The final draft of the Patent Bill is expected to be cleared by the Group of Ministers and will be forwarded to the Cabinet in a few days. Two key proposals made by the domestic drug industry to be incorporated in the new Patent Law are, may not figure as required in the final draft. The proposals are pertaining to patentability and pre grant opposition. There is no doubt that absence of these two provisions in the draft bill will be highly detrimental to the Indian consumer and the industry by giving monopoly rights of essential drugs to the MNCs under the new regime. It is important that the Bill clearly defined the patentability criteria and what is not patentable. Lack of clarity in this matter can not only lead to avoidable litigations but also to 'evergreening' of patents depriving consumers the access to cheap generics. Secondly, the GOM appears to be a bit hesitant to include provision for pre grant opposition, an important mechanism for the public to oppose frivolous patents. There are nearly 5,000 applications deposited in the mailbox by different companies, mostly MNCs. Everyone in the pharmaceutical industry knows that not more than 200 new drug molecules have been invented by the world pharmaceutical industry during last ten years. In the absence of a provision for pre grant opposition in the new patent law, patent controller can grant patents to all these applications. Such large scale granting of product patents can create utter confusion in the market. Post grant objections against such large number of patents are going to worsen the confusion under the present judicial system of this country.
The Group of Ministers and the cabinet have to provide for such vital safeguards in the draft Bill when it is not warranted otherwise under TRIPS agreement. There is no reason for the Union commerce minister to go beyond the TRIPS requirement affecting the availability of drugs in future. In this context, the move by the Affordable Medicines and treatment Campaign (ATMC) to complain against the Patent Bill with the Prime Minister and National Human Rights Commission needs to be taken note of. ATMC is of the view that the Bill in the present form goes against the fundamental right to life and health of Indians. ATMC further says that India is a party to International Covenant on Economic Social and Cultural Rights (ICESCR) and the country has an international obligation to protect people's right to health. Access to and availability of drugs are recognized as important components of right to health under this covenant. In short, ATMC is making a valid point when it says that implementation of product patent law should not result in the denial of rights guaranteed under the Constitution of India and ICESCR. The Prime minister's office needs to take note of this plea in the interest of Indian consumer and industry.