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Patent Folly: Another Point of View

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, include:

Copyrights and Related Rights
· artistic and literary works
· computer programs
· integrated circuits
· informatics

Industry Property
· patents
· designs
· 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 subjects.

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 Progress?

***

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 down.

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 by.

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 and death."
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.

See also:
Who Owns Life?



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