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INDIAN PATENT ACT IN LIGHT OF RIGHT TO ACCESS TO HEALTH CARE


The Patent (Amendment) Act 2005 effectively resolved problems of public health and public interest in India. There are several clauses in the Act that safeguard our country’s public health. The terms of the Act are, however, as follows:

What is not “patentable is covered by Section 3 of the Act. Section 3(d) states that a new kind of a known substance must be found that does not boost its known effectiveness unless a known process is used or at least one new reactant is used, or simply find some new property or use of a known substance, or simply use a known process, system, or apparatus. Nonetheless, this segment is critical in protecting the millions of people who live in our country's health.Under the 1970 Patents Act, this clause provides essential public health protection. This section is contradicted by the dilemma and the evergreening point. This provision never acknowledges greening, which includes the introduction of generic drugs, lowering the cost of life-saving medications. It would undoubtedly protect the health of millions of Indians who live in poverty and lack the financial means to purchase medication.”

Section 47 states, among other things, that if a medicine or medication has a patent, it may be imported into the state for its own use or distribution by or on behalf of the government, or to any other pharmacy, hospital, or medical institution founded by the Central Government. In the government's interest to protect public health, this clause is also very useful. This government sector could provide major relief to governments in developing countries like India, where public health protection is one of the most pressing concerns.

After “giving the patent a chance to be heard, the Central Government may issue a declaration in the Official Gazette to that effect, and the patent is then considered revoked, whether the central government thinks the patent or the way it works is not good for the state or generally harmful to the population. As a result, this section gave the Central Government the power to revoke any patent or patent method referred to in this section if the patent or patent method was detrimental to the public. The public interest should also be extended in order to protect public health.”

Any interested person can apply to the Controller for the grant of a compulsory licence on a patent for any purpose after three years from the date of the patent's grant, including:

  1. That the public's fair expectations about the patented invention have not been fulfilled or met.

  2. That the patented invention is not available to the general public at a fair cost or that the patented invention is not available to the general public at all.

  3. The patented invention is not carried out on Indian soil.

Any person, even if he already has a patent licence, may file an application under this section, and no one shall dispute the claim that the patented invention does not meet the appropriate requirements of the public, or that the patented invention is not in use in India, or that the patented invention is not in use. Nonetheless, this segment contributes to the continuous flow of pharmaceutical products by preventing fraudulent entrepreneurs from creating artificial emergencies and driving up the cost of vital medicines.

After two years “from the date of an order granting a first compulsory patent, the central government and any interested person may apply to the Controller for an order of revocation of a patent because the patented invention was not worked in territory. If the Controller is satisfied with the reasons, he or she can order the patent to be revoked. As a result, the measure can also serve as a check and balance to protect the public health of the general public” in the country, and the government's arms for public health security are located in this portion.

If the Central Government feels it is necessary to grant compulsory licences to operate in respect of any patent in force at any time after sealing the invention, either in cases of severe urgency or in cases of public, not commercial use, it may make a declaration in this regard by publishing a notification in the official gazette. Again, if the Controller decides, after considering the application referred to in clause I of subsection

  1. That there is a need for — I national emergency circumstances;

  2. An extremely urgent situation;

  3. The application for licences under this section shall refer to publicly accessible non-commercial usage that may occur or be needed in connection with acquired immune deficiency syndrome, human immunodeficiency viruses, tuberculosis, malaria, or other epidemics, including public health crises. A compulsory licence may be given in the case of a national emergency, an immediate emergency, or public non-commercial use. The public health problem is another reason it could be published.

This section imposes a mandatory licence for the manufacture and export of a product to any country with insufficient or no pharmaceutical manufacturing capability to resolve public health issues, given that the country or countries issued a compulsory licence are notifiable or otherwise allowed to import the product. Upon receipt of an application as directed, the Controller shall issue a compulsory licence for the manufacture and export of the pharmaceutical product in question into that country solely on the basis of any conditions stated and published by the Controller.

This section “plays an important role in protecting public health in our country, and in appropriate cases, the Controller shall issue compulsory licences as set out in this section in support of public health. If the Central Government is satisfied that an invention that is the subject of a patent application or patent must also be obtained by the applicant or patent proprietor for a public reason, it must publish a notification in the Official Gazette to that effect, and by that notice, to the invention or patent and thereby all rights relating to the invention” or patent.

