Author: Former Patent Intern - Rajvardhan Mohite
Citation: Khobragade, Jagdish W., “Interface Between Human Rights and Intellectual Property Rights with Special Reference to Patent Regime and Right to Health in India”, Journal of Intellectual Property Rights, (November 2020): pp 204-214 <http://nopr.niscair.res.in/handle/123456789/56331>
The research paper attempts to compare and contrast the current landscape of intellectual property rights versus human rights in India, which has unfolded in light of the recent pandemic. It drills down on the impact of Intellectual Property (“IP”) rights on a particular facet of Human Rights, i.e. Right to Health in terms of right to access basic medicines. The study also sheds some light on the influence of developed economies on developing countries like India when it comes to compulsory licensing to maintain a balance between IP rights and Human rights.
IPR & Human Rights: The Conflict
The research paper goes in depth describing the origins of IP rights and the right to access basic medicines in the context of human rights. The study notes how IP rights came into being as a guardian for letting the innovator enjoy the fruits of his innovation and as a result, incentivize further innovation. On the other hand, it also brings light to the right to health as provided under the United Nations Declaration of Human Rights Charter of 1948 and the ambit of Article 21 of the Constitution of India. It is argued that a developing nation such as India, which has a large portion of its population under the poverty line, is finding it difficult to provide basic essential medicines due to hurdles posed by patent rights.
It notes that since the 2005 Amendment to the Patent Act, 1970 when India started granting product patents, the supply of generic, low cost medicines has significantly reduced owing to the fear of trade sanctions on generic manufacturers on the grounds of infringement of patents. However, this appears to be an incomplete outlook towards the issue, as the study fails to highlight the significant increase and impetus provided by product patenting to innovation in the pharmaceutical industry. It ignores a complete study of the number of innovations compared to those before the Amendment.
Compulsory Licensing as Safeguard
The research paper notes the provisions on Compulsory Licensing incorporated in the Patent Act, 1970 as a safeguard against abuse of IP rights. It argues that in an industry driven by monetary profits, compulsory licensing ensures that in times of absolute need, the drugs in question can be made available to the public at competitive prices. It, however, also notes that in spite of this provision, India has granted a Compulsory License on only one previous occasion.
The research paper posits that the fear of trade sanctions and diplomatic pressure from the developed nations has been a big impediment to the grant of compulsory licenses. This seems, in my view, a bit premature as the entire point is inferred from just a single instance of India’s act of granting a compulsory license being met with criticism from the USA. India has had only three instances of litigation based on Compulsory Licensing. Inferring that India is reluctant in granting compulsory licenses from such a small data set is a tall order.
Role of the Developed Economies
The research paper mentions that USA and its Report 301 play an important role in the landscape of discerning right to health in the context of IP rights. The USA issues an Annual Report to identify other nations which it believes where unable to protect their companies’ IP rights. The research paper asserts that the USA uses it to threaten developing nations like India and Brazil to deter the issuance of much needed compulsory licenses. The research paper notes that moves like these are one of the reasons why the gap between patent rights and human rights is widening. Such pressure tactics from developed nations make it difficult to reason IP rights in the context of the right to access basic medicines.
However, the view presented seems very one-sided as the study fails to mention that many multinational companies are based out of the USA which, as result, is acting in the interest of its own people. Hinting to nefarious intention in any other sense may not be justified and appropriate. Most developing nations do not have robust patent protection systems, as a result of which an IP-ownership rich country like the USA stands to lose the most when it comes to infringement or from compulsory licensing on whatever grounds.
The research paper attempts to recognize flaws in the current landscape of Intellectual Property and Patent rights. It provides an insight into how these IP rights can be reasoned in the context of implementing basic right to health without violating the innovators rights. However, much of the research paper comes forth as the author’s assumptions and opinions with very little emphasis on numerical data or time period comparisons. Overall, the study in the research paper seems, in my assessment, to fall short on empirical data analysis and rigour to be taken at face value.
Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.
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