This article has been written by Mr. Srivatsan Ananth, a 2nd year student of IFIM Law 

School, Bengaluru. 

Abstract:
Intellectual property, in simple words, refers to creations of the mind. IPR is a tool of protection, used to protect the creators who have invested their time, money, and energy on their creations. IPR, Intellectual Property Rights, are the exclusive rights given to people over their creations or inventions, of their own minds. The person who creates the subject matter has the right over the use of his or her invention for a definite period. 

The General Agreement on Tariffs and Trade (GATT) is a legal agreement between many countries, whose overall purpose was to promote international trade by reducing or eliminating trade barriers such as tariffs or quotas.  This article provides an overview of GATT’s effect on the IPR laws of India. 

Introduction:

The General Agreement on Tariffs and Trade is a multi-national trade treaty. The GATT was first discussed during the United Nations Conference on Trade and Employment and was the outcome of the failure of negotiating governments to create the International Trade Organisation (ITO). It was signed by 23 nations in Geneva in 1947, and was applied on a provisional basis in January 1948. It remained in effect until 1 January 1995, when World Trade Organisation (WTO) came into picture. WTO is the successor to the GATT, and the original GATT text (GATT 1947) is still in effect under the WTO framework, subject to the modifications of GATT 1994. The GATT, and its successor the WTO, have succeeded in reducing tariffs. The average tariff levels for the major GATT participants were about 22% in 1947, but were 5% in 1999. These tariff changes are the results of GATT and WTO.  

Need for GATT:

The General Agreement on Tariffs and Trade was established to promote international trade by reducing trade barriers such as tariffs and quotas. The aim was to create a framework for negotiation and cooperation among member countries to facilitate economic growth. The primary objectives of GATT were;

1. Promotion of trade – expansion of international trade by reducing barriers, tariffs and other restrictions.
2. Non-Discrimination – Encourage non-discriminatory trade policies to ensure that all member countries are treated equally so that there is fair competition. 
3. Prevention of Protectionism – Counteract protectionist measures and policies that could hinder free trade and contribute to economic isolationism.
4. Tariff reduction and negotiation: Reduce tariff and other hinderances, resolve disputes through negotiation rounds among member nations. 

GATT eventually evolved into the World Trade Organisation (WTO) in 1995, continuing its mission to regulate international trade and to resolve international trade disputes.

Effects of GATT on trade liberalisation:

The average tariff levels for the major GATT participants were about 22 per cent in 1947. As a result of the first negotiating rounds, tariffs were reduced in the GATT core of the United States, United Kingdom, Canada, and Australia, relative to other contracting parties and non-GATT participants. By 1962–67, the average tariff levels of GATT participants were about 15%. After the 1994, tariffs were under 5%.

In addition to facilitating applied tariff reductions, the early GATT’s contribution to trade liberalisation “include binding the negotiated tariff reductions for an extended period (made more permanent in 1955), establishing the generality of non-discrimination through Most-Favoured Nation (MFN) treatment and national treatment status, ensuring increased transparency of trade policy measures, and providing a forum for future negotiations and for the peaceful resolution of bilateral disputes. All of these elements contributed to the rationalization of trade policy and the reduction of trade barriers.”

Effects of GATT on IPR laws of India:

The WTO was established after the success of the GATT 1994 negotiations and is an heir to the GATT 1947 Agreement. As far as its relation with IPR is concerned, it succeeded in creating a link between trade regulations under GATT and the other existing international conventions on intellectual property like the Paris Convention, Berne Convention, Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations. The question was on the issue of whether GATT 1994 should draw its standard on IPRs from the existing GATT 1947 and enforce them or build a completely new IP code based on a system that would eliminate trade distortions. The result was the formation of trips, which was based on a system which would remove trade distortions but at the same time acknowledge the existing IP conventions.

According to Professor Thomas Cottier, an expert in WTO relations and Chief negotiator of TRIPS, “to some extent, building the trips Agreement was an effort to bring these prior agreements and disciplines into the realm of the GATT and trade law and to further refine and expand them to global law, yet without seeking full harmonization”.

The agreement on Trade – Related Aspects of Intellectual Property Rights (TRIPS) was established in 1995, as a part of World Trade Organisation, as a successor of GATT. This agreement significantly influenced the Indian IPR Laws as well globally. 

TRIPS established minimum standards for the protection of various forms of intellectual property, including patents, trademarks and copyrights. India being a member of WTO had to align its domestic intellectual property laws with the TRIPS agreement. 

