World Trade Organization Organisation Mondiale du Commerce Organización Mundial del Comercio

Australia 14, 15, 16, 17:

REPORT BY WTO SECRETARIAT (WT/TPR/S/249): III TRADE POLICIES AND PRACTICES BY MEASURE: (4) MEASURES AFFECTING PRODUCTION AND TRADE: (vi) Intellectual Property Rights (b) Patents

Australia notes in paragraph 250, page 114 of the Secretariat report that patent protection may be granted to any invention relating to either a product or process that is new, involves an inventive step, and is capable of industrial application (Section 2(1)(j) of the Patents Act 1970, as amended). Article 3(p) of the Act excludes 'an invention which, in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components'.

14. 
    Could India advise whether this exclusion has been applied in practice to reject patent applications?
    

Reply: Section 3 of the Patent Act lists out those that are not considered as inventions. Sub section (p) of Section 3 includes traditional knowledge or an aggregation or duplication of known properties of traditional known component or components. Traditional knowledge, therefore, is not patentable under the Act. This exclusion has to be applied in practice to evaluate patent applications.

15. 
    Could India explain the policy reason for this exclusion?
    

Reply: Only novel inventions having inventive step and industrial applicability are patentable. Traditional knowledge which is used by the communities for generations but have not been documented comes under prior use and it is necessary to protect the knowledge of such communities is the rationale for this enactment of this section.

16. 
    Could India explain which specific national elements are included in India's definition of Traditional Knowledge? Do India's criteria apply to Traditional Knowledge from a country other than India?
    

Reply: The Patents Act does not define the term traditional knowledge. However, any knowledge existing traditionally either with any local or indigenous community or elsewhere is taken into account. Therefore, it is not limited to the traditional knowledge existing in India.

17. 
    What is the policy reason for the exclusion of 'methods of agriculture' in Section 3(h) of the Patents Act 1970?
    

Reply: The policy behind the exclusion of methods of agriculture and Horticulture under section 3(h) is to promote the public interest in sectors of vital importance to India's socio economic and technological development (Article 8. 1 of TRIPS).