The Economic Times recently reported that the negotiations for Free Trade Agreement (FTA) between India and European Free Trade Association, a four member group comprising Switzerland, Iceland, Norway and Liechtenstein has been delayed due to continuing disagreement on intellectual property clauses.
As reported by The Economic Times, EFTA representatives were not satisfied with the Intellectual Property regime in India and demanded India to commit more to enforce stringent measures for IP protection. According to the report, the EFTA representatives are asking for the inclusion of clauses related to mutual recognition of Geographical Indications and data exclusivity within the scope of this FTA, which are not permissible under the current Indian legislation.
India and the EFTA have been negotiating an FTA since January 2008 and the negotiations around the FTA, like its counterparts all over the world, were taking place in a shroud of secrecy. It is pertinent to note that the members of EFTA, particularly Switzerland, representing multi-national Corporations like Sandoz, Roche, Novartis and Syngenta have strong interests in intellectual property regulations, which include patent term extension, data exclusivity, stringent enforcement mechanisms, altered and extended patentability criteria, signing of the UPOV convention etc.
Although, the current report talks only about inclusion of mutual GI recognition and data exclusivity provisions in the FTA, the existing FTA’s entered by EFTA with other countries raises serious apprehensions about inclusions of TRIPS Plus provisions. A comparison of IP chapters in current EFTA trade agreements is given below:-
|TRIPS PLUS PROVISION||EFTA –TURKEY (1996)||EFTA- SINGAPORE (2003)||EFTA- KOREA (2006)|
|Accession to International Agreements||Adherence to UPOV, Budapest and Madrid Protocol, Rome Convention||Adherence to Geneva Act of Hague Agreement, WCT, WPPT, WIPO Resolution of well-known marks||WCT, WPPT, Rome Convention|
|Patent Term||Same as TRIPS||Compensatory term extension of 5 years of pharmaceutical patents on ground of delay in regulatory / marketing approval process||Compensatory term extension of 5 years of pharmaceutical patents on ground of delay on regulatory process|
|Data Exclusivity||NA||NA||Test data shall be protected for an adequate number of years (5 years based on US – Korea FTA)|
This apprehension becomes more serious if we take into consideration the leaked text of an intellectual property chapter of India- EFTA agreement, released by the NGO Don’t Trade Our Lives Away on November 25, 2011. The key provision under the leaked text is listed below:
|TRIPS Plus Provisions||Provision under the leaked text|
|Accession to International Agreements||Art 2 (2) – Accession to Madrid Protocol, Geneva Act of the Hague Agreement concerning the International Registration of Industrial Designs, WCT, WPPT. Parties to be guided by WIPO Joint Recommendation Concerning Provisions on Protection of Well Known marks|
|Data Exclusivity||Article 6 (2) – A period of 6 years from the date of Marketing Approval|
|Geographical Indication||Article 8 – Enhanced protection- Parties to provide a legal means for interested parties to prevent the use of a geographical indication for agricultural products and foodstuffs for identical or comparable products not originating in the place indicated by the designation in question|
If these provisions are converted into a legal agreement, then India will have to compromise its stand on several key issues, including data exclusivity before the WTO and this would have a severe impact on our generic pharma industry. Further, entering into such bilateral and pluri-lateral arrangements by a developing nation like India would definitely weaken the delicate promise of multi-lateralism that the WTO intended to achieve.
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