Why India is sceptical about ACTA

"We are fully meeting our TRIPs obligations and even exceeding them on enforcement. If we are asked to go further, we'll consider it but we have other priorities at the moment. I'm not sure what India would gain from ACTA,” said V Bhaskar, joint secretary in the Department of Industrial Policy and Promotion.

The interview with Bhaskar is published in Managing IP’s latest IP Focus on India, which also includes a round-table on litigation, an interview with Greg Kalbaugh of the US-India Business Council and chapters on a wide range of IP issues in the country.

ACTA is close to being finalized after the latest draft was published this week. The discussions have involved 37 countries, but nearly all of them are developed markets. Notably, China, India, Brazil and Russia have played no part.

There is provision for other countries to join ACTA in the future, but it seems clear that India is unlikely to see membership as a priority.

At a WTO TRIPs Council meeting in June, India and China were recorded as being concerned that the Agreement could go beyond TRIPs and undermine the "existing balance of rights, obligations and flexibilities" in international IP agreements.

Underlining the country's approach to ACTA, Bhaskar rejected the possibility of India taking part in further IP-strengthening trade agreements, as some developing countries have done.

"Certain trade agreements have gone beyond TRIPs and that may be detrimental to countries' development," said Bhaskar, who joined the DIPP from the government’s finance department earlier this year. His responsibilities cover most IP rights, apart from copyright.

Asked whether he has any regrets about India signing up to TRIPs when it was agreed in the early 1990s, he said: "Whether TRIPs was good or bad is immaterial. It was signed and now we have to move forward. But you have to remember that TRIPs was part of a package – there were pluses and minuses and trade-offs were made."

This sceptical tendency is not limited to grand projects such as ACTA. For example, the past two years have seen the growth of so-called patent prosecution highways, as many national offices seek to cooperate to reduce duplication of work.

The highways have included countries such as China, Japan and Korea as well as those in Europe and North America.

But Bhaskar said India is "not comfortable at this stage" with such highways, as they assume a degree of harmonization of patent law, which India is not ready for. "For example, the [US Supreme Court's] Bilski decision would be a no-no in India," he says.

Despite being a member of the PCT, and despite a doubling in the number of patent applications in five years, therefore, India is committed to going it alone when it comes to examining and granting patents.

Bhaskar said India will maintain a balance between the "two different frames of reference" of upholding IP protection and encouraging development: "I have been on both sides; before this role, I spent 20 years working in development and living in some of the country's poorest districts."

(Managing IP, 08 October 2010)

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