NOVARTIS Patents Case Madras High Court Judgement

To Choose not to Choose is one of the most difficult choice any informed person can take on any given circumstances, leave alone under this extremely hyper sensitive NOVARTIS case. To exercise a choice becomes easier when the possible outcomes due to your choice are clear, especially if it were worked out on mathematical models or based on historical data. Not only the outcome in this case is unpredictable, the grounds which has forced one to make a choice is in itself challengable.

History will remember the Madras High Court Judgment on the NOVARTIS case as one of the steps which went on to undo the many damages which TRIPS, WTO has inflicted up on the developing economy in the name of globalisation.The case as widely covered in your paper, has two main elements - EFFICACY & INNOVATION.

The interpretation of EFFICACY and the way it is used to manipulate the protection granted to patents is being well documented. In the near future one can not be surprised even genuine discoveries get branded as manipulation due to this rampant trend of securing patents with tweaking of a few molecules, which is more of a streamlining of process rather than original discoveries.

INNOVATION as a tool has also been exploited by the developed world through a much more grandiose design. When the representatives of developing countries negotiated TRIPS and WTO with the rich countries to get additional foothold to the protected markets, they were not equipped and knowledgeable enough to appreciate the long term adverse impact on their health care system due to the agreements on Patents.For starters many of the countries did not have a government funded health care system and may be that is one of the reason why the impact was not properly assessed. For many in the poor countries it was the relatively well off who could afford many treatment and a little bit more additional cost on such select few, was not something they were willing to make noise about. The issue had not raised enough debate to become politically relevant.

The rich countries though, were fully prepared and argued their case and won the case for their multinational corporations. The result is working out to the disadvantage of many in the developing country and the pain & hurt is beginning to be felt. A wrong committed by ignorant few cannot be allowed to decide the innocent lives of many and that too public at large.

Another important aspect is the one related to the near absence of encouragement for INNOVATION in this country or for that matter in any developing country. Innovation, is achieved through incubation of ideas nurtured under experienced hands in carefully guided steps. It needs a steady supply of streams of young talented exploring minds well educated and trained. Their efforts are to be supported through adequately funded labs either by the government or private sector. Entrepreneurship backed by venture funds also make Innovation possible by fresh minds. All these efforts means, access to the best of infrastructure to continue their pursuits and earn enough to continue to be at it.

The near absence of such support therefore prevents an opportunity to have a level playing field across countries where due to globalisation one has to abide by the rules of Patents from a given cutoff date. Since the rules are framed by some one outside, centuries old home grown cures such SIDDA medicine, UNANI Medicine and AYUERVEDA are left outside the realm of Patents citing sub clauses of the patent act.

Such is the force of market economy, which allows well intended provisions for market making, capital formation and encouraging of competition, to lend itself to abuses by a few for creating monopoly and indulge in over exploitation.

Starting from Open source software to Scientific leaders engaged in Bio Technology research and Stem Cell Research are increasingly sharing their discoveries and making it available in public domain to benefit and add value. This sort of openness, they are realising, is bringing in substantial benefits to themselves, by cutting down on drug discovery time.

All this is leading to the question of GOOD and BAD capitalism , which is agitating the minds of policy makers world over. Under these circumstances, by deciding not to choose the learned Judge have acknowledged the inherent weakness of the law and its larger implications on the sovereign & constitutional rights of the public. Kudos to my home land Judiciary MADRAS High Court.