WTO Patent Law
With Left Front Support
By Kranti Kumara
18 April 2005
a move designed to make Indias patent legislation conform with
the World Trade Organizations Trade Related Intellectual Property
Rights (TRIPS) patent regime, the United Progressive Alliance (UPA)
government has pushed a patent amendment bill through Indias Parliament
with the support of the Left Front. The patent amendment covers the
food, pharmaceutical and agribusiness sectors and can be expanded over
time to other sectors.
The Indian government
became a signatory to TRIPS after it joined the WTO in 1995. The so-called
developing countries were given a transition period of 10
years to bring their national laws in accordance with TRIPS. The previous
Hindu-supremacist Bharatiya Janata Party (BJP)-dominated government
passed two amendments, one in 1999 and the other in 2002, to the 1970
Indian Patent Act to prepare the groundwork for full implementation
of TRIPS rules.
In December 2004
the Indian Congress-led UPA government issued a presidential ordinance
to bring the country into mandatory compliance with TRIPS by January
1, 2005. The government had six months to codify this ordinance by obtaining
the approval of the parliament. This was done on March 23, when, after
virtually no public debate, Indias parliament passed the third
amendment to Indias 35-year-old patent act.
The latest amendment
has been dubbed TRIPS-plus by a number of commentators because it actually
goes beyond WTO requirements. For instance, the new legislation allows
a pharmaceutical company to obtain additional patents when one of its
already-patented drugs is discovered to be of use in combating other
illnesses and conditions, thus extending the number of years over which
the company will exert proprietary control over the said drugs
production and marketing.
Similarly, the new
legislation goes beyond TRIPS in the obstacles it places on the Union
government authorizing the production of patented drugs by generic manufacturers
to meet public health emergencies.
that are now producing generic versions of drugs for which patent applications
were submitted between the signing of the WTO agreement in 1995 and
January 1, 2005 will be allowed to continue doing so only if they pay
a reasonable royalty to the patent holder. This is an all
but ironclad guarantee that the prices of such drugs will increase and
With the adoption
of this bill the Indian government has overthrown a key tenet of the
1970 Indian Patent Act that restricted patents to manufacturing processes
rather than end products. Under the old patent regime, drugs patented
in other countries could be analyzed and manufactured without paying
royalty. This provision served to nurture the development of an indigenous
pharmaceutical industry and by the 1990s Indian drug companies had become
the fourth largest in the world when ranked by volume of drugs produced.
granted under Indias new TRIPS-plus regime will remain in force
for twenty years. During this time the patent-holder will have exclusive
rights over the manufacture and sale of the drug. The transnational
pharmaceutical industries have utilized their patent rightsin
reality a state and WTO-enforced monopolyto charge high mark-ups.
Millions of people infected with HIV/AIDS in Africa and other parts
of the Third World have thus been deprived of proper treatment, condemning
them to early deaths.
The Indian drug
industry has been instrumental in supplying cheaper generic drugs to
the world market, especially the antiretroviral (ARV) drugs that have
proven beneficial to persons infected with HIV/AIDS. At a time when
western pharmaceutical companies were charging over $1000 per month
per patient for such drugs, the Indian drug industry was able to develop
generic versions which were marketed for about $12 per month.
With the adoption
of TRIPS-Plus the monopoly rights of the transnational drug companies
have been reinforced, making the development of such life-saving generics
increasingly problematic and ensuring, at the very least, that the price
of such drugs will rise.
Even the New York
Times, a vehement advocate of the interests of the US transnationals,
conceded in a January 18 editorial that Indias patent legislation
could have a serious adverse impact on the health of hundreds
of millions of people in India and worldwide. These rules,
said the Times, have little to do with free trade and more to
do with the lobbying power of the American and European pharmaceutical
Although the impact
of Indias new patent regime on the availability of cheaper generic
drugs has received the greatest attention, it could also have immense
consequences for Indian agriculture, which provides two-thirds of all
Indians with their livelihood. Critics of the legislation warn that
its ambiguous wording could open the door for transnational agribusiness
companies to seek patents over common seeds or only slightly modified
versions of common seeds and thereby appropriate seed-types that have
been rendered resistant to cold, salt and drought through thousands
of years of agricultural practice.
Currently 80 percent
of the seeds used in planting in India are supplied by the farmers themselves
from seeds saved from previous crops. Farmers also have the right to
barter seeds among themselves, thus enabling them to obtain seeds at
little cost and without too much difficulty.
Indias now-liberal export-led growth strategy
The 1970 Indian
Patent Law was the outgrowth of a report submitted by a 1959 committee
that examined the reasons for the high cost of drugs in post-independence
India. The Committee concluded the high prices resulted from the monopoly
control foreign-based pharmaceutical companies exercised over the production
of drugs thanks to the prevailing patents regime.
of Indias 35 year-old patent regime is in keeping with the Indian
bourgeoisies abandonment of its post-independence national economic
strategy in favor of a drive to make India a cheap labour center of
manufacturing, office-processing and pharmaceutical and computer software
development for the world capitalist market.
