Evergreening Practices: An Abuse of the Patent System

A patent is a grant or a right to exclude others from making, using or selling one’s invention and includes right to license others to make, use or sell it. It is an official document conferring a right or a privilege, letters patent writing securing to an inventor for a term of years the exclusive right to make use and sell his invention, the monopoly or right granted. After the expiration of the stipulated term or duration, the right comes in public domain, the technology or the product becomes easily accessible to any other person and the patentee becomes ordinarily barred to earn any more profit from his own creation. However, the life of the patented process or product is dubiously extended by a general practice of evergreening. It is in a way doing something which may be legitimized by innovation, modification, or manipulation of a patented product or process by the patentee but much to the detriment of the public at large. This paper is an attempt to evaluate the scenario in the light of balancing between the legitimate interest of the patent holders and the people in need of health care. The paper argues that Indian law is better placed in terms of preventing evergreening practices by pharmaceutical companies but needs to follow the best practices in some developed countries to get the desired result and achieve the global target of universal access to affordable essential drugs for public health.