Of the two bills most likely to be placed before the parliament in the third week of December one, to be sponsored by the Industry Ministry, is more or less the same bill that was blocked by the Rajya Sabha in 1995-96 after it was passed with a slender majority in the Loksabha. The other , to be sponsored by the Ministry of Environment , would be on bio-diversity. A third bill , to be sponsored by the Ministry of Agriculture, on Plant Breeders’ Rights (PBR) might come latter. The first one, dealing with what have come to known as EMR and Mailbox , would get the priority because the Dispute Settlement Board of WTO has given India until 19 April, 1999, to get the bill passed.

Despite WTO pressure there is actually no need to rush the bill through the parliament. The present session will end on 23 December, but the parliament will again meet in the third week of February, and the inter-session period can be fruitfully used to consider in detail the highly complex issues that are arising with regard to this bill, desirably by referring it to a standing committee or select committee. But the government is unwilling either to subject its proposed legislation to scrutiny by any committee or to take time before taking the final plunge.

Even the idea that a great disaster would strike India if the 19 April, 1998 deadline is not met has no basis. Though the proposed legislation contains provisions that constitute the pre-conditions for WTO membership, since India is already a member of WTO, its membership would not lapse simply because these conditions have not been met. The provisions for expulsion are separate and not easy to apply. There is of course the risk of multilateral economic sanction led by the United States, but as revealed by the proclaimed sanctions against India and Pakistan following Pokhran explosion, such sanction is a double-edged sword and is likely to hurt the developed countries as well, the potential of Indian market being assessed highly by the multinational corporations. The same thing can be said with regard to the risk of being hit by Super 301, the unilateral trade sanction imposed by the United States from time to time; so far India had been on the hit list a number of times, but the threat did not materialise.

Rather than being brow-beaten by the United States and WTO and folding our knees, the time available now should be used to mobilise opinion among the third world countries so that when the TRIPs ( Trade related intellectual property rights) agreement comes for review in 1999-2000 revisions favourable to the former can be forced. Negotiations can be initiated within fora like G15, G77, and with trade blocks such as ASEAN and Andean Pact , and countries like China , Brazil and Russia , as well as the European ones such as Italy, Belgium, Denmark and Holland , to create a new international climate to amend, if not to eliminate, injustice done to the poor countries by way of 1994 Marakesh agreement.

2. Patents and TRIPs

Patents establish time-bound individual (monopoly) right over an invention, which may be a machine or a medicine , but not simply an idea. The person applying for patent has to prove that his invention is new, non-obvious and useful. . Patent rights imply exclusion of others from the use of patented product excepting under terms and conditions specified by the patent holder, usually in exchange of a fee or royalty. Most countries have patent offices in their major cities. If some one invents a new machine , say, a television or a watch or cycle or car, he goes to the patent office and claims that invention. If that claim is accepted, the inventor is recognised as the rightful owner of that product for a certain number of years, say, seven to fourteen years. This implies that if any one else wants to use it , he has to seek the permission of the inventor, and pay a fee or royalty for such use as prescribed by the inventor. Such permission has to be sought or the royalty or fee paid during the period of patent. After the expiry of the period of patent any one can produce or use it .

This time bound monopoly, allowed to an inventor, is usually justified on the ground that it would allow the inventor to recoup his cost of developing this product and would compensate him for the risk he undertook , and , thus, would encourages invention and development of new things and new ways of doing old things. Also that the system of patent, by rewarding inventor in this way, encourages others to go for invention , thus helping to extend the frontiers of scientific and technical knowledge.

Until 1994 April, when the TRIPs ( trade-related intellectual property rights) agreement of GATT was signed at Marakesh, and the launching of the World Trade Organisation (WTO) in 1995 January, countries had their own patent laws, and an inventor had to apply to get his product patented separately in different countries. A major change introduced by TRIPs is that the world market is now virtually ruled by a single system of international patents; the same standardised rules and norms are to apply universally irrespective of the size, capacity and economic level of the country concerned. Members of WTO have been asked to change their national laws in conformity with the international norms prescribed under TRIPs. The least developed countries like India have been asked to make those changes by 2005 AD.

Another aspect of the WTO-led patent regime is the system of Exclusive Marketing Rights (EMR). Under EMR, it is no longer necessary for a patent holder to apply separately to each country for patent rights. Once a product is patented in any one country, it becomes universally applicable to all the member countries of WTO. Every country is bound to give exclusive marketing rights to that patent holder, who can hold patent anywhere in the world, as long as that country is a member of WTO.

