Prioritising public interest in patent law of India

Introduction

On 26^th April, humanity comes together to celebrate the contribution of inventors and innovators to make life qualitatively better and to improve industrial processes. The annual celebration reminds us about the value creation made by the inventors to make the world a better place to live. The day provides a platform to connect the intellectual property (IP) offices, inventors, and enterprises to debate and to deliberate on the contributions made in the preceding years and to identify the challenges of the society to be resolved through creativity and innovation. Certainly, the main beneficiary of the deliberations must be people at large whose interests are suitably described in the legal instrument.

The legal recognition of monopoly right in favour of the inventor was considered as a method to reward the intellectually induced creation of the industrially relevant product. The legal regime, across the world, has created a comprehensive structure on the subject-matter eligibility to grant a patent, excluding certain categories from being monopolised and laying down robust procedural and substantial law to deal with the application of the inventor. The last century has witnessed State-cum-market-driven encouragement to individuals to protect the invention.

The write-up attempts to delineate the scope of “public interest” under the patent law of India. The author deliberately refrains from discussing the debate taking place under Trade-Related Aspects of Intellectual Property Rights[1]  (TRIPS) or World Trade Organisation (WTO). It describes the significance of the expression “public” under the Act. Further, it presents the argument that the overarching presence of the term “public” across the schemes of the Act puts an obligation on the State to invoke the necessary power to balance the monopoly right and the people’s interest.

Unveiling “public” under the Patents Act

The word “public” features on more than 40 occasions under the Patents Act, 19702. The word has been used alone or in the company of “order”, “interest”, “display”, “known”, “used”, “service” or “inspection”. Merriam-Webster Dictionary defines “public” as the people as a whole. The word “public”” envelops the idea of inclusiveness to identify the intended beneficiaries of the invention.

The scheme of the law suggests that secrecy is the key component until the patent is granted. During the consideration of the patent application, the Controller invites the public to counter the innovativeness claimed by the applicant. No monopoly right would be granted if the claimed invention is publicly known or publicly used before the date of application.3 The conditional right is granted to the patentee when the government hospital or dispensary is using the drug or medicine for public service.4 An enabling provision allows the Central Government to revoke the patent in case of mischievous use or where prejudicial to the public.5 One instance of the prejudice of the public is to strictly allow the use of the patent only for profiteering overlooking the interest of the society. The Central Government needs to play the role of watchdog to balance the interest of the patent-holder and the public at large. The Government can revoke the licence.

Black’s Law Dictionary defines revocation as an annulment, cancellation, or reversal of an act or power. The law confers sweeping power on the Government to nullify the recognition granted to the patentee for her invention in communitarian interest. The legislative design on the working of the patents clearly mandates that the exclusive right must be an instrument to promote the socio-economic interest of the country, availability of the patented products on affordable prices to the public, and authorises the Government to take all necessary measures to protect public health.6 On the lapse of three years from the grant of the patent, if the reasonable requirements of the public are not satisfied or unavailability of the patented product on the ground of pricing then the Controller may grant compulsory licence of the product.7  One of the considerations to grant the licence is the ability of the applicant to work to the public advantage.8 The idea behind granting the right to the patent is not only to serve the interest of the inventor but also the cause of the society. Consequently, the non-working of the patented product may lead to the revocation of the patent. What may otherwise be beneficial to the patentee could not be considered worth enjoying the protection under the law unless it serves mankind.9

The power of the Central Government extends to the grant of a licence, against the will of the patentee, to the third party in case of national emergency or extreme urgency. For granting such a licence, the Controller needs to balance the legitimate expectation to earn a reasonable return on the investment by the inventor and the capacity to pay for the patented product by the public.10 The provision which reads as “shall be available to the public at the lowest prices” certainly indicates the concern of the weaker sections of the society. The presence of “public purpose” is so overwhelming in the Act that it allows the Central Government to acquire the right of the patentee or the applicant by paying suitable compensation to the patentee or applicant.11

The foregoing provisions clearly build a narrative that after the grant of the patent the patentee’s right must be exercised in furtherance of the cause of the public. There are numerous statutory provisions to facilitate the Central Government or the Controller to invoke the necessary power to serve the interest of society. In a situation of conflict between the right of the patentee and the public interest, the latter should prevail over the former.

