[pp.int.general] India patent law Fwd: [SPICY IP] Summary of 3(d) and 3(e) decisions in 2010 at the IPDTO

[Amelia Andersdotter]

i know that someone asked about viable alternative to patents a while 
ago. this is more about section 3(d) of indian industrial property act.

so, the madras high court decision (appended below)

-------- Original Message --------
Subject: 	[SPICY IP] Summary of 3(d) and 3(e) decisions in 2010 at the 
IPDTO
Date: 	Tue, 8 Mar 2011 20:38:13 -0800 (PST)
From: 	Rajiv Kr. Choudhry <rajiv.choudhry at gmail.com>
Reply-To: 	rajiv.choudhry at gmail.com
To: 	spicyip at googlegroups.com





<https://lh6.googleusercontent.com/-2T7PRl4TM5E/TXYY_9iwzsI/AAAAAAAAcWc/lFUR_Jl_-E4/s1600/data-analysis.jpg>
<https://lh6.googleusercontent.com/-2T7PRl4TM5E/TXYY_9iwzsI/AAAAAAAAcWc/lFUR_Jl_-E4/s1600/data-analysis.jpg>In 
a previous post <http://goo.gl/65hmD>, we saw the break-up of decisions 
at the Indian Patents, Designs and Trademark Office (IPDTO) in the 
calendar year 2010.  Because of the importance of sections 3(d) and 3(e) 
of the Indian patent act, this post analyzes decisions related to 
sections 3(d) and 3(e) in the calendar year 2010.  The complete file 
containing the decisions analyzed can be seen here <http://goo.gl/RxTTf>.
*We were not surprised to see that in 12 out of the 21 possible cases, 
the Controller refused the grant of the application.*  Only seven 
  applications were allowed and two were partially allowed. However, 
what was surprising was that five out of the seven applications that 
were allowed, were from the Delhi patent office!! We leave the judgment 
whether the Delhi patent office is more generous in allowing 
applications - than the other patent offices to our readers!!
The other thing where we were not surprised was that *none of the 
decisions relating to 3(d) even attempted to co-relate therapeutic 
efficacy* and define a factual benchmark for the claims under 
consideration.  Another instance where we were not surprised was the 
lack of consistency in the Controller's decisions.  As an example, there 
are cases where Controller cited a medical dictionary to define 
efficacy, others used the Madras High Court decision, some other 
decisions did not refer to efficacy but stressed on the absence of 
comparative data.  We have highlighted the key portions of all 
decisions in the analysis, available here <http://goo.gl/RxTTf>.


--
Posted By Rajiv Kr. Choudhry to SPICY IP 
<http://spicyipindia.blogspot.com/2011/03/summary-of-3d-and-3e-decisions-in-2010.html> 
at 3/09/2011 10:08:00 AM --
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==================
I found this essay quite helpful: 
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1086254

Mostly because there appears to be grounds on which to question the 
"legality" of section 3(d) with regards to the TRIPS agreement. This is 
undoubtedly so. Now, the European Union, for instance, has been very 
eager to include patents in the ACTA negotiation. This strategy failed, 
but the US and the EU have agreed on trademark infringements being an 
important part of the agreement, and given the curret modus operandi of 
customs authorities in the Union trademarks and ACTA should be a big 
concern for Europeans, Indians. I seem to recall SpicyIP having brought 
this up but I cannot for the life of me find the relevant blog posts 
(someone else with better googling skills?)

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