[Ip-health] Modi govt needs to ensure IPR policy safeguards India’s interests, not US Inc’s

K.M. Gopakumar kumargopakm at gmail.com
Tue Nov 11 06:34:20 PST 2014


Modi govt needs to ensure IPR policy safeguards India’s interests, not US

The recent union government decision to set up a think-tank to draft a
national Intellectual Property Rights (IPR) policy and to advise the
Department of Industrial Policy and Promotion raises considerable anxiety
given that the US has been picking holes on India’s intellectual property
regime for a long time.

The think-tank, which consists of an ex-judge, two lawyers, an industry
representative, an academician, an ex-WIPO (World Intellectual Property
Organisation) official has been given a blanket mandate to advise the
government on every intellectual property issue. Although strengthening the
intellectual property regime in the country is a welcome step, what calls
for caution is the huge mandate placed on the group.

According to the terms of reference
<http://pib.nic.in/newsite/erelease.aspx?relid=110790> of the think tank,
the group will draft the national intellectual property rights. However,
what’s missing is any direction from the government and the processes that
are to be followed.

India’s existing policy regime, although loathed by the US and the EU, has
been a lifesaver for Indians. In the recent past, the country has seen how
a conducive IP policy, that doesn’t violate international conventions, has
greatly helped millions of people who are in need for urgent modern medical
care. The compulsory licensing (breaking the patent of an MNC company
because of domestic medical needs) of a couple of drugs brought down their
prices manifold and there is demand for more such decisions from healthcare

For instance, cancer drug Glivec, sold by Swiss pharma company Novartis for
more than Rs one lakh, is now available in the generic from for about Rs
8,800 and its price is likely to fall further. The US pharma lobby has been
wrongfully going to town against such decisions saying that India doesn't
respect patent and innovation.

The existing intellectual property environment is also important for
manufacturing which the Modi government is swearing by. For the
manufacturing sector, the present Patent Act is important to access
technology, particularly the climate friendly technologies. In the
agricultural sector, India’s existing regime is important to deny patents
to seeds that otherwise would tie farmers to the stranglehold of MNC
companies. The existing regime is also favourable to Indian biotech

What worries one about the think tank is that it follows a recent decision
to set up a high level bi-lateral working group on IPR between the US and
India. Such a decision coincided with prime minister Narendra Modi’s US
visit and it was widely viewed with a lot of concern because it would open
up India’s intellectual property policy space to the Americans. A regime,
that has been proved to be extremely vital for the country, being opened
for negotiations didn’t appear to be a favourable prospect.

Almost at the same time as Modi’s US visit, the union commerce minister
Nirmala Sitharaman also said that India would come up with an intellectual
property rights policy
 She said that the purpose was to protect India’s interests and to deal
with “issues raised by developed countries”. Her words certainly betrayed
pressure from the US and EU.

Over the years, India has repeatedly defended the use of TRIPS
flexibilities in all international fora. India's intellectual property
legal regime also used most of these flexibilities. If India aims to be a
manufacturing giant, there is a need to optimise them. The country’s own
economic and technological situation demands an IP regime which is flexible
to facilitate technology transfer through catching up. Till date, there is
only one model for such a catch up and that is reverse engineering. The new
IPR policy shouldn’t hinder it.

Empirical evidence also supports this. Most of the patents in India are
owned by foreign companies. More over, the last 10 years of product patent
protection shows that there is a substantial increase in the import of
medicines by multinational companies. Similarly, there is an increase in
the outflow of money as royalty.

Although a written policy is not a bad idea, its drafting runs the risk of
influence by developed countries such as the US and compromise on the
existing flexibilities. Informed civil society and an ever-vigilant rights
activists played a major role in shaping the present IPR regime in India.
They have played a critical role in making life saving medicines accessible
to millions of Indians and put pressure on the government to keep lobbies
at bay. However, the new think tank lacks representation from civil
society. This is a major lacuna.

The two key points Nirmala Sitharaman used while announcing the drafting of
a new IPR policy were “India’s interests” and “dealing with developed
countries”. If the policy has to protect the lives and interests of
Indians, what she ought to focus is the former. She should also open the
policy to wider public debate so that the think tank captures the national

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