Should there always be a detailed procedural examination of the existence of the circumstances to justify the dilution of the patentee’s right to manufacture, sell or use? Or the law puts an onus on the custodian of the “public interest” to invoke the relevant provisions which take the exclusivity away from the patentee so that the benefit of the invention should reach the people without unreasonable delay. Is the Government not under a legal obligation to give force to the legislative mandate relating to the flexibilities enshrined under the patent law?

Pandemic, Public interest, and patent law

A pandemic carries the attributes of cross-border impact which severely threatens the life of individuals. Prior to the current pandemic, the world has experienced the epidemic earlier and perhaps channelised all the available resources to contain the scourge without getting into the debate of the ownership over medicine, drugs, and healthcare equipment. On the other hand, the current health emergency throws the unique challenge of finding a suitable clinical solution and minimising the impact of exclusivity of the rights acquired over the invention on the other hand. The excessive exploitation of monopoly rights may cause the deprivation of medicine and drugs to needy people.

The global pandemic has come as a reminder that innovation should not only set profiteering as a target but also serve humanity. Also, the longer is the time to invoke public interest to ensure the availability of the vaccine or drugs, the human race will be paying a higher price with the prolonged fight against the pandemic. There is a growing demand to invoke the provisions related to compulsory licensing and waiver of the patent rights at the international forum.12

There are enough legal bases to make the “public interest” core of the operating principles of patent law. The governing principles to justify the invocation of “public interest” shall be non-discriminatory accessibility, equitable affordability, and equal availability. Though the word “public” has been extensively used in the law, it has attracted little attention in the executive domain. Further to the relevance of “public” being defined, the weight of public interest in case of conflict with other considerations laid down under the law will be examined and the legal consequences of its breach.13After all, the value of the patent is always considered in terms of money which can very easily be compensated by generating a pool of resources but if the non-availability of the invention wipes out generation then the patent does not only lose the utility but also legitimacy. The provisions that allow the Government to deviate from the traditional rights of the patentee in the interest of the public must be seen as an integral scheme and not merely as an exception under the intellectual property law. The normative idea is to prioritise the interest of the public over private interest.

Sum-up

Let “public interest” be the core of the argument to promote intellectual property and be supported by philosophical, constitutional, normative, and ethical considerations. All the stakeholders should realise the goal of public interest ingrained in the development and systematic growth of intellectual property in general and patent law in particular. Amongst all the stakeholders, there is a large onus on the State to build a realistic strategy to give effect to the “public” element of the law so that its numerous provisions should not only appear rhetoric to the people for whom the legal system matters the most.

The elaborative use of the expression under the patent law can facilitate in developing the yardstick for the use of power by the State in furtherance of “public interest” which otherwise is a highly unclear concept.14 The main requirement underlining all public interest must have the characteristics of universality, non-discriminatory and equitable use of drugs and medicine to every needy individual. Let the onus be on the patentee to establish the precedence of its rights over the stake of the people instead of putting the burden on the State to justify the invocation of “public interest”.

*Associate Professor, Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology, Kharagpur. Author can be reached at  uday@iitkgp.ac.in

[1] Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), 1995.

2 Patents Act, 1970.

3 Section 25 of the Patents Act, 1970.

4 Section 47 of the Patents Act, 1970.

5 Section 66 of the Patents Act, 1970.

6 Section  83(e), (d), and (g) of the Patents Act, 1970.

7 Section 84(1) of the Patents Act, 1970.

8Section 84(6) of the Patents Act, 1970.

9 Section 85 of the Patents Act, 1970.

10 Section 92 of the Patents Act, 1970.

11 Section 102 of the Patents Act, 1970.

12Natco has filed a compulsory licence application for Covid drug Baricitinib under Section 92 of the Patents Act, 1970 and India pushing for waiver of IP rights at WTO.

13See, Lubos Tichy and Michael Potacs, Public Interest in Law, Intersentia, 2021.

14Winner Sitorus, Public Interest in Patent Protection: The Need of Criteria, Journal of Law, Policy and Globalization, Vol. 45, 2016, pp. 85-94.