical information about the invention must be disclosed in a patent application.

The patents have been given protection under the WTO’s Trade Related aspects of Intellectual Rights (TRIPS). Under this agreement, member countries must provide protection to Patents for a minimum period of 20 years. Once a patent expires, the invention enters the public domain, and anyone can commercially exploit the invention without infringing the patent.

Types of Patents

  • Product Patent: Patent is issued for a particular product such as say, a Pharmaceutical drug. In that case, the patent holder enjoys the exclusive monopoly of manufacturing this patented drug.
  • Process Patent: Patent is issued for a particular process such as say, process used for manufacturing a specific chemical compound. In that case, the patent holder enjoys the exclusive monopoly over the process used for manufacturing the product.
  • However, other manufacturers can manufacture the same product by using a different process (other than the patented process). Hence, unlike Product patent, the extent of protection offered through process patent is quite limited to only the Patented process (and not the Product)

Patent System in India

The patent system in India is governed by the Patents Act, 1970

3 Criteria for issuing Patents:

  • It should be new ( that is, not be published in India or elsewhere + no prior Public Knowledge/ Public Use in India)
  • It must involve an inventive step( Technical advanced in comparison to existing knowledge + non‐obvious to a person skilled in the relevant field of technology)
  • It should be capable of Industrial application

What cannot be patented?

Frivolous Invention; Invention that harms public order/Morality/ health of animals, plants and humans; a method of agriculture or horticulture; Traditional Knowledge; Computer Program; Inventions related to Atomic Energy; Plants and Animals; mere discovery of scientific principle.

Are Patents filed in India Internationally accepted?

Patent protection is a territorial right and therefore it is effective only within the territory of India. There is no concept of global patent. There is need to apply for Patents separately in other countries.

However, a single International Patent application can be filed in India under the Patent Cooperation Treaty. In that case, patent would be protected in all the countries which are members of this treaty.

The Patent Cooperation Treaty (PCT) is an international treaty with more than 150 Contracting States. It is administered by the World Intellectual Property Organisation (WIPO). The PCT makes it possible to seek patent protection for an invention simultaneously in a large number of countries by filing a single “international” patent application instead of filing several separate national or regional patent applications

Note: The TRIPS agreement provides for a flexibility mechanism to the countries wherein that new plant variety can be protected either by issuing patents or an effective “Sui generis” system or a combination of the two. The “Sui generis” system means that the country may adopt its own law in order to meet its special needs.

India decided to exclude patents for new plant varieties but exercised the sui generis option. India has enacted Protection of Plant Varieties and Farmers’ Rights Act,2001(PPVFR Act,2001) for the protection of new plant varieties.


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