Of Compulsory Licences, a Few Good Men and Patent "Teachings"


Some months ago, the Indian Patent Office handed down what must rate as one of the most significant IP decisions of this decade (and perhaps the last several as well).  A decision that elicited as many supporters, as it did critics. Reputed economics professor, Arvind Panagariya went so far as to state:
“It is said that only God and a few good men and women run India. One such man is P H Kurien. For readers unfamiliar with his name, Kurien was India’s Controller General of Patents, Designs & Trade Marks until March 12, 2012. On March 9, 2012, just three days before he left office, he issued the first-ever compulsory licence in India for the manufacture of a drug still under patent. The licence authorized Indian company Natco to manufacture drug Naxevar for which Bayer, a German multinational company, holds the patent. This was an act of major significance for India’s health.” 
Predictably, the US government was up in arms; and a US government official first proselytized on how India needs to be “taught” IP and international norms, before recanting and admitting that India was well within its legal rights (under TRIPS) to issue compulsory licenses, a legal tool that the US itself resorts to time and again, albeit through its courts. 
With the TRIPS opposition effectively being shown the door, the US queasiness at India’s compulsory license is now exposed for what it really is: an admission of its own vested “national” interest. Nothing wrong with pursuing national interest, except that other countries ought to be accorded the same freedom, much in line with the Biblical commandment: “Do unto others as you would have them do unto you”!
Just as patents allegedly fuel inventive genius, many believe that campaign contributions fuel US policy; and often times, the link between campaign donors and the pursuit of US national interest is only as strong as the alleged nexus between Iraq and the Al Qaeda (some argue that the hidden nexus may be found in the letter “Q”). India should therefore politely let the US know that it does not take too kindly to internal interference with its domestic policy, particularly when the matter is sub-judice before an appellate tribunal (IPAB). And if India’s voice is not strong enough, it must solicit the support of China, Brazil and others at the receiving end of strong US interference. 
Indeed, all of these technologically proficient developing countries must come together and issue a strong statement denouncing that bully of an instrument that goes by the name of Special 301, or better still, decide to ignore it altogether. 
As this Mint and Economic Times piece note, India’s compulsory licensing decision is likely to spur other countries to resort more aggressively to such measures. And this perhaps is the biggest worry of the US and other developed nations that house the leading drug majors. China has been cited as an example of a country that ramped up its compulsory licensing provisions in the wake of the Indian provision. Given that most of China’s recent amendments pertained to procedural issues (with the substantive grounds for issuing licenses remaining largely the same), this is only partly true. Along with Shan Kohli, I will explore this issue in more detail in a future post.

Shamnad Basheer

Prof. (Dr.) Shamnad Basheer founded SpicyIP in 2005. He's 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 Prof. Basheer joined Anand 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. Later, he was the Honorary Research Chair of IP Law at Nirma University and also a visiting professor of law at the National Law School (NLS), Bangalore. Prof. Basheer has published widely and his articles have won awards, including those instituted by ATRIP, the Stanford Technology Law Review and CREATe. He was consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also served on several government committees.

4 comments.

  1. rajeev

    Dr. Basheer
    The threat to American interest is real. While we the citizens of emerging economies can hail the decisions which represent our capability to stand up to the developed (monopolist) economies, the situation for them is very disheartening. They stand to lose billions, apart from their influence and control over the world trade.
    But more than these very tangible losses, I feel that the real fear is stemming for the loss of image as the innovator and philanthropist for the world. By virtue of these envisaged attributes the developed countries were able to get the desired agreements. And to an extent allowed some provisions being incorporated in favor of emerging economies being confident that these lowly countries would never be able to stand up to exercise these rights. Example Article 7 & 8 of TRIPS agreement. They allowed these two provisions as a takeaway in lieu of many lop sided provisions of TRIPS in their favor. And these were allowed only because U.S. never imagined that these provisions would actually be realized.
    The bane of Oligopolistic society that losses are hard to swallow. U.S will find it tough to handle. A camouflaged retribution is expected in next major international negotiations.
    R.K.jain
    patent Agent

    Reply
  2. Anonymous

    This would be first and last ever Compulsory license issued in India. No other officer would dare issue a CL fearing pressure from various quarters. Even Kurian resorted to giving the verdict only at the last possible moment before he quit for safer pastures.

    Reply

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