This note examines India’s unique law against patent layering, and holds it up as a successful model for countries that wish to restrict the practice in a legal environment that makes it increasingly difficult to do so. The note argues that India’s law complies with TRIPS, and, unlike several alternative means of curbing patent layering, also complies with the obligations that most International Investment Agreements impose on states.
This note also takes stock of the global response to India’s law, focusing on the patent laws of other countries, and on several post-TRIPS preferential trade agreements that implicate patent law. The note ends by highlighting two emerging trends: developing countries that wish to curb patent layering are taking note of India’s law, and at least two countries—the Philippines and Argentina—have adopted similar provisions. Meanwhile, the United States and the European Union, which are home to many pharmaceutical innovators, continue to push for greater global patent protection through preferential trade agreements with other countries. A leaked draft of one agreement currently under negotiation—the Trans-Pacific Partnership (TPP) agreement—includes a provision that explicitly requires signatories to allow exactly what the Indian law prohibits, down to the choice of words. This reveals that supporters of patent layering aim to shape the global patent protection landscape in a manner that curbs the spread of India’s anti-patent layering law.
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