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Wednesday, August 13 1997

WTO panel charges India with non-compliance with Trips commitment

Chitra Subramaniam

Geneva, August 12: Following the World Trade Organisation's (WTO) adverse ruling against India in its dispute with the US on patents legislation, India has come under tremendous pressure to amend the patents law which has long been held up due to political disagreement. "Though technically India has till the end of the year to work something out, politically it is under a tremendous pressure," said a senior trade official. ``Having a negative panel report is a very bad thing for a country,'' he added.

Acting on a complaint by the US, a three-member WTO panel has found that India has not complied with its intellectual property rights commitments. The panel has recommended that the Dispute Settlement Body (DSB), which is WTO's fair trade policeman, request New Delhi to synchronise its domestic patent laws with its international obligations, especially certain transistional regimes. Operative excerpts from the July 29 ruling made available to The Indian Express show that Washington with the European Union (EU) appearing as third party has hauled up New Delhi into the DSB process to bring India's patent regime for protection of pharmaceutical and agricultural chemicals products in conformity with the TRIPS agreement and preserve the ``novelty and priority'' for applications made during the 10-year transition period.

The report handed over to India and the US will be circulated to all WTO members in mid-September. Indian officials were not available for comment, but according to rules, India can appeal against findings. In such an event, the appellate body will have two months to examine the appeal and produce its report.

Only then will the DSB formally rule, either on the panel's findings or the appellate body's report after which it will carry the sting of law.

The panel has further recommended that in establishing a transitional mechanism, India should take into account the interests of persons who would have filed patent applications under current practices.

Broadly, the US and the EU want India to grant product and process patents and establish a ``mailbox'' where patent applications can be received while India changes its laws to bring them up to speed with the WTO's Trade-Related Intellectual Property Rights (TRIPS).

Critics say the ``mailbox'' strikes at the ten- year period of transition granted to developing countries as it imposes an immediacy on their commitments.

In its complaint, the US claimed that ``India had failed to establish a mechanism that preserves the novelty of applications for pharmaceutical and agricultural products during the TRIPS transition period, that India has failed to comply with its transparency obligations for mechanisms to file patents and that India had failed to establish a system that granted exclusive marketing rights. In addition, Washington requested the panel to suggest that India implement its obligations just like Pakistan had under bilateral agreements with the United States.

The WTO panel which backed the bulk of Washington's complaint did not deem the last suggestion ...appropriate since it would impair India's right to choose how to implement the TRIPS agreement.'' The Indian Patents Act does not permit product patents to be granted in respect of pharmaceutical and agricultural chemical products.

Under its commitments, India is obliged to receive patents applications for pharmaceutical and agricultural chemical products but examination and grant of patents upon these applications can be delayed until after the transitional period has expired.

Copyright © 1997 Indian Express Newspapers (Bombay) Ltd.

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