Medicine for Corona and the compulsory license

By Ms. Ayesha Afrose



Abstract:

The new outbreak from the city of Wuhan, China is believed to spread the new Coronavirus which infected humankind in 2002, which led to epidemic proportions before it was contained (SARS-CoV-2). Various reasons like cluster, community spread, droplet transmission, etc. resulted in the spread of the disease. On11th March 2020, the World Health Organization confirmed the pandemic and no cure have been found to date except to various treatments for the control of the virus.

Imagine for a moment that the great pandemic of the 21st century was to disappear? Would every citizen be able to claim his fundamental and legal requisites if the cure was discovered? Law is part of everything and so it will stand with Coronaapocalypse. This article evaluates two co-related views on the necessary connection with the medicine for Coronavirus and the application of Intellectual property. This article contends to study the connection of Patent theories with that of Corona.


1.Corona Apocalypse:

The novel Coronavirus Covid-19 is the striking health crisis of our era. In December 2019 the 7th largest city of China, Wuhan became the cause of spreading the unknown viral disease among the masses. As a result of which 10,02,140 ground laboratories confirmed cases of the Coronavirus within few weeks of the outbreak (Reports until 29 June 2020) affecting more than 11,400,034 people and owing to 533,874 deaths across the world. With the advent of this communicable disease, people were diagnosed and isolated themselves from direct communication.

The world economy is on the brink.Various nations started suffering from the Covid-19 financial collapse. The Indian Government which was already in economic meltdown and slow growth, the country has a dual recession of health and economic crisis. Making the matter worse some of the countries might even face Flux in global shares, Capital-flow reversal, depreciating currencies, Decreasing GDP, Unemployment, Rise in poverty and more demands difficult to finance until the antidote is found.


2. The desiderata of Patent:

According to The Patent Act, 1970 “A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. To get a patent, technical information about the invention must be disclosed to the public in a patent application”. According to 2(1)(j) of the Act, “New invention" means any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of a patent application with complete specification, i.e., the subject matter has not fallen in the public domain or that it does not form part of the state of the art”.To get patent under Indian Law, the Inventor has to accompany certain criteria i.e.; Novelty, the invention should be new as compared to the art of existence, where the inventor should be able to give different publications. The invention should be a marketable useful product. The invention should be skilled for the person in the same field.

The inventor gets exclusive rights on selling the invention for 20 years. Perhaps the Inventor can also give license to various manufacturers to produce and sell the invention with the exchange of a royalty. If any person was there to find an antidote for the Coronavirus the primary basis is to get the medicine patented.

A patent lays open the invention for public inspection. A patent subject to the discovery of new substances out of existing substances is not patentable. The Inventor shouldn’t be using the mere process or known machinery in the invention.


3. Requisite license regime in India:

The patentee claiming the patent for the invention of medicine for COVID-19 he no longer plays a claim in industrial-scale enjoying a monopolistic yield for more than 3 years. According to Section 84(1) of the Patent Act, 1970,after the expiration of 3years, any person can later apply for the grant of compulsory license of the patent if the patented inventionor patented process doesn’t fulfill the public requirements serving the purpose or if the patented invention is not available to the public at reasonable rates or if the patented invention is not working in the territory of India.

It is where the government gives the patented product to a different organization in a view of producing the patented product for the public without the patent owner’s consent. In this consent Chapter XVII of The Patent Act, 2005 states that the patentee gets paid in return but he does not have an option to deny or refuse the license.

In the Bayer Corporation V/S Union of India case, the Petitioner Bayer corporation an U.S registered company invented medical drugs to treat liver and kidney cancer.On 2008 the company acquired a patent for a drug called Tosylate in India which charges over Rs.2,80,428 per month for its therapy. The respondent Natco a drug manufacturer in India approached for the grant of compulsory licensing by quoting Rs.10,000 per month. The issue was that the petitioner was violating Section 82(1) of the Patent Act, 1970 owing to non-accessible to public, high price, and did not work in the territory of India.It was held that there was no interference involved in the royalty of 7% towards the petitioner.

On the back of patent for the captivating medicine of COVID-19, the Law doesn’t deny a person’s right of Article 14 and Article 21 as the medicine for the world crisis is equally accessible by the public, reasonable rates and works inside the Indian territory as per the Section 82(1) the Patent Act, 1970.


4. The defect of Theriac:

The license of right for the pharmaceutical industry in the Indian Patent Act is not protected under the Indian law. A patent in case of process or methods of manufacture of substance is used as a medicine for 7 years from the date of sealing. Even if a person invents a medicine for COVID-19 it’s not usual to get it patented. Due to this Indian Pharmaceutical industries are not Self-reliant, imports of bulk drugs from other nations leading to generic drugs. Cheaper versions of medications were reformed creating slow recovery and non-usage of the drugs. High Rise of competition might arise when the medication of COVID-19 is made available to the public. In such a situation to avoid the monopoly in the market The Competition Law will play a major role. According to The Competition Act, 2002 competition for pharmaceutical sector might arise in 3 ways mergers, collusion and misuse of strong position in the market. The primary motive of The Competition Act is to dilute the role of monopoly in any market, because of which the cost of medicine for COVID-19 might increase. By virtue of this situation it breaches Section 82(1) of The Indian Patent Act, 1970 non-accessible of the invention to the public.


5.Concluding Remarks:

Finding a medicine for Corona Virus COVID-19 and getting a patent and introducing it in the market is no easy job.The inventor/Patentee must be credential to pass out all the tests made for public inspection as per Section 82(1) of the Indian Patent Act, 1970. The inventor finding new drugs or medicine should always look to protecting the invention and financial creditability by patenting the invention or product. The Patent Act provides the welfare of pharmaceutical industries. However, it is also the duty of the inventor to take measures from the companies by taking over the market based on Intellectual Property rights. The measures and safeguards are merely the common necessity for the welfare of the public.


References:

1. Kristoffer Stewart, Dawn Connelly, Julia Robinson, Everything you should know about the corona outbreak, PHARMACEUTICAL JOURNAL, (Jul. 13, 2020), https://www.pharmaceutical-journal.com/news-and-analysis/features/everything-you-should-know-about-the-coronavirus-outbreak/20207629.article?firstPass=false.

2. Diva Rai, Patent Laws in India: Basics you must know, IPLEADERS, (Oct. 16, 2019),https://www.google.com/amp/s/blog.ipleaders.in/what-is-a-patent-law-in-india/amp/.

3. Admin, Patent Case Brief – Bayer v Union of India, NOTES FOR FREE, (Jan. 18, 2018), http://notesforfree.com/2018/01/18/patent-case-brief-bayer-v-union-india/

4. Nilesh Zacharias, Sandeep Farias, Patents and The Indian Pharmaceutical Industry, MONDAQ, (Nov. 20, 2019),https://www.mondaq.com/india/patent/865888/patents-and-the-indian-pharmaceutical-industry

5. THE PATENT OFFICE, INDIA, MANUAL OF PATENT PRACTICE AND PROCEDURE, (3d. ed. 2008).

6. Wipo, Patents, WIPO, https://www.wipo.int/patents/en/.

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