India has not gone beyond the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement or domestic law in the Intellectual Property Rights (IPR)-related deal with the UK, a senior government official said on Saturday after trade experts raised concerns stating that India had moved away from its conventional position on IPR in the UK trade deal.
The ‘Working Group on Access to Medicines and Treatment’ and trade experts pointed out that the UK deal has provisions tilting in favour of patent holders since they bring the issuance of compulsory licences — a critical tool to ensure access to affordable life-saving medicines — under greater scrutiny and constraints.
“In the IPR chapter, India has not breached the TRIPS agreement and is in compliance with domestic law. Only best practices that do not infringe on domestic laws have been adopted. Sharing of information and several such elements are part of the deal,” the government official said.
The Working Group on Access to Medicines and Treatment is a network of patients, activists and professionals working towards access to affordable medicines in India. It said the UK-India FTA provisions on patents tilt the balance in favour of the patent owner and undermine access to medicines.
“There is a progressive movement towards accepting the demands of FTA partners, which is systematically debasing the public interest safeguards available in the Indian Patents Act. Article 13.6, stating the understandings regarding TRIPS and public health measures, clearly places voluntary mechanisms such as voluntary licensing as the preferred and optimal route to promote access to medicines,” the working group said.
Biswajit Dhar, a trade policy expert with the Council for Social Development, said that the provisions in the UK deal favouring voluntary licences leave access to medicines in the hands of market forces and undermine the role of the government in facilitating access.
“Further, it also gives a clear signal to potential compulsory licence applicants that they are not welcome. Often, voluntary licences contain onerous conditions on the licensee and fail to bring sharp price reductions compared to compulsory licences,” Dhar said.
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“There are also provisions in the IP chapter which can potentially undermine the safeguards preventing evergreening of patents. Though couched in best endeavour language, there is a provision to ‘facilitate the sharing and use of search and examination work of the Parties’. The implementation of this provision would lead to the harmonisation of patentability criteria and undermine safeguards against evergreening, such as Section 3(d) of the Patents Act,” said K M Gopakumar, co-convenor of the Working Group on Access to Medicines and Treatment.
Compared to the European Free Trade Association (EFTA) IP chapter, this chapter shows further movement towards strengthening the interests of patent holders at the cost of access to medicines. The implementation of these provisions reduces the ability of the central and state governments to fulfil their constitutional obligation on the right to health, the working group said.
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