JUDICIAL ACTIVISM AND PATENT LAW IN INDIA

Abstract

In India, the law which governs patent right is "Indian Patent Act 1970". Patent law in India starts from 1911 after the Indian Patents and Designs Act, 1911, came into force. The present Patents Act, 1970 came into force in the year 1972, amending and consolidating the existing law relating to Patents in India. The Patents Act, 1970 was again amended by the Patents (Amendment) Act, 2005, wherein product patent was extended to all fields of technology including food, drugs, chemicals and micro-organisms. After the amendment, the provisions relating to Exclusive Marketing Rights (EMRs) have been repealed, and a provision for enabling grant of compulsory license has been introduced. The provisions relating to pregrant and post-grant opposition have been also introduced. This Paper aims at the study of the role of the judiciary in patent protection in India. It begins with a theoretical exploration of the role of the judicial organ in democratic society. It explains how the judiciary is not merely the arbiter of disputes but is also instrumental in delivering justice through determining and clarifying the status of law. The article then demonstrates the active nature of the Indian Judiciary in patent protection through an examination of case law on the nature of patents and the legal consequences of infringement. The article moves to a brief survey of the landscape of patent law in India in the post-WTO era and concludes with the observation that the judiciary today faces new challenges in the wake of new international obligations, which only enhance its responsibility towards the law and justice.