Health care: India resists pressure on forgoing ‘flexibilities’ under TRIPS

India has spoken out at the World Trade Organisation (WTO) against the political and economic pressures being placed by some countries, like the US, on governments to forgo the use of flexibilities allowed by the global intellectual property agreement TRIPS with the objective of taking care of public health needs.

It also raised concerns on the growing imbalance between intellectual property and public interest.

“In the last meeting of the WTO’s TRIPS (Trade Related Intellectual Property Rights) Council in June, India and some other countries such as South Africa, El Salvador, Indonesia and Colombia, intervened to emphasise that WTO members must have the complete freedom to decide the grounds upon which compulsory licences are granted and use other flexibilities,” a government official told BusinessLine .

The countries underlined that the political and economic pressure placed on governments to forgo the use of TRIPS flexibilities — which allows them to issue compulsory licences (CLs) under specified circumstances and deny patents if the item is only cosmetically different than its older version —violates the integrity and legitimacy of the system of legal duties and rights created by the TRIPS agreement and reaffirmed by the 2001 Doha Declaration. “We are tired of the constant criticism of our intellectual property regime that we face in our bilateral dealings with many developed countries despite the fact that it is fully compliant with the WTO’s TRIPS pact. India has to ensure that the poor are not deprived of affordable essential medicines and therefore cannot go beyond TRIPS,” the official said.

New Delhi is under immense pressure from the US and some European countries not to issue CLs for production of generic versions of patented medicines under public health emergencies (which is allowed by TRIPS).

The US has also been asking India to change its intellectual property laws by dropping a particular provision (Section 3d) that does not allow patents to be issued on items that are not significantly different from their older versions.

The US Trade Representative office has been consistently placing India in the ‘Priority Watch List’ of countries which it feels have inadequate IP laws to protect the interests of American companies.

The TRIPS Council meeting discussed the proposal on TRIPS of Brazil, China, Fiji, India and South Africa on the right to use TRIPS flexibilities submitted a few months back, and debated how to strike an appropriate balance between the interests of rights holders and users, between the need to protect IPRs to provide incentives for research and development (R&D) on the one hand and, on the other hand, to address concerns about the potential impact of such protection on the health sector, in particular its effect on prices.

India and the other co-sponsors said there is growing concern about an imbalance between intellectual property and the public interest.

They cited health technologies as an example, where patents and related monopoly rights in test data, without sufficient use of balancing exceptions and limitations to protect the public interest, allow companies to maintain high prices and exacerbate crises of access around the world, with many patients unable to afford medicines.

This forces governments with constrained health budgets to ration care.

The US, on the other hand, warned against the potential negative effects of the co-sponsors’ view of public interest, in the sense that it could discourage members from striving towards upholding robust domestic IP regimes, and therefore deny the public the benefit of critical future innovations and creative endeavours.

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