[Ip-health] IP in India:"Towards a Middle Path"

[Mrinalini Kochupillai]

IP in India:"Towards a Middle Path"

Text of article available at
<http://www.dnaindia.com/report.asp?newsid=3D1118561> and at the SpicyIP bl=
og
<http://spicyipindia.blogspot.com/2007/08/indias-tryst-with-intellectual-pr=
o
perty.html>

INDIA'S TRYST WITH INTELLECTUAL PROPERTY: TOWARDS A "MIDDLE" PATH?

Shamnad Basheer

'If you make the string too tight, it will break. If you make the string to=
o
loose, it will not play'.

These pearls of wisdom, communicated by a music teacher to his pupil in
order to explain to him the optimal tautness of the string of a musical
instrument, helped catapult the Buddha to nirvana. It led this saint to
articulate the =B3Middle Path=B2 =8B a position that urges one to avoid tak=
ing
=B3extreme=B2 positions. What=B9s the connection with intellectual property=
 (IP),
you may ask? Well, just as we have religious extremism, we=B9re now witness=
ing
an increasing extremism in IP debates as well. Consider the following news
headlines that screamed out at us in the wake of the Novartis patent
litigation in India: =8CPatents kill=8A=B9, =8CWe will defy patents to save=
 lives=B2,
and others in a similar vein.

These statements, reflective of a deep antipathy to patents, ignore the fac=
t
that the dispute before the court hinges on a very technical issue about
whether or not a new form of a pharmaceutical substance is patentable.
Section 3(d) of the Indian Patents Act, 2005, aims to prevent a phenomenon
commonly referred to as =B3ever-greening=B2 by requiring that, in order to
patentable, new forms of existing pharmaceutical substances should
demonstrate increased =B3efficacy=B2. Novartis=B9s patent application cover=
ing
Gleevec, an anti-cancer drug, was rejected on the ground that it lacked
increased =B3efficacy=B2. This prompted Novartis to appeal the rejection of=
 its
patent, which in turn prompted most of the headlines above!

Shouldn=B9t the case be permitted to run its course? What credibility would=
 we
have left as a country if we introduce terms such as =B3efficacy=B2, not kn=
own
to any other patent regime, and then expect interested stakeholders to
desist from taking up the issue before courts in the hope of gaining some
clarity on how such terms are to be interpreted?

Patents are not =8Cbad=B9 per se, as most of these statements make them out=
 to
be. Rather, as with most other things in life, they are susceptible to
abuse. In this regard, it is important to strike a distinction between the
grant of a patent and the regulation of its =8Cuse=B9. Assuming that the
Novartis patent issues, there are plenty of built-in safeguards in India=B9=
s
patent regime to ensure that the prices remain in check.

Some may point to the fact that Indians have always believed in sharing
knowledge, and the institution of a =8Cknowledge commons=B9 since time
immemorial. The very notion of intellectual property is, therefore,
antithetical to Indian culture. A quick look at history helps dispel this
myth. Yes, there was a fair bit of sharing, but predominantly between one
class of people, the Brahmins, and any leakage from this class was
prohibited and sometimes even visited with severe sanctions =8B a very
effective form of =8Ctrade secrecy=B9, one might say.

Of course, the picture is not complete without a look at the extreme views
advocated on the other side of the fence =8B views that extol the one-sided
wonders of the patent system, views, for instance, that promise a country
like Eritrea rapid innovation and industrial success if only it introduced =
a
patent regime similar to that in the US.  Here again, lessons from history
help qualify this highly romanticised view of patents.

Contrary to popular perception, India had a pharmaceutical product patent
regime since 1911, thanks to the British and their propensity to gift
colonies with laws/policies that were similar to theirs. And yet, this gift
did not help create any indigenous pharmaceutical industry in India =8B not
very surprising, given that most countries need to imitate first before
inventing and strong IP regimes stand in the way of permitting such
imitation. This colonial regime also resulted in extremely high drug prices=
.
A US Committee investigating drug prices the world over found that in 1961,
Meprobamate, an anti-anxiety pill, cost more than twice as much in India as
it did in the US!

Independent India was therefore keen on breaking away from its colonial pas=
t
and putting in place a regime that reflected =8Cnational=B9 interest. A
committee headed by a sagacious judge, Rajagopala Ayyangar, undertook a
quick survey of patent regimes the world over and found that most
industrialised nations began by installing regimes that permitted some leve=
l
of technological imitation. It also found that the chemical industry in
India had the potential to reverse engineer drugs. It therefore recommended
the abolition of product patents and the introduction of process patents fo=
r
pharmaceuticals. As process patents are weaker than product patents, the
idea was that such patents would not prevent the domestic industry from
reverse engineering existing drugs and manufacturing generic versions via
alternative processes. The success of the Indian generic industry today is
testimony to the far-sightedness of Ayyangar=B9s policy.

India has imitated for more than 30 years now. So, is this the right time t=
o
shift to a product patent regime? Unfortunately, we don=B9t have the luxury=
 of
asking that question anymore, since TRIPS obligates us to do so, and we did
so in 2005. But what we can do is calibrate how much protection we wish to
grant to pharmaceutical inventions. Section 3(d) is in many ways an example
of such calibration, and reflects India=B9s attempt to minimise the impact =
of
product patents by granting it to only those substances that are truly
=B3inventive=B2. However, it uses terms such as =B3efficacy=B2 that haven=
=B9t been
defined. And this is why it is critical that we let the Novartis case run
its course so that standards for interpreting such terms evolve.

India is neither =8Cdeveloped=B9 nor =8Cdeveloping=B9. It is what I would c=
all a
=8Ctechnologically proficient=B9 developing country. We=B9re strong in cert=
ain
technology sectors and therefore need to find ways to add incentives to
encourage innovation in these areas. Yet 26 per cent of our people live
below poverty line and we are =B3developing=B2 to that extent. The age-old =
IP
rules that were premised on this neat distinction between developed versus
developing countries don=B9t fit us anymore. This calls for =8Cnew=B9 norms=
, and
we need to =8Cinnovate=B9 in our IP policy as well, without blindly copying
norms created by the west. Perhaps the time is ripe to constitute another
committee to help us determine what the optimal =8Ctautness=B9 of our
patent/innovation policy string ought to be in today=B9s knowledge economy.