EXCTUSIVE MARKETING RIGHTS

By the patents (Amendment) Act, 1999 sections24 Ato24F have been inserted. These deal with the exclusive marketing rights to sell or distribute an article or substance in India. This amendment has brought the Act in line with the provisions of TRIPs Agreement of WTO to which India is a signatory.

Application for grant of exclusive rights (s. 24A). where an application for grant of exclusive marketing rights to sell or distribute the article or substance in India has been made in the prescribed form and manner and on payment of the prescribed fee, the controller shall refer the same to an examiner for making a report to him as to whether the invention claimed in the application is -

            (i) an invention under s.2viz, new, useful and a fit subject matter for the grant of a patent;

            (ii) not an invention within the meaning of s. 3., or

            (iii) an invention for which no patent can be granted under s. 4.

Accordingly, on the basis of the examiner's report the Controller shall decide whether to grant exclusive marketing right or not.

Grant of exclusive rights (s. 24B). This section prescribes prerequisites and the procedure for obtaining exclusive rights in India. For this purpose a foreign applicant has to satisfy that (i) he has filed an application for patent in India under s.5 for substantially the same invention as in his country on or after January 1,1995; (ii) a patent has been granted to him in his country on or after January 1, 1995 after the date of making a claim for a patent in India; (iii) he has obtained the approval to sell or distribute the product on the basis of tests conducted on or after January 1, 1995 in his country after the date of making a claim for a patent in India; (iv) he has obtained the approval to sell or distribute from the authority specified by the central government in India.

For an Indian applicant the requisites are: (i) he must have filed a patent application for method or process of manufacture of the substance covered under s. 5 on or after January 1, 1995; (ii) he must have filed a patent application for the substance itself under s. 5 after filing the said application for process; (iii) a patent must have been granted to him for the said process in India on or after the date of making a claim for a patent covered under s. 5., (iv) he must have obtained the approval to sell or distribute, from the authority specified by the central government in India on the basis of appropriate tests conducted on or after January 1,1995 after the date of making a claim for a patent covered under s. 5.

It is only when a person satisfies the above requisites the he can make an application for the grant of exclusive marketing rights under s. 24A.

Compulsory licences (s. 24C). Under this section, an application for compulsory licence can be made within 2 years from the date of approval of exclusive marketing right.

Special provisions for selling or distribution (s. 24D). Where at any time after an exclusive right under s. 24B, has been granted, the central government is satisfied that it is necessary in public interest to sell or distribute the article or substance then it may either by itself or through any person authorised in writing on its behalf do so.

Further, the central government may, by notification in the official gazette and at any time after an exclusive right to sell or distribute an article or a substance has been granted direct, in the public interest and for reasons to be stated that the same shall be sold at a price determined by an authority specified by it in this behalf.