International IP Regime
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TRIPS and WTO
- The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement administered by the World Trade Organization (WTO) that sets down the minimum standards for any forms of intellectual property (IP) regulation as applied to nationals of other WTO members.
- It was negotiated at the Uruguay Round of General Agreement on Tariffs and Trade (GATT) in 1994.
Key provisions
- WTO members to provide protection of:
- copyrights, covering content producers including performers, producers of sound recordings and broadcasting organizations;
- geographical indications, including appellation of origin;
- industrial design.
- integrated circuit layout design;
- Patents;
- new plant varieties;
- trademarks;
- trade dress;
- and undisclosed or confidential information.
- Enforcement Procedures
- Dispute Resolution Procedures
Protection and enforcement of all IPRs shall meet the objectives:
- To contribute to the promotion of technological innovation
- To the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.
India and the International IP Regime
- India has gradually aligned itself with international regimes pertaining to intellectual property rights.
- In 1994, India signed the TRIPS agreement mandated by the WTO. The agreement came into effect on January 1, 1995.
- Following this, it amended its internal laws to comply with TRIPS, most notably in 2005, when process patents and patents for pharmaceutical products were brought into legislation.
- India is also signatory to several IPR related conventions, including the Berne Convention, which governs copyright, the Budapest Treaty, the Paris Convention for the protection of IPR, and the Patent Cooperation Treaty (PCT), all of which govern various patent-related matters.
- In recent past, some positive steps which have been taken are – Accession to WIPO Performances and Phonograms Treaty and WIPO Copyright Treaty, collectively known as the WIPO Internet Treaties, in 2018 and the Nice Agreement in 2019.
- But, for a country like India, the benefits of TRIPS are highly debated
- Advocates of this policy point out that immunity simulate innovation (pro-innovation effect)
Skeptics criticize strong IPR reasons due to:
- Hampers Competition
- Transfer huge royalties from developing to developed countries
- Increased cost of essential medicines
- Developing countries remain trapped in vicious cycle, where developed get more developed and developing and under developing countries keep suffering
2005 amendment to the Patent Act:
- Although the TRIPS treaty was signed in 1994, India took about 10 years to establish a patent law that was in line with WTO mandate. The new patent law was officially enforced on January 1, 2005, but retrospectively from 2004.
- Through the new Patent law of 2005 (Patent (amendment) Act, 2005)
- Earlier
- The 1970 Act, allowed for only process patent and didn’t allow product patent.
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- It became a major factor in the growth of Indian pharmaceutical sector as medicines couldn’t be patented (only the process of making it could be). This was based on the recommendations of a 1959 commission chaired by the jurist Rajgopala Ayyangar, which had said that laws need to be designed “with special reference to the economic conditions of the country, the state of its scientific and technological advance, its future needs and other relevant factors.. so as to minimize if not eliminate the abuses to which a system of patent monopoly is capable of being put out”.
- They used the process of reverse engineering to manufacture the drugs
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- Timeframe for the validity of patent is 5-7 years.
- The 1970 Act, allowed for only process patent and didn’t allow product patent.
Key changes
- Product Patent reintroduced
- Increased the timeframe of the applicability of patent
- All patents were given a time frame of 20 years. (Under the 1970 act, the life of a patent was limited between five to seven years)
- Intellectual Property Appellate Board was established as a specialized judiciary to hear IP
Bringing product patent was expected to do the following
- More research in India specific diseases
- Availability of more medicines which were not available earlier
- Easy technology transfer
Law vs. Enforcement: This transition has been chaotic. Patent litigations have increased three-fold since 1995, and many of these have been highly controversial and long-drawn affairs. Courts are also grappling with how to balance the pro-innovation and anti-competitive effect of IPR.