Though India had granted its first ever “compulsory licence”, a patent waiver, to make a cancer drug more accessible, an official of the Barack Obama administration condemned it in a congressional hearing as a violation of “international standards”. What has however gone unnoticed is that the deputy director of the US patent and trademark office (USPTO), Teresa Rea, has since used a blog to “clarify” that India was legally entitled to exercise such an option.
In the blog published in the USPTO website on July 2 recalling the questions put to her in the congressional hearing, Rea said that she wanted to “take this opportunity to clarify my responses relative to … compulsory licensing under TRIPS” (trade related aspects of intellectual property rights).
Her clarification distinguished between the rights conferred by TRIPS and conflicting national interests. “Although compulsory licensing can be permissible under the TRIPS agreement, we encourage our trading partners to consider ways to address their public health challenges while maintaining intellectual property rights systems that promote investment, research and innovation.”
It was then that Rea conceded, however indirectly, that India had deviated only from American interests and not from any global norms. She wrote, “The broad interpretation of Indian law in a recent decision by the controller general of patents of India regarding compulsory licensing of patents, in my view, may undermine those goals.”
This was a far cry from the scathing attack she had launched against India on June 27 before the House judiciary subcommittee on intellectual property, competition and the internet. Responding to a question, Rea said she was “dismayed and surprised” when India had granted compulsory licence on March 9 to Hyderabad-based Natco to manufacture a generic version of Bayer’s patented cancer drug called Nexavar.
Showing no qualms about attacking a quasi judicial decision taken by controller general P H Kurien, Rea said in the hearing that the first compulsory licence granted by India in the TRIPS era “didn’t meet international standards and was not due to national crisis.” She had even made insinuations against the rigour and integrity of the decision by claiming, with a touch of exaggeration, that compulsory licence had been “granted by commissioner Kurien on the very last day of his leaving office.”
In reality, after giving a three-day hearing to both sides, Kurien announced his decision three days prior to his retirement. It was just that the detailed order had been uploaded on the net minutes before his exit on March 12.
Rea’s retraction through her blog followed protests from civil society. The controversy served to highlight the irony that US itself was in the forefront of exploiting the TRIPS provision for compulsory licence. There are several instances of the American executive and judiciary waiving patents, among other reasons, in the public interest.