Members Of Congress: India's Pharma Industry 'Protectionism' Is Harming US Pharma Industry's Abuse Of Patent System

from the towards-a-forceful-homogenization-of-worldwide-IP-law dept

Tue, Jul 2nd 2013 10:58pm — Tim Cushing

We recently discussed the US Chamber of Commerce's incredibly strange statement on the state of India's IP protection (or lack thereof). The CofC first applauded the success of India's Bollywood industry, achieved without strong IP protection, before insisting the only way it would survive was by implementing strong IP protection. This, of course, was the CofC advancing its own agenda, despite being faced with evidence to the contrary.

It's the sort of doublespeak frequently deployed by IP-reliant industries in the US in their attempt to force the world to align their laws with ours. The argument always seems to be for more "protection," even if foreign industries are thriving without it.

In a Congressional letter sent to the administration by 170 "concerned" members of Congress, India's IP laws come under attack again. This time it's the pharmaceutical industry being defended from India's supposedly inadequate protections.

Under the umbrella of claiming that policies of the Government of India favor domestic producers over U.S. Exporters – in other words, that India is protectionist – the Members of Congress claimed that “the intellectual property (IP) climate has become increasingly challenging in India.”

What's so challenging about it? Well, it seems that India actually practices some sort of quality control on patents, much to the dismay of American pharmaceutical companies looking to exploit the system the way they do domestically.

Under the WTO TRIPS Agreement, India has every right to define standards of patentability so long as they satisfy minimum standards of patentability set forth in TRIPS, namely novelty, inventive step, and industrial activity. India has elected to define and apply standards of patentability rigorously. When this rigorous standard is applied in India, it prohibits patents on secondary patents involving new uses of existing medicines or minor modifications of existing medicines/active ingredients that do not significantly enhance therapeutic efficacy.

This raises the bar for American companies, who are finding it harder to extend patents past the 20-year exclusivity through evergreening (or as pharma companies refer to it: "patent lifestyle management"). While a majority of patents run through the process smoothly, some just don't meet the Indian standard.

Although Members of Congress and Big Pharma executives, including those from Novartis and Pfizer, condemn an Indian decision denying a patent on secondary form of the anti-cancer medicine Glivec, they neglect to acknowledge that both Novartis and Pfizer have received hundreds of patents on medicines in India in the past 8 years and that it is only the frivolous or unworthy patents that are being screened out.

This rejection, and the more rigorous patentability standards India adheres to, suggest there will be more of the same in the future. That's simply not acceptable for pharmaceutical companies, who are used to extending patents for decades at a time. Also upsetting is the government's issuance of compulsory licenses on lucrative imported drugs, something India is legally allowed to do by the TRIPS agreement.

Using fully lawful compulsory licensing procedures, India did issue a compulsory license on an overpriced Bayer cancer medicine, citing three justifications in a 60-plus page decision: excessive pricing, failure to supply the market, and refusal to produce locally. As a result of this license, the cost of the cancer medicine has now fallen more than 97%, showing the excess mark-up that Bayer imposes on patients. Rather than acting arbitrarily, the legal system in India allows a court review of the compulsory license decision, which Bayer is now pursuing.

The members of Congress and the corporations behind him have decided to portray these actions as evidence the Indian government skews its protections in favor of domestic producers, a claim that's rather audacious in its hypocrisy.

It is deeply ironic when the world's biggest wolf cries wolf. Any objective examination of U.S. trade policy, including that represented in the current negotiations of the Trans-Pacific Partnership Agreement, would conclude that the U.S. is relentless in its pursuit of heightened standards of patentability, data protection, and enforcement in order to protect the interests of Big Pharma and other IP-intensive domestic industries. Over 600 industry representative sit on advisory committees to the U.S. Trade Representative having privileged access to otherwise secret trade agreement proposals...

It's an insult to our collective intelligence when Members of Congress misleadingly condemn alleged "protectionism" in India while tolerating monopoly encroachment globally and doing so to protect "jobs and investments" in the United States.

The industries propelling these secret trade agreements love protectionism, and want to extend this "home field advantage" to as many foreign markets as possible. This is aided greatly by making these agreements contingent on US-directed overhauls of existing IP law. The lesson is: if you want to do business with the US, you'll play the rules -- our rules. It's an agenda set by favored industries and executed by our legislators, both of whom seem more than willing to undermine successful foreign industries simply because it doesn't fit with the "strong IP protection creates jobs" narrative.

