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FOREWORD
August 2004
Dear
Sirs/Friend,
Sub:
Patentmatics.com –
August 2004 Issue.
The Supreme Court
has issued notice to the Centre on a PIL petition by the Peoples’
Livelihood Trust, a non-government organization, challenging the
validity of the 2002 Amendment of the 1970 Indian Patents Act,
contending that by these amendments the concept of granting products
had been introduced in a blanket form without any safeguards. It
submitted that the right to life guaranteed under Article 21 of the
Constitution was not a mere right to exist but it includes within
itself the right to lead a normal healthy life through access to
curative drugs. This right has so far been protected under the 1970
Act and this would be destroyed if product patents are introduced
as contemplated in the amendments. Incidentally it must be noted
that in the Statement attached to the Bill presented before the
parliament, the reason for the suggested amendments was to satisfy
the requirements of TRIPS, which itself is a conditionality imposed
on the country by virtue of India becoming a member of the WTO
through an International Treaty entered into by the then Government
of India, contrary to the accepted practices in many other
democratic countries, without any prior approval of the parliament.
The PIL must
obviously attract serious discussions and study. In the United
States, which swears by ‘freedom and democracy’, US Laws must
prevail over international treaties in case of any
inconsistency/conflicts. In the case of The Uruguay Round Agreement
Act,1994 of USA says: Nothing in this Act shall be construed (a) to
amend or modify any law of US including any law relating to
protection of human, animal or plant life or health,the protection
of environment or worker safety or (b) to limit any authority
conferred under any law of US including Section 301 of the Trade
Act, 1974, unless specifically provided in this Act. There are
similar conditionalities in respect to IPR issues also. And so on.
(details are available in the article “Basics of Patents : Law and
Management” by V Govindarajulu, CSIR/RRLT,Trivandrum in the text) .
It is hoped that the Honourable Apex Court will critically look into
all such constututionally consistent ‘legislative limits’ also while
deciding on this crucial PIL. It is hoped that the Central
Government will adopt an appropriate attitude in this case. After
all, its Common Minimum Programme has promised to the Indian public
that “In keeping with the stance adopted by
the late Shri Murasoli Maran at Doha, the UPA government will fully
protect the national interest, particularly of farmers, in all WTO
negotiations. Commitments made earlier will be adhered to, even as
efforts are mounted to ensure that all agreements reflect our
concerns fully, particularly in the area of intellectual property
and agriculture. The UPA government will use the flexibility
afforded in existing WTO agreements to fully protect Indian
agriculture and industry. The UPA government will play a proactive
role in strengthening the emerging solidarity of developing
countries in the shape of G-20 in the WTO.”
The articles by
Dinesh Abrol and second one from AMTC highlight the seriousness of
the issue very explicitly. While “Fixing the Drug Pipeline”
enumerates the problems faced in the continued invention of new drug
molecules, the IPR approach adopted in China is described in another
article.
While the ‘product
patent problem’ continues to haunt the national drug sector, the IPR
related issues are equally, if not more, so for the medical devices
sector. A recent review conducted by the Trivandrum based Sri Chitra
Tirunal Institute of Medical Science and Technology highlights that
(a) the Indian MD market is estimated at Rs 5,000 crores (b) 80% of
the same are imported. In line with the enormous commercial
interests, all R&D ‘of possible industrial use’ in this field are
protected through product and process patents. “Drug Eluting Stent”
used extensively now in cardiac diseases is one such item (costing
on the average around Rs 100,000), details of which are given
through an article for the general reader (reproduced from a
well-known site). There are already 36 PCT Applications for this
stent during the period 1997-date, with many of them having India
also a possible destination, the latest one being from Korea itself.
Details are given again in the text.The continued proliferation of
the IPR scenario will obviously cause enormous barriers for
indigenous R&D programs. In other words, unless and until our
relevant industries and R&D centres take quick and appropriate
action to build state-of-art expertise in IPR Management,build up
significant patents portfolios at least in chosen and selective
areas of this crucial sector and commercialise the worthwhile ones
at acceptable Indian costs, this sector also will make our health
delivery programs increasingly the exclusive preserves of the rich.
The national
Telecommunications sector continues to attract great attention
everywhere, including the recent policy statement in the budget for
raising the FDI limit to 49% with the overall avowed aim of steadily
augmenting the ongoing ‘tele-revolution’. Those who oppose the
policy points out that “in telecom, even the USA does not allow more
than 26 per cent of foreign investment. European countries,
similarly, do not allow more than 35 per cent,telecommunication is a
sector sensitive to security considerations and, therefore, many
countries restrict foreign control”. While this is certainly very
important and uncompromising, it should be clearly also remembered
that India achieved a teledensity of 7.04 by 2004 ‘somewhat cheaply’
( the earlier estimates that an investment of $35 billion was
required as FDI for this to materialize was obviously wrong)
entirely based on import of gadgets and systems wholesale, and NOT
through any build-up of national “Core Competence” through any of
her R&D or manufacturing industries. In other words, the Indian
Tele-Revolution took place when the pioneer national ‘carrier’
Indian Telephone Industries Ltd is still lying before the BIFR for
salvation, as much as the IT revolution has been heralded without
the nation having even one respectable IC foundry! The 2004 Budget
does not either help even the existing ‘screw driver regime’, with
the Telephone Equipment Manufacturers’ Association quite unhappy and
threatening to even shut down the manufacturing units.The article on
“Core Competence of Core Sector Industries” goes into details of
this industrial malignancy, highlighting along side the need for
steadily increasing Total Factor Productivity and the vital R&D
Component of TFP as analysed by Dr Petri Niininen,the eminent Finish
economist-science policy researcher, in his research publication
reproduced from “Finish Economic Papers, 2000). Another significant
piece is on Patents “thicketing”, a practice adopted profusely by
the Japanese in her IPR Laws supportive of a carefully worked
strategy for her technological-industrial development. Alas, as the
Economist note highlights, the Japanese are still striving on how to
keep their technology secrets!
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!
Last but
not the least,“THE
United Nations Development Programme (UNDP) has assigned India among
the medium human development countries putting it in the 127th slot,
a notch higher than Botswana but lower than Namibia among the 177
countries in tracked progress in human development. India certainly
shines in pockets, yet the shine has to spread far and wide and very
fast too. To quote from Robert Frost, the favourite poet of late
Jawaharlal Nehru,
“The
Woods are lovely, dark and deep,
I have
promises to keep,
Miles
to go before I sleep,
Miles
to go before I sleep”
Very worthwhile
thoughts when we celebrate soon our Independence Day on August 15.
Kindly keep sending
your suggestions and comments.
Yours truly,
A D Damodaran.
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