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Draft Bill on patents -- `Post-Doha scenario factor missing in JPC report'

Pratap Ravindran

MUMBAI, Feb. 15

MR Narendra B. Zaveri, a senior advocate specialising in trademark and patent laws, has urged Parliamentarians studying the Patents (Second Amendment) Bill, 1999, to bear in mind that it is based on the Joint Parliamentary Committee (JPC) report which does not factor in the Doha Declaration. The draft Bill is currently being circulated among MPs and the concerned Ministries for their observations.

In a monograph titled `Doha to Delhi - A retreat on healthcare,' Mr Zaveri writes that the JPC report on the Patents (Second Amendment) Bill, 1999, presented to Parliament on December 14, 2001, i.e. within one month of the Doha Declaration, does not refer to, much less provide for, the post-Doha scenario.

He adds: "...The JPC appears to have apparently adopted the pre-Doha rigid view of TRIPS (Trade Related Aspects of Intellectual Property Rights), seriously compromising public interest and third party rights conferred by TRIPS itself.''

According to Mr Zaveri, the Doha declaration on TRIPS is an official and binding interpretation of the TRIPS agreement and clearly asserts the primacy of public health over commercial interests.

Further, it recognises the right of member nations to take all measures that are necessary to provide health care to their people, and places a moratorium on the raising of World Trade Organisation (WTO) disputes under TRIPS till the next Mnisterial conference to allow members to adopt health care measures "without anxiety''.

It may be recalled in this context that the Doha Declaration, in an official interpretation of TRIPS, had stated: "We recognise the gravity of the public health problems affecting many developing and least-developed countries, particularly those suffering from HIV/AIDS, tuberculosis, malaria and other epidemics.''

"We agree that the TRIPS agreement does not and should not prevent members from taking measures to protect public health. Accordingly, while reiterating our commitment to the TRIPS agreement, we affirm that the agreement can and should be interpreted and implemented in a manner supportive of WTO members' right to protect public health and, in particular, to promote access to medicines for all.''

"In this connection, we reaffirm the right of WTO members to use, to the full, the provisions in the TRIPS agreement which provide flexibility for this purpose.''

Unfortunately, Mr Zaveri asserts, the JPC appears to have adopted a pre-Doha, rigid view of TRIPS in formulating its draft proposals.

For instance, while the JPC has taken care in formulating the policies and principles to be followed for the consideration of applications for the grant of compulsory licences, it has defeated the underlying good intentions by prescribing "elaborate conditions and time-consuming procedures" in Sections 84, 87, 92 and 117A of the Bill. He adds: "The Bill proposals make no exception from procedural requirements of Section 87, even in cases of `national emergency' or `extreme urgency.' Even after the issue of the gazette notification and declaration by the Government of such situations, the proposed Sections 92 and 87 require the same procedure to be followed by the Controller of Patents with the right of appeal to the Appellate Board as per section 117A, involving delays of not less than two years ... when every day's delay adds to the death toll in thousands.''

In fact, according to Mr Zaveri, just about anybody can oppose the grant of compulsory licences under Section 87 of the draft Bill.

The pre-Doha orientation of the Bill assumes significance in the context of the fact that multinational pharmaceutical companies, which hold roughly 80 per cent of the drug patents currently in force globally, maintain prices at 20-40 times their costs. Obviously, Mr Zaveri says, the multinationals will "oppose and obstruct any use of the patented invention for production, sale or distribution of the patented product under compulsory licences, Government/third party use or parallel import provisions.

Given the circumstances, the advocate has urged a review not only of the pending Bill, but of the Patent Act, 1970, as the safeguards available under it will also fail in the face of the power "ruthlessly exercised" by the multinational patent holders.

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