India's competition laws were framed before the patent law amendments came into place in 2005, they point out.
"The Competition Act needs to be reviewed by the government and amendments that facilitate the usage of the Act vis-à-vis patents for drugs and resulting monopoly and dominant position should be introduced," said Leena Menghaney, project manager Medecins Sans Frontieres (MSF).
MSF runs an international campaign for access to essential medicines with a focus on AIDS treatment.
According to Menghaney, the current legislation lacks the "crucial legislative synergy between patent and competition law".
"There is also a lack of clarity as to what can be considered as an anti-competitive practice and who monitors excessive pricing of medicines to bring it to the notice of the Competition Commission. The Sections 3 to 6 of the Competition Act need to be reviewed keeping in mind anti-competitive practices arising out of abuse of dominant position by the patent owner."
The Competition Commission of India (CCI), however, finds the fears to be misplaced.
"The CCI is empowered to inquire into any unreasonable conditions attached to the intellectual property rights (IPR) agreements. It can impose penalty on each right holder or enterprises which are involved in activities like packaged licensing, payment of royalty on patents as well as patent pooling among others," said CCI acting chairman Vinod Dhall.
Besides, the Commission has the powers to direct the companies to modify their agreements on patent sharing, discontinue or impose fine up to 10 per cent of the turnover for the last three financial years and ask a company not to re-enter into agreements, Dhall added.
He further said: "In case of abuse of dominant position under Section 4 by virtue of an IPR by an enterprise, in addition to the above penalties, the Commission has the power to order division of enterprise under Section 28 of the Competition Act, 2007. We can take suo motu action or even on the basis of a complaint from common man."
Senior executives of domestic companies like Cipla and Natco were also apprehensive of the current provisions under competition laws. They felt that there are several grey areas in the current Act, which may prevent easy entry of low-cost versions of patented products in the country.
Even though Indian generic companies are slow on exploring the options available under the Competition Act, they have started approaching the patent offices to issue compulsory licenses for export of patented medicines to least developing countries.
Natco is known to have plans to approach the patent controller for issue of compulsory licence to export one of its anti-cancer medicine to countries like Sri Lanka, Ukraine and Nepal using similar provisions.
