Accountability of Patent Offices: Implications on access to COVID-19 Medical Products and Beyond

“Patent Offices in India act as ‘Gatekeepers’ between the patent holders and the public by accommodating public interest constructively. However, the threat of corporate monopolies needs to be balanced out,” said K. M. Gopakumar, Legal Advisor at Third World Network (TWN) while moderating a webinar discussion on ‘Accountability of Patent Offices: Implications on access to COVID19 Medical Products and Beyond’, hosted by Chinmaya Vishwavidyapeeth (CVV), in association with TWN Trust, on 13 June 2020.

Acahal Prabhala, Shuttleworth Foundation, Coordinator of Accessiba Project; P. H. Kurian, Chairman RERA-Kerala, Former Controller General of Patents, Designs and Trade Marks, GOI; and Prathibha Sivasubramanian, Legal Researcher at TWN, were the other eminent panellists. The COVID-19 pandemic and allied expenses suffered by the taxpayer makes it important to examine the Patent Office’s accountability and performance. Nithin Kumar, Assistant Professor of Law at CVV, introduced the topic, stressing the role of the Patent Office to balance the interest of the public with that of the industry, access to that of incentives to invent.

Prof. Gopakumar pointed out that the Indian patent law holds a high threshold to guarantee access and avoid weak or bad patents. However, he raised fundamental questions: does the patent office hold to the spirit of the law in its functioning? If it is not up to the mark, then what is at stake?

Achal Prabhala replied that a study from Accessiba Project found that 72% of the pharmaceutical patents granted were secondary patents. He also commented that the Indian patent office and law require a relook to effectively deal with high-end technologies like biologics.

Prathibha Sivasubramanian added to the discussion by signalling the callous nature with three patents provided to Remdesvir, a promising COVID-19 drug prescribed for emergency cases of COVID-19. For the first one, she opined that the patent office erred by not objecting to the vague and broad ‘Markush’ claims of the first patent. The second patent claim granted had no in vitro or in vivo test to prove the efficacy as mandated by the Supreme Court in case of Novartis. In the third patent granted, the patent office has overlooked the lack of novelty and failure to establish non-obviousness. i.e. the third patent of Remdesvir fails even in the basic patentability criteria.

P. H. Kurian, one who had been the man-in-charge of the Patent Office, expressed his concerns for the errors that take place while granting patents under the implication of law. He had pushed for the development of clearer guidelines to make the process more transparent and also proposed for effective and specialized training for the patent examiners by segregating them into groups.

Sreenath Namboodiri, of CVV, in his concluding remarks, summarised the discussion and asserted that the lack of structural integrity, political and bureaucratic influence over the patent office poses several concerns over the granting of patents to companies. All the panellists concurred in their opinion that patent offices need to take into consideration the present precarious status of licensed monopoly market and global public good nature of the COVID-19 treatment before granting further patents to COVID-19 medical products.