Indeed, the Gleevec decision is still only a small reversal for Western pharmaceuticals. Over the past two decades, lobbyists have worked to harmonize and strengthen a far stricter and globally enforceable IP regime. As a result, there are now numerous overlapping protections for pharmaceutical companies that are very difficult for most developing countries to contest, and that often pit their global obligations against their domestic obligations to protect their citizens’ lives and health.
According to the Indian Supreme Court, the country’s amended patent law still places greater weight on social objectives than in the US and elsewhere: The standards of non-obviousness and novelty required to obtain a patent are stricter (especially as they pertain to medicines), and no “evergreening” of existing patents — or patent protection for incremental follow-up innovations — is allowed. The court thus reaffirmed India’s primary commitment to protecting its citizens’ lives and health.
The decision also highlighted an important fact: Despite its severe limitations, the TRIPS agreement does have several (rarely used) safeguards that give developing countries a certain degree of flexibility to limit patent protection. That is why the pharmaceutical industry, the US and others have pushed since its inception for a wider and stronger set of standards through add-on agreements.
For example, such agreements would limit opposition to patent applications; prohibit national regulatory authorities from approving generic medicines until patents have expired; maintain data exclusivity, thereby delaying the approval of biogeneric drugs; and require new forms of protection, such as anti-counterfeiting measures.
There is a curious incoherence in the argument that the Indian decision undermines property rights. A critical institutional foundation for well-functioning property rights is an independent judiciary to enforce them. India’s Supreme Court has shown that it is independent, interprets the law faithfully and does not easily succumb to global corporate interests. It is now up to the Indian government to use the TRIPS agreement’s safeguards to ensure that the country’s intellectual-property regime advances both innovation and public health.
Globally, there is growing recognition of the need for a more balanced IP regime. However, the pharmaceutical industry, trying to consolidate its gains, has been pushing instead for an ever stronger and more imbalanced IP regime.
Countries considering agreements such as the Trans-Pacific Partnership or bilateral “partnership” agreements with the US and Europe need to be aware that this is one of the hidden objectives. What are being sold as “free-trade agreements” may include IP provisions that could stifle access to affordable medicines, with a potentially significant impact on economic growth and development.
Joseph Stiglitz is University Professor at Columbia University. Arjun Jayadev is a professor of economics at the University of Massachusetts Boston and a co-editor of the Journal of Globalization and Development.