India Still on Priority Watch List – USTR Special 301 Report 2022

The United States Office of Trade Representatives (USTR) released its Special 301 Report on April 27, 2022, an annual review of the state of intellectual property (IP) protection and enforcement among US trading partners. United States in the world.

The report identifies a wide range of concerns, including:

  • Challenges related to the fight against border and criminal counterfeits, including in the online environment;
  • High levels of online and broadcast piracy, including through illicit streaming devices;
  • Deficiencies in the protection and enforcement of trade secrets in countries;
  • A disturbing “indigenous innovation”
  • Forced technology transfer policies that may unfairly disadvantage U.S. rights holders in foreign markets; and
  • Other persistent systemic issues regarding intellectual property protection and enforcement, as well as market access, in many trading partners around the world.

2022 USTR Special 301 Report

The USTR Special Report 301 of 2022 cites India as “one of the toughest major economies in the world when it comes to protecting and enforcing intellectual property”. The report again included India’s name in the Priority Watch List. This year, along with India, six other nations have been included in the priority watch list, namely Argentina, Chile, China, Indonesia, Russia and Venezuela.

Takeaways from the USTR report

Position on India

CIPAM’s activities in promoting IPR awareness were applauded in the report and it indicates that CIPAM has maintained an active presence on social media.

That the USPTO and the Indian Department of Promotion of Industry and Internal Trade (DPIIT) have signed a new Memorandum of Understanding on Technical Cooperation Mechanisms in Intellectual Property, and that the DPIIT and the USPTO are in the process of concluding a two-year work plan to guide the implementation of the Memorandum.

India has notified the Design (Amendment) Rules 2021 which reduce fees for startups seeking design protection. The India-US Trade Policy Forum (TPF), which met three times in 2021, exchanged ideas and discussed developments on issues of patents, copyrights and trademarks, among others .

That at the twelfth TPF Ministerial Meeting held in November 2021, India clarified certain aspects of its patent and trademark systems and agreed to abide by the World Intellectual Property Organization (WIPO) Treaty on Performances and Phonograms and the WIPO Copyright Treaty, known collectively as the WIPO Internet Treaties. USTR’s engagement over the past year included engagement with India on the administration of its patent regime, including disclosure requirements, handling of confidential information, oppositions to applications patent.

Progress: positive or negative?

The report says that over the past year, India has remained inconsistent in its progress in intellectual property (IP) protection and enforcement. Although IP enforcement in India has improved on the online front, the increase in IP examination staff has reduced some patent and trademark examinations, and engagement with US- united on intellectual property issues has accelerated.

Patent

The issue of patents remained a major concern in terms of:

  1. Revocations of patents, lack of presumption of validity of patents;
  2. The report indicates that the issue of narrow patentability criteria has impacted companies in different sectors,
  • That filing a patent application is not cost-effective and time-consuming in terms of pre- and post-grant oppositions, long waiting periods to receive granted patents, and excessive reporting requirements ;
  1. India also maintains high tariffs on IP-intensive products such as medical devices, pharmaceuticals, etc.,
  2. Some stakeholders have also expressed concerns about unfair commercial use and unauthorized disclosure of any data for which the patent has not been granted or is only at the filing stage;
  3. It would be relevant to mention here that, in view of the aforementioned concerns, in December 2021, a Joint Parliamentary Committee took action and issued a revised Patent Office Practices and Procedures Manual along with the revised Form 27. Form 27 provides for the declaration of Working of the Patents;
  • The manual instructed patent examiners to review the IPO’s Centralized Access to Search and Examination (CASE) system and Digital Access Service (DAS) to find information filed by patent applicants. patent in other jurisdictions;
  • A stakeholder concern was revealed that this due diligence practice was not being followed;

Counterfeit products

  • The report states that India is one of the top five source economies for counterfeit goods, as reported by Organization for Economic Co-operation and Development (OECD) Trade Trends in Counterfeit and Pirated Goods (2019);
  • That India is also home to several markets that promote counterfeiting and piracy as identified in the Notorious Markets List 2021. The Notorious Markets List 2021 included Indian Markets Heera Panna (Mumbai), Kidderpore (Kolkata), New Delhi’s Palika Bazaar and Tank Road.

Trademark counterfeit

  • The report indicates that US trademark holders have reported excessive delays in trademark opposition proceedings. For example, it is unclear whether trademark owners can directly apply for recognition of “well-known” trademark status without having to rely on previous decisions of Indian courts or the trademark office;
  • As far as trade secrets are concerned, reports indicate that India mainly relies on contract law for which civil remedies are also unfeasible and criminal penalties are also absent in case of litigation;
  • Trade secrets are a growing concern within US and Indian businesses and the report suggests that “the adoption of trade secret legislation that comprehensively addresses these concerns”.

Copyright and piracy

  • The report indicates that copyright holders continue to report high levels of piracy;
  • With regard to section 31D, the report states that amending section 31D of the Copyright Act 1957 to allow the grant of statutory licenses for interactive transmissions would have serious implications for rights holders who make their content available online, and that the United States urges India to ensure consistency with international standards;
  • The report also says stakeholders have reported ongoing issues with unauthorized video game file sharing, signal theft by cable operators, commercial-scale photocopying, and unauthorized reprints of academic books, and circumvention of technological protection measures;
  • That court and government cases have raised concerns about the lack of copyright for a wide range of published works;

That there was ambiguity following the abolition of the IPAB in July 2021, as this raised questions about settling intellectual property cases and setting the copyright royalty rate. In reference to this point raised by the USTR, it would be pertinent to mention here that after the abolition of the IPAB, an Intellectual Property Division (IPD) was established by the High Court of Honorable Delhi and rules governing the operations of the IPD have also been formulated. . On a positive note, the Intellectual Property Division of the Delhi High Court is functional and intellectual property cases are adjudicated by this bench, which is specifically appointed to deal only with intellectual property cases. Therefore, it is expected that in the coming months, IP cases and disputes will be executed in a timely and expeditious manner in India;

  • The report also states that over the past year, India has taken strict measures against websites with pirated content and also urged the general public not to consume content from these pirated sites;

Conclusion

The 2022 edition of the report highlights several issues, but it is worth mentioning here that several initiatives are being taken to expedite trademark opposition and prosecution proceedings. Furthermore, the establishment of a special bench at the Delhi High Court to deal solely with intellectual property cases is also a commendable initiative and it is expected that in the coming years, the processes and handling of intellectual property are changing for the better. Mention should also be made here of the report of the Parliamentary Committee on the Review of the IPR Regime in India, which made several observations and recommendations on the intellectual property laws and regulations in India. In response to this report, the DPIIT has also released a report on action taken, which suggests that the government is considering several revisions to intellectual property laws as well as administrative changes that will strengthen India’s IPR regime in the time to come.

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