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The politics of IPR policy

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20150228ep02The draft National IPR policy, unveiled last December by the Department of Industrial Policy & Promotion (DIPP), has already garnered a fair bit of critical comment. Spicy IP has a blog post summarising comments submitted to the DIPP by Prof NS Gopalakrishnan and Dr TG Agitha, both from Cochin University of Science and Technology (CUSAT) who point out that it does not live up to its own introductory comments, which gave the impression that it was aiming for a balanced IPR policy. They caution that such a policy may only benefit ‘the foreign denomination of IP holders in India, making economic benefits to themselves using the Indian economy as a market.’

If the draft national IPR policy is any indication of Prime Minister Modi’s stance on IP, academics are worried that his government is getting set to undo decades of hard won victories. This opinion is echoed by Prof Brook K Baker, Professor of Law at the Northeastern University, US who is even blunter in an article exclusively written for Express Pharma. (Will a new US-led IP empire in India put access to medicines at risk? Pages 35-37.) Shattering the afterglow of the Obama-Modi bonhomie which was very much on view this Republic Day, Baker reads between the lines of the joint release and warns that the Modi government’s accelerating flirtation with the US and its investors is dangerous to hundreds of millions of people worldwide whose lives depend on Indian generics.

For a government obsessed with global rankings, it must be particularly galling that India is at the second-last position of the global IP rankings recently released by the US Chamber of Commerce’s Global Intellectual Property Centre (GIPC). But many see this low ranking as a badge of honour. Commentators like Shamnad Basheer, founder of Spicy IP and a recent recipient of the Infosys Prize in Humanities for his contribution to Indian IP law, have rightly panned the practice of global IP rankings (see his Op-ed column,‘These rancid rankings’, in Indian Express http://indianexpress.com/article/opinion/columns/these-rancid-rankings/99/) as these rankings are based on flawed framework and irrelevant indices.

Indeed, there will be no easing of the political pressure on this front. While closing the Out of Cycle Review (OCR) of India’s IP protection measures last December, the Office of the US Trade Representative (US TR) had reminded us that the 2015 Special 301 Review process, generally released every April, was just a few months down the line.

The US is not the only political heavyweight pushing for tighter IPRs. Reports have come in that Japan is taking on the US’ role at the ongoing negotiations on the Regional Comprehensive Economic Partnership (RCEP) between the 10 ASEAN nations and Australia, China, India, Japan, New Zealand and South Korea. Patient advocacy group Delhi Network of Positive People (DNP+) has raised concerns that the leaked text of a draft IP chapter tabled by Japan which will probably be discussed by the RCEP’s Working Group on Intellectual Property (WGIP), could restrict the ability of governments to take decisions in the interest of the public health and delay the vailability of low-cost generic versions of medicines.

In the 36-page document, Japan proposes measures that include dilution of patentability criteria, strengthening data exclusivity, patent term extension and IP enforcement measures across borders which target legitimate generic medicines. If these provisions become part of the RCEP, then India would be forced to extend patent protection beyond its current IP policy.

There are already rumours, based on the tone and tenor of the draft National IPR policy, that the Modi government is ready to change its position on patentability, data exclusivity and patent-registration linkage. Will a government so focused on India’s global image, be ready to risk political and economic isolation at both the global and regional level?

Especially when the recent poor show in the Delhi state elections has the ruling party on the back foot. Will Finance Minister Arun Jaitley’s maiden full budget be populist rather than fiscally prudent, with an eye on several other state elections due in the near future? With the Modi government already pruning the health budget, the signs don’t appear to be too good for the pharma and healthcare sectors. But hope springs eternal. Do take a quick look at this year’s wish list from pharma honchos (Budget 2015: Awaiting Achhe Din, pages 30-34).

The Goods and Services Tax (GST) regime is expected to be one of the most important policy implementations of this year. Our cover story in this issue, (GST: A wait and watch approach, pages 24-27) features perspectives from pharma manufacturers, as well as allied players who supply to them. We also have experts from two leading tax advisory firms provide a detailed analysis of the tax implications of GST; do catch these insights as well. (GST and its impact on pharma page 28 and GST: The road ahead page 29)

Will industry continue to suffer the paralysing play of politics on policy? Or will the Modi government manage a balancing act?

Viveka Roychowdhury
Editor

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