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By: Feroz Ali Khader
India’s trailblazing balance of patent law and necessary access falls foul of an IP index released by US companies.
The Global Intellectual Property Centre’s (GIPC) International IP Index is an indicator of the shape of things to come. Released earlier this year, the Index notes India as having the “weakest” IP environment on the list of 25 carefully chosen countries that figure in the index. As an affiliate of the US Chamber of Commerce, the GIPC does an impressive job of singing the old tune of the deteriorating standards of India’s “IPness” — the state of intellectual property protection.
The index was critically timed to appear before the GIPC appeared in the Special 301 public hearing before the US Trade Representative (USTR) on February 24. That the GIPC and the US Chamber of Commerce urged the USTR to designate India as a Priority Foreign Country was surprising as the index, though explicit in ranking India at the bottom, makes no mention of whether India is deserving of such designation.
The GIPC Index is an opportune forerunner to the mother of all indices, the Special 301 — the annual naming, faming and shaming exercise of the USTR where the US tells the world what their level of intellectual property protection should be. Every year, the USTR releases the Special 301 reviewing the global state of intellectual property rights protection and enforcement. The exercise involves categorising countries based on their IPness. The good ones are praised and commended for strengthening their IP regime.
The not so good ones are put either on the “Watch List” or the “Priority Watch List”, indicating that particular problems exist in those countries with respect to IPR protection, enforcement or market access for persons relying on IPR. The really bad ones are named as “Priority Foreign Country” for having “the most onerous or egregious acts, policies, or practices and whose acts, policies, or practices have the greatest adverse impact (actual or potential) on the relevant US products”. India has been at the receiving end for uniquely incorporating a remarkable array of TRIPS flexibilities into its patent law, which includes higher standards of patentability, a pre-grant challenge mechanism for patents and a robust compulsory licensing regime.
Since becoming a member of the WTO, India has never been categorised as a Priority Foreign Country. The GIPC’s push in urging the USTR to designate India as a Priority Foreign Country has more to do with what is happening outside India than within it.
Based on some OECD models, the GIPC Index makes a causal link between the level of protection for IP in a country continued…