Enforcing the Patent Bargain

The article discusses the balance between enforcing intellectual property rights (IPRs) and public health obligations in India, with a focus on the TRIPS agreement. It highlights India's right to protect its national interest in public health under TRIPS, particularly against "evergreening patents" which can negatively impact market competition and public welfare.

TRIPS and Public Health Obligations

• TRIPS Agreement: While TRIPS mandates enforcing IPRs, it also provides countries the right to protect public health. 
• Evergreening Patents: These are patents that extend the monopoly of existing patents without significant improvement, particularly affecting the pharmaceutical and agricultural sectors. 
• Public Health Concerns: The prevention of evergreening patents ensures that public health measures are not seen as protectionism. 

Legal Provisions in the Patents Act

The article discusses several provisions in the Indian Patents Act that can be used to balance patent rights with public health needs:

• Section 47(4): Allows the government to import patented drugs for public use without the patentee's consent. 
  • Can be extended to non-governmental healthcare institutions through a gazette notification.
• Section 66: Authorizes the government to revoke patents if deemed mischievous or prejudicial to public interest. 
  • Encourages the examination of patents affecting public health and agriculture for potential evergreening or misuse.
• Section 92A: Facilitates compulsory licensing for manufacturing patented drugs for export to countries with inadequate pharmaceutical capabilities. 
• Section 102: Allows the government to acquire patents for public purposes, with compensation determined mutually or by a high court. 

Addressing Patent Abuse and Promoting Public Health

The article suggests using the Competition Act 2002 to counteract abuse of dominant positions by patentees. It calls for detailed patent policies as part of public health frameworks to address patent abuse, especially in light of international judgments highlighting such issues with Global North innovators.

Conclusion

While recognizing the complexity of the issue, including investment and trade considerations, the article advocates for a calibrated policy framework to respond to patent abuses. The next article will explore creating an ecosystem for innovation.