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PATENT IN THE TIMES OF HEALTH CRISIS


INTRODUCTION


Health is a crucial fundamental human right and an overall social objective and it is the degree of functional or metabolic ability of a living being. In people it is the overall state of an individual's mental status and body, generally significant to be liberated from disease and injury. Health is fundamental for the acknowledgment of essential human necessities and to accomplish the status of better personal satisfaction and needs. Healthcare services is a wide term that relates to a framework that includes the support and the improvement of health and medical facilities to cater the medical necessities of the individuals. The consistently developing and growing demands of the individuals, especially the patients, has been broadly perceived and cannot be subverted or suppressed. Moreover, in the event that we investigate the previous hundreds of years, the tremendous scope of changes that has occurred and keeps on occurring in the cutting edge society is obviously seen around the world.


In the beginning of the society, all things considered, everything belonged with everyone. Step by step individuals began associating themselves with a few or different things and turned into their proprietors. Be that as it may, with this ownership came the danger of its being taken or removed. The need to create laws to secure what had just been created was felt here. Industrialization anyway saw the appearance of a few milestone innovations and it involved time before ideas and thoughts of the psyche turned into the subject of assurance under law. Patent is an exclusive right given to an inventor in respect of an invention by granting the inventor a monopoly in his name for the creation and restricts the rights of others to create or use the same for a limited period of time. Patents Act,1970 governs the principles of patent in India.


Considering the unprecedented times that the world is in, protecting and advancing the healthcare facilities of a nation has acquired a place of utmost significance. Individuals, government, companies etc are focusing on deducing solutions to the global problems of health that the world is facing since a recent decade. Creating new vaccines is one of the vital difficulties in the fight against worldwide irresistible diseases that have taken many lives in the past and are on the way to take many more. In this manner, making the ideal conditions for advancement in antibodies is perhaps the main job law may attempt to undertake in this fight. Patents can prove to be a boon in times of such crisis but at the same time, it can be detrimental to society as well. It has been observed that patents in the times of crisis such as influenza pandemic proved to be negatively impacting the procurement of the influenza vaccines in the society. Patents award an impermanent monopoly to the patent holder, subsequently preventing generic market entry, which has the impact of expanding rivalry among pharmaceutical makers and driving down costs on products.


The research article aims at exploring the role of patents in the times of pandemic or any such global health crisis. The paper focuses upon patents and the concepts revolving around patents worldwide. Moreover, patent rights, various forms , importance and significance of patents in the times of crisis, vaccines and Covid- 19 form a major portion of the research article.


PATENTS: A BRIEF CONCEPT

A patent is a restrictive right allowed for an innovation, which is a product or a cycle that provides as a general concept, another method of doing something, or offers another specialized technical solution for an issue. To get a patent, technical data about the innovation should be revealed to the general population in a patent application. In India, the grant of a patent is subject to certain conditions according to Section 47 of the Indian Patents Act, 1970This protection is generally given for 20 years from the date of filing of the application.


On account of a patent in regard of any medication or drug, the drug or medicine might be imported by the government for the reason only of its own utilization or for dissemination in any dispensary, emergency clinic or other medical institution kept up by or for the benefit of the government or some other dispensary, clinic or other hospital foundation which the central government may, having respect to the public help or service.


HEALTH AND HEALTH CRISIS

Health is a crucial basic fundamental human right and a general social goal and it is the level of practical or metabolic capacity of a living being.Health is basic for the affirmation of fundamental human necessities and to achieve the status of better satisfaction at the personal level and requirements.The consistent and growing demands of the individuals, especially the patients cannot be subverted or rejected at any costs. Therefore, considering the unprecedented times the world is in, protecting and advancing the healthcare facilities of a nation has acquired a place of utmost significance.Individuals, government, companies etc are focusing on deducing solutions to the global problems of health that the world is facing since a recent decade.


PATENT AND HEALTH EMERGENCIES

Governments have found a way to battle public health emergencies previously also, and will not stay away from the impulse to consider patent rights when a specific development or innovation is expected to react to a health emergency today also. At the World Health Organization, developing states have progressed the contention that patent protection on drug items or pharmaceutical products contrarily impacts a building up states capacity to give cost- effective medications to their populations. Once the principle of public good is established , it becomes extremely difficult for the inventor to stop people from using the invention for free.This is normally known as the free rider issue.The free rider problem is termed to be totally undesirable within economic markets, as different businesses cannot charge for every unit of consumption done in the light of public good, this in turn , means , a very little incentive to developing public goods in future. Although patents in the times of health crisis, fail to perform at their extreme potential, still patents can provide a strong incentive to invent and create innovations that aid in preparing for and preventing potential crises.


The entire world got trapped in the cycle of destruction, upheaval , troubles and crisis at some point in time and since the last few decades , the world has been grappling with some pandemic and health emergencies. Applying patent laws in the present situation of Covid-19 pandemic, if any patented or licensed drug after successful clinical trials is discovered to be viable in the treatment of patients, No other person or manufacturer has the right to sell the product except explicitly allowed by the patentee himself. In such a manner, a patent can be named an incentive to innovate. At many times, creators have regularly been blamed for estimating their protected medicines or products in a way that makes them excessively expensive for the lesser privileged areas of the general public.


In India, patent rights might be disavowed in exceptional conditions, with the goal of keeping a fine harmony between the monopoly rights appreciated by a patentee and the duty of the Government to provide necessary products at reasonable prices considering public health being the prime objective.Henceforth, the Indian Patents Act advocated for the provisions that deal with the restrictive obligations cast upon the inventor or the patentee to serve in the times of such health crisis relating to acquired immunodeficiency syndrome (AIDS), human immunodeficiency virus (HIV), malaria, tuberculosis or others like Covid-19.

