Now Sound Mark can be Register online under Trade Mark Rules 2017 in India

In India trade mark act related to trademark in India was the (i ) Trade Marks Act, 1940 which had similar to the UK Trade Marks Act, 1938.

Other mile stone in the history of trade mark was Trade and Merchandise Marks Act, 1958 with changed by the the Trade Marks Act, 1999 and is the present trade mark procedures operated through Trade Mark Act ,1999.

In the Act of trade mark 1999 , logo , name , signature , mono , punch line can registered as per the procedures  .

In 2004 Yahoo Inc has presented his claim for Trade Mark Registration of his jingle “ yodeling the word yahoo.” But that time there was no such registration before this but as per provisions of trade mark Act 1999 , department of the trade mark has registered the “Sound mark ” of the Yahoo.

The news rules of the Trade mark 2017 has implemented from the 6^th march 2017 with some amendments in the rules and give the provision for registration of “ Sound Trade Mark in India ” through online filling on www.ipindia.nic.in .

For the registration applicant have to provide the MP3 file  along with application and appropriate fees .

Following mentioned “Sound marks ” registered in India –

1. ICICI Bank – (Corporate jingle – Dhin Chik Dhin Chik)
2. Britannia Industries ( bell sound)
3. Yahoo -(Human voice yodelling Yahoo)</>
4. Cisco – (Tune under  conferencing service Web Ex)
5. Nokia – (Guitar sound for switch on / off )

The best option and tool to appeal the customer is sound and if it is in form of catchy jingle more appealing to the customers , like the jingles are very easy to identify the trade mark and brand name like Amul ( Elkale  pakali delicious ) etc and other jingles like Cadbury  are identity of the companies .

Increase Fees of Trademark in India – Revision of Trademark Fees in India

GOVERNMENT OF INDIA

MINISTRY OF COMMERCE AND INDUSTRY

(DEPARTMENT OF INDUSTRIAL POLICY AND PROMOTION)

Notification

New Delhi the                 March, 2017

GSR ____ (E).- Whereas a draft of certain rules, namely, the Trade Marks Rules, 2015 were published as required under sub-section (4) of section 157 of Trade Marks Act, 1999 (47 of 1999), vide notification of the Government of India in the Ministry of Commerce and Industry (Department of Industrial Policy and Promotion) number G.S.R. 879 (E) dated, the 17^th November, 2015, in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), inviting objections and suggestions from all persons likely to be affected thereby, before the expiry of a period of thirty days from the date on which copies of the Gazette containing the said notification were made available to the public;

And  whereas  copies  of  the  Gazette  were  made  available  to  the  public  on  the  17^th November, 2015;

And whereas, objections and suggestions have been received from various persons and stakeholders within the specified period in respect of the draft rules contained in the said notification and all the objections and suggestions have been duly consulted by the Central Government Now, therefore, in exercise of the powers conferred by section 157 of the Trade Marks Act, 1999 (47 of 1999), the Central Government hereby makes the following rules in supersession of the to replace Trade Marks Rules, 2002, except as respect things done or omitted to be done before such supersession, namely:-

37

List of Forms

FORM TM-A

The Trade Marks Act, 1999

Application for registration of a trademark

[The relevant information must be filled up in coloured box against the respective head]

FORM TM-M

The Trade Marks Act, 1999

Application/Request for any miscellaneous function in respect of a trademark Application/ Opposition/Rectification under the Trade Marks Act

This form is divided into three Parts i.e. A, B & C. Part A and C are required to be filled compulsorily.

Part B is further divided into several subcategories and the same is required to be chosen by the applicant as per requirement and be filled accordingly.

[Note: One form is meant for one request only. Different forms should be submitted for different requests. In case more than one request is claimed in one form the first one will be entertained and rest of the requests will be ignored.]

40

FORM TM-R

The Trade Marks Act, 1999

FORM TM-O

The Trade Marks Act, 1999

Opposition/Application for Rectification of the Register/Counter statement / Refusal or invalidation of a trademark under Geographical Indication of Goods (Regulation and Protection) Act, 1999

[The relevant information must be filled up in coloured box against the respective head]

[In case of off line filing, the form should be fined in duplicate]

1         Applicant or Registered Proprietor/Opponent /Third Party Making The Application/Request

42

FORM TM-P

The Trade Marks Act, 1999

Application for Post registration changes in the trademarks

This form is divided into three Parts i.e. A, B & C. Part A and C are required to be filled compulsorily.

