Indian Patents Act To Prevail Undiluted…Finally

Curiously enough, what a little birdie told me just a couple of weeks ago, very similar to that I read in various media reports even less than a week later.

It was related to a somewhat trepidatious national policy in the making on Intellectual Property Rights (IPR) in India.

One major apprehension, besides a few others on this IPR Policy, was flying all over and nettling many. It was regarding the possibility of tweaking or dilution of the Indian Patents Act by the Government, coming under strong external pressure and also to get support on India’s food security in the World Trade Organization (WTO).

Probably to douse this simmering fire of trepidation, well calibrated, unambiguous and reassuring narratives on the subject were unfolded recently by the Government, that too in a quick succession, which were somewhat as under.

On July 20, 2015, at an event organized by the Federation of Indian Chambers of Commerce and Industry (FICCI), the Commerce and Industry Minister Nirmala Sitharaman reiterated that:

  • India’s IPR laws are quite in compliant with the TRIPS (Trade Related Aspects of Intellectual Property Rights) agreement.
  • There is no need for apprehension in any corner of the world as to what India’s patent regime is like.

The Minister also indicated at the same event that following a transparent process of drafting…and redrafting; the final blue print of the IPR policy has now been circulated to all concerned ministries for inter-ministerial consultations. After completion of that process soon, her Ministry would submit the final version to the Cabinet for approval.

It is now anticipated that by the end of this year the first ‘IPR Policy’ of India would be operational.

The creeping angst for a possible twitching in the country’s otherwise robust Patents Act, was mostly originated from a pointed recent utterance of Prime Minister Modi on this issue that we shall quickly explore in this article.

Another stronger assertion:

Immediately thereafter, while commenting on a related article published in an Indian business daily dated July 24, 2015, Minister Nirmala Sitharaman reasserted the following points even more emphatically and virtually in so many words:

  • India’s IPR laws are fully compliant with international obligations under the TRIPS agreement. This includes the Patents Act, 2005, whose provisions have time and again stood the test of judicial scrutiny.
  • There is no question of permitting ‘evergreening’ of patents, or of realigning our IPR laws to comply with US laws.
  • There is no question of sacrificing our IPR laws to get support from a particular country even on food security.

A brief background:

In October 2014, almost immediately after Prime Minister Modi’s return to India from the United States, the the Department of Industrial Policy and Promotion (DIPP) formed a six-member ‘Think Tank’, chaired by Justice (Retd.) Prabha Sridevan, to draft the ‘National IPR Policy’ and suggest ways and legal means to handle undue pressure exerted by other countries in IPR related areas.

The notification mandated the ‘Think Tank’ to examine the current issues raised in such reports and give suggestions to the ministry of Commerce & Industry as appropriate.

However, the domestic pharma industry, many international and national experts together with the local stakeholders, continue to strongly argue against any fundamental changes in the prevailing robust patent regime of India.

Taking quick strides, on December 19, 2014, the Think Tank’ released its first draft of 29 pages seeking stakeholders’ comments. According to Minister Nirmala Sitharaman, “Different people, countries, including the United States and other organizations have already given their inputs on the draft policy.”

The new policy would focus on stronger enforcement of IPR by increasing the manpower in IP offices and reducing pendency of IPR filings. It aims at bringing clarity to the existing laws and making changes wherever required to safeguard the interests of Indian industry and patent holders worldwide.

I reviewed this subject in my blog post of January 19, 2015 titled, New “National IPR Policy” of India – A Pharma Perspective.

Most recent apprehension:

The most recent spark for the speculation of a possible dilution in the Indian Patents Act 2005, came from the April 24, 20015 media report that quoted Prime Minister Modi expressing his intent on the issue, seemingly going overboard, as follows:

“India’s patent laws should be brought on par with global standards to make Asia’s third largest economy a hub for outsourced creative services.”

The basic purpose of making such an apparently ambiguous statement may be construed as an attempt to attract more Foreign Direct Investments (FDI) for the country.

Whatever it may be, this announcement of the Prime Minister sent a strong signal to many as an impending major shift in his Government’s thinking to move away from an otherwise robust and a decade old IPR regime in India, undoubtedly under intense external pressure.

The above pronouncement from an otherwise tough minded Prime Minister came as a bolt from the blue, as it were, to many stakeholders. This is mainly because; India has so far been maintaining in all forum that its IPR regime is fully TRIPS compliant and garnered enough international support from the experts in this area, including Nobel Laureates.

The Prime Minister made his intent even stronger, when he further elaborated his argument as under:

“If we don’t work towards bringing our intellectual property rights at par with global parameters, then the world will not keep relations with us. If we give confidence to the world on IPR, then we can become a destination globally for their creative work.”