When it comes to patents, India had to extend patent protection to various fields of technology and adhere to the minimum standards of TRIPS. This impacted the traditional approach to patenting. Copyright protection standards were strengthened, affecting the duration and scope of protection for creative works. 

The nature and scope of the obligations under the TRIPS agreement, hereinafter referred to as the ‘agreement’, permits the implementations of more extensive provisions for the protection of Intellectual Property Rights, than the ones provided in the agreement. The agreement is meant as a framework for minimum level of protection which has to be granted for the protection of intellectual property.

The agreement puts an obligation upon the member nations to comply with the provisions of the Paris convention of 1967, the Berne Convention, the Rome Convention and The Treaty on Intellectual Property in respect of Integrated Circuit. The agreement also provides for the generally accepted principles of International Law such as those of National Treatment and Most Favoured nations.

The agreement, brought about significant changes to the Indian Intellectual Property domain and regime. The patent law was amended to include the product patents under the ambit of the Indian patents law, furthermore inventions in the field of agriculture, pharmaceuticals and non-natural and genetically engineered life forms have been included under the ambit of patentable invention provided that the inventions demonstrate characteristics like novelty, inventive step, utility and written description. Lastly the term of patents was increased from 14 years to the now universally acknowledged 20 years. 

India was given an exemption to from implementing pharmaceutical and agrochemical product patents till 2005, but during this period of transition India was required to implement a ‘Mailbox’ provision which aimed to assign each application filed during this transition period with a filing date. India was also under an obligation to grant Exclusive Marketing Rights (EMR) for these patent applications which were in the mailbox.

However India, was not able to comply with these obligations immediately, although it tried to implement the Mailbox provision and the Exclusive Marketing Rights through Presidential order, the failure to implement an amendment for these provisions, prompted the US to use the WTO dispute settlement process to get the Indian parliament to comply with the obligations. The Indian government ultimately implemented the Mailbox provision and EMR via an amendment in 1999, this amendment then became obsolete after the 2005 amendment and have been repealed since. 

During India’s ten-year TRIPS transition period, 8926 mailbox applications were filed in the four branches of the Indian Patent Office, there were then deposited in a ‘black box’ and were not examined until 2005. Some applicants however did seek additional protection by way of the EMR for example, pharmaceutical companies like Novartis applied for the grant of EMR over their drugs, which was needed keeping in mind the highly competitive nature of the pharmaceutical industry.

EMR was however not granted without due process, the Indian law required that EMR could only be granted to applications which showed that:

• an examination by the Indian Patent Office had established that the invention did not fall within any of the categories of subject matter considered as non-patentable inventions like business methods, frivolous inventions, mere admixture, or within the scope of the prohibition on patenting inventions relating to atomic energy. 
• the mailbox/EMR applicant had filed a patent application for the same invention, claiming the “identical article or substance” in a “convention country” on or after January 1, 1995. 
• the mailbox/EMR applicant had been granted a patent by the convention country on or after the date it filed its mailbox application in India. 
• the convention country had issued “approval to sell or distribute the article or substance” in the convention country, “on the basis of appropriate tests conducted” in the convention country on or after January 1, 1995. 
• an authority on behalf of the Indian government had given approval to sell or distribute the article in India.
•  The Indian Patent amendment of 2005, was not however free from its controversy, it included provisions specifying certain subject matters as non-patentable, it also added a new definition for ‘inventive-step’ and also provided for procedures for pre- and post-grant opposition to the patent-application. The amendment also liberalised the framework for compulsory licencing of essential patents.  

Under the copyright laws provisions were amended to include Computer programs under the ambit of the copyright laws per article 10 of the agreement, this was change was brought to bring the copyright laws to the digital era. It also made commercial rental of computer programs the proprietary right of the owner of the copyright owner, thereby recognizing that computer programs not only have copyrightability, but also a commercial aspect. 

Under the trademark laws, well known trademarks, collective marks and service marks were included within its ambit, the scope of trademarks was enlarged to include figurative elements like shape, packing and combination of colours.

Reference

1. S.P. Shukla, “From GATT to WTO and beyond”, (UNU/World Institute for Development Economics Research, Paper no. 195), available at https://www.wider.unu.edu/sites/default/files/wp195.pdf.
2. TRIPS: Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994).
3. Cottier Thomas, “Working together towards trips” in Watal Jayashree and Taubman Antony edited, “The Making of the trips Agreement Personal Insights From The Uruguay Round Negotiations” wto, pg. 79, 2015.
4. Chapter 7, GATT 1994 and Exhaustion, Patent Exhaustion and International Trade Regulations by Santanu Mukherjee, 2023.