India and the Trips: Some Notes on the Uruguay Round Negotiations

1. GATT, “Ministerial Declaration on the Uruguay Round,” 20 September 1986.

2. Lester Thurow of the Massachusetts Institute of Technology declared at the 1988 Davos Symposium that the “GATT is dead.” For a critical discussion about the different sets of scepticism directed at the GATT, See Jagdish N. Bhagwati, The World Trading System at Risk (New York, Harvester Wheatsheaf, 1991); also see Clyde V. Prestowitz, et al., The Last Gasp of GATTism, Harvard Business Review, March-April 1991, pp. 130-138.

3. See, for instance, Benjamin Cohen, “GATT Setback Won't Lead to Trade War,” Christian Science Monitor (Boston), January 10, 1991, p. 10; also, Jagdish N. Bhagwati, The World Trading System at Risk, op. cit.

4. See United Nations, New Issues in the Uruguay Round of Multilateral Trade Negotiations (New York, United Nations, July 1990), Series A. No 19. ST/CTC/SER.A/19.

7. Thomas Cottier , “The Prospects for Intellectual Property in GATT,” Common Market Law Review, vol. 28, Summer 1991, p. 339.

8. Since India does not have any major objection against copyrights and trade marks, this essay will exclusively focus on patents.

9. Generally, Intellectual Property Rights pertains to patents, copyrights, trade marks and allied rights that facilitate innovations, both scientific and technological, and artistic creation. See W. R. Cornish, Intellectual Property: Patents, Copyrights, Trade Marks and Allied Rights (London, Sweet & Maxwell, 1989).

10. For instance, according to the Article IX, marks of origin should not be used in such a way as to hamper international trade. Again, Article XX(d) of the GATT has placed the protection of intellectual property among the exceptions to the agreement. See Carlos Alberto Primo Brag, “The Economics of Intellectual Property Rights and the GATT: A view from the South,” Vanderbilt Journal of Transnational Law, vol. 22, 1989, pp. 243-64.

11. The TRIPS negotiating mandate reads: In order to reduce the distortions and impediments to international trade, and taking into account the need to promote effective and adequate protection of intellectual property rights, and to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade, the negotiations shall aim to clarify GATT provisions and elaborate as appropriate new rules and disciplines. Negotiations shall aim to develop a multilateral framework of principles, rules and disciplines dealing with International trade in counterfeit goods, taking into account work already undertaken in the GATT. These negotiations shall be without prejudice to other initiatives that may be taken in the World Intellectual Property Organization and elsewhere to deal with these matters. See GATT, “Ministerial Declaration on the Uruguay Round,” September 20, 1986.

12. Marshall A. Leaffer writes , “Intellectual property is simply too new of a concept to have developed a tradition of legal protection.” See his, “Protecting United States Intellectual Property Abroad: Toward a New Multilateralism,” Iowa Law Review, January 1991, p. 282.

13. Nicholas Hopkinson , The Uruguay Round And Prospects for World Trade, Conference report on Wilton Park Conference 342: 9-13 October 1989. (London: HMSO, 1990) P. 27.

14. See C. Raghavan, Recolonization: GATT, the Uruguay Round & the Third World (London, Zed Books, 1990), pp. 114–141.

15. Others being Argentina, Brazil, Chile, China, Colombia, Cuba, Egypt, Nigeria, Pakistan, Peru, Tanzania, Uruguay and Zimbabwe.

16. GATT, Submissions from India, MTN. GNG\NG. 11\W\37, dt. July 10, 1989.

17. Eric Wolfhard , “International Trade in Intellectual Property: The Emerging GATT regime,” University of Toronto Faculty of Law Review, vol. 49, Winter 1991, p. 138.

19. Under the 1856 Patents Act exclusive privileges were granted to the inventors of new manufacture for a period of 14 years. Although subsequently there were many amendments to this Act, it was in 1911 a consolidated Indian Patents and Designs Act was passed replacing all the previous Acts. Following the independence in 1947, a new look was given to the Patents Act. However, it was not until 1970 a comprehensive Patents Act could be passed. For a brief history of the Patents Act, see B. K. Keayla, Patents Regime, India Experience and Options Available (New Delhi, National Working Group on Patent Laws, n.d.).

20. The first Committee, Bakshi Tek Chand Committee, was appointed in 1948. The second one was Ayyangar Committee, appointed in 1957.

21. Excerpted in Keayla, Patents Regime, Indian Experience and Options Available, op. cit. p. 6.

22. GATT, Submissions from India, op. cit.

23. Jorg Reinbothe Anthony Howard , “The State of Play in the Negotiations on Trips (GATT/Uruguay Round),” European Intellectual Property Review , May 1991, p. 158.

24. Michael Gadbaw R. Timothy J. Richards , “Introduction,” in Gadbaw R. M. Richards T. J. (eds.) Intellectual Property Rights: Global Consensus, Global Conflict? (Boulder, Westview Press), p. 2.

25. Leaffer Marshall A. , “Protecting United States Intellectual Property Abroad: Toward a New Multilateralism,” Iowa Law Review , op. cit., p. 278.

26. See, for instance, C. Niranjan Rao, “Recent Developments in International Patent System,” Economic and Political Weekly, December 23-30, 1989.

27. See Thomas Mesevage, The Carrot and the Stick: Protecting U. S. Intellectual Property in Developing Countries,” Rutgers Computer & Technology Law Journal, vol. 17, 1991, pp. 421–450.

