12.ALGUNAS PERSONAS SIMPLEMENTE NO ENTIENDEN EL CONCEPTO DE “NO ERES BIENVENIDO” Estaba justo a punto de dormir.

The final deadline for India to comply with the obligations of the TRIPS Agreement

1994 was January 1,2005. By this date, India was obliged to extend patent protection to

Lv4 Shri Rupchand Pal Hoogly, India, Parliamentary’ Debates-Discussion on the Patents (Amendment) Bill, 2002 Lok Sabha, May 14, 2002 at http://164,100,47.132/LssNew psearch/Result 13.asp\?dbsl=41 54

1:0 Section 4 of the Patents (Amendment) Act 2002 (India) at http://ipindia.nic.in/iprpatentpatentg.pdt~ 156 Section 10 and Section 25 of the Patents (Amendment) Act 2002 (India)

157 Section 3 (b) of the Patents (Amendment) Act 2002 (India) adding the definition of a convention country and Section 3 (e) defining the international application and Section 3 (k) referring to the Patent Cooperation Treaty, signed 19 June 1970 (entered into force 24 January 1978).

pharmaceutical and agrochemical products which were originally excluded from patentability. Given the long history of non-patentability of pharmaceutical products in India and its importance for the Indian drug industry and consumers, it was controversial to amend domestic laws to comply with the TRIPS Agreement 1994. Unlike the earlier two amendments in the patent law, the political situation by that time had substantially changed and the incumbent government faced considerable challenges in the Parliament to enact relevant legislation. In May 2004, Manmohan Singh became Prime Minister o f India after the Bharatiya Janata Party lost the elections. The new government of the Indian National Congress-led United Progressive Alliance (UPA) had the backing of several small parties including the Communist Party o f India (Marxist).

In a timely attempt to meet the deadline o f the TRIPS Agreement 1994, the President o f India promulgated the Patents (Amendment) Ordinance 2004 (India) on December 26, 2004.15S Soon after its promulgations, the Ordinance was severally criticised by different stakeholders and it was lamented that the government had adopted the Patents

(Amendment) Bill 2003 (India) without further deliberation. This Bill was tabled by the

previous government o f the Bharatiya Janata Party and it had lapsed with the dissolution o f the Lok Sabha.

On December 29, 2004, the Joint Action Committee Against Amendment o f the Indian Patents A ct159 issued the following statement:

l5<s Patents (Amendment) Ordinance 2004 (India) at

hnp:.;'Vvvwvv.patcntofllcc.nic.in/ipiy'patcnt/ordinancc 2004.pdf

19 The Joint Action Committee (JAC) was a forum of trade unions, political parties and non­ governmental organisations. It was formed to oppose the amendment of the Indian patent law.

Participating NGOs included the Research Foundation for Science, Technology and Ecology, the Centre of Indian Trade Unions (CITU), and the Federation of Medical and Sales Representatives’ Associations

The Amendment is ostensibly intended to introduce a full-fledged product patent regime to make our patent legislation compatible with TRIPs. The ultimate undoing of the Patents Act 1970 is thus sought to be accomplished in a non­ transparent manner without any deliberations in the Parliament. Such a complex legislation of far reaching importance should have been a subject matter of a thorough, public examination by an Independent Commission. At the minimum, it should have been referred to the deliberative bodies of the Parliament such as a Joint Parliamentary Committee or the relevant Standing Committees of the Parliament for their considered views and recommendations.160

The Committee appealed to all members of Parliament to oppose the proposed Amendment to the Patents Act when the ordinance appeared before the Parliament for approval.

In a fracturing of any political consensus on the topic of patent law reform, the Left Front announced that it would oppose the Ordinance when it was tabled in Parliament, because of a belief that it would exacerbate poverty in India.161 The National Working

Group on Patent Law also announced its opposition to the Patents (Amendment)

Ordinance 2004 (India) and started lobbying to reopen the issue of compulsory

licensing and other flexibilities.162 Reji K. Joseph explained that: ‘The

of India (FMRAI). See ‘JAC Formed against Amendment of the Indian Patents Act’, P eople’s Democracy, Vol. XXIX, No. 1, January 2, 2005.

