Leaked Draft of IP Chapter of India UK FTA Reveals Ridiculous TRIPS plus norms in Negotiating Textual content

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India’s negotiations for a brand new Free Commerce Settlement (FTA) with the UK has been the speak of the city for a greater a part of 2022. From the broadly popularized Diwali deadline, agreed by Prime Minister (s) Modi and Johnson, to the controversial feedback by the UK Residence Secretary Braverman on Indians overstaying their visas, the FTA negotiations have continually been within the information. Nevertheless, within the surrounding speak of progress and supposed advantages of the FTA, protection of contentious points between the economies has taken a again seat. Lately, the British Secretary of State for Overseas Commerce Greg Palms was quoted saying that “We stay clear that we’re working in direction of one of the best deal that’s helpful to each side and received’t signal till we’ve a deal that’s truthful, reciprocal…” Nevertheless, a glimpse on the leaked draft IP chapter of the settlement, tells us that it’s something however “truthful and reciprocal”. 

Notice: The leaked textual content was made out there on bilaterals.org and is dated April 2022 thus it will need to have undergone subsequent rounds of negotiations. Moreover, contemplating that there are not any markups, it can’t be ascertained as to which provisions have been proposed/contested by the UK and which of them have been proposed/contested by India. 

TRIPS Plus Phrases with the potential to revamp the Indian IP system

The leaked IP textual content accommodates provisions which are the antithesis of India’s IP regime and categorically targets the provisions which differentiate it from the remainder of the world. Under, I’ve summarised my understanding of some examples of this from the leaked textual content, together with the related textual content, which is able to particularly hinder the functioning of the Indian patent legislation regime are:- 

  1. Remove Part 3(d) – Article E.2. 2: In implementing paragraph 1, every Celebration shall deal with any new medical use for a identified substance or composition as able to being a patentable invention. Neither Celebration shall require {that a} new medical use or a brand new medical type for a identified substance or composition should improve the identified efficacy of that substance or composition in an effort to be handled as a patentable invention.  
  2. Take away Pre-grant oppositions: Article E.10 – The place a Celebration offers proceedings that enable a 3rd occasion to oppose the grant of a patent, the Celebration shall not make such proceedings out there earlier than the grant of the patent.
  3. Removing of Patent Working Disclosure Requirement: Article E.11- 1. Neither Celebration shall require a patent proprietor to supply periodic disclosures of knowledge regarding the working of a patent;  2. However paragraph 1, a Celebration might require a patent proprietor to supply disclosure regarding the working of a patent within the context of an lively utility for a obligatory license, in accordance with its legislation.
  4. Patent Time period Extensions: Article E.12- 2. Every Celebration shall present an ample and efficient mechanism to compensate the patent proprietor for the discount within the efficient patent time period ensuing from that advertising approval process, by means of both: a. a interval of further sui generis safety conferring the rights conferred by the patent; or b. an extension of the patent time period.

Aside from the above, there are different provisions that undermine the legitimacy of the stability that the Indian IP setup goals to ascertain. Cases of this are:-

    1. Introducing Advertising Exclusivity: Article F2.1: If a Celebration requires, as a situation for granting advertising approval for a brand new pharmaceutical product, the submission of undisclosed take a look at or different information, that Celebration shall not allow third events, with out the consent of the person who beforehand submitted that data, to put available on the market the identical or an analogous product on the premise of: a. that data; or b. the advertising approval granted to the person who submitted that data for a minimum of six years from the date of promoting approval of the beforehand authorized pharmaceutical product; such date to be decided in accordance with every Celebration’s legislation.
    2. A separate part on Commerce Secrets and techniques: Part I.  
    3. Narrowing the scope of safety below Geographical Indications and lacking out on manufactured and pure items: Article D.1 – This Part applies to the popularity and safety of geographical indications within the territories of the Events for wines, and spirits. Agricultural merchandise and foodstuffs.
    4. Eliminating doctrine of exhaustion of copyright: Article H.6 : [Each Party shall provide, for the benefit of the author of an original work of graphic or plastic art, a resale right, to be defined as an inalienable right, which cannot be waived, even in advance. to receive a royalty based on the sale price obtained for any resale of the work, subsequent to the first transfer of the work by the author. 
    5. Increasing Copyright Term to 70 years. 
    6. Increasing Design Protection Term to 25 years.

