Why One Must Oppose Patent Ordinance

Ardhendu Dakshi

THE patent system has a long history. In European countries it came into existence at different times, beginning from Italy in the 15th century and was then adopted by other countries like France and England, followed by America and Japan, etc. Initially, patent rights were awarded to individual inventors in recognition to their innovation and service to society as a whole. There were patents on designs or products of outstanding quality and specialty, on a specific artistic creation, and as a protection against fraud. The patent rights in that period went to the inventor more as a matter of honour than a great commercial benefit.

PATENTEE AND STATE

With the beginning of Industrial Revolution, the patent system became more common and the incidence of patents went up both in number and in areas of application. Patenting became important as simultaneous technological developments took place in many countries all over Europe.

This was also an era when granting patent rights also became a big source of revenue for the rulers who, in turn, used the power of the state to oversee that nobody dared to violate the patent rights or copy the products without authorisation. In the process, commercial interests of the patentee and the state became interlinked and both began to support each other to extract maximum financial benefits through the mechanism of patents.

Yet, throughout this period we find that the system of patents existed only in powerful states because enforcement of the patent laws was possible only by the state power, with a strong police and military force to support it. The patents granted by weak countries were meaningless. Enforcement needed an international surveillance system. Some systems developed later on in the colonies, but those were in the broad framework of the imperialist economy.

One basic fact in this regard is that gradually the patent system became another mechanism of exploitation of the poor countries by the more powerful. In the last decade of twentieth century, particularly after the breakdown of the Soviet Union, imperialist countries grabbed the issue of patents not because of their great love for international order and propriety but simply to impose their own laws over the weak countries to maximise their profit and exploitation. In recent times, we find many an erudite columnists singing praise for a patent system and pontificating on the need of adherence to international law. But the least that can be said is that they are out to create a smokescreen to hide the real issues.

LOGIC AND REALITY

The usual argument forwarded in favour of the patent system is that the inventor should get a “fair” return for the money, time and energy spent by her or him for the invention which comes to the service of mankind. This is an innocuous statement, not without logic. But this logic is oblivious of the fact that the present system under the WTO and TRIPS is trying to impose a uniform system in a world which is grossly unequal. On the other hand, the reality is that it is simply meaningless to usher into a uniform system with so many highs and lows in the world economic order. This system does not suit our purpose and our desire to provide more services to our people.

Just one instance is enough to exemplify the situation. The average price of good quality tea exported from India is roughly 2 US dollars per kg, while in New York only one cup of tea costs 2 dollars or even more. With this kind of “order,” India can never be able to benefit in any way by the patent regime as directed by the TRIPS and WTO.

Thus the recent ordinance has to be judged from this angle of economic reality. In this context, what is meant by a “fair” return to an inventor in the United States or Europe is bound to prove an unbearable burden for the people of India. This is particularly true for medicines, agricultural inputs and chemicals. So this system will invariably exclude a majority of our people from the benefits of science and technology.

“FAIR” TRUTH IS HORRIFYING

Again, “fair” return is a grossly misleading term. Normally, it should mean a complete recovery of the cost of research plus some profit as an incentive to undertake such an arduous task. In the first place, the American or European level of cost is so astronomically high that it would itself be a huge burden for us. In practice, however, the cost of research is invariably magnified manifold so as to extort from the helpless people of the developing world as much as possible in the name of recovery and at their sweet will. The pharma industry in the United States brings home hundreds of billions of dollars as profit every year and a part of it goes to the political management of that country. Together, they want not only to perpetuate the system but to tighten it further through dubious international agreements, like the one India signed in 1994. This is by no logic a fair system, but an imposition by the more powerful.

It is not a mystery that 97 per cent of the patents are held by advanced countries, and that 90 per cent of all the patents held by the advanced countries belong only to the giant multinational corporations (MNCs), most of whom are in the United States. The stranglehold of the MNCs can be grasped by their cycle of operation. They earn huge profit, spend a part of it in research work domestically and another part to buy up any work being done overseas. (Sometimes they even steal the work of others by dubious means.) Then, they spend the rest of the profit for the political managers of the United States and other advanced countries who protect their interests and perpetuate this cycle.

Blocking is another part of the MNCs’ dirty game. Professor Walden Bello of the University of Philippines informed the Bangkok meet on AIDS in 2004  that super profit is the only real interest of the pharma MNCs. Only 13 out of 1233 patented new drugs, meant for tropical diseases, were marketed between 1975 to 1997. The reason: these medicines do not earn as much profit as Viagra does. They do not allow others to produce the patented low cost drugs without paying huge royalties. India is thus set to fall into the firm grip of these MNCs, from where it will be extremely difficult to come out. This is a case of total monopoly on patents by the MNCs. We have to fight a most fierce battle against this trend with the support of the people.