Part B is further divided into several subcategories and the same is required to be chosen by the applicant as per requirement and be filled

43

accordingly.

[Note: One form is meant for one request only. Different forms should be submitted for different requests. In case more than one request is claimed in one form the first one will be entertained and rest of the requests will be ignored.]

[(a) One form is meant for request of one change only. Different forms should be filed up for different changes

(b) The relevant information must be filled up in colored box against the respective head.]

44

FORM TM-U

The Trade Marks Act, 1999

Application for registration of Registered User/Variation of Registered User/Cancellation of Registered Users and Notice of intention to intervene in proceeding in cancellation/variation

This form is divided into three Parts i.e. A, B & C. Part A and C are required to be filled compulsorily.

Part B is further divided in several subcategories and the same is required to be chosen by the applicant as per requirement and be filled accordingly.

[Note: One form is meant for one request only. Different forms should be submitted for different requests. In case more than one request is claimed in one form the first one will be entertained and rest of the requests will be ignored.]

[(a) One form is meant for request of one change only. Different forms should be filed up for different changes

(b) The relevant information must be filled up in colored box against the respective head.]

45

[ This address should be the address of the applicant’s principal place of business in India]

[(a) Unless otherwise specifically stated, the applicant’s address shall be the address for service of the applicant who has principal place of business in India.

(b) The address for service in India must be provided, in case the applicant does not carry business in India]

d      Notice of intention to intervene in proceedings for variation or cancellation in regard to registration of registered user

Ground for intervention in proceeding

PART C

[details of the person making application/request and details of document is submitted]

DETAIL OF THE Applicant(s)

Signature

Name

Authority

Details of documents attached

BlackBerry Files Patent-Infringement Suit Against Nokia

Former mobile phone leader Nokia’s return to smartphone business seems to be going well but company’s mobile equipment business has now come under spotlight as BlackBerry is said to have filed a patent-infringement case against the Finnish company. BlackBerry claims that Nokia’s mobile network products use technology that is covered by as many as 11 of its patents. in complaint, BlackBerry said Nokia’s products including Flexi Multiradio base stations, Liquid Radio software, and radio network controllers are using the technology that is covered by BlackBerry patents, Bloomberg said in its report. The complaint by BlackBerry has been filed on Tuesday in federal court in Wilmington, Delaware in USA.

Nokia mobile products are the subject of complaint are provided to carriers including T-Mobile US and AT&T for their LTE networks, BlackBerry said in its complaint as per the report. “Nokia has persisted in encouraging the use” of the products that are compliant to these industry standards but without a license from BlackBerry, the company was quoted as saying in Bloomberg report.

BlackBerry is now looking to get “recompense” for what the company says is “unauthorised” use of its patented technology by Nokia. BlackBerry has further said that Nokia is well aware of the inventions as the company has cited some of the patents in its own patent applications. Notably, some of the patents involved in the case earlier belonged to Nortel Networks Corp and Nokia tried to buy them with a bid that eventually failed in 2009, as per BlackBerry. However, BlackBerry, as part of a consortium called Rockstar (which also included Microsoft and Apple) managed to buy these patents from Nortel. since the patents cover essential elements of 3GPP mobile telecommunication standard, BlackBerry says it is not seeking to block the use of technology entirely but looking to license them on fair and reasonable terms, as per the report.

Granted Patent for Fingerprint Reading Touch Screen to Apple

Apple has been granted a patent for an “interactive display panel with IR diodes” — a method that would let users activate a device through a virtual home button placed within the touch screen. The technology, described in a filing made public Tuesday by the US Patent and Trade Office, could replace the physical home button that’s traditionally occupied the space below the iPhone’s screen. The patent was first spotted by Apple-tracking site Apple Insider. The iPhone’s home button may not be long for this world.

Ever since Apple co-founder Steve Jobs introduced the iPhone in 2007, the round home button has been a focal point for navigating the gadget. But rumors of its demise began to swirl in 2013, when Apple introduced Touch ID, a fingerprint security sensor that allowed users of its iPhone 5S to bypass typing in a password. The Touch ID sensor is built into the home button today.

That speculation only increased in 2015, when Apple filed a patent application to move the fingerprint sensor beneath the glass of the touch screen, eliminating the need for a home button.

As Apple marks the 10th anniversary of the original iPhone, the rumor mill is being fed by reports about big hardware changes expected on the next-generation phone many are calling the iPhone 8. The elimination of a physical home button is one of the rumored changes, as is a glass and steel body with a curved edge display; wireless charging; and even using an iris scanner as one way to unlock the device. Apple didn’t immediately respond to a request for comment. Does the Mac still matter? Apple execs tell why the MacBook Pro was over four years in the making, and why we should care.

