A US trade lawyer’s observation on the possibility of hauling India to the World Trade Organisation, “for violating international patent treatises”, has ruffled feathers back in India.

The lawyer’s observation was made at a US Chamber of Commerce event in New York, a foreign media-report said, adding that the lawyer felt it was time countries exercised their rights under the WTO’s Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement.

This development is more than just an individual’s observation. In fact, it is the latest addition to the string of criticism heaped on the Indian patent regime, ever since foreign drug-majors lost a few cases here. There is a perception problem and the Indian Government needs to explain to counterparts in other countries and counter the misrepresentation of India’s patent enforcement, say patent-experts and public-health workers, concerned at the pressure being put on India by global trade and policy circles.

The backlash against the Indian patent regime saw an increase after judgments in some high-profile cases, including Novartis’ blood-cancer drug Glivec and Bayer’s advanced kidney cancer drug Nexavar, to name just a couple, went against the multinationals.

TRIPS offers enough leeway

Shamnad Basheer, a legal expert on intellectual property (IP) issues whose blog carried the news on the US lawyer’s suggestion, said that TRIPS gives countries enough latitude to do what is in their best interest. And the judgments in India came after a transparent and fair process, he added.

Echoing similar sentiments, Pratibha Singh, a lawyer involved with patent-cases said, the judicial and quasi-judicial authorities in India are impartial and decide cases on merit. In fact, India will be able to establish its case without doubt, she added, if indeed India’s enforcement of patents was taken to WTO’s dispute settlement body.

Section 3(d)

Global rumbling against India’s amended Patents Act started even before the judgments - with Section 3 (d) of the Act coming in for specific criticism in global trade circles. The provision disallows patent protection for incremental developments made by drug companies on existing molecules or substances. And as a result, Section 3 (d) attracts diverse reactions. Public-health activists laud it, as it throws out frivolous patents. But multinational representatives feel that it also disregards meaningful innovation, albeit incremental.

Wiki-leaks

In fact, recent revelations through whistle-blower web site WikiLeaks confirmed the worst fears of public health workers – of the US government putting pressure on countries to adopt IP measures that could end up impacting access to inexpensive generic drugs.

Leena Menghaney, with international humanitarian organisation MSF (Médecins Sans Frontières – Doctors without Borders), said that they were mobilising a campaign against US trade authorities who were aggressively pushing for other countries to adopt TRIPS-plus measures that would affect access to medicines.

Through free trade agreements, developed markets are looking to link investments and delay-related compensations with IP protection, and this affects medicine access, besides opening up countries like India (with strong provisions like Section 3 (d)) to greater litigation, said a public-health lawyer.

The criticism of India’s Patents Act has been relentless, coming from US-based industry associations and sections of its Congress-men. In one instance, a critical submission by a Pfizer executive to a US trade sub-committee on India’s patent enforcement was countered by the Indian Pharmaceutical Alliance, representing domestic drug-majors.

jyothi.datta@thehindu.co.in