Patients, not Patents, need to be at heart of the health care debate

Barun Mitra

[A version of this article has appeared in The Indian Express, January 28, 2004, and can be read here. <http://www.indianexpress.com/full_story.php?content_id=63547>]

The present debate over the Indian patent law has done a disservice to the poor patients by shifting the focus away from the more sickness that afflicts the health care system in India. Its not patents but the government hold on the healthcare sector that is preventing the poor from gaining access to medicines.

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 and 15% of total health care costs. This will not rise substantially when product patents are introduced – for two reasons. First, over 90% 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. Not because of patents. 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. Just as economic regulation had strangulated development.

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% 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 weigh 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.

Even if by some way, the world could bring down the prices of medicines to zero, medicines will continue to elude the poor. On the other hand, such a measure will only boost the profitability of spurious drugs manufacturers around the world, the murky merchants of death.

This debate over patent has done a disservice to the poor patients by shifting the focus away from the more sickness 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 system 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 ‘health tourists’ from overseas. The policies of the leftists would, ironically, perpetuate this two-tier system – instead of enabling every Indian to access high quality healthcare.

Political expediency is at the fore among other mainstream political parties. The present UPA government promulgated an ordinance to amendment that would make the Indian patent law compliant with WTO obligations in January 2005. The previous BJP-led NDA government had accepted the WTO obligations. Ironically, the then Commerce Minister who had originally introduced the amendment in Parliament, in December 2003, now says that he was misled about the implications of the bill, and has come out in opposition.

Indian pharma sector claim that it is price competitiveness will be compromised by the new patent law. Yet, many of them complain that they need protection from Chinese generic and bulk drug manufacturers. It should not come as a surprise that some of the Indian companies showed more interest in producing generic lifestyle drugs like Viagra, rather than meet the basic health care needs of Indians.

The Indian pharmaceutical sector should take a leaf out of the success of the information technology sector. Both based their initial strategy on weak IP regime. But from its inception, the IT sector aimed at the global market and soon graduated from copying to seeking copyright protection for their products. As a result, India’s IT industry is a global force to be reckoned with and international IT majors have invested in India, developed products specifically for the Indian market at locally relevant prices.
 
In contrast, the Indian pharma sector was not only protected from international competition, it was in effect subsidised by a weak patent regime. In a new book, Intellectual Property Rights: Beyond 2005, Bibek Debroy and Amir Ullah Khan provide evidence that the lack of product patents led to complacency on the part of domestic industry. The industry succumbed to the temptation of using foreign technology, tinkering with it only slightly to reduce production costs and suit the Indian market.

With globalisation, several of the major India pharma companies, including Ranbaxy and Dr Reddy’s, are seeking to break out of this mould and rub shoulders with the best in the world. This move is to be warmly welcomed – but will only happen once the companies are able to obtain patent protection for their product locally.  Then, the pharma industry will attract investors from around the world.

Indian patients deserve the best in the world. A deregulated and competitive health sector will stimulate research and innovation, and make quality service accessible to Indians. This will facilitate more private sector provision of hospitals, laboratories, manpower, insurance, and investment in R&D. Like in case of software, this will optimise the utilisation of Indian manpower in the pharma sector, and consequently the cost of drug development and research will fall. And the whole world will benefit.

Barun Mitra is the director of Liberty Institute, an independent think tank in Delhi. www.libertyindia.org