Patent Violator List : India Request to Remove from Patent Violator List

The Indian Pharmaceutical Alliance (IPA), the domestic pharma industry lobby group said on Friday it has filed a submission to the US Trade Representative (USTR) to remove India from its priority watch list (PWL) which includes countries that are alleged violators of US patent laws. IPA represents twenty Indian pharmaceutical companies. The body collectively accounts for about 85 percent of private sector investment into pharmaceutical research and development in India and 60 percent of the country’s pharmaceutical exports. In its submission it has urged the USTR for the 2017 Special 301 Review. The 2016 Special 301 Report continued with the placement of India on the watch list despite noting several positives that have contributed to a better environment for the protection and enforcement of intellectual property rights in India. The USTR’s Special 301 report is a Congressionally-mandated annual report that has been issued every year beginning in 1989. It identifies trade barriers to US companies and products in foreign shores due to the host country’s intellectual property laws, including trade-marks, patents, copyright and trade secrets. The US government exerts pressure on the countries in the watch list to address both emerging and continuing concerns and reviews the list annually based on public hearings.

The countries that continue to fail were put on priority foreign country category that mandates the US government to impose unilateral trade sanctions. India was added to the priority watch list by the US government based on complaints of MNC drug makers led by US companies over India’s poor enforcement of intellectual property law. It was with special reference to certain provisions of amended Indian patent law of 2005, including Section 3 (d) which denies a patent grant for incremental research; it also flagged worries over use of compulsory licensing and failure to ensure regulatory data protection. The high profile cases of Novartis blood cancer drug Gleevec – where the patents were invalidated by courts based on Section 3 (d) and the use of compulsory licensing to give Indian drug maker Natco Pharma permission to manufacture and sell a copy of Bayer’s liver and kidney cancer drug Nexavar were often cited by multinational pharma lobby as cases of India’s laxity in protecting intellectual property rights. five key submissions made by IPA on why India should be removed from priority watch list:
 
Improvement in IPR environment: The improvements demonstrated in 2015 have been sustained and accelerated in 2016. These include improvements in the IPR environment through dialogue and consultation as well as adoption of the National IPR Policy, quadrupling of patent examiners and consistent judicial enforcement in accordance with Indian law.
 
Compulsory licensing: There has been no grant of compulsory license in 2015 and 2016 or revocation under Section 66. We are also not aware of any abusive patent opposition.

Section 3(d): Section 3(d) of Indian Patent Act has caused considerable apprehension in the past that it would limit the patentability of useful innovations. We have shown that it only limits secondary patents that do not enhance efficacy and typically result in ‘evergreening’. We have also shown that Section 3(d) and Hatch-Waxman provisions are not dissimilar in terms of outcomes. Therefore, Section 3(d) ought not to be of concern. Make in India and preference to local manufacturers: The proposed provision in the Patent Amendment Rules noted in the 2016 Report which gave rise to the apprehension that patent applicants would be pressurized into local manufacture has been dropped.
 
Data protection: We are unclear about the extent of adverse impact of the lack of data exclusivity on U.S. companies. Though general assertions have been made, no specifics have been provided in past submissions by U.S. companies. We do not expect that the impact will be significant. Our expectation is also borne out by the simulation studies conducted by the United States International Trade Commission (USITC) that the likely increase in employment in the U.S. if India provided for TRIPS-plus IPR on par with the prevalent standard in the U.S. indicated ‘employment gains of less than 10,000 jobs’ for all U.S. sectors put together.

Trade Mark “Keep America Great” Claimed by President Trump

Trump applies for trademark of his 2020 re-election slogan “Keep America Great” Donald Trump stopped an interview for some time and asked lawyer to register the phrase “Keep America Great” both with and without an exclamation point. Never straying far from his business roots, Trump has already submitted an application to trademark the slogan he plans to use for his 2020 re-election run: “Keep America Great.” Records from the United States Patent and Trademark Office show that the president applied on Wednesday — before he was even sworn into office — to trademark the phrase, both with and without an exclamation point.

also covers usage from bumper stickers to clothing to fundraising. The applicant was New York-based Donald J. Trump for President, Inc. The applications are pending, awaiting review by the trademark office.

