E-0951/07EN Answer given by Mr Mandelson on behalf of the Commission
(16.4.2007)The question raised by the Honourable Member has to be
considered against the backdrop of the current judicial cases that are
ongoing in India as a result of the rejection of a patent application by
Novartis.
Mandelson interprets the context of the question. He is of course right. However, he was not asked to analyse Ulmer's question but to debunk or confirm the TRIPs 27 allegations against India.
The Commission fully respects the independence of judicial authorities
and will not undertake any action that could affect the trust that
Indian judicial authorities deserve. Nonetheless, and despite the fact
that it will not intervene in any of the relevant procedures, the
Commission is following with great interest the developments in this
issue, and analysing the judicial decisions to be taken.
Which in fact contradicts what its Mandelson's strategy papers say, but lets call that diplomatic cover-up.
As referred to by the Honourable Member, a Technical Expert Group (the
"Mashelkar Committee") on Patent Law issues was set up by the Ministry
of Commerce and Industry of India at the time of the adoption of the
Patents (Amendment) Act, 2005. In accordance with its terms of
reference, the "Mashelkar Committee" had to assess the TRIPS
compatibility of limiting the grant of patents for pharmaceutical
substance to new chemical entities only, and of excluding
micro-organisms from patenting. However, the "Mashelkar report" now
having been withdrawn, it is unclear what the next steps will be.
The Commission is, and will continue to be, in regular contact with the Indian Government on issues pertaining to the TRIPS Agreement, and, more generally, to intellectual property protection in the EU and India, including patents.
So, what is the interest of India in patent protection in the EU? Do we want India to interfere in our internal affairs, and shouldn't it be left to European nations to define patent policy. Mandelson does not seem to understand how the territorial principle is undermined by his policy making.
WRITTEN QUESTION E-0951/07 by Thomas Ulmer (PPE-DE) to the Commission
Subject: Indian patent law and compliance with TRIPS
The current Indian patent law does not seem to be in compliance with the
InternationalAgreement on Trade Related Aspects of Intellectual Property
Rights (TRIPS). Article 3 of the Indian Patent Act currently excludes
certain inventions from being patented. But Article 27 of TRIPS does not
allow any contracting country to limit or curb the definition of
'invention'.
European nations which are in compliance with TRIPs 27 limit the definition of inventions, EPC 52 specifies which subject matters are not patentable, thus non-inventions. Further TRIPs 27 does only cover inventions which lie in Fields of Technology. Data processing or biological activity is generally not to be considered a field of technology and no use of controllable forces of nature is made. Indian patent law is almost identical to EPC provision and closely follows EU standards but a bit messed up: It specifies non patentable inventions instead of non patentable non-inventions. But the exclusions are almost the same.
.
An expert report commissioned by the Indian Ministry of
Industry (Mashelkar report) also concluded in December 2006 that the
Indian patent law is not compatible with TRIPS.1. Does the Commission believe that the Indian Patent Law in its present
form, in particular section 3d of the Patent Acts, is in compliance with
TRIPS?
2. If not, what steps has the Commission already taken and which further
measure is the Commission considering to ensure the compatibility of
Indian patent law with TRIPS?
