Horror Revisited: USTR Unveils the 2016 Special 301 Report

Almost coinciding with the World IP Day (which was yesterday), the USTR has unveiled the much awaited 2016 Special 301 Report. I’ve extensively covered the Special 301 in my previous posts. (See here, here, here, here, here ,here and here).

 Not to anyone’s surprise, India is on the Priority Watch List with the USTR retaining an option of conducting an Out- Of- Cycle Review (OCR). OCR depending upon either positive or negative developments warranting a review prior to the annual cycle. Basically, much would depend on India’s National IPR Policy, which by now should have been released. (Well beyond the “fortnight” timeline, I wonder behind which veil is the Policy shrouding!)

In the press release, the usual industry representatives (RIAA, MPAA and ETA) have voiced the importance of IP to American innovation ecosystem. Though, the deafening silence by PhRMA in the press release is somewhat surprising.

Skimming through the Report, I’m awestruck with India figuring in the list of ” Best IPR Practices by Trading Partners”   (Page 10 of the Report). It finds mention in the sub- section on “predictability, transparency, and meaningful engagement between governments and stakeholders.”  Exemplifying on this parameter, the Report states –

USTR supports predictability, transparency, and meaningful engagement between governments and stakeholders in the development of national laws, regulations, procedures, and other measures. Stakeholders report that such transparency and participation allow governments to avoid unintended consequences and facilitate stakeholder compliance with legislative and regulatory changes. For example, in late 2015, India issued a draft for public comment of proposed amendments to India’s Patents Rules and held hearings with interested stakeholders. USTR encourages continued, meaningful engagement with interested stakeholders as India continues to develop these and other IPR-related laws and regulations.

Lauding the robust bilateral engagement between the two countries on vital IPR issues, concerns over the following issues (rather rhetoric) have been expressed – (Country wise report on India runs from page number 38 to 45)

  1. Proposed amendments to the Patent Rules.
  2. Unpredictability in application of S. 3(d) of the Indian Patent Act, 1970.
  3. Opaque procedure for soliciting comments for issuance of guidelines on the patentability of computer-related inventions.
  4. Patent related challenges to the pharmaceutical industry – (i) Unpredictability and irregularity in the application of Section 3(d) of Indian Patents Act (ii)  Lack of effective protection against unfair commercial use (iii) Ambiguous standards for issuance of compulsory licenses under S. 85 and 92 of the Indian Patent Act (iv) Lack of effective notification system for marketing approvals for generics.
  5. High levels of piracy and counterfeiting.
  6. Absence of legislative protection for trade secrets.
  7. Non – ratification to major international IPR treaties such as the WCT, the WPPT, and the Singapore Treaty.

Priority to these issues shall be revitalized by entering into a dialogue with the IP Working Group.  For the benefit of readers, the IP Working Group (formally known as the High Level Working Group on Intellectual Property)  was established by President Obama and Prime Minister Modi.

In a series of posts, I’ll do a section wise review of India’s designation under the Report.

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