The Government of India met the December 31 deadline to fulfill its obligation to the World Trade Organization (WTO) under the TRIPs agreement, by enacting an Ordinance – The Patents (Amendment) Ordinance, 2004 followed by the Act – Patents (Amendment) Act, 2005.

Under TRIPS, India was required to introduce product patents where only process patents were allowed. Procedural changes were also required under the Patent Cooperation Treaty (PCT). The new Law ensures adequate safeguards against the misuse of patent rights and gives the Government sufficient powers to intervene and ensure that patented inventions are available to the public at an affordable price.

In a nutshell, the most important changes are:

· The product patent can be issued with respect to food, medicine and chemical products. Abolition of ‘process patent’ provisions for these products.

· Provisions regarding EMR (Exclusive Marketing Rights) abolished.

Computer software itself is not patentable, but in combination with or embedded in hardware it is patentable.

· Removed the ‘acceptance of specification’ provision and its advertising.

· Provision for prior and subsequent opposition to the granting of a patent.

· The patent application will be published in the Official Gazette. At that time, opposition may be filed on limited grounds, but the hearing is not required.

· After the grant of the patent, the opposition can be filed within 12 months.

· Omitted patent sealing provision.

Provision for the acquisition of patents for public health purposes.

· The patent infringement lawsuit cannot start before the date of publication of the application.

· Substantially improved penalties.