As India faces the risk of a downgrade in the Special 301 report that identifies trade barriers to U.S. companies and products due to a foreign government’s intellectual property regime, hectic lobbying efforts are underway by the US-India Business Council (USIBC) to avoid it.
In a submission before USTR, USIBC President Dr. Mukesh Aghi has argued that the in the last 12 months there has been substantive improvement in India’s IP environment. “We are encouraged by the way things are trending,” he said. “USIBC members greatly appreciate the willingness of the Government of India to work with Industry over the past year,” he said.
The office of the U.S. Trade Representative (USTR) prepares the report annually and the government of India does not engage with the process as it considers it an infringement on the country’s sovereignty. Indian official sources pointed out that the categorisation is arbitrary and mostly a political decision, in order to reward or punish a target country.
USIBC efforts are to ensure that the India retains its current position, i.e on the ‘priority watch list,’ which has ‘countries of major concern’ to the U.S. Government. There are two categories worse than this as per the Special 301 ranking and India’s faces the risk of sliding down. The lowest category will face U.S. sanctions also.
The U.S. Chamber of Commerce International IP Index released recently had India at the lowest but one among 38 countries ranked. Venezuela was the only country below India. The USIBC, which has 350 companies investing India as members, is also part of the US Chamber of Commerce. It is now trying to avert a potential setback at the USTR.
Dr. Aghi’s submission lists of a series of measures by the Indian government under Narendra Modi that he said strengthened IP regime in the country. He pointed out that the government did not appeal against the Delhi High Court’s decisions in MSD (Merck) v. Glenmark and Roche v. Cipla. “These decisions also reflected the increased capacity and competency of Indian judges to resolve patent infringement cases, assess damages, and order injunctive relief,” Dr. Aghi said.
Dr. Aghi said in 2015 Prime Minister Narendra Modi made several public statements “reaffirming his commitment to a strong and robust intellectual property regime.” “USIBC also took notice that the Government of India has denied several compulsory license applications, providing investor certainty and predictability that their patents will be upheld in India,” the submission said.
The passage of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Bill in December 2015 was also listed as proof of the Modi government’s commitment to stronger IP regime, as this would help speedy adjudication of IP disputes. The submission also pointed out that the government has also started a scheme for facilitating start-ups IP rights.
USIBC told the USTR that it might amend its filing once India releases its National IPR Policy that is awaited, which, Dr. Aghi said, “will further articulate the government’s intentions to increase the protection of IPR.” USIBC urged the USTR to not alter India’s position in the report until that time.
