Beware of a deal with Trump

As the US president comes visiting to India there is worry about the demands he will make on intellectual property

By Latha Jishnu
Published: Thursday 13 February 2020
Narendra Modi and Donald Trump. Photo: Flickr / The White House

A close rapport between leaders of nations with divergent and almost contradictory interests may not always be a good thing when one of them is economically powerful and is the leader of a country known to pander to mega corporations, specially Big Pharma. As Donald Trump comes visiting later in February 2020, a number of organisations are on edge about the kind of deal that Narendra Modi is likely to sign with the US President; his government has shown a readiness to address the concerns of major trade partners such as Japan by offering a controversial fast tracking of patent approvals.

Reports hint at a mini deal with the US since a full-blown Free Trade Agreement (FTA) is still in the making and fears are that intellectual property (IP) is likely to be a major focus because this is an issue that has loomed large over India’s trade negotiations with the US, Japan and the European Union.

In the case of the US, it has been a constant irritant with Washington keeping up a fierce campaign against crucial parts of India’s patent law, particularly those covering pharmaceuticals. A fixed point of dispute has been Section 3d of the law, which seeks to curb the notorious tendency of Big Pharma to extend its drug patents through minor tweaks to the original drug.

After a failed case in India’s Supreme Court, the US has kept up its attack on India’s patent regime, with its Super 301 review never failing to target India.

With a trade deal in the works, civil society groups have been urging Modi not to negotiate an FTA with the US, primarily because it would impede access to affordable healthcare in India where the availability of low-cost generic medicines have provided a lifeline to millions of poor patients. These groups have said they are aware that the US has sought specific amendments to the Indian Patents Act, which would undermine “India’s public health friendly patent laws”.

The worry now is that Trump arrives triumphant in Delhi on the back of a new trade pact he has just signed with China. The Phase One trade deal he signed on January 15 sets up patent protections in China that are similar to those in the US and it would be worthwhile for officials of India’s Commerce Ministry — and, of course, activists — to study what Washington has actually secured from Beijing.

The most disquieting concession is China agreeing to implement patent linkage and patent term extension. Patent linkage is dangerous because it means that marketing approval for a generic drug cannot be granted before the expiry of the patent on the original drug. This would delay the entry of cheaper generic medicines and protect brand drugs from competition.

Big Pharma appears to be the big winner since Beijing has agreed to even extend the patent term in case of regulator delays, leading industry analysts to hail the IP concessions signed by the Xi Jinping government as the most significant part of the deal. But even as some are crowing, other analysts emphasise that much will depend on how China abides by the deal. Some measures are said to be old promises which China is implementing in its own way.

Perhaps, New Delhi needs to learn from the Chinese how to keep Trump happy without losing the plot.

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