[Ip-health] Patent waiver: US goes online to placate India

Shailly shailly.17 at gmail.com
Wed Aug 1 02:44:26 PDT 2012


Manoj Mitta<http://timesofindia.indiatimes.com/toireporter/author-Manoj-Mitta.cms>,
TNN | Aug 1, 2012, 05.29AM IST

NEW DELHI: Though India had granted its first ever "compulsory licence", a
patent waiver, to make a
cancer<http://timesofindia.indiatimes.com/topic/Cancer> drug
more accessible, an official of the Barack
condemned it in a congressional hearing as a violation of "international
standards". What has however gone unnoticed is that the deputy director of
the US patent and trademark office (USPTO), Teresa Rea, has since used a
blog to "clarify" that India was legally entitled to exercise such an

In the blog published in the USPTO website on July 2 recalling the
questions put to her in the congressional hearing, Rea said that she wanted
to "take this opportunity to clarify my responses relative to ...
compulsory licensing under TRIPS" (trade related aspects of intellectual
property rights).

Her clarification distinguished between the rights conferred by TRIPS and
conflicting national interests. "Although compulsory licensing can be
permissible under the TRIPS agreement, we encourage our trading partners to
consider ways to address their public health challenges while maintaining
intellectual property rights systems that promote investment, research and

It was then that Rea conceded, however indirectly, that India had deviated
only from American interests and not from any global norms. She wrote, "The
broad interpretation of Indian law in a recent decision by the controller
general of patents of India regarding compulsory licensing of patents, in
my view, may undermine those goals."

This was a far cry from the scathing attack she had launched against India
on June 27 before the House judiciary subcommittee on intellectual
property, competition and the internet. Responding to a question, Rea said
she was "dismayed and surprised" when India had granted compulsory licence
on March 9 to Hyderabad-based Natco to manufacture a generic version of
Bayer's patented cancer drug called Nexavar.

Showing no qualms about attacking a
decision taken by controller general P H Kurien, Rea said in the hearing
that the first compulsory licence granted by India in the TRIPS era "didn't
meet international standards and was not due to national crisis." She had
even made insinuations against the rigour and integrity of the decision by
claiming, with a touch <http://timesofindia.indiatimes.com/topic/Touch> of
exaggeration, that compulsory licence had been "granted by commissioner
Kurien on the very last day of his leaving office."

In reality, after giving a three-day hearing to both sides, Kurien
announced his decision three days prior to his retirement. It was just that
the detailed order had been uploaded on the net minutes before his exit on
March 12.

Rea's retraction through her blog followed protests from civil society. The
controversy served to highlight the irony that US itself was in the
forefront of exploiting the TRIPS provision for compulsory licence. There
are several instances of the American executive and judiciary waiving
patents, among other reasons, in the public interest.


Shailly Gupta

Policy Advocacy Officer

Medecins Sans Frontieres

Access Campaign

C 236 Defence Colony

New Delhi, India

Tel: +91 11 46573730-31

M: 9899976108

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