Patent Invalidation Procedures in the WTO Member BRICS Countries: India Provides a Model Legislation

Abstract

Eighty percent of the world’s population lives in emerging markets, and a significant portion of this population is not receiving healthcare or at least is not receiving the healthcare they need. This is an issue experienced in all of the BRICS countries as well. The BRICS countries particularly need drugs for the treatment and management of infectious and communicable diseases. The affordability of healthcare is one of the key priorities of the BRICS countries. These goals may not necessarily be in line with the patent laws of the BRICS countries which are also members of the World Trade Organization (WTO). This article examines the patent invalidation procedures of the four WTO member BRICS countries, namely India, China, Brazil, and South Africa with the aim of evaluating the strengths and weaknesses of their procedural safeguards and learning from their experiences. The presence of a functional patent opposition model is of utmost importance for the BRICS countries, since this allows for the invalidation or opposition of patents that have been granted in their respective jurisdictions. However, except for India, none of the other WTO member BRICS countries have developed a well-thought-out patent opposition model. This study argues that the BRICS group provides a viable forum for India to promote its distinguished patent invalidation model. In turn, the WTO member BRICS countries can learn from India’s pro-health patent opposition model and reform their national patent laws to align with their public health priorities. This is especially important in the context of the pandemic like COVID-19, for example.