The government has “privately reassured” the US-India Business Council (USIBC), it has been reported, that it will not allow the use of compulsory licensing for commercial purposes. Compulsory licensing allows governments to grant the right to work a patent to someone other than the patent holder, if a product or process is nationally unavailable or overpriced. “Reassured” was the word to use, since Section 92 of the Indian Patents Act (IPA) assures patent holders that compulsory licences are to be granted only to deal with a “national emergency”, or “matters of extreme urgency”, or for “public non-commercial use”. That assurance exists on the Indian statute books, and compulsory licensing has been an integral part of the Trips Agreement since 1995. Therefore, the government can only “reassure” foreign patent-holders that compulsory licences will not be granted to agencies that plan to work patents they do not own for commercial advantage.
The disturbing word in the communication from the USIBC to the US Trade Representative is “privately”. Track II flourishes in diplomacy, but the idea of Track II policy is problematic. Policy must always be created and operated transparently, or government runs the risk of losing credibility. Yet, the government appears to have offered a verbal, Track II-like reassurance on drug patents, which has found its way into the official record. Technically, the government has assured nothing new but in the eyes of stakeholders, the communication in cold print may suggest that India is willing to pay heed to multinational requests to respect intellectual property and to protect incomes accruing from it, even if it amounts to disrespecting the right of its citizens to life and health.
The WTO’s fourth ministerial conference in Doha in 2001 had adopted a declaration which balanced the imperative of national health against the transnational rights to intellectual property. It established the primacy of the right of member nations to protect public health and promote access to medicines for all. It further clarified that each member has the sovereign right to decide the grounds for granting compulsory licences according to national interests, and implicitly did away with the need for an emergency or a situation of urgency, which are listed both in Trips and in the IPA. The government is, therefore, under no compulsion to put multinational interest ahead of the imperative of public health. It only needs to be fair in its policy — and transparent.
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