Donald Trump told The Washington Post last week that he had chosen “Keep America Great!” as his re-election slogan. According to the newspaper’s report, he shouted for a lawyer in the middle of the interview. A lawyer came within two minutes, and was instructed to file a trademark for the phrase, the paper said. Trump then resumed the interview. Trump told the Post that he came up with his “Make America Great Again!” campaign slogan on November 7, 2012, the day after Republican Mitt Romney lost to Democrat Barack.

In China Apple loses trademark lawsuit over ‘iPhone’ name

Beijing, May 5: Apple Inc has lost a trademark lawsuit in China, with a court here allowing a leather goods- maker to sell wallets and handbags flashing the world’s biggest technology giant’s exclusive ‘iPhone’ name. The Beijing Municipal High People’s Court ruled in favour of Xintong Tiandi Technology (Beijing) limited, which sells a number of leather products such as smartphone cases and handbags under the name ‘IPHONE’, state media reported.

In 2002, Apple applied for the ‘iPhone’ trademark for its electronic goods in China, but it was not actually granted until 2013. Xintong Tiandi filed for its own ‘IPHONE’ trademark in China in 2007, the same year the first generation of Apple’s iPhone was launched in the US.

In order to obtain the exclusivity on the use of the ‘iPhone’ trademark in China, Apple first took the case to the Chinese trademark authority in 2012, but it failed as the agency claimed Apple could not prove the name ‘iPhone’ was a well-known brand prior to Xintong Tiandi’s registration in 2007. Apple then filed a lawsuit in a Beijing court. The court, however, ruled against it and Apple appealed to the Beijing Municipal High People’s Court. The court said the company did not sell the iPhone in China until 2009. The final judgement means Xintong Tiandi could continue to use the trademark to sell its products, state-run China Daily reported yesterday. Apple did not comment on the ruling. The ruling comes as Apple’s latest quarterly earnings showed a 13 per cent drop in revenue as sales of iPhones. China was a particular weak spot as the sales in China fell 26 per cent to USD 12.49 billion due to weak demand for iPhones. Xintong Tiandi confirmed the court ruling on its website and said the decision represented a victory for free consumer markets.

James Yan, a Beijing-based analyst at Counterpoint Technology Market Research said, “The failure of the trademark fight would not have a great impact on Apple’s brand and image but it might confuse consumers as they do not know whether these products are made by Apple or some producers copy Apple’s name when they are buying leather products embossed with the ‘IPHONE’ brand”. Zhu Dalin, an analyst at Beijing-based Internet consultancy Analyses International said the influence of Xintong Tiandi is very minor which would not pose a threat to Apple anyways as Apple mainly focuses on electronic devices such as smartphones and iPads.

PepsiCo wins trademark case over ‘Aquafina’

New Delhi: Pepsico India Holdings Pvt Ltd has won a legal battle in the Delhi High Court over the trademark ‘Aquafina’ used for its packaged drinking water.

In Delhi High court , bench of Justice G S Sistani restrained PSI Ganesh Marketing from using “deceptively similar” trademark ‘Aqua Fies’ and causing infringement of rights in the trademark and copyright.

The court also awarded damages to the tune of Rs 5 lakh to Pepsico India on account of illegal activities of PSI Ganesh Marketing and ordered destruction of all the infringing goods within 4 weeks.

“On the basis of the documents placed on record, the plaintiffs have established that PepsiCo is the owner of the trademark, trade name, logo and label ‘Aquafina’ and the plaintiff have the exclusive right to use the same,” the court said.

“The impugned trademark of the defendants is deceptively similar to the PepsiCo’s trademark. The use of the word “Aqua Fies” by the defendants is likely to dilute the distinctive character of the plaintiffs trademark “Aquafina” and the same is likely to erode the goodwill and reputation of PepsiCo among its existing as well as potential customers in the market,” it said.

Pepsico said that the ‘Aquafina’ product was launched in India as early as 1999 and it is a unique word coined and exclusively adopted by it.

It also said that under section 17 of the Copyright Act, all rights in the label are owned by the plaintiffs and the said label is distinctive and is an original artistic work under section 2 (c) of the Copyright Act.

Battle for registration between PayPal and Paytm

PayPal, an online payments system recognised worldwide, has appealed to the Indian authorities to refuse the trademark registration application from Paytm in India, citing similarities between the two company’s logos. The company in a notice has accused Paytm of using a logo that’s “deceptively and confusingly” similar to PayPal. PayPal in a notice said, “The impugned mark sought by the applicant [Paytm] is deceptively and confusingly similar to the opponent’s earlier trademark in as much as applicant has slavishly adopted the two-tone blue colour scheme of the opponent in its entirety.” PayPal has claimed that it has been using its trademark since 1999 and is registered in all countries where it operates, including India. The company has asked authorities to refuse the trademark application on the grounds of deceiving the consumers and similarity with PayPal’s logo. “The applicant is attempting to register a trade mark which is of such nature as to deceive the public and cause confusion. The registration of the impugned mark is therefore liable to be refused registration under the provisions […],” states the notice.

