Modify the Patents Bill to Oppose Generic Patenting

As January 1, 2005 the WTO deadline for amending the Indian Patents Act to make it compliant with Trade-Related Intellectual Property (TRIPs) regime is approaching, the UPA government is hurrying to rush through an amendment to the Patents Act, popularly known as the Third Amendment, in the Winter Session of the parliament. Both the Congress and the BJP have similar position on amending the Patent Act. There are news indicating that the CPI-CPI(M), earlier opposed to the passing of the amendment, have now made a volte face and informed the Congress that they would not oppose the passing of the bill. Instead they have sent a note to the government on the proposed Patents Bill. In it they said that though they had serious misgivings about the bill in its present form, they would not block India from meeting its international treaty obligations. This shows that the CPI(M) and CPI have given up even the minimal, tokenist oppositional role to the Congress-led UPA government and its policies of neo-liberal reforms.

The CPI(M) carried several lengthy articles in its organ People’s Democracy against the Patents Bill. For instance, an article by Amit Sen Gupta in October 3 issue of PD concludes saying, “It is imperative that the present UPA government holds discussions on the modalities that it proposes to use, before the Bill is enacted upon. The Bill should not be passed after a cursory discussion in Parliament, without adequate thought being given to its diverse implications. The Bill should, in fact, be referred to a Joint Select Committee of Parliament, which should solicit views from different sections, interest groups, and experts. This is necessary today, as the amended Patents Act would have implications not just for the pharmaceutical sector but also for other sectors such as agriculture, biotechnology, software, etc. The principal concern should be to ensure that the amended law protects the country’s interests adequately. It is hoped that the UPA government will keep this in mind and not try to push forward the final amendment to India’s Patent Law with support from the BJP and its allies”. The UPA government has done none of this and yet the CPI(M) and CPI have made a somersault. They behave as if they are running the UPA government, and blindly endorse its anti-people legislative measures, often going back on their own words and publicly stated positions.

The Indian Pharmaceutical Alliance (IPA), a consortium of domestic drug companies has opposed the passing of the proposed Patents Amendment Bill saying that the new bill doesn’t make use of even the flexibility available in the TRIPs agreement to protect the interests of the Indian drug companies. The IPA has proposed that the bill should be modified to prevent patenting of new forms of existing products by the global drug majors. The IPA has said that many patents would have expired in the US but Indian companies will be bound to the patents in this country. Hence it has proposed that, “patents intended to delay the entry of generic drugs must not be permitted”. The IPA has noted that most of the over 4,000 applications for pharmaceutical patents pending in India are for pre-1995 drugs seeking patent protection for drugs which are already being marketed by domestic companies. An estimated Rs.3, 000 crore drug market would be newly covered by patents overnight and domestic producers will be forced to withdraw them and, as a result, the prices of these life saving drugs will shoot up after January 1, 2005 . (See The Hindu, 28 November, 2004 )

The US monopolies have patented even neem, basmati rice and turmeric (haldi) and the Indian government is engaged in costly post-patent litigation in the US against this. The proposed Indian Patents Amendment Bill prevents patenting of naturally available things but has nothing to prevent patenting of generics and life forms by multinationals that can manipulate the provision for product patenting. It does not put a precondition that such life forms patented abroad would not be allowed in India.

The Patents Act 1970 had offered some measure of protection to the domestic drug manufacturers and that is why India now boasts of a strong pharmaceutical industry with cheaper drugs and sizeable exports. The 1970 Act was amended first in March 1999 and then again for the second time in June 2002. These amendments and the proposed third amendment will deprive the Indian pharmaceutical sector of whatever advantages it had so long.

In fact, it was India’s yielding to the Western pressure that successfully brought TRIPs on the WTO agenda. In the initial stages of the “Uruguay Round” of negotiations under the aegis of the then General Agreement on Tariffs and Trade (GATT), which finally led to the formation of the World Trade Organisation (WTO), India had been extremely vocal in opposing the inclusion of patent laws in the negotiations. While the Uruguay Round was initiated in 1986, it was only in 1989 that India did a sudden volte face and succumbed to pressure from the US and European countries by agreeing to include TRIPs in the negotiating agenda. Many today feel that if India had not succumbed in that crucial phase of the negotiations, the TRIPs agreement itself may never have seen the light of day.

-- Gopal