When they found the implementation of WTO diktats in jeopardy on the Patent Act, CPM-CPI were forced to come into the open with their willingness to bow before the imperialist diktats. The BJP’s refusal to oblige both Congress and them by supporting a Bill over which it had no dispute at all, forced the revisionists’ hand. Those who have retained illusions about CPM-CPI’s class character wondered at this apparent ‘transformation’ which would put a chameleon to shame. That this happened on the eve of 23rd March – the martyrdom anniversary of anti-colonial martyrs Bhagat Singh, Raguru, and Sukhdev – adds to the irony of the occasion.

Not of course that the CPM-CPI acknowledge this. A brazen CPM and an embarrassed CPI leadership has been asserting the most mythical interpretations of their simple action of upholding WTO diktats to the country. In this aspect a ‘generational’ change has occurred in these parties – the old guard is doling out explanations. The CPM leaders have variously claimed that they have not supported the amendments to Patent Act by the WTO-compliant Congress Party – rather they have helped pass their ‘own’ Act as the original Bill was 'transformed' after incorporating seven of the nine amendments mooted by CPM-CPI. When saying this, CPM calls it a ‘small battle won’. They fail to answer, that when the passage of a Bill dictated by WTO was anyway not possible with both they and BJP refusing to support it, why didn’t they let it fall flat in the Parliament if the Congress put it to vote? It would have sent a brave message from India worldwide. It would have been a very small but definite defeat of a WTO diktat.

The CPI leadership took yet another public position. A beleaguered General Secretary Bardhan issued repeated denials at and before the CPI Congress (from 29th March 2005) to the charge of a ‘sell out'. He indignantly refuted the same. It had been consciously done, he said, to prevent the Congress – a secular force- from being driven to the BJP. Whether CPI-CPM would continue to facilitate sale of India to imperialism to the same end (i.e., majority communalism is a bigger enemy than imperialism, even over looking the communal credentials of Congress) he neither specified nor denied, though it logically follows and is following. In a spell of three months of 2005, the UPA Government has allowed FDI entry to the tune of 74% in insurance, ensured TRIPs’ compliance, opened pension deposits to foreign funds (a step later postponed by By CPM, CPI), announced mergers of public banks – none of these steps being possible without CPM-CPI support.

After this, the CPM leaders have the temerity to announce that they should be helped to “overturn the trade-related aspects of IPR and to launch a campaign ...” (The Hindu, 24th March 2005). Fight TRIPs, when you kowtow before its conditionalities, refuse to demand that India exit from WTO, support pro-imperialist reforms? Your Congress takes globalization to be an ‘inevitability’, your Government in West Bengal and the Government you prop up at the Centre implements every single imperialist diktat at a speed which the NDA did not dare to adopt. That is because the Dengists and the Dangeites are side by side able to subvert the working class and peoples’ struggles from building up to throw out those policies which are against the people and the country. Whatever their ‘differences’ which do not allow unity of their parties (as expressed by CPM leaders) they are quite one on pro-imperialist policies!

Anti-national Character of Patent Bill Amendment Unchanged

The chief but subtle propaganda of CPM-CPI especially CPM, is that by their intervention, they have through their amendments to the UPA Ordinance (which became the Bill text) changed the very nature of the Patent Act Amendment Bill so that it no longer retains a character against the country’s interests. That is what they imply when CPM talks about ‘a small battle won’ – that they have safeguarded the national interest.

The reality is otherwise. Such tall talk by the CPM-CPI only manages to sustain because the issue under discussion is a technical and scientific one, so not easily comprehensible. It is equally because no section of the ruling class and of the media controlled by it, is willing to expose them, as all sections stand for pro-imperialist policies getting through without people understanding too much.

But a careful study of the amendments put through on CPM-CPI insistence makes it clear that the nature of the amended Bill has not changed by it. That the original Bill was anti-national is the CPM-CPI’s own position. What has happened, however, is that some facilities earlier available to India’s pharmaceutical industry would continue for some more time and the effects of some other provisions would be delayed. CPI Gen. Sec., Bardhan, acknowledged as much when he himself shot down suggestions that drug prices would not rise, though he falsely asserted that the ‘last word’ on the Patent issue has not been said. The fact is that now that both houses of Parliament have passed the Bill, it has been said. It can only be upturned by struggles of great magnitude, not by words.

A good deal of what the actual utility of the ‘Left’s’ amendments are can be gauged by what their friends say about it. Frontline (22nd April 2005) carried an article where it said the result was “a relatively loose patents regime for now” and then commented “When the weak win a skirmish against the giants they can be forgiven for feeling so elated as to think they have won the war.” It is quite clear that there is no substance to positions that CPI-CPM have changed the character of the TRIPs dictated amendments. The promise, rather, which they have indicated is that WTO will be followed.

