Medical Patent & Right to Human Health

By Payal Bhagchandani

A patent is not a positive privilege, but rather a negative right. It gives the innovator the right to prevent others from making, selling, importing, or exporting his or her invention. Patent rights that are imposed on the products related to pharmacy products are one of the factors due to which developing countries are not able to access affordable medicines.

The Patents are defined in India in the Patent Act 1970. A patent is a legal right given by the government to the inventors for preventing others from using, making, or selling an innovation for a set period. A patent is also available for the improvement of the innovation in the earlier invention. 

The healthcare industry, like several other technology fields, permits inventors to protect their ideas with patents and trade secrets, providing them with the edge over other competitors. Medical innovations generally take a long time and cost more money to bring the invention into the market. A medical patent is an exclusive right awarded by the sovereign to the inventor of a new product that is related to the pharmaceutical drugs, technique, or technology against market competition. It prevents competitors from manufacturing, marketing, or utilizing the patented idea for a certain time. A medical patent can be granted on various things such as medical devices, chemical/pharmaceuticals, health care information technology, surgical methods, and other related technologies.

A reason for providing medical patent is that these pharmaceutical treatments such as medicines have not evolved in a day and had taken years of rigorous research, most of which has generated little or no medicinal qualities and this research have caused a lot of money and time. A patent protects a drug from the generic competition (it is a competition between the products which are different in nature but their purpose is the same) for a specific period of time. Therefore creator of the drug can generate income to compensate for the expensive research and development required to bring it to market. However, this may make it difficult for low-income people to obtain the medication. A patent protects a drug from the generic competition (it is a competition between the products which are different in nature but their purpose is the same) for a specific period of time.

Medical patients are affecting the human right to health as it is an ideal state of being political and social well-being. Health is not only the absence of diseases or illness but also being physically and mentally fit. Human rights are the rights that all people are entitled to, regardless of their legal condition. As a result, it is not only a question of improving the overall health of socially and economically disadvantaged groups in society but also of improving their health and economic well-being.  Accessibility to healthcare is a basic tool for ensuring health, and it is a basic human right. However, with the current situation, both the right and the means to secure it are in serious challenge.

Access to patented medicines is a kind of conflict between human rights and Intellectual Property Rights. The concept of restricting lifesaving drugs from people suffering from deadly or severe diseases when the means or a process to provide them exist at an affordable price and in an efficient way is conflicting with fundamental moral principles. The right to access medicine is a kind of right to health which is a basic human right and therefore the medicine should be accessible, affordable, and available and the quality must not be compromised. A patent system would result in an inverse relationship between the cost of such products and the affordability of access. Some have suggested that the global intellectual property system is experiencing a problem of public validity, as patents may be restricting common people from accessing medications and exercising their “right to health.”

The pharmaceutical patent gives exclusive rights to the pharmaceutical companies for 20 years and there are high chances of misuse or use not in the right direction and this will affect our basic human right which is a right to health. Some pharmaceutical companies also used the technique of evergreening which is to extend their patent rights beyond 20 years by new inventions or secondary patents with marginal developments. The study of Dr. Firaz Ali Et Al which was conducted in April 2018 explained to us about the pharmaceutical grants in India where the main focus was on how the safeguards against evergreening have failed, why the system must be reformed, and where he analyzed all the pharmaceutical patents that have been granted between 1995 and 2016. According to his reports, only 28% of patients were primary and the other 72% of the patents are secondary. 85% of the secondary patents were passed without any detailed scrutiny.

When there is one supplier, there is a monopoly of a particular drug company and this will lead to an increase in prices when there is no monopoly, competition will increase which will lead to access to low-cost generic medicines. In the case of HIV/ AIDS medicine, January 2000 the originator of medicine was selling the yearly doses AVV Triple Combination drug was costing1000$ per year per patient but when in 2001 the generic company from India started manufacturing the drugs for the same with the price of $350 and this encouraged other companies too. So within a period of 5 years, the price of the medicine for HIV\AIDS medicine was reduced to $132.so as accessibility increased with the increasing market.

In the present scenario when there was the outbreak of covid 19 with more than 445 million recorded cases worldwide and the cases are still rising. The most effective way to prevent and control COVID-19 is to use vaccination. Many vaccine developers had filed a patent such as Moderna, BioNTech, Janssen, Inovio, and Gamaleya had filed patent applications for the protection of their vaccines. The Remdesivir patent filed by Gilead Sciences was approved in India in 2020. The patent stated that it is useful for treating Filoviridae virus infection and the coronavirus belongs to the same family of viruses. The report says that the price of Remdesivir in the United States is equivalent to Rs. 2.25 lakh for a five-day course but Indian companies can manufacture the drug at the lowest of Rs. 750 for the full course, so many organizations such as Cancer Patient Aid Associations (CPPA) wrote to the central government for the revocation of the granted patent of Remdesivir under section 66.

In October 2020, India and South Africa asked for a waiver of intellectual property rights (IPR) regulations waiver suggesting that the manufacturing process of a vaccine in very complicated and existing guidelines and flexibilities which were given by Trade-Related Aspects Intellectual Property Rights (TRIPS) are insufficient to increase the production. Through this patent waiver problem of vaccine, shortage problem will be solved at an affordable price and every human in this world will get basic human right that right to health. Many countries such as the USA and other developing countries supported but many other developed countries such as Japan and Germany disagreed with it. 

The patent system had increased the cost of medicines which had led to an increase in the risk of a life of people as accessibility is based on affordability and most of the people are not able to afford the medication charges because of their high prices and the patent plays a greater role in the increase of prices. According to the report of the world health organization on “Access to medicines: making market forces serve the poor” More than 2 billion people in the globe today do not have access to medicine, and medication prices are rising. Even in developed countries, prices are increasing which had led to the global crisis. Many individuals die because they can’t afford treatment, not because it doesn’t exist. Rising medicine prices are forcing families to become homeless, to invest their whole life and family savings just to cure a disease whose medication charges are highly expensive. These medication charges had also led to the bankruptcy of people and had also led to such a condition where people are compelled to do crowdfunding or fundraising to save the life of their loved ones. 

The patent system was created to motivate and encourage people to invent by providing them with a monopoly for a set period of time. But by looking at the present scenario, it seems that the intention behind introducing this patent system has been distorted as they want to increase their patent right as long as possible. The majority of pharmaceutical products with new patents do not have any significant change. The higher the company’s patent certificate, the longer it can have its monopoly, and with no one to compete with. due to this monopoly, they can set prices of the pharmaceutical products as per their will and People have no choice but to acquire these medications as they are necessary for one’s life. The patent wall is a strategy to block competition for 20 years or more. A new system of patents should be created or new reforms should be made which is are helpful for the people and are not exploiting them.