The present debate over the Indian patent law, despite the passion, is underscored by the desire to score political points. Consequently, most of the arguments have been disconnected from reality. India has been a proving ground for those who oppose patents on pharmaceutical products. We scrapped all product patents in 1972. As a result, India is now home to over 20,000 pharmaceutical companies producing copies of drugs developed — and patented — elsewhere. However, access to medicines remains poor — suggesting that patents are not the key determinant of access that their opponents claim.
In India, medicine represents between 10 percent and 15 percent of total health care costs. This will not rise substantially when product patents are introduced, for two reasons. First, over 90 percent of the medicines in the Indian market are now off-patent globally. Second, for most of those that would be patentable, there are close alternatives available which provide effective competition. Poverty and associated malnutrition dramatically exacerbates the incidence of Malaria and TB, preventable diseases that continue to play havoc in India decades after they were eradicated in rich countries. Poor sanitation and polluted water sources prematurely end the life of about 1 million children under the age of five every year.
The real reason for the lack of access to medicines and other forms of healthcare is the prevailing stranglehold of government regulation of health sector. The public sector healthcare provision is a sick joke, characterised by shortages of hospitals, beds, equipments, medicines, and manpower. Claims of medical negligence and malpractice are frequent. Hospitals in India are often dangerous places. In spite of the risk of infection with HIV, the government of India recently admitted that 69 percent of injections administered in public hospitals could be unsafe.
In the face of poverty, inadequate health care delivery systems, and grossly inadequate sanitation systems, patents should at best be at the periphery of the health care debate, not at its centre. Yet many have argued that the introduction of product patents will undermine access by driving up prices of medicines. Several Health NGOs have claimed that AIDS patients will be particularly adversely affected by the introduction of product patents, saying that the price of medicine in India is likely to shoot up.
The New York Times added its weight in a recent editorial which argued that the poor in India and elsewhere will be denied access to AIDS medicine if India amends its patent laws to include product patent. Yet it is conveniently ignored the fact that barely 1% of the estimated 3.5 million Indians with AIDS receive any kind of treatment at all. Some international NGOs have added their voice, saying that poor countries in Africa that import cheap generic medicines from India may suffer. It is ironic that these activists think Indian generic producers could save lives in Africa, when the same companies fail to reach out to patients at home. Clearly, for many NGOs, ideological antipathy towards MNCs, patents and profitability in the health sector takes priority over issues that actually affect health care for the poor.
This debate over patent has done a disservice to the poor patients by shifting the focus away from the more serious illness that afflicts the health care system in India. Proper delivery of medicine is dependent upon a lot of factors- access to and availability of appropriate medical personnel, diagnostic facilities, treatment regimen, regular monitoring, diet and nutrition, etc. Without this basic infrastructure, health care can hardly be delivered effectively nor can medicine be administered properly. Patent or not. Priced or not.
Left wing political parties have also been vocal opponents of pharmaceutical product patents warning about the danger of the Indian health care sytem falling prey to profit seeking multinational corporations. Yet, they ignore the fact that most Indians dread the day they visit a public health facility. By contrast, some of the private healthcare sector in India is so well regarded that it is attracting