Action Committee Against Amendment of the Indian Patents Act

[Guest guest]

Joint Action Committee Against Amendment of the Indian Patents Act

Declaration

It now seems certain that the UPA government will give effect to the

Third Amendment to the Patents Act through the promulgation of an

ordinance. The Amendment is ostensibly intended to introduce a

full-fledged product patent regime to make our patent legislation

compatible with TRIPs. The ultimate undoing of the Patents Act 1970

is thus sought to be accomplished in a non-transparent manner

without any deliberations in the Parliament.

Such a complex legilsation of far reaching importance should have

been a subject matter of a thorough, public examination by an

Independent Commission. At the minimum, it should have been referred

to the deliberative bodies of the Parliament such as a Joint

Parliamentary Committee or the relevant Standing Committees of the

Parliament for their considered views and recommendations.

Government seems to be deliberately avoiding such a course of action.

What are the arguments put forward in justification of this

extraordinary attitude on the part of the Government and how valid

are they? It is stressed that the TRIPs obliges us to introduce the

product patent regime with effect from 1.1.2005 which leaves little

time for any other course. It is also being argued that the quota

regime restraining our textiles and garments exports will be coming

to an end on 31.12.2004 under another Agreement of WTO viz.;

Agreement on Textiles and Clothing (ATC) and there is linkage

between TRIPs and ATC agreements; in other worlds, if we do not

implement the requirement under TRIPs, the developed countries (USA

and EU, in particular) would go back on their commitment to end

quotas on textiles and garments exports.

Both the arguments are ill conceived and misleading. The WTO can not

circumscribe the sovereign right of our supreme legislative

authority to deliberate and decide upon such an important piece of

legislation. The dissolution of the earlier Lok Sabha, the General

Elections that followed and the short time at the disposal of the

present Lok Sabha since the inception of the UPA government are but

normal features of the functioning of our democratic polity which

sometimes result in delayed passing of some pieces of legislation.

Moreover, it is always open to introduce legal provisions to give

retrospective effect to certain amendments where necessary. Indeed

in the case of the provisions relating to the introduction of the

exclusive marketing rights in our Patents Act, such a course of

action was followed in the recent past.

In the instant case, the option of prescribing 1.1.2005 as

the " priority date " for the proudct patents can also be used in

order to ensure compatibility with the TRIPs obligation. In this

background, it is unthinkable that any member of the WTO would

suggest punitive action against us for the alleged delay in

complying with the dateline prescribed by TRIPs. It is clear,

therefore, that the bogey of 1.1.2005 is being raised to obfuscate

the whole issue and preclude trasparent deliberations on the issue

involved.

As regards the so-called linkage of textiles and TRIPs, it should be

remembered that the abolition of the discriminatory regime of quotas

on textiles exports has been the major demand of developing

countries in GATT much before the WTO came into being.

The restrictive and discriminatory regime embodied in successive

Multi Fibre Agreements (MFAs) was recognised to be anti-GATT and,

therefore, no " price " or " quid pro quo " was ever contemplated in

order to restore the application of GATT law to textiles.

The mandate of the Uruguay Round of Negotiations finalised in

September 1986 included the goal of " eventual phase out of MFA " ,

while the substantive matters relating to Intellectual Property

Protection (IPRs) figured in this mandate only as late as April

1989.

Most important, the developed countries have recently tried their

best to seek extension of the quota regime of ATC beyond 31.12.2004

through some proxy moves but have failed and the meeting of the WTO

Council on Trade in Goods (CTG) held in October 2004 has

categorically rejected any reopening of the question.

It is, therefore, misleading to suggest that some developed

countries would resort to unilateral action against us by re-

imposing quotas on our textile exports beyond 31.12.2004 only on the

ground that we need a little more time to fulfill our due process of

democratic deliberations on matters of far reaching importance in

regard to the Amendment of the Patents Act.

