Patent Folly: Another Point of
By P. Sainath
By 2000 A.D. five million Indians are likely to be afflicted with
AIDS. A substantial percentage of those affected will be "from
the economically productive age group." These and other projections
are contained in WHO documents and a report on the AIDS Threat in
Asia prepared for the US government.
Very possibly, by that time, there could be a curative anti-HIV
(the virus leading to AIDS) drug or vaccine on the market. Millions
of lives, in that case, could be saved. But there's a catch. If
India were to amend its Patents Act of 1970 to extend product patents
to the fields of food, drugs and medicines (where, currently, only
process patents are obtainable), the drug or vaccine could be on
the market at a price way beyond the purchasing power of most of
those afflicted with the disease.
Amendments to the Indian Patents Act that would follow our acceptance
of certain proposals at GATT, or as demanded by the United States
(failing which India faces 'retaliatory' action against her exports
to the USA under the special 301 section of the US Omnibus Trade
and Competitiveness Act), would not only recognize the product patent
of the foreign company manufacturing the drug, they would also recognize
the company's right NOT to manufacture the drug in India despite
having taken out a patent on it (in India).
Instead, the company would enjoy a monopoly in importing the drug,
at a price it can manipulate. Thus, we could witness a situation
where Indian companies have the know-how, the means, the capacity
to produce the drug by a different and original process at a much
lower price, but are forbidden from doing so by their own courts
- at a time when millions of Indians could be dying of AIDS. But
that's only one implication.
Similarly, the introduction of patents in agriculture (at present
a non-patentable area in India) would have grave results for millions
of farmers and eventually drastically affect seed and food prices.
Yet, the millions whose lives would be fundamentally affected stand
totally outside the debate on these issues, largely unaware of even
the existence of such a debate. .
That's why the Indian School of Social Sciences, Bombay, believed
that the publication of a layperson's reader on the subject was
of vital importance.
With experts who can't tell a product patent from a ninja mutant
running riot across the newspaper pages, maybe we ought to begin
by saying that a patent is:
" . . a statutory privilege granted by the government to inventors,
and to other persons driving their rights from the inventor, for
a fixed period of years, to exclude other persons from manufacturing,
using or selling a patented product or from utilising a patented
method or process. At the expiration of the time for which the privilege
is granted, the patented invention is available to the general public
or, as it is sometimes put, falls into the 'public domain.'"
(As defined in the UN Secretary-General's report on The Role of
Patents in the Transfer of Technology to Developing Countries.)
If you have invented or are manufacturing something, a process
patent gives you the right to exclude others from using your process.
A product patent gives you the right to exclude others from making
the same product through any other process.
Pfizer, a multinational drug company, manufactures the anti-inflammatory
Piroxicam (brand name Feldene). In India, 10 tablets of this medicine
cost around 18 rupees. In the US, the same 10 tablets cost (the
equivalent of) over 520 rupees. The reason for this is that (in
India) Pfizer can only obtain a process patent for a drug or medicine
and no monopoly of importation. Other companies can manufacture
the same drug by a different process, one that does not duplicate
or infringe on Pfizer's process. In the US, armed with a product
patent and other accompanying rights, Pfizer has a total monopoly.
Intellectual Property Rights (IPRs), as today promoted,
Copyrights and Related Rights
· artistic and literary works
· computer programs
· integrated circuits
· utility models
· inventors' certificates
· trademarks and similar rights.
These rights are statutorily recognized in India and elsewhere.
Actually, intellectual property strictly meant copyright for literary
and artistic works and related rights - which are governed by the
Berne Convention of 1886 (revised in 1948) and the later Geneva
Convention of Universal Copyright (1952). Over time, especially
over the last few years, the scope of the term Intellectual Property
Rights has been consistently widened to bring in a vast array of
Patents are the dominant form of IPRs. Today, in many countries,
patenting extends to plants, animals and other life forms, seeds,
mathematical equations and so on. If India were to surrender at
GATT, (she) would be saddled with Plant Breeders' Rights, a slightly
milder form of monopoly rights, but one with significant implications
for this country - increased prices of seeds, greater domination
of agriculture by multinational corporations, a loss of biogenetic
diversity and a poor and retarded diffusion of new plant varieties.
Earlier, as Dr. Usha Menon of the National Institute for Science,
Technology and Development Studies has pointed out, it was always
maintained that, while inventions could be patented, scientific
discoveries could not. But now, since several scientific discoveries
can also be quickly applied industrially, patents are being granted
for many of them. This happens even when many of these do not require
the incentives of patents. Patents are now being used to privatize
knowledge and resources that would otherwise be available to the
public or to the scientific community.
The monopoly that the whole regime helps the multinational corporations
establish actually puts a brake on scientific freedom and research.
Should we be calling them IPR or RIP--Restrictions on Intellectual
The origins of patenting go back a long way. In ancient Greece
around the 7th century B.C., a king granted to cooks a monopoly
for one year to exploit new recipes. The first established patent
law came over 2,000 years later, in the city state of Venice, known
for the excellence of its artisans and craftsmen.
The artisans and the goldsmiths and jewellers found that their
apprentices soon became competitors, who often outshone them in
skills and excellence. The masters were outraged. After much dispute,
a patent law was established in 1474 and enforced on the junior
apprentices to ensure that they could open their own workshops only
after 14 to 21 years of serving in their master's establishments.
Genuine competition was thus stifled to favour the status quo. .
