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It would have been wonderful if at this stage of the golden jubilee of India’s
independence, an example could have been cited of how through basic research
conducted . . . on a widespread tropical disease endemic to India, . . . a novel
concept for treatment of the disease was taken up by the Indian pharmaceutical
industry, and a novel product was discovered, adequately secured through product,
process, and use patents, . . . resulting in a cure for patients having the
disease. It would have been a shining example . . . of industry’s willingness
to venture into areas unlikely to be highly remunerative, as long as there is
government support of the endeavor to provide benefits to the nation’s people.
[1] As the above quote from a prominent Indian researcher indicates, protecting
innovation is far from a zero-sum North/South game. Technological advances
flow between states that protect the intellectual capital of their citizens,
and so all countries that respect the right of the individual to profit from
creativity and innovation can benefit from the full breadth of their human capital.
Intellectual property protection is an increasingly important development tool
for countries at every stage of development, and nations that fail to protect
intellectual property will be left behind. The U.S. Government has documented
protection of intellectual property as a launching pad for domestic and foreign
investment, technology transfer, economic growth, and high-paying jobs in every
region and area of technology.
[2] Unfortunately India cannot be counted among the large number
of developing countries that have recognized the economic and social benefits
of IP protection for pharmaceutical products.
[3] India provides a pungent example of the high opportunity costs associated with
the conscious decision not to provide adequate and effective protection for
pharmaceutical products and the confidential, commercially valuable data that
is produced in the course of product development and marketing. As has often
been stated, India had no domestic constituency to oppose copyright protection,
and so has developed a thriving information technology and software sector employing
in excess of 250,000 in India, and tens of thousands overseas. In the patent
area, however, entrenched domestic interest groups lobbied hard in 1970 against
patent protection for pharmaceuticals. As the New York Times noted recently,
“In fact, India recognizes Western-style intellectual property rights on most
products, including computer software, in which it has a thriving industry.
But it does not recognize them on chemicals for medicine or agriculture, a position
that dates back to its Patents Act of 1970, for which Mr. Hamied (managing director
of CIPLA, one of India’s leading pharma producers) heavily lobbied Prime Minister
Indira Gandhi.” [4] Protecting only the process of manufacture for pharmaceutical products, rather
than the chemical entities themselves, India has created perverse incentives
for local Indian manufacturers to reinvent the wheel. Indian pharmaceutical
companies have perfected the art of copying existing products developed by foreign
firms and developing different processes to for making these compounds. Some
20,000 manufacturers operate in India, producing multiple copies of the same
products (e.g. 202 copies of Ciprofloxacin, 117 copies of Norfloxacin).
[5] This produces little or no social benefit to Indian consumers.
As the Indian Government and Industry alike recognize, “Spurious, substandard
and irrational products have become plentiful.”(emphasis in original)
[6] . As with most protectionist trade policies, this policy has
been very beneficial for a few larger Indian drug producers, but has shown no
benefit for the vast majority of the Indian population, discussed below. India is the fourth leading supplier of bulk pharmaceutical products and active
ingredients, [7]
but expends precious little of its profits on basic research and/or original
product development. As noted by the Organization of Pharmaceutical Producers
of India (OPPI), “The R&D investment in India’s Pharmaceutical Industry
is just 0.001% of world’s pharmaceutical R&D.”
[8] Further, limited R&D resources are diverted to a search
for yet another equally or less efficient means of producing an already available
product. [9] Lack of patent
protection has eliminated any incentive for India’s best scientific minds to
develop cures for tropical diseases endemic to India, or even to remain in India
to work in the domestic industry. “[T]he high-caliber scientific and technological
brains that have drained into the laboratories of companies in the United States,
Europe, and elsewhere” [10]
constitute a loss of incalculable proportions to India.
[11] The Organization of Pharmaceutical Producers in India estimates
that more than 15% of the scientists engaged in Pharmaceutical R&D in the
U.S. are of Indian origin. One of these, Dr. Ananda Chakrabarty, born and educated
in Calcutta, emigrated from India to the United States to make his mark in the
area of biotech, becoming the first inventor to receive a patent for a novel
bioengineered microorganism, [12] and continues
to work on groundbreaking research towards a cure for cystic fibrosis. [13] Until India begins to provide patent protection for pharmaceutical products,
and data exclusivity for the commercially valuable and confidential data developed
in the research and development process, India will continue to lose many of
its most talented minds. These talented Indian scientists are desperately needed
in India to conquer endemic diseases. As one segment of the Indian pharmaceutical
industry recognizes: “India has now entered the millennium of knowledge. The
Information Technology (IT) Industry has already carved out a place of its own
on the global map. Patenting actually aids the spread of knowledge. When
a “copying culture” prevails there is no incentive to innovate. The lack
of IPR is a double-edged sword. Our own scientists require protection for the
knowledge they create.” (emphasis in original)
[14] Given the foregoing, it is not surprising that the Indian pharmaceutical industry
has not focused efforts on development of novel treatments for the diseases
that most challenge India. Although the Indian Government and some in the pharmaceutical
industry present the Indian industry in the noble role of Robin Hood, stealing
patented products from the rich (Western pharmaceutical companies) for the benefit
of the poor in India, [15]
this does not reflect reality. Instead, numerous sources confirm
that “modern medicine reaches barely 30% of the country’s population. This
means there is no coverage for 600 million people, a number more than the population
of United States and all of Europe put together.” [16] Despite the
sophistication and success of the Indian pharmaceutical sector, “[d]iseases
like tuberculosis, malaria, leprosy, plague, dengue fever, schistosomiasis,
rheumatic fever, and rheumatic heart continue to pose serious problems and
take millions of lives each year. The concentration of efforts is on developing
the world market rather than on meeting the needs of the Indian population.
