The US Trade Representative (USTR) said in a report released last month that India was one of the most challenging major economies as far as IP protection and enforcement is concerned.

What is the news?

• US has decided to retain India on its Priority Watch List along with six other countries —Argentina, Chile, China, Indonesia, Russia and Venezuela.

What is a Patent?

• A patent is an exclusive set of rights granted for an invention, which may be a product or process that provides a new way of doing something or offers a new technical solution to a problem.

Indian Patent Regime: A Backgrounder

• Indian patents are governed by the Indian Patent Act of 1970.
• India has gradually aligned itself with international regimes pertaining to intellectual property rights.
• It became a party to the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement following its membership to the World Trade Organisation on January 1, 1995.
• An interesting point is that the original Indian Patents Act did not grant patent protection to pharmaceutical products to ensure that medicines were available at a low price.
• Patent protection of pharmaceuticals were re-introduced after the 2005 amendment to comply with TRIPS.

Various agreements

• India is also a signatory to several IPR related conventions, including the Berne Convention, which governs copyright.
• It is signatory to the Budapest Treaty, the Paris Convention for the Protection of Industrial Property, and the Patent Cooperation Treaty (PCT), all of which govern various patent-related matters.

Issues raised about India

• Among the issues raised in the report are:

1. India’s inconsistencies regarding patent protection
2. Concerns about what can be patented
3. Waiting time for obtaining patents
4. Burdensome reporting requirements and
5. Doubts about data safety
6. Trademark counterfeiting and secrets

• India had undertaken an intellectual property review exercise last year, where a Parliamentary Standing Committee examined this subject.

Contention of the US: Patents Evergreening

• One of the main points of contention between India and the U.S. has been Article 3(d) of the Indian Patent Act.
• Section 3 deals with what does not qualify as an invention under the Act, and Section 3(d) in particular excludes the mere discovery of a new form of a known substance.
• Section 3(d) prevents the mere discovery of any new property or new use for a known substance from being patented as an invention unless it enhances the efficacy of the substance repetitive.
• This prevents, what is known as “Evergreening” of patents.
• According to the Committee’s report, Section 3(d) allows for “generic competition by patenting only novel and genuine inventions.”

TRIPS and the Doha Declaration

• The Doha Declaration on the TRIPS Agreement and Public Health was adopted on November 14, 2021, by the WTO member states.
• This declaration recognises the gravity of public health problems affecting developing and least developed nations.
• It recognises that “intellectual property protection is important for the development of new medicines,” and acknowledges concerns about its effects on prices.
• It is interpreted and implemented as a right to protect public health and, in particular, to promote access to medicines for all.

Key provisions of Doha Agreement

• Compulsory licences can be invoked by a state in public interest, allowing companies apart from the patent owner to produce a patented product without consent.
• It concluded that India must not compromise on the patentability criteria under Section 3(d).
• It said that this ensures the growth of generic drug makers and the public’s access to affordable medicines.
• It indicated that India should resolve its differences with the US regarding the disqualification of incremental inventions through bilateral dialogue.

Positive steps taken by India

• The USTR report highlighted some positive steps taken by India in the recent past.
• India has accession to the World Intellectual Property Organisation (WIPO) Performances and Phonograms Treaty and WIPO Copyright Treaty, collectively known as the WIPO Internet Treaties, in 2018 and the Nice Agreement in 2019.

Back2Basics: Intellectual Properties

• IP is protected in law by, for example, patents, copyright and trademarks, which enable people to earn recognition or financial benefit from what they invent or create.
• By striking the right balance between the interests of innovators and the wider public interest, the IP system aims to foster an environment in which creativity and innovation can flourish.

Types of IP:

(1) Copyright

• Copyright is a legal term used to describe the rights that creators have over their literary and artistic works.
• Works covered by copyright range from books, music, paintings, sculpture and films, to computer programs, databases, advertisements, maps and technical drawings.

(2) Patents

Discussed above

(3) Trademarks

• A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises.
• Trademarks date back to ancient times when artisans used to put their signature or “mark” on their products.

(4) Geographical Indications

• Geographical indications and appellations of origin are signs used on goods that have a specific geographical origin and possess qualities, a reputation or characteristics that are essentially attributable to that place of origin.
• Most commonly, a geographical indication includes the name of the place of origin of the goods.

(5) Trade secrets

• Trade secrets are IP rights on confidential information which may be sold or licensed.
• The unauthorized acquisition, use or disclosure of such secret information in a manner contrary to honest commercial practices by others is regarded as an unfair practice and a violation of the trade secret protection.

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