Chapter 1

Introduction

Importance of IPRs under the TRIPS: India’s Need for It

This research deals with the importance of IPRs in general and patent in particular
under the
newly established Trade Related Aspects of Intellectual Property Rights (TRIPS) of
the World
Trade Organization (WTO). It brings to light how the establishment of transnational
Intellectual
Property (IP) regulation and its governance by an overwhelming majority of the
member states
of the UN has been considered as one of the most notable contribution in global
cooperation in
the emerging knowledge economy of the 19th and 20th century. ‗By 2011, 184
contracting parties
to the World Intellectual Property Organization (WIPO) Convention, 173 contracting
parties to
the Paris Convention, 164 signatories of the Berne Convention and 153 signatories
of the
Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) have
committed
themselves to transnational IP standards and their enforcement under the auspices
of global
governance institutions-such as the WTO‘ (Wechsler 2011). Herein both the views of
the
proponents and opponents of the new IP regime are discussed with an emphasis on the
problems
faced by developing countries. How globalization of IPRs has taken a new turn under
TRIPS is
shown. How patent confers special privileges to its owner is briefly highlighted
here. A note on
why TRIPS is required and its comparison with the previous international
conventions are
analysed to show the specialties in the former. Then why India needed to be a part
of this new
international IP regime is presented with a background on how the country had to
come through
a long journey to comply with the obligations of the TRIPS. Finally, an overview of
the TRIPS
Agreement is given with a comprehensive discussion by putting forward the existing
opposing
views on it.

The protection of IPRs may not be an age old idea as it exists today, but the very
idea of it is
quite old. Also ‗the notion of IP at its simplest suggests that ideas and knowledge
can be parceled
into separable and transferable identifiable properties which enjoy similar
characteristics to
material property‘ (May 2010: 51). The term period for an IP right is always
limited and once the
state protected term gets over, the IPR of a particular thing or an idea becomes
public. So in this
regard, the benefit from an IPR flows back to the common man and it becomes a
public property.
As May (2010) argues, ‗this return of intellectual property to the public realm is
one of its key
defining qualities. Unlike, material property, which is usually owned in perpetuity
(although of
course actual ownership may pass between individuals and generations), intellectual
property
only exists as property in temporary sense. IP is a continuing and explicit balance
between the
private ownership of the fruits of intellectual labour and social benefit of the
distribution of
useful ideas or knowledge.‘ This reflects the link between the private and public
dimensions of
IPR in which value creation is shown for the greater interest of society.

17
There has been an established argument that social benefits can be achieved from
the
dissemination and creation of knowledge and information. This has become more
common with
the movement of globalization. This creation of knowledge and information in turn
underpins the
legal construction of IPRs as of today. Thus all IPRs create a fine balance between
the private
right for reward of the original owner and the public requirements for availability
of information
and knowledge in an unconstrained manner.

Importance of IPRs in the TRIPS Era

After the establishment of the WTO, the IP rights have assumed more importance than
what they
used to be before. The new WTO Act i. e. Trade Related Aspects of Intellectual
Property Rights
(TRIPS) Agreement has bolstered the IP protection regime with new provisions and it
indirectly
has given an extraordinary edge to the developed countries over the developing
ones. It is felt
that the reasons behind IPRs getting overwhelming weightage ‗might be the feeling
that
advanced industrial societies are undergoing a fundamental transformation from
capital and
labour based economies into knowledge economies as an aftermath of the recent
information
technology revolution‘ (May 2000: 4). The information technology age has in fact
truly
expanded the global reach of the knowledge economy and it has given IPRs a new
dimension,
particularly from the point of view of economic benefits. Thus, we can rightly
state that ‗Two
interesting features of a knowledge-based economy are the astonishing speed and
intensity of
innovation and emergence of new technologies enabling dissemination of
knowledge/information in an unprecedented manner‘ (Gopalakrishnan and Agitha 2009:
1). The
fast dissemination of knowledge has made it more vulnerable and there is a high
risk of free
riders using it quite often without the knowledge of the original owner. Therefore,
combined
with the technological advancement and the risk of being used by free riders, a
global demand
for strengthening IP protection can be well justified.

The proponents of expanded IP protection try to justify their demand by

arguing that
social progress in the technological age is inextricably connected with the
creation and protection
of intellectual property (Epstein 2006). Mazzoleni and Nelson (1998) advocate that
adequate
protection of IP is highly required for promoting confidence among the investors in
research and
development. This is simply based on the popular belief that IP rights are very
essential for
industrial and economic development of any nation particularly in a post-TRIPS
globalized era.
The proponents of IP expansion say that IP acts as an ‗incentive to innovate and to
disclose the
technology so as to facilitate further growth in science and technology. The
progress of science
and technology in the developed countries and the emergence of multinational
corporations
(MNCs) catering to the economic and industrial development are cited as examples in
this
regard‘ (Gopalakrishnan and Agitha 2009: 2). It is true that MNCs have contributed
towards the
growth of the developed countries, but it should also be kept in mind that these
nations were
already way ahead of the third world nations in regard to their enriched human
resources,
investment and infrastructure for development. Therefore it is not simply science
and technology
which has brought superior economic development to the advanced nations.
18
 However, some IP scholars were of the view that ‗developing countries could
not reap
the benefits of increased IPRs as it attracts more foreign direct investment and
accelerate transfer
of technology between countries, ensuring that all countries enjoy the benefit‘
(Branstetter 2005).
But the reality in developing countries is somewhat different. Most of them
completely inherited
their IP laws from the former colonial empires and did not develop or intend to
have their own
set of laws even after their independence, except a few. Furthermore, lack of
availability of
adequate institutional infrastructure and expertise became a key issue for
implementing the much
advanced TRIPS Agreement. Again, without having the basic minimum industrial set
up, IP
enlargement might prove dangerous for developing nations already beset with other
burning
problems like poverty, AIDS, power shortage etc. This is not the case with all the
developing
nations, because ‗the availability of expertise was higher in several of the larger
and more
economically advanced developing countries such as Argentina, Brazil, Chile, India,
Korea,
Mexico and South Africa. Governments in each of these countries had greater
substantive
experience with the IP system. In India for instance, the British colonisers left a
considerable IP
technical and legal expertise behind‘ (Deere 2011: 198).

