Judicial review of Patent Act amendment sought

April 12th, 2008 - 8:26 pm ICT by admin  


Bangalore, April 12 (IANS) An Indian judge Saturday sought a review of the Indian Patent Act, 1970, which was amended in March 2005 to comply with the World Trade Organisation (WTO) regulations, terming it as unfair to the Indian people. “The 2005 amendment to the Patent Act calls for modification to salvage what was given away in excess to comply with the 10-year time frame given to India under the WTO regime,” Karnataka High Court judge Justice Shylendra Kumar said here.

“By amending the Act within the scope of the TRIPS (Trade Related aspects of Intellectual Property Rights) agreement, to which India is a signatory, the government has taken away the burden of protecting the interest of people,” he said.

Addressing teacher and student delegates at a legal symposium on ‘Challenges to India’s Patent Regime’, organised by the National Law School of India Review, Kumar said affected parties should prevail upon the Law Commission to review the amendment and change the law (if necessary) to protect the interests of trade and people, especially in healthcare.

“Though the role of judiciary is passive unlike the active role of the executive and legislative, it has to respond to the needs of the people, including their basic rights. Otherwise, the amended Act will have an adverse impact on the stakeholders, especially in the pharmaceutical sector,” Kumar pointed out.

As the 10-year (1995-2005) timeline of the WTO regime was nearing, the United Progressive Alliance (UPA) government got the amendment passed in March 2005 to replace an ordinance issued in December 2004 to replace a 2003 bill that lapsed due to the dissolution of parliament in early 2004 and subsequent general elections.

“The manner in which the amendment was passed without debate and clarifications to several objections raised by some members (of the Left parties), calls for a re-look at the entire legal process,” Kumar noted.

The immediate fallout of the amended Patent Act in the pharma sector was on bulk manufacturers, which were barred from supplying drugs for the poor at cheaper prices or export at higher rates.

“Some sections of the United Nations and developing countries, who were looking up to India to protect the interests of the South, felt betrayed when the Patent Act was amended without giving thought to its consequences.

“We have obliged WTO as a member more than what was required by the TRIPS agreement. Not only interests of the Indian people were sacrificed, but also of other developing countries for getting drugs under expensive licensing,” Kumar averred.

Law Commission of India chairman Justice A.R. Lakshmanan said the amended Patent Act could be subjected to judicial review in line with the provisions of the constitution.

“Yes. There is scope for reviewing it. But somebody has to challenge it in the court of law. If there is a lacuna in the Act, it has to be rectified. It is up to the affected parties to approach the courts,” Lakshmanan affirmed.

Many delegates felt more than inflationary pressure, prices of common drugs had shot up astronomically due to the amendment to the Patent Act.

“The Indian Patent Act protects only process patents and not product patents. The latter is an imposition on us because of being a WTO member. The Act needs to be re-visited for protecting our interests from drug cartels,” a delegate told IANS on the sidelines of the two-day symposium.

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