In a stark volte-face from decades of where the Indian government has stood on its patent laws, the Indian Prime Minister recently issued some worrying lines, with very worrisome public-health implications. As per Business Standard, “Though he spoke in Hindi, what he said was to the effect that “India must also work on intellectual property rights guidelines to match global standards.“” LiveMint reports further – that while speaking at the Commerce Ministry’s first Global Exhibition on Services, Modi said, “If we don’t work towards bringing our intellectual property rights at par with global parameters, then the world will not keep relations with us. If we give confidence to the world on IPR, then we can become a destination globally for their creative work.”
At first glance, this sentence seems to indicate a strong desire to bring in foreign investment to the country. However, aside from the statement being factually wrong, a slight peek under the surface reveals a much more insidious nexus between this type of incentive for foreign investment and direct harms for the local populace.
For several decades now, the Indian government has taken an admirably strong stance of protecting its population from irresponsible patent laws which foreign nations have tried imposing on it. To be clear, I’m referring specifically to the pharmaceutical sector, where India has been a revolutionary leader despite high pressure from US and EU. I refer to this sector because it is almost always this sector that is targeted when talk of what is ‘wrong’ with India’s IP regime comes up. Prior to the 1970s, India’s life expectancy was around 42 years of age. Prices for medicines in India were some of the highest in the world. Following the superbly researched Ayyangar committee report (PDF), the Indian Patents Act, 1970 was passed. Amongst other things, this Act abolished ‘product patents’ for food, pharmaceuticals and chemicals, limiting exclusionary rights to ‘process patents’ alone in these areas. With safe harbours such as these, together with initiative shown by Indian generic companies, soon enough drug prices in India were amongst the lowest in the world, and the Indian life expectancy shot up.
However, a few decades later, after great pressure from several big corporations, US and some other western countries came together and created for the first time, a ‘global trading’ regime, in the form of the World Trade Organization — and told other poorer countries that they would not have access to it unless they signed all agreements that the WTO comprised of — inevitably turning it into the global standard for most, if not all, that it covered. One of these included the Trade Related Aspects of Intellectual Property (TRIPS) Agreement. The formation of the TRIPS draft was far from non-controversial, with several developing countries like India and Brazil fighting hard to ensure that flexibilities were retained in the draft. For e.g., over 50 countries did not have patents over food and other essentials, yet the TRIPS Agreement required product patents in all sectors of technology. Nonetheless, the document was eventually settled upon and currently India, along with 160 other countries have signed it and it is the global standard!
This Agreement calls for certain minimum standards — which India follows; and in recognizing that IP rights are inherently a tradeoff, allows for flexibilities and exceptions — which India has used.
It’s no secret that western lobbies have three primary complaints with India’s patent regimes, in the absence of which, all this pressure would certainly not be present. These three complaints are:
- Section 3(d) of the Indian Patents Act, which prevents me-too drugs from being patented and thus allows market competition to lower the prices. This, simply put, helps in preventing abuse of the patent system. But since certain other jurisdictions allow this abuse, there is pressure against India to drop it.
- The factually incorrect claim that India abuses the “Compulsory Licence” provisions. Stupider versions of this claim include the complaint that India uses the Compulsory licence provisions. (The Global Standard, i.e., TRIPS Agreement, very clearly allows for Compulsory Licences. India has only allowed one such licence so far. Claims of the sky falling due to this one licence are simply ridiculous)
- The claim that India discriminates against patents filed by non-Indian companies, or that it doesn’t enforce patents. Simply put – the evidence does not support this. Any responsible administration should take severe issue with false rhetoric which lies about their country’s judicial system.
Simply put, the facts don’t support the rhetoric that India isn’t compliant with regard to the pressure points that are constantly raised.
As I’m writing this, my twitter feed is exploding with news of USTR’s annual(ly dubious) Special 301 Report, 2015 (PDF) being released. If I needed any further proof that this statement of Modi’s has serious implications that India is giving into US pressure, the report has just provided it. I quote (page 48):
“The United States also welcomes April 2015 statements made by Prime Minister Modi recommending that India align its patent laws with international standards and encourages India expeditiously undertake this initiative”
As already described above, and as (non big-corporate-lobby sponsored) experts world over have said, India’s patent laws are compliant with the global standards. It is indeed shameful for us that the prime minister now goes and makes a statement saying the exact opposite, all in the hope of foreign funding – which, aside from being unhelpful for local innovation efforts, puts the health of Indian patients at risk. If there is no evidence that this will help the much talked about “Make in India” push, nor will it help the socio-economic conditions of the Indian population, and when we’re already quite compliant with global standards – why exactly should we give into pressure which will help fill foreign pockets!! One would think that if the government is worried about foreign funded NGOs (they recently cancelled licences of over 9000 NGOs over foreign funding), they would also consider the implications of blindly chasing after foreign funded corporates. Indeed, it is a shame that the Prime Minister of the country could simply give in to foreign pressure like this.
For previous posts on this annual USTR, read any of our previous posts here.
Our coverage of the annual Special 301 report will be out soon.