This shows that all developing countries were not ill-equipped to receive
or implement
the TRIPS Agreement, but of course they were not at par with the advanced western
countries.
Actually, the developed countries in the past and newly industrialised nations of
today,
implemented the TRIPS only after they all have reached a stage when this could
really bring
benefit to them. Sell strongly argues that ‗Developed countries in their initial
stages of
development, employed flexible norms to build their industrial base and promoted
easy access to
information to develop technological competence‘ (2003). Thus we can see that the
TRIPS
Agreement from all accounts would ensure maximum benefit to the developed
countries. The
mix of MNCs and the governments of the developed countries thus wanted that a
uniform IP
standard should follow across the world so that their business and investment in
IPRs would not
go to the free riders. As Drahos says, ‗Before the Uruguay Round, the GATT dealt
with trade in
goods and not trade in knowledge‘ (2002: 68). So, the new knowledge economy,
centred around
‗information revolution‘ has much in store for countries like the US and the rest
of the developed
world. From this point only we can clearly outline that ‗The genesis of the TRIPS
negotiations
lies primarily in the concern of the US and other developed countries that without
a redrafting of
the rules governing the relation of trade and IPRs, they could not sufficiently
protect their trade
interests. It was estimated by the US that the proportion of total world trade,
which is IP-related
had doubled since the Second World War‘ (Slaughter 1990). Therefore, the TRIPS
Agreement
has been brought in to serve the interests of the developed nations in general and
US and many
others like her in particular.

Thus, TRIPS has remained as a contested agreement so far since 1995. It

started
immediately upon the conclusion of the TRIPS as the developed countries demanded
faster
implementation, stringent enforcement and harmonization of IP standards, whereas
the

19
developing countries demanded modifications and expansion of flexibilities to
adjust their varied
levels of development.

However, the globalization of IPRs has taken a new shape under the TRIPS
regime. With
‗the changing commercial opportunities and the expansion of social movements
concerned about
TRIPS drew a multiplying array of players agitating for or against stronger IP
protection into the
implementation game. The contested nature of TRIPS spurred a dynamic interaction
between
implementation efforts and ongoing international negotiations where the competing
teams sought
to remake the terms of the original TRIPS bargain and assert their perspectives on
the
appropriate scope and nature of international IP regulation‘ (Deere 2011: 305).

Even beyond the TRIPS i.e. TRIPS plus, the same acrimonious debate between
the North
and the South continues as of today. The future IP regulation at global level will
reflect not only
the assessments of the past but also the possible future scenarios in which there
is growing
possibility of collaboration between the North and the South. This is already
happening in the
lines of rapid expansion of collaboration models for enhancing innovation and
sharing of
knowledge. Deere advocates that ‗As the knowledge economy grows, government
agencies,
scientists, public interest groups, and industries from developing and developed
countries will
share priorities and concerns with respect to IP policy that defy a North-South
divide. At the
international level, Access to Knowledge (A2K) movement is also galvanizing
interest in new
models for ensuring public access to the knowledge, ideas, and information people
need in order
to address social problems‘ (ibid: 323). So barring differences and debates between
the North
and the South, the TRIPS Agreement would take us nearer to a globally harmonious IP
regime.

However, this research work will solely focus on one set of IPRs i.e. patents. In
this section, we
will be dealing with the basic legal and institutional machinery of patenting and
the rationale
behind it. Of course, a patent is a legal title which protects an original
invention which comprises
of three standard criteria‘s: novelty, non-obviousness and the industrial
applicability.

A patent shall confer on its owner on its owner the following exclusive rights:

a. Where the subject matter of a patent is a product to prevent third parties

not having the
owner‘s consent from the facts of: making, using, offering for sale, selling
or importing
for these purposes that product;
 b. Where the subject matter of a patent is a process, to prevent third parties
not having the
owner‘s consent from the act of using the process, and from the acts of:
using, offering
for sale, selling, or importing for these purposes at least the product
obtained directly by
that process.
c. Patent owners shall also have the right to assign, or transfer by succession,
the patent and
to conclude licensing contracts. (Art. 28 of the TRIPS).

Sometimes, patents are called as industrial property also to refer to technological

advances that
can be utilized in manufacturing or other commercial activities. Thus May (2010: 6)
stipulates

20
that ‗Patents are institutionalized bargain between the state and inventors. The
state agrees to
establish the legal mechanisms that ensure that the inventors can extract payment
for their idea
when others use it (for the lifetime of the patent), while the inventors allow the
state to lodge the
idea in its public records, where it can be accessed by interested parties.‘

Patents in History

The first privilege rewarding inventions were granted in Northern Italy in the late
middle ages in
the independent cities. But this early practice was formalized for the first time
in Venice by
issuing the historic ‗Patent Statute of Venice‘ in 19 March, 1474. This Statute had
some
important features which gradually appeared in later patent systems. The landmark
features of
the Venice Statute are:

a. A patent is defined as a right to exclude.

b. The aim of the system is to incentivize invention and import of new
techniques.
c. Patented techniques should be new to Venice (our dominion), not
necessarily to the
entire world.
d. The invention should be practical (reduced to perfection): no patents
shall be given on
mere ideas or scientific discoveries.
e. There is examination of patent application (by the Office of our General
Welfare
Board). The usefulness of the invention to the Venetian economy is the
primary
criterion for assessing its patentability.
f. The duration is standardized (to ten years).
g. In case of alleged infringement, the patentee will go to court (Gullec
and Potterie
2007: 17).

Thus the Venetian Statute is significant for being a statute first and second, it
explicitly provides
a system for attracting the existing techniques while encouraging creating new
things at home.
This statute had indirectly made the long road for patents to become market
instruments and it
proved absolutely true in the long run. By the end of the 16 th century, the new
industries sprang
up across Europe, particularly England. Hence to protect new industrial and
manufacturing
techniques and to prevent the misuse of patent grants by the Crown, the British
Parliament
introduced one of the most historic patent statutes in 1623. This was known as ‗The
Statute of
Monopolies‘ which codifies the grant of patents in line with the Venetian Statute
(ibid: 18):

a. A patent is an exclusive right and should be considered as an

exception to
competition which remains the rule.
 b. The patent must be granted to the first and true inventor, a broad
category which
in fact includes importers as later cases would show.
c. The invention must not result in the raising of prices and it must
not hurt trade.
d. The patent is granted for a limited duration of maximum 14 years
(corresponding
in fact to two terms for an apprenticeship in a British craftsman).

