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Debate on Amendment to Patents Bill

Debate on Amendment to Patents Bill 

23 March 2005 

SHRI SHARAD ANANTRAO JOSHI (MAHARASHTRA): Mr. Chairman, since 1991, I have been associated with this controversy. In 1991, the debate on Intellectual Property Rights was more centred on agriculture. We talked more of micro-organisms and the sui generis systems than of pharmaceutical industry. And I stood for the great institution of Intellectual Property Rights as also of the product patents. This was opposed by a whole motley crowd. We had the Swadeshi Jagaran Manch on one hand, and then we had the Leftists on the other. And even the Gandhians and the Sarva Seva Sangha were opposed to the institutions of Intellectual Property Rights. 

Sir, the real reason is that the history of Intellectual Property Rights in India goes back into antiquity. We have had a system where the learning was not supposed to be passed on. The basic dictums were, “इमा विद्या अशिष्याय न देया”.That is, if you are not a true disciple, no learning should be passed on to you. And if anybody passes it on, then he earns sin. Similarly, the Intellectual Property Rights were despised by the Leftists who thought that any private property is bad. And we had a combination of these two things which resulted in opposition to the whole institution of Intellectual Property Rights and patents. 

The 1970 legislation was a very ugly kind of compromise between these two situations. What it permitted was process patents but not the product patents. Now, process patent really meant that once you have the final product, you can break it up and do the reverse engineering and claim the economic advantages coming from that. Now this suited very well the intellectuals in the cities in India, as I call them, who are capable of plagiarism and copying of the research work done elsewhere. And therefore, they welcomed the movement. Now people think that process patenting has helped the development of India. I am sorry to say that It might appear that some of the industries like the pharmaceutical industries have developed, but that is because the whole of the country has been pushed in the direction of the West, pushed in the direction of allopathy; because everybody, who wanted to do some research went towards plagiarism rather than original research in the systems of Ayurveda. For example, today, we have been driven to borrow the anti-senility drugs and even the mental drugs because, even though Ayurveda was very much ahead in both these disciplines, we did not encourage research in Ayurveda and pushed our inventors towards the allopathic system and the western system. 

Now, I have two major suggestions to make, as far as the basic principles of the Act are concerned. Number one, Sir, I am opposed to the whole procedure of adversarial hearing of granting of patent rights. It takes a long, long time and then there is no secrecy that can be guaranteed. We recently have the experience where for granting the genetic seed, we took seven long years and once it was approved, the Government was not able to protect it. The seed became available in the private hands. 

Secondly, I would also like to suggest that despite of the fact that great lawyers have talked of broad perspective, I wish somebody had looked into, Mr. Chairman, the basic drafting of the law. I tried to through the draft of the law because somebody telephoned me at 10 o'clock at night and said the Bill is coming before the House tomorrow. And once I started looking into it, some astounding things have come to light. I must point out if only they had prepared a fresh Bill, there would not have been any of these problems. 

Let us see the first act. The first thing that it suggests in clause 2(b). I will not read the whole clause because that will take time. Now there is a reference to section 133 PA. Section 133 PA means Section 133 of the amendment Act. It doesn't say Section 133 of the Principal Act. If there is no 133 Principal act, I went back to the 133 Principal Act and I found that it talks of the convention countries. Now what is provided for is that the Government is required to notify the convention countries under the Section 133 of the Principal Act. By taking away that provision, what has the Minister achieved? The convention countries are those which grant the Indians the same rights as are granted to their own citizens. Now this situation is changing all the times. You can’t say today what is the convention country and you can’t be sure that the list has remained unchanged till the evening. So, notification by the Government of the convention country was an important thing. I don't know why it has been cancelled. So, the deletion or the substitution of the clause is not only a material change, it hides the very basic drift in the process that the Minister has kept before us. 

Second - Immediately next thing is very funny. There is a reference that the word 'or' should be added after the word "Companies Act, 1956". Now where have they mentioned it in that clause what Companies Act, 1956 is? It just doesn't figure. You said you will defend every word. I challenge you to defend. 

Then the third thing. The definition of 'food' has been omitted. Why has it been omitted? I can prove that the fact that the definition of 'food' has been omitted would actually result in disastrous consequences for the farmers. 

Mr. Chairman Sir, I could continue with each of the clause and say that it has not been properly drafted. I wouldn’t do that. What I mean to say is that why is the amendment act that came in 1999-2000, the JPC has sat over it; nobody has really sat with a magnifying glass to look at every word and every clause. And what has come out is a very slipshod work. And we will become a laughing stock if Rajya Sabha gives approval to this kind of a poorly drafted bad Bill. 

Therefore, I think if for nothing else, at least, for looking into the grammar and for looking into the material collections of it, this needs to be looked into by somebody else. If you don’t want to appoint a Committee for that, I am prepared to do that work for you. But that can’t be done overnight. That will take some time. Thank you.