[Ip-health] Why Narendra Modi’s US visits make the sick and poor in India anxious

K.M. Gopakumar kumargopakm at gmail.com
Tue Jun 7 05:40:56 PDT 2016

Why Narendra Modi’s US visits make the sick and poor in India anxious

Each time Prime Minister Narendra Modi
prepares to engage with the US, public health activists and observers in
India get really anxious. And it’s happening yet again as Modi sets foot on
American soil for a packed, three-day state visit.

The anxiety of public health specialists is not without reason and it’s not
restricted to India alone, but also across the developing world. The fear
is that if Modi capitulates to US pressure on India’s Intellectual Property
Rights (IPR) regime, which it has been overtly and covertly exerting for
years, it will make many lifesaving drugs unaffordable. Not just in India,
but in most poor countries because India is the main pharmacy for the
entire developing world.

The reason to peg this concern to a high level India-US diplomatic
engagement is historic.

Although India’s trade and strategic conversations with the US are not all
about pharmaceuticals, even a marginal mistake on the latter can be too
costly for the country. Among a host of other negotiations, Big Pharma in
the US, through several lobbying arms have been trying to water down
India’s IP policy to suit their interests. They want India to freely issue
patents for their drugs, even if they don’t qualify according to Indian IP
laws or involve unfair practices such as ever-greening, so that they can
sell them at whatever prices they choose and prevent Indians from making
generics. They also don't want India to use its legitimate right to issue
compulsory licenses to drugs that are critical to the health of the people
of India as allowed by TRIPS.
[image: File image of Barack Obama and Narendra Modi. PTI]

File image of Barack Obama and Narendra Modi. PTI

Although the Government of India has clarified early this year that it
hadn't promised the US that it wouldn’t issue compulsory licences, the
Indian position is still not totally transparent for a number of reasons.

First, it is a strange India-US policy group. The Government of India had
constituted an India-US “annual high-level Intellectual Property (IP)
Working Group with appropriate decision-making and technical-level
meetings” after Modi’s visit to the US in 2014. This decision allowed the
US a role in influencing India’s sovereign rights. A real foot-in-the-door

The details of the deliberations of this WG are unknown. But that the group
came into existence in the wake of a joint letter by the US Senate and
House Committees to the US International Trade Commission (USITC) which
said that "India has not yet taken action to fully and effectively protect
and enforce copyrights…, particularly against innovative US pharmaceutical
companies, so as to advantage its domestic industries” has been

Then came the denial of patent to pharmaceutical giant Gilead for its
Hepatitis C drug Sofosbuvir and its subsequent revocation. The application
was originally rejected by the Indian patent office in 2015, but was
accepted early this year. Media reports said there was intense pressure
from the government on the patent office to grant a patent for this
prohibitively expensive drug. Had the 2015 decision stayed, Indian
companies could have manufactured the drug locally and made it available at
a fraction of its original cost. In the US, the drug costs abut US $84,000
for a 12-week course. In a bid to probably avert further pressure from
Indian activists and companies, Gilead subsequently made it available at a
cheaper price in India through a voluntary licencing agreement with Indian

In 2016, the patent office also rejected the application from a Hyderabad
based company, Lee Pharma, for a compulsory license for an important
diabetics drug Saxagliptin, originally manufactured by AstraZeneca. The
grounds for compulsory licensing — that “the reasonable requirements of
public with respect to the patented invention have not been satisfied, or
that the patented invention is not available to the public at reasonably
affordable price, or that the patented invention is not worked in the
territory of India” as stipulated by the Indian patent law were not
accepted, although the drug was not available widely at affordable prices.
Activists saw this also as a bad sign of forfeiting the country’s IPR

Finally, the timing of the new IPR policy that the government had finalised
recently also showed that India was yielding to pressure from the US.
According to Commerce Minister Nirmala Sitharaman, the policy was finalised
well in time for Modi’s visit. Intellectual property rights lawyer KM
Gopakumar wrote about the new policy in *Economic and Political Weekly*
“Even though the policy contains certain measures to protect public
interest, these measures can get undermined during implementation of the
policy due to the overall thrust on IP generation and commercialisation
without adequately recognising India’s socioeconomic imperatives. One of
the unstated reasons for putting together the policy is to ease pressures
from the US to deliver on IP awareness, service orientation of the Patent
Office and IP generation. Thus the policy bears the danger of further
increasing the pressure instead of minimising it.”

Leena Menghaney, South Asia head of MSF's Access Campaign minced no words
when she said in a statement: “It’s outrageous that the US is trying to
export its broken intellectual property system to India — a system that has
caused medicine prices to skyrocket, leaving patients empty-handed, and
patients and payers struggling to manage the cost of expensive patented
medicines…These policies, which are increasingly not working for people in
the US, should not be forced on people living in India or anywhere else in
the world.”
India doesn’t realise that even a country such as Egypt fared better in
resisting the US pressure. Egypt refused patent to Gilead’s Hepatitis C
drug and will be in a position to manufacture and export the drug to other
countries. Modi’s advisers and lobbyists of American pharmaceutical
industry have likely misled him on India’s legitimate and legal rights and
the importance of fair drug prices to keep Indians alive

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