View of TRIPS AGREEMENT: AN INDIAN PERSPECTIVE OF PHARMACEUTICAL PATENT

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ACCENT JOURNAL OF ECONOMICS ECOLOGY & ENGINEERING Available Online: www.ajeee.co.in Vol.03, Issue 01, January 2018, ISSN -2456-1037 (INTERNATIONAL JOURNAL) UGC APPROVED NO. 48767

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TRIPS AGREEMENT: AN INDIAN PERSPECTIVE OF PHARMACEUTICAL PATENT

PROFESSOR (DR.) RK PATANI AND ASHUTOSH KUMAR SRIVASTAVA Intellectual property right is the right

given to the intellectual creativity of an individual .The inventor will always desire to recoup his investment. Unless there is an opportunity to withhold the investment, there will be no incentive to invest in creative effort. In every intellectual property right different interests are involved, like public and privet interest. The privet demands access to the maximum economic advantages out of his invention while the public desire access to the maximum possible inventions at the cheapest price. The intellectual property right is an attempt to balance the conflicting interests of public on one end and the privet on other end. A patent gives the holder an exclusive right to use and license for a certain period. It restricts those who do not have right. It prevents the other from making, using, selling, or importing the patented products. The jurisprudential aspect of patent right is, It is not a positive right, but a negative right which enables the patent holder to prevent a third party from making or using the product.

Patented pharmaceuticals Drugs are being rigorously tested and approval before they can be put on the market.

The effect of the grant of patent are that the patented invention may not be exploited in the country by persons other then the owner of the patent unless the owner agrees to such exploitation. Right to take action against any person exploiting the patented invention in the country without his consent permits him to derive the benefits of the invention. It is reward for his intellectual effort and compensation for the expenses incurred in research and development of the invention. A patent will be granted only if the disclosure of the invention in the patent application is enabling. A patent specification is address to those likely to have a practical interest in the subject matter of the invention. Such persons are those with practical knowledge and experience of the third kind of work in which invention is intended to be used.

If a patentee describes a new non

Obvious compound which has a beneficial effect and describes a way by which it can be made then he is entitled to a patent for the compound. Justice kitchin of England and wales High Court has recently rendered a judgment in which the patent was revoked on the ground that the claim was too broad when the patent claimed not only the novel way of making the more active enantiomer of citalopram , but effectively all way of making it. The court concludes that the inventive step taken by the inventor of the patent was not deciding to separate the enantiomer of citalopram but finding a way it could be done. The first person to find a way of achieving an obviously desirable goal is not permitted to monopolies every other way of doing so. Even if an invention satisfies these statutory criteria, the invention will not be entitle to protection if it falls within the category of non-patentable subject matter Patent system offers a standard level of protection generating the resources required to finance R & D and to protect investments. Patent right help inventor to recoup his investment and are tool to technical progress. Instead of significant scientific and technological developments, there are continuing unacceptable inequalities in the health status of people as between developed and developing countries as well as within the developing countries. prior to the trade related aspects of intellectual property Rights (TRIPS) Agreement, intellectual property rights was largely an unregulated area which are minimum protected and administered by world intellectual property organization and also by Paris convention. Pre-Uruguay round intellectual property regimes were largely left to national discretion whereby there was divergence in laws between the developed and developing country as per their national economic conditions. efforts to make medical technology work better for developing countries and for poor people has focused on the impact on the expansion of patent protection to pharmaceutical

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2 product and process under the TRIPS.

