India’s pharmaceutical exporters seem to have received a major shock when the US Chamber of Commerce asked the Barack Obama Administration to classify India as a Priority Foreign Country, a worst classification given to an exporting country. The US government may take the advisory of the Chamber seriously considering its tremendous influence on the US government and it will have to act accordingly against India. The charge against India is that it consistently denied adequate and effective protection for intellectual property rights to international pharmaceutical companies operating in India. Global pharmaceutical firms have been putting pressure on the US government for some years to act against India for producing and exporting several cheap generic drugs to the US and many other markets. The provocation for the US Chamber now to take such an unfair stand against India is the set of decisions relating to pharmaceutical patents by the Indian judicial system and patent authorities since last two years. In 2012, India issued its first ever compulsory license to domestic drug company, Natco Pharma Ltd, for a kidney and liver cancer drug, Nexavar, patented by Germany's Bayer AG. The move was strongly objected by the German multinational. In 2013, the Supreme Court rejected the patent claim of Novartis for Glivec, an anti cancer drug, after a seven year old legal battle with Indian authorities. The apex court was only right in upholding the Section 3(d) of the amended Indian Patent Act which prohibits evergreening of a drug patent by the inventor company by making some incremental changes to the original molecule. The main objective of Novartis to challenge first Patent Controller’s decision of denying the patent and subsequently to move court was to prevent manufacture and marketing of the cancer drug by any Indian drug company at a lower price. The government of India has also made it clear that more CL may be issued under the Indian Patents Act for manufacture of patented pharmaceutical products if the drug is considered unaffordable by the government. The World Trade Organization’s TRIPS agreement allows a country to issue a compulsory licence without the consent of the innovator if it is in public interest.
Making medicines cheaper is a politically sensitive issue in India as many patented drugs are too expensive and unaffordable for most people. Yet, Indian government has not brought the patented drugs under any price control and the percentage of patented drugs marketed in the country is steadily on the rise especially after the amended Patent Act came into effect in 2005. MNCs obtained several hundreds of patents for drugs since then from the Indian patent offices although many of them are not for new molecules. Despite such liberal attitude of the Indian government towards MNCs, the aggressive posture of the US Chamber is nothing but unfair. The US government should not succumb to the pressure tactics of the Chamber. The US government should note that any obstructive action in this regard can have a very adverse impact on the trade relations between the two countries. India needs to strongly resist if the US government resorts to any such inappropriate action and support Indian pharma. Indian pharmaceutical companies also have an international obligation of making available generic drugs to poor patients in the US and several other countries.