To attract foreign
capital and promote the development of internationally competitive
Indian firms, public spending has been slashed, public sector enterprises
privatized or closed down, free trade zones established where traditional
worker rights and labour standards dont apply, and public investment
diverted from agriculture to the mega-projects sought by big business.
Now, to comply with the WTO, a patents regime is being put in place
that will drive up the cost of drugs.
drugs has arguably been the only benefit Indias working population
has derived from the countrys health care sector, which is one
of the most privatized in the whole world. The various levels of Indian
government spend just 1 percent of annual GDP on health care.
As part of their
strategy to pry open the markets of developing countries for the transnationals,
the US and other advanced capitalist countries introduced the issue
of intellectual property rights and patent grants (previously considered
as non-trade issues) into the 1986 Uruguay round of the General Agreement
on Tariffs and Trade (GATT) negotiations.
Initially, the Indian
ruling elite along with those of other developing countries such as
Brazil and South Africa opposed the inclusion of TRIPS as part of the
world trade negotiations. But in 1989 they capitulated and agreed to
the advanced capitalist countries demands that, under the pretext
of creating worldwide uniformity in patent grants and intellectual property
rights, a legal mechanism be created whereby the multinationals could
profit from the product patents they had obtained from western governments.
In order to mollify
critics, the developing countries obtained some flexibility
in the wording of TRIPS, including the power to grant manufacturing
licenses of generic versions of patented drugs (compulsory licensing)
when required to protect public health and to facilitate
challenges to patents application before they are granted (pre-grant
In practice, however,
the right to grant licenses to manufacture patented drugs to meet health
emergencies has proven hollow, because it opens the country to the threat
of expensive litigation and even trade sanctions. For example, when
the Thai government attempted to issue a compulsory license for the
manufacture of AIDS drugs AZT and DDI, in 1999-2000, to tackle an estimated
1 million HIV infections, the US government stepped in and threatened
the Thai government with trade sanctions if it went ahead and issued
WTO regulations is not simply a matter of aligning national laws through
legislation. It is involves substantial administrative expenditure by
national governments, expenditure that ultimately is borne by the masses.
According to the World Bank economist Michael Finger, such administrative
cost for overseeing just 3 sections of the WTO treaty will be in excess
of $150 million per year, a considerable sum even for a large country
The role of the Left Front
The Left Front,
which is led by the Stalinist Communist Party of India (Marxist), or
CPI (M), provided the votes necessary for the UPA to secure passage
of the patent amendment act. It did so, although it is well aware of
the serious impact the act will have on access to the latest life-saving
The Left Front justified
its support for the WTO-inspired legislation by claiming that it had
won concessions from the government on the bills wording, particularly
the sections regarding pre-grant challenges and compulsory licensing.
On its website,
the CPI (M) states that The Left Parties have been consistently
of the view that TRIPS was and continues to be an iniquitous agreement
balanced heavily in favour of multinational corporations. But
it then claims that since the WTO agreement was already been signed
by a previous governmentwithout parliamentary approval, it should
be pointed outthe left could do nothing except try
to make the best out of a bad situation by securing some minor amendments.
In one breath the
CPI (M) calls these amendments a major advance, then in
the next concedes that they are so weak they could be frittered
away when the new law comes to be implemented.
The political duplicity
of the CPI (M) is further underscored by the fact that even though it
voted for the patents bill, it continues to maintain that the the
Left Parties ... have differences with the present Government on the
approach to Intellectual Property Rights (IPR)and will continue
to apply pressure on the Government through mass mobilisation to balance
its position on IPRs in favour of the Indian people. In fact,
the CPI (M) and its Left Front allies have mounted no mass mobilisations.
In keeping with its policy of supporting the Congress against the Hindu
supremacist BJP, on the grounds that the Congress, the traditional governing
party of the Indian bourgeoisie, is the lesser evil, the
Left Front seeks to confine the opposition of the working class and
oppressed masses within the framework of impotent protests.
The Left Fronts
claim that the Congress is a secular bulwark to the BJP
is patently false. The Congress, which implemented the 1947 communal
partition of the subcontinent, has for decades connived with the Hindu
right. Even more importantly, it is the opportunist and Stalinist politics
of the CPI (M) and its sister party, the Communist Party of India, which
for decades have subordinated the working class to one or another bourgeois
party, that has created conditions where the BJP and other communalist
and caste-ist parties have been able to come to the fore.
BJP and its right-wing allies postured as opponents of the patent legislation,
staging a walkout when the bill was introduction in the Lok Sabha (the
lower house of Indias parliament). BJP leaders even mocked the
Left Front for its support, declaring that the Left flaunts red
flag only outside (the) Parliament and waves green flag inside.
The BJPs opposition
was of course totally demagogic and double-faced. The wording of the
bill was based upon a December 2003 draft prepared by the previous BJP-led
coalition government. Moreover, the BJP and its National Democratic
Alliance coalition identified themselves completely with the imposition
of big business neo-liberal reform agenda.
Left Fronts subordination of the working class to the neo-liberal
UPA regime opens the door for the BJP and other right-wing forces to
exploit the inevitable popular, anti-government backlash.