TRIPS are an international agreement and establish minimum standards that require member countries to prove some intellectual property protection in domestic law. the main rule relating to patentability under the TRIPS agreement is that patents shall be available for any kind of invention ,whether a product or process ,in all fields of technology ,provided the inventions meet the criteria for the patentability namely ,novelty inventive step and industrial applicability .In addition members are required to make grant of a patent dependent on adequate disclosure of the invention and may require information on the best mode for carrying it out. Enabling disclosure is an important element as it makes important technical information publicly available .This can be utilized by other advancing technology in the area. It also ensures that, after the expiry of the patent term, the invention falls into the public domain. Without the technical information behind an invention, after the expiry of the patent protection, others will not be able to exploit it .patent protection has to last at least 20 years from the date the patent application filed. One of the important challenge for the TRIPS Agreement is the high costs of essential medicines and related products due to mandatory requirement under the TRIPS Agreement for product patent protection for medicines .Before the adoption of TRIPS Agreement most of the countries did not grant patent s for medicines so as to keep the cost low and affordable and to censure their ready availability to their populations at all times. The clear concern of the TRIPS Agreement vis –a-vis the pharmaceutical sector is that the introduction of product patents may Connote significant social cost due to the higher prices charged for medicines. The price of medicines is a key factor in determining how accessible they are to poor people. Research and development is very expensive for each drug successfully brought into the market, pharmaceutical companies would have expended billions on research and development including the thousands of molecules that might have gone waste in developing the drug. But ultimate object

of every medical research ,or health business is to uplift the health status of general people , as it expressed in directive principles under article 39 (a) to (f) that economic system does not result in concentration of wealth it should be distributed among the all citizens because it is liability of state to maintain health status of its citizens and it expended in article 21 of Indian constitution by Supreme court of India in Parma Nand katara vs union of India (AIR 1989 SC 2039),as right to health.

According to above mentioned constitutional liabilities toward its citizen parliament made Indian patent act 1970 as a buffer act in-between the rights of patentee and Indian society.

PHILOSOPHICAL ASPECT OF INTELLECTUAL PROPERTY

Intellectual Property is the category of Intangible rights protecting commercially valuable Product of human Intellect. Though Intangible in nature, Law accords Property status to these rights .Law conferring a trespasser claim against intrusions into its enjoyment and the other of its capability of being assigned but patent do differ from the usual property right. Firstly patent may be revoked, amended, or abandoned. In a Limited sense , Patent is contingent property right where the right would exist till the happening of contingency i.e. challenge to the patent by means of revocation .Secondly , Crucial role played by Research &

Development investments distinguished a patent from other property rights as the expenditure towards Research &

Development is incurred without any guarantee for returns. Patents confers Jus in Re Propria , which grants full ownership over an intangible thing.

Salmond regards a Patent right as a form of incorporeal Possession and defines the same as some interest or advantage unconnected with the use of material object. Incorporeal Possession he argues is a possession of right and is distinguished from corporeal possession which is possession of a thing Thus possession of an incorporeal entity such as patent can be equated to the exercise of right and more particularly as an exercise of claim as if it were a right, since there is no right in reality. Patent is limited monopoly right, which is

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3 negative in nature means, no one else other than patentee can exclusively use it. But does society have adverse right over exclusive right of patentee, Obviously no because it is exclusive and monopoly right, on the other hand it is limited monopoly, which means patentee can enjoy monopoly for a limited time period after that society is free to use it because it comes under public domain. There are certain other philosophies in support of Intellectual property as a Right of Inventor

These are as follows:-

 The Occupation Theory:

 Labour theory of property

 Metaphysical Theory

 Social Trust Theory

 Utilitarian theory of Intellectual Property:

 Economic theory of Intellectual Property

PATENT LAW AND INDIAN CONSTITUTION

Intellectual property especially patent is given under the entry no.49 of union list covered into the seventh Schedule of constitution of India. Which means central government is directly responsible for the framing the law related to patent in India Under directive principles of Indian constitution it is expressly state liability to distribute wealth in society and to implement adequate healthcare measures for citizens: Article: 39 certain principles of policy to be followed by state. This article of our constitution states that, it is specifically require the state to ensure for its people adequate mean of livelihood, fair distribution of wealth, constitutional law aimed at doing away with the concentration of big wealth in the hands of few individuals.

The expression ―material resource ―of the community in sub clause (b) of article 39 embraces all things which are capable of producing wealth for community. Further, the material resources of the community include such resources in hand of privet persons and not only those which have already vested in the state. Material resources include not only natural or physical but also movable or immovable property similarly; their distribution has been interpreted widely. India being a welfare state its objective which is

clearly mentioned in its preamble, the term we the people of India shows it is duty of state to do welfare for its citizen RIGHT TO HEALTH IN INDIA

The Directive Principles of State Policy casting a duty upon the State to implement adequate healthcare measures has been expanded under Article 21 to include Right to Health , this extended right, gives way to use of all material recourses on which citizens have right.

