India has played a crucial role in supporting South Africa, as a lead co-sponsor in bringing the TRIPS Waiver proposal to the WTO in October 2020. In the months since, more than 60 other WTO members have formally supported the proposal – a bold initiative that seeks to temporarily suspend a range of intellectual property protections in order to decisively respond to the pandemic by seeking to unblock production shortages for critical COVID-19 medical products.
As these discussions reach a critical juncture ahead of the WTO ministerial in November this year, concerns have been expressed on India’s commitment to the waiver proposal. Perplexing as it may sound, it is easy to see why. Look no further than Indian government’s stated policy announcements on these matters at home in the context of the pandemic, notwithstanding its leadership on the waiver proposal in Geneva.
To understand this complex, discordant position, we spoke with Murali Neelakantan, Principal Lawyer, amicus. Former Global General Counsel, Cipla, who has been familiar with the terrain of IP policy and politics in India.
Q1. [GHF] At the WTO, led by South Africa, India is a co-sponsor of the TRIPS Waiver proposal. And yet, domestically, the Indian government has made statements that are contrary to the spirit of the waiver proposal including a reluctance to issue compulsory licenses. How do we understand this?
[MN] I think the Indian government has had a consistent position on the issue of compulsory licensing. The aberration was issuing a compulsory license for Bayer’s Nexavar. But, other than that, the government has consistently discouraged compulsory licenses and dissuaded everybody from applying for compulsory licenses. So even if you went and spoke to somebody in the Department for Promotion of Industry and Internal Trade (DPIIT) or with the Patent Controllers Office they would dissuade you from even applying for it.
In 2014 there was a move to seek a compulsory license for Daclatasvir butthey were dissuaded by the government. They were quietly told by the government, “don’t bother, you will not get it”. But this attempt to seek a compulsory license led to Daclatasvir being included in the MPP in November 2015.
Another one was Cipla’s move to get a compulsory license for Indacaterol, a product for Chronic Obstructive Pulmonary Disease (COPD) – the same thing happened.
It is therefore very clear that the government doesn’t intend to issue any compulsory licenses. More recently, an affidavit was filed by the Indian government in the Supreme Court in the sou moto matter, where they said the same thing – if we exercise the statutory power of compulsory licensing, it will come in the way of what we are doing – in terms of diplomacy. It does not make any sense at all. (See below excerpt from affidavit)
Even where the Indian Supreme Court specifically told the Indian government in April 2021- why don’t you implement Section 100 [The Patents Act, 1970, Section 100: Power of Central Government to use inventions for purposes of Government], they have simply responded stating that they are processing it. It shouldn’t take more than an hour to draft and issue a notification under section 100 but more than three months later, we don’t see any outcome from that process.
Image credit: Photo by Drone Trotter from Pexels
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