160 Declaration of Joint Action Committee against Amendment of the Indian Patents Act (December 2D, 2004) at http://Yvww.cptcch.Org/ip/hcalth/c/india/ngodcclaration 122920Q4.html

161 Sreenivasarao Vepachedu and Martha Rumore, ‘Patent Protection and the Pharmaceutical Industry in Indian Union’ (October 2004) Intellectual Property Today 44-46, 46 at

http: //w w w. ve pac hed u. co m/ip i nd. pd f.

Recommendations of the Commission became the breeding ground for the protests from various comers when the UPA attempted to introduce the final amendment Bill in December 2004.’163 The recommendations of this group along with many other

proposals provided a strong basis for the revision of the Patents (Amendment)

Ordinance 2004 (India).

Meanwhile, several regional treatment campaigns and international non-governmental organisations also started writing letters to key figures of the Indian government and the Indian National Congress urging them to carefully consider patent law amendments.164 The New York Times also wrote a damning editorial, observing that:

India’s government has issued rules that will effectively end the copycat industry for newer drugs. For the world’s poor, this will be a double hit - cutting off the supply of affordable medicines and removing the generic competition that drives down the cost of brand-name drugs. But there is still a chance to fix the flaws in these rules, because they are contained in a decree that must be approved by Parliament. Heavily influenced by multinational and Indian drug makers eager to sell patented medicines to India’s huge middle class, the decree is so tilted toward

l6j Rcji K Joseph, ‘Political Economy of India’s Engagement with the WTO: An Analysis in the Context of Amendment of India’s Patents Act (accessed on December 29, 2009) at

http://vvwvv. urfw.cdu/hri/WTO/Paper%5 B 1%5 D%20-%20reii.pdf

164 See: Affordable Medicines Treatment Campaign, ‘Letter to Sonia Gandhi on the Amendments to the Patent Act’ (December 20, 2004); Medecins Sans Frontieres, ‘Letters to the President, Prime Minister and National Advisory Council of India’ (February 22, 2005); Health Gap, ‘Letter to Prime Minister

Manmohan Singh on the Upcoming Amendments to India’s Patent Law’ (November 8, 2004. For further details and more documents: http://www.cptech.Org/ip/health/c/india/patents-act-amendments.html

the pharmaceutical industry that it does not even take advantage of rights countries enjoy under the WTO to protect public health.165

Seeking to appease such protestors, the ruling Indian National Congress agreed to

consult other Parliamentary parties to improve the provisions of the Patents

(Amendment) Ordinance 2004 (India).

Mr Pranab Mukherjee, the Defence Minister at the time, played a key role in convincing Left parties to adopt a new position on patent law amendments. He persuaded Mr Jyoti Basu, the leader of the Communist Party (Marxist), to support this legislation. Mr Pranab Mukherjee had to struggle with his own party colleagues and pressed his fellow Cabinet Minister, Mr Kamal Nath, Commerce Minister to agree on the compromised text stating that ‘an imperfect legislation is better than no legislation’.166 In order to appease its Left Front partners, the government agreed on several amendments to the patent regime. In the final bill, some of the most contentious matters were dropped from the Patents (Amendment) Bill 2005 (India) and it was decided to refer them to a committee of experts for final resolution. In April 2005, the Patents (Amendment) Act 2005 (India) was enacted with the support of the Indian National Congress and the Left Front. The Bharatiya Janata Party did not show the reciprocal courtesy to the ruling party and vehemently opposed the Bill which it had initially introduced in the Parliament. It is worthwhile highlighting some of the key themes in the parliamentary debates over patent law.

165 Editorial, ‘India’s Choice’ The New York Times, 18 January 2005, at http:/7\vwvv.nytinies.com/2005/01 /18/opinion/18tues2.html? r^I& oref-login. 166 Aditi Phadnis, ‘Pranab: The Master Manager’ (March 29, 2005) Recliff at http://www. reditT.com/monev/2005/mai729patents.htm