Patent parley

THE confidence of the Narasimha Rao government to change the Indian Patent Act, 1970 -- despite the smooth and convinced air is had assumed for so long -- was shaken on March 22, when its proposed Patent (Amendment) Bill, 1995 was passed by the Lok Sabha by a wafer-thin majority of 6 votes. In keeping with its commitment to the World Trade Organisation (WTO), the Union government had earlier introduced the requisite changes in the country's patent laws by promulgating the Patent (Amendment) Ordinance on December 31, 1994. It was the government's Constitutional obligations to replace the ordinance by legislation within 6 weeks of the current session of the Parliament, i.e. Rajya Sabha (RS) had to pass it by March 26.

The ruling Congress party has only 91 members out of 236 in the rs. Several of the Cabinet members, including Finance Minister Manmohan Singh and the Prime Minister himself went shopping for support -- in a seller's market -- and found nothing. The strongest resistance came from the Bhartiya Janata Party (bjp), the Janata Dal (jd) and the Communist Party-Marxist (cpim). Even the marginal groups refused to support the bill or, at least, abstain from voting.

Jaswant Singh of the bjp, and the leader of the Opposition in the rs, had told the PM over a breakfast meeting at the latter's residence on March 24, "You have blatantly ignored our misgivings and warnings on gatt and the wto for all these years. How can you suddenly entreat us to change our views?"

Failing to muster support, the Congress party chose to defer its introduction in the rs, pending "consultations with all members of the House". But June 30 is the wto deadline for the government to come out with the reformed patent laws.

The current session of Parliament is the last before that date. But the Opposition remains unmoved regarding the provisions which facilitate the exclusive marketing rights (EMRS) for the new pharmaceutical and agricultural chemicals which are introduced on or after January 1.

Government spokespersons like the industry minister, M Arunachalam held that the EMRS are conditional to the provision that the firms introducing them must have applied for product patents in some other country as well. But the Opposition has countered that granting of an EMR is just as good as granting a product patent.

"By proposing such rights, the Union government has shown an unwillingness to use even the restricted leeway which the WTO allows the developing countries for shaping the patent laws according to their respective socio-political requirements", says Jaswant Singh. The BJP, JD and the CPIM are demanding that any new patent law make full use of Articles 7, 8 and 27 of the agreement on Trade Related Aspects of Intellectual Property (trips), accused to by all members of the WTO.

Article 8 of the trips accord allows the member countries to change their patent laws so as to "promote the public interest in sectors of vital importance to their socioeconomic and technological development, provided that such measures are consistent with the provisions of this agreement." Opposition mps, such as Saifuddin Choudhury of the CPIM, insist that they realise the implications of the rider in that clause, but want the government to combatively press for the advantages of the 1st part.

Some other concerns were expressed in the 2 rounds of discussions, held on March 31 and April 7. The jd argued for safeguards against unrestricted patenting of medicinal plants and drugs used in indigenous medical systems by the multinational pharmaceutical firms. Party leader Jaipal Reddy has pleaded that the "lawmakers must realise that 70 per cent of health care in the country is still accounted by indigenous systems". There is much talk already of a "country-wide campaign to prevent the patenting of traditional knowledge, Reddy revealed.

Opposition mps have also demanded that the government make them aware of the emerging body of legal principles around patents and intellectual protection in other countries as well. "Only this consideration will enable us to anticipate the pressures and pitfalls of adopting the wto regulations", says Choudhury. In its anxiety, the Union government has promised to satisfy all such concerns. Senior Congressmen realise that the task would be difficult. "We are facing a new level of awareness in the Opposition's hostility to the WTO", admits Home Minister Chavan.

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