[Ip-health] India-EFTA free trade agreement negotiations in Liechtenstein this week

leena menghaney leenamenghaney at gmail.com
Mon May 29 02:48:16 PDT 2017

On behalf of Medecins Sans Frontieres sending the information on the EFTA
India negotiations covering IP and pharmaceuticals. There is pressure from
Swiss negotiators and industry.

Swiss demands cover a narrow interpretation of local working of patents,
lowering the standards on patentability of biotechnology products including
biological drugs and data exclusivity.

MSF response is copied below.

Regards,  Leena Menghaney (+91 9811365412)

India-EFTA free trade agreement negotiations in Liechtenstein this week


On 30 May 2017 (Tuesday), trade talks will resume for the
India-EFTA(European Free Trade Association)free trade agreement (FTA)in
Liechtenstein, between India andthe EFTA countries of Switzerland, Norway,
Iceland and Liechtenstein. Through this deal, Swiss pharmaceutical
corporations are working to erode India’s ability to produce and supply
generic medicines for people across the developing world. The proposed
provisions in the FTA would promote a strategy that pharmaceutical
corporations use to prolong their monopolies, called ‘evergreening.’ The
provisions proposed by Swiss negotiators include ‘data exclusivity,’ a form
of monopoly via the regulatory system that prevents the marketing of
generic formulations, even when a medicine is not patented or no longer

Pharmaceutical corporations have long been seeking a more extensive
granting of patent protection on medicines than that offered by India’s
pro-public-health law. In 2006, Swiss pharmaceutical corporation Novartis
took the Indian government to court in a long-drawn out legal battle over
its 2005 Patents Act (Novartis vs. Union of India – see below). In India’s
Patents Act, Section 3(d) discourages the granting of patents on new forms
of known medicines, effectively preventing evergreening. Abusive
evergreening practices and safeguards to prevent them were central to this
case, and to the future of India’s role as ‘pharmacy of the developing
world. ‘Novartis lost in India’s Supreme Court in 2013

MSF relies heavily on affordable generic medicines from India to do its
medical work around the world. Two thirds of the medicines MSF uses to
treat people with HIV, tuberculosis and malaria are generics made in India.
Fierce market competition among generic manufacturers in India resulted in
the price of HIV medicines coming down by nearly 99%, from $10,000 per
person per year in 2000 to around $150. Ten years later – today, treatment
is available for less than $100. This has allowed HIV treatment to be
dramatically scaled up, with more than 18 million people receiving
antiretroviral therapy today.

MSF response:

“India’s patent law puts people’s lives over pharmaceutical corporations’
profits, and millions of people across the developing world are alive today
because of affordable generic medicines made in India. Swiss pharmaceutical
corporations have long been trying to stamp out the competition from India,
and now through the EFTA-India trade deal have enlisted the Swiss
government to their bidding. By pushing for so-called ‘data exclusivity,’
pharmaceutical corporations are trying to get a backdoor route to a
monopoly, even when a drug doesn’t merit a patent under India’s law.

We urge the Indian negotiators to stand strong and reject any provisions
that will be harmful for people’s access to the medicines they need to stay
alive and healthy.”

LeenaMenghaney, South Asia Head, MSF Access Campaign

Swiss corporations vs. the Union of India

In 2005, in compliance with international trade rules, India began granting
patents on medicines but designed its law with safeguards–including a
clause known as Section 3(d) that prevents companies from abusing the
patent system. India’s strict patentability criteria prevents
pharmaceutical corporations from perpetually extending monopolies by
gaining patents on modifications to existing drugs.

Seeking a more extensive granting of patent protection for its products
than that offered by Indian law, the Swiss pharmaceutical corporation
Novartis took the Indian government to court in a long-drawn out legal
battle over its 2005 Patents Act (Novartis vs Union of India).

On 1 April 2013, India’s Supreme Court sent a clear signal that the
patentability criteria should be strictly applied by patent offices and
frivolous patent applications should be rejected. The Court upheld the
clause known as Section 3(d) that prevents pharmaceutical companies from
abusing the patent system and rejected Novartis’s patent claims on imatinib
mesylate (Glivec).

More recently, the Swiss corporation Roche, in an effort to prevent the
marketing of potentially affordable versions of a breast cancer drug,
claimed it had data exclusivity and copyright on the clinical studies
published in its package insert accompanying the pharmaceutical product.
The courts dismissed the Swiss firm’s claims and upheld the Indian drug
regulator’s approval to competitors who market the cancer drug.

EFTA negotiating text: Leaked document: March 15, 2017 Note by Switzerland
on India EFTA TEPA IP Chapter, Knowledge Ecology International available at

EFTA-India FTA negotiations began in October 2008 and 15 rounds of
negotiations have been held to date. Leaked Text: Draft Chapter of IP of
India-EFTA FTA is available at:

For more information contact: Shailly Gupta +91 9899976108

Leena Menghaney
Mobile: 9811365412

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