The number of maximalist TRIPS plus norms present in the text makes one wonder if this is a serious attempt at negotiating in the first place! Jokes aside, the Indian IP regime has established a very unique place for itself among its counterparts, and it would be very disappointing if it turns out that the Indian position is willing to even consider all of these attempts at norm shifting. As earlier explained by Prof Basheer and Prof. Pai “While India will continue to draw on foreign precedent from jurisdictions that have had a longer and more sophisticated history with intellectual property, it will not blindly adopt their norms. Rather it will seek to adapt them to the local conditions in a bid to promote and protect the national interest.” 

A cursory look at the evolution of India’s IP jurisprudence will evidence the contribution of flexibilities like Section 3(d), Pre-grants oppositions, lack of data exclusivity, limited-term of the patent, the requirement to disclose working of patent, in assuring a robust setting which has not only ensured access to cheaper medicines but has also assisted in setting up India’s image as the hub for generic medicines. Leaving the human rights considerations aside especially since FTAs are generally negotiated on the understanding to improve the economy of both the Members, agreeing to these provisions can not be good for the business of the Indian pharma industries, especially when the UK doesn’t seem to offer anything solid like a strong commitment to tech transfer, etc. 

Are TRIPS plus terms beneficial for the parties? 

This text should not be a surprise to those familiar with the history of trade agreement negotiations, where the interests of the Global South have largely been sidelined in the pretext of a chair at the high table. This happened during the Uruguay Rounds of negotiations on GATT via which IP was brought into the ambit of the negotiations for multilateral trade agreements. And has happened multiple times in the past when developing economies have been forced to agree to TRIPS-plus provisions under different FTAs. 

The actual benefits of agreeing to these TRIPS-plus terms for the IP importing Member, which is often a developing one, is debatable. However, there is a plethora of evidence to suggest the ill impacts of these terms on developing participants. For instance, in this piece, Rohit Malpani, speaking specifically about the TRIPS-plus provisions agreed by Jordan in its FTA with the US, has highlighted how the prices of medicines have increased significantly in Jordan since the FTA partly as owing to the TRIPS-plus rules. Whereas no evidence was found to support the claims that the FTA has facilitated investments in Jordan (see here and here (note the second source is paywalled)). In fact, Beatrice Lindstrom argues that these terms are not beneficial for Developed countries as well, since it only serves the interest of a handful and may force their counterparts to walk away from the negotiations and thus lose on potential market access. 

What is surprising is that this TRIPS plus text, which largely undermines the flexibilities guaranteed by TRIPS, was put up on the negotiating table of which India is a part. The same India which just recently pushed for an almost complete waiver from IP enforcement for the prevention and treatment of COVID-19 highlights how provisions under TRIPS are an impingement to ensuring necessary access and how its prescribed flexibilities are just not good enough. 

While it looks  (and one can seriously hope) like this text is still under discussion with India pushing against these terms, this leaked text also highlights the opacity of the information on what is actually negotiated. Transparency is an essential facet, especially in negotiations around issues that have widespread ramifications. The UK for instance has put out a detailed report on its negotiating strategy, where it has highlighted how it will push for a pro-IP stance in its agreement with India, another report on the scrutiny of the UK Government’s negotiating objectives along with a questionnaire for the general public to highlight their issues and interests in the negotiations. Whereas in India apart from a call for inputs for stakeholders dated June 2021, there is hardly any official detailed update/ invitation barring a few sparsely detailed press releases (for instance see here).

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