21
This statute in a way was introduced by the state to encourage competition among
the inventors.
As Gullec and Potterie correctly argue that in those days, ‗The patent system was
born under
mercantilist auspices. The role of patents was not to support competitive markets,
but to
strengthen the economic and technological foundations of the state. However, in
order to reach
this objective, the Mercantilist State had to rely on market-type of incentives
(2007: 20).
Gradually, these experiences helped in the crystallization of modern patent systems
not from one
particular agency or source, but sporadically across the world, particularly in the
developed
Europe and USA.

Globalization of Intellectual Property

The globalization of the international economy has had an impact on intellectual

property rights
(IPRs). First, the growing importance of international markets for patented goods
has led to
pressure from innovators in developed countries for the same or similar levels of
property right
protection be provided in foreign markets as are provided at home. Second, the
success of trade
liberalization has strengthened concerns that differences in the way national IPRs
are established
and enforced could lead to non-tariff barriers to trade (Falvey et al. 2002). This
further suggests
that the existence of global market influences the choice of nations for a
particular patent system
or an IPR system as a whole. With the Uruguay Round, the discussion on IPRs started
and the
result was the TRIPS Agreement which has brought a uniform global IPR regime across
the
world. But the new regime had to face a strong resistance from the developing
countries and less
developed countries (LDCs) which still continue.

The commercial potential of IPRs has increased since the 19 th century, but with
the establishment
of World Intellectual Property Organization (WIPO) in 1967, the 1970s has witnessed
an
unparalleled interest, popularization and investment in this field. Truly, with
WIPO, the long
awaited institutionalization of IPRs under the UN has started. Dutfield and
Suthersanen (2008:
22) stipulates that ‗Intellectual Property rule making has become ever more
responsive to this
increased pressure, as well as to the willingness of national governments keen to
enhance the
competitiveness their economies to effectively give transnational corporations what
they want, at
least most of the time. Consequently, since 1960s and 1970s and up to the present,
developed
country intellectual property regimes have undergone some quite profound changes.‘

Dutfield (2003) talks about three significant changes:

 a. ‗The first of these is the widening of protectable subject matter, including
a tendency to
reduce or eliminate exceptions.‘ For example the application of patent
protection to even
computer programmes, life forms, cells, proteins etc.
b. ‗The second change is the creation of new rights. Examples of new systems
created
during the late 20th century included plant variety protection (or plant
breeder‘s rights)
and the right to layout designs of integrated circuits‘.

22
 c. ‗The third change was the progressive standardization of the basic features
of IPRs. For
instance, patent regulations increasingly provide 20 year protection terms,
require prior
art searches for novelty and examinations for inventive step (or non-
obviousness), assign
right to the first applicant rather the first inventor, and provide
protection for inventions
in a widening range of industries and technological fields.‘

With these new changes, the movement towards a global IP regime started and
finally, the
WTO-TRIPS Agreement has brought a historic moment for the world. Indeed, the
TRIPS
Agreement formally initiated the much awaited ‗globalization of IP‘.

However, the national differences in the treatment of IPRs were an indirect

impediment to
global trade before. As a result, the global transactions in the form of
investment and
exchange in the field of IP was much lesser. ‗For this reason, many nations of
the world have
banded together to try to harmonise their treatment of IP rights. Many of the
international and
regional trade treaties-General Agreement on Tariffs and Trade (GATT), European
Union
(EU) , the North American Free Trade Agreement (NAFTA), include provisions
requiring
member countries to harmonise the registration and protection of IP rights‘
(Shippey 2000:
25).

IP under TRIPS Regime

The IP under the TRIPS regime has taken a new dimension. The link between IP and
trade in the
WTO calls for explanation (Gadbaw 1989). As Matsushita et al. argues unlike most
other
Uruguay Round Agreement, the Agreement on TRIPS is not an elaboration of a subject
covered
in GATT 1947 (2006: 696-97).

Why the TRIPS Agreement needed?

The growing importance of IPRs has become a global phenomenon across the developed,
developing and the LDCs with the coming of globalization. Hence, an upcoming demand
for an
international IP regime was very much realized among all the nations to come out of
the
bottlenecks already unleased by the previous Paris and Berne conventions. It is
felt that the
TRIPS Agreement has overcome many of the pre-existing territorial limitations on
IPR out of
which two are very significant:

a. ‗First, the growing capacity of manufacturers in developing countries to

penetrate distant
markets for traditional industrial products has forced the developed
countries to rely more
 heavily on their comparative advantages in production of intellectual goods
than in the
past;
b. Secondly, the rise of knowledge-based industries altered the nature of
competition and
disrupted the equilibrium that had resulted from more traditional comparative
advantages.
Not only is the cost of research and development often disproportionately
higher than in
the past, but the resulting innovation embodied in today‘s high tech products
has

23
 increasingly become more vulnerable to free-riding appropriators (See
Reichman 1994;
Almeida 1990).

This shows that the market access for developing countries thus constituted a
bargaining chip to
be exchanged for greater protection of intellectual goods within a structured
global market place
(See Hartridge and Subramanian 1989; Abbott 1989; Leafer 1991). In fact, both the
Paris and
Berne conventions as revised successively in 1967 and in 1971, ‗leaves notable gaps
and
loopholes that will offset some of the gains accruing from the exercise, especially
with respect to
non-traditional objects of IP protection. (Correa and Yusuf 2008: 25). Therefore,
the TRIPS
Agreement substantially elevates the bar of protection particularly for patents in
comparison to
all the existing international IP laws and conventions.

The debates between the developed and the developing countries in regard to the
necessity and
implementation of TRIPS still continue. The primary question was: given the
existence of the
WIPO as the sole organ to protect the IP rights and a host of international IP
conventions, why
was the TRIPS necessary or how was it different from the earlier IP conventions?

If we closely analyse the global dynamics before 1995, we can highlight mainly two
major
considerations which finally brought the WTO-TRIPS Agreement—

a. First, the United States and other developed countries failed to in their
attempts to
increase normative standards of protection for IP through WIPO and the Paris
and Berne
Conventions.
b. Second, these two conventions leave enforcement of IP through judicial and
administrative remedies to local decisions (Matsushita et al 2006: 704).

