US lobbyists lose fire ahead of trade intellectual property review

The US pharmaceutical lobby seems to have become less aggressive in its efforts to make India tighten its intellectual property norms to give more protection to their own industry.

In a recent proposal sent to the US Trade Representative (USTR), which is carrying out an investigation into India’s intellectual property regime, the Global Intellectual Property Centre (GIPC), an arm of the US Chambers, has refrained from talking about any sanctions against the country. The same body, however, had asked for India to be listed as a priority country as late as April this year.

A Health Ministry official said that this change in posturing could have come from the realisation that the US pharma lobby cannot force India to do anything that it does not want to do, especially when India is compliant with international norms.

“The fact is that they (US) are scared. They understand that we have a strong position as far as negotiations in this matter are concerned,” an official in the Health Ministry said, adding that while the US had been threatening sanctions, it had avoided taking the matter to the World Trade Organisation, for resolution of the demand.

“We are TRIPS (Trade-Related Aspects of Intellectual Property Rights)-compliant and have a very good case,” the official said.

GIPC, however, has not made any allowances in the demands that it had been putting forward.

More importantly, GIPC maintains that India needs to commit to not using compulsory licensing for commercial purposes.

But this is a demand that it cannot force on India as the TRIPS has a provision for compulsory licensing and many countries have resorted to it to prevent misuse of patents.

The US itself has taken steps to help its citizens by allowing import of ‘Lipodox’, a chemotherapeutic drug, as a replacement for ovarian cancer medicine, Doxil, due to shortage. Further, even when it did not present a “national emergency”, the USTR favoured mobile phone maker Apple in a case where Samsung had alleged infringement of US patent.

DG Shah, Secretary General of Indian Pharmaceutical Alliance, said in April, when the USTR came out with its 2014 Special 301 Report, several US corporations, such as Boeing, Honeywell and Corning, filed their submissions in favour of India, expressing satisfaction with the IPR environment in the country.

Further, pharmaceutical companies such as Abott and Gilead have also remained focused on India and have announced new partnerships in the country, displaying their confidence.

These measures by US companies, besides the support of global academics and civil society, have resulted in making the case of US lobbyists weaker and resulted in a dilution of their demands for sanctions.

“Now, with Prime Minister Narendra Modi having visited the US and the US Government being positive about talks with India, a downgrade (to a priority foreign country) isn’t likely. At the most India will remain on the out-of-cycle reviews (the next one will take place in 2015),” Shah said.

“However, when bilateral talks are already being looked into there is no need for such unilateral measures. I think India will look at asking to be taken out of these reviews,” he added.

Officials in the Commerce Ministry agree. They say the threat to list India as a ‘Priority Foreign Country’ is unjustified as the category is reserved for very serious offenders of intellectual property.

On the issue of compulsory licences raised by US companies, officials say India has given such a licence just once and it was done after due diligence and strictly on the basis of rules laid down.

India could file a dispute against the US at the WTO if it takes unilateral action against it. “We are ready to discuss with US officials there concerns at the bilateral level. But we cannot support unilateral investigations,” the official said.

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