[Ip-health] Hindustan Times: The right prescription in the IPR debate

Shailly Gupta shailly.gupta at geneva.msf.org
Mon Sep 29 23:24:14 PDT 2014

September 29, 2014




Prime Minister Narendra Modi is in the United States. As part of the agenda
for the visit, both countries will unfold their wishlist for the other.
Chief on the list will be the US Trade Representative's (USTR's) requirement
that India wind back parts of its posture on patents. India's patent reforms
have long bothered the US, causing the latter to take an uncharacteristic
and sometimes, an unwarranted interest. In every one of the USTR watchlists,
India has featured as a 'priority' country, a status bestowed on countries
whose trade laws are considered a barrier to US trade. This year, India was
red-flagged as a 'Priority Foreign Country,' a special status designated for
the intellectual property pariahs of the world.


The USTR was most irked this year by a compulsory licence that India issued
for Nexavar, useful to treat kidney and liver cancer, over which Bayer held
a patent. Bayer initially priced Nexavar at approximately $4,700 per month,
which was five times higher than the median annual income in India. With
20,000 patients suffering from liver cancer and another 9,000 patients with
kidney cancer, India's efforts to compulsorily license Bayer's patent and
force it to provide a licence to the technology at a reduced price was done
in a year when the company recorded a profit of over $678 million.


Members of the pharmaceutical association decried the Indian Supreme Court
judgment that denied patent protection for Novartis' patent on Glivec, a
drug to treat certain forms of leukemia.


Interestingly, that same year, the US Supreme Court overturned the decisions
of the Federal Circuit in five out of the six patent disputes that it
considered. Similarly, the invalidation rate of patents at the US Patent
Trial and Appeal Board is close to 90%. The USTR fiasco incorrectly shows
India as being anti-innovation.


India has demonstrated its commitment to innovation by instituting massive
changes to further intellectual property in full conformity with the world
trade agreements. The sophistication of a patent system is not in the number
of patents issued. It is in the quality of patents. Ensuring a high bar to
allow quality patents is an integral ingredient for balancing innovation
with access. Instituting policies that preserve access to medication is
important for a developing country like India with a high poverty index.


Appreciating India's commitment to intellectual property, Gilead has
licensed its technology to generic drug companies in India and South Africa
for a 5% royalty with the right to export to 91 low-income countries.

The interest to enter into voluntary licences showcases a sense of
responsibility which innovative pharmaceutical companies should embrace
instead of decrying compulsory licences, especially considering that
compulsory licensing is a delineated right under the trade laws for use by
poorer nations.


India's position on patents is a trend-setter because its effectuates
different models, including a different pricing structure for poorer
markets, or price control, which is prevalent in Europe to promote
innovation while enabling access.

The importance of the innovation complex and the role of access within that
paradigm are much emphasised by the Ebola era, which is characterising the
current times.


It underlines the reach of public health crises and poses potent threats to
the global economy. Modi's visit should reinforce that as a working
democracy India is capable of establishing policies within the scope of its
trade commitments and socio-economic constraints.


(Srividhya Ragavan is professor of law, University of Oklahoma College of
Law, and Raj Dave is partner, Pillsbury Winthrop Shaw Pittman LLP. The views
expressed by authors are personal.)



Shailly Gupta

Advocacy & Communication Officer

MSF Access Campaign

K-30, Jangpura Extension

New Delhi - 14





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