[Ip-health] Observations India patent bill

[James Love]

I am writting from Mumbai, where I attended an impressive meeting
organized by the Lawyers Collective on AIDS.  Quite a few NGO people are
here (more than 50), following the events in Dehli.  Also around are a
number of the key persons from the Indian domestic industry, such as Dr.
Hamied or DG Shah, and on the phone are people like B.K. Kealya.   If you
talk to 6 different people, you get a range of views, and things were
changing by the hour so it has been hard to keep tract.  Plus, so far I
have not seen the actual text of the amendments that did pass.  So, at the
risk of getting it wrong, I can offer a few observations.

This were looking fairly bleak last week, but improved quite a bit over
time on several key amendments.  Apparently Pfizer, GSK and Norvartis are
a big presence on this, roughly in that order.  There is quite a bit of
talk, in the government and parliament, and among industry and NGOs, about
the money that is allegedly being spread around the government and the
parliament to secure a patent law with broad patentable subject matter,
weak mechanisms to challenge patents, and weak, limited and cumbersome
exceptions.   That said, Pfizer, GSK and Norvartis could not have been
happy with what happened in the last few days.  Despite having a terrible
bill backed by the government, which was not much different than the one
backed by the BJP opposition party, things became more complex when the
BJP and the left decided to oppose the bill.  The Congress party
apparently alienated the BJP by back-tracking from a promised review of
the bill.  A random event also was important  --  the US government
decision to deny BJP Gujarat chief minister Narendra Modi a visa to enter
the US provoked a highly public backlash, and the patent bill was a handy
symbol of US power.  As the BJP dug in opposing the patent bill, the left
became more aggressive in demanding amendments.  The visible criticisms of
the bill by MSF, the Lawyers Collective, and other NGOs, including those
from developing countries, the behind the scenes lobbying by various
public health officials, and similar efforts also softened support for the
government=92s hard-line position.  Some changes in the bill were only
negotiated today, including a provision that apparently grants automatic
compulsory licenses to any company already manufacturing a drug with a
mailbox patent.  This has the effect to creating a large program of
compulsory licensing of patents in India, immediately as patents are
issued.  Thus, unlike lots of countries with compulsory licensing
provisions in laws, India will gain a lot of practical experience in
granting licenses and setting royalties.  This could be such a powerful
cultural change and example that it will be hard to reverse down the line
-- the compulsory licenses will be a visible symbol of a measure that
promotes access =96 as the now defunct Canadian compulsory licensing
legislation was.   This too will likely led to substantial use of exports
under the 30 August 2005 WTO decision, including to countries without
patents (something that was fixed this week).  The lobbyists for the
domestic industry also obtained a number of changes in other parts of the
bill, particularly in the area of the limits on patentable subject matter,
to reduce evergreening.   The Indian changes in these areas may be copied
by some other countries, and it clearly undermines the position advocated
by WIPO in the Casablanca statement regarding patent harmonization.

Many activists (myself included) are rightly outraged that the Congress
party backed such a bad bill, and that the left did not push for even
greater changes in the legislation, such as extending the automatic
compulsory licenses, streamlining administrative practices, creating caps
on royalties, eliminating the 3 year ban that will apply to some
compulsory licensing cases, or other measures that would better protect
the poor.  And I still have to read the actual text of the amendments to
evaluate what has happened.  But that said, the bill that did emerge was
not what Pfizer, GSK and others had wanted or expected just a few days
earlier.

Next up are adoption of rules for the legislation =96 something also to wat=
ch.

Jamie  +91.98.197.53428 until Wed.  (note time difference before calling).


--
James Love
http://www.cptech.org mailto:james.love@cptech.org
mobile +1.202.361.3040