Every time countries negotiate a trade deal, public health workers are forced to keep their ear to the ground, to ensure there is no trade-off on health. And that seems to be the case this time too, in the build-up to the proposed Free Trade Agreement (FTA) between India and the United Kingdom.

Leaked texts and back-room discussions, say pro-health groups, outline requirements in the chapter on Intellectual Property (IP) that would curb India’s ability to make medicines for patients in the country and other parts of the world.

In fact, humanitarian group MSF (Medecins Sans Frontieres or Doctors without Borders), reacting to the leaked texts on IP, urged India and the UK to keep IP off the table. In a conversation, MSF’s spokesperson on access to medicines explained that the texts indicated a watering down of the patentability critera; inclusion of features like extension of the patent term (currently at 20 years), exclusion of pre-grant opposition (or the right to challenge a patent application) and information on the “working of a patent”.

Understanding the “working of a patent” becomes important to map if a company is making a medicine (on which it received the patent) available to patients in the country. Incidentally, it was on similar grounds that India issued its first compulsory licence, on Bayer’s advanced kidney cancer drug Nexavar, to Hyderabad-based Natco, allowing the latter to make the drug at a lower price and on payment of royalty to the innovator.

India has managed to stave-off the “ever-greening” of patents through Section 3 (d) of the Patents Act, that does not allow fresh protection on an existing patent, unless the modified product is able to establish enhanced efficacy.

On its part, MSF calls for competition from generic producers to keep medicines’ prices down and save lives; but that’s constantly under threat from FTAs that expand monopolies on medicines, they point out.

Conceding on public health safeguards in one FTA will lead to amending features in the Act, affecting India’s capacity to produce medicines, cautions another IP expert.

Voluntary licensing

In fact, health activists are not convinced with the “voluntary licensing” (VL) approach that became popular during the Covid-19 pandemic.

Over 300 collaborations, according to industry estimates, were inked between innovators and generic drugmakers, to expand access to new drugs and vaccines. But public health workers lament — VLs are too few and far between, and restrictive in scope — and hence do no good to a country’s ability to strengthen its own health capacities.

Against this backdrop of heightened health concerns, another report on the FTA negotiations claims that “red lines and sensitivities” have been outlined by the two countries and certain policies were no-go zones.

Discussions on agreements that impact the health of people in the country, should not be shrouded in secrecy, pushing civil society to rely on leaked texts and source-based reports. There should be greater transparency on the stated position of the country.

In fact, this should have been a key take-away, following over two-years of the Covid-19 pandemic. Reports from different countries reveal how questions are being raised on certain vaccines and risks linked to them; their procurement, pricing etc.

Never mind how well-meaning negotiators are in getting the best products for their citizens, the deal should be able to withstand public scrutiny. And for that, there needs to be greater transparency on the fine-print.

Published on November 6, 2022