This situation had in fact forced the US, the major nations of the developed world
and MNC‘s to
garner support for a new standard IP regime. Thus, the conclusion of the TRIPS
represents a
revolution in the history of IP protection. By establishing, a universal,
comprehensive and legally
binding set of substantive, minimum IP standards, TRIPS both strengthens and
supplements the
earlier patchwork of international IP agreements (Okediji 2003: 315-85). But, it
was a
challenging task for developing countries when it comes to the implementations of
the TRIPS.
Deere argues that this requirement is particularly onerous for developing countries
because
TRIPS demands for higher standards of IP protection than most would otherwise
provide (2011:
1). Hence, ‗the negotiation of the TRIPS Agreement was primarily one between the
developed
and the developing countries of the GATT. The latter accepted the TRIPS Agreement
reluctantly
as a part of the Uruguay Round package deal‘ (Trebilicock and Howse 1999: 320-21).

The TRIPS Agreement was also justified in the sense that achievements in trade
liberalization
can be seriously impaired unless there is strong protection for IP related goods or
services in the
international market. Further traded goods or services can be copied or their brand
names can be
misused by the competitive players in international market as well. This would
finally result in
an uneasy business environment which can surely create a potential disincentive for
future

24
investment, trade and particularly for investment across the world. But various
international
treaties or conventions were in place since the late 19 th century to harmonise IP
protection, but
hardly they brought any satisfactory result. As Bossche argues ‗however, they were
plagued by
deficiencies. In particular, they were fragmented in their coverage of IP rights;
they lacked
effective enforcement standards and systems for the settlement of disputes; and
they were often
subject to low membership, with non-members being notorious violators of IP rights‘
(2010:
743). Therefore, an all comprehensive agreement like the TRIPS was the need of the
hour to
address all these problems. ‗The initial resistance of developing countries to the
inclusion of
negotiations on IP protection in the Uruguay Round was overcome when they realized
that they
were better off with multilateral disciplines than being subject to bilateral
pressure to provide IP
protection‘ (Drahos 2002: 774).

Further, the very Preamble of the TRIPS Agreement clearly identifies its objective
and rationale
behind it. ‗…….to reduce distortions and impediments to international trade,………
taking into
account the need to promote effective and adequate protection of intellectual
property rights, and
to ensure that measures and procedures to enforce intellectual property rights do
not themselves
become barriers to legitimate trade‘ (1995). Thus, the Preamble ‗embodies the
awareness that the
lack of adequate protection of IP rights restricts trade, while at the same time IP
protection can
be used to prevent importation and protect local procedures. The need to balance
the competing
interests of holders of IP rights on the one hand and the public on the other, by
ensuring a
minimum level of IP protection while allowing for measures to prevent abuse of IP
rights, form
the basic rationale underlying the rights and obligations laid down in the TRIPS
Agreement‘
(Bossche 2010: 744). The Preamble of the Agreement also clearly notes IPRs as
private rights
which is highly crucial for any individual holding such rights. Koul argues that
‗this was done to
reaffirm that states are not, as a general rule, obliged to take action ex-officio
against violations
of intellectual property rights, but that such matters should in principle be
resolved between the
private parties involved. This rule is particularly relevant in respect of criminal
sanction‘ (2005:
455). The Part I of the TRIPS consists of general provisions and basic principles
which covers all
IP rights. Part II is subdivided into 8 sections and all these sections deal with
different areas of IP
protection. Part III provides the obligations of its Members in relation to
enforcement of IP
rights. The rest of the Agreement covers issues or areas connectivity to the
acquisition and
procedural provisions. Thus, the TRIPS contains 7 Parts and 73 Articles consisting
of all aspects
of IPRs. The key provisions of the TRIPS with certain relevant comments are given
in Table 1
(Refer to page nos. 35 & 36) for a quick review of the Agreement.

Globalization represents the changing contours of the world economy as one of the
most
important aspect of the global shift. In this, knowledge economy takes a pivotal
place in which
‗higher standards of IP protection and international enforcement became
increasingly
important‘(Matsushita et al. 2006: 704).

25
Difference between TRIPS & Earlier International IP Treaties/Conventions

While pre-TRIPS global IP system provides ‗a menu of treaties‘ from which countries
could
‗pick and choose and in some cases make reservations to‘ (Okediji 2003:315-85).
Therefore, a
fine system of flexibility was there in the pre-TRIPS era, whereas when it comes to
the current
era, ‗TRIPS obliges all WTO members to implement minimum standards of protection
within
specified deadlines for virtually all categories of IP…….TRIPS puts new and
unparalleled
emphasis on making privately held IP rights enforceable, demanding stronger
provisions in
national IP laws to promote enforcement of IP rights at the broader and within the
domestic
market‘ (Deere 2011: 10-11). This clearly demonstrates that it is globally binding
and gradually
leading to a uniform standard on IP. Okediji (2003) points out that ‗in addition,
TRIPS
incorporates provisions of many earlier WIPO and bilateral agreements, extending
them to a
broader group of countries and linking them for the first time to an effective
enforcement
mechanism (the WTO‘s Dispute Settlement Understanding)‘. Therefore, the TRIPS has
come up
with a system closely linked to the previous IPR conventions and treaties, but
making it a more
institutionalized one and easily enforceable globally. ‗The TRIPS Agreement
established
requirements for harmonization of intellectual property protection as well as
minimum standards
for enforcement of intellectual property rights. These provisions exceeded
substantially the
requirements set forth in the treaties administered by the WIPO, including the
Paris Convention
and the Berne Convention, which contained no substantial requirements for
harmonization or
enforcement and no substantial dispute settlement mechanism‘ (Thomas and Trachtman
ed.
2009: 15). Three agreements of the WTO-the TRIPS Agreement, the Technical Barrier
on Trade
(TBT) Agreement and the Agreement on the Application of Sanitary and Phytosanitary
(SPS)
‗can therefore be said to go far beyond the usual trade liberalization rules and to
venture into
behind-the border regulatory areas to a greater extent than other WTO agreements
dealing with
non-tariff barriers to trade. They entail greater implementation costs and have a
larger impact on
the regulatory policy objectives of the members. For these reasons, they have
generated more
controversy and have caused more implementation problems than other WTO agreements.
Many
members have been reluctant to engage in negotiations towards new agreements that
would
harmonise behind-the-border regulatory policies for example in the areas of
competition policy
and investment‘ (Bossche 2010: 741).
In fact, the TRIPS is the first international trade agreement to initiate positive
regulatory
mechanisms or obligations for all its members unlike any other treaty or
convention. ‗While
references to intellectual property (IP) rights were included in the GATT 1947 1,
the TRIPS
Agreement, for the first time, imposes on members the obligations to ensure a
minimum level of
protection and enforcement of IP rights in their territories (ibid: 742).

