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FOREWORD
December 2006 Foreword from Dr A D Damodaran
Greetings and
December 2006, Foreword
Dear Sirs/Friend,
Sub: Foreword
www.patentmatics.org December 2006.
On
27th
December 2004, as the whole country was still reeling with shock of
the news of the killer tsunami that had hit the southern coast the
previous day, the Government promulgated the mid-night Patents
(Amendment) Ordinance 2004, followed by the amended Patent Rules
2005, issued on 31st December.
With the parliamentary approval of the mid-night Patents (Amendment)
Ordinance 2004 on March 23,2005, the TRIPS-dictated “Knowledge
Divide” became a legally valid national reality for all sectors
of science and technology; in essence, the conditionalities attached
with the new legal framework controlled the IPR aspects of all
future R&D activities ‘of possible industrial use’ and associated
products and production technologies, including essential drugs and
agrochemicals. While patentmatics described March 23 as a Black
Day in the history of independent India, there were others who
described the event as one of great forward advancement. This final
“cut of all” was the last Act in the country’s Agreement with WTO
for complying with the TRIPS-dictated amendments. Let us examine the
issue once again, now after a period of a decade and two years:
(a)
In an excellent and pain-staking effort, Sujit
Bhattacharya has recently published the results of his systematic
studies in his voluminous report “Indian Patenting Activity in
International and Domestic Patent Systems: Contemporary Scenario”
and one of his significant conclusions is that “There
were 22,695 patents
accepted by IPO
during 1990-2002. Foreign organisations dominated the patenting
activity with approximately 71% share of accepted patents”; and CSIR
continuing to hold its overarching leadership in the area as always.
Data from informal sources indicate that the same trend continues
even now. In other words, indigenous ‘patent literacy’ continues to
be very low even among the native (major) industries though they had
campaigned and supported very systematically all through for the New
IPR Regime through their well-known Associations like CII, ASSOCHAM
and FICCI. On the one hand, the “knowledge divide” between the North
and the South itself is cascading in numbers and technological
content and rigour. On the other, organising “R&D of possible
industrial use” is turning out to be less and less a ‘cake-walk’.
Even within India, it is reported that, encouraged as they are under
the New IPR Regime, as many as 18 out of the world’s top chip design
companies (all foreigners) have set up chip design operations in
India, making it the emerging world leader in VLSI design. In other
words, the New Regime seems to have been exquisitely tailored to
suit the foreign interests so well that in actual practice, Indian
Patent Law ceases to become any more “Indian”, in effect going back
to 1857 when the then East India Company legislated a patent act for
India essentially to protect the interests of UK!
“For Whom the IPR
Bell Tolls”,
someone will have to seek an answer, that too quite deservedly,
after a lapse of a decade long post WTO governance-experience.
Patentmatics calls upon the GOI to have this done within a definite
time frame and necessary corrective measures adopted thereafter to
make Indian patent laws reflect the ‘contemporary political economy
of the country’, to quote the celebrated Swan Committee of UK which
is still treated as a sort of Magna Charta on patent policy.
(b)
More importantly, as indicated by Sujit
Bhattacharya himself, the large technology driven foreign companies
have utilized the Mail Box facility and PCT route more effectively
than the conventional route, more so in items covered under
pharmaceutical, agro- and other specialty chemicals to introduce
their patented products into the native market. With thousands of
such cases in the pipeline, the true implications are yet to be
quantitatively evaluated. The well-discussed case of Glivec, the
anticancer drug from Novartis, is only one of the many such
examples posing infinite threat to the availability of even
such essential items at affordable costs to many for whom “India
does not shine”.
(c)
The case of the Monsanto-owned Bt cotton
is again one example from the field of agriculture, where the Indian
farmers are caught between the Devil and the Deep Sea, the strategy
of the monopoly company itself being altered to pose fresh
challenges for the ill-equipped native judicial machinery like IPO,
MRTP, the Apex court, etc.
