What is brewing between India and the US on IPR?
Business Today | 4 Feb 2015
What is brewing between India and the US on IPR?
E Kumar Sharma, associate editor, Business Today
On January 27, 2015, even as Air Force One readies for take-off, bringing US President Barack Obama’s three-day visit to India to an end, two seemingly contradictory events occur — one in India and the other in the US — giving reasons to believe that something is brewing between the two countries on the issue of intellectual property rights. Equally important, if not more, were there signs of a lack of transparency from the Indian side?
Consider this. On January 27, after meeting US Secretary of Commerce Penny Pritzker, Commerce and Industry Minister Nirmala Sitharaman tells the media that the US was invited to comment on the draft National IPR Policy and India would "then see what we can do with it".
Around the same time, miles away in the US, Michael Froman, the US Trade Representative (USTR), is testifying at a Congressional hearing. He says that the USTR has been able to "secure commitments from India in the 2014 Trade Policy Forum on a broad range of IP issues of concerns to the United States and its stakeholders". He goes on to say: "I believe we have a good dialogue going with the new government on this issue and we are committed to working to achieve concrete progress in this area."
Video clips and other news reports on this testimony available on the Internet show Froman responding to a question from Senator Orrin Hatch, the Chairman of Senate Finance Committee. Froman addresses his concerns on the IP scenario in India: "Less than two weeks ago, India’s patent office refused to grant a patent on an important drug that treats hepatitis C. Their rationale is based on a patentability standard that is out of step with the rest of the world and which many believe is inconsistent with India’s obligations under the World Trade Organization." (c-span.org). This is significant because the think tank set up by the Centre on the new Indian IPR policy, which has been put out to seek public comments, maintains that India has "robust intellectual property (IP) laws and a strong IP jurisprudence".
It is apparent that something is brewing on the IPR front from the nature of apprehensions being raised.
For example, former UN Special Rapporteur Anand Grover’s mailer, shared by an IPR expert with Business Today, says: "From inside sources it appears that Prime Minister Modi is very keen to assure US President Barack Obama and the US multinational companies (MNCs) that India will agree to the changes proposed by them. Inside sources also reveal that two issues likely to be worked upon are ’Data Exclusivity’ and ’Patent Linkage’."
The mailer goes on to say: "Both Patent Linkage and Data Exclusivity delay the entry of generic medicines, thus allowing monopolistic pricing to thrive even if this means that patients across the world are denied access to affordable medicines. If Prime Minister Modi succeeds in bringing about these two measures he would only be emboldened to dismantle the very core of the Indian IP regime, which is what the US IP industry wants."
It is not just in India, concerns are being raised internationally as well. For instance, a letter written to the US President by global health activists (Infojustice.org) points to "proposals for a bilateral investment treaty with India". It states: "The current US model bilateral investment treaty contains provisions that would empower disgruntled pharmaceutical corporations to bypass domestic courts and directly seek binding arbitration before international extrajudicial tribunals authorised to order taxpayer compensation for future profits if their expectations are frustrated by government policies or decisions."
As is apparent, much of this debate would be set to rest, only if the Indian government were a bit more open on the exact position of the dialogue with the US and where it stands.
