The Mayor Inc. is a company incorporated under the laws of United States of America (U.S.A.) consequent to its Research and Development (R&D) activities the company invented and developed its patented drugs to enable
CS Professional · Intellectual Property Rights - Laws and Practices · PYQS · December 2021
The Mayor Inc. is a company incorporated under the laws of United States of America (U.S.A.) consequent to its Research and Development (R&D) activities the company invented and developed its patented drugs to enable its administration to human beings. On successful invention of the patented drug in 1999, the company applied for a patent in U.S.A. Thereafter, on 12 July, 2000 the company applied for an international patent under the Patent Co-operation Treaty (PCT) and on 5th July, 2001 applied in India for grant of the patent to the patented drug in India. On March, 2008 the office of the Controller granted the company's application dated 5th July, 2001. This patent granted in India on 3rd March, 2007 corresponded to the patent granted to this patented drug in over 45 countries of the world. The patented drug is used in the treatment of patients sufferintg from Kidney cancer i.e. Renal Cell Carcinoma (RCC). The aforesaid patented drugs acts more as palliative i.e. relieves patients from the pain and to an extent also slows down the spread of cancer by restricting the speed with which the cancer cells grow. As a consequence of being granted a patent, the company had exclusive right to make, manufacture, use and sell the patented drug either by itself or through its licensee to the exclusion of others for a period of 20 years from the date of its application. Thus, the company had exclusive right to prevent third parties from making/manufacturing, using, selling or importing the patented drug in India without the company's permission/license. The company Mayor Inc. sells this drug under a brand KCWIN which is registered Trademark in India USA, Europe, China, Russia, Japan and New Zealand. Mayor Inc. through its subsidiary Mayor India Ltd. sells the drug in India. The drug was found to be very effective and the doctors worldwide appreciated the result of the drug. M/s. Kipla Pharmaceuticals established in the year 1930, located in Mumbai, Maharashtra, India is a manufacturer of various generic drugs. Owing to the huge demand for the drug, which was nearly about 20 lakh units and the failure of Mayor Inc. to meet the growing demand due to the import restrictions since their manufacturing units is in Washington, Kipla Pharmaceuticals approached Mayor Inc., for technical assistance and license manufacturing of their patented drug KCWIN in India on 20th January, 2012. However, Mayor Inc. declined to grant the license of manufacture for reasons best known to them. As per the records available, Mayor Inc. had supplied only 2 lakh units against the huge demand in India at the rate of ₹ 2.4 lakhs per month. Kipla on other hand manufacturing the same drug at ₹ 10,000 per month. In the 2012, the Mayor India came to know that exact copies of their product KCWIN is being manufactured by M/s Kipla Pharmaceuticals. Immediately, thereafter, a Cease and Desist notice was issued by Mayor Inc. to Kipla Pharmaceuticals for infringing the Patent of Mayor Inc. Taking the plea that pharmaceutical companies spend billions of dollars on research. It is estimated that, of every thousand potential drugs screened, only 4-5 reach clinical trials and only one is actually approved for marketing. Pharmaceutical companies patent the drugs that they develop and thereby obtain exclusive marketing rights. Further at the time of expiry of its Patent on KCWIN the The Mayor Inc. came with a minor change in the effectiveness and quality of KCWIN and de-novo applied for Patent before the controller of Patents, who rejected to grant the patent on the ground that it does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus. Based on the above facts, answer the following: (c) Discuss in detail the rationale for Intellectual Property Protection to the companies like Mayor Inc. as a Patentee.
