The purpose of Justice Katju’s literary exercise appears to have been two-fold- (a) to explain the imperatives which required the Indian legislature to amend the Patents Act in 2005 pursuant to its obligations as a signatory to TRIPS and as a member of the WTO, and (b) to convey, what he perceived to be. the possible denouements of the same, particularly in the context of the Indian pharmaceutical industry.
As a prodrome to this, he begins by dwelling upon the building blocks of IPR, the concept of quid pro quo and its jurisprudence. He then wonders at the irony that Newton and Darwin should go unrewarded for their momentous discoveries. Following this, Justice Katju does a bit of number crunching on the state of affairs in the Pharma industry as prevalent in 2004. According to the article:
“At present (meaning 2004) the Indian pharmaceutical industry has about 300 large units, 1700 medium-size units and about 8000 small-scale units throughout the country. The total turnover of these units in 2002-03 was about Rs 26,000 crores, and exports were worth about Rs 10,000 crores.”
For the latest statistics, see here. In the article, Justice Katju has sought for measures to forfend public interest simultaneously fulfilling international obligations. Probably, at this point in the article Justice Katju was reminded of Adam Smith’s caveat to governments cautioning them against private businesses hijacking public interest (Interestingly, this comes from a person whose seminal work is considered to be the Bible of capitalism) :
“Seldom meet together, even for merriment and diversion, but the conversation ends in conspiracy against the public or in some diversion to raise price.”
Two specific points made in the article are noteworthy- the first one where he explains the metamorphosis of the system of patents from essentially a municipal law to a system with universal vistas and the second one where he discusses the conditions imposed by Article 27(2) of the TRIPS. The relevant portion of the article is as follows:
In consequence of India signing the TRIPS Agreement and WTO we have had to accept the product patent from 1-1-2005 in accordance with the obligation under Article 27(1) of the TRIPS Agreement which states:
“Subject to the provisions of paras 2 and 3 below, patents shall be available for any inventions, whether product or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application. Subject to para 4 of Article 65, para 8 of Article 70 and para 3 of this article, patents shall be available and patent rights enjoyable without discrimination as to place of invention, the field of technology and whether products are imported or locally produced.”
However, it may also be mentioned that Article 27(2) of the TRIPS Agreement states:
“Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect order among public or morality, including to protect human, animal, or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not merely because the exploitation is prohibited by domestic law.”
Thus it is open to a country signing the TRIPS Agreement to exclude from patentability inventions which are necessary to protect morality, order or health or avoid serious prejudice to the environment, but such exclusion can only be in areas where the majority of member States are also prohibiting the commercial exploitation and denying protection. Hence, India cannot unilaterally say that it will not accept patent in a particular product or process on the ground that acceptance of the patent will be prejudicial to morality, order or the health of the Indian masses. Only if majority of other countries also make this exclusion can it do so.
Since this particular provision speaks of Ordre public and morality, a discussion on the issue of stem cells with reference to this provision is inevitable and accordingly Justice Katju addresses the issue with tantalising brevity. The rest of the article advocates the need for safeguards “against undue monopolistic exploitation of vital knowledge,……. to draw up acceptable standards for protection of intellectual property rights and ensure fair international trade and commerce and bring about some sort of uniformity in this field for all the “convention” countries to follow”.
It must be understood that though a lot has transpired since the publication of this article, this attempt by a Supreme Court Judge (whose primary areas of interest are Taxation and Hindu Law) indicates that the Apex Court, which is the alpha and omega of the Indian Judiciary, has started acknowledging the fact that IPR is a branch of law which it can ill-afford to ignore and this bodes well for all interested parties. More importantly, contrary to what one would expect, the article explains the intricacies of patent law stripped of all the esoterica making it intelligible for the layperson as well. Readers interested in reading the complete article may send me a mail.
