The Federation of Indian Chambers of Commerce and Industry (FICCI) has taken strong exception to the effort being made by the US to declare India as 'Priority Foreign Country' under the Special 301 provisions of the US Trade Act of 1974.
It is a unilateral action to create pressure on India to increase IPR protection beyond the TRIPS Agreement and aims to protect private corporate interests over national interests, said FICCI secretary general Dr A Didar Singh adding that the “Indian policy is not protective towards its domestic industry, but is protective of the interests and welfare of its citizens.”
A probe is being done by the US International Trade Commission (USITC) against India's IP policies. At a US Trade Representative (USTR) hearing on Feb 24, several US-based organisations recommended that India be designated as a priority foreign country, alleging it lacks adequate and effective protection of IP rights. These advocacy groups have leveled charges against India’s business environment, arguing that it is restrictive and discriminatory, with weak protections for intellectual property due to a number of patent invalidations and issuance of compulsory licenses.
Supporting the Indian view on the matter, FICCI said that India has a well-established legislative, administrative and judicial framework to safeguard IPRs which meets its obligations under TRIPS, and has withheld the test of severe international scrutiny. The two Trade Policy Reviews conducted by WTO in respect of India in 2007 and 2011 have found the Indian IPR regime to be adequate and there has been no mention to the contrary. India has an independent authority and appellate board and courts to decide on due processes. The fact that a number of cases are being appealed or being invalidated by the Indian courts only show the robustness of the Indian IP eco-system.
There has been no concerted effort by the Indian system discriminating foreign companies and there have been a number of Indian patents also being invalidated. Similarly there is increasing number of cases being decided by the US Supreme Court relating to patents and infringements, revocation and other disputes relating to IPRs and the US Federal courts have upheld only 39 patents in 283 cases between 2007 and 2011, the FICCI said.
With regard to compulsory licensing in the pharma sector, FICCI said that there has only been one case - Natco where a compulsory license was granted in India. The decision was taken by an independent, quasi-judicial authority, the Controller General of Patent Designs and Trademark, after fully examining the facts of the case as per the provisions of Indian law. The grant of compulsory license was permitted both under the Indian law and TRIPS.
In fact, compulsory licenses have also been invoked in the US in past, through use of executive powers of President, to ensure availability of certain products. The US used CL in the past to curb anti competitive activities and has also used it for providing to its citizen availability of commodities at an affordable price. While allowing Apple to import devices into the US that infringed a patent held by Samsung, the USTR signaled that it would not enforce exclusive rights in patents at the cost of public interest or other domestic concerns, Singh pointed out.