28. Carlos Alberto Primo Braga , “The Economics of Intellectual Property Rights and the GATT,” op. cit., p. 264.

30. Keayla , op. cit. p. 34.

31. GATT, Submissions from India, op. cit.

32. Deepak Nayyar , “Intellectual Property Rights and LDCs: Some Strategic Issues,” Economic and Political Weekly (Bombay), February 8, 1992 p. 273.

33. Nicholas Hopkinson , The Uruguay Round And Prospects for World Trade , op. cit., pp. 27–28.

34. Statement referred to in reply to Lok Sabha Unstared Question No. 3758 for answer on 31st August, 1990.

35. See “Govt. Urged to remain firm on GATT issue,” Business and Political Observer (New Delhi), dt. 20 Sept. 199.; “250 MPs caution Govt. on Patent regime,” Hindustan Times (New Delhi), 20 Sept. 1990; “Intellectual Property”, Times of India (Bombay) 21 Sept. 1990; “Govt. Cautioned Against US move,” Indian Express (New Delhi), 20 Sept 1990; and “MPs seek protection of Patent rights,” The Statesman (Calcutta), 20 Sept. 1990.

36. In Germany the Patent Law of 1877 recognized only process patent and product patent was introduced at much later stage. The U. S. took advantage of the German patents to boost its chemical industry after the World War II. In U. K. process patent was existent until 1949, and it introduced product patent only after it achieved technological self-sufficiency. In Switzerland the Patent Law was amended only in 1978 to include product patent. Still interesting, in Spain product patent became effective only this year.

37. Erick Wolfhard , “International Trade in Intellectual Property: The Emerging GATT regime,” op. cit. p. 139.

38. See I. G. Patel, “The Adjustment Problem,” Trade Policies for a Better Future: ‘The Leutwiler Report’, The GATT and the Uruguay Round (Dordrecht, Martinus Nijhoff Publishers, 1987), pp. 87–97.

39. Rapp and Rozek conclude: “The benefits are in the form of investment and technology flowing to the country that protects intellectual property, access by local firms to this technology and, ultimately, economic growth of the country as a whole. For pharmaceutical, the benefits of improved public health further argues in favour of strong intellectual property protection. The cost, in terms of lack of competition, suppressed growth of local firms and restrictive licensing clauses, either are quite low or exist independent of the intellectual property system.” See Richard T. Rapp and Richard P. Rozek, “Benefits and Costs of Intellectual Property Protection in Developing Country,” Journal of World Trade, vol. 14, no. 5, October 1990, p. 101.

40. See Praful Bidwai, “Ms Hills Delivers A Message,” The Times of India (New Delhi), Oct. 9, 1991.

41. Dhanjee and Chazournes write, “The disagreements over the applicability of the basic principles of the GATT and the IP conventions which characterize the TRIP negotiations thus hide a deeper discord over the extent to which countries should continue to maintain their sovereign right to adapt their economic systems, and specifically their IP regimes, to their perceptions of the public interest at the domestic level, or their national interests vis-a-vis other countries.” See Rajan Dhanjee and Laurence Boisson De Chazournes, “Trade Related Aaspects of Intellectual Property Rights (TRIPS): Objectives, Approaches and Basic Principles of the GATT and of Intellectual Property Conventions,” Journal of World Trade, vol. 24, October 1990, p. 14.

42. See, for instance, D. A. Desai, “Patent System in India,” in Conquest by Patent: On Patent Law and Policy, From the Occasional Papers presented at the National Seminar on Patent Laws (New Delhi, National Working Group on Patent Law, n.d).

43. See Richards Rosecrance, Rise of the Trading States: Commerce and Conquest in the Modern World (New York, Basic Books, 1986).

44. Francis Fukuyama , The End of History and the Last Man (New York, Free Press, 1992); also see his article, “End of History,” National Interest, Summer 1989.

45. In an elegant piece of work Keohane has explained the need for co-operation among nations in the p post-hegemonic world order. See Robert O. Keohane, After Hegemony: Cooperation and Discord in World Political Economy (Princeton, N. J: Princeton University Press, 1984).

46. Hans Ullrich , “GATT: Industrial Property Protection, Fair Trade and Development,” in Friedrich-Larl Beier Gerhard Schricker (ed.), GATT or WIPO? New Ways in the Intellectual Protection of Intellectual Property (Munich, Max Planck Institute for Foreign and International Patent, 1989), vol, II, p. 158.

47. There is an exhaustive literature on technology transfer. See, for instance, UNCTAD, Transfer and Development of Technology in Developing Countries: A Compendium of Policy Issues (New York, United Nations, 1990); UNCTAD, The Role of the Patent System in the Transfer of Technology to Developing Countries (New York, United Nations, 1975).

48. Surendra J. Patel, “Trade Related Intellectual Property in the Uruguay Round In GATT,” Excerpted in Conquest by Patent: On Patent Law and Policy, op. cit. note 41.

49. Editorial, “overblown Dispute,” The Times of India (New Delhi), October 9, 1191.

50. See, for instance, Biswajit Dhar and C. Niranjan Rao, “Dunkel Draft on TRIPS: Complete Denial of Developing Countries Interests,” Economic and Political Weekly (Bombay), February 8, 1992, pp. 275–278.

51. See Colleen Hamilton and John Whalley, “Coalitions in the Uruguay Round,” Weltwistschaftlisches Archiv: Review of World Economics, Band 125, Heft 3, 1989, pp. 547–61.

52. Praful Bidwai , “Ms Hills Delivers A Message,” op. cit.