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This is one of the recognized flexibilities available under Article 8 of the TRIPS Agreement that countries are free to adopt in their legislation as per Doha Declaration.

The Declaration states that TRIPS Agreement can and should be interpreted and implemented in a manner supportive of WTO members' right to protect public health and, in particular, to promote access to medicines for all.

As such the said provisions of section 3(d) of the Patents Act, 1970 are fully compliant with Article 27(1) of the TRIPS Agreement read with Article 8 of the said Agreement.

US 85:

Report by the Secretariat (WT/TPR/S/249): III. TRADE POLICIES AND PRACTICES BY MEASURE: (3) Measures Directly Affecting Exports: (4) Measures Affecting Production and Trade: (vi) Intellectual property rights: Page 115, paragraph 256:

The Secretariat indicates that DIPP has issued a discussion paper on patent compulsory licensing with a view to developing a predictable environment to use such measures. How will the Government of India ensure that any suggested changes to current implementation of compulsory licensing complies with all of the conditions in TRIPS Article 31? Does India plan to seek public comments regarding any changes it is considering? How does the Government of India satisfy the undisclosed information obligations of TRIPS Article 39(3), including protection of data against unfair commercial use?

Reply: The Department of Industrial Policy and Promotion (DIPP) prepared a Discussion Paper on the subject of Compulsory Licensing and hosted the same on its website to invite the views and suggestion on certain issues for resolution. The objective of this exercise was not to invite any change/amendment to the provisions of the Patent Act 1970 but only to elicit the suggestions to take an appropriate policy decision whether the existing provisions of the Patents Act, 1970 require any amplification through issuing of guidelines by the Government. As such, the question of any change to the existing provisions of the Patents Act 1970 does not arise. Moreover, after obtaining and examining the suggestions on the said Discussion Paper, the Government has decided that there is no need to issue additional guidelines for the issue of Compulsory License and issued a press release to this effect to conclude the matter. Further, the existing provisions of the Patent Act 1970 are already TRIPS compliant including Article 31 thereof.

As regards the protection of undisclosed information against unfair commercial use as per Article 39(3) of TRIPS Agreement, adequate safeguard provisions are there in the existing Acts.

US 86:

Report by the Secretariat (WT/TPR/S/249): III. TRADE POLICIES AND PRACTICES BY MEASURE: (3) Measures Directly Affecting Exports: (4) Measures Affecting Production and Trade: (vi) Intellectual property rights: Page 116 paragraph 265:

The Secretariat's Report states: "Any person may oppose the registration, within three months from the date of its advertisement." How many pre registration opposition and post registration cancellation/rectification matters are pending before the Intellectual property Office? On average, how long does it take for the Indian Intellectual Property Office to decide a pre registration opposition and a post registration cancellation/rectification matter?

Reply: With reference to the Secretariat observation regarding trade mark opposition in India there are about 1,30,000 pre registration oppositions pending at TMR. Further about 2,500 cancellation proceedings are pending at TMR. The average time for disposal of contested matters at TMR after conclusion of the hearing by the adjudicating officer is between three to six months by way of a detailed speaking order.

US 87:

Report by the Secretariat (WT/TPR/S/249): III. TRADE POLICIES AND PRACTICES BY MEASURE: (3) Measures Directly Affecting Exports: (4) Measures Affecting Production and Trade: (vi) Intellectual property rights: Page 117, paragraph 270:

According to the Secretariat, in 2007, "the customs authorities promulgated guidelines, under which right holders may record their registered trademarks with the customs authorities. These guidelines authorize customs officials to seize goods infringing the trademarks of the right holder at the border without a court order. According to the authorities, there have been no such instances." Why have there been no seizures of trademark infringing goods conducted without a court order despite the existence of guidelines authorizing customs officials to take such action?