As a professional adviser on IP matters in Australia, I agree with the main thrust of the article, “ >Patented medicine and affordability ” (Dec.22, 2014). I would like to make the following observations: During the past 40 years, a few key principles of the patent system as enshrined in the Statute of Monopolies (1624) have been systematically hijacked, undermined and nearly destroyed through well-orchestrated moves by vested interests in the developed nations. Now there are more bad patents (meaning, not fit for “grant”) in the system that are imposing huge costs on society. This issue is particularly acute in the pharmaceutical sector as it makes the cost of some medicines (and medical equipment) go beyond the reach of all except a few rich persons. Even in the developed world, such as in Australia, people cannot afford many vital medicines without the huge subsidy offered by the government’s ‘Pharmaceutical Benefits Scheme’.
The industry’s intense lobbying power and its support for the so-called independent IP policy think tanks have created an environment wherein the nations’ patent administrations have liberally (and in my view, wrongly) interpreted a few key principles and provisions of patent law; in particular, the tests for an “inventive step” have been so systematically diluted that any small improvement, however ordinary or incremental or inconsequential it may be, is considered to fully satisfy the inventive criterion. Such liberal interpretations have allowed big and established companies to perpetually maintain their strong hold on markets and maintain high markups on their products.
The original idea underpinning IP protection is to encourage invention that benefits society at large. For centuries, certain vital sectors were excluded from seeking patent protection because granting monopoly rights might be detrimental to the interests of society. But this distinction was demolished by judgments of U.S. courts that all economic activities “under the sun” are eligible for patent protection. Now IP protection is seen as a tool for not enhancing and enriching societal benefits but used to protect investments, business interests and profits. In fact, a case can now be made that the IP system, as currently administered, denies certain crucial benefits to a large majority in our society and is therefore contrary to the intentions of the Statute of Monopolies Act.
ADVERTISEMENT
Pharmaceutical products in particular come under the essential-use category, and some are life-saving drugs. Although not illegal, it is immoral for the industry to price them on the basis of what the high end of the market can afford rather than what it truly costs to manufacture and sell with a reasonable profit margin.
I hope the National IP policy that is being developed in India emphasises those points and argues that India has a stronger IP system that is consistent with the Statute of Monopolies Act, and it is the developed nations that have been deliberately working to weaken and destroy the system.
ADVERTISEMENT
ADVERTISEMENT
Sydney, Australia