As reported earlier on this blog
the Department of Industrial Policy and Promotion, Ministry of Industry & Commerce had released a discussion paper on the compulsory licensing policy under the Patents Act, 1970, inviting responses from the general public by the 30th of September, 2010. All the responses can be viewed over here
The DIPP has received a diverse set of responses from academics, domestic industry bodies such as the Indian Pharmaceutical Alliance (IPA), the Organization of Pharmaceutical Producers of India (OPPI), foreign industry groups like the PhARMA, JPMA, Business Europe and of course public health NGOs like the Cancer Patient Aids Association (CPAA) & Oxfam.
The Mint’s Unnikrishnan has carried an interesting piece, click here, summarizing the opposing viewpoints of the various industry groups. As expected the pharmaceutical industry has taken the centre-stage in this discussion. While the generic drug industry has supported the general view of the DIPP in its paper the innovator lobby has strongly opposed any move to dilute their existing patent rights through the issuance of compulsory licenses by the Central Government.
Shamnad and me also sent in responses to the DIPP’s paper. Our two-part response can be accessed over here
. One of the main issues that we raise in our response is the serious constitutional infirmity of having the Controller deciding compulsory licensing disputes between private parties. As explained by us in our response this is an unconstitutional state of affairs because compulsory licensing disputes are judicial functions that are required to be discharged by a tribunal having the required judicial independence from the Central Government. The Controller however is a bureaucrat having almost no independence from the pressures of the Central Government and requiring him to adjudicate such a dispute would go against the ‘separation of powers’ doctrine which has been read into the Constitution by the Supreme Court of India. As discussed earlier on this blog in regards the Copyright Board
and the post-grant opposition mechanism
, the Supreme Court decision in the NCLT case requires all Parliamentary legislation to conform with the separation of powers doctrine i.e. all judicial functions are to be discharged by either Courts or tribunals which possess adequate independence, from the Executive, in terms of appointment and dismissal criteria etc.
For those of you interested in reading a short summary of our submissions, the ET has published our op-ed on this very issue in yesterday’s edition. The same can be accessed over here. Hopefully the Central Government will sit up and take notice of this issue before it is challenged in a Court of Law.