What are the CPI-CPM’s amendments?

Seven amendments proposed by the CPM-CPI to the original Bill (the Ordinance) have been incorporated; two have not been but have been dumped on an Experts’ Committee. Of these two, one is so vital that it is shameful CPM did not make a condition out of it – disputing the patenting of micro organisms. It is an issue which did not figure in the TRIPs deadline for January 2005 but our ruling classes are of course over eager to please the masters. The other amendment not accepted is a specific definition of ‘new’ entities (i.e., what would be called a ‘new’ drug and thereby could apply for patent). Its non-acceptance raises doubts about the credibility of the accepted amendment on patentability.

The Effect of these Amendments

The amendments tabled by the UPA Government to its own Bill pertain to seven issues – (1) restrictions on patentability, (2) pre-grant opposition to patents – more scope given, (3) no patenting of computer programmes with technical applications, (4) continued manufacture of drugs with applications pending in mail box, (5) time period for considering application for compulsory license, (6) export to countries without manufacturing ability and (7) continued export by Indian companies of patented drugs being manufactured in India under compulsory licensing.

To properly comprehend that the CPI-CPM amendments have changed nothing materially, there must be adequate understanding of a few terms. A ‘compulsory license’ is a way to overlook a patent holder’s rights. It is issued by governments when they feel that the drug must be cheaper for  social good, and it can be challenged in court by the patent holder. It allows other drug producers to undertake to manufacture the drug cheaply. Another term is that used for drugs which use different processes to reach the same product- they are called 'generic drugs' of the patented drug. 'Patentability' refers to how to decide whether a drug is new. Since patents expire after some years, patent holders change some minor aspects (cosmetic changes) and apply for a 'new' patent- this is called 'evergreening' of a patent. A 'patent in a  mail box' means pending patent applications awaiting a change in law. For example, India had ten years since 1995 to change its laws under WTO rules. Some patents, disallowed by the laws of 1995 are 'in the mailbox' and will emerge now as patented drugs.

The new amendments can be assessed in this context. By restriction of patentability is only meant that a small clarification has been added as a precaution against evergreening- that to be a 'new' drug there must be a new entity involving one or more inventive steps, and that a new use or form of an old drug will not be patentable. This is no earth shaking transformation- TRIPs itself does not disallow these criteria, and there was criticism of the UPA Ordinance that it did not even incorporate those safeguards allowed by TRIPs. 

A second incorporated amendment pertains to generic drugs (as defined above) under manufacture of drugs with mail box patents. There are drugs which are in the mail box since 1995, which will now get patents but whose generic products are being made by Indian companies. The UPA's initial Bill (i.e. the Ordinance text) only stated that such companies would not be allowed to be sued in retrospect by those who now get patents (i.e., which were in the mail box upto 2005). This meant that Indian companies would have to withdraw their drugs from the market once patent was granted. The amendment now made states explicitly that these Indian companies can continue to manufacture the post 1995 generic drugs (copycat patents) after paying adequate royalty to the patent holder.

There is, firstly, nothing very innovative about such a provision. Patent holders in different spheres allow scope for royalty payments. Rather the catch here will be what is a “reasonable royalty”? Won’t it send the drug’s price skyrocketing – the patent holder will like his own to be cheaper and will make the royalty big enough. Won’t Indian drug companies pass on the cost of the royalty to the consumer? What ‘pro-national’ change has been made in the Bill by addition of this amendment, or which anti-national step has it combated? Rather it is doling out a standard and expensive pill to the Indian manufacturer in the name of acting for them. In most  countries the rate of royalty payment has been fixed at 4% but not here. The amendment imagines that if this part proceeds 100% smoothly (which is not possible) hike in drug prices will be postponed to new patents i.e., new drugs patented after 2005 for which generic products will need new compulsory licenses. Actually TRIPs itself allows compulsory licensing of all drugs if the government so wants – only the government will have to override litigation from patent holders.

Regarding royalty, against the old provisions of fixed royalty linked to turnover, it is the TRIPs text that provides the phrase “adequate remuneration in the circumstances in each case, taking into account the economic value of the patent.” It shows that CPM-CPI amendment is only more TRIPs compliant.

Two provisions pertain to compulsory licensing. One allows Indian companies manufacturing drugs in India under compulsory license to continue to export the same. The second allows Indian companies the right to manufacture and export patented drugs to those countries which do not have manufacturing ability of their own, when these countries express a desire to buy such drugs. The earlier Ordinance stated that this could be done only if the buyer country issued a compulsory license for the same. The reason is, when the country issues a license it can be contested by the patent holder – now it seems the Indian company can continue to manufacture and export the drug without the buyer country going through the issuing of license.

