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FOREWORD
November
2004
Dear
Sirs/Friend,
Sub:
Patentmatics.com –
November 2004 Issue.
Inaugurating very recently the CII's
OECD-India Investment Roundtable,the Commerce Minister, Mr Kamal
Nath said that the country would meet the deadline for product
patent protection."Our Patent Law is currently fully TRIPs
compliant. Our obligations require that we provide for product
patent protection with effect from January 1, 2005. We shall do it."
So far only the Left parties have petitioned the Government on the
need for addressing concerns of Indian companies before amending the
patents law; the CPI(M) has since elaborated its views through an
article in its official organ Peoples’ Democracy, the full
text of which is available on the site. Major points in the ‘PD’ are
the following:
a.
The January 1, 2005 deadline should not be used as a plea to hasten
through a legislation, for which the country might have to pay a
heavy price later. There is a precedent in India, where the Patents
First (Amendment) Bill providing for Exclusive Marketing Rights (EMR)
and a mailbox was passed by Parliament only in 1999 with
retrospective effect, though the TRIPS agreement required that the
country provide for the same by January 1, 1995.
b.It
is imperative that the 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 for others sectors such as
agriculture, biotechnology, software, etc. The principal concern
should be to ensure that the Amended Law protects the country’s
interest adequately.
Similar views with
also detailed suggestions have been submitted to the concerned
authorities by the Peoples’ Commission on Patent Laws for India
chaired by the former Prime Minister Shri I K Gujral himself, the
Executive Summary of which is available elsewhere on patentmatics.
The report explicitly emphasises the need for more efficacious
negotiations to our advantage even within the provisions of TRIPS,
for which a good beginning was made by the then NDA government at
Doha, the same point being substantiated in his article by an IPR
expert Shri Basheer.The PC Report has interestingly summarised the
significant points which were highlighted by the then non-NDA
opposition groups during the passage of the Second Amendment. Two
significant issues raised by a Leftist veteran late Shri V V
Raghavan are the following:
a.
“If you look
at the website of USA, we will find that they have enacted a law
saying, ‘Whatever be the international commitments or agreements
signed by America, if any agreement conflicts with the interests of
the American people, the American law will prevail; the American law
will subdue that commitment’. If America can do that, I don’t
understand that we should succumb to their pressures…I don’t think,
amending our Patents Act should be to meet the obligations towards
the TRIPS Agreement or the WTO Agreements. We have to argue our case
strongly.
b.
“There must
be stringent provisions (on Compulsory Licensing Powers) to control
prices…(the) phrase ‘reasonable’ can go up to anywhere.
The current Issue is again publishing
three articles by APMA highlighting the different aspects of the
matter and another one on the TRIPS conditionalities themselves. And
last but not the least on the subject is the EMR case for the
anticancer drug Glivec itself, still awaiting for the final decision
of Supreme Court (almost an year has already passed since the
judicial procedures were started). Concurrently, the number of PCT
applications on “anticancer drugs” alone - many of which have India
also is a destination – currently works out to 38, the latest being
“Monoclonal Antibody, Gene Encoding the same, Hybridoma, Medicinal
Composition & Diagnostic Reagent” WO 2004/ 076658 dated Feb 27,2004,
in favour of Mitsubishi Pharma Corpn et.al. Examples on other types
are no different either, even in antibiotics. In other words,in
absence of adequately strong anti-monopoly clauses in the present
Patent Act 2003, the “product regime” has already started effecting
visible blows to the national health sector!
Now that the non-NDA ruling front is
pioneering the Third and Final Bill in a hurry to meet the so-called
dead line, one has great reasons to be worried about. Let us hope
that they will see sense in NOT pushing the Bill through ostensibly
to meet the dead line!
