Intellectual Property Rights in India

How IPR served as barrier to the right to access healthcare

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Patent Law, TRIPS

Mains level : Paper 3- Impact of IPR on right to access healthcare

Request for waiver

  •  Last year, India and South Africa requested WTO for a temporary suspension of rules under the 1995 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
  • A waiver was sought to the extent that the protections offered by TRIPS impinged on the containment and treatment of COVID-19. 
  • The request for a waiver has, since, found support from more than 100 nations.
  • But a small group of states — the U.S., the European Union, the U.K. and Canada among them — continues to block the move.
  • These countries have already secured the majority of available vaccines.
  • But for the rest of the world mass immunisation is a distant dream.

Grounds on which patent laws are justified

  • Patent laws are usually justified on three distinct grounds:
  • On the idea that people have something of a natural and moral right to claim control over their inventions.
  • On the utilitarian premise that exclusive licenses promote invention and therefore benefit society as a whole.
  • On the belief that individuals must be allowed to benefit from the fruits of their labour and merit.
  • These justifications have long been a matter of contest, especially in the application of claims of monopoly over pharmaceutical drugs and technologies.

Patent laws in India

  • In 1959, a committee chaired by Justice N. Rajagopala Ayyangar objected to monopolies on pharmaceutical drugs through colonial-era patent law.
  • The committee found that foreign corporations used patents to suppress competition from Indian entities, and thus, medicines were priced at exorbitant rates.
  • The committee suggested, and Parliament put this into law through the Patents Act, 1970, that monopolies over pharmaceutical drugs be altogether removed, with protections offered only over claims to processes.
  • This change in rule allowed generic manufacturers in India to grow. 

How TRIPS goes against the interest of developing countries

  • WTO has into its constitution a binding set of rules governing intellectual property.
  • Countries that fail to subscribe to the common laws prescribed by the WTO would be barred from entry into the global trading circuit.
  • It was believed that a threat of sanctions, to be enforced through a dispute resolution mechanism, would dissuade states from reneging on their promises.
  • With the advent in 1995 of the TRIPS agreement, this belief proved true.
  • The faults in this new world order became apparent when drugs that reduced AIDS deaths in developed nations were placed out of reach for the rest of the world.
  • It was only when Indian companies began to manufacture generic versions of these medicines as TRIPS hadn’t yet kicked in against India, that the prices came down.

 Argument in support of the patent regime

  • Two common arguments are made in response to objections against the prevailing patent regime.
  • One, that unless corporations are rewarded for their inventions, they would be unable to recoup amounts invested by them in research and development.
  • Two, without the right to monopolise production there will be no incentive to innovate.

Issues with the argument in support of patent regime

  • Big pharma has never been forthright about the quantum of monies funnelled by it into research and development.
  • Moderna vaccine in the U.S. emanated out of basic research conducted by the National Institutes of Health, a federal government agency, and other publicly funded universities and organisations. 
  • Similarly, public money accounted for more than 97% of the funding towards the development of the Oxford/AstraZeneca vaccine.
  •  Therefore, the claim that the removal of patents would somehow invade on a company’s ability to recoup costs is simply untrue.
  • The second objection — the idea that patents are the only means available to promote innovation — has become something of a dogma.
  • The economist Joseph Stiglitz is one of many who has proposed a prize fund for medical research in place of patents.

Consider the question “What are the issues with the patent regime under the TRIPS in the field of medicine?”

Conclusion

We cannot continue to persist with rules granting monopolies which place the right to access basic healthcare in a position of constant peril. In its present form, the TRIPS regime represents nothing but a new form of “feudal calculus”.

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