Pharmaceutical Patenting in India: Problems of Public Access to Health
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After the 2005 amendment of the Patent Act, product patent was added as well along with the process patent in the case of pharmaceuticals. This meant that earlier when the patent was only provided on the process, now the patent would also be provided on the product apart from that of the process patent. This provided a two- fold patent protection to the manufacturers of such medicines which led to the fear of increase in price of the medicines and as a result would not be available in an affordable price to the needy. Although feared, but the above did not happen. Section 3(d) is an exclusive provision under the Indian patent law. It achieves a great balance between the Agreements on Trade Related Aspects of International Trade (TRIPS) mandate and protects access to medicine for the poor. Again the Patent Act 1970 provides for reverse engineering method which allows the other manufacturers to produce medicines with similar effects from expensive medicines and provide it in a cheaper rate. Moreover TRIPS agreement provides some inherent flexibility and with prudent application by the government will benefit the society. Flexibilities like Compulsory Licensing, Parallel Imports, and solar Exemption can be used judiciously by Indian government to make drugs affordable to masses. The research critically analyses the public access system with regards to the patented pharmaceutical products and also would examine whether the generic products would be equally effective as that of the patented products. While the research would analyze the public health as a right, it would also equally weigh the patentees’ or the manufacturers’ side.
Keywords
Health, Pharmaceutical