A US report offers a stinging rebuke to India’s behaviour on matters of intellectual property. But how justified are its criticisms? Corporate counsel Harish Suryavanshi gives his view

On the eve of World Intellectual Property Day, on 26 April 2019, the Office of the US Trade Representative (USTR) released its annual Special 301 Report for 2019 on US concerns related to intellectual property (IP) rights.

The report lists the markets/countries with which it has the most significant concerns regarding IP rights on its so-called priority watch list, for allegedly engaging in and facilitating substantial copyright piracy and trademark counterfeiting. India is on that list.

The report says the US government has retained India on the watch list for its alleged poor enforcement of IP regulations, and for lack of sufficient measurable improvements to its IP framework on longstanding and new challenges that have negatively affected US rights holders in the past year.

The major IP allegations the report raises against India are:

  1. India is “one of the world’s most challenging major economies” with respect to protection and enforcement of IP;
  2. Poor enforcement of IP regulations in India is impacting US IP rights holders;
  3. India’s pharma industry is one of the largest sources of counterfeit drugs, along with China;
  4. India is to blame for its growing problem of counterfeit medicines posing serious threats to patient health and safety;
  5. India has low transparency on information pertaining to state-issued pharma manufacturing licences and expanding the use of patentability exceptions to refuse pharma patents targeting India’s IP stance on the use of compulsory licensing;
  6. Copyright issues including piracy are mentioned with reference to India. “Restrictive patentability criteria” is cited, along with “a lack of effective protection against unfair commercial use, as well as unauthorized disclosure, of test or other data generated to obtain marketing approval for pharmaceutical and agricultural chemical products”; and
  7. India has inadequate trade secret protection, which puts “US trade secrets at unnecessary risk”, and “negative market access effects” from the EU’s geographical indications (GI) protections.

The report also refers to multilateral (World Trade Organization, or WTO), regional (Asia-Pacific Economic Co-operation forum, or APEC) and bilateral (Trade and Investment Framework Agreements, or TIFA) agreements and specific instances where such agreements are being pursued to advance US trade objectives. It says if progress is not satisfactory by its standards, the US also plans to enforce compliance under section 301 of the US Trade Act, or take recourse using appropriate dispute settlement mechanisms like the WTO.

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