The last few years starting with the Seattle meeting of WTO in 1999

have witnessed a remarkable change in the world opinion on the issues

pertaining to IPRs, particularly where TRIPs regime threatens to

adversely affect the human rights in regard to health care.

Academics have questioned the rationale of TRIPs having been made

part of the world trade order and recognised the unequal nature of

the bargain foisted on the peoples of the third world in the

process.

Activists and statesmen the world over have expressed concern about

the anti-people and pro-MNCs tilt to TRIPs. The spreading incidence

of HIV-AIDS, particularly in poor African countries, on the one

hand, and the tendency of the MNCs to profiteer out of the misery,

on the other, has stirred the conscience of the world and exposed

the inherent dangers of the IPR regimes constructed mainly to

enhance the profits of MNCs.

The need to fully exploit the niches of flexibility available in

TRIPs so as to redress the tilt in favour of the MNCs has now been

universally recognised. In sharp contrast to this changing

perception, the Government is adoptng a simplistic, conformist

approach of hurriedly " aligning " our Patent Law to the coercive

version of TRIPs.

The need of the hour is to follow a more creative and independent

approach, while still remaining within the broad contours of TRIPs.

With this end in view, a number of concrete suggestions have been

submitted to the Government. The amendments/modifications proposed

related to the vital matters of

(i) definition and scope of patentability;

(ii) the subejct matter that is under the mandatory review provided

in TRIPs;

(iii) eschewing retrospective protection to proudct patent rights not

visualised in TRIPs;

iv) ensuring continued availability, at affordable prices, of

medicines brought into the market with due approval of Government

during the transitional period between 1995 and 2005;

(v) the need to fully exploit the flexibility provided in TRIPs in

regard to issue of Compulsory Licenses and also the possibility of

exports thereunder;

(vi)prescribing a salutary ceiling for payment of royalty to the

right holders to avoid escalation of costs of medicines etc. to be

produced under Compulsory Licenses;

(vii) maintaining the provision in the Act allowing " Pre-Grant

Opposition " to avoid/minimize proliferation of non-serious claims

for patent rights; and finally,

(viii) permitting " parallel imports " .

We regret that the response received from the Government is totally

disappointing. Not one of our proposals in the core areas mentioned

above seems to have found favour with the Government. It is a matter

of deep concern that the response of the Government shows little

awareness of the basic public interest issues involved.

It seems to be following the line of the previous NDA government

without any fresh thinking or reservation, whatsoever. It has

remained oblivious of the sea change that today characterizes the

world opinion in regard to the unequal global regime of TRIPs.

What is worse, it is reinforcing the tilt in favour of the MNCs by

refusing to avail itself of the niches of flexibility in TRIPs.

Worst of all, it is doling out untenable and misleading arguments to

support its course of action.

In the circumstances, we reiterate our resolve to oppose the Third

Amendment Ordinance. We appeal to all members of the Parliament to

consider the momentous issues at stake and join hands to defeat the

proposed Amendment to the Patents Act when the ordinance would

eventually come up before the Parliament for approval.

We appeal to all right thinking sections of our people, the working

class and the intellectuals in particular, to come forward to launch

the following massive protest actions against the non-transparent and

anti-people stance adopted by Government.

Action Programme:

1. Immediate joint demonstration at Delhi.

2. Joint Conventions at Kolkata, Mumbai, Chennai, Pune, Bangalore,

Hyderabad, Bhopal, Punjab and other places. These Conventions should

be completed by the end of January, 2005.

3. A Central Demonstration at Delhi (March to Parliament) on the

second day of the opening of the Budget Session in February, 2005.

