A patently wrong regime
NEWS Over the last few decades, intellectual property rules have served as a lethal barrier to the right to access healthcare.
- On October 2 last year, India and South Africa submitted a joint petition to the World Trade Organization (WTO), requesting a temporary suspension of rules under the 1995 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
- A waiver was sought to the extent that the protections offered by TRIPS impinged on the containment and treatment of COVID-19.
- The request for waiver has, since, found support from more than 100 nations.
- But a small group of states — the U.S., the European Union, the U.K. and Canada among them — continues to block the move.
- Their reluctance comes despite these countries having already secured the majority of available vaccines, with the stocks that they hold far exceeding the amounts necessary to inoculate the whole of their populations.
WHAT IS PATENT?
- A patent is a conferral by the state of an exclusive right to make, use and sell an inventive product or process.
- Patent laws are usually 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 benefit society as a whole;
- on the belief that individuals must be allowed to benefit from the fruits of their labour and merit, that when a person toils to produce an object, the toil and the object become inseparable.
- Each of these justifications has long been a matter of contest, especially in the application of claims of monopoly over pharmaceutical drugs and technologies.
CONCERNS IN NEW WORLD ORDER
- In India, the question of marrying the idea of promoting invention and offering exclusive rights over medicines on the one hand with the state’s obligation of ensuring that every person has equal access to basic healthcare on the other has been a source of constant tension.
- The colonial-era laws that the country inherited expressly allowed for pharmaceutical patents.
- But in 1959, a committee chaired by Justice N. Rajagopala Ayyangar objected to this on ethical grounds.
- The committee found that foreign corporations used patents, and injunctions secured from courts, to suppress competition from Indian entities, and thus, medicines were priced at exorbitant rates.
- Based on the recommendation of this committee, Parliament put into law through the Patents Act, 1970, that monopolies over pharmaceutical drugs be altogether removed, with protections offered only over claims to processes.
- This change in rule allowed generic manufacturers in India to grow.
- But with the advent in 1995 of the TRIPS agreement signatories were compelled to introduce intellectual property laws.
- The follies in this new world order became quickly apparent when drugs that reduced AIDS deaths in developed nations were placed out of reach for the rest of the world.
- It was only when Indian companies began to manufacture generic versions of these medicines, which was made possible because obligations under TRIPS hadn’t yet kicked in against India, that the prices came down. But lessons from that debacle remain unlearned.
ARGUMENTS IN FAVOUR OF PATENT REGIME
The two common arguments are made in response to objections against the prevailing patent regime.
- One, that unless corporations are rewarded for their inventions, they would be unable to recoup amounts invested by them in research and development.
- Two, that without the right to monopolise production there will be no incentive to innovate.
REFUTATION AGAINST SUCH ARGUMENTS
- Recently, it has been reported that the technology involved in producing the Moderna vaccine in the U.S. emanated out of basic research conducted by the National Institutes of Health, a federal government agency, and other publicly funded universities and organisations.
- Similarly, public money accounted for more than 97% of the funding towards the development of the Oxford/AstraZeneca vaccine.
- Also, it has been clear now that its research is usually driven towards diseases that afflict people in the developed world.
- Therefore, the claim that a removal of patents would somehow invade on a company’s ability to recoup costs is untrue.
The second objection:
- The idea that patents are the only means available to promote innovation has become something of a dogma.
- Instead other appealing alternatives such as, prize fund for medical research in place of patents have been mooted.
- A system that replaces patents with prizes will be “more efficient and more equitable”, in that incentives for research will flow from public funds while ensuring that the biases associated with monopolies are removed.
The pandemic has demonstrated to us just how iniquitous the existing world order is. We cannot continue to persist with rules granting monopolies which place the right to access basic healthcare in a position of constant peril. Hence, in its present form, the TRIPS regime represents nothing but a new form of “feudal calculus”.
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