As returns in the export market are much more than in the domestic area, there
has been negligible additional investment in production facilities for the domestic
sector in the last 15 years.” [17] (emphasis added) As if to underscore the
benefits of a workable patent system, India’s Council of Scientific and Industrial
Research of India filed applications for nearly 200 patents abroad during 1999-2000. [18] Ironically, while the Western media touts India’s role as savior to the developing
world and potential source of low-cost infringing copies of the West’s own inventions,
Indian industry does not even attempt to serve the vast majority of the Indian
population, at any price. Instead, local Indian manufacturers focus efforts
on lucrative foreign markets, where they can profit while undercutting the price
of the innovators who bear the R&D costs and risks. The reality is that
the Indian industry thrives by leveraging its free-rider advantages in “pariah”
markets that don’t respect intellectual property rights, [19] not by providing
pharmaceutical products to India’s poor. Price Remains a Red Herring India has justified lack of patent protection on the basis that it lowers drug
prices. Indeed, Indian pharmaceutical prices are lower than drugs in neighboring
Pakistan and significantly lower than in other world markets. The introduction
of TRIPS-consistent patent protection will in no way require an increase in
the price of drugs that are already on the market. Particularly in the area
of essential medicines, as defined by the World Health Organization (WHO) the
Organization of Pharmaceutical Producers of India testified to the Indian Parliament’s
Joint Committee on Patents in May 2000 that: “Every single drug in the WHO
Essential List is available in India today in Generic Form, and will continue
to be available in 2005 in Generic Form.” [20] As an Indian experts’ review
concludes: “even under the new patent regime (compatible with the TRIPS Agreement),
the availability and prices of generic drugs will largely be unaffected.” [21] Product patent protection will
apply to new drugs introduced to the market after the law is enacted; a small
percentage of the total market. Prices for the next generation of drugs are
likely to be restrained by lively competition in the large Indian domestic market. [22] In 1970, India turned its back on Western models for development, and despite
the development of a small number of world-class pharmaceutical exporters (out
of a total of 20,000 entrants), it has paid a high price. Unlike Korea and
Italy, countries that chose to adopt patent protection for pharmaceutical products
in the 1970’s, India has no viable research industry. India has been unable
to meet the public health requirements of its own population, even in such rudimentary
areas as provision of potable water, [23] off-patent generic
antibiotics, anti-malarial treatments, and or tuberculosis therapies. [24] Where generic imitations are available, there
is little technology transfer to the Indian medical complex. Pharmaceutical
investment is as much about the transfer of medical knowledge as it is about
product specific facts. Further, the absence of protection for pharmaceuticals and other chemical products
has led directly to an exodus of American and other international research-based
pharmaceutical firms, [25]
the greatest single example of dis-investment of the 20th
century. In contrast, virtually all of the largest sixteen research-based pharmaceutical
companies in the world maintain a presence in China, which provides product
patent protection, despite a difficult political and business environment that
includes a significant language barrier. Western pharmaceutical firms have
been followed by the best and brightest scientific minds trained by Indian universities
but applying their genius in Western laboratories. [1] Dr. Noel J. de Souza, ’’Overview
of the Indian Pharmaecutical Industry : Imperatives of the Next Millennium,’’
Pharmaceutical News, Volume 5, Number 6, 1998, available online at www.gbhap.com/magazines/pharmanews/5-6-article.htm. [2] See “Intellectual Property Rights Protection and Emerging
Economies,” Stuart E. Eizenstat, Under Secretary for Economic, BUSiness, and
Agricultural Affairs, U.S. Department of State, Washington, DC, July 21, 1999,
available electronically at http://USinfo.state.gov/topical/econ/ipr/ipr-eizenstat.htm [3] The 34th Annual Report
1999 – 2000 of the Organization of Pharmaceutical Producers of India (OPPI)
notes that since the late 1980’s, “The following developing countries extensively
changed and improved their patent systems: Korea (1987), Czech and Slovak
Republics (1990), Mexico, Bulgaria, Indonesia, Chile, BelarU.S. (1991), Romania
Taiwan, RUSsia Ukraine, Thailand (1992), China, Yugoslavia, Philippines, Poland,
Slovenia, Macedonia (1993), Andean Pact, Hungary (1994), Brazil (1996) and
Jordan (2000). All of them introduced product patents for pharmaceuticals.”