Sd/- S.P. Shukla

(Former Member Planning Commission)

Sd/- Dr. Vandana Shiva

(Research Foundation for Science, Technology and Ecology)

Sd/- B.K. Keyala

(National Working Groupb on Patents)

Sd/- Dinesh Abrol

(All India Peoples Science network)

Sd/- S.R. Pillai

(President, All India Kisan Sabha)

Sd/- P.K. Ganguly

(CITU)

Sd/- A.K. Basu

(TUCC)

Sd/- T.K. Mitra

(FMRAI)

Sd- A.K. Bhatnagar S

(AIIEA)

Sd/- Harish Sharma

(BEFI)

Sd/- M.K. Pandhe

President, CITU

Released to the Press

Joint Action Committee Against Amendment of the Indian Patents Act

Report of the meeting held at the CITU Central Office, 13-A, Rouse

Avenue (near ITO), New Delhi on 21.12.04.

The meeting was presided over by Com. Dr. M.K. Pandhe and attended by

the following:

M.K. Pandhe, President, CITU; Dr. Vandana Shiva (Research Foundation

for Science, Technology and Ecology); Mohanlal, General Secretary,

Delhi State CITU, Sudhir Kumar, President, Delhi State CITU; S.

Ramachandran Pillai, President, All India Kisan Sabha; P.K. Ganguly

(CITU); Basudev Acharya, MP, Lok Sabha; S.P. Shukla (Former Member,

Planning Commission); B.K. Keayla (National Working Group on

Patents); T.K. Mitra (FMRAI); A.K. Basu (TUCC); A.K. Bhatnagar

(AIIEA); D.K. Abrol (AIPSN/DSF); Harish Sharma (BEFI).

The meeting discussed about the proposed Third Patents (Amendment)

Bill to allow product patenting. P.K. Ganguly gave the

introductions, Com. Pandhe briefed about the purpose of the meeting,

to prepare a joint front to oppose the amendment. The Govt. was

likely to promulgate an ordinance.

Sri SP Shukla explained about the situation and the danger of the

amendment. Two amendments were earlier made. The third amendment

would formally allow product patenting.

He exposed the misleading propaganda being made by the Govt. by

linking it to the Agreement on Textiles which would phase out the

Multi Fibre Agreement by 31st December, 2004 removing the quota

system for exports by the developing countries. He further exposed

the bogey of amending the Patents Act by 1.1.05. He suggested for

joint movements and opposition in Parliament by the MPs, so that the

bill cannot get through when brought in Parliament.

Dr. Vandana Shiva pointed out that not only pharmaceuticals, the

amendment of the Patent Act would severely damage agriculture. She

urged that joint movements by all mass organisations including the

peasantry, agricultural labour, students, youth and women are

necessary.

Sri B.K. Keayle briefed about the activities of the National Working

Group on Patents and the joint struggles ever since the Govt. started

amending the Patents Act.

Com. Basudev Acharya said that the Govt. had already planned to

promulgate the ordinance after the current session ended on 23rd

December. He assured to mobilise MPs to oppose the Bill when it

comes in the Parliament.

Com. S.R. Pillai informed about the ceaseless efforts being made by

the left to stall the move taken by the Govt. to amend the Bill.

Despite delegations meeting the Prime Minister, the Govt. remained

insensitive to the opposition. He suggested several action

programmes on an all India level to oppose the amendment.

Dinesh Abrol of All India Peoples Science Net Work suggested

formation of the Joint Action Committee to launch united movement

against the amendment.

Delhi State Committee of CITU suggested immediate demonstration at

Delhi if the ordinance is promulgated and assured to mobilise the

workers.

Decisions:

The meeting unanimously decided the following action programmes:

1. A demonstration will be organized at Delhi immediately after the

promulgation of the Ordinance, with a press conference.

2. Joint Conventions to be organized at Kolkata, Mumbai, Pune,

Chennai,

Hyderabad, Bhopal, Bangalore, Punjab and other places. All these

Conventions to be completed by January end.

3. The Conventions to mobilise for a central demonstration (March to

Parliament) at Delhi on the second day of the opening of the Budget

Session (in February, 2005).

4. Sri SP Shukla was given the responsibility to bring out a small

booklet on the Patents Act.

5. A Joint Action Committee was constituted with P.K. Ganguly as the

Convenor.

(P.K. Ganguly)

Convenor

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