When it comes to developing countries, it was really difficult for them to

implement the TRIPS.
‗For the most part, developed countries already had TRIPS standards and IP
institutions in place
and needed to make only minor revisions to domestic IP laws and administration to
implement
TRIPS. For developing countries, on the other hand, implementation of TRIPS
requires them to
26
raise their IP standards (increasing the terms and scope of protection). For most
countries, this
involves a complex set of reforms to update or redraft existing laws, and/ or
promulgate new
administrative regulations and guidelines. To give their IP laws effect, many
countries need to
strengthen and sometimes reorganize IP administration, and also to considerably
increase the
financial resources allocated to IP issues‘ (Deere 2011: 11). This shows that the
implementation
of the TRIPS has led to a massive overhauling of IPR administration in developing
countries and
India was not an exception to this. Then the question arises why countries like
India needs
TRIPS or more particularly globally standardized patent laws?

Why India Needs Patent Laws?

India was not new to patent laws even during her colonial days. The first Patent
Act VI which
was enforced in India was passed by the British Parliament in 1856. This Act aimed
to protect
inventions based on the British Patent Law of 1852 under which certain exclusives
privileges
were granted to inventors for a time of 14 years. Then came the 1859 Act XV as an
improvement
of the former act and afterwards we had four colonial patent acts before India
became
independent. These acts were: Patents and Designs Protection Act 1872, the
Protection of
Invention Act of 1883, the Inventions and Designs Act 1888. But, the last colonial
patent act was
passed as Indian Patents and Designs Act in 1911 and continued till the coming of
independent
India‘s first Patent Act 1970. After independence, Govt. of India tried to come up
with a more
nationalistic patent legislation. In 1948, a Patent Enquiry Committee was formed to
find out the
working of the existing patent system. By 1959, Justice N. Rajagopala Ayyangar
suggested
significant changes to the colonial patent laws in operation. The Ayyangar
Committee (1957-59)
noted that foreign patentees were acquiring patents not ―in the interests of the
economy of the
country granting the patent or with a view to manufacture there but with the object
of protecting
an export market from competition from rival manufacturers particularly those in
other parts of
the world.‖ Hence the committee strongly suggested that a patent system that
stressed on access
to medicines at affordable prices would be highly beneficial for the country.

But only after a gap of 11 years, the first patent law of independent India
came into
being. However the new Patent Act 1970 (39 of 1970) became operational from 20
April, 1972
only. It is observed that ‗some major changes in the patent laws were introduced
particularly
regarding the patents for food, drugs and medicines and the span of the patent of
those inventions
was reduced to make medicines and food related patents make public goods within a
shorter
period of time. A stringent provision for utilization and working of patent was
introduced along
with the provisions of compulsory licenses and revocations (Bagchi et al. 1984:
287-304). This
shows that after independence, Govt. of India tried to protect her nationalistic
interests and
particularly became sensitive more about medicine and food related patents. The
Patent Act of
1970 was in fact regarded as the catalyst of modern industrial development in the
country in
general and pharma sector in particular. This Act remained in force till 1998 and
was replaced by
the Third Patent (Amendment) Act 2005 after two previous amendments in 1999 and
2002.

27
Thus India came up with a new patent act named as The Patents (Amendment) Act 2005
(15 of
2005) from 4 May 2005. This Act heralded a new era in India‘s modern patent
administration
and particularly for pharmaceutical industry in the country. This Act was followed
by the Patents
(Amendments) Rules 2006 which came into force from 5 May 2006. The basic objective
behind
the 2005 Act was to comply with the obligations of the TRIPS under which its
members needed
to upgrade their patent system to a global standard. ‗Even in some cases, India‘s
new amended
act goes far beyond the TRIPS requirements‘ (Bhattacharya 2008: 93). The Indian
Patent Office
correctly indicates the primary objective behind the new Patent Act 2005 is to
‗encourage
inventions and to ensure that the inventions are worked in India on a commercial
scale and to a
fullest extent that is reasonably practicable without undue delay‘ (33 rd Annual
Report of the
Patent Office 2005: 13). The Second Amendment Act in 2002 was all but TRIPS
consistent
except the introduction of the product patent provision and finally the 2005 act
brought this
element to the Indian patent regime. And it eventually made our patent system fully
TRIPS
compliant.

However, India‘s journey to TRIPS has not come smoothly. India was vehemently
opposing of
reforming its patent laws as per TRIPS guidelines initially because product patent
was not a part
of the country‘s patent provisions. ‗By 1995 India had to establish legislation
that would allow
for applications for agrochemical and pharmaceutical product patents and grant
Exclusive
Marketing Rights (EMRs), a transition to product patents that gives the firm the
exclusive right
to sell the product for five years‘ (Ramanna). Thus domestically and
internationally, India
resisted to be a part of the new international patent regime. The government tried
to pass a bill in
1994 to reform the existing patent system failed in the Rajya Sabha. ‗From 1995-
1998, in spite of
external pressure, India did not revise its patent laws as required by TRIPS.
India‘s resistance to
patent reform in the initial years following TRIPs was led by industry and NGO
groups who
protested against change‘ (ibid). The domestic industries were concerned about
losses and price,
and the NGO‘s highlighted the strong negative impacts on farmers, access to
essential medicines
and the appropriation of traditional knowledge by global giants. But gradually this
policy was
changed and Indian Parliament passed a bill in 1999 to comply the obligations under
TRIPS.
This came to be known as 1 st amendment and again a second amendment came in 2002
which
altogether allowed product patent in pharmaceutical and agrochemical fields and
increased the
patent term for 20 years.

