[Ip-health] David Singh Grewal and Amy Kapczynski in the New York Times: Let India Make Cheap Drugs

Thiru Balasubramaniam thiru at keionline.org
Thu Dec 11 05:08:32 PST 2014


The Opinion Pages <http://www.nytimes.com/pages/opinion/index.html> | OP-ED
CONTRIBUTORLet India Make Cheap Drugs


NEW HAVEN, Conn. — Last month, the United States and India
announced an important breakthrough concerning India’s “right-to-food”
program. The Indian government subsidizes food for its poorest citizens
through a system of price supports and public stockpiling. The program is
critical to India’s future: According to Unicef, one in three of the
world’s malnourished children lives in India.

But as India’s policy has expanded, it has come into conflict with World
Trade Organization
rules on agriculture. The conflict heated up last summer when India
demanded an explicit assurance at the W.T.O. that it could maintain its
right-to-food program. The United States resisted, and the standoff
derailed the first new global trade agreement at the W.T.O. since the 1990s.

The impasse now seems to be resolved; with American support, India has
secured a “peace clause” at the W.T.O. that protects its food program from
legal challenges. As India insisted, the deal applies indefinitely, until a
permanent solution to the conflict is found, which could happen as early as
the end of next year.

This is good news for poor people in India, including the children and
nursing mothers that the program particularly helps. It is good news for
the poor in other countries that may have programs like India’s. It is good
news for India and the United States, the world’s two largest democracies,
which must be able to cooperate with one another on a range of global
issues. And it is good news for the W.T.O., which can move forward with the
delayed agreement on trade facilitation.

This positive development on food, however, is in stark contrast to the
United States’ approach to India’s policies on affordable medicines.

On Nov. 24, while the food deal was being finalized in Geneva, Michael B.
Froman, the United States trade representative, was in India to demand
reform of its patent laws. Those laws are friendly to generic medicines and
public health, and the United States wants them restructured to favor
American pharmaceutical corporations, often called Big Pharma.

While he was in New Delhi, Mr. Froman cited the food deal and its impact on
the larger trade agreement as an example of the United States and India
“working side by side.” But when it came to intellectual property disputes
that affect medicines, he was pushing for more Indian concessions.

In fact, the United States has been showing no inclination to compromise as
it ratchets up the pressure. It recently initiated a special review of
India’s intellectual property laws, signaling possible trade sanctions.
After Prime Minister Narendra Modi’s recent visit to the United States, the
two countries announced a new high-level working group on intellectual
property issues, which may foreshadow changes to India’s laws.

India faces a public health crisis no less stark than its food security
problem. One potential threat comes from patents, which can raise the
prices of medicines astronomically. For example, according to the World
Health Organization, patented triple-combination therapy medicines for
H.I.V./AIDS cost $10,000 per person per year in industrialized countries,
while generics can be purchased across the developing world from an Indian
company, Cipla, for less than $200 a year. It is India’s laws that have
enabled the country’s flourishing generics industry to offer its people and
other less-wealthy societies such savings.

India’s existing patent law was introduced in 2005 to conform to W.T.O.
requirements under the so-called Trips agreement. It infuriated Big Pharma
by making it more difficult for companies to obtain drug patents in India
than in the United States and elsewhere.

Many experts in the United States agree that our own national patent
standards make it too easy for corporations to get patent protection, which
then allows them to expand or maintain their market power in ways that
stifle innovation and keep prices high.

Big Pharma fought the law in India, all the way to its Supreme Court — and
lost. Now these companies have turned instead to the office of the United
States trade representative and hope to win their campaign. Their strategy
is to use trade pressure to undermine the pharmaceutical patents policy of
India’s democratically chosen government.

Just as the United States is now supporting India on its right-to-food
program, it should lower the pressure on India’s patent law, too. For one
thing, India’s law almost surely complies with the Trips agreement. This
may be why the United States has never brought an official complaint
against India’s law at the W.T.O.

Instead, it is bringing informal pressure, but even that is unwarranted.
There should be no hint of a quid pro quo — a trade-off of American support
on food for a change in India’s laws on medicine. That, after all, is a
possibility suggested by the timing of Mr. Froman’s comments about the food
program while he was in India to discuss the drug controversy.

Instead, our officials should be supporting India’s medicinal patent
policies, even if it means standing up to corporate lobbies at home. India
accounts for only about 1 percent of the market of the United States
pharmaceutical industry, so its patent law — like its “right-to-food”
program — is no threat to the United States, or the W.T.O.

The United States is right to support India’s food program, which aims to
lift people out of poverty through democratic initiative, and does not
unduly burden international trade. And it is wrong to pressure India to
change its patent law, for the very same reason.

*David Singh Grewal and Amy Kapczynski are associate professors at Yale Law
School, where they teach international trade law and international
intellectual property law.*

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