THE SPINELESS GOVT OF INDIA

The government of the United States follows a system through which the big industrial and business houses take a leading role in formulating the domestic and international policies. Accordingly, the issues to be incorporated in the TRIPS agreement was sent to various business houses years in advance and the TRIPS document was practically drafted by them, particularly the pharma industry.

However, the government of India signed the TRIPS agreement in 1994 even without a discussion in the parliament. Successive governments at the centre failed to discuss the issues in detail and then an ordinance was promulgated on December 26, 2004, again without a discussion in the parliament which was in session only two days back. We are thus right in opposing this ordinance because the UPA government did not try to allot any time to discuss other options in the parliament.

The pro-imperialist parties are trying to play down the effects of the new patent regime by giving the people misleading information.

It is a fact that a major part of medicines in use today is out of patent regulations. But this relief is short lived as every 5 to 7 years a completely new set of medicines or medicines with a changed formula come to the market. Hereafter, all new medicines will charge royalty and the domestic production of generic (similar formula) medicines will have to stop. This will lead to a dramatic rise in the price of medicines in the future years.

HORRIFYING PROSPECTS

The claim that our domestic R&D will increase and India also can be a global player in future is a myth. Just watch; the MNCs will definitely jam the Indian patent office. There will be endless litigations, some of which will be dragged to American or European courts, involving astronomical expenditures. The MNCs have direct interest in killing India’s independent domestic pharma industry. First they killed the IDPL and now others will be the target if anyone is able to put up a real challenge. The ordinance puts our domestic industry to great disadvantages. Some worthies brush it off by saying that prices will increase only for 5 per cent of the medicines. But they are playing down the reality. Just two instances are sufficient to prove what it really means to patients who will have to buy the medicines of the 5 per cent group as at present. This 5 per cent will go on increasing with the passage of time.

Glivec, a medicine for cancer, cost Rs 1,100 per ampoule earlier; now it will cost Rs 22,000 per ampoule. For HIV patents, the cost of anti-retroviral drugs will jump from Rs 7,000 to nearly Rs 2 lakh for a one-year course. Not even one per cent of cancer or HIV patients can afford this, and they will have no other option but to die. So the life of the millions of such poor victims of this new patent law is expendable to the government of India.

And the unkindest cut is that Indian producers can export cheaper anti-HIV drugs to sub-Saharan Africa on a special permit, subject to international supervision, but cannot sell the same drug in India! This was decided in the WTO ministerial meeting in presence of representatives from India.

Immediately, about 39 important drugs, which were being produced by Indian companies, will be withdrawn from the market. Hereafter, these will be available only at international prices that are extremely high for us.

The other sector to be hard hit is agriculture. Revolutionary changes are taking place in genetic engineering and biotechnology. But today such developments or discoveries are in the hands of the MNCs. During the 1970s, the world saw Green Revolution in food production through high-yielding varieties of rice and wheat seeds, which solved the food problem in our country. The technology, the processes or even the actual foundation seeds were then transferred from country to country without paying any royalty. Today, however, everything is being patented and the MNCs are set to make huge profits by monopolising research and distribution, and also by selling terminator seeds that force the peasants to come again and again to the same MNCs and pay a hefty price every year. This is commercialisation of the worst kind.

Greed of the MNCs of the western world rules over all humanitarian considerations. That is why there is so much pressure on the developing countries, particularly India, to fall in line to suit their super profit motive. And our government has meekly surrendered, ignoring the fact that very soon our agriculture will face devastating consequences because of internal hike in costs and due to cheap imports from advanced countries. The whole essence of the WTO and TRIPS agreement is to enable the MNCs to garner higher and higher profits, by pushing a patent regime that is unbearable for us.

THE GRIM BATTLE AHEAD

The Indian Patent Act 1970 had, to a great extent, put the Indian people’s interests above those of the MNCs. That was why medicines were far cheaper in India than in Pakistan or Sri Lanka. In India only a process could be patented and not its product. This helped the Indian drug industry to grow and produce cheap medicines. But after the latest ordinance it is a product that will be patented, and the same product produced by cheaper processes will be banned. The result will be disastrous. There had always been heavy pressure on India to change the Patent Act of 1970, but we all along resisted it. The MNCs could not force India into submission as long as the Soviet Union was there.

Today the situation has changed. But the hard fact remains that India is a country of one billion plus population and is by far the biggest market for pharma, chemical, bio-technical and software products. We firmly believe that we cannot be pushed off if we resolutely stand against all the negative provisions of the patent ordinance. The working class of India will have to take the lead to educate the people and carry out the struggle from the front.