RELEVANCE OF FORIGN LAW/TREATY/AGREEMENT IN INDIA Under the article 51, state shall respect the international law and treaty, and under article 253 parliaments has power to make any law for implementing any treaty, agreement or decision made at any international association or other body.

CONSTITUTION OF INDIA, ARTICLE 253

―Legislation for giving effect to international agreements: Not with standing anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body. Here patent is subject matter of union list so the central legislation is sufficient to enact Central legislation for whole India According to above constitutional measures parliament made amendment in Indian patent act 1970 as per requirement of TRIPS Agreement. which imposes on pharmaceutical patent.

AN ANALYSIS ON INDIAN SUFFERINGS ON PATENTED CANCER DRUGS

Data generated and collected on cancer patients who are suffering from unavailability of cancer curing drugs or they are bound to purchase such drugs on high cost. In India Out of one hundred, 66% are female and rest 34 % is male cancer sufferers. Cancer detection and its stage is also very significant factor which is directly related to the emotional set back as well

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4 as economic Burdon to the family and Individual as well Suggestions of medical practitioner to patients are also significant because it gives confidence and emotional elixir to family of patient and Individual Patient as well. After detection Prescription of medical therapy by doctor is also very significant in most of the cases medical practitioner suggested conventional methods i.e.

allopathic treatment based on technological advancement of medicine and credibility of patented drugs., generally these drugs qualified the clinical trials . Apart from drugs some other additional methods are also helpful in treatment like major surgery, radio therapy chemotherapy etc. which are also suggested by these conventional practitioners I identified that in the beginning frequency to visit doctor’s chamber is very high but bit by bit it becomes low in due course of time. An expense on treatment starts from 50,000 to 300,000 This analysis Indicate that people are sufferer and government is under International Obligations. So the Solution is Very Clear that Government Should not comes under Pressure of any Pressure Group like groups of pharmaceutical companies and Should Take Care of the right of Indian Citizens, Covers under the Right To health which is extension of Right to life and personal Liberty.

REFERENCES

Constitution of India A Jurisprudence of Intellectual Property Right,

1. Dean and Head,Faculty of Law

& Governance , Jayoti VidiyaPeeth Women’s University, Jaipur.

2. Research Scholar (law) in Faculty of Law & Governance , Jayoti VidiyaPeeth Women’s University, Jaipur.

3. Patent Act 1970,S 2(J)reads

―Invention means a new product or process involving an inventive step and capable of industrial application‖

4. Generics (UK)Ltd vs .H.Lundbeck ,(2007)EWHC 1040 (Pat)

5. Patent Act 1970 sce.3 6. TRIPS Agreement Art.29 7. TRIPS Agreement Art 33

8. Article 39 sub claus (a to f )of Constitution of India

9. In this case supreme court decided right to health as fundamental right

10. Article39: The state shall, in particular, direct its policy towards securing –

a) That the citizens, men and women equally, have the right to an adequate means of livelihood;

b) That the ownership and control of the material resources of the community are so distributed as best to sub serve the common good;

c) That the operation of economic system does not result in the concentration of wealth and means of production to the common detriment;

d) That there is equal pay for equal work for both men and women.

e) That the health and strength of workers, men and women, and the tender age of children are not abused and citizens are not forced by economic necessity to enter avocation unsuited to their age or strength.

11. (assam sillimanit ltd vs union of India.,1992,supp (1) scc 692:AIR 1992 SC 938)

12. Sajeeve coke mfg co. vs. bharat coking coal ltd.1983,scc,147

13. State of tamilnadu vs L. Abu bhai 1984 (1)SCC 515:AIR 1984 SC 326 14. Parmanand Katara vs. Union of India (AIR 1989 SC 2039),

a) Article 51constitution of India:

Promotion of international peace and security.—The State shall endeavor to Promote international peace and security.

b) Maintain just and honorable relations between nations.

c) Foster respect for international law and treaty obligations in the dealings of organized peoples with one another‖,

d) Encourage settlement of international disputes by arbitration