In 1989, when the Rajiv Gandhi government agreed to include intellectual property as part of the Uruguay Round of negotiations with common minimum standards, it was called a “Geneva Surrender”. India’s consent to include intellectual property rights (IPRs) led to the conclusion of the TRIPS Agreement. The justification provided then was that India would have been isolated.
At a recent meeting on the 30th anniversary of the TRIPS agreement at the WTO, several developing country trade envoys severely criticised the agreement on the grounds that it denied access to medicines to millions of people around the world, including in India.
Fast forward to 2024. The Modi government appears to have done something similar at the Geneva-based World Intellectual Properties Organization (WIPO), a United Nations body. This time, at the WIPO Diplomatic Conference, India seemingly agreed to the US’s proposals to eliminate policy space with regard to patent law and policies, especially on revocation of patent and the ability of the patent office to verify the authenticity of information.
WIPO Diplomatic Conference
WIPO’s conference was convened to conclude the negotiations on a treaty on intellectual property, genetic resources and associated traditional knowledge (GRATK). The purpose of the treaty is to check the misappropriation of traditional knowledge associated with genetic resources through patents popularly known as biopiracy.
The treaty, negotiated after 20 years of stalled discussions, mandates disclosure of country of origin of the GRATK or the source from where the patent applicant obtained the GRATK. These disclosers would enable the public or national biodiversity authority to check whether the patent applicant obtained the GRATK as per the access and benefit sharing provisions of the biodiversity law. National biodiversity laws allow access to genetic resources only on the basis of prior informed consent, which often obligates researchers to share the benefits of research and development with the providers of the genetic resources.
India was one of the countries who addressed this issue every early on. India’s Patents Act in 2002 made it mandatory for the patent applicant to “disclose the source and geographical origin of the biological material in the specification, when used in an invention”.
Further, failure to do so or wrongful disclosure is a ground for the revocation of the patent. It also constitutes a ground for pre- and post-grant opposition of patents on the ground that “the complete specification does not disclose or wrongly mentions the source or geographical origin of biological material used for the invention”.
Several analysts from civil society organisations maintained that the Basic Proposal of the treaty was flawed for many reasons. First, it does not make it compulsory to disclose the country of origin or source of GR when a patent application uses the genetic resources in the non-physical form such as digital sequence information (DSI). According to the treaty, the disclosure would be mandatory only when the patent application uses genetic material in its physical form. This limited scope of the disclosure drastically reduces the effectiveness of the treaty to check biopiracy because the vast majority of the patent applications based on GRATK are using DSI and therefore not required to make the disclosure. However, nothing in the treaty prevents a country from making the mandatory disclosure of DSI-based patent applications.
Apparently, the most damaging provisions in the Basic Proposal and the final version of the treaty are those which prohibit the patent office from verifying the information provided through the disclosure and the prohibition on the revocation of the patent on the ground of failure or wrongful disclosure. Under the treaty, revocation can be done only if the disclosure is with fraudulent intent.
India and the treaty
At least two provisions of the Basic Proposals of the treaty were contrary to the Indian Patents Act, said an analyst.
During the 10 days of negotiations of the Diplomatic Conference, India could not secure the language to safeguard the provisions of the Patents Act. The final treaty seemingly failed to address three major concerns. They include:
First, according to the Section 10. 4 (D) of the Indian Patents Act states “(D) disclose the source and geographical origin of the biological material in the specification, when used in an invention”. This means that any patent specification has to disclose the source and geographical origin of the biological material when used in the invention. As per the Treaty, mandatory disclosure applies only when the claimed invention in a patent application is based on GRATK. The definition of the term ‘based on’ adds additional conditions to qualify an invention for mandatory disclosure. The definition states: ““Based on” means that the genetic resources and/or traditional knowledge associated with genetic resources must have been necessary for the claimed invention, and that the claimed invention must depend on the specific properties of the genetic resources and/or on the traditional knowledge associated with genetic resources.” Thus, the Indian disclosure requirement is very broad and the treaty requirement is very narrow, and allows many GRATK based inventions which fall outside the scope of the definition to not make the mandatory disclosure of origin of the country or source of GRATK.
Second, Section 64.1 (p) of the Patents Act allows revocation of the patents “that the complete specification does not disclose or wrongly mentions the source or geographical origin of biological material used for the invention”. The treaty clearly prohibits revocation of patents on the ground oof failure or wrongful disclosure. Article 5.3 of the treaty states: “Subject to Article 5.4, no Contracting Party shall revoke, invalidate, or render unenforceable the conferred patent rights solely on the basis of an applicant’s failure to disclose the information specified in Article 3 of this Treaty.” The treaty permits the revocation only when the disclosure made on fraudulent ground’. Article 5.4 states: “Each Contracting Party may provide for post grant sanctions or remedies where there has been fraudulent intent in regard to the disclosure requirement in Article 3 of this Treaty, in accordance with its national law.”
Adding insult to injury, the US proposed the last day of the negotiation to add “extinguish” after the word revocation in Article 5.3. During the bilateral negation US agreed to replace the word “extinguish” with invalidate, or render unenforceable. Indian negotiators decided to give up the policy space available under the national Patents Act and accepted the US suggestion. This will prevent India from revoking a patent on the ground of failure or wrongful disclosure.
It is a common practice in international negotiations not to agree to proposals going against existing national law. In this present case India utterly failed to defend its own national law, which is adopted by the parliament. In other words, Modi’s Government appears to have surrendered the will of the people reflected in the Patents Act under the pressure from the US.
Government’s response
When asked whether the WIPO treaty goes against the existing Indian Patent Act, and the compulsions that led to India’s acceptance of the treaty, a spokesperson of the Ministry of Commerce and Industry dismissed the question and went on to justify treaty on grounds it “establishes minimum standards for disclosure of origin obligations on the patent applicant.”
To another question why India meekly accepted the language proposed by the US that goes against the Indian Patent Act, the spokesperson said: “these comments are unfounded and the language w.r.t to Article 5.3 is a negotiated outcome with all the groups and not a specific country. Incidentally, more than 150 countries signed the final act for adoption of the instrument into a legal treaty and 29 countries signed the treaty text and will undertake notification process.”
Ironically, the answers provided by the ministry spokesperson seemed somewhat similar to what India said in 1989.
The questionable surrender now in the WIPO Diplomatic Conference on GRATK is a reminder that the Modi government is amenable to give a short shrift to the country’s interests under pressure from Uncle Sam.