(d)
Added to all these
Act-related maladies, and whatever be the official claims, the
Indian Patent Office continues to be so ill equipped to handle its
database-related issues that even the genuine anti-monopoly
Activists are unable to get factual information in time and in
required details; and concurrently in absence yet of the
professionals-oriented Arbitration Board, relevant IP cases continue
to be handled only through the routine (again quite ill-equipped)
judicial machinery, essentially as one among their many – the Glivec
Issue is still pending for the final judgment for nearly three
years!
In summary, the
Union government was very particular of pushing through all
TRIPS-dictated amendments within the WTO-dictated time limits (the
last one in great hurry literally in one sitting and without even
having been subjected to a Select Committee scrutiny!); on the other
hand it remains mute on everything else, in the process denying the
public activists, concerned citizens and even affected ones unable
to take up the matter within any meaningful time frame!
It is in this context that one looks at the way
in which WTO/TRIPS itself was enacted in the early nineties. As
powerfully brought out by the learned legal luminary Rajeev Dhavan
in his article on “Indian Governance and Treaties: The Advent of the
WTO”available in the November Issue of this site, The WTO treaty is
a case in point. In 1995-96, the National Working Group on Patent
Laws set up a Peoples’ Commission on GATT. The membership of this
Commission included Justices Krishna Iyer, Chinnappa Reddy,
D.A.Desai and Rajinder Sachar. In the Submissions of PILSARC (a
legal public interest group) I included an account of how, the then
Government and Parliament handled the negotiations. This submission
finds place in the Report of the Commission and reads as follows:
“On March 15 and 30,1990, the Government stated “…. that
it will not participate in any negotiation …under threat of
retaliation” (Lok Sabha Qn. 33 and 2873) “On march 19 and 27,1990
the Government stated that there was no proposal to amend the Indian
Patents Act which was a statutory legislation (Rajya Sabha Qn. 643
and 660; Lok Sabha Qn. 2221 and 2312). “On May 3,1990 the Government
stated that investment and services”…lie in the domain of sovereign
decision making not covered by GATT or any other multi-lateral or
bilateral agreement” (Rajya Sabha Qn. 88). On 4-10th May,
1990 the Government reiterated that “.. …. It cannot enter into
bilateral negotiations to change basic economic policies which are
in the domain of our sovereign decision making, and that too, under
threat of retaliation”. India would provide support and leadership
to the concerns of developing nations (Lok Sabha Qn. 7452; Rajya
Sabha Qn. 7603). On May 11,1990 the Government was hopeful that the
GATT Negotiations would result in a “balanced outcome” for
developing countries; and ensure that India’s interests were
safeguarded (Lok Sabha Qn. No. 8334). On 17th May 1990
the Indian Government repeated “The Indian delegation also
reiterated its stand that it would not negotiate under threat of
retaliation under Super 301 (Rajya Sabha Qn. 221). On 9-10 August
1990, the Government reported that there would be no negotiation
under threat of retaliation but admitted that the US had stayed its
hand because of India’s potential through (its) participation…in
negotiations on (TRIMS and Services” (Rajya Sabha Qn. 46; Lok Sabha
Qn. 883). On 31 August 1990, the Government admitted that the
comprehensive package of the developed nations in GATT “did not…take
our development and other concerns fully into account”. The
Government claimed that India had “held its position” in GATT and
much depended on the ability of the developing nations to “stand
together and firmly” in the final phase of negotiations”…. In
another statement it was also repeated that India would not
negotiate under threat of retaliation (Statement in reply to Lok
Sabha Qn. 3868). On 28 December 1990, the Government declared that
its stance in GATT was that developing countries are different and
unique and that Indian labour should be able to travel to
industrialized countries temporarily. Aspects of India’s tentative
position were stated in one-line policy statements on textiles,
patents and services (Lok Sabha Qn. 382). However with the change of
Government in June 1991, a process of adjustment and reversal seems
to have resumed again. By 16 July 1991, the Government talked of
“different perceptions on patents and trademarks” from the US; but
took no stand (Lok Sabha Qn. 418). On 11, September 1991, the
Government admitted that the Dunkel proposals would fundamentally
alter various aspects of the economy including patents. Thus, it is
evident that during the first five years of the Uruguay Round, the
Indian Government failed to make any substantive policy statement to
Parliament, the State Assemblies, the Chief Ministers or the people.
