Identification of India by the Office of the United States Trade Representative (USTR) in its Special 301 report as a ‘priority watch country’ for failure to protect intellectual property is unjustified as the WTO doesn’t permit unilateral action against the member countries. Biswajit Dhar, the director general of Research and Information System for Developing Countries, tells Santosh Tiwari that India should challenge the USTR report and send a clear signal to the US that the country will not accept any intrusion into its domestic policy-making space.
The much-awaited Special 301 report has stated that intellectual property protection and enforcement challenges are growing in India. What would be the implications of the report’s findings and the fact that India is kept in the ‘priority watch country’ list?
It is important to recognise that it is not merely identifying India as priority watch country that has been done, they have also included us in the out-of-cycle investigation which means that instead of an annual review of our IP laws, we will be once again subjected to scrutiny in the fall. So, the implications are that there will be constant pressure on us to amend our IP laws, in particular the sections in the Patents Act against which the Special 301 has made some critical comments.
One is section 3D, which limits patenting particularly of pharmaceuticals to those products which are distinct improvements over the existing products. In other words, minor modifications of existing formulations or discovery of new usage of existing products would not qualify for a grant of patent in India. The major pharmaceutical companies in the US have been objecting to the strict standards for granting patent rights that India has been following.
The second provision relates to the grant of compulsory licences for patented products where the patent holder charges excessive price or is unwilling to produce the product in India. This provision has been used to make life-saving drugs accessible to patients at affordable prices. Pharmaceutical firms have been objecting to the grant of compulsory licences as this instrument was not allowing them to appropriate super-normal rents for their patents.
Now, they are pushing for the amendments of these two provisions which the government of India has introduced in the Patents Act, essentially to meet the requirements of the public at large.
While the US is seeking changes in the Indian patent regime, there have been instances when it took steps to protect its