As per the requirements of the World Trade Organization treaties on Trade Related Intellectual Property Rights, commonly called TRIPS, as of January 1st, India is required to amend its Patent Laws to provide for a TRIPS compliant regime. The final amendment of the Patents Laws, as per the provisions of TRIPS, will be promulgated in India through an ordinance starting January 26th, 2005.

There are perhaps two parts of this promulgation that are ironic – that such a significant change in laws will happen without national debate or parliamentary legislation, and that it happens on January 26th, which is also the commemoration of the first national call for Independence in the Indian subcontinent and the commitment to rights of people to their own governance.

Change in patents laws will essentially change the landscape of trade and production in India. In our modern era of trade and commerce, sustainability of manufacturing and services is strongly tied to patent laws – which defines who can or cannot practice certain technologies. Of the fifteen most profitable industries in the global market, six are in the pharmaceutical sector and five in the information services sector. These businesses have come to recognize that their profitability depends not only on the control of technologies, of methods and new materials, in general, but in the control of information – the TRIPS laws reflect that understanding.

As with any new set of laws, it is important to analyze sections of our communities that are strengthened by these laws and those that have been disempowered.

Even people working in industries will admit, it is expensive to patent globally and it is as expensive to maintain those patents as well as protect them. In effect, building of industries on the basis of patent laws essentially ensures that larger industries with more ability to file, maintain and protect patents will be sustainable. Since 1995, when European and American laws adopted TRIPS, there has been an increased monopolization of both these industries. It has become increasingly difficult for smaller and medium size businesses in these countries to be sustainable. Here we need to differentiate from start-ups whose main motive is to be bought by multinationals and smaller companies that aim to be a sustained business.

In the USA, small businesses employ as many people as large multinationals. These laws have significantly affected small businesses leading to large increase in unemployment. Despite significant increase in profits as reported by market indices, unemployment numbers are still high. In India, where small businesses provide much larger sections of the population with employment, breakdown of small businesses – a trend that has already begun in the last decade – socio-economic devastation will be much more significant.

The other significant impact of these laws will be on consumers, most importantly in the pharmaceuticals industry. The net result of the TRIPS accord is the high cost of medicines and the consequent denial of access to medicines to the income poor across the globe. Majority of people around the world cannot afford drugs that at the price at which they are available in the European markets, let alone the American markets. The poorest in the world – and they are about 4 billion – cannot afford basic drugs – malaria, fever, cholera, typhoid – leave alone drugs for sexually transmitted diseases, cancers, HIV-AIDs, that continue to grow rapidly. These laws will affect the ability of the majority of the world to medicines for their basic health.

The claim by the pharmaceutical industries that such laws are necessary for them to sustainably function is balderash. This industry has an average profit of about 15% – way over approximately 6% that other industries experience. Why should laws be made to justify such large profits and exclusivity of such profits?

Further, it has also led to a situation where medicines required to treat diseases that predominantly occur among the poor are not researched at all. Instead drugs that are being researched are drugs used for “lifestyle” diseases like impotence, baldness, obesity, etc. While the pharmaceutical industry claims that high prices are explained by the massive expenditure on R&D, the truth is that drugs they actually research have little relevance to real medical needs. In addition, a significant part of R&D for pharmaceutical industries is done in public universities with public money – all of which is funnelled into increased profits for the industry.

Promulgation of a law with such serious implications requires public debate increased awareness of these implications; little of that has happened. By basing the changes in laws on the profit needs of large businesses, the government fails the constituency it most represents. This is most manifested by the complete absence of public debate and discussion. In the face of such stark implications, this ordinance, made under duress from international financial institutions and specific lobbies is anti-democratic and downright unethical.

Related Links and Articles:
A petition for a democratic process for Patent’s Laws
Announcement of the Office of the Controller General for Patents
Another commentary on TRIPS and its implications
Insaaf Internationl’s Campaign
NY Times Editorial