Mumbai University Solved Question Papers
Intellectual Property and International Organisations and Agreements
Previous Year Question Paper with Solution
LLM · Group 3 Law of Intellectual Property and Information Technology
2024 Examination
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Mumbai
First published on munotes.in on 14 September 2026.
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Model answers written and edited by the munotes.in editorial desk.
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The University does not publish an official answer key for this paper. The answers in this volume are model answers, written to show how a full-mark answer is built. They are a study aid, not an authority on what an examiner marked.
The question paper reproduced here is the paper as set by the University of Mumbai at the 2024 examination.
The law in these answers is stated as at September 2026, and six changes date most textbooks on this subject. The WTO's Appellate Body has been unable to hear appeals since 11 December 2019, so an appeal can be decided only where both parties have agreed to appeal arbitration, as members of the interim arrangement of 2020 have, and India has not joined it. The moratorium on non-violation complaints under TRIPS lapsed at the end of March 2026. Least developed countries need not apply most of TRIPS until 1 July 2034. WIPO administers twenty-eight treaties after two new treaties of 2024, and India joined the Strasbourg Agreement with effect from 7 July 2026. The Intellectual Property Appellate Board was abolished with effect from 4 April 2021. And the Jan Vishwas (Amendment of Provisions) Acts of 2023 and 2026 omitted sections 68 and 67 of the Copyright Act respectively.
The questions below are the paper as the University of Mumbai set it at the 2024 examination, in the order it was set.
MarksPage
The questions in this volume are the questions asked at the 2024 examination, reproduced as the University of Mumbai set them, in the order it set them. Nothing has been reworded, added or left out. Only the answers are ours. See the original question paper.
Duration 3 hours · Total marks 100 · 7 questions answered
How to use this volume
Solve the paper first, under exam conditions and against the clock. Then read the answers here and mark your own. Reading a solution before attempting the question feels productive and teaches very little, because recognising an answer is not the same as being able to write one.
Answer
For full marks, cover: the question sets three conditions: JUDGMENTS, WRITINGS and the SCOPE AND EXTENT of the relationship. Show the relationship in three dimensions: TRIPS as the SOURCE of the three amendments of 1999, 2002 and 2005; TRIPS as the LIMIT within which India wrote its public health safeguards; and TRIPS as a text Indian courts refer to but do not directly enforce. Use the judgments in sequence: India, Patents at the WTO, Novartis in the Madras High Court (2007) and the Supreme Court (2013), Bayer v. Union of India on patent linkage (2010) and on compulsory licensing (2014), Monsanto v. Nuziveedu, Ferid Allani and Aloys Wobben v. Yogesh Mehra. For writings use the Ayyangar Report of 1959, the Correa guidelines, the Commission on Intellectual Property Rights of 2002 and the Mashelkar Technical Expert Group.
The Patents Act, 1970 is an Indian statute and TRIPS is an international agreement. TRIPS does not operate in India of its own force. Under Article 253 of the Constitution, Parliament legislates to implement treaties, and until it does so the courts apply the Act as it stands. The relationship is therefore one of OBLIGATION AND IMPLEMENTATION: TRIPS obliges India, as a WTO member since 1 January 1995, to bring its patent law up to certain minimum standards, and the Patents Act is the instrument by which India does so. But because TRIPS sets only a floor and leaves wide discretion in Article 1.1, the relationship is also one of DESIGN: within the floor, the Act embodies India's own policy choices, stated in section 83.
To understand the scope and extent of the relationship, three questions must be answered: what TRIPS required India to change, what freedom it left India, and how Indian courts have treated the Agreement.