The Union Government failed to issue any position paper detailing
the status of the negotiations, the position taken by various
countries, the proposed changes to domestic legislation and
anticipated consequences of signing the Treaty”. This evasive
conduct on the part of the Government continued. After some time,
the Arjun Singh Committee was informally established in 1992-93. Its
sessions were in camera. Its report remained secret. One of the
Committees of Parliament, headed by Shri Gujral, was very critical
of the implication of the Treaty on India’s people and its economy.
This made little difference to the government, which knew it had the
power to do what it wanted. The Indian constitutional system does
not keep an eye on treaties, which are signed by the Executive
without submitting to the democratic process”
In other words, it
appears with hindsight that the Union Government was all through in
a conscious (or, call we assume, unconscious?) ‘surrendering mood’
as far as WTO Agreement was concerned; and the very few
parliamentarians who presented their serious concerns against the
WTO Treaty could not put any effective check on governmental actions
at any time.
A similar fate
can perhaps befall the much-discussed India-US Nuclear Agreement as
well, if the matter is left as it
is now.
It is in
this context that the December Issue continues its earlier
discussion on the democratic anomalies in the existing Treaty Making
Powers of the Government
A recent
monograph under the title “Final Act of WTO: Abuse of Treaty Making
Power” by another legal luminary Shiva Kant Jha, also author of “The
Judicial Role in Globalised Economy” has seriously reflected over
our government’s treaty-making power within the context of
experiences of developing countries such as India now being
subjected to a volley of economic and Cross-retaliatory pressures
under what are summarily referred to as WTO/TRIPS/GATS dictated
conditionalities. Through a number of well-quoted
legal-constitutional statutes, procedures and practices, Jha is
questioning “the propriety, legality and constitutional validity of
our Acceptance
of the Uruguay Round Final Act which spawned the WTO designed to
subjugate the political realm to the economic realm to establish the
sovereignty of the present-day Leviathan, Pax Mercatus”. The
three important recommendations summarised therein to see that
treating making powers of the
Union government is
made in line with accepted democratic practices in our country
deserves the best attention
of all those who yearn that India is not classified as a “Faltering
Democracy” any more.
This aspect is crucial when we come back to the now infamous
India-US Nuclear Agreement. Indians are repeatedly being made to
know more of it from its popular media and US archives than from the
GOI sources, astonishingly if not with even some shame! Having got
the versions as passed by the two houses, the final Henry J.Hyde
United States – India Peaceful Atomic Energy Cooperation Act of 2006
has been prepared by its Committee of Conference and the same
approved by the two houses. Once the Bill stands thus approved, it
is only now just awaiting President’s formal approval. In normal
course this is also expected. Will the GOI accept this “Final
Product”? The New Year is certainly going
to be utmost challenging for the Indian parliament, the Treaty
Making Powers of the Executive and last but not the least, the very
nuclear edifice assiduously built on the Homi Bhabha “Growing
Science Model” and the restrictive effects perhaps overflowing also
to other related strategic sectors (DRDO and ISRO included?) covered
under the MTCR.
Last, but not the least, The Hindu in its ‘fifty years ago’ column
writes thus on December 4,1956:
“A new
principle in regard to the selection of personnel of the Central
Cabinet, as followed in the United Kingdom, may be introduced in
India. Prime Minister Nehru is likely to suggest, for the
consideration by the Congress Working Committee, that, as a
principle, the Union Cabinet Ministers should be selected, as far as
practicable, from among those who have been elected to the Lok Sabha.
The idea underlying this suggestion is that in a democracy
full-fledged Ministers as well as Ministers of State and Deputy
Ministers should have been returned to the Lok Sabha through popular
vote as only then can they claim that they represent the popular
points of view on various issues that come up before Parliament. Mr.
Nehru seems to feel that since members of the Rajya Sabha are
indirectly elected, they cannot claim to have the support of the
masses”.
Well, much water has flown down the River Ganga, also many Indian
‘democratic’ practices, what else?
Looking
forward to your comments and suggestions,
Yours truly,
A D Damodaran.
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