There are many ‘ifs’ and ‘buts’ in the above step, whose viability will only be clear eventually. But at all events, it only defends or even broadens some export rights of Indian companies to export (and manufacture for that purpose) medicines that too, for a period. It does not touch the anti-national provisions of TRIPs or ensure cheap(er) drugs to the people of India. That is why even in the national media controlled by ruling classes – while the passage of the Bill by the CPM-CPI has been applauded – doubts have been raised about what effect there will be on drug prices. For example, “The process was commendable even if one still has doubts about the product.” (The Hindu, Editorial, 24th March 2005). Another paper has categorically stated that patent related legislations are going to shoot up and patent attorneys will be the gainers. One must remember also that the UPA Government has allowed foreign lawyers to practice in India, albeit with some strings of 'exams' etc. Other papers have emphasized the need for Indian companies to pull up their socks and get down to serious research and development of new drugs.

While the Ordinance allowed pre-grant opposition to patents, one of CPM’s amendments specifies more about this facility (but does not violate the limits of TRIPs on safeguards). Indian companies will have six months from the publishing date of the patent to challenge it, and can be party to legal proceedings. Giving time for considering applications for grant of compulsory license will allow generic drug producers to postpone royalty payments or the effects of patents to come into force. On computer programmes with technical applications, Doha agreement allows countries more breathing time on this issue as well as on microorganisms' patenting.

In a nutshell, all the so-called changes which ‘won a battle’ in the CPM-CPI’s imagination are only to postpone the application of curbs on manufacture of ‘generic’ drugs (i.e., patented drugs by different processes) by Indian manufacturers. They do not represent a "setback to MNCs" as claimed by Frontline (22nd April, 2005). They are going to have little or no effect on drug costs for the Indian consumers i.e., the basic classes. Anyway it should be clear that under WTO and TRIPs provisions, governments very much have the right to issue compulsory licensing to all drugs which they want to be kept cheap for their people but they have to do it in the name of public use or national emergency. TRIPs and WTO itself relies on compliant anti-people governments to help them loot, and does not actually bypass them. Indian ruling classes have proved themselves fully compliant and fortunately the Patent Bill has given clear opportunity for those who are willing to see, to see the compliance of the ‘left’ wing of the ruling classes, i.e., CPM and CPI.

The anti-national character of the TRIPs stipulations lies in the fact that it seeks to usurp control over drugs, chemicals and agricultural chemicals' production into the hands of few patent holding MNCs, that it excludes the vast majority of the people of Asia and Africa from access to modern and scientific medicines due to financial reasons, and that it aspires to bring the rich and varied life forms of these countries into the exclusive clutches of MNCs. The CPM-CPI’s amendments do nothing to attack these ends. In fact, the only patriotic step is to refuse to comply with TRIPs – once the premise is that it must be followed, the rest is a matter of time.

In this context, the joint Press Conference of defence held on 23rd March by the then General Secretary in waiting of CPM, Prakash Karat, CPI’s D. Raja and All India Forward Block General Secretary, which talked of need for “launching campaign” as “TRIPs agreement places severe limitation on the nation’s ability to enact national legislation …” etc. is an exercise in self-laundering and rhetoric. Everyone in politics knows clearly by now what WTO and all its component sections aim to do – even common people, reeling under the effects of its policies, have a growing comprehension about it now. The point is, when you know it is anti-national, is it to be rejected or kowtowed to? The revisionists sabotaged the developing movement against Dunkel Draft from emerging as a movement for demanding that India quit WTO. NPMO under their leadership not only refused to adopt this slogan but also opposed only the anti-people' aspect of new economic policies, not the entire gamut of structural adjustments imposed by imperialist lending agencies. They moved to advocating the reforms albeit with a human face. And now on the Patent amendments they have actually displayed their true face. The Indian struggling masses must be educated about and helped to see the same in order to win fighting forces over to the side of struggles.

In this context on the question os Patents, who will remind CPM, CPI that rather than pontification over TRIPS no communist worth the word stands for right of patenting of scientific knowledge. The true demand should of scrapping Patents on drugs and scientific inventions altogether, so that all people of the world can freely avail of the benefits of scientific advances.

The immediate need is to build a broad based movement against the amendments to Patent Act. Scientists also need to come forward to explain the real nature of the changes wrought by these amendments. Many new laws dictated by TRIPs are in the pipeline for enactment, which will result in attacks on ownership of our life forms, our seeds, our varied and rich biological diversity. The need of the hour is for building struggle against the whole gamut of these policies.