The Patents Act, 1970 was built on the REPORT ON THE REVISION OF THE PATENTS LAW submitted by Justice N. Rajagopala Ayyangar in September 1959. Ayyangar found that patents in India were held overwhelmingly by foreigners, were rarely worked here and were used to secure import markets. He recommended that in food, medicine and drugs only PROCESSES be patentable, and for shorter terms. The Act of 1970 did exactly that, and within two decades an Indian generic pharmaceutical industry had grown on the freedom to find new processes for known drugs. That is the policy TRIPS required India to dismantle, and the whole history of the relationship is the story of India dismantling it while preserving its purpose.
The obligations. Article 27.1 requires patents for inventions in ALL FIELDS OF TECHNOLOGY, products and processes alike; Article 28 defines the rights conferred; Article 33 requires a term of at least TWENTY YEARS from filing; Article 34 reverses the burden of proof for process patents; Articles 65.4, 70.8 and 70.9 set the transition, the MAILBOX and EXCLUSIVE MARKETING RIGHTS.
The first amendment, 1999. India initially received mailbox applications for pharmaceutical products under executive instructions. In India, Patent Protection for Pharmaceutical and Agricultural Chemical Products (DS50), the Appellate Body held on 19 December 1997 that instructions which could not override the Patents Act gave applicants no legally secure means of filing. The PATENTS (AMENDMENT) ACT, 1999, retrospective to 1 January 1995, inserted section 5(2) for mailbox applications and Chapter IVA for exclusive marketing rights. The relationship began, therefore, with a WTO ruling forcing the Act's amendment.
The second amendment, 2002. The PATENTS (AMENDMENT) ACT, 2002 carried out most of the remaining obligations: a uniform TWENTY-YEAR term in section 53; definitions of invention requiring an INVENTIVE STEP and INDUSTRIAL APPLICABILITY; the reversal of the burden of proof for process patents in section 104A; an expanded list of non-inventions in section 3, including computer programmes per se in clause (k) and traditional knowledge in clause (p), with MICRO-ORGANISMS carved out of the exclusion in clause (j); and appeals to an Appellate Board. It also used TRIPS flexibilities: SECTION 83 on the principles governing the working of patents, a reframed compulsory licence in section 84, and SECTION 107A permitting use of an invention to obtain regulatory approval and the import of patented products from authorised sellers abroad.
The third amendment, 2005. On 1 January 2005, at the end of the Article 65.4 period, product patents were introduced in all fields by an ordinance of 26 December 2004, replaced by the PATENTS (AMENDMENT) ACT, 2005, which omitted section 5. Parliament paired that concession with safeguards: SECTION 3(d), excluding new forms of known substances unless they show enhanced efficacy; expanded PRE-GRANT and POST-GRANT OPPOSITION in section 25; protection under the proviso to section 11A(7) for Indian firms already manufacturing mailbox products; and SECTION 92A for compulsory licences to export medicines.
The strict patentability approach. TRIPS does not define "invention", "new" or "inventive step". Carlos Correa's guidelines for the South Centre in 2000, Integrating Public Health Concerns into Patent Legislation in Developing Countries, argued that developing countries could lawfully apply strict patentability criteria to prevent the patenting of trivial variations of known medicines. Section 3(d) is the Indian expression of that idea.
The development critique. The United Kingdom's Commission on Intellectual Property Rights reported in September 2002, in Integrating Intellectual Property Rights and Development Policy, that developing countries should use TRIPS flexibilities to the full, set high standards of patentability, provide for compulsory licensing and avoid TRIPS-plus commitments. Its recommendations read almost as a commentary on the Indian amendments of 2002 and 2005.
The Mashelkar Technical Expert Group. In 2005 the Government asked a group chaired by Dr R.A. Mashelkar whether it would be consistent with TRIPS to limit patents on pharmaceutical substances to NEW CHEMICAL ENTITIES and to exclude micro-organisms. Its report of December 2006 suggested that such limits would likely be TRIPS-inconsistent. The report was withdrawn early in 2007 amid allegations that parts had been copied from a published paper without attribution, and resubmitted after corrections in March 2009. The episode shows the relationship being debated in terms of what TRIPS PERMITS, which is the question every later judgment asks.
