Copyright Innovation Others Patent

Obama vs MSF, Oxfam, the Aam Aadmi and others, India’s IP Policy Reports (2015)


In what will surely set off alarm bells in various quarters of India, PM Modi recently announced that he was more than happy to accept the “suggestions” of the Joint High level Working Group (Working Group) on IP between the US and India. He made this announcement at the India-US CEO Forum last evening.

Unfortunately, none of us have any clue about what these “suggestions” are! A little more transparency would have been helpful. Given the stakes involved, the Modi government ought to immediately make these suggestions public and invite comments. Just as they did with the proposed National IP policy.

By way of background, the resurgence of a once forgotten “Joint High Level Working Group” was a result of Modi’s visit to the US in September 2014. It was established under the US Trade Policy Forum and blessed with “appropriate decision-making and technical-level meetings as part of the Trade Policy Forum.” Here are relevant paras of the Indo-US Joint statement that speak to its mandate:

“16. Recognizing the progress made in constructive engagement on Intellectual Property under the last round of the India-U.S. Trade Policy Forum held in November, 2014, the Leaders also looked forward to enhancing engagement on Intellectual Property Rights (IPR) in 2015 under the High Level Working Group on Intellectual Property, to the mutual benefit of both the countries.

25. The Leaders reaffirmed the importance of providing transparent and predictable policy environments for fostering innovation. Both countries reiterated their interest in sharing information and best practices on IPR issues, and reaffirmed their commitment to stakeholders’ consultations on policy matters concerning intellectual property protection.”

Tis’ paradoxical that while point number 25 above stresses on “transparency”, that very ideal appears to be have been given short shrift in the latest announcement that “suggestions” would be accepted. Further, what is even more worrying is that despite a mild 301 out of cycle review report late last year, President Obama continues to rail against the “absence of effective IP protection” in India and how it was affecting US business.

These are indeed worrisome developments. Thankfully, we have some wonderful civil society and humanitarian organisations that continue to flag these problematic issues. Just prior to Obama’s visit, Medicins Sans Frontieres (MSF) issued a strong statement, some extracts of which are highlighted below :

The US has been scaling up pressure on India and increasing visits to the country over the last several months in order to aggressively campaign against India’s patent law. The country’s law sets a high bar for what merits a patent in an effort to prevent abusive pharmaceutical patenting practices, such as “evergreening,” which put profit over public health by blocking production of more affordable generics. The US is pushing for India to adopt intellectual property (IP) measures similar to those common in the US and EU, which would ultimately result in unaffordable medicine prices for both India and the countries that rely on affordable medicines made in India.”

MSF also highlighted the implications of the first draft of the proposed IP Policy (Read Swaraj’s analysis of the proposed policy here) and how it stressed on IP monopolies being the key drivers of innovation. It pointed out that numerous reports have rebuffed the causal link between strong IP and innovation, and that IP only impeded access to medicines,:

We need the Indian government to pay very careful attention to what the US is up to right now,” said Rohit Malpani, director of policy and analysis for MSF’s Access Campaign. “India has been a leader in promoting access to affordable medicines and new innovation models, but this could all unravel very fast if the Indian government caves in to US pressure. The think tank so far seems to be singing to Big Pharma’s tune of undermining global efforts to finally overhaul today’s system of how medicines are developed and priced.”

Late last year, Oxfam India initiated a global petition supporting India’s patent law, noting in pertinent part that:

There are signs that the US pressure is working. Any changes to India’s IP system would mark the end of India’s ability to serve as the affordable pharmacy for the developing world – cutting a medical lifeline to millions.”

This document garnered almost 77,000 signatures, including from leading global civil society organisatons and think tanks such as Health Gap, International Treatment Preparedness Coalition, Knowledge Ecology International and Young Professionals Chronic Disease Network

Avaaz also started a petition “Save affordable medicines”, stating India produces cheap HIV, malaria and cancer drugs, but American drug companies want to stop this, to sell their own products at higher prices. Their fierce lobby has got the US to push their line hard, even threatening trade sanctions if India doesn’t change patent laws which put people before profits. Now pressure is rising, with talks set to begin on an investment treaty.” The petition has garnered 950,205 signatures so far!

Yesterday, one of us exhorted the US government and some of their industrial masters to reassess their “faith” based assertions on Indian IP and look at some hard empirical data, such as the “fact” that when compared to India, the US has an atrociously high patent invalidation rate….a whooping 90%! And yet the US government and its allies make a huge song and dance the moment India so much as invalidates a single patent!

One can only hope that the “versus” in the title (Obama vs MSF and others) soon changes to an “and” to ensure that any resulting IP policy is a win win for all.

This post was jointly authored with Prof Shamnad Basheer.

Anubha Sinha

Anubha Sinha

Anubha Sinha - @anubhasinha_ on Twitter — is a graduate of Dr. RML National Law University, Lucknow, and presently works at the Centre for Internet and Society. She also blogs on www.cis-india.org

4 comments.

  1. AvatarSandeep

    Dear Anubha:

    Also look at para 33 of the joint statement:
    “33. The Prime Minister and the President also agreed to expand the India-U.S. Health Initiative into a Healthcare Dialogue with relevant stakeholders to further strengthen bilateral collaboration in health sectors including through capacity building initiatives and by exploring new areas, including affordable healthcare, cost saving mechanisms, distribution barriers, patent quality, health services information technology, and complementary and traditional medicine. The President and the Prime Minister pledged to encourage dialogue between the U.S. Department of Health and Human Services and its Indian counterparts on traditional medicine. The Leaders also pledged to strengthen collaboration, dialogue, and cooperation between the regulatory authorities of the two countries to ensure safety, efficacy, and quality of pharmaceuticals, including generic medicines.”

    Reply
  2. AvatarJayant

    While it is welcome that Pres. Obama’s visit to India heralds a new dawn in India-US relationship, the government needs to be cautious in the foreign trade and economic policy front. In our enthusiasm to bolster relations with the US, the new government shouldn’t steer in the direction of conforming to US-prescribed standards such as TRIPS-plus in the IP context, Furthermore, a BIT with the US may expose India to claims for violations such as regulatory expropriation; FET standard, oer vital issues such as compulsory license, et. To assuage general concerns, the Indian government needs to categorically clarify that it will retain its TRIPS flexibilities and use them to the fullest extent.

    Reply
  3. AvatarAjaykumar Sharma

    I think it is not wise to jump to conclusions here. Probably the article is based on a narrow prism of healthcare while evaluating Mr.Modi’s statement. I think there are many big Businesses out there who also face the heat of lost opportunity due to the loose implementation of the IPR rights at local level. Say Video Piracy. The amount of money a single film has started making in India (PK to be dubbed as the highest grosser by crossing over 400 Crores domestically) . This means that if the average ticket price was 120Rs, only 3 crore people or 2% of the population has given this return. Just imagine with near Zero piracy the amount of money US movie producers can make in India.. Your entire Pharma market will never be able to match up if IPR laws are strictly implemented for that industry.

    Reply

Leave a Reply

Your email address will not be published.