It is certainly
worthwhile in this connection to recapitulate the history of IPR
laws in our country, specifically when in another fortnight the
nation will be celebrating the Birth Anniversary of the first Indian
Prime Minister, late Jawahar Lal Nehru. One of the very early
administrative steps taken by the newly independent government under
Nehru was to review the the then valid Patents Act integral with the
S&T and Industrial Policies themselves. It was quite crystal clear
to the then political authorities that the 1911 Indian Patents and
designs Act was basically meant to protect the interests of the
foreign interests. Hence the reason that “the need for a
comprehensive revision of the law relating to patents in India to
suit our country’s developing economy was recognised soon after
independence”. Accordingly based on the First Enquiry Committee
(1948-50) recommendation, for which CSIR played a very significant
role at that time, a notable amendment was made in 1952 itself for
compulsory licensing in the field of food and medicine at any time
after the sealing of the patent. The major amendments were of cource
to await the report of Justice Rajagopal Ayyangar in 1958, which
eventually led to the celebrated 1970 Act.The question obviously to
be raised most emphatically, more so when soon the nation will be
celebrating this month the birth day of the first and perhaps the
foremost Prime Minister late Jawaharlal Nehru, is: will not the
arguments of the 1958 Justice Rajagopal Ayyangar Committee in
championing the cause of “Licenses of Rights” after three years for
drugs continue to haunt the conscience of the nation hurrying
towards the New IPR Regime, more so in absence of a relevant
constututional authority which could order that judiciary must
deliver its judgements within a stipulated time schedule on at least
life-saving drugs! And that too under a government headed by the
proclaimed successors of the Grand Old Party itself ? Well, we await
with great expectations so that our country will not become the
dumping ground of the neo-liberal brand of fortune hunters, the
worst victims being the poor and ordinary citizens of this vast
land. The chance of such developments could be real since there are
reports that European Union is proposing to introduce Compulsory
Licensing provisions in their Patent Acts ostensibly for “export to
poor countries” to help them under the so-called Doha discussions.
It is not argued from the above that a market-economy based
(capitalist) country like India can do away with patents and
patenting practices.Basics of Industrial R&D as evolved and
practiced in the West and advanced capitalist economies will
require a patent law to provide the required IPR protection to the
producers of “R&D of possible industrial use”, but the law should
necessary meet the overall demands of the national political
economy, to quote the celebrated UK Swan Committee Report, since the
primary aim of the limited patent monopoly protection is to promote
national development and NOT to protect the interests of foreigners
and their imported technologies. This has been the policy approach
of all nations through their respective development stages and India
cannot adopt a different approach in this crucial matter, as was
exquisitely realised and emphasised by the Nehru government soon
after our independence. We simply cannot afford to ‘trip’ under the
WTO/TRIPS dictat!
As if ‘triping’ under TRIPS is not enough, developing countries are
now being quietly exposed to another and perhaps more serious aspect
of the same problem discussed through the auspices of the UN
sponsored World Intellectual Property Organisation WIPO through the
concept of an international patent – A Design for All Seasons! The
two articles on the subject will serve to introduce the subject.
Patentmatics will follow this aspect quite seriously in later
issues. The Issue also has reproduced a detailed article on IPR laws
in China, another one on ‘how to sharpen innovation’, a third one on
Industrial R&D itself from a perspectival point of view and the
fourth one on IPR issues involved in the latest industrial policy of
GOI to scrap Press Note 18 connected with joint venture units. Added
to all is the last provocative one on “Silcon Valley or Coolie
Valley” wherein also the author has very rightly used IPR based
evaluation methodology for definition of the word ‘technology’ in
contrast to ‘abuse’ of the same so casually in our parlance!
Last but not the least, it is
reported that Reliance Energy is looking at possibilities to set up
Nuclear Power stations. ``This requires a lot of support from the
Government'', V.K. Chaturvedi, newly appointed director of the New
Power Initiative of Reliance Energy, said, adding that perhaps for
the first time in the country any private company would be entering
the nuclear power market. Dr. Chaturvedi, who was the former CMD of
the Nuclear Power Corporation of India Ltd (NPCIL), said, ``it will
be necessary to have technical support from the Department of Atomic
Energy and NPCIL''. As soon as the amended Atomic Energy Act gets
clearance from the Parliament on private participation in the
nuclear energy production in the country, Reliance Energy would be
the first company to come forward to set up nuclear power plants,
Dr. Chaturvedi said. A new policy initiative like this will of
cource also entail major modification/deletion in Patents Act
currently providing sweeping protection powers to the government on
all all items covered under the said Atomic Energy Act.
Note: Kindly note that with effect from
November 2004, this site is renamed as
www.patentmatics.org to make it doubly clear that it is only a
voluntary educational effort and NOT a commercial one.
Being a
purely educational and voluntary non-profitable activity,
patentmatics has been reproducing a number of relevant articles
under the ‘fair use’ doctrine. It is hoped once again that the
authors and publishers will aptly condone the IPR issues if any!
Yours sincerely,
A D Damodaran
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