The Hindu : A patent mistake

Online edition of India's National Newspaper
Friday, May 17, 2002

Opinion

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A patent mistake

By Rajeev Dhavan

The new Patents Act has mortgaged India's future on false premises and uncertain promises.

THE PATENTS (Second Amendment) Bill has been passed by Parliament — in the Rajya Sabha by voice vote; and, then the Lok Sabha in quick succession in May 2002. Does our Parliament not debate things any more? Is debate limited to friendly assurances? Should not all amendments be discussed thoroughly? We have made a terrible mistake again and surrendered both our sovereignty and our national interest to voice votes in Parliament. All this happened because of an implicit alliance between the BJP-led alliance and the Congress.

The issue of patents has plagued India since independence. Following the Tek Chand (1950) and Ayyangar (1959) panels and two Joint Committees of Parliament (1965 and 1967), India's Patent Act, 1970, was a marvellous compromise between protecting the public interest and the patent holders' rights. Special provisions for pharmaceuticals enabled India to give cheap medicine to itself and poorer countries. But, after the WTO all this is in the past. But, do we have no control over the WTO process to a point where we bargain away our sovereignty? When the WTO was being negotiated, the then Prime Minister, Narasimha Rao, refused to have a proper debate on this issue despite the Arjun Singh Committee saying it was necessary. The stance was that under our Constitution a treaty does not become enforceable until Parliament enacts a law to implement it. Now, at the time of enactment of the law, the treaty is treated as a fait accompli.

Contrast the position of the United States where self-executing treaties become the law of the land under their Constitution. One of George W. Bush's first decisions as President was to get out of the Kyoto Treaty because it was against America's interest. Likewise in the area of patents, America has been relentless. Since 1988, America has used its Super 301 to keep India and various other nations on the `priority watch list' to coerce compliance on patents. But, America's own legislation on patents has gone further to declare that in a conflict between the WTO treaty and its laws, American laws will prevail. Brazil and Argentina have been careful to mould their legislation to favour themselves.

Unfortunately, India has gone hopelessly wrong and taken a wrong turn somewhere. The recent Joint Committee did a rushed job which was pushed through Parliament. Virtually no notice whatsoever was taken of a large number of submissions that were made to the Committee. No real attention was paid to the 1993 Gujral Committee's warning that TRIPS on patents in the WTO was inimical to India's interests. Meanwhile, Doha occurred when Murasoli Maran claimed — almost Chamberlain like — to have brought back peace with honour. He assured the nation — indeed, the world — that the health of poorer nations (especially on AIDS related and terminal diseases) would be taken care of. Mr. Maran's oral assurances in Parliament are not good enough. How can Parliament do what it has done — refusing to discuss TRIPS before the WTO was signed on grounds of prematurity and passing the Patents Act with minimal discussion. India's sovereignty rests with Parliament. It was bargained away virtually without demur.

What was in issue? In Article 7, the treaty gives us the right to technological innovation "in a manner conducive to social and economic welfare". Article 8 specifically lays down that national laws can "adopt measures necessary to protect health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development... consistent with provisions of the treaty". We did not even exploit these provisions but simply copied the treaty.

Patent legislation can broadly be divided into three parts. The first part deals with the scope of patentability. The second part deals with setting up institutions and procedures and defining the term of the patent. The third part deals with the public interest so that patents do not create import and other monopolies by threatening compulsory licensing to Indians under cheap rates and favourable conditions. Many amendments needed to be done on the scope of patentability. It should have been made clear that what was protected was the molecule and not dosages. Otherwise, combinations for drugs of different molecules could last forever. Working out combinations would pass off for inventive genius. Micro-organisms belong to nature and are not inventions. The whole question of micro-organisms is under review with the WTO. Issues relating to not patenting what has come into the public domain weres not specifically clarified. A new clause was needed to protect research so that inventions which do not meet the criteria of industrial application (such as onco mouse, stem cell, partial gene fragments and various bioinformatics and genomic information and data bases) were specifically excluded from patentability. This should also have been done to all natural living biological material including natural sequences, genes and cell components, genome or germ plasma and related matters. All these were proposed to the Government without avail. The Government seems to echo the view that some of this will be taken care of in a possible Patents (Third Amendment) Bill on the scope of patentability. But, why go back to the future when the opportunity to pass a proper Second Amendment Bill was present. This is just a device — and a false and untidy promise.

No doubt, the TRIPS treaty has some specific provisions. But was Parliament powerless in the face of the treaty. If a sovereign Parliament cannot modify a treaty negotiated by the Executive, who will? Article 253 of the Constitution permits Parliament to collapse federalism to implement treaties; but, surely, not to do so mechanically. The term of 20 years for a patent is too long. Patents are monopolies in a free trade treaty. India could have led the way by making it clear that 10 years from the date of filing is enough to give a patent holder a return on his investment. In any case, most patent holders are multinationals who get enormous returns by fiscal methods from various countries.

It is the public interest that has suffered most. We live in very dangerous times of food shortages, endemic diseases and vastly changing technology. Each invention builds on a collective pool of knowledge. If each part were to be a money earner, the world would not progress collectively but elliptically. If Cipla is known in African medical circles, it is because Yusuf Hamied declared that he would supply AIDS medicine despite WTO provisions.

India needed to insist on a better compulsory licensing system with a fixed royalty of 4 per cent and the right to earmark certain inventions in certain areas (such as relating to medicine, food and bio-technology) as falling within a scheduled list on which licensing would be available as a matter of right if the public interest required it. India would be on a diplomatically much stronger wicket if Mr. Maran or whoever succeeded him told the WTO and its supporters that the will of Parliament has prevailed on certain aspects of the treaty. India's Supreme Court judgment in Visaka (1997) protects only those treaties which are rights-enhancing not those that destroy rights against the public interest. In rushed debates in both Houses, the new Patents Act has mortgaged India's future on false premises and uncertain promises.

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