“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?”
“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?”