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“India is The Biggest Battlefield for Intellectual Property Rights”

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The US Senator Orrin Hatch reportedly made the above comment while introducing the 2014 report on ‘International Intellectual Property (IP) Index’, prepared by an Israel based consultancy firm – Pugatch Consilium for the Global Intellectual Property Centre (GIPC) of the US Chamber of Commerce. In this forum, the Senator further alleged, “India misuses its own IP system to boost its domestic industries”.

Similar comment on South African IP Policy:

It is interesting to note that this ‘Battle Cry’ on IPR follows almost similar belligerent utterance of a Washington DC-based lobbying firm named ‘Public Affairs Engagement (PAE)’, reportedly headed by a former US ambassador Mr. James Glassman.

PAE, in a recent South African IP policy related context, as deliberated in my earlier blog titled, “Big Pharma’s Satanic Plot is Genocide”: South Africa Roars”, had stated in January 2014, “Without a vigorous campaign, opponents of strong IP will prevail, not just in South Africa, but eventually in much of the rest of the developing world.”

The GIPC report:

That said, in the GIPC report, India featured at the bottom of 25 countries on Intellectual Property (IP) protection with a score of 6.95 out of 30. Thailand, Vietnam, Indonesia and Argentina also scored low in overall ranking on protection for patents, copyright and trademarks. The United States ranked at the top, followed closely by Britain and France.

Interestingly, no country could register a “perfect” score in the survey, which used 30 factors ranging from levels of counterfeiting and piracy to patents and legal protections for all kinds of products and services ranging from pharmaceuticals to software to Hollywood films.

Among other BRIC countries, Russia with a score of 13.28, China with 11.62 and Brazil with 10.83, ranked 13th, 17th and 19th, respectively, within the selected 25 countries.

Key reasons, especially related to pharmaceuticals, as cited for the poor rating of India are as follows:

  • “Patentability requirements in violations of TRIPS”
  • “Regulatory Data Protection (RDP) not available”
  • “Patent term restoration not available”
  • “Use of Compulsory Licensing (CL) for commercial non-emergency situation”

The ground reality in India:

The answers to all these questions are much discussed and now an integral part of Indian Patents Act, as enacted by the Parliament of the country after prolong deliberations by the astute lawmakers keeping patients’ interest at the center.

As I had indicated earlier, there does not seem to be any possibility of these laws getting amended now or in foreseeable future, despite the above ‘Battle Cry’, Special 301 Watch List of the US, and continuous poor rating by the US Chamber of Commerce. This is mainly because of humanitarian sentiments attached to this issue, which are robust and sensitive enough to ignore even politically in India. Let me try to address all these 4 points briefly as follows:

“Patentability requirements in violations of TRIPS”:

Patentability is related mainly to Section 3(d) of the Patents Act. India has time and again reiterated that this provision is TRIPS compliant. If there are still strong disagreements in the developed world, the Dispute Settlement Body of the ‘World Trade Organization (WTO)’can be approached for a resolution, as the WTO has clearly articulated as follows:

“WTO members have agreed that if they believe fellow-members are violating trade rules, they will use the multilateral system of settling disputes instead of taking action unilaterally. That means abiding by the agreed procedures, and respecting judgments. A dispute arises when one country adopts a trade policy measure or takes some action that one or more fellow-WTO members considers to be breaking the WTO agreements, or to be a failure to live up to obligations.”

Thus, it is quite challenging to fathom, why those countries, instead of creating so much of hullabaloo, are not following the above approach in the WTO for the so called ‘patentability’ issue in India?

“Regulatory Data Protection (RDP) not available”:

In this context, Commerce and Industry Minister Anand Sharma had reportedly asserted earlier at a meeting of consultative committee of the Parliament as follows:

“India does not provide data exclusivity for pharmaceuticals and agro-chemicals which is in the paramount interest of our generic pharmaceutical industry as grant of data exclusivity would have considerable impact in delaying the entry into the market of cheaper generic drugs.”

Hence, the question of having RDP in India does not possibly arise, at least, in near to mid term, which would require moving an amendment in the relevant Act through the Parliament.

“Patent term restoration not available”:

Again, this provision does not exist in the Indian Patents Act. Hence, in this case too, a change does not seem likely, at least, in near to mid term, by bringing an amendment through the Parliament.

“Use of Compulsory Licensing (CL) for commercial non-emergency situation”:

Besides situations like, national emergency or extreme urgency, the current CL provisions, as per the Indian Patents Act, specifically state that at any time after the expiration of three years from the grant of patent, any interested person may make an application to the Patent Controller for grant of patent on the following grounds:

  • Whether the reasonable requirements of the public with respect to the patented invention have been satisfied?
  • Whether the patented invention is available to the public at a reasonable affordable price?
  • Whether the patented invention is worked in the territory of India?

