India's Approach To Pharma Patents Under US Attack, But Other BRICS Nations Likely To Adopt It

from the closing-the-barn-door dept

Techdirt has been reporting for a while on India's growing success in providing its population with access to low-cost generic drugs, making use of the permissions to do so granted by TRIPS. That has naturally earned it the ire of Western pharma companies, which now seem to be striking back, as this post on Infojustice.org explains:

The U.S. pharmaceutical industry and its Big Brother Chamber of Commerce have launched an all-out disinformation campaign against the India Patent Act and decisions rendered thereunder. They have enlisted allies in the U.S. government, including Members of Congress, the United States International Trade Commission, Secretary of State Kerry, and even President Obama, to carry their claims to the highest levels of the Indian government. They have threatened to insist that the U.S. file a WTO trade complaints against India in 2014 and that India no longer be permitted to export duty-free products to the U.S. under the Generalized System of Preferences.

As evidence for their campaign, the representatives of Big Pharma have claimed that India is violating US-based global norms for protecting patent rights, that it is adopting new patenting criteria not authorized by international law and allowing generic competition when it is not permissible, and that it is discriminating against U.S. pharmaceutical companies in favor protectionist policies that shield Indian generic companies and steal U.S. jobs.
The rest of the post -- written by Professor Brook K. Baker, whose work has been discussed here on Techdirt several times -- then goes on to explain in detail why those claims are false, and is well-worth reading to understand the legal issues here.

Interestingly, it looks like India could be joined by other nations in exploiting TRIPS flexibilities. An article in South Africa's Mail & Guardian newspaper reports that there is both legislation and a detailed report from the research arm of the Brazilian Chamber of Deputies that have this as their goal, not just in Brazil, but elsewhere too:

Amending intellectual property legislation is just what the country aims to do with the release of a 363-page report earlier this week by the Brazilian [Chamber of Deputies] Centre for Strategic Studies and Debates.

The report's suggested changes mirror those outlined in a Bill tabled in Brazil's Parliament earlier this year.

Although the Bill has yet to be heard, lead report writer Pedro Paranaguà, intellectual property adviser for the ruling Workers Party, says that he hopes the document "will serve as a means for influencing court decisions, the competition authority, and academics -- nationally, and internationally".
In the same article, Baker explains why India succeeded in creating a flourishing domestic drug industry, while Brazil did not:
Although developing countries had until 2005 to adopt the Trips Agreement into their national laws, Baker says that Brazil acceded nearly a decade earlier because the US pressured the country into adopting more stringent intellectual property measures by placing it on its Special 301 Report.



India, in contrast, waited until the 2005 deadline. As such, the country did not have to respect pharmaceutical patents, which helped India to develop a strong generic pharmaceutical sector. The country is now famously known as the "pharmacy of the developing world", supplying the majority of the [antiretroviral drugs] used in Africa.
Meanwhile, in South Africa, an open letter from 130 organizations and experts to the Department of Trade and Industry there is urging similar pro-health patent moves to those in Brazil:
South Africa's Department of Trade and Industry (DTI) has expressed its intention that reform of the intellectual property system will balance patients' rights with those of patent-holders. Given South Africa's high burden for both communicable and non-communicable diseases, this is a positive step towards addressing the current imbalance in the system in a manner conducive to social and economic welfare, the protection of public health, and the transfer and dissemination of technology, especially in sectors of vital importance to socio-economic and technological development. The DNPIP [Draft National Policy on Intellectual Property] proposes several reforms that would make use of pro-public health flexibilities allowable under the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property (TRIPS). Many other countries, including India and Argentina, have already incorporated TRIPS flexibilities into their national laws, and others, like Brazil, are initiating comparable pro-health patent law reforms. These countries and others have also implemented TRIPS-compliant flexibilities to procure more affordable medicines and to strengthen domestic pharmaceutical capacity. We think that intellectual property law reforms are essential for South Africa to meet its human rights obligations, including the right to health and the right of access to medicines.
This is doubtless exactly what Western pharma companies feared would happen. India's example is now inspiring other BRICS countries to follow suit, making use of flexibilities in TRIPS to provide desperately-need medicines to their populations at affordable prices. Current US attempts to attack India's approach to pharma patents are not just unjustified, as Baker explains, but quite simply too late.

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  1.  
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    Ninja (profile), Nov 1st, 2013 @ 2:10am

    It's interesting. We have a huge generics market here in Brazil. I'm guessing the "failure" he mentions is within some specific types of medicine. And when the Govt thinks there's a lot of weight into the public interest it will "break" patents such as in the AIDS drugs case (and we have it largely under control here precisely because the Govt decided to break those patents and make the drugs entirely free for the population).

    What I find interesting though is that the US greed that prevented Brazil from being what India is today sparked something that is much more valuable to the country (NOT downplaying India's success): a patent reform that is largely leading the market to much more flexibility (at least in my understanding). So in all their aggressiveness the "developed" countries are pushing the world into a more open state in terms of intellectual property.

     

    reply to this | link to this | view in thread ]

  2.  
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    haiku, Nov 1st, 2013 @ 4:25am

    In South Africa the state is by far the largest single purchaser of drugs in the country.

