Is India’s tough stance on intellectual property under threat?

By G Pramod Kumar*

LogoAmidst the feel-good roadshow of Barrack Obama and Narendra Modi and the promise of $ 4 billion American investment, something critical to the survival of India and the rest of the developing world went under the radar – continuing pressure by America to dilute India’s intellectual property regime that saves the lives of millions of people in India and elsewhere.

In the name of doing more business in India, Obama raised it, yet again, at the CEO’s meet on Monday. In response, Modi said that India was willing to accept the suggestions  of a joint Indo-US working group on intellectual property rights. Its biggest impact will be on India’s health sector.

Modi’s promise is the beginning of a dangerous acquiescence to the dictates of America, which wants India to play by its intellectual property rules, whereas what India does is absolutely within its rights under the WTO (World Trade Organisation) framework. America wants to circumvent India’s WTO protection and meddle with its policy environment. In fact, two moves in the recent past – the constitution of the joint Indo-US working group on Intellectual Property Rights (IPR), and a think-tank to draft a national IPR policy – appeared to have resulted from US pressure.

The American pharmaceutical industry has been peeved by India’s refusal to allow silly patents and ever-greening (patenting the same drugs with minor modifications), as well as it exercising its right of issuing compulsory licences for drugs that are vital for the health of its people. The attack on India’s intellectual property rights became intense after 2012, when the Indian patent controller allowed local production of an expensive cancer drug which reduced its price by 97 percent. What perhaps enraged them more is that just before Obama’s visit, the controller refused to grant patent to American pharmaceutical company, Gilead, for an extremely expensive drug for hepatitis C. The drug costs $ 1000 a pill in the US, while it can be produced locally at $ 1 a pill.

While Obama and the Americans repeatedly caution India on its intellectual property rights regime, what it sweeps under the carpet is the latter’s sovereign right to play by the flexibilities provided by the WTO. India is on a “priority watch list” in America’s special 301 report, that identifies countries which do not provide “adequate and effective” protection of intellectual property rights or “fair and equitable market access to United States persons that rely upon intellectual property rights.”

National and international civil society organisations and public health activists have flagged this danger ahead of Obama’s visit. In a statement, Medecins Sans Frontieres (MSF) said that the US pressure appears to have begun to influence Indian patent policy. It said that the government is delaying the production of the generic version of a prohibitively priced cancer drug, despite the recommendation of a health ministry expert committee, and the new draft IP policy by India’s IPR Think-Tank is “alarming”.

“The draft emphasises patent monopolies as the key driver of innovation, when such claims have been refuted by numerous studies, and experts at the World Health Organization, which have found IP in fact to be a barrier to both access to affordable medicines, and innovation for medicines desperately needed by developing countries for diseases such as TB,” MSF said. “The alarm bells should be going off for the new Indian government,” said Dr Manica Balasegaram, Executive Director of MSF’s Access Campaign. “The US is pushing India to play by its rules on intellectual property, which we know will lead to medicines being priced out of reach for millions of people.”

Civil society pressure is also coming from America

 Prior to Obama’s visit, several American NGOs engaged in affordable treatment activism, urged him “to support India’s central role in providing high-quality, low-cost generic medicines – which are essential for health care around the world.” In a statement addressed to him, they said US policies sought to topple India’s intellectual property regime to advance the interests of multinational companies. They reminded Obama that India is fully compliant with WTO TRIPS agreement and that millions around the world, including the beneficiaries of US funded programmes, depend on Indian generic drugs. “Our world is safer and healthier because of India’s pro-health stance and we ask you to say so publicly while you are there.”

It’s a globally acknowledged fact that India’s existing IPR policy regime, although loathed by the US and the EU, has been a lifesaver for not just Indians, but also people from other developing countries. In the recent past, the country has seen how a conducive IPR policy, that doesn’t violate international conventions, can greatly help millions of people who are in need for urgent modern medical care. The compulsory licensing (breaking the patent of an MNC company because of domestic medical needs) of a couple of drugs have brought down their prices manifold and there is demand for more such decisions from healthcare activists. For instance, cancer drug Glivec, sold by Swiss Pharma company Novartis for more than Rs one lakh, is now available in the generic from for about Rs 8,800 and its price is likely to fall further. US Pharma lobby has been wrongfully going to town against such decisions saying that India doesn’t respect patent and innovation.

Obama’s pressure on India betrays his double standards. The man behind the epochal Affordable Care Act (ACA), that sought to make medical care accessible to a third of American citizens who are either uninsured or underinsured, wants to rob Indians of their right to survive. India needs to be extremely vigilant not to let is growth ambitions overlook the critical needs of its people.

*Originally published in FirstPost.com on January 28, 2015.