Patents and protecting public health

Patents and protecting public health

 Context

Seeking full disclosure on how patents are working locally through Form 27 will help promote innovation

Section 83 of the Patents Act, 1970

It lays out the general principles of the working of the patented inventions in India

• Section 83 states that the grant of patents is not solely intended to enable patentees to enjoy a monopoly on the import of patented articles
• The goal of granting a monopoly to patentees is to encourage invention and ensure that patented inventions are worked in India on a commercial scale and to the fullest extent reasonably practical without undue delay.

Not just a monopoly

• In return for a 20-year monopoly over the patented invention for the rights holder, the patent rights should serve to promote technological innovation and enable the dissemination of technology to the advantage of producers and consumers, in a manner that is conducive to their social and economic welfare
• Section 83 also requires that granted patents not impede the protection of public health and nutrition, but rather act as an instrument to promote the public interest; hence, patented inventions must be available to the public at reasonably affordable prices.

The issue

Failure to work a patented invention in the territory of the issuing country is a ground for compulsory licensing (a country in which patent is issued must benefit, e.g. manufacturing should be done in the country, information regarding the technology should be published in the public domain)

Disclosures under Form 27 are vital

• Form 27 requires patentees to submit a statement “regarding the working of the patented invention on a commercial scale in India”. But as the Form is bereft of crucial details, India’s next step is not to reject it, but to revise it in a way that the conditions subject to which the patent privilege is granted are complied with
• Disclosures under Form 27 are required as part of a national strategy to improve innovation and further technology transfer into India, to maintain public health and to ensure supply of pharmaceuticals nationally

Rights to Controller regarding information

• Indian Patents Act (Section 146) empowers the Controller to require a patentee or a licensee to furnish statements of how the invention has been commercially worked in India
• It also requires the patentees and every licensee to furnish the prescribed statements regarding the invention. The Controller also has the right to publish the information received

 Conclusion

It is not only about the right to health but also about the state’s sovereign right to preserve public health and duty to fulfil a Constitutional mandate