A Patently Wrong Regime

Context: A critical analysis on the global patent regime, with a focus on the pharmaceutical sector.

Backgrounder on patent laws:

• A patent is a conferral by the state of an exclusive right to make, use and sell an inventive product or process. They are justified on three distinct grounds:
  • On the idea that people have something of a natural and moral right to claim control over their inventions;
  • On the utilitarian premise that exclusive licenses promote invention and therefore bene?t society as a whole;
  • On the belief that individuals must be allowed to bene?t from the fruits of their labour and merit, that when a person toils to produce an object, the toil and the object be­come inseparable.
• Source of constant tension: The idea of promoting invention and o?ering exclusive rights over medicines clashed with the state’s obligation of ensuring that every person has equal access to basic healthcare.
  • On October 2 last year, India had requested a temporary suspension of rules under the 1995 Agreement on Trade-­Related Aspects of Intellectual Property Rights (TRIPS).
  • But a small group of states — the U.S., the European Union, the U.K. and Canada among them — continues to block the move.
• Legal evolution in India:
  • The colonial-era laws explicitly allowed for pharmaceutical patents.
  • Justice N. Rajagopala Ayyangar committee in 1959 noted that access to drugs at a?ordable prices su?ered severely on account of the existing regime.
    • Foreign corporations used patents and injunctions secured from courts to suppress competition from Indian entities, and thus, medicines were priced at exorbitant rates.
  • The Patents Act, 1970, removed the monopolies over pharmaceutical drugs with protections offered only over claims to process.
    • As a result, life­saving drugs were made available to people at more affordable prices

Refuting the objection of the pharma sector

• In the context of Research and Development (R&D): The pharma sector argues that unless corporations are rewarded, they would be unable to spend on R&D.
  • However, technology involved in producing Moderna vaccine in the U.S. emanated out of basic research conducted by National Institutes of Health and other publicly funded universities.
  • Similarly, public money accounted for more than 97% of the funding towards the development of the Oxford/AstraZeneca vaccine.
• In the context of promoting innovation: the idea that patents are the only means available to promote innovation — has become something of a dogma.
  • Under the current system, those unfortunate enough to have the disease are forced to pay the price, and that means the very poor in the developing world are condemned to death.

Way forward

• A prize fund for medical research: A system that replaces patents with prizes could incentivise research, ensuring biases associated with monopolies are removed.
• Need for collective action for global justice: Pandemic has demonstrated how iniquitous the existing world order is, and it is time to move forward from the feudal calculus regime under the TRIPS.