Licensing without consent

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The sole compulsory licence granted by the Indian patent office has
unsettled innovators. Naveen Varma and Sujit Thakur at ZeusIP
explain the process of compulsory licensing in India

Under the patent laws of several countries, including India, an eligible third party can be granted a compulsory licence to work a patented product or process.

Naveen Varma
Naveen Varma

India’s Patents Act, 1970, as it was originally enacted, provided for compulsory licensing. After 1994 when India signed the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), as mandated by the World Trade Organization, the act was amended three times – in 1999, 2002 and 2005 – to comply with TRIPS.

The Patents (Amendment) Act, 2005, allowed product patents to be granted for drugs, which was not allowed under the 1970 act. After 2005, compulsory licences for pharmaceutical product patents became a possibility.

Scenario in which licence is granted

Under the Patents Act, an applicant can obtain a compulsory licence on the following grounds: (a) the reasonable requirements of the public regarding the patented invention have not been satisfied; or (b) a patented invention is not available to the public at a reasonably affordable price; or (c) a patented invention has not been worked in India.

Accordingly, if even one of the above-mentioned grounds is satisfied, a compulsory licence may be granted.

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Naveen Varma and Sujit Thakur are partners at ZeusIP, a Delhi-based IP firm.