Monthly Archives: February 2014

Indian Patent Law Is In Conformity With WTO And International Obligations

Indian Patent Law Is In Conformity With WTO And International ObligationsEven since Novartis lost the patent claims of Novartis AG’s Cancer treatment drug Glivec in the Supreme Court of India, United States in general and U.S. pharmaceutical companies in particular are targeting Indian generic pharmaceutical companies and their exported products. Even a proposed U.S. legislation would target companies using stolen Intellectual Property of U.S.

The Obama Administration has decided to scrutinise Patent trolls in U.S. Further, U.S. is also one of the countries that is using the most liberal “compulsory licensing” regime vis-à-vis pharmaceutical supplies in the U.S. territories. U.S. is also the country where individuals and companies are targeting Indian traditional knowledge and trying to get it patented on one pretext or other. Whether it is Turmeric or Pomegranate, India has successfully challenged U.S. companies’ form getting them patented in U.S. The U.S. needs to urgently change its policy towards foreign IPRs violations.

India also needs to strengthen and protect its IPRs. Till recently we had no traditional knowledge digital library (TKDL) of India. However, now we have a TKDL that is serving the interests of India and international community by thwarting any attempt to patent a product or service based upon Indian traditional knowledge. The Indian TKDL is a representative database of 1200 Ayurvedic, Unani and Siddha formulations.

Indian IP relations with European Union (EU) are also not very smooth as is reflected by a non conclusive free trade agreement between Indian and EU. Whether it is border enforcement of intellectual property rights (IPRs) of Indian goods meant for third countries destinations or dispute at WTO the negotiations between EU and India were never hassle free.

Irrespective of the noise that International community is making against Indian patent law, we at Perry4Law firmly believe that India is in strict compliance with its international obligations under the Patent Cooperation Treaty (PCT) and World Trade Organisation (WTO). In fact, we believe that Indian Sovereignty and Indian Constitution would prevail upon any international obligation that is inconsistent with the objectives and philosophies of Indian Constitution.

India has reiterated that its patent laws cannot be successfully challenged by the U.S. either in a bilateral or multilateral forum as they strictly comply with the intellectual property agreement of the WTO. Any U.S. unilateral trade measure against India on the ground of inappropriate intellectual property protection in the country would be in violation of WTO rules and can be challenged there, an official in the Commerce and Industry Ministry told Business Line. There could also be retaliatory action by India.

US business chambers and advocacy organisations on Monday asked the Obama Administration to designate India as a Priority Foreign Country, which is a status imposed on countries that are most serious violators of intellectual property rights (IPRs). The US imposes trade sanctions against countries included in the list.

The campaign against India is being led by the US pharma industry that has been lobbying for a more favourable IPR regime in India so that it could get patents for upgraded versions of their drugs whose patents have expired. US drug-makers are particularly upset about rejection of a patent application made by Swiss company Novartis for an upgraded version of its cancer medicine by the Indian Patent Appellate Board.

The US Government now wants India to drop a particular section (Section 3d) in the Indian Patent Act that allows rejection of patents on grounds that the product for which patent is sought is not significantly different from an existing product. Of course, there is no possibility of any such action on the part of Indian government and this seems to be a desperate attempt on the part of U.S. pharmaceutical companies alone.