In the meantime, the industry bodies like Confederation of Indian Industries (CII),
ASSOCHAM
and FICCI also strongly took a pro-patent view. They all favoured a product patent
regime to
move ahead with the TRIPS requirement. This happened because of external trade
pressure and
also a strong inclination for reforms in the patent system which could offer the
industry more
opportunities both domestically and globally. As Ramanna notes, ‗We can explain the
rise of a
pro-IPR stance among Indian industry by noting that firms with the ability to
transform their
potential into patents became votaries of reform. Those firms with greater sales,
export
competition and R&D investment are the firms that are in a position to transform
their capacity

28
into gains from patents and therefore shifted their interests towards promoting
rather than
opposing patent reform.‘

At the same time, the NGO‘s took a pro-reform view by saying that India must secure
full
benefit from the new patent regime. They advocated that IPR protection must be
extended to
traditional knowledge and innovations rather than opposing them for accruing
maximum benefits
across the country. Prof. Gupta, head of SRISTI (Society for Research and
Initiatives for
Sustainable Technologies and Institutions) argues that ‗there is a genuine case for
reforms of
patent regime and what is needed is a system requiring full disclosure regarding
the origin of
patents based on local knowledge or resources involving prior informed consent and
benefit
sharing.‘ In the same tone, Gadgil of Indian Institute of Science (IIS) stresses
that ‗It is necessary
that India accepts the broad framework of IPRs prevalent in industrial countries to
function
efficiently in the emerging global framework……they (industrial countries) can
impose on us an
intellectual property rights regime of their own design. It is best to accept this
reality and then
actively work towards modifying the IPR regime to serve our interest better.‘ Thus
we can
witness the changing scenario of patent reform among the industry and the NGO‘s in
course of
time because of their own requirements and simultaneously a change in the global
situation in
their respective fields. This was also supported by the changing attitude of the
government both
from international pressure and a need to garner immediate and long term benefits
from the new
IPR regime introduced by the TRIPS Agreement.

India has tremendous potential and edge over other nations on knowledge-based
industries like
biotechnology, micro-electronics, IT industries etc. which are known as sunrise
industries. But
the competition is very tough in these fields and of the best way to go ahead is to
enhance public-
private partnership (PPP). ‗CSIR has already spearheaded this movement by
initiating ―New
Millennium Indian Technology Leadership Initiative (NMITLI)‖. It is the biggest
public-private
partnership in post-independent India, involving 65 private sector companies and
160 institutions
and universities. This initiative has high emphasis on drugs and pharma R&D
partnerships‘
(Bhattacharya 2008: 121).

Again, the World Bank‘s ‗Global Economic Prospects Report for 2002‘ confirmed the
growing
importance of IP for today‘s globalized economies. It notes that ‗across the range
of income
levels, IPRs associated with greater trade and foreign direct investment flows
which in turn
translate into faster economic growth.‘ Therefore, ‗safeguarding these property
rights fosters
economic growth, provides incentives for technological innovation, and attracts
investment that
will create new jobs and opportunities for the general public‘ (Simi 2008: 125).
This clearly
emphasizes on the importance of protecting IP rights and creating enormous
opportunities for a
nation in a globalized economy and India is not an exception to it.

India established a patent system that tried to balance the need for public
interest with
encouraging innovation. This was in tune with the science and technology mission of
developing
indigenous technology and fostering R& D activities in areas of national
significance. The main

29
aim in India was to ensure that patents did not lead to monopoly by foreign
companies nor lead
to high prices for medicines and food items‘ (Ramanna). This was rightly manifested
in the
Patent Act of 1970 which had a strong nationalistic flavor and this was the first
patent act of
independent India.

In the post-TRIPS regime, India has witnessed a large number of patent litigations.
‗The cases
involving definitions and scopes of patents and infringements and working of
patents proved that
people and business persons in India became mature enough to utilize the patent
laws to get
benefits out of such laws‘ (Bhattacharya 2008: 322). It is commonly agreed that a
system must
be created to disseminate knowledge and technology through effective patent grants.
‗The
incentives for patented inventions and implementation of a less complicated
procedure of patent
granting system could help to promote a congenial environment for the promotion of
future
research, (ibid).

In the changing globalized scenario, India‘s march towards technology super power
status
depends on technological advancements with growing inventions and full proof
protection of IP
rights to make the country the world‘s best ever destination for FDI.

Enforcement of IPRs under the TRIPS Agreement

The Part III of the TRIPS Agreement (Arts. 41-61) deals with the enforcement of
IPRs which
contains five sections:

a. General Obligations (Art. 41);

b. Civil and Administrative Procedure and Remedies (Arts. 42-49);
c. Provisional Measures (Art. 50);
d. Special Requirements related to Border Measures (Arts. 51-60);
e. Criminal Procedure (Art. 61)

These articles entail one of the most detailed provisions for enforcing IPRs in
member nations. In
fact, the historic Berne and Paris conventions clearly say that those individuals
entitled to their
protections should have their legal remedies available. Drawing a comparison
between these two
conventions and the TRIPS, Koul (2005) states that ‗but with a few exceptions, they
(the former)
do not specify those remedies…..The enforcement provisions of the TRIPS Agreement
set forth
in some detail the procedures and remedies that each member must make available in
its
domestic laws to enable right holders to enforce the IPRs established in Part II of
the Agreement.
In addition, the Agreement establishes performance requirements against which each
member‘s
fulfillment of its obligations to effectively enforce these IPRs will be measured‘.
Thus, TRIPS
set a broader and comprehensive framework to enforce IPRs than the Berne and Paris
Conventions.

But making an attempt to harmonize one set of IP regulations for all the members
would
definitely create serious obstacles in enforcing the IP rights particularly in
developing and LDCs.

30
Vaver (2002) correctly points out that ‗legal standardization may be beneficial in
general but is
not so far intellectual property in either the developed or developing world. The
law in developed
countries is currently incoherent and itself requires major reconsideration. The
imposition of
such a defective law on the developing world is helpful to neither side‘.
Therefore, it is very
clear that legal standardization in IP invites more problems for developing nations
whereas the
developed countries might reap benefits in the new international IP regime.

TRIPS: An Overview

The TRIPS Agreement establishes rights and obligations between the WTO members, not
private individuals or firms. Nevertheless, it is crucially important for four
reasons: (1) it
establishes an international law of substantive minimum standards for national IP
laws; (2) it
establishes minimum international criteria for national enforcement of IP rights
through civil,
criminal, and administrative proceedings; (3) it subjects national IP standards and
enforcements
to the WTO dispute settlement system thereby providing an international forum for
enforcement
of rights and resolution of disputes; and (4) it establishes certain common
procedural
requirements that each national government must meet concerning the administration
and
maintenance of IP rights. The TRIPS does not unify IP, but it stipulates a certain
harmonization
on a worldwide basis‘ (Matsushita et al. 2006: 705).

During the TRIPS negotiation process, the advocates of IP pointed out that stronger
IP protection
would encourage foreign direct investment, technology transfer, innovation and
finally would
lead to development in developing countries. As Deere argues, ‗in the face of
growing trade in
counterfeit medicines and other products, proponents presented stronger IP
protection as a way
to help protect public health and safety‘ (2009: 9).

