The Annual 301 Report by the United State Trade Representative (USTR) has recently been published by the Office of the USTR and can be accessed over here. Predictably, the USTR has once again put India on its ‘priority watch-list’ for poor compliance with the standards of intellectual property law expected by the U.S.
The USTR 301 reports are usually quite aggressive in demanding higher standard of IP protections from all countries regardless of the domestic priorities of these individual countries. Surprisingly, this time around, the Report has been quite restrained while commenting on the decision of the Controller-General to grant a compulsory licence for a cancer patent held by Bayer Corporation, a company incorporated under the laws of the U.S.
In pertinent part the report only states
“The United States will closely monitor developments concerning compulsory licensing of patents in India following the broad interpretation of Indian law in a recent decision by the Controller General of Patents, while also bearing in mind the Doha Declaration on TRIPS and Public Health found in the Intellectual Property and Health Policy section of this Report.”
Further in the section on IP and Health Policy, the report states:
"As affirmed in the Doha Declaration on TRIPS and Public Health, the United States respects a trading partner’s right to protect public health and, in particular, to promote access to medicines for all, and supports the vital role of the patent system in promoting the development and creation of new and innovative lifesaving medicines."
This is surprisingly sober language for an Office which in the past has threatened to sue Brazil at the WTO because of the 'local working' provision in its law apart from downgrading Thailand in its Annual 301 Report for the sole reason that its government had issue multiple CLs on pharma patents. The Indian CL decision is a combination of both the above scenario and yet we've only been threatened with a mild 'monitoring'.
I was half expecting the USTR to come out all guns blazing in this particular report because this particular decision in the Bayer CL can be applied across the board for pretty much any pharmaceutical patent. Given that the U.S. now seems to be to quite understanding of India’s need to issue compulsory licences, the government need not worry about offending one of its biggest trading partners.