ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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Patent Rights, Patent Abuse

Would the Indian patent law be compatible with the relevant provisions of the World Trade Organisation’s agreement on trade-related aspects of intellectual property rights (TRIPS) if it were to limit the grant of a patent for a pharmaceutical substance to a new chemical entity involving one or more inventive steps? Would Indian patent law be compatible with the TRIPS agreement if it were to exclude microorganisms from the realm of patenting? The Technical Expert Group on Patent Law Issues (TEGPLI), chaired by the scientist R A Mashelkar, whose report is now in the public realm, holds that in both areas exclusions in Indian law would be incompatible with the TRIPS agreement. This perspective of the group will certainly buttress the strategy of the transnational corporations in the pharmaceutical industry, both in the courts and in the political sphere, to “align Indian laws with TRIPS”. Sadly, as far as the “public interest” goes, the expert group is merely rhetorical when it waxes eloquent that “every effort must be made to provide drugs at affordable prices to the people of India” and that the government must “prevent the grant of frivolous patents and ‘ever-greening’”, but it does not bother to even adequately spell these measures out. Why should the grant of patent rights permit patent abuse and is this the only way to ensure TRIPS compatibility?

The report does not even give the impression that the TEGPLI seriously considered the various submissions made to it. On the issue of whether it would be TRIPS compatible to limit the grant of patent for a pharmaceutical substance to a new chemical entity involving one or more inventive steps, the group seems to have largely gone by the submission of the London-based I P Institute, which argued that even Articles 7 and 8 of the Doha declaration on the TRIPS agreement and public health cannot be used to derogate from the specific mandate of Article 27 (of TRIPS) dealing with the scope of “patentability”. The I P Institute makes an interesting attempt to distinguish between “ever-greening” (the practice of prolonging the duration of patents) and “incremental innovations”, the former as “an undue extension of a patent monopoly, achieved by executing trivial and insignificant changes to an already existing patented product”, while the latter are “sequential developments that build on the original patented product”. The TEGPLI accepts this distinction, but having done so, what should then have logically followed is to set the scope and criteria of “patentability” in an appropriate manner so as to exclude ever-greening but include incremental innovations in the grant of patents. But for reasons best known to it, the Mashelkar-headed group has not addressed this important issue. This in essence is the fundamental problem with the TEGPLI’s recommendations.

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