India has biggest battlefield for IPR

A US lawmaker recently accused India of undermining intellectual property rights (IPR) of US pharma companies and of “rampant piracy and counterfeiting” by generic companies. These remarks were made in front of US Chamber of Commerce which released a report ranking India at the bottom of 25 countries in protection of intellectual property rights. However, such remarks do not stand the test of facts and are more of a scaremongering tactic employed by US policy makers.

A study of patents granted by Indian Patents Office in 3 years between 2010 and 2013 shows that 77% of total drug patents (771 out of 1001) were granted to foreign companies. The proportion rises to 85% if drug patents granted between 2005 and 2013 are considered.

The claim by Western pharma companies and government officials in recent times is due to the spate of decisions which either rejected their patent applications or revoked existing patents. The profits of these pharma companies in India have substantially declined due to the adverse rulings. But, all these decisions conform to India’s obligations under international IPR treaties like TRIPS. However, it is also true that Indian patent law is stricter than the US and European versions.

Under Indian law, patent for a new drug is granted for a period between 15-20 years which grants exclusive selling rights to the company. However, the law prohibits awarding patents for mere modifications in existing drugs, which do not improve the treatment efficacy. This was the reason behind rejection of Novartis’ patent application for blood cancer drug Glivec by the Supreme Court last year.

Another provision under the Indian patent law provides for grant of compulsory license to an Indian company which can then sell generic version of the patented drug if the drug is not available to the public at reasonable cost or is not available to all patients who need it. This provision was used by Intellectual Property Appellate Board (IPAB) to grant compulsory license to the Indian company NATCO for manufacturing generic version of the drug Nexavar, thereby breaking Bayer’s monopoly on this life saving drug for Hepatocarcinoma. NATCO started selling the drug at only Rs. 8800 as compared to Rs. 280,000 per month previously charged by Bayer.

Thus, Indian patent law gives adequate protection to genuine inventions but at the same time rejects inventions that make only superficial changes to existing drugs, and also safeguards public interest by providing for compulsory licensing. The West should respect India’s legitimate concerns in the field of public health and stop making false accusations not based on facts.

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