Source: The Times of India
8 Dec 2014
India’s intellectual property (IP) law has been hailed as one of the most progressive for safeguarding public interest, and several nations like Argentina, the Philippines and Brazil are looking to learn from it. Senior advocate and former UN special rapporteur on the right to health Anand Grover talks to Rema Nagarajan about the pressure the country is facing, primarily from the US, to change its IP laws.
Why is the US turning the heat on India over IP?
The US government is under pressure from its companies to take action against India over its IP law. But our law is 100% compliant with the Trade-Related Intellectual Property Rights (TRIPS) agreement of the World Trade Organisation (WTO). So, if they take it up with WTO, they will lose 100%. That’s why they have taken the unilateral route of pressurizing India by placing it on the Special 301 list meant for countries whose patent protection laws are deemed inadequate by the US. The TRIPS agreement allows flexibilities such as countries deciding what is “new or innovative” in giving patent rights. That is why we have section 3(d) in our patent law, which defines what is new or innovative.
The US says its advice on patents will help India boost innovation. Is that true?
Actually, they, the US and EU, ought to learn from us. As UN special rapporteur on health, I had advised them to change their patent laws along the lines of the Indian one because we found that with their law, a majority of the drugs being patented were just new forms of existing drugs with no change in therapeutic efficacy. It is precisely to prevent this sort of tweaking of existing drugs to get patents that we have section 3(d). FDA’s own data says 76% of drug patents in the US are for new forms of existing drugs. I pointed out to them that they were giving the same number of years under patent for an original new molecule as for new forms of an existing molecule. Companies make the same amount of money by tweaking existing molecules. So what’s their incentive to discover new molecules? That’s why the discovery of new molecules is grinding to a halt. If they had a law like ours, they would see how many new molecules and drugs would be discovered. But the pharma lobby that heavily funds US elections is too strong for the government to bring the necessary changes in patent laws.
Why has the Indian government’s IP think tank generated controversy?
Health activists primarily have a problem with the composition of the think tank. Barring Prabha Sridevan, who is former chairperson of the Intellectual Property Appellate Board (IPAB) and has heard important patent cases as a high court judge in Chennai, what is the background of the other members? Do they have any research background or experience in policy-making?
Where are the academicians who have been advising the government on IP for so many years? We want to know from the government how the members of the think tank were picked. There has to be a transparent process. The BJP has come to power partly on the basis it is against nepotism. Who picked the members? The mandate of the think tank suggests that they will advise the government on IP policy forever. All this might just be window dressing, because some lobby within the government is pushing to change the IP law. Even the Confederation of Indian Industries (CII) and Federation of Indian Chambers of Commerce and Industry (FICCI) want the law changed. But they have always been part of the MNC conglomerate and will only think of their interests and about getting more investment. It will not be that easy. Our patent law was unanimously passed by Parliament. The whole government has backed the stance on section 3(d) so far. It will be a huge shift if they actually come out against it.
What should the government do about IP in the current circumstances?
The government seems to believe that by changing the IP law they will get more foreign investment. There is no evidence that will happen. India is known for its IT industry and in the developing world for its pharmaceuticals. If we change our laws to suit external interests, we could end up destroying our domestic industry. Creating a climate friendly for investment cannot be at the cost of your own industry.
‘Make in India’ should be made in India by Indians for Indians and for the whole of humanity. It should not become Make in India by foreigners, where they take over our industries.
As for being under pressure, this government is supposed to be a strong government so they should be able to withstand pressures from anywhere. If they buckle to US pressure despite being such a strong government, that will be a sad day. Let’s see how strong they really are.