[Ip-health] Indian patent law doesn't discriminate against US companies: IPA - The Economic Times

Claire Cassedy claire.cassedy at keionline.org
Thu Aug 29 06:14:45 PDT 2013


Indian patent law doesn't discriminate against US companies: IPA

NEW DELHI: India's intellectual property policy doesn't discriminate
against US firms, Indian Pharma Alliance (IPA) representing major domestic
drugmakers has told Pfizer's Intellectual Property chief Counsel Roy

The IPA wrote to Waldron last week, after he slammed India's IP policy a
second time this year in his testimony before a US Congress sub-committee
calling India an 'outlier' in recognising and enforcing patent rights.

How can India's recent decision be dubbed discriminatory towards US firms
when market capitalisation and market share of US drug firms in India have
shown healthy growth since 2005, when patent laws here were amended, asks
DG Shah, secretary general, IPA, citing cases of AbbottBSE 0.81 %,
PfizerBSE -0.42 % and MerckBSE -0.74 %Sharp & Dohme.

Abbott's market-cap grew 183% between 2005 and 2012 while its share in the
domestic drug market shot up to 7% from 2.3% in the same period. Combined
market share of Pfizer and WyethBSE -0.19 % rose to 3.2% from 2.5% and for
MSD and Fullford it went up to 1.10% from 0.42% during this period, cites
the IPA letter, responding to Waldron's sharp criticism of India's 'hostile
innovation and investment' climate.

India's recent IP decisions discriminate against US companies and hinder
their ability to compete on a level-playing field in India, Waldron charged
in his testimony, saying since early 2012, India has undermined patent
rights for at least nine innovative medicines.

"If the US believes that Section 3(d) in the Indian Patents Act has
violated TRIPS (Trade Related Aspects of Intellectual Property Rights
Agreement), the remedy is in triggering the dispute resolution mechanism,"
IPA told Pfizer.

India believes that Section 3(d) is consistent with its TRIPS obligation,
he asserted.

Waldron's latest testimony on June 27 calls the decision of India's to turn
down Swiss drugmaker Novartis' plea to grant patent to cancer drug Glivec
patent for not meeting Section 3(d), inconsistent with India's obligations
under the TRIPS. However, if the issue has to be assessed beyond scope of
the TRIPS agreement, then India may have to choose between providing access
to drugs and measuring impact of its policy decision on jobs in US along
with global innovations, Shah has said.

This is the third letter in a series of heated exchange between Pfizer and
IPA, triggered by Waldron's testimonies given to US Congress sub-committees
urging US lawmakers to act on India's 'protectionist' and 'discriminatory'
IP policy. IPA accused Pfizer IP chief of misinforming and misleading US
congressmen, following which Waldron retorted calling India's patent
climate 'parlous'.

Further, Shah writes that Waldron's understanding that a compulsory
licensing can be triggered if a foreign drugmaker doesn't manufacture a
drug locally is flawed.

In case of Bayer's cancer product Nexavar, the only drug India has granted
a CL for, the Intellectual Property Appellate Board finally noted that the
German innovator firm had not made its invention made available here on
commercial scale (adequately), even if one were to consider ' imports'
alone. It further held commercial 'working', could mean local manufacturing
only or imports only depending on a case to case basis.

On a Pfizer's drug Sutent, another instance Waldron cited in testimonial,
Shah points out that the patent is currently in force and the US innovator
firm has succeeded in its litigation over the past year. After Pfizer IP
chief's testimony, about 170 US lawmakers urged Obama to raise with India
the issue of its challenging IP climate.

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