[Ip-health] Financial Express: EU push for liberal patents finds favour with PMO

Thiru Balasubramaniam thiru at keionline.org
Wed Jan 12 03:36:39 PST 2011

Shailly Gupta (MSF) requested this to be posted.


EU push for liberal patents finds favour with PMO

KG Narendranath

2011-01-12 03:06:21+05:30, The Financial Express

New Delhi

Hard lobbying by the European Union (EU), home to many of the world's
largest pharmaceutical firms like Novartis, Sanofi-Aventis and Roche,  
struck a chord with the Prime Minister's Office (PMO), which is now  
pressure' on a reluctant commerce and industry ministry to include a
contentious IPR chapter in the proposed India-EU trade and investment  

The EU wants India to liberalise its patenting standards exclusively  
for the
applicants from the union's 27 countries. It also clamours for a  
string of
associated rewards like a defined period of 'data exclusivity' and
Supplementary Protection Certificates (SPCs). These additional rights  
enable the patent-holders to fully exploit the economic value of their
inventions (including incremental ones) by enjoying the exclusive  
rights for
longer periods, much more peacefully and to the fullest.

Agreeing to the EU demands could, however, potentially overturn India's
Patent Act --which was last amended in 2005 and arguably strikes a  
between patent rights and the access to medicines--, and hit the  
generic drug industry hard.

Official sources on the condition of anonymity told FE that the PMO has
sought to know from the department of industrial policy and promotion  
as to what it thinks of the EU demands. This is despite the fact that  
DIPP has been unflinchingly dismissive of these demands citing them as
'TRIPS-plus' and made its position amply clear to all concerned.

During the India-EU summit in Brussels last month, Prime Minister  
Singh and European Commission president JM Barroso declared their  
intent to
conclude the trade and investment pact in March, when Singh is slated to
visit Europe again. It is believed that the PMO wants the IPR issue to  
addressed quickly enough for that plan to materialise.

In a recent note to the department of pharmaceuticals on the PMO
communication it received earlier, the DIPP wrote, "The DIPP does not
support data exclusivity and amendments suggested by the OPPI (an Indian
industry body that consists mostly of foreign MNCs present here) to the
Patents Act..." The department which is the nodal agency for the  
policy on
patents, believes that so long as India continues to be a net IPR user  
an IPR producer (85% of Indian patents go to non-residents), there was
"absolutely no need to tinker (with) /tweak (the Patents Act) in any  
at this juncture. The department asserts that India's patent laws as  
exist today are compliant with the WTO's Trade-Related Intellectual  
Rights (TRIPS) agreement, and there is no need for an easing of the
patenting criteria until and unless India's capabilities on innovation  
reinforced. Patenting criteria, the department believes, should be
context-dependent and take into account the level of development and
infrastructure of the country concerned.

Data exclusivity denotes protection of the test and other data  
to new chemical entities) that is submitted to the drug regulators from
unfair commercial use. This is provided for under Article 39.3 of the  
agreement. But the EU wants something more than this: first, it says the
regulator should not rely on the innovator data to approve generic  
that are bio-equivalent to the originator's product and secondly, it  
the facility to be available for not only NCEs but other pharma  
products as
well. Given the time-lines of the patenting and regulatory process, data
exclusivity of this nature could potentially delay the entry of  
generics and
scupper government's ability to invoke compulsory licence, a TRIPS- 
policy tool that is meant to break patents under defined circumstances  
public health crises. It could also result in an extended period of  
exclusivity for patented drugs as the innovator can come out with "new
indications" of the drug close to patent expiry and get the  
concomitant data

Although many countries, including China (at the time of its WTO entry),
allow periods of data exclusivity as defined in the EU wish list,  
India has
been dithering on this, keeping in mind the interests of the country's
robust generic industry which is also big hope for under-developed  
in Africa wanting to import cheap generic drugs under the Doha  
on Public Health.

Similarly, the SPC provides for an extension of the patent term for up  
to 5
years to compensate for the "regulatory delays"- that is, the time  
taken to
obtain the approvals for pre-clinical and clinical (human) trials and
validate the data. Further, the EU wants courts in India to grant  
injunctions as interim relief in patent infringement cases. This, it has
been pointed out, is against the principles of equity. The DIPP says  
interest should not be dis-served by a permanent injunction. After all,
patent or any other IPR for that matter, is a private right which  
should be
enforced by the right owner rather than the state. On patentability
criteria, what the EU wants is a removal/dilution of the Section 3 (d)  
India's Patents Act that seeks to prevent patenting of incremental
inventions that don't bring substantial improvement in efficacy. While  
government is making up its mind over whether or not to have the
disputatious IPR chapter in the proposed India-EU bilateral pact, the  
industry is divided and busy lobbying with the political establishment.

The Indian Pharmaceutical Alliance (IPA) that comprises top-notch  
drug companies, has quoted the World Health Organization to drive home  
point that the EU demands are unjust : "in bilateral trade  
negotiations, it
is important that governments ensure that ministries of health be  
represented... (bilateral agreements) should not seek to incorporate
TRIPS-plus protection in ways that may reduce access to medicines in
developing countries." An e-mail sent to OPPI director-general Tapan Ray
elicited an automatic response that he is out of office till Jan 12  
and has
no access to e-mail during the period.

The industry body's president Ranjit Sahani was also travelling and not
available for comment, while its other office-bears said they are not
authorised to speak on behalf of the body to the media.

As a tradeoff, what the EU offers is recognition of a clutch of India's
geographical indications (a form of IPR linked to the geographical  
origin of
a product and the distinct quality it derives from that origin) like
Kanchipuram Silk, Kolhapuri Chappal, Nagpur Orange, Bikaneri Bhujia,
Darjeeling Tea and Agra Petha. However, then economic gain from this  
for the
local communities is expected to be meagre, as these reputations are  
limited to India.

Although bilateral pacts on IPRs are limited to the countries  
concerned, it
could induce other countries to invoke the non-discrimination (most  
nation) clause under the World Trade Organization.


Shailly Gupta
Medecins Sans Frontieres
Campaign for Access to Essential Medicines
C 236 Defence Colony, New Delhi, India
Tel: +91 11 46573731, +91 11 46573730
M: 9899976108

Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
thiru at keionline.org

Tel: +41 22 791 6727
Mobile: +41 76 508 0997

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