Patents - the restrictions - Grant of patents directly deprives millions of other citizens of their natural and fundamental rights to life, healthcare and trade in respect of the subject matter. Stronger the patent protection, greater will be the restraining effects on the national economy and development and growth of industry, trade, agriculture, as well as further research and technological development.
No 'quid pro quo' - Creation and grant of a statutory monopoly can therefore be justified only on 'quid pro quo' basis, i.e. on basis of the claimant making and disclosing an invention involving 'important technical advance of considerable economic significance' and satisfying the patentability criteria of novelty, inventive step and utility for the same.
Frivolous Patents
However, the actual experience shows inadequacies, inherent limitations and very serious consequences of patent protection. Apart from denial of rights to life and trade, grant of patents for false, frivolous, excessive or undeserved claims deny to the consumers, community and the nation, alternate sources of supplies of such products at fair prices and in sufficient quantities, while blocking up for long, large areas for further R&D.
Unscrupulous, irresponsible, fraudulent claims
Further enlargement of patent rights will encourage such dishonest persons to make more such claims. Many unscrupulous and irresponsible claimants are known to make false, frivolous, repetitive or excessive claims.
(i) Frivolous claims - Shocking but true it is, that patents have been granted in India for such common items, like dosai, green peas masala, pullao, and to MNC (Nestle) for tomato soup, pullao etc., and in USA - for turmeric powder, Karela, ritha, amla, stupid chocolate etc. which are obviously frivolous and pertains to matter long since known and used by millions of illiterate housewives in the remotest villages. It does not require an expert to say that these are not inventions or patentable subject matters.
(ii) 'Me-too' type drugs - US Senator Ms. Collins made pointed references to this aspect during recent Senate debate on S. 812: -
'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'.
By such means same patent claims are repeated and monopoly perpetuated for such common drugs, like Aspirin, Clonidine, Diltiazem, Norfloxacin etc. in public use since decades, long after the patents for the original drugs have expired;
These are not isolated cases to obviously undeserved dishonest claims having been patented. Thousands of such patents are being granted, not only in India, but even in USA, and other recognised patent examining countries, having elaborate patent offices, computerised information and examination systems with highly qualified and adequate staff, raising serious apprehensions about the credibility of the entire patent system.
The disastrous consequences of such weak claims can be visualized from the devastation caused by the patent protection granted in many countries for wide range formulations of AZT in 1987 and thereafter. Though AZT was admittedly known since 1964, and did not involve any inventive step, patents were granted in USA, UK and in many other countries, only for its newly discovered use for AIDS/HIV. Millions of poor, suffering from AIDS/HIV have died, and continue to die/suffer, untreated because of unconscionably high prices (30 times its costs) made possible by such patent grant for mere discovery not involving any invention.
Large area blocked for R&D & Industry by excessive claims.
Yet another problem is of excessive unsupported claims of millions of compounds on basis of invention of a few. Recently, it was reported that during 1983 to 1992 only 433 new drugs entered the world market, while the number of patent applications filed was about 5000 times more (though very few in India because of the 'weak' patent law). Of these only 33 drugs were introduced in India. In other words, when the world community accepted the onerous burden of examining and enforcing lakhs of patents, totally blocking further research and development in such a large area, the benefit derived by it was only in respect of about 400 new drugs. Can we justify the burden?
-- The author is a noted advocate