Indian has urged African nations not to follow the example of Kenya, which has recently passed legislation which allows generic versions of drugs patented anywhere in the world to be classed as counterfeit if the patent holder raises an objection.

Earlier this month, the Indian government, along with Brazil, lodged a complaint with the World Trade Organisation (WTO) against the European Union (EU), relating to Kenya’s Anti-Counterfeit Act, which was passed last December. The Act recognises intellectual property rights on drugs registered anywhere in the world and, even if a drug is not patented in Kenya or in the country of manufacture, it will be classified as counterfeit in Kenya, if the patent holder objects.

India and Brazil’s complaint to the WTO claims that the new law represents part of a strategy by EU-based multinational drug manufacturers aimed at persuading other countries, in Africa and elsewhere, to enact similar legislation.

The multinationals have failed to get a regime approved the World Intellectual Property Organisation (WIPO) which would give a patent granted in a single country worldwide applicability, and they have now resorted to raising objections to generics while they are in transit in the EU, en route from India to the purchasing country, and declaring them to be counterfeits, say Indian government officials.

“Having failed at the WIPO, they are attempting to succeed through the backdoor by strategically detaining our drugs at ports and convincing African countries to bring in such legislation,” India’s Commerce Secretary, GK Pillai, stated recently.

The seizures were the subject of angry debate at the World Health Assembly in Geneva earlier this month, where Brazil’s Health Minister, Jose Gomes Temporao, described them as “ethically and legally unacceptable.”

Observers also point out that the Kenyan law’s definition of a “counterfeit” medicine differs from that of the World Health Organisation (WHO), and that it does not differentiate between “spurious” and “counterfeit” products.

- Indian pharmaceutical exports had been growing an average rate of 17.8% during the five years to 2008 but, during October 2009-March 2009, they fell almost 40%. However, in the year to December 2008, Indian drug exports to the USA soared 46%, year-on-year. African states currently account for around 14% of India’s drug export market.