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IP Acts review: It is important to put people above profits

KM Gopakumar | Updated on February 01, 2020 Published on February 01, 2020

India’s Patents Act is seen as model legislation for developing countries, especially for provisions to prevent abuse of patent monopoly   -  NiroDesign

Earlier this month, the Department of Promotion of Industry and Internal Trade (DPIIT) convened a stakeholder meeting to review existing IP Acts. A nodal department for intellectual property (IP), the DPIIT, however, did not provide reasons behind its decision to review the IP Act.

The meeting apparently had stakeholders, including foreign industries and law firms representing their foreign clients, focusing on the removal of public interest safeguards in the Patents Act — such as provisions restricting the scope of patentability, local working as a ground for granting a compulsory licence, pre-grant opposition, etc.

India’s Patents Act is considered model legislation for developing countries, especially due to the provisions to prevent the abuse of patent monopoly by checking frivolous patenting in critical technologies like software, pharmaceuticals and biotechnology.

The much-discussed Section 3 of the Patents Act excludes the patenting of 17 types of frivolous inventions. Further, it allows the filing of an opposition to the patents at the pre and post-grant stages of patents.

Similarly, compulsory licences can be obtained against abuse of patents such as high prices, unmet public demand and lack of local working.

Countries like the Philippines and Indonesia replicated Section 3 (d) of the Patents Act, which regulates the patenting of known chemical substances.

Though the Patents Act failed to fully stop the patenting of known substances or other frivolous inventions it played a major role in checking patent monopoly through frivolous patenting.

According to WIPO, 66.2 per cent of the patents filed in India is either withdrawn or abandoned. However, studies show that while processing the patents, the Indian patents office ends up erroneously granting patents that should not have been granted. One study finds around 72 per cent of error rate in granting pharmaceutical patents.

This shows that there is an urgent need to review the implementation of the Patents Act and not the Act itself.

Bilateral pressure

The public interest provisions of the Patents Act from day one onwards have come under attack from pharmaceutical transnational companies and their home countries like the US. In 2014, bilateral pressure from the US resulted in setting up a bilateral mechanism to discuss IP issues between India and the US. During the five years, this strategic mistake of engaging the US on IP issues bilaterally resulted in the undermining of implementation on safeguards against frivolous patents.

Around June, the US had approached India to amend IP Acts, including the Patents Act. If the recently announced US-China trade deal is a signal, then the US is demanding the inclusion of changes in the IP Acts as part of the proposed US India mini-trade deal. China had to agree to provide patent term extension and patent linkage as the US.

Against this background, the IP Acts review bears the danger of accommodating the US’ demands rather than streamlining public interest safeguards. Such a move would undermine the capabilities of the biopharma industry and compromise access to medicine, a fundamental right guaranteed under the Constitution. Currently, nearly 40 million people are pushed below the poverty line every year paying for medicines while India is the world’s pharmacy of affordable medicines. Therefore, any review of IP Acts should be guided by Gandhi’s talisman and not the infinite greed of profit.

 

The writer is with the Third World Network. Views are personal

Published on February 01, 2020
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