Thursday, 02 October 2014 23:49

United States Urges India on Enforcing Drug Patents in Order to Establish a High Level Working Relationship

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The White House under Obama Administration is ”pressuring” the new Indian Prime Minister Narendra Modi to revise the Indian Intellectual Property Laws, especially to repeal Section 3 of the Indian Patent Act of 1970, as amended in 2005.  In an ongoing effort to strengthen relationships between the U.S. and India, both administrations have agreed to establish high level working groups on intellectual property matters to engage in issues of concern.  This move on part of the White House, however,  is not unprecedented, given that the United States has consistently advanced higher intellectual property protections through its trade working groups and partnerships on international platforms.

As amended in 2005, Section 3 of the Indian Patent Act of 1970 states the following to be considered not as inventions:

 

“The mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant.”

 

The true motive of this section in the Act as amended was to prohibit the benefit of unjust monopoly for trivial modification of inventions. This simply means that any existing knowledge cannot be patented in efforts to gain monopoly, well, at least in India. As such, many international pharmaceutical and drug companies that have active patented drugs are unable to enforce their patent rights in India.

Furthermore, India is one of the biggest growing global markets. Not reaping economic benefits from the Indian capitalist market is an arduous thought for most pharmaceutical corporations. This is because the unpatentability factor under Section 3 of the Act allows many generic drug manufacturers in India to use and commercially sell patented drugs in open market at a much lower price without the threat of patent infringement suits or having to pay royalties to the patent owners. 

Proponents of universal health care, on the other hand, argue that the inclusion of section 3(d) by the way of an amendment in 2005 of the Indian Patent Act bolsters humanitarian initiative within the drug market arena of India.  They claim that if the Act were to be repealed, many impoverished people of India, who can generally afford the generic drugs would be unable to buy the patented drugs, generally sold at a much greater price. 

This has certainly created a hot debate in Indian politics.  How far will the new Indian Administration budge to balance the humanitarian aspect of the Act for innovative growth and investor confidence in a globally surging market given the looming pressure by the United States is yet to be seen.

Read 2133 times Last modified on Tuesday, 09 December 2014 17:17
Kaustubh Nadkarni

Mr. Nadkarni earned his bachelor’s degree in Engineering Arts from Michigan State University, his Master’s degree in Finance and Six Sigma Management Science from University of Miami, his law degree from Nova Southeastern University and his Master of Laws degree in Intellectual Property from University of New Hampshire, formerly Franklin Pierce Law Center.

Mr. Nadkarni is a member of the Florida Bar, the Southern District of Florida Federal Court and the United States Court of Appeals for the Federal Circuit. He has also successfully passed the United States Patent and Trademark Office Registration Examination. As a Patent Attorney, he concentrates his practice in Patent Prosecution, Patent Litigation, Trademark Prosecution and other Intellectual Property litigation matters. Mr. Nadkarni is fluent in Hindi, Marathi, Urdu and functional in French. He is a member of American Intellectual Property Association, Miami Beach Bar Association and a Board Member of the Fairchild Palms.