India rejects unilateral US probe in patent law

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IPR fight over pharma, solar gear gets bitter

India rejects unilateral US probe in patent law
India on Wednesday appreciated Washington keeping New Delhi off the black list for patent offence especially in the pharma and solar sectors till the Lok Sabha elections, but made it clear that it would not subject itself to unilateral investigation by the US.

India has not violated any multilateral, regional or bilateral trade commitments and therefore it will not subject itself to any unilateral investigation by the US, commerce secretary Rajiv Kher told reporters.

The US on Tuesday night retained India on priority watch list 2014 instead of naming it as a priority foreign country under its Special 301 annual report till a new government came into being after the Lok Sabha elections.

Multinational pharma companies in the US had demanded that India be put on the priority foreign country list but the US government had apparently resisted this pressure.

Apart from India, several other countries – China, Russia, Algeria, Argentina, Chile, Indonesia, Pakistan, Thailand and Venezuela – are in the USTR watch list under 2014 special 301 report.

The report, however, commends India for its achievements like digitisation and upgradation of IP Offices and active copyright enforcement by the Delhi High Court through injunctive relief, to name only a few.

In the report, the US has also recognised the role of bilateral engagements between US and India to resolve concerns relating to intellectual property rights (IPR).

The dispute settlement mechanism under WTO clearly states that before a member country takes unilateral action, it must first try to get the matter settled.

India is ready to discuss any issue related to trade and IPR through the Indo-US trade policy forum, Kher said adding the forum has not met since 2010 despite repeated efforts by India to convene its meeting.

Cutler had a telephonic conversation with Kher on Tuesday during where India has clearly stated its position of not subjecting itself to any unilateral investigation as New Delhi has not violated WTO’s trade-related aspects of intellectual property rights (TRIPs) agreement.

The rollover of the US decision till the fall (till elections), Kher said appeared to be a wise decision. Any attempt to hasten a decision by the US would adversely affect bilateral trade relations, which was otherwise cordial.

Deferring a decision, however, did not mean that India has agreed to be party to their action of unilateral investigation, Kher said, adding trade policy forum is the institutional mechanism for resolving such bilateral issues.

On the issue of compulsory licencing by India in the pharma sector, Kher said this was an issue addressed by India several times and fears of US pharma companies are unfounded.

India is fully compliant of TRIPS agreement and whatever measures New Delhi had undertaken with regard to its pharma industry in particular were within the flexibility available to WTO members under TRIPS.

“It has used this flexibility with highest level of judicial scrutiny,” Kher said adding India has used compulsory licensing provision only in exceptional circumstances as laid out in India’s Patent Act. Compulsory licensing is when a government allows production of a patented product or process without the consent of the patent owner.

Kher also said it was too premature for India to take the matter to the WTO. It would take a call as and when US takes unilateral action.

The Obama administration has been critical of India's investment climate and IPR laws, especially in the pharmaceutical and solar sectors.

The US international trade commission had raised the matter of India’s rejection of patents for Bristol-Myers Squibb's Sprycel and Novartis's Glivec. It said Indian IPR laws were not compliant with trade-related aspects of TRIPS under WTO. Swiss pharma major Novartis lost the legal battle to get its blood cancer drug Glivec patented in India and restrain Indian companies from manufacturing generic versions. The Supreme Court rejected the multinational company's plea.

FICCI in its response to the US move had asserted that India has a well-established legislative, administrative and judicial framework to safeguard IPRs, which meets its obligations under TRIPS, and has withheld the test of severe international scrutiny.

“We are glad to note that India has not been given the priority country status as this could have had serious ramifications on economic, political and trade sanctions,” Ficci secretary general Didar Singh said. India’s IP and copyright law are one of the strongest and best in the world, he said, adding that India protected computer programmes by copyright much earlier than the US.

New Delhi has been an active advocate of the policies and strategies of the UN Framework Convention on Climate Change (UNFCCC), WTO and WIPO. India has engaged constructively with these organisations, exploring solutions to intricate problems and to build a consensus. “With a new political dispensation due to take centre stage in India in just a couple of weeks, we hope to see stronger collaboration between India and the US on a wide range of issues, including IPR,” said Chandrajit Banerjee, director general, CII. “We have a real window of opportunity to refocus positively, address each other’s concerns and shape the future business climate in both countries,” he added.

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