US Industry Airs Hopes, Frustrations On IP Rights In India

What do global innovators make of India’s new National Intellectual Property Rights Policy?

A recent discussion on “India’s National IPR Strategy: A View from Global Innovators” in Washington DC attempted to assess the opportunities and challenges ahead from the perspective of American companies.

The discussion was organised by the Hudson Institute, a US think tank in collaboration with The US Chamber’s Global Intellectual Property Center (GIPC). Participants included GIPC Executive Director of International Intellectual Property Patrick Kilbride; GIPC Senior Director Kalpana Reddy; Hudson Institute Senior Fellow and Director, Center for Science in Public Policy Jeremiah Norris and other experts from the US government and the private sector.

The live-streamed panel discussion, the first of a two-part series, strongly foregrounded the US industry perspective about the Indian government’s National IPR Policy and the expected impact on India’s innovation ecosystem as well as the broader context of India and the growth of multilateral trade.

In his opening remarks, Kilbride acknowledged that “Globalisation is on the defensive. This was brought home in a striking manner in the United Kingdom in the wake of Brexit. But at the same time, India is emerging as a global economic leader and has stakes in globalization.”

India is the most likely candidate to be the next driver of global economic growth, provided it can successfully harness innovation as a driver of growth, he said.

The discussion flagged the innovator communities’ concern about the flexibilities embedded in the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property (TRIPS), which have been the cornerstone of India’s public position on IPR and which also find mention in the new policy.

“TRIPS is not a ceiling, it is a stepping stone,” Kilbride said. “Innovation on a paradigm-changing scale demands greater legal certainty than TRIPS alone can provide.”

“Countries where stronger so-called ‘TRIPs-plus’ IP systems are in place have tended to produce the bulk of the word’s disruptive, innovative technologies. In other words, TRIPS-level IP standards are necessary but not sufficient to foster such innovation on a large scale,” Kilbride elaborated in a subsequent comment to Intellectual Property Watch.

Speaking on a panel entitled, “India in Isolation: The Growth of Multilateral Trade Pacts,” Arun Venkataraman, policy director at the US Commerce Department International Trade Administration, said that while Indian Prime Minister Narendra Modi has been incredibly vocal in seeking to change the business climate in the country and creating a sense of competitiveness among the various Indian states, there is a “lot more of a tentative approach” when it comes to trade and IPR.

Another speaker in the same panel. Jeremiah Norris, director, Center for Science in Public Policy, Hudson Institute, noted that India’s passage to becoming the ‘pharmacy of the developing world’ has been paved by hundreds of voluntary licences, the US Food and Drug Administration’s fast track program and the Medicines Patent Pool. The process has led to India providing “80% of the HIV/AIDS drugs for Africa and a similar percentage of Asia and South America.” These factors have allowed Indian manufacturing firms to act as “local incubators” for the production of low-cost therapies that benefit marginal populations in the world.

“India may be the fastest growing economy but it is still a developing country with a quarter of its population below the poverty line. The new IPR policy seeks to balance innovation with social priorities,” said Aparna Pande, director, Initiative on the Future of India and South Asia, Hudson Institute, while moderating a panel discussion on “India’s National IPR Policy: The Good, the Bad and the Ugly.”

Though the Modi government came in for praise for seeking to change the business climate in the country, it was clear that the US industry wants many more changes.

Amiee Aloi, associate vice president, Pharmaceutical Research and Manufacturers of America (PhRMA), which represents leading research-based pharmaceutical companies in the US, summed it up.

“The good part of the new policy,” she said, is its “emphasis on IPR protection as an economic tool and foundation of the innovation ecosystem, the new campaign slogan – Creative India, innovative India – and the focus on strengthening patent offices in India with new examiners, new training, etcetera.“

Aloi also lauded the India’s IPR policy’s explicit reference to the involvement of public and private sector and other stakeholders in the implementation of the new IPR policy.

But in PhRMA’s view, there were bad bits which needed to be flagged strongly. “It is still very difficult to secure and enforce patents on medicines in India. Patents are still not granted for valuable improvements to existing medicines, making it difficult to incentivise research into new formulations,” asserted Aloi.

“There are lots of provisions that are broad and open to interpretation,” she added. “How the Indian government acts and how it implements the policy will be incredibly important. It is time to translate the number of statements into meaningful progress.”

Kalpana Reddy, senior director of international intellectual property for the GIPC, echoed Aloi’s sentiments. She noted that India’s new IPR policy was the result of “many years of work” and had its roots in former Indian Prime Minister Singh’s announcement of the Decade of Innovation.

Singh, widely seen as one of the key architects of India’s economic liberalisation, had declared 2010 –2020 as a “Decade of Innovations’ in his inaugural address in the 97th session of Indian Science Congress in 2010.

Reddy minced no words when she underlined her key concern: “India has made no commitment to change its laws, or make any substantial legislative reforms.”

The main takeaway from the discussion: while US industry appreciates the many statements in India’s IPR policy that signal potential changes in the India’s patent regime, it would like India to take a deep look at the specific aspects of its patent law and go in for legislative reforms.

“Strong IPR provides the legal certainty for companies to make high-risk, high reward investment for development of next generation of technologies. India has to be cautious about exercising [TRIPS] flexibilities, they have economic consequences,” said Reddy, echoing the dominant sentiment in the panel discussion.

Given the domestic political sensitivity of IP rights especially in relation to the country’s indigenous low-cost generic drug industry, India is unlikely to publicly concede that it is under pressure.

The Office of the US Trade Representative (USTR) recently released its Special 301 Report on protection of US intellectual property rights by other countries. India remained on the USTR’s Priority Watch List.

Significantly, during an on-record interaction with the national media in Delhi on 20 June, India’s Commerce and Industry Minister, Ms Nirmala Sitharaman, called USTR’s 301 a “unilateral step.”

“India doesn’t recognise it. Under the global WTO [World Trade Organization] framework, no country has a right to have unilateral supervision or oversight over any another country. USTR’s 301 finds no place when sovereign decision making is the priority for a country. We don’t even recognise USTR’s 301 as a step about which we have to be worried – it is an unilateral step which we don’t recognise. It has no place in the global trade architecture,” Sitharaman told Intellectual Property Watch.