Updated on 26 October 2012
Ms Sunita K Sreedharan concludes that the society must not lose sight of the fact that the patent system is a mere tool that can be used effectively to benefit society by bringing in technological progress or to its detriment by blocking development of technology. "And in the latter context, it is important to identify and block entities that use compulsory licensing as a tool for a low-cost piggy-back ride on an R&D company to attain bigger profits with least scientific or business efforts," she says.
Why compulsory licensing?
In India, the provisions on compulsory licensing was introduced into the Patents Act pursuant to the recommendations by the Ayyangar Committee. The predominant purpose behind the grant of a compulsory license is to ensure the supply of the patented invention in the Indian market. Patents are not granted to enable the patentee to enjoy a monopoly by importing the patented articles into India.
"The Patents Act makes the working of the invention in India an important requirement. At the same time, the effort expended by the patentee in inventing the patented article, the expenditure incurred in research and development, and in obtaining and keeping the patent in force cannot be disregarded. The provisions on compulsory licensing endeavors to secure that the articles manufactured under the patent shall be available to the public at the lowest prices consistent with the patentees deriving a reasonable advantage from their patent rights," says Mr Kirit S Javali, partner, Jafa & Javali, Advocates, New Delhi.
"As the patent regime came in full force under World Trade Organization (WTO) from 2005, the MNCs started registering patents for a large number of new drugs, importing the products and marketing them in India without working the patent," says Mr Y H Gharpure of Gharpure Consulting Engineers, who has been studying the compulsory licensing issue. "If the patent is not working for three years, the compulsory licensing provision can be evoked as was done by Natco Pharma. There is a case for evoking such provisions for many other patented products for treatment of cancer, HIV/AIDs, etc. This, however, will become apparent if the information patentee files to the patent authorities under form 27 is made public. This will clearly reveal whether the patent is being worked in India or otherwise. Currently, although the information is available on request, it is not available in public domain."
WHO supports measures that improve access to essential medicines (Source:www.moph.go.th)