Crouching Tiger, Hidden Dragon: The TPP's IPR Chapter - Issues and Concerns for India
41 Pages Posted: 30 Dec 2014 Last revised: 12 Feb 2016
Date Written: February 2016
Having begun sometime in 2011, negotiations to draft the Trans Pacific Partnership Agreement (TPP) were concluded in a remarkable span of five years. Given the substantial sectoral coverage and wide membership, the potential market access gains make the TPP an attractive arrangement. It is in this context that many academics and analysts have made a strong pitch for India to join the TPP. However, some of the provisions in the TPP’s IPR Chapter which are more protectionist beyond the norms contained in the TRIPS Agreement are a major cause of concern from a public policy perspective. This Article reviews the policy and legal issues and concerns that would arise if India were to conform its patents, trademark and drug regulatory laws to the standards in the TPP’s IPR Chapter. Conformity for India, would mean that like other developing countries, it would have to amend many of its laws concerning IPR protection and drug regulation. This would erode the flexibilities available under TRIPS for safeguarding its socio-economic interests such as public health, and setting the platform for further TRIPS plus norms in the world trading system. Even the safeguards proposed in the TPP for interpreting and implementing these IP provisions in a manner conducive to public health do not assuage concerns since the nature of the IP protection standards do not leave any space for such interpretation and implementation. Based on the above analysis, this Article argues that India should very carefully consider seeking membership at the TPP if conforming to the protectionist standards in the TPP’s IPR Chapter would jeopardize its socio-economic interests.
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