Patent Primer

It8217;s a commitment that the Narasimha Rao government had made on April 15, 1994, when India joined other WTO members in signing the agreement on Trade Related Aspects of Intellectual Property Rights TRIPS.

Though TRIPS encompasses the entire range of intellectual property rights, its most far-reaching fallout is on patents, particularly those related to the mega pharmaceutical industry.

Given the complexity of the subject, TRIPS provided India with a 10-year transition period to make incremental amendments to its patent legislation of 1970. The amendments were meant to be made in three stages, with five-year intervals. The first was due on January 1, 1995, the second on January 1, 2000 and the third on January 1, 2005.

India has so far had a shoddy record in complying with these deadlines. The first amendment to the Patents Act was enacted four years late, that is, in 1999. The second was made two years late, in 2002. Thus, if India fails to come up with the third amendment by the New Year, it will be a hat trick of sorts.

THE failure to meet the earlier deadlines did not matter so much because those enactments mainly pertained to transitional provisions. But the violation of the forthcoming deadline would have serious repercussions as all countries 8212; other than specified 8216;8216;least developed8217;8217; countries 8212; are required to complete the transition by 2004-end.

It was for this reason that the Vajpayee government introduced the third Patents Amendment Bill in Parliament8217;s winter session of 2003, a whole year ahead of the deadline. But the Bill lapsed with the dissolution of the 13th Lok Sabha.

It fell on the Manmohan Singh government to re-introduce the Bill and push it through in both Houses. In the event, under the pressure of the Left parties, the UPA Government has failed to decide whether it should make any changes on its predecessor8217;s draft before taking it before Parliament.

Considering that there has been no sign of the Bill even in the current session of Parliament, it has come right down to the wire. With every passing day, the only option that seems to be left with the government is to promulgate an ordinance by this month-end. Or run the risk of sanctions from developed countries and WTO.

THIS situation has arisen entirely because of political reasons. Despite their involvement in drafting the CMP 8212; which clearly undertook that earlier commitments would be 8216;8216;adhered to8217;8217; 8212; the Left parties are now questioning the 8216;8216;sanctity8217;8217; of the TRIPS schedule.

They are in fact advocating that once the Bill is re-introduced, it should be referred to a select committee or standing committee for a detailed examination of its impact, especially on access to drugs and their prices.

This has put the government in a dilemma. If it re-introduces the Bill in the given circumstances, it will have to defy the Left and take the support of the NDA.

Hence, the government has given indications that its last resort would be the ordinance. But then that would only be a brief respite. Come Budget session and the Manmohan ministry would again face the predicament of choosing between the hostile Left and the supportive NDA in order to replace the ordinance with an Act.

The fact that the ordinance only postpones the problem is evident from the experience of 1994, when the Rao government had to grapple with the challenge of enacting the first Patent Amendment Bill. Ironically, both the Left and BJP had then dismissed TRIPS as a sellout.

So the Rao government promulgated an ordinance in December 1994 to meet the first deadline of TRIPS. But as the Left and BJP remained united in their opposition, Narasimha Rao never followed up that ordinance with an enactment. The 1994 Bill was enacted only after the BJP came to power and became more conscious of the country8217;s obligation to international treaties.

BESIDES the intransigence of the Left parties on the latest deadline, the Manmohan government itself has contributed to the problem in one major way: in its failure to improve on the NDA draft and make better use, as promised by the CMP, of the 8216;8216;flexibility8217;8217; offered by TRIPS to protect the Indian pharmaceutical industry.

For all his pronouncements, Commerce Minister Kamal Nath has not bothered to explain, for instance, why the proposed amendment was going beyond TRIPS and allowing patenting of new uses with old medicines.