This piece aims to contest some of the propositions put forth by professor Prabuddha Ganguli in an article published on Intellectual Property Watch on May 20th, 2016. Prof. Ganguli gives a rather positivistic account, from a legal point of view, of the patent system’s functioning, which is not in itself wrong, but is certainly insufficient. The political, social and moral foundations and consequences of that system must be analyzed for a complete assessment of its effects over access to medicines.
That is the main issue with prof. Ganguli’s claim that “[t]here is no ‘ever-greening’ and/or extended patent protection in one form or another form”: it is built upon the observation of a system of legal norms that simply does not describe reality accurately. Although his demonstration of how patents refer to specific creations which may be freely used after their expiry seems correct on a cold analysis of the norms, that theoretical construct does not translate perfectly into practice.