Letter from Anand Grover, Director of the Affordable Medicines and Treatment Campaign's Lawyers Collective HIV/AIDS Unit, to Sonia Gandhi

20 December 2004

Sonia Gandhi
Chairperson, UPA
10, Janpath
New Delhi 110 001

Dear Ms Gandhi

Sub: Ordinance to Amend of Patents Act 1970

I am writing this letter on behalf of Affordable Medicines and Treatment Campaign (AMTC). AMTC is a national campaign aimed at creating an environment that will ensure sustained accessibility and affordability of medicines and treatment for every individual in India, including access to affordable Anti-retroviral Therapy for persons living with HIV/AIDS. It consists of civil society organisations, NGOs, patients groups, healthcare providers and concerned individuals. Through this letter, AMTC would like to bring certain serious concerns on the process as well as content of the third amendment of the Patents Act to your notice.

As you are aware that the amendment process of Patents Act was initiated by the previous NDA Government. A Bill was introduced to this effect in the 13th Lok Sabha in December 2003. However, the bill lapsed due to the dissolution of Lok Sabha. Public interest groups and individuals raised their objections on the Bill from the very beginning and requested the new UPA government to redraft the Bill. In response to these demands, the UPA government appointed a Group of Ministers (GoM) to examine the contentious issues in the Bill. However, the GoM, without inviting any comments from any stake holders, decided to retain the old bill without any substantial change. The only change the GoM agreed is to retain the pre-grant opposition with certain conditions. Further, recommendations of the GoM should have been made public to create a debate on this issue. Instead of doing this, the government went ahead with finalising the provisions of the Bill. Till date, the public is not aware of the exact content of the Bill, which is going to have direct impact on their enjoyment of right to health. As per our information, the Bill in its present form seriously compromises the accessibility and availability of medicines, a primary component of right to health. Introduction of the product patent is the only obligation under TRIPS to be carried out by India. However, the draft bill goes beyond the TRIPS obligation and strengthens patent monopoly without properly placing any safeguards against abuse of patents. Please find enclosed specific objections to the draft bill.

Moreover, we have learned from news reports that the government is bringing an ordinance to amend the Patent Act by converting the draft bill into an ordinance. The conversion of draft bill into ordinance is unwarranted and flawed strategy to comply with TRIPS because many provisions in the draft Bill goes beyond TRIPS obligations. Moreover, the ordinance route of amendment without any discussion is fall short of transparency requirement of any democratic government.

We feel that the deadline of introduction of patents should not be used as a justification for bypassing public debate on this issue, where right to health of millions are at stake. A few months delay in the introduction of product patent is not going to create any consequence to India. We would like to remind you the promise made in the Common Minimum Programme "to take all steps to ensure availability of life savings drugs at reasonable prices". Hence we seek your intervention as chairperson of United Progressive Alliance to prevent the government from introducing an ordinance to amend the Patent Act.

Hope to hear from you soon in this regard.

Thanking you

Anand Grover
Director, Lawyers Collective HIV/AIDS Unit For AMTC

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