Under scrutiny: IP in India

Perhaps most notable in a year of notable developments was the compulsory licence granted to local company Natco allowing it the right to sell Bayer’s Nexavar cancer drug at a lower cost in India.

This caused considerable consternation in the international pharmaceutical community, not least because it’s unclear that the express aim of the licence— to ensure the drug was available to all Indians at an affordable price—may not come to pass under the terms of the licence, which allows Natco to sell the drug at a price beyond the pockets of many Indians (approximately $175 per month).

Perhaps more serious than that, from a commercial point of view at least, is the precedent this licence sets and its ramifications in terms of attracting investment. If developer companies think that their drugs are likely to be subject to compulsory licences, it may make them less inclined to commercialise those drugs in India, or at least, even keener to limit their accessibility.

Paradoxically then, a compulsory licence designed to widen access to drugs may actually limit access to other drugs in the long term. The case is subject to an appeal.

At the time of writing, another pharmaceutical patent case is close to resolution, which, depending on its outcome, could strike another blow to pharmaceutical companies’ confidence in the Indian systems for IP protection.

The Indian Supreme Court is set to decide whether Novartis can have a patent for Gleevec, its branded leukaemia drug. Imatinib mesylate, to use the drug’s generic name, is patented as Gleevec in a large number of markets worldwide, and Novartis maintains that it needs the Indian patent to “advance the practice of medicine”.

Ranged against it are patient associations and Médecins Sans Frontières, to name just two.Some have cast the battle as one for the soul of Indian patent law: if the court goes with Novartis, they say, many drugs now produced in India as cheap generics will soon have patents covering them, reducing availability in India and in those countries that rely on its thriving generics industry for drugs.

If the court goes against the brand owner, then it may be another blow to innovation in the country and to external investment. The truth, as ever in these situations, is somewhere in between, but in any event, the court’s decision will be an important one.

"The Indian government and business community have made considerable strides in terms of providing educational resources and running information campaigns about IP rights."

But it’s not just in the world of pharmaceuticals that there have been important developments in India this year. There seems to have been some progress on the long-running question of how creators of music, literature and other art can ensure they are duly rewarded for their endeavours. The Copyright (Amendment) Act 2012, which came into force this year, clarifies the provisions for royalty payments for certain types of use and should ensure creators get a fairer crack of the whip than in the past.

Perhaps one of the largest issues India needs to face in terms of IP is a rather more mundane one. The IP laws are, for the most part, consistent with international norms and, again for the most part, there is political will to enforce those laws.

Unfortunately however, there are difficulties associated with the size of the country and the relatively recent push towards enforcement. Attitudes can become entrenched very quickly, and with bureaucratic delays sometimes causing enforcement efforts to run on for years, it has proved difficult to challenge the prevailing assumptions about IP ownership.

Indeed, the idea that an IP right is a way of protecting creative effort has some way to go before it is universally accepted. That said, the Indian government and business community have made considerable strides in terms of providing educational resources and running information campaigns about IP rights and, as the country continues its economic development, it’s clear that things are improving for brands and other IP owners.

Continued economic development may ultimately help to answer many of the questions that IP owners continue to have about India. The more India creates, and the more it makes its presence felt on the international stage, the more the principle of rewarding creators and protecting creations should entrench itself in the country. There are things left to do, but India seems to be on the right track.