In India there are over 2 million people living with HIV. Of these, 1.7 million are registered in the government’s antiretroviral (ARV) program, with just over 600,000 currently on treatment.

The problem

There are major efforts by multinational corporations and pressure from the United States government to weaken India’s patentability criteria.

It is important that public safeguards like patent oppositions and compulsory licenses, available under the patent law in India, are preserved against external pressures.

Provisions put in place by trade agreements, like data exclusivity, patent term extensions and border enforcement measures, all threaten access to medicines.

The background

Due to the prudence of its lawmakers, India became the center of affordable and quality generic medicines and a supplier to many low and middle-income countries. In the 1970s lawmakers had amended India’s patent laws to disallow patents on medicinal products.

After India joined the World Trade Organization (WTO) in 1995 it had until 2005 to bring its law into compliance with the TRIPS agreement, including the reintroduction of patent protections on medicines. However, key public health safeguards were introduced to ensure that only patents that met strict patentability criteria were granted.

In April 2013, the Supreme Court upheld India’s enhanced patentability criteria for pharmaceutical patents by holding that unless there is a significant improvement in therapeutic efficacy of a new form of a known substance, it cannot be patented in India. This decision by the Supreme Court was a welcome barrier for multinational corporations who have long sought to get rid of patent flexibilities by constantly targeting India’s patent law.

In September 2014, India’s Commerce Minister announced the creation of an intellectual property (IP) think-tank tasked with formulating a national IP policy in consultation with stakeholders. In January 2015, our partner The Lawyers Collective made a detailed submission to the think-tank critically analyzing the draft policy.

The Lawyers Collective has been advocating for a rights-based approach to the HIV response in India since 1981, including opposing patents. It organized a workshop at last year’s Global IP Congress (2015) highlighting the latest pressures India is facing and how it’s challenging them.

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