INDIA-PATENT

Context

Key Points

• India became a party to the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement following its membership with the World Trade Organisation on January 1, 1995.
• The U.S., Trade Representative (USTR) has decided to retain India on its Priority Watch List along with six other countries Argentina, Chile, China, Indonesia, Russia and Venezuela.
• The issues raised in the report are India's inconsistencies regarding patent protection, including concerns about what can be patented, waiting time for obtaining patents, burdensome reporting requirements and doubts about data safety.
• India had undertaken an intellectual property review the exercise last year, where a Parliamentary Standing Committee examined this subject.

The Indian Patent regime

• 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 Patents are governed by the Indian Patent Act of 1970.
• India has gradually aligned itself with international regimes about intellectual property rights.
• India is a signatory to several IPR  related conventions such as the Berne Convention, which governs Copyright, 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.
• 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 was re-introduced after the 2005 amendment to comply with TRIPS.
• India remained one of the world's most challenging major economies concerning the protection and enforcement of IP.
• The patent issues continued to be of particular concern in India, highlighting the threat of patent revocations, lack of presumption of patent validity and narrow patentability criteria as issues which impact companies across different sectors.
• The USTR had also released a similar report in 2021, addressing much of the same concerns.

Article 3(d) of the Indian Patent Act

• This offered an insight into the landscape of Indian Intellectual property law and where it is reasonably in sync with the American patent laws and it diverges.
• The contention between India and the U.S. has been Article 3 (d) of the Indian Patent Act.

• The Parliamentary standing committee pointed out that the section " Acts as a safeguard against frivolous inventions by the flexibility provided in the TRIPS agreement."
• 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 substancerepectitive. This prevents the evergreening of patents. 
• 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 and stresses the need for TRIPS to be part of the wider national and international action to address these problems.
• It recognises that "intellectual property protection is important for the development of new medicines and acknowledges concerns about its effects on prices.
• Saying that the TRIPS agreement does not and should not prevent members from taking measures to protect public health" the declaration points out that the agreement " can and should be interpreted and implemented in a manner supportive of WTO member's right to protect public health and in particular to promote access to medicines for all.
• Compulsory licences can be invoked by a state in the public interest, allowing companies apart from the patent owner to produce a patented product without consent.
• It is 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 U.S. regarding the disqualification of incremental inventions through bilateral dialogue.

World Intellectual Property Organisation (WIPO)

• The report highlighted some positive steps taken by India in the recent past, such as the accession to the WIPO Performances and Phonograms Treaty and WIPO Copyright Treaty, Collectively known as the WIPO Internet Treaties in 2018 and the Nice Agreement in 2019.
• The Parliamentary Standing Committee too noted amendments to Form 27, Under the Patents (Amendment) Rules, 2020.
• Some notable changes include allowing a single Form 27 to be filed for multiple related patents, filling of Joint forms if there are more patentees and allowing authorised agents to submit forms.
• India and the U.S. will continue to engage on IP matters, the report says, especially through the Trade Policy Forum's Intellectual Property Working Group.