It is to be noted that the TRIPS does not define the concept of IP and it only
specifies which
categories of IP rights are covered by its provisions. Bossche (2010: 747) argues
that ‗it should
be borne in mind, however, that the categories of IP rights covered by the TRIPS
Agreement are
not always clear cut, and are not limited to those mentioned in the titles of
Sections 1 to 7 of Part
II.‘

The critics strongly warned that while stronger IP protection might bring results,
but ‗this would
require the right conditions, carefully tailored policies and laws, and a range of
complementary
measures‘ (Deere 2011: 9). Also it should be clearly noted that on size fits all
strategy and policy
of the WTO would seriously hamper the already ongoing development process in
developing
countries. The effort of the developed nations to achieve strong IP regime has once
again
widened the gap between them and the developing countries. That is why ‗the
institutionalization
of the trade-IP linkage under the WTO; by contrast, clearly exemplifies asymmetric
benefits
garnered by developed countries of the North through agency capture by industry
lobbyists
within their boundaries…… In fact, despite common claims that strong IPRs promote
domestic
economic growth by protecting new innovations and attracting FDI, the correlation
is only

31
empirically supported when IP protections are linked with liberal trade policies‘
(Amani 2009:
140). This shows that TRIPS has come along with a strong and detailed liberalized
economic
policies dictated by the west to the developing and least developing countries
(LDCs).

Many scholars are of the opinion that TRIPS is coercive by nature in contradiction
to what its
proponents claim that the internally adopted strong IP measures would benefit the
member
countries. These critics stipulate that TRIPS in future may become ‗one of the most
effective
vehicles of western imperialism in history‘ (Hamilton 1996). The updated IP rules
and standards
were supposed to enhance the price of seeds, medicines, and educational materials,
which many
countries in the developing world normally import. In this regard, critics like
Tansey and Rajotte
eds. (2008) argues that ‗IP rules that circumscribe the ability of farmers to save
and share seeds
could pose threats to global food security and the livelihoods of the world‘s
billion plus small
scale farmers‘. In fact, it was highly realized that the developing and the LDC‘s
may not fully
achieve the benefits of international IP regime launched by the TRIPS. Because, it
was found
that ‗conclusions to the contrary ignore distributional realities: members differ
in terms of their
levels of wealth, economic structures, technological capabilities, political
systems and cultural
traditions. They have different needs and aspirations and require different
intellectual property
systems‘ (Yu 2003). So, a uniform IP package devised by the TRIPS Agreement would
create a
kind of western hegemonic structure over the developing and the LDCs across the
world.

Therefore, Heald (2002) appropriately suggests ‗a country specific approach to

devising rational
IP policy for the purposes of economic growth and development. He points out that
stronger
protections can benefit only countries sufficiently advanced to be developing their
own IP and
not those in which most people lack the basic necessities of life, effective
government and
adequate or effective law enforcement.‘

Today, there is a complete change in the international marketplace for IP.

‗Although some
countries have not yet eliminated barriers to IP protection, most countries have
come to
recognize the importance of IP rights to the growth of their economies. The
existence of
mechanisms for protecting IP rights can be a primary factor in attracting foreign
investment. To
be most attractive, those mechanisms must also be effective and in harmony with
international
practices.‘ (Shippey 2009: 25).
The TRIPS, unlike all other IP conventions, has set clear guidelines to create a
uniform IP
system among the nations. But then this global IP standardization has added and
created more
gaps between the developed and the developing countries. Stiglitz strongly argues
that ‗IP is
important, but the appropriate IP regime for a developing country is different from
that for an
advanced industrial country. The TRIPS scheme failed to recognize this. In fact, IP
should never
have been included in a trade agreement in the first place, at least partly because
its regulation is
demonstrably beyond the competency of the trade negotiators‘. This reflects the
handiwork of
developed countries and their MNCs in imposing a standard IP regime on the rest of
the world.

32
In fact, special provisions were made in the TRIPS so that the developing and the
LDC‘s could
be simply covered within this new framework.

It has also been clearly observed that IPRs do not return social benefits as it was
assumed
initially with the launching of the TRIPS Agreement. May and Sell (2005) commented
that
‗Rather than the history of IP being a progressive (teleological) move towards a
better and more
efficient system, its history has been of contest and dispute over the social
weight that might be
accorded to public benefits, including access to knowledge, information and their
products, on
the one hand, and the interests (and incentives for) those who control and profit
from the
imposition of limits on use (security), on the other‘.

From the very beginning, the US played a crucial role in bringing the TRIPS
Agreement into
practice. At some point of time, it put pressure on some developing countries by
imposing her
Super 301 Act2 provisions. ‗The insertion of ‗trade related‘ intellectual property
rights into the
Uruguay Round agenda and the subsequent adoption of an agreed text for an
intellectual property
agreement could not have been achieved without the effective lobbying activities in
the USA of
legal and policy activists and corporations, and a government and political
establishment that,
during the 1980s, was especially receptive to the diagnoses and prescriptions
propounded by
these individuals, firms and business associations‘ (Dutfield and Suthersanen
(2008: 33). Thus,
the US Government and its corporate houses played a significant role in bringing
the multilateral
TRIPS Agreement. But the globalization of western set of legal practices and
protections has
undoubtedly confronted other traditions and modes of dealing with the social
utilization of
knowledge.

Conclusion

Furthermore, barring all controversies and loopholes raised by the critics in

general and issues
related to developing and LDCs, it has been observed that ‗The TRIPS Agreement is
the most far
reaching and comprehensive legal regime ever concluded at the multilateral level in
the area of
Intellectual Property Rights (IPRs). It supplements and manifests the elderly
conventions
governing IPRs, the most important of which (i. e. The Paris Convention for the
Protection of
Industrial Property and the Berne Convention for the Protection of Literary and
Artistic Works)
were first elaborated at the end of the 19th century. Certainly these conventions
were periodically
revised (six major revisions in the case of both Berne and Paris) in order to
promote in a gradual
and incremental manner a quasi-uniform international regulation of industrial
property and
copyrights. But compared to the results of those revision exercises, the TRIPS
Agreement
constitutes a major qualitative leap which radically modifies not only the context
in which IPRs
are considered internally, but also their substantive context, and the methods for
their
enforcement and dispute settlement‘ (Correa and Yusuf 2008: XXIII).

Thus IP has taken a big leap with globalization and TRIPS Agreement. ‗This is all
the more
surprising as in the last decades, the political economy of IP has moved from the
margins to a

33
much more central position in the study of global politics. The problem of IP is no
longer
regarded as merely a technical issue of interest only to lawyers and specialist
policy analysts‘
(May 2007). It can be certainly noted that the extraordinary importance of IPRs
especially
patents have come with the booming of the knowledge economy.

