|
India has once again been placed on the Priority Watch List in the 2026 Special 301 Report released on April 30 by the Office of the United States Trade Representative (USTR). The USTR, which conducts Special 301 Review every year to identify countries that deny adequate and effective protection of IPR, in its latest report placed six countries, Chile, China, India, Indonesia, Russia and Venezuela, on the list. The annual report reviews how effectively US trading partners safeguard IP rights such as patents, copyrights and trademarks. The report said India has made some progress on IP protection, but several issues remain. It cited problems in the patent system, including delays, strict rules leading to rejections, and the possibility of revocations. The report also pointed to weak enforcement, with continued piracy and counterfeiting and limited coordination among agencies. The report raised concerns about high import duties on IP-related products and gaps in protection of trade secrets and test data. It also noted delays in legal processes, including trademark and copyright cases. USTR is the United States government agency responsible for developing and recommending United States trade policy to the President of the US. The Special 301 process is not legally binding; it is an administrative review used by the US as a pressure tool. It does not impose immediate penalties but can lead to negotiations, investigations, and sometimes trade action if issues escalate. For India, the report has no direct legal impact but signals continued US push on IP issues. Obviously, the latest USTR action reflects continued US pressure over pharmaceutical-related IP protection and enforcement in India.
But unfortunately, while finalizing the Report the USTR seems to have conveniently overlooked the substantial and consistent progress made by India on number of issues on which the US companies have for long been raising apprehensions and concerns including that of IP environment in India. In the Report, the USTR itself has admitted that India has made some remarkable progress on the IP front. But, at the behest of the big American pharmaceutical corporations, the US administration chose once again to place India in the Priority Watch List. On the contentious issue of Section 3(d) of the Indian Patents Act, the USTR should have taken into consideration the fact that the Act effectively prohibits only secondary patents aimed at increasing the patent monopoly for a drug - the so-called ‘evergreening’ of patents. The US also questions India's compulsory licensing rules, saying they create uncertainty. But again, the fact remains that its use has been extremely limited - only once in Bayer Corporation vs. Natco Pharma Ltd - which reflects restraint rather than misuse. Another concern is the lack of data exclusivity for pharmaceuticals, as it allows generic manufacturers to rely on originator data. Data exclusivity protects clinical trial data for a fixed period even if the product is not under patent. But, TRIPS does not mandate such exclusivity, and introducing it would delay generics and significantly raise drug costs. So, the substantial and consistent progress made by India should not have been overlooked by the USTR. It should have kept in mind that the Indian patent law and its application does not deny adequate and effective protection of IPR; nor does it deny fair and equitable market access to the US pharmaceutical industry which relies on IP protection. It is now obvious that the US administration has retained India on the List, even after making such a rapid progress on number of issues, as a pressure tactic. India should not fall prey to it and the country should not be allowed to be browbeaten by the US administration.
|