PATENTS, MONOPOLY & IT’S IMPACT ON HEALTHCARE

Shivangi Pandey
UPES, Dehradun

Patents are a kind of intellectual property, which is a broad term used to refer to creations of the mind, including inventions, literary and artistic works, symbols, names, images, designs and trade secrets. The sole purpose of providing protection under Patent Law by any legislation is to provide exclusive rights to the creator. However this provision for protection of exclusive rights of the creator was never meant to create a state of monopoly in the market. The idea is to protect the novelty of the inventions which are new in the market and to give the creator a sense of security and return for his contribution to the society by his invention. 

In the era of globalization where boundaries have been transgressed, millions of people even today do not have access to drugs. Life saving drugs including vaccines for infectious diseases are also a part of this application and protection. The results are hardly acknowledged as it is borne by the under developed strata of the world. Patents are an incentive to the creators and when medical industry is taken into account the objective is to promote the research and development of such life saving drugs. With the world changing and variation of diseases being introduced due to the change in the lifestyle this research and development is essential. But in such due course Patent also gives such creator certain rights. Under such protection the creator or the inventor has the right to control and exclude all others from making or even selling such invention. As well as this right also gives the patentee exclusive right to determine the cost of his invention. He can control the supply of such invention to all nations where such patent protection has been recognized till 20 years. The aim behind Patents was to promote innovation but such powers only direct to creation of a state of Monopoly by such patentees.

The idea of reward to such discoveries as propounded by Adam Smith wherein he states that :

“For if the legislature should appoint pecuniary rewards for the inventors of new machines, etc., they would hardly ever be so precisely proportioned to the merit of the invention as this is. For here, if the invention be good and such as is profitable to mankind, he will probably make a fortune by it; but if it be of no value he also will reap no benefit.”

By this definition as well the idea of rewarding such inventors has been propagated. Even Jeremy Bentham propounded the same ideology about reward.

When discussed about the era of globalization, the earliest case noticed was regarding the Polio vaccine on April 12,1955.John Salk the person behind this effective vaccine refused to patent this vaccine and incur any profits from the vaccine. By 1979 no cases of polio from the wild polio virus were reported nationwide in US. The contribution of the vaccine was felt worldwide. The tentative profit to be incurred from the vaccine was estimated to be in billions. However when asked regarding the patent, John Salk replied “There is no patent. Could you patent the sun?”. His explanation was in itself a depiction of what patent in Medical field meant. Any product meant for the benefit of the humankind has no owner and therefore can’t be given the monopoly provided by the Right of Patents. Even the monetary benefits did not lure him to get the vaccine patent.

MANIPULATION IN RESEARCH :

 But in the case of modern era principles of Capitalism have affected the Patent registration in biomedical sector. Such participation is not limited to individuals, even big Corporations and industries are key players.  The purpose of providing patents were for innovation but the market oriented policies continue to depict different statistics. These policies have started to affects even the fields of research. The arena of research is limited to ones that are capitally beneficial and will provide monetary benefit to the Patentees. Diseases which have limited effects or which are not observed in the higher strata or the developed countries who are not capable of paying the high costs for such medicines are hardly recognized. Results are observed when research programs for diseases like Measles, pneumonia, Dengue, African sleeping sickness which have caused death rates to spike have not been acknowledged.

The Patent system has created a profit making scenario where the sole purpose has transformed into making profits. The Corporations have transformed their R&D teams to focus on the woes of the developed countries. The under developed ones continue to bear the wrath of the non availability of medicines for diseases prevalent in such regions.

STRATEGIES:

When the perspective on the issue of expenses incurred while researching and the returns to be obtained from such profits comes in light it should be noted that the investment done while such research and discovery is usually done under the security of recoup provided by Patents. Usually the research done at a lower strata is recognized and then the investment is funded by Huge Corporations who recognize a chance of such redemption at a huge economically beneficial phase. The expensive stages like the tests and the introduction to the affected which needs huge  funding are borne by the Multinational companies who notice the chances of huge profits. The security provided by Patents helps them to establish their monopoly and prevents any other establishment from inventing the same product and introducing it in the market. The profit incurred in such inventions are double fold. The neglect of poor nations diseases are one of these strategies.