Answer & Explanation:
There are several compelling reasons for Intellectual Property Protection to the companies like Mayor Inc. as a Patentee. First, the progress and well-being of humanity rest on its capacity to create and invent new works in the areas of technology and culture. Second, the legal protection of new creations encourages the commitment of additional resources for further innovation. Third, the promotion and protection of intellectual property spurs economic growth, creates new jobs and industries, and enhances the quality and enjoyment of life. An efficient and equitable intellectual property system can help all countries to realize intellectual property's potential as a catalyst for economic development and social and cultural well-being. The intellectual property system helps strike a balance between the interests of innovators and the public interest, providing an environment in which creativity and invention can flourish, for the benefit of all. A Patent in simple terms is an invention and therefore requires innovation. It is an exclusive monopoly granted to the inventor for allowing the use of the invention in the open market. A patent can be granted against product, process of doing something or a technical solution to a problem. When an invention is created the inventor is required to apply for a patent to the patent office as it has various benefits. In order to be patented, an invention must be new i.e. it cannot be an extension of something that already exists. It can neither be obvious to people skilled in the given technical field nor can it be another shuffling of the steps involved in procedure, therefore, it has to involve an inventive step. The most important part is the practicability of the invention, i.e. if it is in theory then it must have the potential to be put to practical use as well. SOCIAL CONTRACT THEORY OF JOHN LOCKE According to Locke, "every man has a property in his own person", i.e. the fruits of a man's labour belongs to him. In this scheme intellectual property would seem to follow naturally, since the individual must surely be permitted the fruits of his mental and physical labour. PERSONALITY THEORY According to Kant and Hegel, if one's artistic expressions are synonymous with one's personality, then they are deserving of protection just as much as the physical person is deserving of protection since in a sense they are a part of that physical person. ECONOMIC INCENTIVE RATIONALES The incentive theory builds on society's interest in intellectual property works, holding that legal protection for intellectual works serves as an incentive for the production of more intellectual works that will ultimately benefit society. Economic Theory Economic future of any country primarily depends on the superior corpus of new knowledge and technological development. IPRs help in the successful marketing of knowhow in the competing global market. Progress in technology is a quintessence of industrial development. IP plays a momentous role in furtherance of economic interest of a country. IPR protects the know-how involved in the invention stimulating more technological developments which in turn strengthen the economy of the country. IP accumulates foreign currency and enhances the export of the country as other countries have to procure the IP products from the country of protection. IP thus facilitates competitive advantages in industrial and commercial activity. Prospect Development Theory A number of years ago, Edmund Kitch proposed a prospect-development theory of the societal benefits of patents. Like the development and commercialization theory, it proposes that the utility of a patent comes after an initial invention is made. Kitch's theory was that having a broad patent on an initial invention enabled the patent holder to orchestrate development of a technological prospect in various dimensions, whereas development of an initial invention that was freely available to all would be chaotic, duplicative, and wasteful. The theory that patents enable orderly development of broad technological prospects differs from the development and commercialization theory in suggesting that a wide range of developments or inventions might become possible if the initial invention is available as an input—through either development or modification in different directions. Many university inventions, particularly research tools, are of this sort. This theory suggests that an important issue defining the benefits and costs of granting patents on broad prospects is what is assumed about the market for patent licenses. If one assumes that, in general, the transaction costs of patent licensing are small, then one may take a relatively relaxed view of the costs of granting a large prospect-controlling patent, even when one believes that potential explorers of the prospect have diverse ideas of what they would do. But if one assumes that transaction costs are high, one is less sanguine about this outcome. Disclosure Theory The primary issue raised by the disclosure theory is not so much whether strong patents encourage more inventing, but rather how inventors reap the returns from their inventions. It presumes that secrecy is possible and sufficient to induce invention but that society is better off granting intellectual property rights and getting disclosure in exchange. A patented invention would thus be available for uses that the inventor did not know about or was not in a position to implement. Under this theory, a patent both advertises the presence of an invention and facilitates licensing. Invention- inducement theory The theory that patents motivate useful invention is the most familiar theory of the benefits of patenting. Indeed, much discussion about the benefits of patents proceeds as though motivating useful invention were the only social purpose served by patents and patents always serve this purpose. In fact, as explained later, the situation can be much more complicated in many cases. All versions of the invention-inducement theory presume either that if there is no patent protection there will be no invention or, more generally, that without a patent system incentives for invention will be too weak to reflect the public interest. In particular, they assume that stronger patent protection will increase the amount of invention. Under what might be called the canonical versions of the invention-inducement theory—versions associated with the models of economists Arrow (1962), Nordhaus (1969), and Scherer (1972)—inventors, as a group, are implicitly assumed to be diverse, working on different and generally noncompeting things. Thus in the absence of redundant efforts that might occur if many groups worked on competing things, stronger patent protection results in a greater number of useful inventions. In most versions of the invention-inducement theory it is assumed, generally implicitly, that the social benefit of a particular invention is strictly its final use value; the social benefit of patent protection stems, therefore, from the additional invention induced by the prospect of a patent. And the social cost of a patent is the restriction on the use associated with the monopoly power lent by a patent.
Topics: Intellectual Property Rights
Related Questions in this Topic
- The block printing craft of Bagru is unique and has its own distinct character. This kind of art is said to have started...
- An Indian automobile company is interested in joint venture arrangement with a foreign company. It has, however, little ...
- "Over the past fifteen years, intellectual property rights have grown to a stature from where it plays a major role in t...
- In a digital world, where information and data are the currency, protecting one's Intellectual property becomes even mor...
- "Human Rights and Intellectual Property, though two different sets of law with no apparent connection, have gradually be...