We’ve reached out to Paytm about its response to PayPal’s claims, and will update this article when we hear back.

PayPal has questioned the choice of colours made by Paytm for the logo. “The first syllable in each mark is in dark blue colour and the second syllable in a light blue colour. Further, both marks begin with the term “Pay” which consumers tend to remember more than the second syllable, and the marks are of similar length. These similarities cause a likelihood of confusion in the aggregate, especially considering the fame of the opponent’s earlier trade mark.”

Further, the notice raises questions on intention of the applicant, which is Paytm in this case. “There is no reason for the applicant to adopt the identical colours and colour scheme other than to take advantage of the reputation the opponent has built up into this combination in connection with its popular services. The applicant could have chosen from a sheer endless variety of colours and colour combinations.”

The company has also requested to refuse the application on the basis it may dilute the brand equity of PayPal. “Such adoption and/ or use of the impugned mark is likely to cause confusion and deception amongst the members of trade and public in that they will mistakenly believe that the services under the impugned mark originate from the opponent or that the applicant is affiliated or connected with the opponent, which is not the case. Further, such adoption and/ or use of the impugned mark is likely to dilute the brand equity of the opponent’s earlier trade mark.” (Courtesy – NDTV News ) .

China is on Top for Patent filling

China top innovator :1 million patent requests in year: UN

GENEVA: China is driving Asian-led growth in innovation worldwide, becoming the first country to file 1 million patent applications in a single year, the World Intellectual Property Organization (WIPO) said on Wednesday.

Chinese innovators filed most of their 2015 applications in electrical engineering, which includes telecoms, followed by computer technology and semiconductors, and measurement instruments, including medical technology, the UN agency said.

The figures for China are quite extraordinary. It is the first patent office in the world to receive more than 1 million applications,” WIPO director-general Francis Gurry told a news briefing to launch its report, “World Intellectual Property Indicators”.

Worldwide, some 2.9 million patent applications were filed last year, a 7.8% increase over 2014, WIPO said. Roughly two in three patents are ultimately approved, Gurry said. The United States ranked second last year with 526,296 patent applications, followed by Japan at 454,285 and South Korea with 238,015.

Gurry was asked about protectionist remarks by US President-elect Donald Trump, who has announced he would kill an ambitious regional trade pact, the Trans Pacific Partnership Trans Pacific Partnership (TPP), and consequences for innovation. Gurry said there had been no general policy statement on innovation thus far.

“In respect of the trade element, what we can say is that the United States remains clearly the biggest filer of applications externally (abroad). So this obviously is related to trade and investment,” he said. “So they have important stakes, very important stakes in intellectual property and trade.” According to the data released at a press conference on January 14th, the State Intellectual Property Office (SIPO) of China received over 1 million applications for invention patents in 2015, which hits a new record high over the years.

Data show that 1.102 million applications for invention patents were received in China in 2015, up 18.7 percent year on year, being the top patent application list of the world for 5 years; about 359,000 invention patents were authorized, 263,000 of which were granted to domestic applicants, 100,000 more than in 2014, up 61.9 percent year on year. By the end of 2015, China holds 872,000 valid patents of invention, and the patents per annum for each 10,000 head of population reached to 6.3.

Besides, SIPO released the details of China’s patent data in 2015. There are 3 provinces (municipalities, not including Hongkong, Macao and Taiwan) obtaining over 30,000 invention patents in 2015, which are Jiangsu (36,015), Beijing (35,308) and Guangdong (33,477). China’s top oil-refiner Sinopec obtained 2,844 invention patents, the most among all Chinese firms, followed by telecom giants ZTE (2,673) and Huawei (2,413).

Among the top ten foreign enterprises, Qualcomm gets to the top with 1,350 invention patents, followed by Canon (1,273), Toyota (1,240), Panasonic (1,117) and Mitsubishi Electrics (1,095). Some well-known foreign enterprises, like GM, Bosch, Philips, Siemens and Samsung are also on the list.

