By N.C. De
December 26, 2004, may be incorporated in the history of India as one of the black day because two worst kinds of disastrous incidents occurred on this day. In one incident the people of our sea-coastal areas were lashed out causing severe loss of life and property; and the other brought imminent disaster in the socio-economic life of our countrymen. One is the omnivorous hungry demonic wave of tsunami and the other is Patent (Amendment) Ordinance.
The disastrous effect of Patent Ordinance, which was prepared under the dictate of WTO and pressure of multinational pharmaceutical companies and was promulgated bye-passing Parliament might be far-reaching in the socio-economic life of Indian people. Shri Sujit Kumar Das, President of Drug Action Forum, has predicted steep rise in medicine prices because buyers will have to face the market system of pre-independent days when sellers used to enjoy the monopoly of the market. Now the big MNCs will enjoy the Exclusive Marketing Rights over their newly patented drugs. Hence they will monopolies our pharmaceutical market for the next 20 years. During this period they will merchandise their products at their wits end and without any competitor and competition.
Our Commerce and Industry Minister Shri Kamal Nath said that with the new patent regime coming into effect from January 01, 2005 our people would have access to more advanced medicine, but can he give any guarantee for those medicines to be cheaply affordable to our people? No! For example: Antiretroviral therapy for AIDS is available in the market at the cost of Rs.5 lakh p.a. but statistics says that more than 90 per cent of our people living with HIV/AIDS cannot afford to buy it. Answering to this point, Shri Nath said that government has enough safeguards like compulsory licensing and price control and market forces and liberalized competition would also stabilize drug prices. But so far our past experience goes, in 1995-96 when price decontrol measure was taken under Drug Price Control Order (DPCO), 1995 most drug prices had shot up. Same thing happened in 2002-03. In every attempt for amendment of Patent Act, 1970 advantage was always given to the MNCs.
Let us see what was unique in the Patent Act, 1970. According to the President of Drug Action Forum, this Act played an important role in the progressive development and self-reliance of India'spharmaceutical industry. The basic aim of this Act was to protect public health and uplift the industry. Based on this aim and principle this condition was laid down in the Act that patent will be awarded only on processes and not on product and duration of the patent will be only for 5 years, that too for its production only in India so that patent owner cannot prolong their exclusive monopoly on the production of their medicines.
Antiretroviral therapy for AIDS is available in the market at the cost of Rs. 5 lakh p.a. but statistics says that more than 90 per cent of our people living with HIV/AIDS cannot afford to buy it.
On the eve of this Act, the price of Indian medicines were the highest in the world. And after the implementation of this Act, even the big foreign MNCs are being forced to decrease their drug prices tremendously in the face of stiff competition by the Indian companies. Now it is a very wellknown fact that generic drugs of Indian companies have earned the popularity of the common people of other countries too including America and Europe. This phenomenon has forced the big world bosses to de-escalate the drug prices. These big bosses used to capitalize out of AIDS drugs in African countries where most of AIDS victims live to die. By creating artificial scarcity they used to sell the drugs at an exorbitant prices. As a result of this, most of the poor people could not even afford to buy the drugs. Nearly 30 lakh die every year in Africa. In 2000 Indian company, CIPLA started sending drugs to Africa only at a price of $800. In a quick reaction, big MNCs like Pfizer, Merc, Eli lily reduced their price from $10,439 to only $727. CIPLA too reduced its price further to $350. Indian drugs today have entered the American and European markets too. Being comparatively cheap and effective they have become popular among their common people. As a result, sale of Pfizer drugs dropped heavily.
Indian Patent Act, 1970, passed by our Parliament after 15 years of deliberations on suitability and acceptability in our social condition as a developing country, provides for process patenting and not on product patenting. Western imperialist world faces the stumble block of our process patent system of marketing and hence they plotted to change this process patenting regime to product patenting through WTO/TRIPS Agreement, to which the then Congress government appended its signature on April 15, 1994.
So, as a member of WTO, India is committed to amend the Patent Act of 1970 in order to bring it in conformity with the provisions of TRIPS Agreement. During debate in the Rajya Sabha on the Patents (Amendment) Bill, 1998, Congress MP, Shri Kapil Sibal defended this Bill in a very casual manner, saying ?India is never known to default in its international obligation.? Quite naturally, the process of amending our Patent Laws, 1970, started from 1.1.1995. First ordinance was promulgated on December 31, 1994, to comply with the transitional period requirements. This ordinance lapsed due to objections raised in Parliament. Second Amendment Bill was introduced in December 2003 but it lapsed due to general election announced in March 2004. Now Congress-led Left-supported UPA government knowing that it cannot be passed in Parliament, resorted to promulgation of an ordinance on December 26, 2004.
Under this ordinance India enters into Product Patent Regime during which we will lose the reverse engineering system under Copyrights Rules, due to which our software and biotechnology industry will definitely be hit. By conferring the monopolistic Exclusive Marketing Rights (EMR) over to MNCs, their intellectual output will lead us to high cost economy of first world, viz. the price of commonly used Zintac in India is only Rs.7.16 and that of Ciprofloxacin is Rs.29, whereas its prices in America are Rs.730.60 and Rs.2,352.35 respectively. Production of foreign patented drugs in India will become illegal, Indian drug manufacturers will have to obtain permission from foreign patent holders under conditions imposed by them after paying hug royalty as demanded by them. Our industry will lose the freedom in R&D and marketing. It will become subservient to their foreign masters. Developing and Less Developed Countries of Asia, Africa and Latin America under the leadership of India fought heroically in Doha Ministerial Conference of WTO in 2001 against violation of international human rights laws. Under this pressure WTO had to buckle down and made a declaration confirming the freedom and flexibilities available for Right to Grant Compulsory Licences.
Quite unfortunately our political leaders in power and in opposition could not take the advantage of this Doha Declaration under so-called ?international obligations? as confessed by Kapil Sibal. They left much scope in the ordinance for mis-interpretation of laws pertaining to the patentability for which most of our drug companies may end up spending most of their time in courts and patent attorney firms.