Statement: Customs has lost power to interdict Patent violating goods at the Border. It can stop imports of trade mark infringement but not patents By Notification Nos. 56-Customs (NT) and 57-Customs (NT) dated 22 June,

Many multinationals secured Patent protection at the border without having taken the pains to go to the Court of Law to get an adjudication as regards infringement of the Patent. This provision in the border rules was deliberately inserted in the 2007 law by certain vested interests in the customs who wanted a source of income from legal practice of Patent law after their retirement. They went beyond the TRIPs Agreement at WTO which allowed waiver of Patent enforcement at the border to Developing Countries. (The fact that Indian Border Rules on Patent enforcement go beyond WTO TRIPS was first pointed out by the Academy Business Studies in 2007. It has taken 11 years for the Government to amend the rules and bring with the special treatment offered to developing countries by WTO). Many Indian manufacturers, who were earlier harassed by the Customs Authority on the ground that the goods imported infringe somebody's registered Patent, shall get relief from the present notification. The imposters in India who registered false Patents with an intent to blackmail the importers will also lose ground due to the present notification. The Ramkumar case of 2007 is of relevance here. In that case an "inventor" from Madurai registered a false Patent for dual sim mobile phones of suitcase size. He demanded and secured, some ₹60 crore rupees from the reputed company (an importer in this case) like Samsung, as licence fee to import dual sim phones. Finally, the law caught hold of him, and the IP Appellate Board overturned his Patent and thus the Customs Authority allowed free import of the dual sim phones without Ram Kumar's NOC (No Objection Certificate). The amendment brought into the Border Rules (the present notification in particular) are not intended to say that India shall not provide protection to the Patent Rights of Inventors. A regular Court of Law as well as the IP Appellate Board (IPAB) is required to be moved by such Patent holder in order to secure an injunction to stop any infringement of his rights at the point of sale / import of an infringing article. In the two notifications reference to Patent Act, 1970 have been omitted and in the registration as well as enforcement system. Other IPRs like copyright, designs, and trademark will however continue to get protection at the border. Since the notification is made effective prospectively, all past cases shall, however, continue to be adjudicated at the customs border as per the old law.