    The drugs are normally purchased via open tender, making the bidding reasonably competitive.

    That said, and all thanks to the manufacturers, the tender prices of a number of drugs have been found to be significantly higher than the retail price of the same drug in Europe, and that after cost of shipping back to South Africa was included.

     

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  3.  
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    Anonymous Coward, Nov 1st, 2013 @ 4:28am

    exactly the same thing done over the US entertainment industries stuff. if anyone else does something they dont like, regardless of whether the nation's people can afford the items or not, the USA threatens the nations concerned with all sorts of crap! if the US is so scared, so concerned, that people who couldn't normally afford the items can now because of generics, copying or whatever, dont export the stuff in the first place! dont put anything on the internet! keep the whole fucking lot inside the USA! no one can get it then!
    i'm still trying to work out why it is that the world seems to be so scared of the USA. what do they think they have that cant be found elsewhere? what right do they think they have to condemn people to death because of low incomes? isn't it better to sell a lot of something at a low price and make money than sell nothing at a high price and make nothing?

     

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  4.  
    identicon
    Anonymous Coward, Nov 1st, 2013 @ 4:50am

    Re:

    This is what has led to what I would term "Imaginary Bloat" in the US IP systems: the bloat in tweaking current IPs such that they can be re-applied in a new fashion, thus resetting the 'expiration clock' on all sorts of things, from biotech to cloud computing to wireless transmissions.

    And it is this that will lead to America's fall from grace in this arena - they've essentially become 'too big to compete' for the most part, and thus resort to childish and incorrect strategic applications of its might.

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    Anonymous Coward, Nov 1st, 2013 @ 5:10am

    So, the TRIPS agreement is not good enough now? They want more. Does scrooge care about the loss of credibility? Evidentially not.


    TRIPS was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994. Its inclusion was the culmination of a program of intense lobbying by the United States
    (http://en.wikipedia.org/wiki/TRIPS_Agreement)

     

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  6.  
    identicon
    Anonymous Coward, Nov 1st, 2013 @ 6:56am

    Re: Re:

    AKA ever-greening.

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    Anonymous Coward, Nov 1st, 2013 @ 9:48am

    Medications should be open for any company to make plain and simple. This fuck you if you're poor attitude has got to go because everyone deserves treatment even if it's free.

    You'd think people in the business of saving lives would actually show a little goddamn compassion.

     

    reply to this | link to this | view in thread ]

  8.  
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    John Fenderson (profile), Nov 1st, 2013 @ 9:50am

    Re:

    They aren't in the business of saving lives. They're in the business of maximizing profit.

     

    reply to this | link to this | view in thread ]

  9.  
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    Anonymous Coward, Nov 1st, 2013 @ 10:39am

    As someone who lives in America, let me tell you these patent system's don't work. Medicine, medical tests and medial treatment is unaffordable for most people in the USA.

    Also, don't follow our insurance systems. Those are unaffordable too, especially medical insurance!

    May I also recommend not forcing an entire population, who can't afford it, to pay for overpriced insurance and medical treatments. Our President seems to think this is a good idea.

    If fact, he thinks it's such a good idea, that if you disagree with him and don't do as you're demanded. He'll penalize you thousands of US dollars at the end of the year and you'll get nothing in return.

    Don't be like us. It sucks.

     

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  10.  
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    Rekrul, Nov 1st, 2013 @ 11:40am

    How dare they put people's lives and health above corporate profits! If people can't afford to pay the asking price for medications, they're obviously no use to the pharma industry and should die off to make room for someone with more money!

     

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  11.  
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    Richard (profile), Nov 1st, 2013 @ 1:02pm

    Re: Re:

    They aren't in the business of saving lives. They're in the business of maximizing profit.

    By blackmailing the sick.

     

    reply to this | link to this | view in thread ]

  12.  
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    Richard (profile), Nov 1st, 2013 @ 1:05pm

    If the US wins at the WTO

    If the US wins at the WTO - then India should behave like the US does, ignore it, pretend it went the other way and issue threats in return when challenged with enforcement.

     

    reply to this | link to this | view in thread ]

  13.  
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    Anonymous Coward, Nov 2nd, 2013 @ 7:47pm

    Countries are generally free, subject of course to binding international treaties, to set whatever "course" best suits their needs. At the same time, countries that do not find such a "course" in its interest is totally free to tell the "course" setter that foreign investment income is no longer a given, international teaming and other business relationships have suddenly become much too difficult to negotiate and implement, export markets are quickly drying up, and any other action limited only by one's imagination that will put real hurt on the "course" setter's economic interests. So, feel free to do what you want...but be prepared to pay the consequences.

     

    reply to this | link to this | view in thread ]

  14.  
    identicon
    Anonymous Coward, Nov 4th, 2013 @ 4:24am

    Re:

    Big Pharma is not in the business of saving lives or curing disease. They are in the business of selling drugs. They purposely do not research cures in favor of treatments that have the most cost and profits.

     

    reply to this | link to this | view in thread ]


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