the fight for access to a generic version of a cancer drug is likely to get more problematic. India's ministry of commerce and industry has signed a memorandum of understanding (mou) with the us Patent and Trademark Office (uspto) on intellectual property (ipr).
Signed on December 20, 2006, the mou calls for cooperation on capacity building, human resource development and public awareness of intellectual property. "This mou is a first between the us and India on ipr, and it will open the door for an unprecedented level of cooperation and sharing of best practices," says Jon Dudas, us under secretary of commerce.
But, experts feel that this bilateral treaty could undermine the independence of patent officers in the country. Leena Menghaney of Medicines Sans Frontiers, an international humanitarian organisation, fears that once trained by the us, patents would be granted in cases like that of Novartis, a pharmaceuticals transnational that applied for a patent on a cancer drug. So far, India has rejected the patent on grounds that the drug was a new form of an old drug, hence not patentable under Indian law. Novartis has appealed the Madras High Court, challenging Indian patent law.
The mou is harmful as Indian patent law is different from that in the us , says Menghaney. For example, India does not allow combination drugs, isomers or derivatives. With the us training the officers, patents could be granted in India as broadly as they are in wealthy countries, limiting production of generic versions. It would be more relevant if Indian officers were trained by other developing countries, she suggests.
The agreement is considered another us ploy to influence patent decisions. Since 2004, the us holds the ipr Summit each year in collaboration with the Confederation of Indian Industry. This lets us industry directly engage those who will ultimately interpret and shape India's ipr regime. The latest meeting was on January 15, 2007 in Mumbai. The us embassy in Delhi now has an attach in charge of ipr issues.
Media reports have quoted government officials as saying that the agreement does not include any sensitive issue relating to ipr policy.
The us is known to use such bilateral deals to override multilateral agreement like the Trade-Related Intellectual Property Rights. There have been protests in Thailand against a proposed free trade deal with the us. It is feared the us could limit Thailand's ability to provide affordable healthcare through generic versions of patented drugs. The us may seek provisions for protecting ipr that far exceed international norms set out by the wto.
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