[Ip-health] India’s patent law may face legal hurdle at WTO

Jamie Love james.love at keionline.org
Fri Jun 12 12:09:16 PDT 2015

Obama really seems to hate  poor people, and love big pharma.  I don't get
it.  Jamie

On Fri, Jun 12, 2015 at 4:11 PM, Tahir Amin <tahir at i-mak.org> wrote:

> http://www.livemint.com/Politics/HyWtICLQJL3LDGGAEoC3tM/Indias-patent-law-may-face-legal-hurdle-at-WTO.html
> D. Ravi Kanth <
> http://www.livemint.com/Search/Link/Author/D.%20Ravi%20Kanth>
> *Geneva:* India’s amended national patent law, particularly a provision
> which defines what inventions are, could face a legal challenge arising
> from an aggressive move by the US and Switzerland.
>  The move, which could hurt India’s pharma companies, arises from efforts
> by the US and Switzerland to terminate the existing moratorium on
> non-violation complaints to the World Trade Organization’s trade-related
> intellectual property rights (TRIPS) agreement.
> Non-violation complaints refer to complaints by a WTO member that claims
> another member’s actions or policies caused it a loss, even if there is no
> violation of a WTO agreement. Developing countries such as India are
> understandably wary of these complaints. Currently, there is a moratorium
> on such complaints till later this year.
> The US, which has always opposed the moratorium, has specifically raised
> concerns about the section 3(d) in the amended Indian patent Act on the
> ground that it “may have the effect of limiting the patentability of
> potentially beneficial innovations” in its 2015 Special 301 Report.
> In reality, the 3(d) provision prevented pharmaceutical companies from
> continually extending their 20-year drug patents by tweaking with minor
> changes or improvements, an “evergreening” process in the IPR jargon. The
> provision led to the cancellation of the patent for Novartis AG
> <http://www.livemint.com/Search/Link/Keyword/Novartis%20AG>’s cancer drug
> Glivec.
> India will have to forego these flexibilities and policy space if
> non-violation complaints are allowed under the TRIPS agreement, analysts
> said.
> On Wednesday, India and Brazil with support from a large majority of
> countries, including Norway, asked the WTO’s TRIPS council to recommend to
> the upcoming 10th ministerial conference in Nairobi, Kenya, later this year
> that non-violation complaints “shall” not apply to the settlement of
> disputes under the TRIPS agreement.
> The majority of countries at WTO want a permanent moratorium in place, a
> South American trade official said.
> During the meeting, the US and Switzerland stood completely isolated in
> their demand for terminating the moratorium, several participants said.
> The US and Switzerland must “seriously reflect on the concerns expressed by
> overwhelming number of delegations in this meeting and earlier and should
> join the consensus that non-violation complaints as identified in Article
> XXIII:1 (b) and (c) of the GATT 1994 be determined inapplicable to the
> TRIPS agreement, in the interest of the stability and certainty of the
> multilateral system,” an Indian official said at the meeting.
> Ahead of the meeting, India and Brazil submitted a joint proposal, which
> was co-sponsored by 17 other countries, including China, Bolivia, Colombia,
> Cuba, Ecuador, Egypt, Indonesia, Kenya, Malaysia, Pakistan, Peru, Russia,
> Sri Lanka and Venezuela, calling for continuing with the moratorium on
> non-violating complaints under the TRIPS agreement.
> “The TRIPS agreement, unlike other WTO agreements,” said India and Brazil,
> “is a sui generis agreement which is not designed to protect market access
> or the balance of tariff concessions but rather to establish minimum
> standards of intellectual property protection, which, if abused, may even
> undermine market access.”
> Therefore, non-violation complaints are unnecessary as they raise “serious
> concerns on the ambiguity, incoherence and limit on flexibilities” that
> members currently avail in the TRIPS agreement, an Indian official told the
> meeting.
> Moreover, such complaints affect the development of robust pharmaceutical
> industry in developing and poorest countries due to the legal challenges
> and enormous litigation costs, the official argued.
> Currently, non-violation complaints are only allowed for trade in goods and
> trade in service to ensure tariff and market access concessions are not
> undermined because of opaque governmental actions. Effectively, they only
> deal with market access in goods and services.
> But the complaints are not permitted in the TRIPS agreement, which deals
> only with minimum standards to be implemented by WTO members for protecting
> intellectual property rights. The TRIPS agreement is not about the market
> access and currently there is a moratorium in force for not allowing these
> complaints to apply to TRIPS agreement since 2003.
> On behalf of the big pharmaceutical companies such as Pfizer Inc.
> <http://www.livemint.com/Search/Link/Keyword/Pfizer%20Inc.>, Merck & Co.
> Inc. <http://www.livemint.com/Search/Link/Keyword/Merck%20&%20Co.%20Inc.>,
> Eli
> Lily & Co.
> <http://www.livemint.com/Search/Link/Keyword/Eli%20Lily%20&%20Co.>,
> Bristol-Myers
> Squibb Co.
> <http://www.livemint.com/Search/Link/Keyword/Bristol-Myers%20Squibb%20Co
> .>,
> Roche
> Holdings Ltd
> <http://www.livemint.com/Search/Link/Keyword/Roche%20Holdings%20Ltd>, and
> Novartis <http://www.livemint.com/Search/Link/Keyword/Novartis>, the US
> and
> Switzerland are mounting a warlike effort to end the moratorium at WTO’s
> 10th ministerial conference in Nairobi.
> The US and Swiss companies which lost major IPR disputes in various
> developing countries, including India, reckon that patent provisions such
> as 3(d) in the amended Indian patent Act or compulsory licensing provisions
> can only be stopped in their tracks by raising non-violation legal
> complaints at WTO under the TRIPS provisions, said a pharma analyst in
> Geneva.
> Given the rising strength of the Indian generic companies in the
> international market, the US and Switzerland can only regain their
> dominance and market access in India and elsewhere through launching
> disputes under non-violation complaints at WTO, the analyst added.
> The US and Swiss IPR officials made a strong case that the time has come
> for terminating the moratorium saying that if there is no consensus on
> extension of moratorium at the 10 ministerial conference in Nairobi then
> non-violation complaints will automatically apply, according to
> participants at the meeting.
> --
> Tahir Amin
> Co-Founder and Director of Intellectual Property
> Initiative for Medicines, Access & Knowledge (I-MAK)
> *Website:* www.i-mak.org
> *Email:* tahir at i-mak.org
> *Skype: *tahirmamin
> *Tel:* +1 917 455 6601/+44 771 853 9472
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James Love.  Knowledge Ecology International
KEI DC tel: +1.202.332.2670, US Mobile: +1.202.361.3040, Geneva Mobile:
+41.76.413.6584, twitter.com/jamie_love

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