Intellectual Property Rights in India

India should walk the talk on TRIPS waiver

Note4Students

From UPSC perspective, the following things are important :

Prelims level : TRIPS

Mains level : Paper 3- TRIPS waiver and India's stand

The article highlights the variance in India’s stand on intellectual property rights waiver for Covid related drugs on the international level and domestic level. 

Removing the IPR barrier

  • When the pandemic hit the globe, India and South Africa piloted the proposal to waive key provisions of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement on COVID-19 vaccines, drugs, therapeutics, and related technologies.
  • The core idea is that IPRs such as patents should not become barriers in scaling up production of medical products essential to combat COVID-19.
  • The TRIPS waiver proposal, now backed by the U.S. would give immunity to member countries from a legal challenge at the WTO if their domestic IPR laws suspend or do not enforce IP protection on COVID-19 medical products.
  • Member countries of the World Trade Organization (WTO) are under an obligation to ensure that their domestic intellectual property rights (IPR) laws conform to the requirements of the TRIPS agreement.

No use of compulsory licencing in India

  • The existing flexibilities under the Patents Act of 1970, such as compulsory licences, which are consistent with the TRIPS agreement, can be used to increase the supply of COVID-19 medical products.
  • However, despite the nudging by the judiciary and others, the government inexplicably hasn’t made use of compulsory licences in the pandemic.
  • While issuing compulsory licences for COVID-19 vaccines in the absence of technology transfer is easier said than done, they can be used to augment the supply of drugs and other therapeutics.
  • For instance, there are demands that compulsory licences be issued for drugs such as Remdesivir to augment supply.
  • Natco, an Indian pharmaceutical company, has requested a compulsory licence under Section 92 of the Patents Act for Baricitinib, a COVID-19 drug.
  • This is ironic because India has historically played a leading role in mainstreaming TRIPS flexibilities like the compulsory licence at the WTO.
  • The Central government, in an affidavit filed before the Supreme Court, states that the main constraint in boosting the production of drugs like Remdesivir is the unavailability of raw materials and essential inputs.
  • The affidavit further states, “it is presumptuous to assume that the patent holder will not agree to more voluntary licences”.

Issues with the government’s stand

  •  If that is the real bottleneck, and not IPR-related legal hurdles, why is India pushing for a TRIPS waiver at the WTO?
  • The first step in advocating for the removal of IPR-related impediments at the WTO is to make use of the existing lawful means.
  • Therefore, the government’s stand before the Supreme Court is not only contradictory with India’s position at the WTO but also severely undermines it.

Way forward

  • To make its TRIPS waiver stand convincing, the government needs to make aggressive use of Sections 92 and 100 of the Patents Act to license all patents necessary to make COVID-19 medical products.
  • The government should not only transfer Covaxin’s technology to domestic pharmaceutical companies, to boost national supplies, but also offer it to foreign corporations. 
  •  By unlocking its vaccine technical know-how to the world, India would demonstrate its resolve to walk the talk on the TRIPS waiver.

Conclusion

India must take a consistent stand on IPRs on COVID-19 medical products internationally and domestically.

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