Backtracking on patents

MASSIVE STORM IS brewing over one sentence on patents contained in the recently concluded India-UK Comprehensive Economic and Trade Agreement (CETA).

- Abhijit Das The writer is an expert on international trade

Many health advocacy groups working on access to affordable medicine and development-minded experts on intellectual property rights (IPR) are of the view that this provision in the CETA undermines access to affordable medicines. What is this provision, what are the underlying issues, what can be said in its defence, and what could be its implications?

In Article 13.6 of the CETA, the parties have recognised that "the preferable and optimal route to promote and ensure access to medicines is through voluntary mechanisms, such as voluntary licensing which may include technology transfer on mutually agreed terms". As a background to this provision, it is relevant to note that a patent holder can grant a voluntary licence to any entity for manufacturing, importing, or selling the patented medicine. Most of the voluntary licensing agreements are shrouded in secrecy and very little information exists in the public domain regarding the terms of the agreement, duration, volume, and countries that will be supplied under the agreement.

A concern with respect to voluntary agreements is that by artificially limiting production and supply, the patent holders are able to charge high prices and profiteer from multiple health crises.

The World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights, commonly referred to as the TRIPS Agreement, allows certain policy flexibilities for public health as alternatives to voluntary licensing. These include instruments such as compulsory licensing. If the price of a patented medicine is very high, a government can issue a compulsory licence to an entity to manufacture or import its generic version.