Compulsory Licencing: This is a compulsory and involuntary agreement between a reluctant seller (patentee) and a willing purchaser (licensee), which is authorized by the State for example at the point when the Government permits a third party to manufacture and sell a licensed item or patented product without the consent of the patentee.Compulsory Licensing is accommodated in the Patent laws of different developed nations (UK, USA, Australia, France, and so on) and developing nations(Malaysia, Thailand, Brazil, Ecuador, and so on). The Indian Patents Act also provides for the same. It can be obtained by filing an application to the controller of patents.


In certain outstanding conditions under Section 92 of the Patents Act, a compulsory license for assembling , export and fare of protected drug items (pharmaceutical items) is available to any nation having lacking or no assembling limit in the drug area for the concerned item to address general medical issues, In certain outstanding conditions under Section 92 of the Patents Act, a compulsory license for assembling , export and fare of protected drug items (pharmaceutical items) is available to any nation having lacking or no assembling limit in the drug area for the concerned item to address general medical issue. The term, pharmaceutical products or drug items implies any licensed item, or item produced through a patented cycle, of the pharmaceutical field expected to address general medical issues and will be comprehensive of fixings important for their assembling and demonstrative units needed for their utilization.


CoVID 19 - Current scenario of Health Emergency

The coronavirus pandemic is a global health issue prevailing in today’s times and has posed one of the greatest challenges since the last few decades, therefore, the list of necessary products or medication is very lengthy. The impact of deadly pandemic can also be seen on the Intellectual Property Rights worldwide, especially on patents. While in general conditions, IPR right holders are conceded insurance over their intellectual property i.e. innovation ('IP') against outsider use, the pandemic has made an uncommon circumstance whereby IPR holders might be constrained, even incidentally, to permit third party to utilize their IPRs, licenses or patented designs, for the public interest.


Suspending the Rights- The COVID-19 emergency made the need to deliver basic equipment and medical supplies. In reality, there is a growing need to have the option to fabricate or manufacture essential medical gadgets, for example, masks, ventilators and other individual protective tools.Article 40 of the Act specifies that 'where the public safety or public wellbeing so requires', the Minister for Economy, Investment and Small Business may approve the utilization, assembling and offer of an innovation without the patent proprietor's authorisation or patent application. This activity should be advocated by impartial compensation to the owner of the patent or of the application for the patent.


Impacts of compromising with Patent Rights

There are innumerable concerns with regard to curbing patent rights to some extent in the society in the times of health emergencies. First, and the most prominent form of impact on the patent system in society in these harsh times are the consequences of generic manufacture without a license. It is a fairly aggressive and dangerous act of proceeding without the permit from the concerned patentee to fabricate a patented drug,the final product would nevertheless normally be an enforcement or encroachment activity on piece of the patentee. In this scenario, the patentee might approach the court for the infringement and the consequences of the result might prove to be demonstrated against the patentee, he would lose good and title to the patent and the creation would enter the public area rendering the time , knowledge and efforts spent without the necessary economic gain.

Another form of impact is the incentive issue. If by any chance that the nation starts suspending protected innovation or patented items and the associated rights for innovation we need in the midst of emergency, at that point there is a reduction in company or organizations' motivations and incentives to grow by developing the technological advances needed in the times of crises. Therefore, the need of the hour is to ensure the financial or economic incentive to the companies that invent products for the public betterment in the time of crisis, especially health emergencies.


If the legal system offers weaker incentives to the developers , a potential creator will feel less inclined towards progressing with the innovation. Research is in progress on numerous other licensed medications and drugs being repurposed for their utilization in the current pandemic. When all else fails, compromise is unavoidable, it is intriguing to check whether the Government should fall back on utilizing its forces, under the Patents Act, 1970, to adequately adjust its duty of ensuring general public health with a patentee's rights.


THE NEED OF THE HOUR

Indeed, even without a patent, inventors should in any case be rewarded. This should be possible via authorizing acquisition deals or joint ventures and procurement arrangements , where the innovator (organization or individual) moves the proprietary advantage, ability, plan, trade secret or innovation to different elements with great assembling limits or governments. Joint ventures can play an instrumental role in these harsh times of crisis where the organisations can pool in their resources to develop medications, drugs or other essential products for the public good.


CONCLUSION

A clash between patentee’s rights and the situation of the nations is a common visual to witness in the tough times of public crisis. Potential patent rights neglect to give a solid impetus to enhance answers for a potential significant emergency, for example, a health crisis. In a few cases, patent rights may spur the development that forestalls an emergency or a health crisis inside and out. In different cases, nonetheless, more coordinated administration will be essential. The need of the hour is to strike a fine balance between the interests of the inventor or the patentee and to cater the needs in the public health emergencies. While a patent is a significant right, the need of great importance is to adjust commercial and public interests. Making innovations, expertise, innovation and details accessible in India as well as across the world is of most extreme significance at this stage. The patentees and the innovators should decide whether their profit making can be exploited for the public good as a way to battle the crisis. However, the community at large needs to be mindful of the interests of the patentee by giving them due credit and acknowledgement. In the times of crisis, where the nations are at war with the tough times, the need of the hour is to prove the inventions and discoveries as a weapon to fight the diseases and work in harmony.

***


BY- SWASTIKA SAXENA

(1st year law student at Maharashtra National Law University, Nagpur)



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