Text 3796, 90 rader
Skriven 2005-04-21 13:45:36 av Adam (1:379/45)
Ärende: No Indian s/w patents
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From: Adam <acompletemystery@somewhere.org>

http://pd.cpim.org/2005/0403/04032005_snd.htm

"Once we accept that the arena of forcing a change in TRIPS and WTO is Geneva
and not New Delhi, we then need to examine whether the Left did succeed in
extracting major concessions from the government. Some of the changes that the
Left wanted incidentally pertain to the 2002 Amendments to the Patents Act
introduced by the NDA and not the current ones. The key issues were limiting
what can be patented, protecting the export of drugs such as retrovirals to
Africa, the ability to compulsorily license drugs if and when required,
protecting the continued production of drugs for which the drug companies have
put in mailbox applications, etc. A glance at the changes that the government
has been forced to accept will make clear that the Left has won major gains on
all these counts. These are:

     *

       Restrictions on patentability to prevent the MNC tactics of
ever-greening of patents: It is well known that big pharma continues its patent
monopoly beyond 20 years by introducing minor modifications to the original
pharmaceutical entity. Various restrictions have now been put in the Patents
Act to prevent such attempts.
     *

       No software patenting: The Ordinance had provided for software
patenting for any computer program that has industrial application or is used
in combination with hardware. In the global struggle against software
patenting, the Indian Patents Act would have been a heavy blow. This has now
been deleted from the Act.
     *

       Restoration of pre-grant opposition to patents: The Ordinance had
shifted pre-grant opposition of patents to a post grant one. This would have
meant that patents can be challenged by others only after it has been granted,
in line with US patenting procedures, which routinely grant frivolous patents
such as on neem, haldi, etc. The original provisions of pre-grant opposition
has now been restored.
     *

       Export to other countries: Though the Ordinance had provided for
allowing exports of Patented drugs produced through compulsory license in the
country to developing countries with no manufacturing capacity, this clause had
been circumscribed by a provision that the importing country would have to
obtain a compulsory license. The amendments now clarify that the country
concerned would not require a compulsory license and can import from India
through a notification or if an export market for India already exists there.
     *

       Continued manufacture of mailbox drugs: Possibly the biggest
concern expressed was that after the passing of the Ordinance, drugs which are
being produced by Indian companies and for which patent applications are
pending in the mailbox, would have to go off the market. Instead, the Amended
Act has granted a virtual compulsory license for all the 7,500 drugs in the
mailbox that will allow their continued manufacture with paying a "reasonable
royalty".
     *

       Strengthening compulsory licensing provisions: There have been
widespread concerns that the process of grant of compulsory licenses to counter
the monopoly of patents may take too long and thus defeat the whole purpose for
the same. This has been addressed by the amendments by specifying that the
"reasonable" time period "shall not ordinarily exceed six months."

In addition, the government has also accepted the setting up a technical
committee to examine the issue of patenting of microorganisms and what
constitutes new entities under the Patents Act, after which more amendments can
be put in place. Perhaps more could have been extracted: there is after all
always scope for improvement. There are still major gaps that need to be
plugged. The compulsory licensing procedures need to be strengthened. But these
are not insignificant gains. Already, the European Commission is readying
itself to take India to the WTO Disputes Settlement on these issues. Similar
moves are afoot in the US as well. We would have to see what the global
activist community then does. Will they keep quiet on the moves of their
Governments or line up with India on this one? Or was their concern merely of
taking India out of WTO and not the larger one of taking TRIPS out of WTO?



We need a global movement against TRIPS now that there is widespread acceptance
that it has been disastrous for the poor. This demands that the focus comes
back on where it should have been from the beginning — the nature of the TRIPS
agreement and the completely unequal WTO regime. The most we can expect out of
an Indian Patents Act is the best of a bad TRIPS bargain. It is the bargain
itself that needs to be challenged."

Adam

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