Two other significant changes made by TRIPs agreement and WTO are as follows. First, earlier a distinction was made between ‘product’ patent and ‘process’ patent. The Indian Patent Law of 1971 allowed process patent but not product patent. It was possible for an Indian pharmaceutical company to buy a ‘process’ of making a particular medicine, in exchange of royalty paid to the patent holder in a foreign country, but then to produce the medicine by using cheap, local material. This is why life-saving drugs are sold in India at a price which is one-twentieth of their price in developed countries. But now, under TRIPs, the distinction between ‘process; and ‘product ‘ patent has been abolished, and, therefore, after 2005 AD, when the deadline of TRIPs expires and the Indian law is amended accordingly, the ‘product’ can not be made locally with cheap materials, and will have to be purchased from the foreign companies at exorbitant prices.

Another is in the change that has been made to the period of patent. Under Indian patent law the maximum period for which patent right can be exercised in 14 years. Now TRIPs has made it uniform and universal at 20 years. This change has come at a time when there are weighty arguments in favour doing just the opposite - of revising the period of patent rights downwards. These days technologies change much faster, in a matter of three or four years. While radio and gramophone lasted for decades, the black and white TV , coloured TV, cable TV, VCR, multi-media-media, have come in quick succession, after every four or five years. In this situation, by the time the patent period of 20 years would be over, there would be no takers for the obsolete technologies. Even computers do not last beyond 4-5 years, while software packages are revised every two years or so. To revise patent period upwards to 20 years now implies that the MNCs would continue to control technological advance for ever. These MNCs have sufficient money power and brain power to invest in research and development and to perpetually maintain their lead over the less developed countries , so that long before one period of patent would be over another - better and more attractively packaged - product would be launched catering to similar needs.

Until TRIPs such patent rights were confined to things like machines and medicines, and did not extend to life forms such as animal or plant varieties, cells, DNAs, embryos , human body or parts of human body. The TRIPs agreement now requires every country to introduce some ‘protection’ of plant and animal varieties by way of patents; or by way of what they describe as a sui generis system. Sui generis means something unique or distinct , but serves the same purpose . Among the rich countries nearly all, including USA and Japan , opted for patent system in case of plant and animal varieties. The European Parliament was the last, as late as May 11, 1998, to adopt patents on life when a new law on patents on biotechnology was passed. The Indian government is also thinking along those lines.

4. Scenario after the accession to power of BJP

The scenario has changed with the BJP now being in the government. In the Rajya Sabha, the composition is such that the combination of any two of the three - Congress, BJP and its allies and the Left and democratic parties - can easily defeat the third.. The BJP strength being much smaller than that of Congress, on its own strength it is incapable of getting anything passed in Rajya Sabha. On the Patent Bill issue , the Left and democratic forces succeeded in 1995 because BJP supported us. This was rare and unusual because , generally, on economic issues , BJP sided with Congress. But now that BJP is in the government, it is keen to have close relations with the western countries. It has ditched the slogan of ‘swadeshi’ , a gigantic hoax that was believed by many, in favour of globalisation. Its Finance Minister, during his frequent visits to the United States, has expressed BJP government’s commitment to globalisation and WTO norms, and has stated time and again that its preaching of swadeshi has no bearing on that commitment. Despite the explosion of a nuclear bomb, courting the formal protest of the United States, in recent days it has extended all kinds of concessions to various US multinational companies. WTO, on its part, is mounting an enormous pressure on BJP to get the patent legislation passed. In fact , BJP is keen on getting the multinationals on its side in order to put pressure on their own governments for diluting of withdrawing sanctions.

Given all these, there is a serious possibility of BJP and Congress joining hands and getting this patent bill passed by the Rajya Sabha with a clear majority. This is going to be one more proof that , when it comes to anti-people economic policies, there is nothing much to choose between these two major political parties.

We are opposed to Exclusive Marketing Rights (EMR) because that would bring total domination of the Indian economy by the multinational enterprises (MNCs) with enormous capital. skill, and other resources, some of whom’s annual turnover exceeds the national income of some of the biggest countries of the world, such as Pakistan, and come very close to our own GNP. The Indian enterprises would be no match for them in competition, and there could be no level playing field between the giants and the dwarfs, as observed by Mahatma Gandhi in another context. The patents would provide them with monopoly to sell their commodities in Indian maket, and no Indian or competing foreign enterprise would be able to market those in India. It would no longer be possible for Indian enterprises to buy a process , and then use cheap Indian ingredients to make the product - for instance life-saving drugs - cheaply. Now product patent rights together with the monopoly marketing rights in the hands of te multinational companies would become a lethal combination that would destroy Indian industries and eliminate any hope of achieving self-sufficiency or development . The period of patent , at 20 years, would be too long, and by the time it ended the multinational companies would be ready with some new, more fashionable , more attractive and more user-friendly products to reduce the release of patent right to a matter of no consequence.

The idea of a mailbox, for receiving patent applications even before the 2005 AD, and even before the Indian patent law as been amended in accordance with WTO norms is a serious infringement on the sovereign rights of a country.

The only force that can effectively combat this conspiracy is that of the people of India , particularly of the middle class, peasants and workers, who would be the victims of the proposed , Fund-Bank and WTO directed, patent law.