January 19, 2026 06:27 AM IST First published on: Jan 19, 2026 at 06:26 AM ISTIn my debut article titled ‘Enforcing the Patent Bargain’ (IE, January 30, 2023) under this column, I shared my views on striking a balance between enforcement of intellectual property rights (IPRs) and public health obligations in the context of Bharat. The broad undertone of the article was that while Bharat had obligations under TRIPS to enforce IPRs, it equally had the right under TRIPS to protect its national interest in the context of public health, among other things. Simply put, protection of public health concerns through TRIPS-compliant statutory mechanisms to prevent grant or enforcement of “evergreening patents” would not qualify as “protectionism”. As a sequitur, I had also taken the position that incentivising unlawful and inequitable conduct of evergreening patentees (especially in the pharmaceutical and agricultural sectors) would come at the expense of statutory rights and legitimate interests of other stakeholders such as the state, society and generic manufacturers. This would lead to sub-optimal and anti-competitive market outcomes.The purpose of the argument was not to advocate for disincentivising genuine innovation and the investment made towards it. Rather, the point being made was to prevent pharmaceutical innovators from having a second bite at a patent monopoly over substantially the same drug by repackaging it in a manner that does not enhance its therapeutic efficacy. Simply put, the patent regime of the country prevents the grant of a second patent on old wine in a new bottle in relation to any area of technology. With hubris-driven tariff sabre-rattling from certain quarters, this discussion assumes greater significance now since Bharat has not pressed into service all the legal and policy levers available to it to advance its public health goals as well as to deter abusive evergreening behaviour. Given that the conduct of so-called pharmaceutical innovators from the Global North has been called into question in their own countries, Bharat would be well within her rights under TRIPS to take a closer look at the conduct of the very same players within its territory and explore options under its patent framework.AdvertisementUnder Section 47(4) of the Patents Act, the government (central and state) does not need the consent of a patentee to import a patented drug from any jurisdiction for its own use or for distribution in any dispensary, hospital or other medical institution maintained by or on behalf of the government. It can, through gazette notification, extend the same facility to a non-governmental institution if the latter has a record of public service in the realm of healthcare. This wiggle room available under the Patents Act must be explored to ensure adequate availability of patented oncology drugs and the like, especially in rural areas where there is an acute paucity of quality tertiary private healthcare. The prevalence of life-threatening conditions is no longer an urban phenomenon, nor is their affliction limited to the affluent or influential.Next, under Section 66 of the Patents Act, the central government has powers of fairly wide amplitude to revoke a patent in public interest, after hearing the patentee, if the government is of the opinion that the patent or the mode in which it is exercised by the patentee is mischievous to the state or generally prejudicial to the public. To give effect to this power, the Centre may require the Patent Office to compile a list of patents that affect critical areas such as public health and agriculture, and examine such patents either for evergreening, or the manner of their enforcement or commercialisation to check if the patentee’s conduct has been prejudicial to the consuming public. Such an exercise could obviate the need for protracted conventional adversarial proceedings by private parties for revocation of evergreening/abusive patents, or patents owned by abusive patentees in the pharmaceutical space.Given that it has been the pharmacy of the Global South, especially Africa, under Section 92A of the Patents Act, Bharat could cater to the public health needs of African nations whose manufacturing capabilities in the pharmaceutical sector are either inadequate or non-existent. Simply put, it is possible for an Indian generic drug manufacturer to be granted a compulsory licence by the Indian Patent Office to manufacture the patented drug in Bharat for export to an African nation. Of course, the patentee may be compensated on reasonable terms for the issuance of the compulsory licence.AdvertisementThe Patents Act also has a provision for the application of the power of eminent domain. Under Section 102, it is possible for the central government, through a gazette notification, to acquire for public purposes a patent application or a patent over an invention. The compensation for such acquisition could be arrived at through mutual agreement between the government and the patent applicant/patentee, or a high court can determine such compensation in the event the parties fail to agree on the terms of the compensation.most readIn addition to such options under the Patents Act, it is also possible for abusive patentees to be hauled up for abuse of dominant position under the Competition Act 2002. With such a wide array of TRIPS-compliant powers which are statutorily available to cater to Bharat’s public health needs, given the number of instances of patent abuse through evergreening by “innovators” from the Global North that have come to light in the pharmaceutical space through a spate of judgments, it is time for the central and state governments to draw up detailed patent policies as part of their public health frameworks. While one understands that the issue is not purely legal and there are considerations of optics and pragmatism from the point of view of investment and trade, a calibrated policy framework must be put in place to respond to abusive behaviour, and invoked in public interest against habitual offenders.In the next article, I will discuss the other side of the equation — creating an ecosystem for innovation.The writer is a senior advocate practising before the High Court of Delhi and the Supreme Court of India. He is the author of India that is Bharat: Coloniality, Civilisation, Constitution, and India, Bharat and Pakistan: The Constitutional Journey of a Sandwiched Civilisation