Some American Government agencies reportedly lapped up Prime Minister Modi’s statement as they openly commented as follows:

“The United States also welcomes April 2015 statements made by Prime Minister Modi recommending that India align its patent laws with international standards and encourages India expeditiously undertake this initiative”

Intriguing comment:

Prime Minister Modi’s comment in this regard that “India needs to bring its patent laws on par with global standards,” comes of rather intriguing to many domain experts, as TRIPS agreement is the only universally accepted ‘Global Standard’ for IPR. Even the new Government has reiterated that Indian patent regime is fully TRIPS compliant.

India welcomes and encourages innovation:

With the enactment of Patents Act 2005, India has demonstrated that Intellectual Property Rights (IPR) and pharma patents in particular, help fostering innovation and is critical in meeting unmet needs of the patients.

However, the moot question still remains, what type pharmaceutical invention, should deserve market exclusivity or monopoly with overall freedom in pricing, keeping larger public health interest in mind.

There are still some loose knots in the process of speedy resolution of all IP related disputes and creation of a desirable ecosystem for innovation in the country, that the new IPR Policy is expected to effectively address, soon.

Two fundamental changes that the US is looking for:

Leaving aside the peripheral ones, the following two are the center pieces where the United States would want India to dilute its Patents Act 2005 considerably:

  • Patentability for all types of innovation, including ‘me-too’ ones and evergreening of patents, which would delay entry of affordable generic drugs.
  • “Compulsory Licensing (CL)” provisions, other than during natural calamities.

The status today: 

Though the Prime Minister has not further spoken on this subject publicly, from the recent statements of the Union Minster of Commerce and Industry it seems rather clear that for greater public health interest, India has decided to keep its Patents Act undiluted, at least, for now.

The Union Government has distinctly explained its stand in the following two areas:

I. No…No, to ‘Evergreening’ of patents in India:

In line with this thinking, for quite sometime a raging global debate has brought to the fore that there are quite a large number of patents on drug variants that offer not very significant value to the patients over the mother molecules, yet are as expensive, if not more than the original ones.

In common parlance these types of inventions are considered as ‘trivial incremental innovations’ and described as attempts to ‘evergreening’ the patents.

A paper titled, “Pharmaceutical Innovation, Incremental Patenting and Compulsory Licensing” by Carlos M. Correa argued as follows:

“Despite decline in the discovery of New Chemical Entities (NCEs) for pharmaceutical use, there has been significant proliferation of patents on products and processes that cover minor, incremental innovations.”

The study conducted in five developing countries – Argentina, Brazil, Colombia, India and South Africa has:

  • Evidenced a significant proliferation of ‘evergreening’ pharmaceutical patents that can block generic competition and thereby limit patients’ access to medicines.
  • Found that both the nature of pharmaceutical learning and innovation and the interest of public health are best served in a framework where rigorous standards of inventive steps are used to grant patents.
  • Suggested that with the application of well-defined patentability standards, governments could avoid spending the political capital necessary to grant and sustain compulsory licenses/government use.
  • Commented, if patent applications were correctly scrutinized, there would be no need to have recourse to CL measures.

Indian Patents Act under its section 3(d), discourages the above practices for public health interest. This particular provision, though absolutely TRIPS compliant is not followed in the developed markets, predominantly for commercial reasons. Hence the mounting pressure is on India for its major dilution.

II. Compulsory License (CL) provisions would stay to prevent misuse and abuse:

This is another major safeguard provision for the patients against abuse and misuse of patents, including obscene price tags of patented drugs, non-working of patents as a commercial strategy, limited availability, besides extreme urgency and some other situations. Though TRIPS very clearly allows all such provisions, India has so far granted just one CL.

With these India has amply demonstrated that CL provisions are important safeguards for the country and not for abuse or misuse by any one, including the Government. Moreover, it has to pass the acid test of rigorous judicial scrutiny that includes the Supreme Court of India.

Despite all these, more scares are being created around CL provisions in India than what is the reality in the country.

Various safeguards and deterrents against misuse and abuse of patents are absolutely essential for public health interest. Hence there is naturally no question of going back from such provisions in the statute.

It is worth noting, if Indian Patent regime is not TRIPS compliant, why hasn’t any country complained against India to the World Trade Organization (WTO) for having all these provisions in the Indian Patents Act, as yet?

India shows the new IPR way:

According to available reports, the following countries are coming closer to the Indian pharma patent regime:

  • Argentina has issued guidelines to reject ‘frivolous’ patents
  • Peru, Columbia and some other South American countries have placed curbs
  • Philippines has similar provisions
  • South Africa is contemplating to incorporate such steps
  • Australia is deliberating on making the law tougher

Positive reverberations in the domestic pharma sector:

Home grown pharma players seem to be visibly happy too, as the overall stand of the Government in this regards is getting clearer.