One: TRIPS is not directly enforceable in Indian courts. In Novartis AG v. Union of India, decided by the Madras High Court on 6 August 2007 in Writ Petitions 24759 and 24760 of 2006, Novartis challenged section 3(d) on two grounds: that it was incompatible with TRIPS and that it was vague and arbitrary under Article 14. The court held that it had NO JURISDICTION to decide whether an Indian law complies with TRIPS, since the Agreement provides its own dispute settlement mechanism between member States, and rejected the Article 14 challenge, holding that "efficacy" in the pharmaceutical field means therapeutic efficacy. The extent of the relationship is thereby fixed: TRIPS binds India internationally, but in an Indian court the Act governs.
Two: section 3(d) is a legitimate use of TRIPS freedom. In Novartis AG v. Union of India, (2013) 6 SCC 1, the Supreme Court decided the application Novartis had filed in the mailbox in 1998 for the BETA CRYSTALLINE FORM of imatinib mesylate. It held that the beta form was a new form of a known substance, that its improved flow properties, thermodynamic stability and bioavailability did not establish ENHANCED THERAPEUTIC EFFICACY, and that the patent was rightly refused. The Court explained section 3(d) through its legislative history as a provision enacted to prevent EVERGREENING while accepting product patents, which is the balance the 2005 amendment struck within TRIPS.
Three: TRIPS does not require patent linkage. In Bayer Corporation v. Union of India, 2010 (43) PTC 12 (Del), decided by a Division Bench of the Delhi High Court on 9 February 2010, Bayer argued that the Drug Controller should refuse marketing approval to Cipla's generic version of its patented cancer drug sorafenib because of Bayer's patent. The court held that the Drugs and Cosmetics Act, 1940 and the Patents Act are separate codes with different objects, that neither creates PATENT LINKAGE, and that linkage would convert private patent rights, which the owner must enforce, into public rights enforced by a regulator. The Supreme Court dismissed Bayer's appeal in December 2010. India thus declined a TRIPS-plus obligation that TRIPS itself does not impose.
Four: compulsory licensing is consistent with Article 31. In Bayer Corporation v. Union of India, decided by the Bombay High Court on 15 July 2014, the same drug was the subject of the first compulsory licence, granted to Natco on 9 March 2012 under section 84. The court upheld the Controller's findings that the public's reasonable requirements were not met, the drug was not reasonably affordable and it was not worked in India, rejecting the argument that importation necessarily amounts to working. The Supreme Court dismissed the special leave petition on 12 December 2014. The judgment gives effect to the freedom that Article 31 and the Doha Declaration of 2001 preserve.
Five: plant-related inventions and Article 27.3(b). In Monsanto Technology LLC v. Nuziveedu Seeds Ltd., (2019) 3 SCC 381, a Division Bench of the Delhi High Court had held Monsanto's patent on a nucleic acid sequence conferring insect resistance to cotton unpatentable under section 3(j), which excludes plants and parts of plants. The Supreme Court set that finding aside, holding that whether the claims fell within the exclusion was a complex question needing expert evidence at trial and could not be decided summarily. The case marks the boundary between the TRIPS obligation to patent micro-biological processes and India's freedom to exclude plants.
Six: all fields of technology and software. In Ferid Allani v. Union of India, 2019 SCC OnLine Del 11867, the Delhi High Court held that section 3(k) excludes only computer programmes PER SE, and that an invention showing a TECHNICAL EFFECT or technical contribution must be examined on its merits even if implemented through software. That reading keeps the Act consistent with the obligation in Article 27.1 not to discriminate by field of technology.