It is worth mentioning, the Government has no authority to direct any individual for not applying for any CL under the above provision of the statute, hence law will take its own course in this area too, unless an amendment through Parliament is made in the Patents Act, which seems very unlikely again in the near to medium term.

Eyebrows raised on methodology and motive behind the ‘IP Index’ report:

Media report indicates that IP experts in India have questioned the methodology and even the motive behind GIPC’s ‘International Intellectual Property (IP) Index’ where India has been ranked the lowest among 25 countries.

The same article quotes a well-known IP expert saying, “Underlying this report is a major paradox that protecting weak patents makes the IP regime a strong one. Countries such as India that have stood up for genuine innovation and refused to protect trivial inventions have been accused of having ‘weak’ IP regimes, while it should have been the other way round.”

The article also mentions that Pugatch Consilium, which provides advisory services to top global drug makers and their trade associations, drafted the report for the US Chamber of Commerce.

Conclusion:

Keeping aside the strong allegation that the GIPC report has some ulterior motive behind, the high profile PR blitzkrieg of the pharma multinational trade associations, quite in tandem with South African outburst on the same IP issue, as I wrote in my blog post “Big Pharma’s Satanic Plot is Genocide”: South Africa Roars”, is indeed noteworthy.

However, even if one goes purely by the merits of the report with GIPC’s reasoning on ‘Why is India losing ground’, I reckon, despite so much of cost-intensive efforts and pressures by the global pharma lobbying groups, their expectation for a change in the pharma patents regime in India, any time soon, is probably much more than just a wishful thinking.

By: Tapan J. Ray

Disclaimer: The views/opinions expressed in this article are entirely my own, written in my individual and personal capacity. I do not represent any other person or organization for this opinion.

 

Family owned pharma business: Separate ownership from management for long term organization interest

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A study recently conducted by ‘ASK Investment Managers’ reported, “Family Owned Businesses (FOB)” account for 60% of market cap among the top 500 companies in India and comprise 17% of the IT Industry, 10% of refineries, 7% of automobiles and 6% of telecom, in the country. Within the domestic pharmaceutical sector similar percentage, I reckon, will be much higher.

July 31, 2011 edition of  ‘The Times of India’ published an article titled, “Keep dynasties out of India Inc.” The article described the dynastic management succession of India Inc. as:

“Family-run businesses in India have rudimentary succession plans. Most follow a set formula: the heir receives an MBA from a good American university, joins the family business in mid-management, rises rapidly up the ranks and eventually takes the top job”.

Many, however, believe that, especially, for medium to large Indian companies, the financial interest of the owners will be better served if they separate ownership from management, as we find even today that just below the founder Chairman, many big Indian corporations like, Reliance, Tata, Aditya Birla Group, Godrej and even Dabur, are run by strong team of professionals.  However, such a scenario has not emerged in the domestic pharmaceutical industry of India, not just yet.

In this context, it is worth mentioning that while interacting at a CII event in New Delhi on April 9, 2011, Mr. Adi Godrej, Chairman of Godrej Group said:

“I expect that my successor will be someone from the family. Though the heads of the Group Companies are all professionals… If a family member is to be chosen, external assessment is also very important.”

On a different note, Mr. Rahul Bajaj, Chairman of Bajaj Group had earlier announced that their businesses will continue to be managed by Bajaj family members.

This brings us to the moot question, ‘is there any institution more enduring or universal than a family business?’  Before the multinational corporations, there were FOBs. Before the Industrial Revolution, there were FOBs. Before the enlightenment of Greece and the empire of Rome, there were FOBs.

However, with today’s fast changing corporate business dynamics, the same question haunts again, ‘will the FOBs prevail in this new millennium, as well?
Families are the developmental foundation for new business and future prosperity:
In many of the most productive countries, like, the United States, Germany, Spain and China, to name just a few, families control up to 90 percent of the businesses and contribute more than 50 percent of the gross domestic product. In the emerging economies, families are the developmental foundation for new business and future prosperity. Until now, the focus on ensuring prosperity through family businesses was to help them preserve wealth and survive from one generation to the next. But with changing times, the families have come to understand the requirements for long-run growth and productivity that can generate prosperity for many generations to come. A critical facet of all thriving businesses and growing economies is no secret entrepreneurship.
Need to differentiate between a family and business interest: Even in India a large number of businesses are owned and managed by families, which though always may not be considered as a weakness, as long as the families are able to:
• Differentiate between a family and business interest • Bring in a strategic focus in business, instead of trying to do everything that appears lucrative • Strike a right balance between their short and long term strategic business goals with a sharp customer focus • Build a human capital for the organization and appoint the best professionally-fit person for the key positions • Decentralize the decision making process with both authority and accountability. (Unfortunately many Indian entrepreneurs still feel that an organization can be termed as a professional one just by hiring outside professionals and keeping all major decision making authority within the family and close friends) • Institute good corporate governance within the organization.