This in many ways gets vindicated, when a promoter, chairperson and managing director of a mid-size Indian Pharma and Biotech company, with high media visibility, reportedly comments on the finalization of Indian IPR Policy as follows:

“There is a need to protect interest and disallow monopolies like big pharma or big companies/corporates that want to invest and take advantage of the Indian market.”

Concerns of some ‘Who’s Who’:

The following is just an example of such concern:

On February 10, 2015,  the Nobel Laureate in Economics – Joseph E. Stiglitz, made the following comment in an article published in ‘The World Opinion Page’ of ‘Project Syndicate’:

“If the Obama administration succeeds in forcing India to strengthen its patent laws, the change would harm not only India and other developing countries; it would also enshrine a grossly corrupt and inefficient patent system in the US, in which companies increase their profits by driving out the competition – both at home and abroad. After all, generic drugs from India often provide the lowest-cost option in the US market once patent terms have expired.”

As things stand today, it would not be unreasonable to conclude that the Nobel Laureate Joseph E. Stiglitz’s worst apprehension on the Indian Patent regime, in all probability would not come true.

Conclusion:

For quite some time, Indian Government has been under intense nagging from the United States, other developed countries, many drug MNCs and the pharma lobby groups lavishly funded by them; to effect major changes in the Patents Act of the country that currently denies unreasonable commercial exploitations, in many ways. Section 3(d) of the statute is just one of the key examples.

The browbeaters of such ilk keep pontificating the importance of ‘innovation’ and that too with a condescending undertone, as if the Indian Government is blissfully ignorant about it.

They allegedly want the Government to dilute the robust safeguard provisions of Indian Patents Act, trying to unfairly tilt the balance of justice in their favor. Consequently, it would go against the patients’ health interest by considerably delaying entry of cheaper generic equivalents, of ‘me-too’ type of inventions, in the country.

Despite initial apprehensions based on the possible misconstrued observation of the Prime Minister Modi on this issue, clear and unambiguous recent assertions of the Government on the patent regime of India, especially in the ‘count-down’ days of the new IPR Policy announcements, is reassuring. It goes without saying, this cannot happen without the benediction of India’s all-powerful Prime minister.

As stated in the draft document, let us hope that the new IPR Policy would help establishing a dynamic, vibrant and balanced intellectual property system in India, to foster innovation and creativity in a knowledge economy and accelerate economic growth, employment and entrepreneurship.

Under this backdrop, it now emerges almost indubitably that Indian Patents Act 2005 would continue to prevail undiluted much to the dismay of its fiercest critics…Finally?

By: Tapan J. Ray

Disclaimer: The views/opinions expressed in this article are entirely my own, written in my individual and personal capacity. I do not represent any other person or organization for this opinion.

Progress of the ‘Millennium Development Goals (MDGs)’ in India: a little to cheer, more to ponder

The world has just five more years to achieve the ‘Millennium Development Goals (MDGs)’. To accelerate progress of this unique United Nation’s initiative the UN Secretary-General Ban Ki-moon has called on world leaders to attend a summit in New York on 20-22 September 2010. Under this back-drop let us deliberate on the progress made by India on this global project.

The ‘Millennium Development Goals (MDGs)’:

These are eight time-bound comprehensive developmental goals, both global and country-specific, adopted by the world leaders in the year 2000, with clearly defined benchmarks and targets to achieve by the year 2015, encompassing even the healthcare space. The key purpose of the MDGs is to address multi-dimensional issues and manifestations of extreme poverty prevailing in the world. The eight MDGs, which have been clearly divided into 18 quantifiable targets and evaluated by 48 indicators, are as follows.

1: Eradicate extreme poverty and hunger
2: Achieve universal primary education
3: Promote gender equality and empower women
4: Reduce child mortality
5: Improve maternal health
6: Combat HIV/AIDS, malaria and other diseases
7: Ensure environmental sustainability
8: Develop a Global Partnership for Development

What happens, if these goals are achieved?

MDGs provide a unique platform to the civil society across the nations to work in unison with common objectives to ensure equitable distribution of the outcome of human development in all countries of the world. If the MDGs are achieved by all the nations, it is believed, ‘world poverty will be cut by half, tens of millions of lives will be saved, and billions more people will have the opportunity to benefit from the global economy’.

UNDP score card and forecast:

The first India country-report on the MDGs for the year 2005 was released by the Government of India on February 13, 2006 in Delhi. Now with just five more years to go, let me take you through the following broad and major findings from an assessment report prepared by the United Nations Development Program (UNDP) in 2009 on the same:

1: Eradicate extreme poverty and hunger:

Set objective: India must reduce the number of people below the poverty line from around 37,5% in 1990 to around 18.75% in 2015.

