India is one of a number of countries which impose a “local working” requirement on patented inventions. This finds its source in sections 83, 84, and 89 of India’s Patent Act. A recent decision by the Controller of Patents granting a compulsory license to Natco for a Bayer-patented anti-cancer drug confirms that importation will not satisfy this requirement. Corporations seeking to produce and market products for international sale will receive varying degrees of patent protection from different nations. This comment proposes an amendment to the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) defining what local working requirements are permitted, and requiring that nations meet and confer when making decisions on compulsory licenses against foreign patent-holders.
Levon Barsoumian, India’s Use it or Lose it: Time to Revisit TRIPS?, 11 J. Marshall Rev. Intell. Prop. L. 797 (2012)