[Ip-health] Times of India: US patent lobby to meet Indian judiciary, patent officials: Conflict of interest?

Thiru Balasubramaniam thiru at keionline.org
Thu Nov 13 02:04:15 PST 2014


US patent lobby to meet Indian judiciary, patent officials: Conflict of
interest?Rema Nagarajan,TNN | Nov 13, 2014, 11.40 AM IST

NEW DELHI : In a glaring instance of conflict of interest many
pharmaceutical MNC representatives from the US will be meeting members of
judicial tribunals and higher judiciary and officers who are dealing with
intellectual property (IP) cases of these companies on a visit to India
next week. A delegation from US-based Intellectual Property Owners'
Association (IPOA) comprising pharmaceutical MNCs among others, many of
whom have intellectual property or patent dispute cases filed against the
Indian government and Indian pharma companies will be visiting India from
November 16-21.

The delegation plans to meet and interact with intellectual property office
(IPO) officials, Intellectual Property Appellate Board (IPAB) members,
judiciary and judicial staff of high courts and the Supreme Court justices,
or in short, all those who can influence or who have a bearing on the cases
they are fighting in India. Civil society has expressed concern about these
industry representatives being given access to IPAB and IPO in Chennai and
Delhi and the judiciary.

"The intellectual Property Office is a quasi judicial body which conducts
hearings and takes decisions on whether to grant a patent or not. Most
dangerous is their visit to IPAB, which is a judicial tribunal and decides
the appeals coming out of the decisions of the patent office. Many
delegates' companies have filed appeals too. Interested parties being
allowed to approach them directly is against the interest of justice and
raises serious questions of conflict of interest," said K M Gopakumar of
Third World Network. For instance, Roche, an IPOA member, has its case is
in Delhi high court, so how can they visit Delhi high court and meet the
judges or staff, he asked.

IPOA is a trade association representing companies and individuals in all
industries and fields of technology who own or are interested in
intellectual property rights and it represents a substantial number of
patent applications filed not only in the US but also in the Indian Patent
Office. According to the IPOA website its mission is to serve the global
intellectual property community. IPOA describes the India visit as "a
unique opportunity to share experiences and perspectives with patent
practitioners and the judiciary of India on intellectual property practice".

This is not the first time that IPOA and the US industry, especially
pharma, has tried to influence the way India's patent offices and judiciary
interpret India's patent law, hailed as one of the most progressive when it
comes to balancing public interests with patent protection.

In 2011, Justice Dalveer Bhandari had been forced to recuse from hearing a
case regarding the patentability of Novartis' anti-cancer drug Glivec after
health activists protested saying he had participated in at least two
international conferences for judges, one in 2007 in Washington and another
in 2011 in Brussels, organized by IPOA, whose members include Novartis,
among a host of pharmaceutical and IT giants.

In 2010, a judges' roundtable on intellectual rights property adjudication
was jointly organised by Federation of Indian Chambers of Commerce and
Industry (FICCI) and Maharashtra State Judicial Academy. Health rights
activists protested pointing out that FICCI and Confederation of Industry
(CII) are primarily industry associations known for lobbying to protect
industry interests, including strong IP protection. These meetings and
conferences disguised as harmless educational events, have been criticised
for giving a skewed view on IP protection conveying only the industry's
views and interests without anyone to represent public interest, in a bid
to influence judges and law and policy makers dealing with intellectual
property cases.

Though India complied with its World Trade Organisation (WTO) agreement to
introduce patents protection for 20 years on medicines, since India
produces life-saving generic medicines for its own people and the entire
developing world, Parliament included several health safeguards in the law,
including provisions like section 3(d) to prevent companies from seeking
patent extensions by tweaking existing drugs. Many IPOA member-companies
have constantly challenged these safeguards by filing cases against the
government. Till now, the Indian judiciary and patent offices have, by and
large, upheld the public health safeguards in the Indian patent law.

The progressive judgements that have tried to balance public interest and
access to medicines with the private interest of patent holders has been a
cause of much unhappiness among US MNCs especially the pharmaceutical
companies who have been focusing on judicial training, training of patent
office ad drug control officials in a bid to influence how they deal with
patent applications. Against this backdrop, the impending visit of the IPOA
delegation and their access to judiciary and patent officials has become a
matter of concern among public health activists.

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