announcement Monday evening in the US,
Managing IP, wondered if this was the IP-related
enforcement action that many have been expecting. The American
Chamber of Commerce (AmCham) has been
particularly vocal in the
call to bring legal action against India for its
patent invalidations and
compulsory licences that AmCham argues violates TRIPS.
Just prior to Froman’s announcement of the WTO
enforcement action, AmCham argued that India’s
do nothing to enhance access to medicines.
President Barack Obama and India Prime Minister Manmohan
Singh’s meeting last year to discuss trade
issues, tensions between their countries are still
The continual lack of a WTO complaint about
India’s TRIPS compliance may at first glance lend
credence to the arguments of supporters of India’s
patent regime. Dilip Shah of the Indian Pharmaceutical Alliance
is one such defender,
telling Managing IP last year that India’s
drug patent policies comply with the flexibilities afforded by
TRIPS. He also argued that the US government likely accepts
this, albeit grudgingly.
"Novartis and other drug companies have tried to get the US
government to go the WTO to file a complaint, but the
government said 'no’," Shah said. "Do you believe
that the US pharmaceutical industry with such tremendous
lobbying power would hesitate to push for an official complaint
against India if the TRIPS agreement is violated?"
Guidance from China?
However, the story may be more complicated. Though many
practitioners point to China as a country that has made
considerable improvements in IP protection and
held up by rights holders as a superior IP regime to
India’s, it was not too long ago that the US
brought its WTO complaint against China for TRIPS violations.
The US lodged its official complaint in April 2007, but only
after years of Section 301 Reports admonishing China for weak
protection and complaints from government officials and rights
holders alike (One USTR report to Congress described
China’s enforcement regime as "toothless"). In
fact, AmCham was openly critical of China’s IP
protection as far back as 2001, some six years before the
action was initiated and even before China acceded to the
In other words, these things take time.
That is, of course, no consolation for the drug companies
who argue that their investments are being unlawfully devalued
by what they perceive to be an unfair patent regime. Given the
sensitivities and political dance that comes with these
debates, it is not surprising that even if the USTR is
considering taking action, it is not moving as fast as patent
holders may wish.
Furthermore, if the Chinese case is any indication, a WTO
action may not necessarily be the fix that the rights holders
are looking for. Despite the build-up to the complaint against
China, the result was
considered a disappointment from the US perspective and
may have done some damage to the constructive dialogue that
the two countries had built up on IP protection. Given that
there is still
considerable debate about the TRIPS compliance of
India’s provisions on these issues, a US case,
while maybe not as weak as Shah may suggest, is likely not a
slam dunk either.
Join the debate
Despite the stark lines that some draw around this debate
concerning India’s patent regime, the viewpoints
of many Indian lawyers are quite nuanced. Last year at the
India IP and
Innovation Forum, the discussion among the attendees was
quite lively. Interestingly, the positions taken did not
necessarily correspond with everyone’s direct
economic interest; some lawyers who represented innovator drug
companies acknowledged that India’s public health
was a unique challenge, while access to medicine advocates
spoke of the need to properly incentivise research and costly
Managing IP looks to have another such discussion at this
year’s event, set to take place on February 26 in
New Delhi. If you are in town at that time, consider
joining us and sharing your thoughts on this and other IP
issues India faces today.