Progress:

• Absolute number of poor has declined from 320 million (36% of population) in 1993-94 to 301 million (27.6% of total population) in 2004-05. At this rate, the country will still have 279 million people (22.1%) living below the poverty line in 2015.

• India is slow in eliminating the effects of malnutrition, going by the proportion of underweight children below three years of age. This proportion has declined only marginally from about 47 in 1998-99 to about 46 percent in 2005-06. At this rate, 40% of children will still remain underweight by 2015.

2: Achieve universal primary education:

Set objective: India should increase the primary school enrolment rate to 100% and wipe out the drop-outs by 2015 against 41.96% in 1991-92.

Progress: Going at the rate by which youth literacy increased between 1991 and 2001, from 61.9% to 76.4%, India is expected to have 100 percent youth literacy by the end of 2012.

3: Promote gender equality and empower women:

Set objective: India will promote female participation at all levels to reach a female: male proportion of equal levels by 2015.

Progress: Gender parity in primary and secondary education is likely to be achieved, though not in tertiary education. But the share of women in wage employment in the non-farm sector can at best be expected to reach a level of about 24% by 2015, far short of parity.

4: Reduce child mortality:

Set objective: India will reduce under- five mortality rate (U5MR) from 125 deaths per thousand live births in 1988-92 to 42 in 2015.

Progress: Prevalence of child mortality is down from 125 per thousand live births in 1990 to 74.6 per thousand live births in 2005-06. At this rate, the level is expected to reach 70 per thousand by 2015, short of the target of 42 per thousand live births by 2015.

5: Improve maternal health:

Set objective: India should reduce maternal mortality rate (MMR) from 437 deaths per 100,000 live births in 1991 to 109 by 2015.

Progress: The national MMR level has come down from 398 per 100,000 live births in 1997‐98 to 254 per 100,000 live births in 2004‐06, a 36% decline over a span of seven years as compared to a 25% decline in the preceding eight years from 1990‐1997. Given to achieve an MMR of 109 per 100,000 live births by 2015, India tends to fall short by about 26 points as it tends to reach MMR of about 135 per 100,000 live births in 2015.

6: Combat HIV/AIDS, malaria and other diseases:

Set objective: India has a low prevalence of HIV among pregnant women as compared to other developing countries, yet the prevalence rate has increased from 0.74 per thousand pregnant women in 2002 to 0.86 in 2003. The increasing trend needs to be reversed by 2015.

Progress:

• Spread of HIV/AIDS in the country shows a downward trend: from 2.73 million (0.45%) people living with HIV/AIDS in 2002, the number has declined to 2.31 million (0.34%) by 2007.

• With 1.9 million tuberculosis cases estimated in 2008, India has a fifth of the world’s total. But India made the most notable progress in providing treatment across the country. In 2008, over 1.5 million patients were enrolled for treatment.

7: Ensure environmental sustainability:

Set objectives:

• Integrate the principles of sustainable development into country policies and programs and reverse the loss of environmental resources.

• Halve, by 2015, the proportion of people without sustainable access to safe drinking water and basic sanitation

Progress:

• During the past decade, India’s forest cover has increased by 728 sq. km, access to water is up from 68.2% in 1992-93 to 84.4% in 2007-08 and in urban areas it is 95%.

• 2015 Target (83%) for proportion of households without access to safe drinking water sources has already been attained by 2007‐08 (84%).

• At the current rate of decline, India is likely to have the proportion of households without any sanitation reduced to about 46% by 2015 against the target of 38%.

8: Develop a Global Partnership for Development:

Set objective: Co-operation with the private sector and making available the benefits of new technologies.

Progress: Overall tele-density has remarkably increased from 0.67 per 100 population in 1991 to 36.98 per 100 population in March 2009.

Conclusion:

Though in some areas of MDGs like, achieving universal primary education, combating HIV, malaria and tuberculosis, ensuring environmental sustainability and developing a global partnership for development, India has something to cheer about. However, in other areas the progress made by the country, as on date, is far from satisfactory, as there are more key issues to ponder. The main reasons of inadequacy in these areas being low public spend of around 1.1% of GDP on health and 4.1% on education.

Moreover, the awareness, contribution and involvement of other stakeholders like Corporates, NGOs and the Civil Society at large in most of the states of India, if not all, in this commendable global initiative is dismal, to say the least.

If India wants to come out with flying colors by end 2015 in its efforts to effectively address multi-dimensional issues and manifestations of extreme poverty and hunger prevailing in the country, the Country assessment report prepared by the UNDP in 2009 on MDGs, should be taken as the ‘wake-up’ call to make good the lost time– as the saying goes ‘better late than never’.

By Tapan Ray

Disclaimer: The views/opinions expressed in this article are entirely my own, written in my individual and personal capacity. I do not represent any other person or organization for this opinion.