Apart from this, the TRIPS has also worked well with the role of WIPO‘s status as
the only
technical agency of the UN on global intellectual property matters. Salmon argues
that TRIPS
was after all a good business for WIPO not only because it incorporated as its
basis the
provisions of WIPO‘s fundamental treaties, the Paris and the Berne Conventions
(2003: 434), but
also because it provided WIPO the opportunity to quickly restore itself into the
confidences of
the developed countries (Oguamanam 2012: 67). Though WTO became a dominant body to
handle global IP matters with the introduction of TRIPS, yet the WIPO did never
come into
conflict with the former. It has smoothly adopted a resolution requiring its
secretariat to provide
technical assistance to all WTO members in matters related to TRIPS. By 1995, ‗WIPO
entered
into a formal cooperation agreement with the WTO, known as the Cooperation for
Development
Program (CDP), to provide technical assistance to member countries of the WTO
without regard
to their non-membership in WIPO‘ (May 2006: 439; Musungu and Dutfield 2003: 11). In
fact
this development came as a crucial moment for many developed nations like the US
which could
help implementing the provisions of the TRIPS without any major setback. Many
experts
observe this cooperation as more beneficial for the WTO‘s organizational efficiency
because it
can capitalize on the long standing expertise of the WIPO in the field of IP
management.

Finally, the role of the TRIPS Agreement in the evolution of the global IP regime
would always
remain critical. It is so because TRIPS seriously marks ‗a quintessential breaking
point and a
touchstone for locating the regime dynamics in the new international intellectual
property order,‘
(Oguamanam 2012: 64). This has eventually helped in promoting the market oriented
neo-liberal
economic policies and programmes into a new height. Thus, an opposition and a fair
amount of
uncertainty remain when it comes to the economic impact of the implementation of
the TRIPS
Agreement over the developing countries and the least developing countries.

34
 Table 1. Substantive Requirements of the TRIPs Agreement in the WTO.
General Obligations Comments
1 2
1. National treatment Applied to persons.
2. Most favoured-nation principle Reciprocity exemptions for copyright;
prior
regional/bilateral allowed.
3. Transparency
Copyright and related rights
4. Observes Berne Convention Does not recognized moral rights
5. Minimum 50 year term Clarifies corporate copyrights
6. Programs protected as literary A significant change in g lobal norms
Works.
7. Data compilations protected
Similarity
8. Neighbouring right protection for
Phonogram producers, performers
9. Rental rights A significant change in global norms.
Trademarks and related marks
10. Confirms and clarifies Paris
Convention
11. Strengthens protection of Deters use of confusing marks and
Well known marks speculative registration.
12. Clarifies non-use Deters use of collateral restriction to
Invalidate mark
13. Prohibits compulsory licensing
14. Geographical indications Additional protection for wines and
spirits.
Patents
15. Subject matter coverage Patents provided for products and
process
In all fileds of technology
16. Biotechnology Must be covered but exceptions allowed
for plants
And animals developed by traditional
methods.
17. Plant breeders‘ rights Patents or effective and generis system
required.
18. Exclusive right of importation
19. Severe restrictions on compulsory Domestic production can no longer be
required;
Licences. Non-exclusive licences with adequate
compensation
20. Minimum 20 year patent length
From Filing date.
21 Reversal of burden of proof in
Process Patents.
22. Industrial designs. Minimum term of protection : 10 years

35
Integrated circuits designs
23 Protection extended to articles Significant change in global norms
Incorporating infringed design.
24 Minimum 10 years protection.
Undisclosed information
25. Trade secrets protected against New in many developing countries
Unfair Methods of disclosure.
Abuse of IPRs
26. Wide latitude for competition Cannot contradict remainder of
Policy to Control competitive WTO Agreements
Abuses.
Enforcement measures
27. Required civil, criminal measures Will be costly for developing countries
And Border enforcement
Transitional arrangements
28. Transition periods 5 years for developing and transition
Economies; 11 for poorest countries.
29. Pipeline protection for Not required but a provision for
Pharmaceuticals maintaining novelty and exclusive
Marketing rights.
Institutional arrangements
30. TRIPs Council Agreement to be monitored and
Reviewed
31. Dispute settlement Standard approach with 5 year
Moratorium in some cases.

36
Notes

1. Articles XX (d), IX, XII: 3(c) (iii) and XVIII: LO of the GATT 1947 refer to
IPRs. In
addition, other GATT provisions lay down general rules that are also
applicable to TRIPS
for example, the national treatment and most-favoured nation obligations and
the
prohibitions on qualitative restrictions.

2. Super 301 — Section 310 of the 1974 Trade Act (P.L. 93-618, as amended) is
commonly
referred to as Super 301. As enacted, Super 301 required the USTR for 1989
and 1990 to
issue a report on its trade priorities and to identify priority foreign
countries that practiced
unfair trade and priority practices that had the greatest effect on
restricting U.S. exports.
The USTR then would initiate a Section 301 investigation against the priority
countries to
obtain elimination of the practices that impeded U.S. exports, in the
expectation that
doing so would substantially expand U.S. exports. The original Super 301
provisions
expired in 1990, however, President Clinton issued an executive order (EO
12901)
reactivating Super 301 for two years (1994 and 1995). The Super 301 process
was again
extended through 1997 by EO 12973 (September 1995), but was not in operation
in 1998.
On March 31, 1999, Super 301 again was re-instated and revised by EO 13116.
It
required the USTR by April 30 to issue its Super 301 report on priority
foreign trade
practices and to initiate section 301 cases against such practices if
agreement is not
reached after 90 days. Neither the USTR‘s April 1999 or April 2000 Super 301
report
identified any priority foreign trade practices under Super 301, but USTR did
announce
that it would initiate Section 301 cases against trade practices in several
countries. In its
April 2001 Super 301 report, USTR did not make any designations under Super
301, but
did announce that consultations (the first stage in WTO dispute settlement)
had been
requested with Mexico on measures affecting live swine imports, with Belgium
on rice
import restrictions, and with the European Union on import surcharges on corn
gluten
feed. In a January 2002 letter report to the Senate Finance Committee on
activities under
Section 301, the USTR did not identify any priority foreign trade practices
under Super
301, although it did report on other activities undertaken under Section 301-
310 of the
Trade Act of 1974.
37
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