The Hindustan Times (HT), quoting the joint report issued by the World Health Organisation, UNAIDS, and UNICEF, reports that over one million HIV/AIDS patients in India do not have access to anti-retroviral (ARV) treatment. India is ranked third, after South Africa and Kenya, in scaling up access towards ARV treatment. An estimated 3,20,074 patients received ARV therapy in India till the end of last year as compared to 2,34,581 patients in the previous year. According to the report, between 1.1 and 1.4 million patients have no access to ARV therapy in India. Given the number of health professionals and the state of the art generic drug industry in India, HT argues that the performance on the HIV/AIDS front could have been better in comparison with other low-income countries.
According to HT, the joint report recommends India to use compulsory licences for ensuring free access to second and third-line treatment against HIV/AIDS. HT defines compulsory license as a tool which enables the national government to revoke a license issued to a patent holder and thereby, allow other parties to produce and sell a patented product for non-commercial purposes. It points out that a compulsory licence is yet to be issued in India.
The HT report defies some of the basic ethics and standards of journalism viz., principles of accuracy and objectivity. Other than the figures mentioned therein, the report is largely devoid of accuracy. It is replete with some incorrect and irresponsible reporting:
• Most importantly, the joint report, contrary to the manner in which HT has reported, doesn’t suggest the use of compulsory licence! It doesn’t even deal with compulsory licence. It is difficult to understand how HT discerned the aforesaid suggestion from the joint report.
• A patent is a right granted by the state to the inventor to enjoy monopoly over the product / process for a certain period of time in exchange for a public disclosure of invention. Equating granting of patent to granting of licence, a compulsory licence can never be considered as a revocation of licence.
Compulsory license is a tool which enables the government to allow someone else to produce the patented product or process without the consent of the patent owner. Even after a compulsory licence is issued, the patent holder still enjoys certain rights such as the enjoyment of ‘reasonable’ royalty. On the other hand, revocation of patent entails extinguishment of all rights associated with the patent which is, as discussed above, not the case with compulsory licensing.
• Thirdly, there has not been any grant of high profile AIDS patents in India. The domestic pharma companies such as Cipla, Ranbaxy, Torrents & Natco are known to be highly aggressive in filing pre-grant and post-grant oppositions. [For more see ‘Trends in Oppositions against Pharmaceutical Patents’.] Last year, the Indian Patent Office refused to grant patent to Gilead’s Tenofovir disoproxil fumarate (TDF), a HIV/AIDS drug, after the pre-grant opposition proceedings. Recently, the Indian patent office invalidated Roche’s patent in a post grant opposition over Valcyte (Valgancyclovir Hydrochloride) which is used in HIV/AIDS treatment. [As the decision interpreted “person interested” in S. 25(2) expansively, it paves the way for greater participation of civil societies and patient groups in opposition proceedings. This will ensure a stronger check against frivolous patenting.]
Considering the negative impact on formation of public opinion on a crucial issue such as the instant case, HT should have been accurate and responsible in reporting. This instance of irresponsible reporting acquires significance in the light of the recent paid-news controversy. [For the latest see this]. The report, however, acquires significance in the light of Department of Industrial Policy and Promotion (DIPP) Discussion Paper on compulsory licensing in the Indian pharmaceutical sector. The Discussion paper envisages the development of a predictable environment for the use of compulsory licensing in the pharmaceutical sector, thereby addressing concerns regarding market-availability of low-price life saving drugs. For more see here.