This article is written by Shruti Sharma of 5th semester of The Law School, University of Jammu, an intern under Legal Vidhiya.
ABSTRACT
The Law commission of India was established to review various bills and legal reforms and provide its own insight on the same. In 1998, The 15th Law Commission of India while performing its functions, presented the 167th report and the report was related to the Patents (Amendment) Bill of 1998. The report analysed the bill and concluded by recommending some changes to be made in the bill. This Article dwells in the discussion of the 167th report and further analysis of the report
KEYWORDS
Law Commission, Patent, Report, Recommendations, Amendment, Bill, National Interest
INTRODUCTION
The Government of India has always been proactive in protecting the rights and interests of its citizens. It has always worked for the benefit of all. Various initiatives have been made in various areas and one such initiative has also been made in the field of law and the legal reforms. This initiative was made through the establishment of the Law Commission of India. This step was taken in a few years following the independence of our country. The Law commissions are appointed on a continual basis. India’s current legal system is the result of several law commissions that the British administration established. A state’s law commission is crucial to the updating, grading, and curation of its legal system. All the current essential legal codes including The Indian Penal Code, The Code of Civil Procedure, the Law of Limitation Act and The Criminal Procedure Code were drafted in accordance with the suggestions made by the law commissions over time. The first law commission was established in 1847 and presided over by Lord Macaulay, as documented in its history. After the Charter of 1833 was passed, India embraced the concept of a law commission.
This commission was primarily established to investigate Indian laws and customs and to introduce new western laws and common law concepts to the country. For the reasons mentioned above, India’s conditions and circumstances are too different from those of the western states, with different cultures, religions, languages, customs and laws that were passed by the Company after the British entered the country. As a result, it is not possible to apply western laws directly to India. In this context, a survey and analysis of current practices and principles are necessary before introducing new ones. This work serves as the foundation for an official legal system that meets the needs of the people, accommodates the needs of the Indians, and establishes formal, stable laws and codes upon which justice will be administered.
In India after independence, the practice of pursuing legal reform through the establishment of law commissions persisted. For a three-year period beginning in 1955, the first Law Commission of independent India was established. Twenty more law commissions have been founded since the founding of the first in post-independence India. Every one of these commissions which have greatly benefited the Indian legal diaspora, has been presided over by a well-known figure in Indian law.
Law Commission is a non- statutory body that the Indian Government creates every three years. The Law Commission was formed to make sure that laws are just and equitable and that efforts are made to put them into effect. Although a law commission’s creation can be considered as a means of carrying out Article 39A of the Indian Constitution, which commands the State to guarantee that the legal system operates in a way that advances justice, the Indian Constitution does not define one. It may be known as an ad hoc body since it was established to carry out a specific function. It also suggests certain legal changes to the Ministry of Law and Order. In order to advance justice in society, the Central Government appoints legal experts to serve on a law commission. Either the commission Suo-motu (on its own motion) takes up an issue and begins working on it, or the government remarks on the matter.
As we’ve mentioned above that the first Post- Independence Law Commission was established in the year 1955 and since then, a total of 22 Law commissions have been appointed by the Government of India. Presently, the 22nd Law Commission is in charge as it got the extension of term last year. However, for us, the major Law commission is the 15th Law commission of India.
THE FIFTEENTH LAW COMMISSION, 1997
The 15th Law commission of India was established in the year 1997. The chairmanship was held by Justice B.P Jeevan Reddy. The Commission continued to work till the year 2000. In the period of these three years, the commission presented a total of 18 reports which are:
| Report no. | Subject | Year of Submission |
| 157 | Section 52: Transfer of Property Act, 1882 | 1998 |
| 158 | The Amendment of the Industries (Development and Regulation) Act, 1951 | 1998 |
| 159 | Repeal and Amendment of Laws: Part 1 | 1998 |
| 160 | Amendment to the All-India Council for Technical Education Act, 1987 | 1998 |
| 161 | Central Vigilance Commission and Allies Bodies | 1998 |
| 162 | Review of the functioning of Central Administrative Tribunal, Customs, Excise and Gold (Control) Appellate Tribunal and Income-Tax Appellate Tribunal | 1998 |
| 163 | The Code of Civil Procedure (Amendment) Bill, 1997 | 1998 |
| 164 | The Indian Divorce Act, 1869 (Act 4 of 1869) | 1998 |
| 165 | Free and Compulsory Education for Children | 1998 |
| 166 | The Corrupt Public Servants (forfeiture of property) Bill | 1999 |
| 167 | The Patents (Amendment) Bill, 1998 | 1999 |
| 168 | The Hire-Purchase Act, 1972 | 1999 |
| 169 | Amendment of Army, Navy and Air Force Act | 1999 |
| 170 | Reform of the Electoral Laws | 1999 |
| 171 | The Biodiversity Bill, 2000 | 2000 |
| 172 | Review of Rape Laws | 2000 |
| 173 | Prevention of Terrorism Bill, 2000 | 2000 |
| 174 | Property Rights of Women: Proposed Reforms Under the Hindu Law | 2000 |
Among the abovementioned reports, the 167th Report of the Law commission of India is the one to be analysed in detail. This report was presented in the year 1998 and the title of the report was “The Patents (Amendment) Bill, 1998”.
