| Chemicals & Fertiliser
minister Ram Vilas Paswan a key member of the Group of
Ministers (GoM) on the proposed patent act amendment is
set to pitch for widening of grounds for issue of compulsory
licence (CL), according to government Sources. This means
high prices of patented products would be sufficient reason
for the government to issue a CL. The license could be
issued for manufacture of the patented product by a third
party or even production in a public sector facility.
Also, the CL may be issued immediately after the patent
grant. The minister wants to do away with the existing
provision which forbids the government from issuing
a CL till the completion of a three year cooling period
after the patent grant.
As per existing provisions in the patents act, a CL
can be issued in case of a "national emergency",
or under circumstances of "extreme urgency: Besides
these. the licence may be invoked for public uses that
are non-commercial in character.
While the GoM headed by defence minister Pranab Mukherjee
keeps the" MNC and desi-pharma companies on tenderhooks.
Mr Paswan is learnt to have decided to make these proposals
to the GoM. "The grant of exclusive marketing rights
of cancer drug Glivec to Novartis exposed the flimsiness
of the argument that high price should not be ground
for issuing a CL. The highly contentious EMR has increased
the cost of the medicine to the consumer more than 10
times," according to government sources.
Mr Paswan is also expected to take a firm stand favouring
retention of the pre-grant opposition provision in the
patent act which the amendment bill proposes to dilute.
The right of hearing should be there for anyone filing
an objection to the patent after the mandatory publication
of the details of the application in the official gazette,
the sources added.
As ET had reported earlier, the department of industrial
policy and promotion that functions as the nodal department
for IPR matters, is considering proposing to the GOM
making it obligatory for the patents controller to issue
a "speaking order" before disposing of a pre-grant
representation.
According to the DIPP, with this change the person
wanting to oppose the patent before its grant can challenge
the controller's order in the court and even withhold
grant of the patent. Mr Paswan sees merit in the domestic
industry's argument that challenging a (bad) patent
after its grant could result in costly legal actions
during which the patent holder will have enjoyed the
patent and exploited the market by charging high prices.
After all, thee is no TRIPS obligation to drop the pre-grant
opposition provision. The patent amendment bill drafted
by the previous NDA government had allegedly proposed
to do away with "statutory pre-grant opposition."
The domestic industry fears that this would allow the
patent controller to ignore the "pre-grant representations."
As per the proposed provision, wrongfully obtaining
patents, for instance, would not be a valid reason to
withhold a patent.
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