India's IP regime: Patent error

Feb 21 2014, 21:08 IST
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SummaryIn its criticism of India’s IP regime, the US takes its cue from flawed rankings.

Even as the Khobragade scandal fades from public memory, another controversy threatens to derail US-India bilateral relations. This time around, the battle is over intellectual property (IP) rights. A US governmental agency, the International Trade Commission (ITC), recently initiated an inquiry into allegations that India’s IP regime was flawed and at odds with US business interests. In the Khobragade case, there had been noise about how India had to learn to respect the “national” laws of the US. The present controversy highlights the US’s efforts to coerce India to amend its national IP regime to suit the former’s business interests.

Clearly, multinational pharmaceutical companies are upset with India’s rigorous patent threshold. In other countries, patent regimes are routinely gamed to protect and even promote the evergreening of drugs (that is, when an old drug that is off patent is modified ever so slightly so that an additional patent monopoply can be procured). India, in its 2005 amendments to the patents act, sent a clear message that it would not suffer evergreening. The “notorious” Section 3(d) has been used to axe many an evergreening attempt, the most significant being Novartis’s anti-cancer drug, Glivec.

In similar vein, India went on to grant a compulsory licence to Bayer’s excessively priced anti-cancer drug (selling at Rs 2.8 lakh a month), paving the way for a cheaper generic to enter the market at Rs 8,800 per month. All of this was done in conformity with Indian patent law and WTO obligations. More importantly, the licence was issued after a rigorous judicial process. Yet, big pharma continues to remain peeved and has been offering testimony after testimony in the US on how Indian IP law is not “respectful” of global pharma interests. It seems oblivious to the fact that US courts denied injunctions to patentees and effectively granted de facto compulsory licences when they deemed it necessary in “public interest”.

The Bayer and the Novartis cases will no doubt take centrestage at this inquiry, triggered by senators who complained, among other things, that India “has applied its patent law in a discriminatory manner, particularly against innovative US pharmaceutical companies, so as to advantage its domestic industries”.

In what appears to be a bid to show India in poor light at these hearings, the US Chamber of Commerce’s Global IP Centre (GIPC) issued a timely report ranking the IP regimes of a curious assortment of 25 countries. Unsurprisingly, the US topped

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