India's Approach To Pharma Patents Under US Attack, But Other BRICS Nations Likely To Adopt It

from the closing-the-barn-door dept

Techdirt has been reporting for a while on India's growing success in providing its population with access to low-cost generic drugs, making use of the permissions to do so granted by TRIPS. That has naturally earned it the ire of Western pharma companies, which now seem to be striking back, as this post on Infojustice.org explains: The U.S. pharmaceutical industry and its Big Brother Chamber of Commerce have launched an all-out disinformation campaign against the India Patent Act and decisions rendered thereunder. They have enlisted allies in the U.S. government, including Members of Congress, the United States International Trade Commission, Secretary of State Kerry, and even President Obama, to carry their claims to the highest levels of the Indian government. They have threatened to insist that the U.S. file a WTO trade complaints against India in 2014 and that India no longer be permitted to export duty-free products to the U.S. under the Generalized System of Preferences.



As evidence for their campaign, the representatives of Big Pharma have claimed that India is violating US-based global norms for protecting patent rights, that it is adopting new patenting criteria not authorized by international law and allowing generic competition when it is not permissible, and that it is discriminating against U.S. pharmaceutical companies in favor protectionist policies that shield Indian generic companies and steal U.S. jobs. The rest of the post -- written by Professor Brook K. Baker, whose work has been discussed here on Techdirt several times -- then goes on to explain in detail why those claims are false, and is well-worth reading to understand the legal issues here.

Interestingly, it looks like India could be joined by other nations in exploiting TRIPS flexibilities. An article in South Africa's Mail & Guardian newspaper reports that there is both legislation and a detailed report from the research arm of the Brazilian Chamber of Deputies that have this as their goal, not just in Brazil, but elsewhere too: Amending intellectual property legislation is just what the country aims to do with the release of a 363-page report earlier this week by the Brazilian [Chamber of Deputies] Centre for Strategic Studies and Debates.



The report's suggested changes mirror those outlined in a Bill tabled in Brazil's Parliament earlier this year.



Although the Bill has yet to be heard, lead report writer Pedro Paranaguà, intellectual property adviser for the ruling Workers Party, says that he hopes the document "will serve as a means for influencing court decisions, the competition authority, and academics -- nationally, and internationally". In the same article, Baker explains why India succeeded in creating a flourishing domestic drug industry, while Brazil did not: Although developing countries had until 2005 to adopt the Trips Agreement into their national laws, Baker says that Brazil acceded nearly a decade earlier because the US pressured the country into adopting more stringent intellectual property measures by placing it on its Special 301 Report.



…



India, in contrast, waited until the 2005 deadline. As such, the country did not have to respect pharmaceutical patents, which helped India to develop a strong generic pharmaceutical sector. The country is now famously known as the "pharmacy of the developing world", supplying the majority of the [antiretroviral drugs] used in Africa. Meanwhile, in South Africa, an open letter from 130 organizations and experts to the Department of Trade and Industry there is urging similar pro-health patent moves to those in Brazil: South Africa's Department of Trade and Industry (DTI) has expressed its intention that reform of the intellectual property system will balance patients' rights with those of patent-holders. Given South Africa's high burden for both communicable and non-communicable diseases, this is a positive step towards addressing the current imbalance in the system in a manner conducive to social and economic welfare, the protection of public health, and the transfer and dissemination of technology, especially in sectors of vital importance to socio-economic and technological development. The DNPIP [Draft National Policy on Intellectual Property] proposes several reforms that would make use of pro-public health flexibilities allowable under the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property (TRIPS). Many other countries, including India and Argentina, have already incorporated TRIPS flexibilities into their national laws, and others, like Brazil, are initiating comparable pro-health patent law reforms. These countries and others have also implemented TRIPS-compliant flexibilities to procure more affordable medicines and to strengthen domestic pharmaceutical capacity. We think that intellectual property law reforms are essential for South Africa to meet its human rights obligations, including the right to health and the right of access to medicines. This is doubtless exactly what Western pharma companies feared would happen. India's example is now inspiring other BRICS countries to follow suit, making use of flexibilities in TRIPS to provide desperately-need medicines to their populations at affordable prices. Current US attempts to attack India's approach to pharma patents are not just unjustified, as Baker explains, but quite simply too late.

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