Thus, in order to understand the report and its content, it is necessary to have a clear understanding about the main Patents act and the subsequent amendment bill of 1998.
PATENTS LAW
The 167th report of the Law Commission of India was regarding the Patents (Amendment) Bill, 1998. This Amendment Bill was introduced in the parliament in order to bring some reforms in the original Patents Act of 1970. The Patents law performs many functions and the most important one is to protect the new inventions including products, designs and processes as well. Not only this, the law also provided the mechanism to grant protection to these new inventions.
A Patent is an intellectual Property Right that is granted to a person regarding an invention. It gives the owner of the invention, the legal right to exclude any other person from making the use of such invention against the will of such owner.
Patent (Amendment) Bill, 1998
The Parliament enacted the Patents Act of 1970 in order to provide proper laws concerning the Patent rights of the owner of the various new inventions.
However, the original act of 1970 had some drawbacks. This act didn’t have any mentioned provision for the protection of the products like the Basmati Rice, The Darjeeling Tea and also there was not mention to provide any kind of protection to the ancient knowledge of using the plants like neem and the turmeric for medicinal purposes. Moreover, the 1990s decade changed the dynamic of India as a nation as liberalisation was introduced in Indian market and the other changes led to the need for an amendment in the existing Patents law of India.
Thus, in the year 1998, The Patents (Amendment) Bill was introduced in the Parliament. This Amendment was aimed at bringing reforms in the Patents laws in India.
167th REPORT OF LAW COMMISSION
The 15th Law Commission of India was established in the year 1997 and it remained in Office till the year 2000. This Law Commission presented various reports and one of them was the Report on the Patents (Amendment) Bill, 1998. We already have an idea about the Patents Act and why the amendments were deemed necessary.
The matter of the bill was already introduced in the Parliament and in fact, the Rajya Sabha had already passed the bill before it was taken up by the Commission. However, The Commission took up this matter suo-moto and this step was taken as the Commission was concerned about the various omissions in the bill that would be of negative impact to the National Interests.
One such omission was that certain exemptions were granted to the members states through the Article 27 of the Agreement on TRIPS. However, no such exemption was mentioned in the Bill. Not only this, the report has mentioned some other issues as well.
Content and Recommendations
The report contained 2 chapters which are entitled as the ‘Introduction’ and ‘Conclusions and Recommendations’. The first chapter of the report deals with various issues relating to the Patenting Process and the patent law. The second chapter of the report contains the provisions mentioned in the Patents (Amendment) Bill of 1998 and the recommendations of the Law commission.
The First Chapter of the report has the following points:
- The Indian Government agreed to the establishment of WTO including the agreement on TRIPS. In order to comply with the obligations under TRIPS agreement, it became necessary to amend the original act of 1970.
- The Patents act,1970 had no provisions for the grant of product patent in various fields which included the agricultural and pharmaceutical. Along with this, the act did not have any provision for the grant of the Executive Market Rights.
The above-mentioned points were abstracted from the bill of 1998. Along with these, following were the points mentioned in the report:
- The next important point was related to the patenting of the knowledge that was gained from the time immemorial. As in India, the Locals living in the villages have been practising various methods for centuries that have great value. However, in today’s era, the market has become a profit earning arena and thus such knowledge with a little tweak is used by various large corporations without any compensation to the original inventors of such methods. For example: The Neem derivatives like Bio-pesticides, Thumatin (a natural sweetener). Thus, it is important to recognise the indigenous rights and also develop the appropriate mechanisms in order to provide the Intellectual Property Rights to the informal innovators as well.
