Management | New section ensures Ayurveda products can’t be patented

Management | New section ensures Ayurveda products can’t be patented

In the age of globalization, patents and intellectual property assume great significance. To help readers get an idea of patents, Mint presents an occasional column on the subject.

It has become easier to obtain a patent in drugs and medicines after the definition of the word “invention" was amended in 2003. This is how it read earlier: “Invention means any new and useful (i) art, process, method or manner of manufacture; (ii) machine apparatus or other article; (iii) substance produced by manufacture and includes any new and useful improvement of any of them and an alleged invention."

After the amendment, it now reads: “Invention means a new product or process involving inventive step and capable of industrial application. ‘Inventive step’ means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art."

Applying this definition to drugs and medicines, any original formulation that results in a new product that can cure a disease is patentable. Since patenting of a process is not possible, any new element that results in a new product is now entitled to the grant of patent. This has opened up vast areas of research in Ayurveda, where the components of drugs with well-accepted potentiality are more than the products, which are limited.

Instead of providing for expansion of research in this field, the government foreclosed all potentialities of research by adding a new section that says products of Ayurveda are not patentable. The section reads: “An invention which, in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known components" is not patentable. This amendment was added in the closing hours of the debate in Parliament at the instance of traditionalists, who want to restrict the tradition of knowledge to the country, and ultra-radicals, whose sole aim is to forestall any American or Western interest entering this field.

The result is obvious and self-defeating. When several new drugs in allopathy are securing patents, not a single Ayurvedic drug could be offered for patent.

Can an incomplete work of art be registered with the Registrar of Copyrights? What if an author dies before completing the work?

A work of art in progress cannot be registered. The registrar will register a book that is complete, a film that is produced. Another condition for registration is that the work proposed for registration shall be published. No work of art can be treated as published unless it is complete. If an author dies before completing a book, the person who completes it will be treated as a joint author or co-author. The copyright will then last 60 years from the second author’s death. In case the author dies after completing the work, it can be copyrighted in his or her name by the successor. Here, too, the copyright lasts 60 years from the author’s death. If the copyright is registered 50 years after the author’s death, for example, the copyright lasts for only 10 years after the registration.

Can a person using an unregistered trademark complain against a holder of a registered trademark that is similar to his?

He can. But he should complain or register his protest by notice at an early date. If he delays or acquiesces and allows the other to use the mark without interference, he cannot take any legal action. If he gives notice of protest and then fails to take action immediately, then also he will be not be allowed to take any action either for cancellation of the registration, or for restraining the other from using his trademark. In all cases of intellectual property, delay and acquiescence on the part of the affected party debars his claim.

N.K. Acharya is an intellectual property rights attorney specializing in patents, trademarks, copyrights and design.

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