India IP Letter Signed (PDF)India IP Letter Signed (Text)

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Filed Under: india, patents, pharma, protectionism

12 Comments

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Duven, 3 Jul 2013 @ 2:11am

What next?
Will foreign medical companies dare to cure previously chronic diseases, making American drug company's markets disappear?
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Anonymous Howard (profile), 3 Jul 2013 @ 2:31am

Re: What next?
It would be fuckin' hilarious.

I'm usually prefer free market, but the "treating is more profitable than curing" strategy simply disgust me. Why? Because they're playing with people's health and life, and no one should profiteer on this.
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Anonymous Coward, 3 Jul 2013 @ 3:21am

the US is just about the most arrogant and selfish bully in the world! it doesn't matter what the subject is, if the USA doesn't get the maximum amount out of it, it doesn't matter which other country does, it is made out to be bad or wrong. when the other countries decide to ignore the USA and not do what is wanted, threats and sanctions come into force. when a drug can be offered for a price of 97% below the USA price, thereby making it available to and afforded by perhaps millions of people that previously couldn't, how can that be wrong? just because a USA company isn't making the extortionate profit it once did is no excuse to come out with these tactics. what the particular US company is doing is trying to put profits before people and in doing so is basically aiding and abetting in multiple deaths. that is the thing that cannot be right!! the USA has had things it's own way for far too long. it has definitely become arrogant and self-preserving. the financial crash makes countries and companies more careful, but when the global financial crash was instigated by events in the USA it's hardly right for the rest of the world to bail out the USA and screw it's own country up even more while doing so. it's about time the USA was brought down a peg or two and made to realise that it isn't the only country in the world, it hasn't got the only businesses in the world and when something is working in another country, for that country, the USA wants to take a closer look and try to follow it, not abuse it and force it to follow the failing example present in the USA. perhaps even the realisation that it's this attitude of self-preservation at any cost that is actually costing the whole country dear!
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Vidiot (profile), 3 Jul 2013 @ 5:04am

Most revealing
Great document... page-and-a-half of poorly conceived thoughts, then 11.5 pages of signatures. What a great resource! A small forgery school in Washington is busy practicing copying them. And after psychological analysis, the entire membership of the Forensic Handwriting Analysis League is moving to Canada.
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The Real Michael, 3 Jul 2013 @ 5:24am

Their argument is inherently flawed. Other countries are NOT responsible for protecting US interests anymore than we are for protecting theirs. All that lobbying money from the pharmaceutical industries must have given politicians a severe case of tunnel vision.
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Joe McNeely, 3 Jul 2013 @ 5:32am

IP Reform Change.org petition
Can someone please create a change.org petition for the US to adopt India's IP policies within our healthcare system. The savings they see on that cancer drug makes Obamacare look like a drop in the bucket.

I would sign a petition about IP reform and not ever greening pharmaceuticals.
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Anonymous Coward, 3 Jul 2013 @ 5:43am

How dare these other countries not bend over willingly, seems we will just have to invade.
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Matthew (profile), 3 Jul 2013 @ 6:41am

The senator from Sharkland has the floor.
Senate President: This meeting of the North Atlantic Undersea Predators' Senate is now called to order! Senator Blueshark from Sharkland has the floor.
Senator Blueshark: I would like to complain on behalf of all Sharkland, and in the name of all predators that the Union North Atlantic Non-Predators has sanctioned the Tuna's practice of avoiding known shark feeding grounds. This is a clearly protectionist and discriminatory policy and needs to be stopped immediately. Motion to officially sanction UNANP.
Senator Greatwhite: Seconded.
...
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Anonymous Coward, 3 Jul 2013 @ 11:55am

Amusing
What is terrifically amusing is that so-called "evergreening," which was a relatively short-lived phenomenon that was slapped down after repeated attempts, is essentially not permitted by either the USPTO or the courts. So, if it does not work in the U.S., I guess pharm companies are willing to see if it will work elsewhere. The answer seems to be: probably not.
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Anonymous Coward, 3 Jul 2013 @ 1:56pm

Re: Re: What next?
Keep in mind: patents aren't free market. They're a state sponsored monopoly and they're integral to the 'treating is more profitable' technique.
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Anonymous Coward, 3 Jul 2013 @ 2:01pm

Exporting IP law IS protectionism. Fucking mercantilists crying "protectionism?!" What a science damn joke.
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Anonymous Coward, 5 Jul 2013 @ 1:57am

"patent lifestyle management"

I had no idea companies were extending patents past their 20 year "monopoly" period, by simply tweaking existing patents a little bit.

The worst part is it's human health services doing this to patients who might be out of work and not have much money.

Somehow the whole patent system seems morally wrong.
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