[A2k] Business Standard: Govt prepares to battle US pressure on patents

Thiru Balasubramaniam thiru at keionline.org
Wed Apr 23 06:04:47 PDT 2014


http://wap.business-standard.com/article/economy-policy/govt-prepares-to-battle-us-pressure-on-patents-114042101118_1.html

Nayanima Basu | New Delhi Apr 22, 2014
Last Updated at 12:50 AM IST
Govt prepares to battle US pressure on patents
Top officials meet amid apprehension of sanctions under US law; decide to
take Washington to the World Trade Organization if such action taken

The government held a high-level meeting on Monday to discuss apprehensions
that the US government might impose sanctions against Indian companies on
the ground of a lax intellectual property rights (IPR) regime.

Delhi, it was decided, would not tolerate such a move from Washington. “It
has been decided that India will not cooperate with the US on any sort of
investigation on Indian IPR or trade laws,” an official said after Cabinet
Secretary Ajit Seth took a meeting of top bureaucrats over the issue.

India, it was decided, might take the US to the World Trade Organization
(WTO) if such unwarranted action was taken, while keeping open the door for
discussion to allay perceptions on Delhi's trade laws.

The Cabinet secretary reiterated that India was WTO-compliant on Trade
Related Intellectual Property Rights, officials said. The government is
also compiling cases where the US had breached IPR laws.

Officials attending included the secretaries for foreign affairs, commerce,
industrial policy and health. India's ambassador to the US, S Jaishankar,
is also discussing the issue with the US government.

The office of the US Trade Representative is expected to issue what is
termed a “Special 301” report this month-end or early next month. This is
an annual survey in which the USTR is supposed to identify countries which
do not provide “adequate and effective” IPR protection or “fair and
equitable market access to United States persons that rely upon IPR”.

There is apprehension that the USTR might put India on the Priority Foreign
Country list for IPR; this names countries judged to have inadequate
intellectual property laws or deny fair and equitable market access to US
entities relying on IPR protection. Such countries may be subject to
sanctions. As a part of such penal action, the US may withdraw benefits
under the scheme of Generalised System of Preferences, which provides
reduced tariffs for Indian goods entering US markets.

The US International Trade Commission, a quasi-judicial independent federal
body which advises the US President, the USTR and the nation’s legislature
on trade matters, had begun a probe into India’s trade and industrial
policies on February 12.

Since US President Barack Obama’s 2010 India visit, American firms,
especially a certain segment of the US pharmaceutical industry, have become
extremely vocal about Indian policies on domestic content requirements and
IPR.

Policy circles here believe the US is doing these to protect the interest
of a handful of pharmaceutical companies, which command influence in policy
making circles there. These include Pfizer, Bayer and and Swiss pharma
major Novartis.

The department of industrial policy and promotion, under the commerce &
industry ministry, has prepared a list of all cases since 1974 where the US
is held to have breached IPR laws, rejected patents and invoked compulsory
licensing, in sectors ranging from electronics to pharmaceuticals.

During the 2002-2012 period, 20 cases related to pharmaceuticals were
invalidated by the US Federal District Courts, compared with 34 related to
mechanical devices and 10 to medical devices. Between 2007 and 2011, about
280 cases were identified in the US Federal District Courts where patent
validity was determined. Of these, the patent was held valid and
enforceable in only 39 cases. In 253 cases, the patent was held invalid.

Refusing to deal with the matter bilaterally, the government has apparently
told its American counterpart that such issues should be discussed only at
multilateral platforms like the World Intellectual Property Organization
and WTO. However, following the Novartis and Bayer-Onyx cases here, the US
is concerned that other countries such as Brazil, China and in Africa might
follow India’s model of compulsory licensing.

IPR WAR

* Officials decided India will not cooperate with the US on any sort of
investigation on Indian IPR or trade laws

* But it will keep the door open for discussion to allay US perceptions on
New Delhi's trade laws

* The government is compiling cases where the US had breached IPR laws

* The office of the US Trade Representative is expected to come out with a
report on Special 301 by April-end or early May

* Apprehensions that USTR might put India on the Priority Foreign Country
list for IPR, making it subject to sanctions



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