A central government is entitled to obtain a patent from an applicant or patent proprietor for a public purpose under this provision, and in that case, the central government may transfer all of the proprietor's rights. The term "public purpose," which includes "public health," is extremely ambiguous in this context. As a result, the government can take measures to protect public health under this provision.

The importation of patented products by someone who has been duly licenced by the law to produce, sell, or distribute the product, and it is not considered a patent infringement. If required, this section can assist in the importation of patented drugs at reasonable prices to protect public health.

COMPULSORY LICENSING

Compulsory licences, as described by the TRIPs Agreement, are designed to strike a balance between the public interest and patent owners' legitimate interests. The TRIPS Convention also stipulates certain conditions for the use of compulsory licences, as well as a variety of reasons for which compulsory licences can be granted on a case-by-case basis, including immediate and severe urgency, anti-competitive practises, public non-commercial use, and secure patents.

Compulsory “licencing means that the government allows someone else to manufacture a proprietary product or method without the patent owner's permission. One of the key pillars of the patent system is this. Compulsory licences for proprietary inventions are protected by the Paris Convention and the TRIPS Agreement. Unless an exception such as a national emergency or an emergency can be used for a licence to be granted earlier, the Indian patent law states that an application for a compulsory licence can only be made three years after the date of the patent's award.” As a result, three broad criteria for granting compulsory licences have been established:

  1. The public's fair expectations of the patented innovation have not been met;

  2. The patented technology is not commercially available at a reasonable cost; and

  3. The patented technology is not operating in India's jurisdiction.

The Patent Act specifies the circumstances in which "fair public expectations" could not have been met. Such circumstances would arise if the patent holder refused to grant a licence on reasonable terms, which would have an effect on:

  1. The establishment or expansion of commercial activities within India;

  2. The creation of new trade or industry in the country;

  3. The key consequences of this provision will be felt in the pharmaceutical industry, where India will well establish itself as a major generic supplier to developing countries with insufficient domestic production plants.

CONCLUSION

In developing countries including India, the organisation of health care has been a precondition for a flagrant violation of fundamental rights. “The theory of justice is abused when the majority of the population lacks access to a basic health service. The pharmaceutical industry's compliance with the TRIPS Agreement would have a major impact on India's public health future. Local patent operation refers to the creation of a patented product or the implementation of a patented process in the local market. The inventive process can lead to inventiveness, which can lead to technological development, industrial and economic prosperity, which can only be achieved through the local operation of patented inventions. The financial interests of big players in the drug industry are still a challenge to India's access to life-saving drugs at reasonable prices. Innovation and patenting are two sides of the same coin.” Patents should not be solely for the purpose of collecting profit, and innovations should be in the best interests of humanity, particularly in the medical field.

SUGGESTIONS

The Indian Patent Act of 1970 has provisions to protect the interests of domestic drug manufacturers who produce generic medicines. “The Act has put millions of people's right to health into jeopardy. It no longer restricted access to life-saving drugs to the rich and affluent, but instead made them available to the poor and needy in our society. The rights of patentees and the needs of the general public are combined in Indian patent law. It has also struck a delicate balance between strict intellectual property restrictions and the TRIPs' versatility. The Indian court, however, dismissed Novartis' claim, and Indian generic companies went on to market the generic version of Glove for about a tenth of the original drug's price. This has made it easier for the vulnerable in our country to access life-saving medicines at a cheaper” cost.

While TRIPS provides provisions to protect the public health of ordinary citizens, it has not yet proven to be as effective as it should be in promoting public health in developing and least developed countries. TRIPS should be restructured to include a drug distribution scheme that allows patentees to sell products at a discounted price to ensure that the poor in developed countries have access to life-saving medicines.

TRIPS should take into account the financial motivations of pharmaceutical corporations as well as their duty to society's most disadvantaged people. Its goal should not be to avoid, but to facilitate the affordable availability of medicines that meet national public health requirements. There are a few more suggestions that can be considered:

  1. Each country's patent law should be based on its socioeconomic needs and objectives, such as public health, while still adhering to international obligations.

  2. “One of the most important public health goals is to reform patent rules to expand access to drugs, particularly for the poor.”

