13.05.2011
DISCUSSION PAPER
SUBJECT: UTILITY MODELS
I. Invitation of Views:
1. Over the past eighteen months, this Department has adopted an inclusive approach in the process of formulation of various policies. As part of this approach we have engaged in public consultation and discussion on important issues prior to initiating policy reforms. These structured discussions are triggered by the publication of Discussion Papers outlining the issues on which policy reform are contemplated. We have so far published seven discussion papers as under
i. Foreign Technical Collaborations in Existing Joint Ventures
ii. Issue of Shares for considerations other than Cash
iii. FDI in Limited Liability Partnerships
iv. Compulsory Licencing
v. National Manufacturing Policy
vi. Foreign Direct Investment (FDI) in the Defence Sector
vii. FDI in Multi Brand Retail Trading
2. Based upon the feedback received, the Government has taken a final view on the issues raised in the first four of the seven discussion papers listed above and appropriate policy changes have been made. The remaining three papers have generated widespread discussion amongst all the stakeholders and a policy response is expected to emerge.
3. The Intellectual Property regime in India underwent significant changes after India’s accession to WTO in 1995. After an intense national debate a number of safeguards were included in amendments to the Patents Act made in 1995, 2002 and 2005. These safeguards were designed to prevent evergreening of patents and included a higher threshold for inventive step and a prohibition from patenting new forms of known substances which do not result in the enhancement of the know efficacy of these substances. We have also opposed the provision of data exclusivity and patent linkage. Such a stance has been consistent with our obligations under TRIPS and seeks to meet our developmental objectives specially relating to ensuring the availability and affordability of essential medicines. When concern was raised by various quarters about the Indian stand in various Free Trade Agreements, especially in the context of the Indian Pharma products, the Prime Minister firmly directed that the Indian side shall not take on any obligation beyond TRIPS/ Domestic Law. This stand, that we shall not exceed TRIPS/Domestic law in respect of Patents, has now been decisively ingrained in our IPR policy.
4. While we are firmly committed to resist dilution of patent standards, the need to foster all categories of innovative activity in India today, needs to be recognized. This Discussion Paper approaches this challenge by examining the viability of introducing utility models in the IPR regime. Utility models are a framework for providing limited protection to those innovations which may not meet the standards of the Patents Act and yet are commercially exploitable and socially relevant.
5. This is the eight Discussion Paper in our consultation series. Views and suggestions are specifically invited on Section X of the paper entitled ‘Issues for Resolution’ and any related issues. The objective is to develop a suitable framework for protecting utility models in the event it is felt that this is desirable. Views/ suggestions backed up by facts, figures and empirical evidence may be furnished by 30th June 2011. The views expressed in this discussion paper should not be construed as the views of the Government of India. The Department hopes to generate informed discussion on the subject, so as to enable the Government to take an appropriate policy decision at the appropriate time.
Download – Full Discussion Paper on Utility Models