In India, almost all of the domestic Pharmaceutical companies are family run:
Almost hundred percent of the domestic Pharmaceutical companies in India are currently family run. As most of these companies started showing significant growth only after 1970, we usually see the first or second generation entrepreneurs in this family run businesses. In most of these companies, ownership is well defined and has been very clearly established. Unfortunately, in few others, internal squabbles within the family members, make the Board of Directors irrelevant and consequently seem to be on a disastrous tail spin.

The most successful Indian Pharmaceutical Company, so far, with global foot prints is Ranbaxy. Unfortunately, in the very early third generation of entrepreneurship, the business was sold off to Daichi-Sankyo, probably for some very valid business reasons.
Even in the second generation of entrepreneurship, we have witnessed some well known Pharmaceutical Companies, like Glenmark, Elders etc. getting split up between brothers. Perhaps in future we shall see more of such splits and consolidations.
What could possibly be the reason of such changes within the family managed Indian Pharmaceutical Business? Could it be due to an overlap between family and business interests? Could it be that a professional manager at the helm, devoid of the concerned business family interest and reporting to a professional board of directors could have managed the business better? Is it then an issue of business leadership? Most probably it is.
‘Family Councils’ or ‘Super Board’?
Many ‘family owned’ companies in India irrespective of the types of business, after the organization attains a critical mass, create an informal or even formal “Family council” consisting of the family members. The “Family Councils” act as a primary link between the business family and the Board. They also play a key role in the appointments of the Board Members, the CEO and his direct reports.
Some feel that these ‘Family Councils’ with the sweeping decision making authority at the highest level that they have vested on themselves, could at times tend to act as a ‘Super Board’. When it happens, it seriously impedes the independent functioning of the Board, which may in turn prove to be counter- productive to overall governance of the business.
The situation could get further complicated, if there is a discord within the members of these all-powerful “Family Councils.”
Should a family business be professionalized in true sense?
Let us now try to deliberate, if the family decides to hand over the reign of business to a professional CEO, reporting directly to a professional board of directors, while retaining majority of voting rights, how could the family address this situation?
It is reported that at the close of 2007, the Chairman of Eli Lilly & Co. said publicly what many industry observers have been saying privately for some time, “I think the industry is doomed if we don’t change”. The accompanying statistics painted a grim picture of the traditional big pharma business model going from blockbuster to bust. The old business model – sprawling organizations, enormous capital investments, and spiraling costs, underwritten by a steady stream of multibillion blockbuster products – is simply no longer feasible.
In search for a new and more viable business models, some boards of directors have been selecting CEOs of substantially different backgrounds to lead their companies through the current industry crisis.
It’s a bold new direction and being adopted by a number of leading companies. However, entails significant risk that boards should fully understand and take steps to mitigate.
The family run Pharmaceutical Companies in India should take a note of the changing dynamics of the professionally managed global pharmaceutical business while selecting the helmsman and may wish to get some message out of those newer trends, as and when they would decide to pass on the baton to a professional CEO reporting directly to a well competent professional board of directors.
Changing dynamics of the Big Pharma . . .
Although some global pharmaceutical companies are still following the traditional succession planning model, many leading pharmaceutical companies have started adopting different new models for succession planning. I have tried to classify those models into 4 categories, as follows:
GenNext Insiders: Preferring to seek leaders with pharma experience but with new perspectives, some boards have selected youthful industry insiders to take the reins:
• GlaxoSmithKline, Europe’s largest drug maker, has designated Andrew Witty to succeed Jean-Pierre Garnier as chief executive officer in May 2008. At 43, the new CEO, who has been with the company since 1985, will be its youngest-ever leader.
• One month before Witty took over at Glaxo, Severin Schwan, 40, became the youngest-ever CEO of Roche Holding AG, where he has spent his entire career.
Dare Devils: Other boards, also seeking the combination of pharmaceutical experience and new perspectives, have sought industry insiders from functions that don’t ordinarily lead to the top job:
• In 2006, Pfizer named Jeffrey Kindler, the company’s general counsel, to succeed Henry McKinnell. Kindler in his rather short tenure as the head honcho of the company, oversaw the company’s mega cquisition of Wyeth. However, in mid December,  2010 Jeffrey Kindler retired, rather all of a sudden, reportedly not being able to cope with the work pressure and Pfizer veteran Ian Read, Head of its Biopharmaceutical operations, immediately assumed the role of President, CEO and  director in the Board of the Company.

