[Ip-health] IP Acts review: It is important to put people above profits

prathibha sivasubramanian psa2m2020 at gmail.com
Fri Jan 31 22:42:29 PST 2020

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withdrawn or abandoned.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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