After the failure at the WHO to redefine counterfeit drugs as piloted by IMPACT and netting very little success with the recent seizure of drugs in Europe, the multinationals are allegedly adopting vicious means to stifle the export of Indian generic exports, if the apprehensions of Indian government and senior industry leaders are any indication.
With the aim of blocking Indian generics, the multinational have managed to prompt Kenya to enact an anti-counterfeit Act and some other countries in the region like Uganda and Zambia are also reportedly moving with similar plans. The Commerce Ministry has already taken up the matter with Kenya and alerted against the `sinister' plans by the MNCs and falling prey to their designs. Kenyan response, however, was not satisfactory in this regard, sources in the department said.
"Definition of counterfeiting under Kenya's law allows it to enforce intellectual property rights even on a product that is not patented in Kenya. The law recognises intellectual property rights registered in any country of the world and not necessarily in Kenya. This would imply that even if a pharma product is not registered or patented there or in India, but registered as a patent somewhere else, it would be considered as counterfeit in Kenya when exported from India to it and legal action can be taken against it. This is the provision which goes beyond the commitment made by all in TRIPS," a senior official explained.
One of the crucial provisions governing the intellectual property protection is the principle of territoriality and Kenyan law was contrary to it. "Developed countries have tried, without success for many years, at WIPO to have a patent granted in one country to have world-wide jurisdiction. Having failed so, they are now attempting to succeed through the backdoor," he said. It is learnt that Kenya had written to India clarifying the position after the country took up the matter. But Kenyan assurance that it would have impact on Indian generics could not be taken seriously against the backdrop of the law, sources said.
"The efforts are to brand generics as counterfeit. Even the generic drugs under UN programmes are thus branded as spurious. As per Kenyan law, counterfeiting would mean any drug patented in that country or `elsewhere' in the world and it would create trade barriers," Indian Pharmaceutical Alliance secretary general D G Shah said, adding that it would also sound death knell for the domestic industry in Africa.