This new provision has been incorporated in the Patents Act, 1970 as amended by The Patents (Amendment) Act, 1999 with effect from 1st January, 1995. Under this amendment to the Patents Act, 1970 it is now possible to make an application for patent claiming for a substance itself intended for use or capable of being used as Medicine or Drug, excepting the intermediate for the preparation of drug. However that India has the privilage, under WTO regime, of a ten years transition period. Thus application for product claims for medicine or drug will not be processed until the end of 2004. But Exclusive Marketing Rights (EMR) can be obtained for that application if certain conditions as stated below are fulfilled:

• Where an invention has been made in India or outside India and before filing such a claim in India, application for the same invention claiming identical article or substance in a Convention Country (WTO) has been filed on or after 1st January, 1995 and a patent has been granted on or after the date of making a claim for article or substance in India and approval to sell or distribute has been obtained in the said Convention Country on the basis of the test done on or after 1st January, 1995.
• Where an invention has been made in India and before filing such a claim the applicant has made an application for patent on or after 1st January, 1995 for method or process of manufacturing the identical article or substance and patent has been granted in India on or after the date of making of the product claim.
• Marketing approval of the article or substance has been obtained from the appropriate authority in India provided that the application for patent has not been rejected by the Controller on the basis of the report of the Examiner that the invention is not an invention (Section - 3) or the invention is an invention on which no patent can be granted (Section - 4).

Duration

EMR will be valid for a period of five years or till the date of grant of the patent or date of rejection of the application for the grant of patent whichever is earlier.