With the advent of modern industry and competition, the struggle
for monopoly grew fierce and this finds reflection in different
laws and conventions which, over a period of several decades since
the late 19th century, steadily moved away from balancing patenting
rights and public interest. Instead, they have moved ever more firmly
in the direction of protecting private monopoly and legitimizing
destruction of public rights. . .
A chemist in a lab coming up with a new substance, for which he
claims exclusivity has actually drawn upon centuries of prior knowledge,
on the known laws of chemistry discovered and organized by others.
A mathematician establishing an advanced equation is able to do
so because somebody a few thousands years ago worked out that two
plus two equals four.
If Euclid had not worked out the principles of geometry, if Newton
had not discovered the laws of gravity, if Galileo, the Italian
astronomer, had not made his discoveries, perhaps much of the research
in those and related areas would been retarded or greatly slowed
The fact that others had access to the freely available results
of these and a million other scientists, meant that science as a
whole went forward. Thus, every scientist is drawing something from
the common pool of human knowledge, from the shared heritage of
the human race, from the public domain. Thus, the need for balancing
the interest of the inventor with the public interest.
A funny thing happened to the free flow of information.
It tripped on the threshold of science and technology.
Right through the 1970s and 1980s, great battles were fought over
"the free flow of information" and, indeed, "freedom
of information as an inalienable human right." Anyone who spoke
of the realities of information, or suggested a "free and balanced
flow" or anything at all that did not seem to conform to this
principle was obviously the agent of a tinpot dictator.
Presumably, the freedom of information and its free flow implies
an equal degree of such freedom extending to all branches of information.
In practice, however, these concepts were never once even allowed
to be discussed, by the very proponents of free flow, in relation
to scientific and technological information.
In classical Western media and information theology, any debate
involving free flow versus restrictions of any sort must inevitably
end in the resounding triumph of free flow. In reality, its Western,
primarily American, proponents have been guilty of building the
biggest, the most rigid, the most sophisticated and least-known
or understood structures of censorship in the world-Intellectual
Property Rights. . .
Censorship really means, in media theology, state intervention
in the media to kill information distasteful to governments (even
the suggestion that this could extend to proprietors of media outlets
killing information distasteful to themselves is met with resistance).
Censorship, in the conventional wisdom, means state control over
and restrictions on information.
Political censorship has indeed caused human deaths (surely the
most extreme consequence of censorship) as when the USA's withholding
of information on radioactivity in Hiroshima (and an official claim
that it was not harmful!) caused much damage to those approaching
that town after the atomic bombing. Yet, instances of direct links
between political censorship of information and deaths (usually
linked to silence about nuclear radiation) are not easy to come
But, there is no dearth of evidence linking innumerable deaths
in the developing nations to the lack of or inability to purchase
vital, life-saving drugs. It was because of the problems associated
with this that many nations refused to recognize patents in the
field of drugs, medicines and food. The late Prime Minister Indira
Gandhi told the World Health Assembly at Geneva in May 1982: "The
idea of a better-ordered world is one in which medical discoveries
will be free of patents and there will be no profiteering from life
Today, (India faces) a situation at GATT (and under the threat of
Special 301), where we are asked to legitimize that "profiteering
from life and death" and structure it into our own laws, to
the detriment of our own people. At GATT, punishments like retaliation
and 'cross-retaliation' (a country fighting you over perceived infringements
of intellectual property can hit you in the field of commodity trade)-
a means of terrorism in trade - are being institutionalized. . .
It is essential that India take a firm stand at GATT, taking an
open position on deliberations both at home and in Geneva.
A major demand made of India is for extension of the term for all
patents to 20 years. At present, all patents in India expire after
14 years, except those relating to food, medicines, drugs and substances
produced by chemical process. In these fields, the patents have
a term of seven years from the date of application or five years
from the date of sealing the patent-whichever is earlier.
Apart from the fact that this would mean that several of the concerned
technologies would be obsolete by the time they become available
to use, there are many things that drug MNCs do which ensure their
continued control over products even at the end of those 20 years
(or, as in the case of the USA to date, 17 years.)
Aparna Viswanathan has shown from officials findings of the US
Food and Drug Administration (FDA) that "over 85 per cent of
the 'new drugs' introduced over the 1980s duplicate existing drugs."
Most of these newly approved products during the past decade were,
in fact, "me too" drugs, drugs which are little more than
slightly modified versions of existing ones. Thus the companies
obtained a patent "by modifying an existing drug, either by
changing a molecule or by combining one substance with another."
Ms Viswanathan sums it up with an appropriate quote from the former
medical director of the company Squibb, Dr. Dale Console: "The
pharmaceutical industry is unique in that it can make exploitation
appear a noble purpose."
Then, there's the problem of brand loyalties rising from trademarks
which continue to dominate the market long after the expiry of the
patent. For instance, points out Ms Viswanathan, Darvon (generic
drug: Propoxyphene) held 90 per cent of the market, even seven years
after the expiry of its patent. The development of brand loyalties
with the use of heavy advertising has led even physicians to identify
drugs primarily by their brand names. Consequently, though generic
equivalents of the drug are available at relatively cheaper prices,
it is the brand names that continue to hold the market.
Lastly, there's the headache of frivolous patents-patents which
are filed by parties who have no intention of manufacturing the
product in the country, but do so simply to pre-empt local industry
from producing it. A study in the 1970s showed that of 2,534 patents
for pharmaceuticals in Colombia, just 10, or about 0.3 per cent,
were actually used for protection.
P. Sainath is a journalist with a special interest in intellectual
property issues. This article is excerpted from a longer booklet.
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