Seven: opposition and revocation procedures. Article 62.4 of TRIPS permits administrative revocation and opposition procedures, and India built elaborate ones. In Dr. Aloys Wobben v. Yogesh Mehra, (2014) 15 SCC 360, the founder of the German wind turbine company Enercon held Indian patents that his former Indian joint venture partners attacked through numerous revocation petitions before the Appellate Board while counterclaiming for revocation in his infringement suits. The Supreme Court held that the same party cannot pursue a revocation petition and a counterclaim for revocation on the same patent simultaneously, and must elect one forum. The judgment shows the Indian procedures being disciplined so that they serve their TRIPS-sanctioned purpose without becoming an instrument of harassment.
| TRIPS provision | Patents Act provision | Judgment or writing | Nature of relationship |
|---|---|---|---|
| Art. 27.1: all fields of technology | Omission of s.5 (2005); s.3(k) per se | Ferid Allani (2019) | Mandatory compliance |
| Art. 33: 20-year term | s.53 (2002) | None needed | Mandatory compliance |
| Arts. 70.8, 70.9: mailbox, EMRs | s.5(2), Chapter IVA (1999) | India, Patents (WTO, 1997) | Compliance compelled by dispute |
| Undefined "invention" and "inventive step" | s.3(d) (2005) | Correa (2000); Novartis (Mad 2007; SC 2013) | Flexibility used |
| Art. 27.3(b): plants | s.3(j) | Monsanto v. Nuziveedu (2019) | Flexibility used, contested |
| Art. 31: other use without authorisation | ss.84, 92, 92A | Bayer (Bom 2014) | Flexibility used |
| No linkage obligation | No linkage in the Act | Bayer (Del DB 2010) | TRIPS-plus refused |
| TRIPS provision | Patents Act provision | Judgment or writing | Nature of relationship |
|---|---|---|---|
| Art. 62.4: opposition and revocation | ss.25, 64 | Aloys Wobben (2014) | Flexibility structured |
| Arts. 7 and 8: objectives and principles | s.83 (2002) | CIPR Report (2002) | Policy incorporated |
The relationship between TRIPS and the Patents Act is best described as CONSTRAINED SOVEREIGNTY. Its SCOPE is comprehensive, because every substantive change to Indian patent law since 1999 was either required or prompted by TRIPS. Its EXTENT is limited in two ways. Internationally, TRIPS sets minimum standards and leaves India free to define inventions strictly, license compulsorily and refuse TRIPS-plus demands, freedom India has used more fully than almost any other developing country. Domestically, TRIPS is not a source of rights enforceable in Indian courts, as the Madras High Court held; the courts apply the Act, reading it in light of the Agreement where relevant.
The critical question now is whether that freedom will survive. Pressure for data exclusivity, patent term extensions and weaker opposition procedures comes through bilateral trade negotiations rather than the WTO, and the non-violation moratorium under Article 64.2 lapsed at the end of March 2026, leaving open whether a member might one day complain that India's safeguards nullify benefits it expected from TRIPS.
Conclusion. TRIPS is the SOURCE of the modern Patents Act and the LIMIT of India's patent policy, but not a law directly enforceable in Indian courts. It required the MAILBOX and EMRs, introduced in 1999 after India, Patents at the WTO; the TWENTY-YEAR term and related changes of 2002; and PRODUCT PATENTS in all fields from 1 January 2005. Within the space it left, and guided by writings from the Ayyangar Report of 1959 to Correa's guidelines, the Commission on Intellectual Property Rights of 2002 and the Mashelkar Technical Expert Group, India enacted SECTION 3(d), strong COMPULSORY LICENSING and opposition procedures. The courts confirmed the relationship: TRIPS compatibility is not justiciable in Novartis (Madras High Court, 2007); section 3(d) was applied in Novartis (2013); linkage was refused in Bayer (2010); the compulsory licence was upheld in Bayer (2014); plant-related claims were sent to trial in Monsanto v. Nuziveedu; software inventions with a technical effect were recognised in Ferid Allani; and opposition procedures were disciplined in Aloys Wobben v. Yogesh Mehra.
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