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India and TRIPS Compliance: Protectionist Policies


Subsequent to my post on India and TRIPS compliance issues, I received a very interesting email from one of my dear friends in the US. I reproduce the email and its response below. Would be great to hear what our readers think of India and TRIPS compliance issues.

The Email:

“Do you feel like you have to defend India’s interpretation of TRIPS against outside attack? I felt that some of your responses sounded a little defensive in the end.

For example, the problem with the mailbox is that it was clear that India has made a political deal with local companies as a sop to the introduction of patents for products. That is the reality, and it was a disappointment to the international community and not done on any consistent legal basis within TRIPS. Why bother to defend this as a TRIPS-consistent action when it totally undercut any meaning to the mailbox?”

The Response:

“As to why I did the post, I think we need to strike a distinction between what is good for national policy and what is TRIPS compliant. For a long time, we were told by the US and EU that Art 39.3 required data exclusivity and that we were not compliant. And for many other issues, the stick always used was TRIPS. I wanted to debunk this a bit. TRIPS leaves a lot of flexibility —and as I argue, a number of provisions (barring the one on parallel imports, as I point out in my note) is TRIPS compliant. This being so, let’s not waste time engaging with TRIPS. Let’s begin moving over to the substantive policy side of the argument—i.e. Does the introduction of data exclusivity make sense for India or not?

Yes, India did want to support its home grown pharma companies and hence enacted section 11A (the mandating compulsory licensing provision). Doesn’t the US do the same? And the EU. And Japan. In fact, I can point to plenty of examples where, under pressure from their domestic lobby, the US maintains laws that are inconsistent with the WTO. The Byrd amendment is an excellent case in point. Eleven countries filed an action against the US and won before the WTO.

Countries will only do that which is good for them, from a national policy perspective. And of course, some countries do not even have the room to do this, as they are bullied into regimes (that may not be in their best interest) by their big trading partners. Thankfully, India has reached a stage where she is economically more powerful and cannot be bullied anymore. So we have the luxury now of shifting the debate away from TRIPS and asking ourselves: is it bad to protect our home grown generics to some extent, after we’ve subjected them to a product patent regime? Particularly when a number of them have invested considerable sums of money into production of medicines, that get to be patented after 2005. It is protectionist—but is there something wrong per se with being protectionist. Almost everyone does it—are we any different?”

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Shamnad Basheer

Shamnad Basheer

Prof (Dr) Shamnad Basheer founded SpicyIP in 2005. He is currently the Honorary Research Chair of IP Law at Nirma University and a visiting professor of law at the National Law School (NLS), Bangalore. He is also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof Amartya Sen. Professional History: After graduating from the NLS, Bangalore Professor Basheer joinedAnand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Prof Basheer has published widely and his articles have won awards, including those instituted by ATRIP and the Stanford Technology Law Review. He is consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also serves on several government committees.

5 comments.

  1. AvatarGirish Malhotra

    Every country has taken a stance that is going to give it a competitive edge. This leads to an un-even playing field. Until recently developed countries have benefited from this unevenness. No one complained as it was acceptable. However, BRICS and other countries have seen the benefit of globalization and have started to challenge the dominance of developed countries. This has posed a dilemma for all as how to deal with it. The old saying is that “cat is out the bag” and now it can be put back in it.

    As the playing field is changing, becoming even and/or in favor of the developing countries there has to be a give and take.

    Let the rationality be the guide.

    Reply
  2. AvatarGirish Malhotra

    Instead of “The old saying is that “cat is out the bag” and now it can be put back in it.” it should read “The old saying is that “cat is out the bag” and now it cannot be put back in it.”

    Reply
  3. AvatarShamnad Basheer

    A very dear friend of mine, Chris Ohly, one of the leading patent litigators in the US writes

    “Shamnad –

    I disagree with you on very little. And I hope I am never disagreeable.

    However, I disagree with you strongly in your remarks about protectionism. I do not believe that protectionism has ever helped any society, let alone democratic ones. I believe completely in the benefits of open and free
    trade, and in the inevitable elimination of all barriers to free trade, including domestic supports of “infant” industries.

    I am aware of American
    history and our adherence to such protectionist measures, in the past. I am also aware that such protectionism was often accompanied by isolationism.
    None of this, in my view, has ever served the best interests of the United States. Those who fail to learn the lessons of history, Santayana said, are condemned to repeat them.

    I am also reminded of the Tragedy of the Commons. “What is the utility to me of adding one more animal to my herd?” See http://dieoff.org/page95.htm.

    The notion that there is social utility in protectionism is, in my view, a dangerous precept. It leads only to other, even more abusive and socially and economically inappropriate and inefficient behaviors. Simply because other societies may have employed protectionist measures in the past, in an effort to buttress their own emerging economies, does not make it economically efficient, socially responsible or morally correct.

    Chris

    Reply
  4. AvatarShamnad Basheer

    Dear Chris,

    Thanks very much for taking the time to comment on this. Just as I am not in favour of protectionism for the sake of protectionism, I’m also not in favour of a view where any kind of protectionism is seen as bad. I think if its makes sense from a national policy perspective, it ought to be done. India is a perfect example. If it hadnt done away with product patents in pharma in the 1970’s, we wouldnt have had such a robust domestic industry today. A protectionist policy clearly helped!! And a free market policy imposed on us by the British, wherein we granted pharma product patents from 1911 to 1970 clearly proved disadvantageous for us!!

    Reply

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