TRIPS and the Indian Patent Regime

Abstract

Trade liberalisation, burgeoning technological development and growing significance of intellectual property rights, have catalysed the change in global economic paradigm. In tandem with this flux in the contours of international trade, amendments have constantly been introduced in the sphere of national laws. A veritable example of the ripples created by international developments across national frontiers is that of General Agreement on Tariff and Trade (GATT), later subsumed by World Trade Organisation (WTO), which inaugurated the free trade regime. The advent of GATT/ WTO necessitated certain changes in domestic laws of member states, including laws appertaining to intellectual property rights. As the vanguard for protection of human ingenuity, creativity, innovation and enterprise; intellectual property rights have been elevated to a venerable position. The incontrovertible significance of IPRs is further reinforced in the contemporary knowledge driven economies, which thrive on innovation, enterprise and industrial-technical progress. However, owing to rapid technological advancement, IPR protected goods can be easily imitated and pirated. Under such circumstances, the exporters of products endowed with IPRs strive to protect their goods from unwarranted encroachments and imitation in importing countries. Differential treatment of imported IP protected goods also leads to ludicrous results. In order to meet such situations and to ensure that IPRs do not obliterate free trade, the Agreement on Trade Related Aspects of Intellectual Property Rights provides for minimum standards of IP protection. All the WTO member countries are under an obligation to comply with the provisions of TRIPs agreement. India, as a WTO member reconciled the divergences between TRIPs and its domestic intellectual property laws, most importantly the Indian Patent Act, 1970. But India's journey towards TRIPs compliance has been enmeshed by the mailbox dispute and the ensuing amendments in 1999, 2002 and 2005. Against this backdrop, the paper attempts to delve into some of the significant issues like the rationale behind the TRIPs agreement, the TRIPs mandate with regard to Patent Rights and its impact on the Indian Patent Regime. Besides briefly dealing with the Pre-TRIPs position, the paper expatiates upon the Post-TRIPs Regime of Patent Rights in India. The involvement of India in the mailbox dispute catapulted some very important changes in the Indian Patent Act, 1970 and therefore the case has been dealt with in sufficient detail.