ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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Eleventh Finance Commission and Local Bodies-Tasks and Options

in the provision is 'shall', which makes it binding on India to accept the information provided by the patent applicant unconditionally.
The unconditional acceptance of the information provided by the applicant on the patent grant and marketing approval has two serious implications arising from exclusive nature of rights. The first is that India would have to give a patent-like monopoly on a product which has not even been examined from the viewpoint of patentability in the country. In fact, it is entirely possible that a product that would enjoy EMR for a five-year period because of the imposition of Article 70.9 might not be granted a patent after it has been examined by the Indian patent examiners after 2005. This situation could arise if the product patent applications waiting to receive exclusive marketing rights to take advantage of the transitional arrangements (there are 3,000 applica- tions, according to a recent count) include products based on-traditional medicines (based on turmeric, for instance) which have been granted patents in the US in the recent past. Thus, while the adoption of the EMR route would make it obligatory for India to grant marketing rights on any such application, examination for a grant of patent in India after 2005 would render such a product non-patentable in India simply because the product in question would not have met the basic criteria of novelty. What the above means in other words is the following: products based on turmeric or neem may be given EMRs in India during the period up to 2005 since they have been patented in the US and have marketing approval to boot, but it is highly unlikely that the Indian Patent Office would grant a patent to such products after the product patent regime becomes fully operational The second implication, related to first, has in fact longer-term significance. By acceding to the demand for granting EMR, or a patent-like monopoly in the market, for the product covered by the patent application, on the basis of a patent granted in any other WTO member country, India would have de facto surrendered even the little space it has in terms of exercising its sovereign right, which is the freedom to apply its own standards while examining a patent application and apply the patentability criteria. Patent on turmeric, referred to above, is a case in point. This could be the first step towards pushing the Indian Patent Office into a situation where it can be influenced by whether or not the applicant has already obtained a patent in some other country. The full impact of this situation could be felt in the years to come given the trend in several industri-alised countries, led by the US, where patents are being granted for virtually every form of invention or even discovery.

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