Declaration
It now seems certain that the UPA government will give effect to the
Third Amendment to the Patents Act through the promulgation of an
ordinance. The Amendment is ostensibly intended to introduce a
full-fledged product patent regime to make our patent legislation
compatible with TRIPs. The ultimate undoing of the Patents Act 1970 is
thus sought to be accomplished in a non-transparent manner without any
deliberations in the Parliament.
Such a complex legilsation of far reaching importance should have been
a subject matter of a thorough, public examination by an Independent
Commission. At the minimum, it should have been referred to the
deliberative bodies of the Parliament such as a Joint Parliamentary
Committee or the relevant Standing Committees of the Parliament for
their considered views and recommendations. Government seems to be
deliberately avoiding such a course of action.
What are the arguments put forward in justification of this
extraordinary attitude on the part of the Government and how valid are
they? It is stressed that the TRIPs obliges us to introduce the product
patent regime with effect from 1.1.2005 which leaves little time for any
other course. It is also being argued that the quota regime restraining
our textiles and garments exports will be coming to an end on 31.12.2004
under another Agreement of WTO viz.; Agreement on Textiles and Clothing
(ATC) and there is linkage between TRIPs and ATC agreements; in other
worlds, if we do not implement the requirement under TRIPs, the
developed countries (USA and EU, in particular) would go back on their
commitment to end quotas on textiles and garments exports.
Both the arguments are ill conceived and misleading. The WTO can not
circumscribe the sovereign right of our supreme legislative authority to
deliberate and decide upon such an important piece of legislation. The
dissolution of the earlier Lok Sabha, the General Elections that
followed and the short time at the disposal of the present Lok Sabha
since the inception of the UPA government are but normal features of the
functioning of our democratic polity which sometimes result in delayed
passing of some pieces of legislation. Moreover, it is always open to
introduce legal provisions to give retrospective effect to certain
amendments where necessary. Indeed in the case of the provisions
relating to the introduction of the exclusive marketing rights in our
Patents Act, such a course of action was followed in the recent past. In
the instant case, the option of prescribing 1.1.2005 as the "priority
date" for the proudct patents can also be used in order to ensure
compatibility with the TRIPs obligation. In this background, it is
unthinkable that any member of the WTO would suggest punitive action
against us for the alleged delay in complying with the dateline
prescribed by TRIPs. It is clear, therefore, that the bogey of 1.1.2005
is being raised to obfuscate the whole issue and preclude trasparent
deliberations on the issue involved.
As regards the so-called linkage of textiles and TRIPs, it should be
remembered that the abolition of the discriminatory regime of quotas on
textiles exports has been the major demand of developing countries in
GATT much before the WTO came into being. The restrictive and
discriminatory regime embodied in successive Multi Fibre Agreements
(MFAs) was recognised to be anti-GATT and, therefore, no "price" or
"quid pro quo" was ever contemplated in order to restore the application
of GATT law to textiles. The mandate of the Uruguay Round of
Negotiations finalised in September 1986 included the goal of "eventual
phase out of MFA", while the substantive matters relating to
Intellectual Property Protection (IPRs) figured in this mandate only as
late as April 1989. Most important, the developed countries have
recently tried their best to seek extension of the quota regime of ATC
beyond 31.12.2004 through some proxy moves but have failed and the
meeting of the WTO Council on Trade in Goods (CTG) held in October 2004
has categorically rejected any reopening of the question. It is,
therefore, misleading to suggest that some developed countries would
resort to unilateral action against us by re-imposing quotas on our
textile exports beyond 31.12.2004 only on the ground that we need a
little more time to fulfill our due process of democratic deliberations
on matters of far reaching importance in regard to the Amendment of the
Patents Act.
The last few years starting with the Seattle meeting of WTO in 1999
have witnessed a remarkable change in the world opinion on the issues
pertaining to IPRs, particularly where TRIPs regime threatens to
adversely affect the human rights in regard to health care. Academics
have questioned the rationale of TRIPs having been made part of the
world trade order and recognised the unequal nature of the bargain
foisted on the peoples of the third world in the process. Activists and
statesmen the world over have expressed concern about the anti-people
and pro-MNCs tilt to TRIPs. The spreading incidence of HIV-AIDS,
particularly in poor African countries, on the one hand, and the
tendency of the MNCs to profiteer out of the misery, on the other, has
stirred the conscience of the world and exposed the inherent dangers of
the IPR regimes constructed mainly to enhance the profits of MNCs. The
need to fully exploit the niches of flexibility available in TRIPs so as
to redress the tilt in favour of the MNCs has now been universally
recognised. In sharp contrast to this changing perception, the
Government is adoptng a simplistic, conformist approach of hurriedly
"aligning" our Patent Law to the coercive version of TRIPs.
The need of the hour is to follow a more creative and independent
approach, while still remaining within the broad contours of TRIPs. With
this end in view, a number of concrete suggestions have been submitted
to the Government. The amendments/modifications proposed related to the
vital matters of (i) definition and scope of patentability; (ii) the
subejct matter that is under the mandatory review provided in TRIPs;
(iii) eschewing retrospective protection to proudct patent rights not
visualised in TRIPs; (iv) ensuring continued availability, at affordable
prices, of medicines brought into the market with due approval of
Government during the transitional period between 1995 and 2005; (v) the
need to fully exploit the flexibility provided in TRIPs in regard to
issue of Compulsory Licenses and also the possibility of exports
thereunder; (vi)prescribing a salutary ceiling for payment of royalty to
the right holders to avoid escalation of costs of medicines etc. to be
produced under Compulsory Licenses; (vii) maintaining the provision in
the Act allowing "Pre-Grant Opposition" to avoid/minimize proliferation
of non-serious claims for patent rights; and finally, (viii) permitting
"parallel imports".
We regret that the response received from the Government is totally
disappointing. Not one of our proposals in the core areas mentioned
above seems to have found favour with the Government. It is a matter of
deep concern that the response of the Government shows little awareness
of the basic public interest issues involved. It seems to be following
the line of the previous NDA government without any fresh thinking or
reservation, whatsoever. It has remained oblivious of the sea change
that today characterizes the world opinion in regard to the unequal
global regime of TRIPs. What is worse, it is reinforcing the tilt in
favour of the MNCs by refusing to avail itself of the niches of
flexibility in TRIPs. Worst of all, it is doling out untenable and
misleading arguments to support its course of action.
In the circumstances, we reiterate our resolve to oppose the Third
Amendment Ordinance. We appeal to all members of the Parliament to
consider the momentous issues at stake and join hands to defeat the
proposed Amendment to the Patents Act when the ordinance would
eventually come up before the Parliament for approval.
We appeal to all right thinking sections of our people, the working
class and the intellectuals in particular, to come forward to launch the
following massive protest actions against the non-transparent and
anti-people stance adopted by Government.
Action Programme:
Sd/- S.P. Shukla
(Former Member Planning Commission)
Sd/- Dr. Vandana Shiva
(Research Foundation for Science, Technology and Ecology)
Sd/- B.K. Keyala
(National Working Groupb on Patents)
Sd/- Dinesh Abrol
(All India Peoples Science network)
Sd/- S.R. Pillai
(President, All India Kisan Sabha)
Sd/- P.K. Ganguly
(CITU)
Sd/- A.K. Basu
(TUCC)
Sd/- T.K. Mitra
(FMRAI)
Sd- A.K. Bhatnagar S
(AIIEA)
Sd/- Harish Sharma
(BEFI)
Sd/- M.K. Pandhe
President, CITU
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