As the country battles the Covid pandemic with shortage of life-saving drugs, the government could consider invoking the provisions of the Patents Act to bring in more manufacturers and ensure seamless supplies.

While the Centre has decided to allocate supplies of Remdesivir to 19 States/UTs with high burden of Covid cases, it has mapped manufacturers to States to smoothen the supply chain. States continue to complain of shortage.

Ashok Ram Kumar of Wordict-IP, an advocate specialising in Intellectual Property Law, opines that “It is the right time for the government to invoke and exercise Section 92 of the Patents Act, 1970, which deals with compulsory licence.” He asserts that “there had never been a situation of extreme emergency like the current Covid-19 pandemic, demanding the efficient working of a patent before and that compulsory licensing is an ultimate weapon at the disposal of the government to ensure that all the citizens of India get access to the best treatment possible.”

When, if not now?

“Through the exercise of Section 92, the government can enhance the production of essential drugs like Remdesivir to not only meet the growing demand in the country but also help other nations through export of such drugs,” he argues.

The Controller can issue compulsory licensing suomotu under Section 92 of the Act if there is either a ‘national emergency’ or ‘extreme urgency’ or in case of ‘public non-commercial use.’ This means the production can be ramped up engaging more pharma companies while ensuring that the original patent holder gets a royalty.

Recently, the Delhi High Court in Rakesh Malhotra v. Union of India indicated that the Government has to reach out to the manufacturers to ramp up production of the medicines.

The judgment also specifically spoke of the special provisions of compulsory licence under Section 92 of the Patents Act, 1970, he explained.

“The question is, if this provision is not invoked now, when will it be,” he asked.

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