• James M. Cornelius, who was named CEO of Bristol-Myers Squibb in September 2006, spent 12 years as CFO of Eli Lilly.
Youthful Outsiders: Pursuing a leadership model that represents both the promise of youth and of outside perspectives, some companies have selected young leaders from other industries, initiating them into the pharma industry and then promoting them to CEO:
• In 2000, Thermo Electron (now Thermo Fisher Scientific) named as COO the then 41-year-old Marijn E. Dekkers, who had previously held several executive positions at Honeywell International, and who became CEO of Thermo in 2002.
• In 2007, Novartis brought 47-year-old Joseph Jimenez aboard to lead the Novartis Consumer Health Division and named him CEO of Novartis Pharmaceuticals shortly after. He brought with him extensive experience in consumer products at ConAgra, Clorox, and Heinz.
Seasoned Outsiders: Although a 50-something executive from outside the industry would offer an attractive combination of an established record of leadership and fresh perspectives, this model has rarely been tried. The scarcity of examples is surprising, given that such a strategy is less risky than bringing in youthful outsiders, and I expect to see this new model adopted in upcoming nominations.
Enabling it to work… One will observe that the risk in all of these new representations is high but doing nothing is inherently riskier. In the meantime, I would recommend that Indian Pharmaceutical Companies who may contemplate to examine one of these models should try to explore the following three steps to ensure long-term success:
1. Employ the most sophisticated assessment techniques available:
In all four versions, the most difficult challenge is evaluation of talent.
GenNext Insiders lack the extensive leadership background that might indicate how well they will perform over the long term.
Dare Devils are difficult to assess for competencies they’ve rarely been required to exhibit.
Youthful Outsiders not only lack extensive leadership backgrounds but also pose the question of how well their talents will apply to pharma.
Seasoned Outsiders pose the same challenge.
Arguably, these new leadership models have expanded the pool of potential CEO candidates, but they clearly require boards to exercise great diligence in assessment.
2. Continually plan for succession:
After installing a new CEO, the Indian entrepreneur along with its professional Board of Directors shouldn’t assume that the company is set for the next five to ten years. In the event that the new leader fails to produce over the first 24-36 months, the board should have a Plan B already in place, as the markets will not be as patient. Defining skill sets, aligning search committees, and recruiting a new leader takes time, and the average length of CEO tenure continues to shrink. Thus through ongoing succession planning, the board can be ready for any eventuality. It is wise to engage in constant succession planning at the top in any industry, but it’s essential in an industry searching for fundamental shifts in its business models, through new leadership.
3. Create a talent pool:
For an Indian Pharmaceutical Company, in a short span – the search for CEO talent will become even more challenging. The professional board of directors will understand this today and insist that their companies take action to create a talent bench now, by bringing in executives from other industries and providing them with development plans that can potentially lead to the top job. Stakeholders and markets are unlikely to wait patiently for success in this period of profound transformation in the industry. Whichever leadership models the boards will choose, they should take every precaution to get it right the first time.
Family-run Indian Pharmaceutical Businesses will now face even a more challenging future:
The glorious history of the family run Indian Pharmaceutical Business will now face even a more challenging future. The valor and resolve of these entrepreneurs would be tested by the product-patent regime, the ever evolving product portfolios, the environment of intense competition and consolidations.
Crossing the second generation of a ‘family-run’ business is critical:
In most of the family-run pharmaceutical businesses, successfully crossing the second generation of promoters appears to be critical for the ongoing success of the organizations. A large majority of family-run pharmaceutical businesses in India is still run by the first generation of promoters. Those companies, including very large ones like Ranbaxy or even the medium to smaller size promoter driven pharma businesses, who are or were with their second generation of promoters, had faced or could face their own problems in various areas including the ownership issues or in passing on the baton to a competent successor. In that process some of these very successful companies have even changed hands.
In addition, some other well-reputed promoter driven pharmaceutical businesses are ‘going south’ in their business performance, mostly because the second generation of promoters are not collectively pulling on to the same direction and in that process creating confusion within the management of the organization. Upcoming third generation, though not yet ready to run the businesses, tend to throw their weight in the critical decision making process, endangering very survival of the business. This could put the organization in a difficult to control deadly ‘tail-spin’, as it were.
Conclusion:
In a situation like this, with increasing global business opportunities, together with the new IPR regime, Indian Pharmaceutical entrepreneurs should separate the ‘business interest’ from the ‘family interest’, appoint a professional CEO, reporting directly to a competent and professional board of directors, to face squarely the “Challenge of Change” and be accountable to deliver the agreed deliverables to the stakeholders of the business.

A fair and transparent succession model is a crucial element of good corporate governance in the family run pharmaceutical businesses in India, just as any other industry sectors. Someone in this context said, “the market is a ruthless arbiter: it will reward companies that rise above family’.

Disclaimer: The views/opinions expressed in this article are entirely my own, written in my individual and personal capacity. I do not represent any other person or organization for this opinion.