1. Grant of patents for food, drugs and pharmaceuticals, per se - and possibly, for micro-organisms, non-biological and microbiological processes as well;

2. Reversal of burden of proof - shifting it on to defendant - where the product manufactured by a patented process is new or there is a substantial likelihood that the product manufactured by the defendant's process is identical to that of the plaintiff's process and the patentee has - despite reasonable efforts - been unable to determine the process by which the product was manufactured by the defendant;

3. Reconciliation of provisions relating to compulsory licence with those of the Paris Convention;

4. Introduction of a certain degree of pipeline protection in the case of applications for patents made after a date to be fixed;

5. Provision of sui generis protection for plant varieties produced otherwise than by natural methods;

6. Extension of exclusive rights of a patentee to importation - and treat importation as working of a patent;

7. Extension of term of patent to 20 years;

8. Widening of concept of "invention" - to cover processes resulting in new and industrially useful results. (Under the present law, a process has to result in a tangible end product).

1. that the five years non-use period as a ground for rectification of a registered trade mark/service mark will start from the date on which the trade mark/service mark is actually entered on the register;

2. that the period in which use of the trade mark/service mark would be disregarded, prior to the date of the filing of the application for rectification of the trade mark/service mark, will be increased from one to three months;

3. that special circumstances provided under the existing Act as a defence to the five years' non-use ground of rectification will include restrictions imposed by any law or regulation on the use of the trade mark/service mark in India; and

4. that the intention to use a trade mark/service mark through a registered user would be deemed to be sufficient to resist any application for rectification on the ground, inter alia, of lack of bona fide intention on the applicant's part to use it.

1. the considerations hitherto relevant to the question of grant of registered user status (the circumstances of the case, the interests of the general public and the development of any industry, trade or commerce in India) will be deleted and the recordal of registered user would be a matter of formality. The Registrar will be vested with final jurisdiction to deal with and dispose of registered user applications; and

2. An unregistered licensee will have no right to institute infringement proceedings even though the definition of permitted use has been amplified to cover use both by the registered user and the (unregistered) licensee.

1. use by a person of a mark which is identical or similar to a registered trade mark/service mark on goods or services which are not similar, provided the registered trade mark/service mark enjoys reputation in India and the use of the mark without cause would take unfair advantage of, or would be detrimental to the distinctive character or repute of the registered trade mark/service mark; and

2. use by a person of a registered trade mark/service mark as his trade name or part thereof as name of his business or part thereof.

MISCELLANEOUS

1. Definition of collective mark is being introduced to cover the goods or services of members of an association;

2. The final jurisdiction to register a certification trade mark is being transferred from the Central Government to the Registrar;

3. International non-proprietary names declared by the World Health Organization or names deceptively similar thereto shall not be registrable as trade marks; and

4. It is proposed to constitute an Appellate Board to hear appeals against the decisions of the Registrar and rectification proceedings with the consequential transfer of such jurisdiction from the High Court under the existing Act.

FOREIGN INVESTMENT AND TRANSFER OF TECHNOLOGY-EXISTING POLICY

July 24, 1991 represented a watershed date as far as the industrial policy of India is concerned. After decades of adherence to a system of command economy, India took the long awaited step of liberalising its industrial policy in an endeavour to integrate the Indian economy with the global economic system. Since then a series of changes- some of them major- have been implemented, thereby, considerably simplifying and diluting the former bureaucratic procedures.

Heretofore, the normal ceiling for foreign investment in Indian companies was 40%- allowed after time consuming bureaucratic procedures. The new policy provides for "automatic approval", for direct foreign equity investment to the extent of 51% in what have been termed "high priority industries". The list of industries is under constant review and it is proposed now to expand it to include certain areas in shipping, mining and agriculture. The limit of 51% applies also to the existing industries covered by the said list. Earlier, foreign investment was permitted only if it was accompanied by transfer of technology. Now it is possible for an overseas company to invest even without bringing in technology.

The foreign part of equity can now come in the form of capital goods.

In the case of industries in the consumer goods sector, repatriation of dividends in hard currency is monitored to ensure that outflow on account of dividend payments is balanced by earnings of hard currency by export of products whether or not manufactured by the company declaring dividends. The balancing of dividends is required over a period of seven years from commencement of production.

To qualify for "automatic approval":

1. lumpsum or upfront payment for the technology should not exceed Rs. 10 million (US $ 330,000 approx.);

2. royalty on domestic sales and exports should not exceed 5% and 8% (net of Indian taxes) respectively; and

3. total amount of royalty should not exceed 8% of sales over a ten year period from the date of agreement or seven years from commencement of production.

There is a proposal under consideration to enhance the prescribed lumpsum or upfront payment from Rs. 10 million to Rs. 100 million.

If the requirements above are met, approval is likely to be notified in four weeks' time.

In respect of proposals which do not relate to industries covered by the said list or which do not satisfy the parameters above set out (e.g. equity participation desired is in excess of 51%), application is to be made to the Foreign Investment Promotion Board (FIPB). The approval procedure under this route takes 4-6 weeks. FIPB's approach has been pragmatic and liberal and it is amenable to deviate from the norms aforementioned, for example, to permit more than 51% equity in both high priority and non-high priority industries or to permit higher compensation for the transfer of technology. However, a plausible case for such deviation would be needed. In an appropriate case, commitment to export a certain portion of production may prove persuasive.

A Special Empowered Board has been constituted to invite and negotiate with and approve investment in "select areas" by large international corporations. Such investment would be considered in totality, free from pre-determined parameters or procedures.

There will be cases where a foreign investor will not like to invest at all or will like to take a minority position. But even a minority holding (so long as it is more than 25%) can ensure a significant role. Proper drafting of relevant documents (such as the Joint Venture Agreement and the Articles of Association), will be required. For example, it is possible to ensure rights to the foreign partner to appoint a certain number of directors and to have a say in the matter of appointment of Chairman (with or without a casting vote) and Managing Director or Chief Executive Officer. More importantly, except in the case of companies listed on the stock exchange, the Articles can contain "veto powers" relating, for example, to appropriating profits of the Joint Venture Company (JVC), appointing auditors, incurring expenditure (operating or capital) beyond specified limits and exporting products from India.

A few- less important- points may also be mentioned. Subject to certain conditions, no prior permission is now necessary for hiring of foreign technicians. A company is allowed to pay foreign technicians' fee without any upper limits provided the total duration of engagement of foreign technicians by the employer does not exceed 12 man months in a calendar year.

Effective April 1, 1994: Import duty of 35% would be levied on import of plans, drawings and designs for architectural, engineering, industrial, commercial, topographical or similar purposes.

Peak basic import duty has been reduced from 85% to 65% and the basic import duty on "project imports" and general capital goods has also been reduced from 35% to 25%.

Corporate tax rate is 40% plus 15% surcharge making it 46%.