Discussion on Patent
The Concise Oxford Dictionary describes a patent as "a government grant of exclusive privilege of making or selling a new invention ". And patent law can be termed a super- specialised branch that requires sound technical knowledge of patent issues with an innate understanding of the legal framework. A few relevant incidents will bring home the point why safeguarding Intellectual Property Rights (IPRs) is very important.
1. It is Dadi' s remedy to heal wounds, based on traditional knowledge handed down since millennia. And haldi and milk is her favourite when one has a hacking cough. So it came as a great shock to India when one fine morning in December 1993 the US-based University of Mississippi Medical Centre filed a patent application for the use of turmeric powder as a wound-healing agent. Shock turned to outrage when the patent was granted in March '95. In June '96, with the concurrence of the Ministry of Industry, India's Council of Scientific and Industrial Research (CSIR) sought re-examination of this patent since turmeric powder has been used as a wound- healing medicine in India since ancient times. After a protracted battle, India eventually wrested back the patent in August '97.
2. But luck has not been on India's side each time. The patent for a new strain of basmati rice and the medicinal properties of Neem went to American firms. As did the use of jamun, karela and gurnar as anti-diabetic agents. The properties of these plants have long been documented in ancient India for centuries. The patent was granted to a New Jersey-based firm, Cramack Research.
3. Now CSIR is gearing up for another battle; the product in question is 'picrolive', developed by the Central Drug Research Institute (CDRI). It is derived from the roots of picrorhiza lacuna, a herb found only in the higher reaches of the northwest Himalayas. Picrolive is a medicine for liver diseases caused by the hepatitis virus or excessive drinking.
India's proposed amendments to the Patent Act are in fulfilment of commitments under the World Trade Organisation-monitored Agreement on trade-related aspects of Trade Related Intellectual Property Rights (TRIPs). The government's decision to refer the bill to a select committee is appropriate for multiple reasons. Not the least is that the country will have another opportunity to look into the provisions of the, bill keeping in mind the interests of all concerned. Although the process of consultations was undergone when the legislation was finalised and the government held consultations with a number of organisations, there were some constituencies that were not involved. This can now be redressed.
The reconsideration of this legislation is necessary for at least two sets of issues. The first is the fact that the WTO was expected to complete a review in 1999 of the controversial provision in the Agreement of TRIPs viz. Article 27 – 3(b) that brings micro organisms and plant varieties under Intellectual Property protection. While microorganisms were to be included as patentable subject matter, plant varieties are to be protected through a soil-genesis legislation. The review of Article 27-3(b) assumes importance given that several developing countries had contested the inclusion of microorganisms as patentable subject matter, since they saw this more as the first step towards extending patent protection to all forms of life. It is not only in the developing countries that patenting life forms has attracted controversy; the European Union has been deliberating the issue for quite some time without much progress. A patent deal appeared to have been made in 1998 when the European Parliament adopted the biotechnology directive. Subsequently, the Netherlands opposed this directive vehemently.
Yet another area in the proposed changes that has been keenly debated pertains to the grant of compulsory licences. The instrument of compulsory licences has been an integral part of the patent system, used to prevent misuse of patent monopoly by the rights holder. Compulsory licences have been seen as leverage on the patentee to ensure that patents are 'worked', in other words, utilised for commercial production in countries granting patent, rights. This instrument has particular significant for developing countries since these countries can use it to ensure transfer of technology from the industrialised countries who seek patent protection in the formers' territories.
Three sets of opinions have been vocal on the issue of compulsory licences. The first view holds that the Agreement on TRIPs dilutes the provisions allowing the grant of compulsory licences, thus making it almost reluctant. The second view, maintains that the Agreement on TRIPs allows more effective use of compulsory licensing provisions, which include use against anti- competitive practices. A third view - originating among others from Medicine Sans Frontiers, winner of the Noble Prize in Medicine holds that it would be possible to use compulsory licences to address problems caused by patent monopolies in the case of essential drugs. The last position needs to be further examined on whether the Agreement on TRIPs allows for exceptions to be made for some sectors, in this case, the pharmaceutical sector.