TRIPS in India: Basic Introduction

By Hansa Sinha

TRIPS i.e. The Agreement on Trade-Related Aspects of Intellectual Property Rights is the international agreement under the aegis of WTO which is mandatorily applicable to all WTO members and thus includes India too. In the presence of WIPO etc, TRIPS contributes to trade and investments in ideas and creativity. TRIPS provides for something called as the general transition period.  In case of India and other developing countries this meant that they have to bring their provisions in conformity with TRIPS by 1st January 2000. Thus we saw the first amendment to Indian Patents Act, 1970 through Patents (Amendment) Act, 1999. This was brought into force retrospectively from 1995. Thereafter there was a further extension pursuant to which the new patent law was notified in 2005.

This is unlike the situation in case of trade remedies. The Anti Dumping and Safeguards Agreement find a direct translation in the form of Anti Dumping or Safeguard Rules. However, in case of TRIPS the domestic IPR laws like Copyright, patents, design etc are amended to bring conformity.

Although TRIPS is said to have more teeth as compared to WIPO and has resulted in various developments, the IPR issues seem to have gotten more complex. A major impact has been felt by the Pharmaceutical Industry. It is widely believed that India’s Patent Act allows Indian manufacturers to legally produce generic versions of very important and expensive medicines that are patented in other countries. This is due to India’s expertise in reverse drug engineering and an efficient pharmaceutical industry. This practice is set to be threatened at the upcoming Ministerial Conference in 2015 to be held at Nairobi, through what is called as Non-Violation Complaints. NVC is a clause under WTO which says that a member can bring about complaint against another member who may not be directly violating the agreement but may be denying the other country an expected benefit.  Till date the NVC was covered under a moratorium which means that under TRIPS no such complaint can be brought about. However, the opposition cymbals of USA and Switzerland have started ringing louder. They want to be able to end this moratorium so that such complaints can be brought about against patent laws of India and possibly other developing countries. Meanwhile India along with other developing countries is trying best to convert this moratorium into a permanent one. If the moratorium ends, the life saving drugs will get more costly, leaving poverty struck India with little to safeguard the health of its population. In the aftermath of Madras High Court decision on Glivec, the path breaking anti-cancer drug by Novartis, the international pharmaceutical companies are all set to turn the tables at Nairobi. Read more here.

Another pressing issue at TRIPS is of creating a multilateral register for wines and spirits. As per Article 23 of TRIPS there is additional protection afforded to wines and spirits. The idea is that they should be protected even if the presentation by producers is not misleading or confusing about the origin. Every country has its own act pertaining to geographical indications. However, many countries like US, Australia, New Zealand and Canada etc have proposed to create a searchable database of wines and spirits notified by the member countries. It also provides for national intellectual property offices which would contain information as to the geographical indications rights claimed by a producer in a foreign territory. There are three major proposals on this issue. India stands by the position that a multilateral regime only for wines and spirits could lead to incurring huge costs and therefore India is setting out to delay the register as much as possible and extend coverage to all products. Read more here.

With these issues, India is in the stage of balancing the global requirements while sustaining the sensitive issues of public health and the best interests of its people.

Watch this space for more on Trade and IPR! Thank you for reading.

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