The Delhi High Court held that the language of Section 107A of the Patents Act, 1970 permits export from India of a patented invention solely for uses reasonably related to the development and submission of information required under any law for the time being in force, in India, or in a country other than India, that regulates the manufacture, construction, use, sale or import of any product.
Interpreting the relevant Section 107A of the Patents Act, the Court said “The words ‘sale’/’selling’ thus, as per their literal / natural / textual meaning are without any geographical limitations and in Section 107A are not to be understood as ‘within India’ only and if such sale / selling were to involve transfer of the patented invention / product to a country other than India though would also qualify as export / exporting but would not cease to be sale / selling.”
“The plain meaning of Section 107A is that selling of patented invention for obtaining regulatory approval in country other than India would entail transfer of patented invention i.e. product from India to that country. There is nothing in the language of Section 107A to suggest that only the information generated / collected in India could be transported out of India and not the patented invention”, the Court said.
“The right of manufacturers / producers of medicines and of fine chemical producers, to make, construct and sell including by way of export, a patented invention, for the purposes prescribed in Section 107A is a fundamental right protected by Article 19(1)(g) of the Constitution of India and the sale cannot be curtailed except by express law. Such a fundamental right to export patented invention for the purposes prescribed in Section 107A cannot be taken away or curtailed from mere absence of the word ‘export’ in Section 107A when the word selling used therein takes within its ambit selling in the course of export also”, the Court added.
The Court also agreed that a grantee of compulsory license cannot be deprived of his rights under Section 107A of the Act. The purpose of sale under Section 107A is different and is only for obtaining the regulatory approvals under the laws of India or in a country other than India.
Section 107A of the Patents Act mention certain acts, including selling a patented invention solely for uses reasonably related to the development and submission of information required under any law for the time being in force, in India, or in a country other than India, that are not considered as patent infringement.