Smart move to tell US to take India to WTO on IPR
Though ostensibly committed to the WTO process, over the years, India has been on a spree to sign bilateral free trade agreements—sometimes Comprehensive Economic Cooperation Agreements—with a host of countries. Over the past decade, India has signed such pacts with 10 countries, including Singapore and Mauritius, and is currently negotiating a pact with the European Union. Everyone knows the multilateral process is better for developing countries like India, in the sense that it gives them more time to, say, open up their agriculture markets to imports. But, given how the WTO process has been so badly stuck for years—it has been 12 years since Doha Development Round of negotiations were launched—India has probably felt that it is better to go ahead with not-so-favourable bilateral deals than it is to wait forever for a good multilateral deal. And while developed countries have upheld their end of the bargain—on agriculture subsidies for instance—it has been more in form than in substance. So, for instance, in response to the stipulation that farm subsidies be restricted to 10% of the value of the crop, developed countries simply switched to a per acre subsidy instead of a crop-linked one. Not surprising, therefore, that at times India has been willing to not have a deal at the WTO—India’s position on the Food Security Act, for instance, almost derailed the Bali ministerial.
So it has to come as a pleasant surprise that when confronted with US pressure on India’s intellectual property laws—visiting US assistant secretary of state for south and central Asia Nisha Biswal repeated this on Thursday—and the threat of levying trade sanctions, India has chosen to invoke the WTO process. Section 3(d) of the Indian Patents Act, which deals with what is, and therefore what is not, patentable, is what US pharma firms are objecting to. The government, however, points out that India’s IPR law is fully compliant with the WTO’s requirements—indeed, in the recent Novartis Glivec case, India’s Supreme Court upheld the view that Article 1(1) of the TRIPS agreement allowed member countries to decide how they would protect IP. In which case, if US pharma firms have a problem with India’s IP protection, India is arguing, the US has to take India to the WTO’s dispute resolution board. That said, it remains true that neither the government nor industry has done a particularly good job of pointing to how India’s record in granting new patents has not been niggardly—1,500 patents since 2005 to the top nine global pharma firms. Perhaps the fact that large parts of Indian industry also feel aggrieved—with price controls or laws pertaining to clinical trials—has ensured that Indian industry is divided in its opposition to the US stance.