India’s first
compulsory license, granted for Bayer’s Nexavar, is deeply criticized by US House
of Representatives and USPTO. The compulsory license was granted to Natco in
March and the decision has already been appealed by Bayer.
US has
expressed its disapproval on the grant of this compulsory license by threatening
to elevate the case to WTO’s dispute settlement panel. It is speculated that by
granting this compulsory license in a situation where there has not been a
national emergency, India may not be honouring International patent law standards.
Well, through
these allegations is US suggesting that a compulsory license may be granted
only in case of national emergency and that national emergency is one of the
prerequisites for the grant of compulsory license? At present, the Indian patent
system does not include national emergency as a prerequisite to the grant of
compulsory license. Rather, the Indian system provides that the compulsory
license may immediately granted, overlooking the requirements and procedural
aspects (under section 92(3)), in cases of national emergency. It also provides
that the consideration to be made under section 84 (6)(iv) by the patent office
for granting a compulsory license may be
overlooked in case of national emergencies.
It would be interesting
to see how this case develops once it reaches the WTO, if at all it does.
The U.S. government is owned and controlled by large corporations and similar special interests whose profit margins and other priorities could conceivably be dented by the existence of compulsory patent licenses and similar initiatives that benefit the general public. For this reason, U.S. legislative and executive branch statements and agendas should largely be ignored.
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