2.          A symposium on " TRIPS and Access to Medicines" jointly conducted recently at Delhi between the National Working Group on Patents and Medicines Sans Frontiers MSF ( Nobel Peace Prize-winning organisation founded by Dr James Orbinsky ) articulated to two broad sets of arguments:

          a.          to demand a fundamental review and renegotiation of TRIPS, and

          b.          to make judiciously the flexibility provided in the TRIPS text and protect relevant national interests , especially Article 31 covering compulsory licensing powers to take care of public health emergencies and anti-competitive practices of the patent holders.
 

3.          The seriousness of the debate is well realised when one looks at even casually the recent South African case related to the anti-AIDS drugs. The conflict arising from "the need of Developing Countries for products of modern R&D at affordable price , but in possession of MNCs at many fold multiples ", to quote the London Economist from its recent article entitled " On Science and Profit" is well attributed to the TRIPS and its conditionalities. Taking into account the universal concern on this matter in many countries, the UK government has recently constituted a Commission . Headed by John Barton, Professor of Law of Stanford University ( R.A.Mashelkar , DGCSIR, is also a member) , the Commission will consider the following: 

          a.          how national IPR regimes should best be designed to benefit developing countries within the context of international agreements including TRIPS,

          b.          the broad policy frame work needed to complement IP regimes, including for instance controlling anti-competitive practices through competition policy and law.

4.          It is within such a context that one must examine the US Bill introduced recently in the House of Representatives. The Bill inter alia seeks to provide for compulsory licensing of certain patented inventions relating to health.The US Bill also empowers the Secretary of Health and Human Services and Federal Trade Commission (FTC) with the right to establish other use of the subject matter of the patent without authorisation of the right holder in certain cases. This includes conditions wherein the patent holder , contractor, licensee or assignee has not taken, or is not expected to take within a reasonable time, effective steps to achieve practical applications of the subject invention in a field of use.The other conditions are where it is necessary to alliviate health or safety needs which are not adequately satisfied by the patent holder or the patent holder has engaged in anti-competitive behavior.

5.          It is well realized in all modern market-driven economies that providing the right level of IPR protection ( not more , not less) forms the quintessence of using patent laws as the harbinger of S&T driven societal growth. To quote again from an US expert Prof James Boyle from Harward Journal of Law and Technology, 47, 1996,

          " In the American tradition, IP law is largely motivated by utilitarian concerns.It is NOT designed to give property rights solely as a reward for hard work or to provide creators with a dependable annuity for their children. It is about setting up conditions under which creators acan and will produce new results.Many policy makers seem to view IPRs as a simple linear function , as if more …we grant , and the ‘larger’ we make each right, the more creators with… new programmes, pharmaceuticals.But this view is wrong.Setting the proper level of IP protection requires a complex balancing act…If the IP protection level is too low, negative effects will follow…with decrease in R&D investment…If the IP protection level is too high, future creators will be deprived of the raw materials they use to create new works.Could Bill Gates have created MS-DOS if BASIC and CP/M had been proprietory systems protected by an expansive IPR regime ? "

          Similar considerations would guide IPRs when the specific products are needed for the general well being of its citizenry as well. In other words, patent laws and IPR protection must reflect the S&T policies on the one hand and concrete societal needs on the other. Hence the reason that patent laws must reflect the nation-specific scientific-technological- industrial infrastructure and the contemporary national political economy as well. One need not thus be surprised that even an otherwise advanced country such as US , championing ceaselessly the cause of absolute free trade and market-driven competition, is feeling contrained to introduce Compulsory Licensing provisions to control (even ) its own MNCs and to make them behave so that the authorities could to meet the specific societal needs.

6.           It is in this context that the Indian government must reassess the national scenario with the help of relevant experts and public men and then only proceed with enactment of the new amendments to the 1970 Act . Once for all the authorities must realize that patent laws are not just another administrative addition to the vast reservoir of jurisprudence.