We are indeed surprised to read the report appearing under the title "Top Indian pharma cos under threat to phase out 12 leading brands by 2005" in the issue of your journal dated January 30, 2003.
The information and the legal presumptions on which the report is based, have apparently been furnished by some irresponsible persons representing overseas Multinational Corporations who are interested in creating a fear psychosis and scare amongst generic manufacturers in India.
Your readers are aware that product patent system is required to be introduced in India effective from 1.1.2005. The process of examining the pending applications for their claims of novelty, inventiveness and industrial usefulness will be started by the Patent Office thereafter. Any applications found acceptable, will be subject to objections by interested parties who may dispute these claims. If the opposition proceedings are finally decided in favour of the applicants, patents may be granted. All such patents would be subject to grant of compulsory licences or government uses. All this is part of the Patent Act 1970 as recently amended and in total compliance with the TRIPS Agreement.
Your readers are also aware that the criteria of patentability in India are not as lax as in USA. Some of the facts brought out in the recent Report of US Federal Trade Commission, and referred in the US Senate during the debate on the Bill (S. 812) `Greater Access to Affordable Pharmaceuticals Act of 2002' in August 2002, are most shocking. The following extracts from the speech of Senator Ms. Collins are reproduced to bring out the true facts.
Senator - Collins:
'We heard in committee examples of the brand name manufacturer making extremely minor changes, such as in the color or the design of the packaging or the scoring of the pill that really did not indicate a different or improved use for the product but, rather, were devices intended to keep the generic off the market for a while longer'.
'For subsequent patents for which no automatic 30-month stay is available, a brand name company can still obtain a preliminary injunction based on merit to protect their patent rights and keep the generic product off the market if it is justified, if there truly is a legitimate patent issue. However, in too many cases we found there is not a legitimate patent issue. This is just an abuse and an exploitation of the loopholes in the current patent law'.
The adverse impact and frustration caused to consumers by such gross abuses of patent system are voiced by Senator Kennedy, thus:
Senator - Kennedy:
'That is as bad as the gimmickry we have seen from these corporate scoundrels who have made out like bandits, such as at Enron, getting billions of dollars and then giving short shrift to the workers. What is the difference if those corporations make out like bandits, and in this case, instead of the workers, it is the seniors and sick people who will suffer? I do not see a great deal of difference'.
Realizing that the Indian Patent Act 1970 contains provisions, which can be used by vigilant examiners and generic manufacturers to eliminate such undeserved claims, some MNCs have already started canvassing and pressing for US type - 'TRIPS-plus' patent regime - naming it as 'modern' or 'world class' patents - to be introduced in India. In fact, the information furnished to you reflects the MNCs doubts about realizing their dreams and high expectations of post 2005 successes. We are inquiring about the patent situation in respect of each of the 12 drugs referred to in the Report. In the meantime, our Members are treating the Report as a 'morning alarm' .
Your Journal is respected for its information and reporting. We feel that before publishing such a report, had the correct factual and legal position been verified with us, the resulting unnecessary confusion could have been avoided.
Dara B. Patel,
Secretary-General
IDMA, Mumbai