COVID-19 RELATION:

The idea of patents of economically beneficial vaccines and medicines have turned out to be the temptation for R&D Teams across the world. Research, testing for a cure for this virus is in full swing. However the question is the motive. If the motive is as noble as it seems to be? The observation made is very different. The result of Patent given in this Pandemic would give power to the Pharmaceutical Company to determine who is capable of such medicine and who is not. The company would receive monopoly as well as full control over the market. The prices will be set in accordance to the norms of the Company and it can be presumed that only the economically stronger ones would be able to afford it. What will be the situation of the Pandemic then?

The Patents acquired in such sector are required for creating a state of legalized Monopoly which can’t be contested. 20 years in itself is enough for creating the deviant direction of flow of currency. These statistics are reflected in the non availability of the N95 Masks to many health workers as a result of being too expensive. The main reason behind the high prices are the Patent held by the Company 3M. A look into the products of this company reflects the wide range of respirator masks which are under the protection of Patents. The prices for such masks are controlled by the company and even the Government can’t interfere with the prices. Any copy or a cheaper version would lead to Copyright Infringement.3M has complete authority over the production, prices and  transfer even in this pandemic. However this problem is acknowledged only by a few as it is faced only by the HAVE-NOT’S. This is eventually affecting the treatments as well.

When discussed about the medicines, all the medicines which are currently being tested for Coronavirus  have patent protection. Japanese Flu Drug or Favipravir  along with Remdesivir are considered to be one of the most essential elements for Clinical Trials. However both of these medicines are under Patent Production in a variety of nations. Even further applications are pending for approval. These patents are turning out to be Generic barriers for research and development of the different compositions for the same medicine. Even molecules like Chloroquine used for treatment of HIV are also under patent protection. Another combination Lopinavir-Ritonavir which are also under such protection have created a state of confusion.

AMMENDMENTS REQUIRED:

With respect to the pandemic there have been many changes observed in the Patent legislations of many nations. It is finally realized that this pandemic should not be used as a source of income by the Corporations and Pharmaceutical Companies. The provision of Patents provided in the nation where vaccine has been developed will make a state of friction in its admissibility, manufacturing, transfer to other nations. There are certain ratifications acknowledged to ensure rapid supply of such vaccine throughout the world. One of them is the creation of a Pandemic Patent Pool. Patent pools are usually effective in aggregating, administering and licensing patents related to specific areas of technology. Such pools are usually managed by a central agency and the patents which become part of the pool are readily made available for licensing. Such pools will be effective in adequate supply of the vaccine worldwide and not constraint the supply.

Another amendment required is Compulsory Licensing which will be in effect immediately which will restrict Patents on a product which is considered to be essential. This will create a large number of manufacturers worldwide. The patent owners can be provided Royalties however the control over prices as well as the manufacturing should be taken. The procurement of income from Medicine should finally be kept at bay as it should be for patients’ welfare and no one else. This requires cooperation from all International payers, organizations, nations, researchers. Providing maximum benefit to people across the world should be the goal.

Another amendment required is of creation of PPP’s i.e Public Private Partnerships which has already proved to be interdependent in nature for their respective growth. The private industries have relatively advanced technology and other essentials for research and delivery of healthcare services.With such collaboration,such vaccines and medicines developed will have a larger scope of transfers and it will help recover from the repressive effects of Patent system.

CONCLUSION:

Nations like Chile, Ecuador, Israel have realized the destruction created by the legalized monopoly and have taken pre-emptive measures. Chile has allowed Compulsory Licensing in case of medical treatments. Israel issued compulsory licenses for lopinavir and ritonavir, Ecuador approved a resolution that asks the minister of health to issue compulsory licences over all patents related to Covid-19, Canada and Germany amended their patent laws to enable the swift grant of a compulsory licence, and Brazil is in the process of amending its patent law to make compulsory licensing easier.

With context to Indian Patent Law and healthcare services after the 2002 Amendment there were provisions adopted for Compulsory Licenses. This provision clearly establishes for grant of compulsory licenses on notification of the Indian government in circumstances of national emergency or extreme urgency like the breakout of epidemics.  These amendments will slowly create viable methods to avoid the regressive methods to the Healthcare services and smoothen the objective of Healthcare services to all.

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