ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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Enhancing Affordable Pharmaceutical Healthcare

Possibilities in Indian Competition Law Regime

The Indian intellectual property regime has often met with severe criticism from the United States as India strives to balance the need to provide affordable healthcare with a thriving market for a competitive pharmaceutical industry. In this context, the nexus between compulsory licensing, competition law and patent law merits a closer examination and it is debatable whether a strong competition law framework is indeed the way forward.

The author would like to thank the anonymous reviewer for extensive comments, Shamnad Basheer for his review and Joanna Barretto for her research assistance.

The politicisation of the intellectual property rights (IPR) regime in India is not new and dates back to the 1990s when India became a member of the World Trade Organization (WTO) and therefore, a signatory to Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). India thus undertook a commitment to harmonise its IPR with that of the multilateral agreement and its mandate. Since then, balancing domestic needs for accessible and affordable medicines with those of the global demands of trade has been a continuous struggle. The Indian Patent Act of 1970 has been amended several times to align it with India’s global commitments, even when it ran the risk of compromising domestic goals. In recent times, the growing global discourse on compliance with TRIPS has shifted to TRIPS-plus, with significant consequences for the country’s political economy.

In 2016, news of “private assurances” offered by the Indian government to the industry to eschew issuance of compulsory licences for commercial purposes made waves throughout the nation. The submissions made by the United States (US)–India Business Council (USIBC) to the US Trade Representative (USTR) on 5 February 2016 revealed this was a wake-up call that the government has now blotted out India’s long hard battle for access and public health and the concessions it earned at the multilateral trade negotiations over a decade ago at Doha. There was some relief in the Ministry of Commerce and Industry’s (2016) subsequent clarification rubbishing the media reports.1 Yet again, 2018 began with James Greenwood, president and chief executive officer of the Biotechnology Innovation Organization, the world’s largest trade association of biotech companies, applauding the current government on its “decision not to pursue compulsory licensing and the Prime Minister’s leadership in setting up an Intellectual Property (IP) task force with the US Trade Representative” (New 2017). Critiquing several provisions of the domestic patent laws, Greenwood urged India to adopt a “Western style approach to IP laws” if it wanted to see a tidal wave of biotech investment and expansion in Gujarat (New 2017).

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Updated On : 26th Jun, 2020
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