- The Next point that has its mention in the report is the culmination of information from various international declarations that actually includes benefits to the indigenous communities.
- In the next point, it was mentioned that how the grant of product patents in certain fields is detrimental for the society. As per the views of various learned men, the products like the medicines, drugs as well as the food items must not be considered as Patentable Inventions. The major contention is that if any amendment in this aspect is made, that would not be beneficial for the people.
RECOMMENDATIONS OF THE REPORT
- Recommendation No. 1
The 1st recommendation was regarding the amendment of the Section 5 of the Patents Act, 1970. The section 5 stated that only the processes are to be patented and not the products. The amendment was to be made in the form of sub-section (2) in order to provide for the product patent for the medicines and the drugs.
The Law commission agreed to the abovementioned amendment. However, it was also suggested that the exemptions mentioned in the Article 27 of the TRIPs Agreement must also be entered in the amendment and that could be done in the form of an explanation.
- Recommendation No.2
The second Recommendation was to amend the Section 24A. Through this change, the intention was to explain about the things that would be kept out of the domain of articles on which the owner would have the exclusive right to sell and distribute.
- Recommendation No.3
The third recommendation was made regarding the deletion of the section 39 of the Act. It was suggested that deleting the section in its entirety is not the correct decision as the basis of this section still exists and moreover, the section doesn’t create any other issues.
However, if the matter is so crucial, changes can be made to the said section instead of deleting the whole Section.
- Recommendation No.4
The next recommendation was to make an amendment in the section 64 of the act by introducing an additional ground for the revocation to protect our state interest.
- Recommendation No.5
This Recommendation was made for the benefit of the nation. This mainly dealt with the Amendment to the section 134 of the Patents Act, 1970.
The section 134 was based on the concept of reciprocity and it stated that India would deny the rights to all the citizens of those countries which have denied the right to the Indian citizens. However, with the continuous denials to the Indian citizens, it became even more important for India to arm itself in order to counter the discriminatory denials and restrictions.
Thus, some Major changes were recommended to be made to the mentioned section of the act.
A BRIEF ANALYSIS
The report of the 1998 that was given the title ‘The Patents (Amendment) Bill, 1998’ has been an important work of the 15th Law commission of India. Through this report the Law commission tried to play the proactive role that it is always expected to perform in the legal system of the country.
The information mentioned in the report and the recommendations made by the commission all seem important from the legal as well as societal point of view. The contribution of the 167th report can be considered as an important one.
Through this report, the Commission has tried to extract maximum benefit for the public and the nation as well. The kind of reforms that are suggested show the importance of people as well as national interest in the legal system.
The recommendations related to the pharmaceutical and the medicines has been made by keeping the welfare of the people in mind. Not only this, the rights of animals are also considered to be of utmost importance.
The information that has been given in the report has been able to establish that how important are the patent laws and what consequences they have, if not used properly.
Thus, it can be said about this report that it actually did a good work. However, the Bill was enacted in the year 1998.
CONCLUSION
Now, to sum it up, we can say that the Patents Bill of 1970 was a major step taken towards the development of Patent laws in India. However, with the changing dynamics of the world and our nation, some modifications were required. So, the Amendment Bill of 1998 was framed and it aimed at bringing the required changes. In all this, the 15th Law Commission of India played a crucial role by taking the matter Suo moto in its domain and presented a report on the same. The report was made in order to suggest some additional measures. However, the Parliament passed the bill in the year 1998 and not many recommendations of the report were complied with. Still, the recommendations of the Commission had value to them.
REFERENCES
- Wikipedia: https://en.wikipedia.org/wiki/Law_Commission_of_India
- Law Commissions of India: https://lawcommissionofindia.nic.in/report_fifteenth/
- I Pleaders: https://blog.ipleaders.in/law-commission-of-india-3/#First_Law_Commission
- Law Commission Report 167: https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022081012-2.pdf
- https://patnahighcourt.gov.in/bja/PDF/UPLOADED/BJA/MISC/419.PDF
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