Product Patent And Access To Medicines In India
Diksha Garewal Das, Assistant Professor At School Of Law, Jagran Lakecity University, Bhopal
Trade Related Aspects of Intellectual Property Rights (TRIPS) provides a regime for the protection of the intellectual property rights and provides various mechanisms through which a country can ensure in providing protection to the owners of the property.
Patent protection provides the owner of the patent means to prevent the third party from using, making or from selling the patent protected products for a period of limited time. TRIPS provides protection of 20 years to a patented product, the protection can be either for a product or for a process of producing an ingredient or any other drug. TRIPS also provide a mechanism through which it ensures that the country is capable of providing access to medicines at affordable prices to its people. TRIPS protect the interest of pharmaceutical industries who invest in the production and manufacturing of the medicines, also the resource investment on R & D of medicines and drugs, and on the other hand, it provides for the protection and promotion of public health of the member countries that belong to the WTO in their states. It is basically trying to control the balance between the public rights and private rights.
Though TRIPS provides for the positive mechanism and obligation on the member countries, still there is a huge gap in its implementation by the member states. Developing and under developed states are most adversely affected by the protection given to the pharmaceutical products through a patent. Patented pharmaceuticals have increased the cost of life-saving drugs thus, making it out of the reach of the general public, which forms the majority of world’s population. This has also lead to a problem where the TRIPS guidelines could not be implemented due to such high costs of medicines and drugs, hampering the ability in the framing of appropriate health policies and access to medicines to the people.
India is one of the major countries that have the flourishing generic pharmaceutical industry that has been successful in providing drugs and medicines at lowest prices all over the globe. This has been only possible through strict compliance with the TRIPS agreement and enactment of Indian Patent Act, which provides for the process as well as product patents and also the shortening in the life of patents being granted to the pharmaceutical industries.
This article will be focusing on the public rights and private rights of the patent holders. Also, will be discussing the effects of the protection granted to the pharmaceuticals on the accessibility of the medicines to the public in India. Unlawful profits and gains that the pharmaceuticals make through the rise in the prices of life-saving drugs and problems faced by the public due to such high prices of drugs in the light of Indian Patent Act, an amendment to Patent Act, 2005, along with the TRIPS agreement and the entire patenting system of the pharmaceuticals.
KEYWORDS: access to medicines, TRIPS agreement, WTO, product patent, pharmaceutical patent in India, patent (amendment) act, 2005.