OPPI 34th Annual Report 1999 – 2000, p. 6. [4] “Selling Cheap 'Generic' Drugs, India's Copycats Irk
Industry,” New York Times, December 1, 2000, p. 1., see also http://www.nyt.com/drugs [5] OPPI 34th Annual Report 1999-2000, p. 9 (describing
the prevalence of large number of infringing copies as “an effect of lack
of IPR.”) [6] Ibid, p. 9. See also, IDMA Bulletin,
Volume XXXI, Number 33, 7th September 2000, p. 777 citing similar
conclusions of Union Minister of Health and Family Welfare Dr. C.P. Thakur,
and Secretary, Health, Shri Javed Ahmed Choudhury, and Shri S.P. Agarwal,
DG of Health Services. [7] Pharmaceutical News, Volume 5, Number 6, 1998 available
online at www.gbhap.com/magazines/pharmanews/5-6-article.htm [8] OPPI 34th Annual Report 1999-2000, p. 8. [9] CUTS Briefing Paper: TRIPS and Pharmaceuticals:
Implications for India, AugUSt 1997, Number 8, p. 7, also available electronically
at http://www.cuts-india.org/1997-8.htm.
See also Pharmaceutical News, Volume 5, Number 6, 1998 available online at
www.gbhap.com/magazines/pharmanews/5-6-article.htm, [10] Pharmaceutical News, volume 5, Number 6 – 1998 available
online at www.gbhap.com/magazines/pharmanews/5-6-article.htm. [11] http://www.redherring.com/insider/2000/0111/news-salon-drain.html [12] Diamond v. Chakrabarty, 447 U.S. 303 (1980), 447 U.S.
303 [13] See http://www.uic.edu/depts/mcmi/chakrabarty.html
for description of current work and bibliography. [14] OPPI 34th Annual Report
1999-2000, p.9. See also, “The unanticipated benefits of IPRs,” The Economic
Times Mumbai, 19 January 2000, concluding that “strong IPR has helped
developing countries in two ways. First, it has accelerated the shift of
material-intensive manufacturing to into developing countries. Second, it
has helped some countries like India to leapfrog into the brain-intensive
sectors. This has unquestionably be good for world trade, and ensured a two-way
flow of benefits between rich and poor countries. Exactly what the WTO should
be about.” [15] “India's current drug laws ignore
that reasoning, on the ground that saving Indian lives is more important than
profits to inventors. And Parliament, with the country's drug industry lobbying
hard to protect its ability to copy molecules, is taking its time on compliance
legislation. ‘We don't need to be apologetic about it,’ said Dr. Javid A.
Chowdhury, the Indian minister of health. ‘We're a self-contained, developing
economy. We live on little, but we survive. Outside of the third world, there's
very little realization of how little money the poor live on. The per-capita
health expenditure in India is $10 a year.’” “Selling Cheap 'Generic' Drugs,
India's Copycats Irk Industry,” New York Times, December 1, 2000, p. 1. See
also http://www.nyt.com/drugs [16] Pharmaceutical News, Volume 5, Number 6, 1998, available
online at www.gbhap.com/magazines/pharmanews/5-6-article.htm [17] ibid. [18] “CSIR files 200 patents abroad,”
The IndiaServer BUSiness Line Internet Edition, November 3, 2000, available
online at http://www.indiaserver.com/bUSinessline/2000/11/03/stories/010367s4.htm [19] “Mr. Hamied makes sildenafil citrate, the active ingredient
in Viagra, for 2 cents a pill. He exports it to Yemen and Sudan, where it
sells under the Erecto name,” according to the New York Times, “Selling Cheap
'Generic' Drugs, India's Copycats Irk Industry,” New York Times, December
1, 2000, p. 1., see also http://www.nyt.com/drugs [20] Presentation to the Joint Committee on Patents (second
Amendment) Bill, 1999, OPPI, Mumbai, 24th May 2000 (not paginated) [21] CUTS Briefing Paper: TRIPS and
Pharmaceuticals: Implications for India, AugUSt 1997, Number 8, p. 13, also
available electronically at http://www.cuts-india.org/1997-8.htm [22] Heinz Redwood, New Horizons in India; The consequences
of pharmaceutical patent protection, Oldwicks Press, 1994, pp. 59 – 74,
citing as three factors that will hold prices in check the low purchasing
power of the Indian medical consumer, the Government of India’s continuing
price control powers, and interbrand competition within therapeutic classes. [23] “52% of Indian villages have no protected source of drinking
water,” according to OPPI’s Presentation to the Joint Committee on Patents
(second Amendment) Bill, 1999, OPPI, Mumbai, 24th May 2000 (not
paginated) [24] “Illfare,” The Economist, January 21, 1995, p.
23. [25] CUTS Briefing Paper: TRIPS and
Pharmaceuticals: Implications for India, AugUSt 1997, Number 8, p. 7, also
available electronically at http://www.cuts-india.org/1997-8.htm
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