Context and Ambiguity in the Making of Law: A Comment on Amending India's Patent Act
In implementing its patent-related obligations to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), India opted for the optional additional transitional provisions in article 65.4. This, delayed the introduction of product patents in exempt technologies, notably pharmaceuticals, until 1 January 2005. Ostensibly, this gave India the opportunity to exploit changing circumstances to and emergent views on TRIPS implementation, in particular exploring new interpretations to residual flexibility in TRIPS and any continuing legal ambiguity in TRIPS obligations. Here, the Panel Report in Canada: Patent Protection of Pharmaceutical Products is pertinent in having exhibited rare reticence in stepping back from defining the principle of non-discrimination in article 27.1 of TRIPS. In maintaining legal ambiguity, this reticence also provides space for law-making and regulatory diversity. The article reviews the three amendments to India's Patent Act 1970 and finds mixed use of residual flexibility and some evidence of efforts to explore legal ambiguity. Thus, despite a favourable climate to TRIPS implementation and an active transnational access to medicine campaign, legislators in India have demonstrated a degree of caution. The article concludes that this caution is best explained in terms of deepening ambivalence concerning intellectual property within the government and the changing economic interests of sections of Indian pharma.
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