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Transplanting India’s patent laws

Montesquieu said that “[Laws] should be so specific to the people for whom they are made, that it is a great coincidence if those of one nation can suit another”. Despite Montesquieu’s belief in the uniqueness of law, there have been numerous instances of nations adopting laws of other nations. Once such instance is the adoption of the ancient Hammurabi’s code (Babylonian law code) by Persia, Greece and Rome in the 17th century B.C. Subsequently, European Civil Codes modeled on Roman law were adopted by Peru, Egypt and Japan. This phenomenon of the movement of a rule or system of law across countries has been aptly described as “legal transplant”, a term coined by W.A.J. Alan Watson in the 1970s.

Legal transplant may be defined as the “adoption into the national legal system by one state (the adopter country) of a rule originating in a foreign state (the originator country)”. In recent times, legal transplant has found its place within the wider concept of legal acculturation or diffusion of law.

Five causal mechanisms of legal transplantation have been identified – emulation, coercion, contractualization, regulatory competition, and socialization. Emulation (also referred to as “lesson-drawing”) suggests that legal transplantation takes place when law-makers strive to solve a problem by looking beyond national borders for solutions. This kind of emulation was observed during the Uruguay Round of negotiations when developing countries mimicked the actions of India and Brazil which had similar interests and concerns on development. This mimicry can be attributed to the lack of capacity and resources on the part of other countries to counter the proposals made in the Dunkel draft by the developed countries.

Recently, patent reforms in different parts of the world have shown an emerging trend towards the emulation of Indian patent law. Countries like China, South Africa, Botswana and Brazil are now trying to amend their domestic patent laws based on India’s model. The Philippines was among the first countries to emulate India’s patent regime when it introduced a provision very similar to Section 3(d) of the Indian Patents Act 1970 on patenting new forms of known substances. In 2012, when India granted the first compulsory licence allowing Natco, a generic drug maker to manufacture and sell the anti-cancer drug Nexavar which was patented by Bayer Corporation, China soon followed suit by amending its domestic law to permit the government to issue compulsory licences to local pharmaceutical companies to manufacture patented drugs. South Africa and Botswana have also suggested amendments to their patent laws to incorporate the pre-grant opposition procedure which has been used quite successfully to challenge a number of patents at the India Patent Office. Brazil has adopted the most provisions from the Indian patent law.

While many countries have been inspired to adopt India’s patent laws, few countries such as the US have criticized India for its patent reforms; in a ‘Special 301’ (2013) report (annual review of global IP rights protection and enforcement conducted by the US Trade Representative), the US criticized India’s pre-grant opposition procedure and the grant of the Nexavar compulsory licence. The US has also entered into bilateral free trade agreements with its trading partners with provisions that counter India’s patent norms by increasing the level of IP protection. These measures taken by the US to resist strong IP rights have been criticized by some countries as hindering their development.

India’s unique patent system has earned it the epithet of “the pharmacy of the developing world”; millions of people worldwide depend on affordable life-saving drugs produced in India. The compulsory licensing provisions under the Indian law have made it possible for generic pharmaceutical companies in India to manufacture and sell drugs (protected by patents owned by multinational companies), thereby enhancing access to medicines at an affordable price.

The recent legal transplantation of India’s patent laws can thus have some far-reaching implications in international law. The adoption of India’s patent laws by a large number of countries could lead to the emergence of a new norm in customary international law; it has been well-established that widespread practice of a norm could amount to “state practice” which is an essential element of customary international law.

State practice could then be helpful in interpreting international treaties such as the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) which regulates the protection of intellectual property rights in the member-states of the World Trade Organization. India has been lauded internationally for its ability to reform its patent laws in sync with its developmental needs by making use of the flexibilities within the TRIPS Agreement. The implication of legal transplantation in treaty interpretation of TRIPS is especially useful for the developing countries since the constructive ambiguities provided by the Agreement can serve as “wiggle room” for the countries to strategically use the ambiguities to accommodate their domestic regulatory preferences and to promote access to medicines, the way India did.

Featured image credit: Medication, by frolicsomepl. CC0 Public Domain via Pixabay.

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