  3. “Under a health-responsive legal system, governments should be able to act rapidly, even in times of epidemic crisis.”

  4. “The government must create a prescription patent system that clearly regulates the availability of life-saving drugs.”

  5. “The flexibility of mandatory licencing should be practised in developing and least-developed countries. A simple procedure must be invented for the issuance of compulsory licences.”

  6. “For such life-saving drugs, parallel import should be permitted.”

With these improvements, we can envision a future in which people walk out of the shadow of an incurable illness into the sunshine, singing with their feet, on grassy fields, new woodlands, and beaches.

REFERNCES

STATUES

  • The Constitution of India,1950.

  • The Patent Act,1970.

  • The Patents (Amendment) Act, 2005

INTERNATIONAL STATUES

  • Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994) [hereinafter TRIPS Agreement].

  • Declaration on the TRIPS Agreement and Public Health by consensus at the WTO’s Fourth Ministerial Conference in Doha, Qatar, Adopted on 14 November 2001.

CASES

  • Garware - Wall Ropes Ltd v. A.I. Chopra Engineers & Contractors & Another, 2008 (3) MHLJ 599

  • Khoja Mushabhai Gulamhuseinbhai v. Charity Commissioner,Gujarat State,Ahmedabad, AIR 1971 GUJ 230

  • Lambda Eastern Telecommunication v. Acme Tele-Power Private Ltd LQ 2007 HC 18759

  • TVS Motor Company Limited & Another v. Bajaj Auto Limited & Another, 2010 (2) CTC 353.

  • Lambda Eastern Telecommunication v. Acme Tele-Power Private Ltd, LQ 2007 HC 18759.

  • Accenture Global Service v. The Assistant Controller of Patents & Designs and The Examiner of Patents, MIPR 2013 (1) 283.

  • LG Electronics India Pvt. Ltd v. Bharat Bhogilal Patel & Others, 2012 (127) DRJ87

  • Vikram India Ltd v. Kilburn Engineering Ltd, 2009 (39) PTC 137 IPAB.

  • Sidharth Whils Private Limited v. Bedrock Limited, AIR 1988 DEL 228.

  • The Travancore Mats & Matting Co. 100% EOU, represented by its Managing Partner V.R. Prasad Son of K. Velayudhan, Post Box No. 5, Cherthala - 688524 v. The Controller of Patents Patent office GST Road, Guindy, Chennai and Ors, MIPR 2012 (2) 334.

  • Merck Serono S. A v. Union of India, 2014 (60) PTC 116 (DEL).

ARTICLES

  • John G. Costa, Patent Law, 64 FORDHAM L. REV. 725 (1995).

  • Homer J. Schneider, Patent Law, 53 CHI.-KENT L. REV. 408 (1976).

  • David S. Kane, Patent Law, 1953 ANN. Surv. AM. L. 382 (1953).

  • Essam Al Tamimi, Current U.A.E. Copyright Law and How It Compares and Contrasts with WTO's TRIPS Agreement and the Berne Convention, 2 J. WORLD INTELL. PROP. 371 (1999).

  • Thomas F. Cotter, Market Fundamentalism and the TRIPs Agreement, 22 CARDOZO Arts & ENT. L.J. 307 (2004).

  • Kamban Socretes, Compulsory Licensing under the Patent System in India, 6 INDIAN J.L. & Just. 63 (2015).

  • Jared Mullowney & Neil Harris, Patent Protectability or Public Health - An Examination of the Patent Compulsory License and Bioterrorism, 4 J. Biosecurity Biosafety & Biodefense L. 151 (2013).

  • James M. Wetzel, Can Patent Properties Be Redistributed through Compulsory Licensing, 1 APLA Q. J. 184 (1972).

  • William C. Holmes, Compulsory Patent and Trademark Licensing: A Framework for Analysis, 12 LOY. U. CHI. L.J. 43 (1980).

  • Dina Halajian, Inadequacy of Trips & the Compulsory License: Why Broad Compulsory Licensing Is Not a Viable Solution to the Access to Medicine Program, 38 BROOK. J. INT'l L. 1191 (2013).

  • Paul Gormley, Compulsory Patent Licenses and Environmental Protection, 7 TUL. ENVTL. L.J. 131 (1993).


-Ojaswi Bhagat

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