TRIPS Agreement and Its Effect on Intellectual Property Laws in India: An AnalysisJune 10, 2023 By Shyam Parmar
The TRIPS Agreement is known to be a paradigmatic milestone in intellectual property law because it is the reason behind the way India is moving toward economic growth and global recognition. Signed in 1994, the agreement revolutionized India's IP policy, particularly the patent law, by creating a twist in the nation's approach to protecting and fostering innovation. So, are you ready to take a glimpse at the transformative impact of the TRIPS Agreement on India's intellectual property regime? Then let's begin with understanding the TRIPS Agreement and its intricate relationship with Indian IP law.
TRIPS Agreement: An Overview
On January 1st, 1995, the TRIPS Agreement which is considered to be the most comprehensive multilateral agreement on intellectual property rights to date, came into effect as a landmark move by the World Trade Organization (WTO). The TRIPS Agreement, which stands for Trade-Related Aspects of Intellectual Property Rights has three significant roles to play:
- helping trade with knowledge and innovation,
- getting rid of trade disputes related to members,
- and being flexible so they can get their own intellectual property and WTO policy objectives.
TRIPS is a set of rules concerning intellectual property rights that members of the World Trade Organization (WTO) must follow. A variety of intellectual property protections are included in these provisions, including patent protection, copyright, trademark protection, geographical indication protection, industrial design protection, and trade secret protection.
TRIPS stipulates several minimum standards for protecting and enforcing intellectual property rights. It aims to promote innovation, technology transfer, and the general public's welfare. There are also guidelines stating how member states of the WTO should protect and enforce intellectual property rights within their territories. These guidelines are designed to ensure that intellectual property rights are respected and protected within global trade and that the public is not adversely impacted by trade in intellectual property.
By delivering a collection of provisions, such as the right to prevent others from making, selling, or importing copies of a patented invention, the TRIPS Agreement provides a clear blueprint for how to harmonize intellectual property laws globally and facilitate international trade and ensure that member countries have consistent rules and obligations in place to protect intellectual property, thereby promoting fair competition and encouraging innovation and creativity.
TRIPS Agreement and Its Effect on Intellectual Property Laws in India
The TRIPS Agreement has had a big impact on India's intellectual property laws and regulations. As a member of the WTO, India had to make its intellectual property laws match the agreement's standards, which included giving patent protection for 20 years from the date of filing for any new invention, including pharmaceuticals. This provision has affected access to affordable medicines in India, as it has prevented the availability of generic drugs.
India's effort in complying with the TRIPS agreement is worth praising because several amendments and revisions were made to the Indian IP laws, especially in the patent law. Among such significant changes, a few that grabbed attention were - the introduction of product patent protection for pharmaceuticals and the establishment of a system for granting exclusive marketing rights for certain drugs, which were enforced with an aim to create a balance between incentivizing innovation and promoting access to affordable medicines.
In India, the patent registration process is governed by the Patents Act. Inventors or applicants have to follow a systematic procedure to obtain a patent which includes conducting a patent search, drafting a patent application with the help of a patent attorney, filing it with the Indian Patent Office, and undergoing examination and grant stages.
The Indian Patent Office plays a crucial role in the patent registration process. It examines patent applications for compliance with the statutory requirements and conducts a thorough review of the invention's novelty, inventive step, and industrial applicability. Once granted, the patent provides exclusive rights to the inventor, enabling them to prevent others from using, making, or selling the patented invention.
Challenges and Implementation Issues
Despite the collective and constant efforts to align Indian intellectual property laws with the WTO-negotiated TRIPS Agreement, India faces challenges and implementation issues. One of the main concerns is in forming a fair balance between protecting intellectual property rights and promoting access to affordable healthcare and essential medicines. In fact, India has been involved in patent-related disputes, particularly in the pharmaceutical sector, where the issue of affordable access to life-saving drugs arises.
In order to overcome these challenges, India is actively implementing a range of initiatives. conducting awareness campaigns, fostering capacity building, and streamlining enforcement mechanisms. Collaboration between stakeholders, including government, industry, and academia, is also essential to finding the right balance and fostering innovation in the country.
How TRIPS Affected the Indian Pharmaceutical Industry?
India had more flexible patent laws in the past that allowed for the production and sale of generic versions of patented drugs. Especially in countries with limited healthcare budgets, generic drugs which are lower-cost versions of brand-name drugs, provide affordable and accessible medicines
A system existed in India prior to the TRIPS Agreement that permitted generic manufacturers to manufacture and sell patented drugs by making small modifications to their manufacturing processes. In this way, "process patents" enabled India to produce affordable generic medicines and become a "pharmacy of the developing world." After the TRIPS Agreement was implemented, India switched to a "product patent" system, which granted exclusive rights to the specific drug, regardless of how it was manufactured.
The shift to product patents had a direct impact on the availability and affordability of medicines in India. The introduction of stronger patent protection increased the prices of patented drugs, making them less accessible to the general population. This posed challenges, particularly in the healthcare sector, where access to affordable medicines is crucial.
Access To Affordable Medicines In India Under Trips
The TRIPS Agreement included flexibilities and safeguards to address public health concerns. One such provision is the ability for countries to issue compulsory licenses, which allow the government to grant licenses to third parties to produce generic versions of patented drugs without the consent of the patent holder. This provision helps ensure access to affordable medicines, especially in situations of public health emergencies or when patented drugs are unaffordable or inaccessible to a significant portion of the population. This was demonstrated in 2012 when India granted a compulsory license for a patented cancer drug; to ensure its availability at an affordable price.
Furthermore, India has been supportive of efforts to promote access to affordable medicines globally. It has been actively involved in discussions at international forums, advocating for policies that prioritize public health and access to medicines, including initiatives like the Doha Declaration on TRIPS and Public Health.
Overall, the impact of the TRIPS Agreement on the Indian pharmaceutical industry can be best defined as an assortment of various things. While it has raised challenges for generic drug manufacturers and access to affordable medicines, it has also pushed India to widen its research and development capabilities and has opened up a door of opportunities for Indian companies to innovate and protect their own intellectual property. Additionally, the flexibilities within the TRIPS Agreement provide avenues for India to balance the protection of intellectual property rights with the goal of ensuring access to essential medicines for its population.
The TRIPS Agreement has significantly influenced intellectual property laws in India. Its implementation has brought about changes in the patent system, copyright protection, trademark regulations, and access to medicines. While it has provided a framework for protecting intellectual property rights, it has also posed challenges in balancing these rights with the need for affordable medicines and promoting innovation.
As India continues to navigate the complexities of intellectual property laws and the TRIPS Agreement, it is essential to strike a balance that promotes innovation, safeguards public health, and ensures access to essential medicines for its population.
To understand more about the TRIPS Agreement and its impact on Indian IP Law, get in touch with the IP lawyers of Parker and Paker Co. LLP.