World Trade Organization Organisation Mondiale du Commerce Organización Mundial del Comercio

Brazil 19:

In paragraph 245 (page112) of the Secretariat Report (WT/TPR/S/249) it is stated that "India has signed bilateral cooperation MOUs on IPRs with Australia, France, Japan and Switzerland; and with the European Patent Office, the German Patent Office, the US Patent and Trademarks Office; and WIPO."

  Do these agreements provide for the obligation to consult the Indian Library of Traditional Knowledge when analyzing patent applications?

Reply: There is no obligation to mandatorily search the database of the Traditional Knowledge Digital Library when analyzing patent application. However, the access is provided to facilitate prior art search where Indian TK is used.

Brazil 20:

In paragraph 247 (page 113) of the Secretariat Report (WT/TPR/S/249) it is stated that "an Intellectual Property Appellate Board (IPAB) was constituted in 2003 to hear appeals against the decisions of the registrar of trade marks and geographical indications. However, as of 2007 the IPAB has also heard appeals regarding patents."

  What is the competence of IPAB? Is it intended to become a specialized court of appeals to all matter involving IPRs or should it only deal with matter involving the registry of IPRs?

Reply: Section 83 of the Trade Marks Act provides for establishment of an Appellate Board known as Intellectual Property Appellate Board to exercise the jurisdiction, powers and authority conferred on it by or under the Trade Marks Act, 1999. The main object of providing for an IPAB is speedy disposal of appeals and rectification application that were lying in different High Courts of the country. In terms of section 91 of the Trade Marks Act, 1999 any orders or decisions of the Registrar of Trade Marks are appealable to IPAB. The Appellate Board consists of a Chairman, Vice Chairman and other members appointed by the Central Government. The Appellate Board exercises its function through benches constituted by the Chairman. The Bench consists of one judicial member and one technical member and sits at such places as notified by the government. The Appellate Board does not deal with infringement or passing off matters. Only appeals from the orders of the Registrar of Trade Marks and GI will lie before the IPAB. An appeal also lies against the order of Controller of Patents to IPAB under section 116 of the Patents Act. Like in trade marks infringement matters relating to patents have to be agitated only at the appropriate court.

Brazil 21:

In paragraph 256 (page 115) of the Secretariat Report (WT/TPR/S/249) it is stated that compulsory licensing is permitted if a patent is not worked in India. It is also mentioned that "compulsory licenses are also permitted for exports of patented pharmaceutical products in certain exceptional circumstances, when the Government declares an emergency".

  How the term "work a patent" is defined in Indian Law and jurisprudence?

  Under which circumstances are compulsory licenses permitted for exports of patented pharmaceuticals? Which Government should declare it an emergency, the Indian Government or the importing country Government? Is this provision in any sense connected with the Paragraph 6 system of the Doha Declaration on TRIPS and Public Health?