In 2015, SIPO received 30,548 PCT applications, up 16.7% year on year. 28,399 of them were from domestic users, making 93%, up 18.3% year on year; 2,149 were international, making 7.0%. There were 16 provinces (municipalities) that filed more than 100 PCT applications in 2015. The top 5 provinces (municipalities) for PCT applications were Guangdong (15,190), Beijing , Shanghai, Jiangsu and Zhejiang, which contributed to 85% of the total domestic PCT filings.

Pharma Patents in India

NEW DELHI: India has rejected as many as 955 patent applications in the pharmaceutical sector in the last three years.

“… 618 applications have been rejected citing Section 3 (d) of the Patents Act, 1970, as one of the grounds for rejection in the last three years,” Commerce and Industry Minister Nirmala Sitharaman said in a written reply to the Lok Sabha today.

“A total of 955 patent applications in pharma have been rejected by the Indian Patent Office (IPO) .

Development of Pharma  Patent in India

In a dramatic development, US industry groups recently claimed the Indian government offered them a “private” assurance that compulsory licenses will not be issued, save in emergencies and for non-commercial purposes.

Needless to state, such an assurance flies in the face of the Patents Act and the public health safeguards enshrined in it. Illustratively, Section 84 mandates that a compulsory license be granted in favor of third parties, if the patented invention (such as a drug) is excessively priced or not available sufficiently. Relying on this, Natco, an Indian generic manufacturer, applied for India’s first compulsory licence some years ago and convinced the patent office that Bayer’s patented drug for kidney cancer, Sorafenib Tosylate, was excessively priced and available to hardly 2 per cent of patients. In sharp contrast to Bayer’s Rs 2.8 lakh per month price tag, Natco offered to sell its version of the drug at Rs 8,800 per month.

The controller of patents granted a licence upon the payment of a 6 per cent royalty rate to Bayer, ensuring this was not a zero-sum game but one that could potentially benefit the patent owner as well, given Natco’s knack of selling in markets beyond the ordinary purview of the high-priced patented drug. Upon appeal by Bayer, the patent office decision was validated, with some minor modifications in royalty rates. Unfortunately, despite this excellent start to the invocation of an important public health safeguard, no other licence has been granted since.

World over, compulsory licensing is largely a matter of government discretion to be invoked at the government’s pleasure. However, in India, Section 84 makes clear it’s a legal entitlement that cannot be pimped away through private assurances to foreign friends. Rather, the government is obliged to adjudicate each application on merit, donning its robe as a quasi-judicial authority. The patent office must, therefore, be equipped with personnel vested with a fair degree of adjudicatory competence and independence. Unfortunately, the functioning of regulatory authorities, such as the Drug Controller General of India (DCGI), suggests our government’s record in ensuring its statutory agencies’ independence has been far from fair.

In view of the fact that our government is yet to issue a public clarification on this private assurance, one is not sure if it intended to cover compulsory licensing as a whole. Or meant to restrict it to Section 92, a provision enabling the government to notify compulsory licences (of its own accord) on grounds of national emergency, extreme urgency or public non-commercial use. As such, this licensing is distinct from Section 84, and vests the government with considerably more discretion. However, “discretion” doesn’t mean the government can choose to ignore circumstances that warrant the exercise of discretion.

Unfortunately, while the first kind of licence (Section 84) was granted at least once in the past, the government has yet to issue any notification under Section 92. Even as the health ministry appeared keen on triggering this safeguard for a range of cancer cures, the commerce ministry played spoilsport. It sent a long list of questions asking for “data” on various aspects of the cancers/ numbers of patients, etc.

This seemingly sound list belies a glaring gap in our public health machinery. A lot of health data is difficult to come by, given that they reside in the sole possession of private parties like hospitals, pharmacies and drug companies. Consider cancer, a near epidemic now. Till date, there’s no Central law mandating disclosure of data on patients, treatment methods, drug pricing, etc.

Interestingly, the same data deficit was used by the government to deny the most recent compulsory licensing application under Section 84 to Lee Pharma, which bid for a licence against AstraZeneca’s Saxagliptin, a patented anti-diabetic drug. One finds it paradoxical that the only authority with the legal legitimacy to collect and publish health data transfers this onus to private applicants.

If serious about its constitutional commitment to good health, the government must immediately formulate a legal framework to compel private parties to disclose drug and disease data. More importantly, it must ensure quasi-judicial authorities (the patent office) remain relatively independent and are infused with sufficient training to ensure a fair, impartial and competent dispensation of justice.

Unfortunately, this government appears more keen on the private than the public, preferring trade to health, nepotic control over regulatory independence, and American patents over Indian patients. It’s a trade-off likely to only create more misery in India.