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.
U.S. Follow-Up Question: Please identify the "adequate safeguard provisions ... in the existing Acts" that ensure compliance with TRIPS Article 39(3).
Reply:The protection to undisclosed information against unfair competition is provided through the provisions of Common law, Law of Torts and the Indian Contract Act 1872. Also Section 5 of the Official Secrets Act provides that unauthorized disclosure of official secrets is a punishable offence. This provision is also applicable to government employees who are dealing with patent applications.
