India and the G-20

- Arun Jaitley

Agriculture is central to the economies of most developing countries. To the majority of them, it represents the means of livelihood of a substantial proportion of their population. In such countries, the health of the economy and the stability of society is closely interwoven with the interests and fortunes of farmers. For some other countries with strong export interests, agriculture constitutes the single most important engine for economic growth. The G-20 consists of a coalition of both kinds of developing countries and, therefore, strongly represents the needs of millions of farmers in all the major less developed regions of the world in Asia, in the Americas and in Africa.

The G-20 came into being in August this year, largely as a reaction to the joint framework proposal on agriculture submitted to the WTO by the United States and the European Communities. Most developing countries and many developed countries considered this joint proposal as a significant departure from the mandate given at the Doha Ministerial Conference. While the US and the EC were seen to be preserving their own domestic subsidy regime and making no significant commitments regarding export subsidies, they were also not making significant offers in market access. At the same time, the proposal demanded much more access into the markets of the developing countries, disregarding their genuine food and livelihood security needs. Many felt that instead of removing distortions and reducing imbalances in the global agricultural economy, the new proposal would, in fact, further accentuate the disparities.

It was in response to this framework proposal that the G-20 originally submitted its counter-proposal, which provided for a greater balance between the three pillars of agriculture negotiations – domestic support, export competition and market access. At Cancun, the G-20 largely maintained its unity and negotiated effectively with the US and the EC. At all times, the G-20 showed willingness to accommodate each other’s sensitivities and concerns and, in negotiation with others, their readiness to be flexible in order to move the negotiations forward. Since its inception, the G-20 has changed composition, with some of the Latin American countries opting out and some Asian and African countries like Indonesia, Philippines, Nigeria, Tanzania and Zimbabwe joining. The G-20 has also always accepted the fact that the concerns of other groups in the area of agriculture negotiations should be fully taken on board, be it the concerns of those developing countries who attach the highest priority to the concept of special products and special safeguards for developing countries, or those that have real problems on account of the preferences that they now obtain by way of differential tariffs and special quotas. The G-20 has interacted with such groups and indicated quite clearly their readiness to integrate their needs into the overall negotiating approach of the Group.

India, as a founder member of the G-20, attaches the highest priority to the integrity and strength of the Group. We believe that in order to achieve significant change in the global agricultural structure, this Group must continue to function as a unitary negotiating entity. The strength of the Group will contribute effectively to a satisfactory solution at the end of the Doha Work Programme. At the same time, the Group has always shown that it is ready to negotiate, it is ready to be flexible, but that the final outcome must be fully and uncompromisingly in accordance with the mandate given in the Doha Ministerial Declaration. The Group believes also that a good outcome would be possible only if the sensitivities of all Members can be integrated to the extent possible with each Member showing flexibility and a spirit of accommodation. The Group will continue to work for significant reduction in distortions, more meaningful market access and a better deal for farmers in all developing countries. India will continue to play its role in supporting and strengthening the Group from within.

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JOINT PRESS COMMUNIQUE OF THE MEETING BETWEEN THE G-20 MINISTERS AND EU TRADE COMMISSIONER PASCAL LAMY


On the occasion of the Ministerial Meeting of the G-20 held in Brasilia, on December 11th and 12th, 2003, the Group had the opportunity to meet with Commissioner Lamy to discuss the present status of the Doha Round and how to move forward in the negotiations on agriculture.

The dialogue proved to be fruitful and positive with both sides explaining their own positions in a business-like manner and acknowledging the importance of this dialogue to achieve progress in the negotiations. There was general agreement that we need to intensify negotiations early next year and to move as quickly as possible into an increased dialogue between all partners to achieve real and substantive progress in line with the Doha mandate and within the time frame defined therein.

Commissioner Pascal Lamy made a clear and open presentation of the position of the European Union on all aspects of the Doha Development Agenda with particular emphasis on agriculture, and replied to questions by G-20 Ministers.

The G-20 reiterated its disposition to contribute to the success of the negotiations and to move into a negotiation mode early next year.

Both sides agreed to continue exchanging views, through their delegations in Geneva and at Ministerial level in order to contribute, together with other trading partners, for a successful and timely completion of the Doha Round.

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G-20 MINISTERIAL COMMUNIQUE

The G-20 Ministerial Meeting was held in Brasilia on 11 and 12 December 2003 in order to exchange views and coordinate positions on how to proceed with agricultural negotiations and on how to achieve progress in the Doha Round.
Delegations from the following countries attended the meeting hosted by Brazil: Argentina, Bolivia, Chile, China, Cuba, Egypt, India, Indonesia, Mexico, Nigeria, Pakistan, Paraguay, Philippines, South Africa, Tanzania, Venezuela and Zimbabwe.
A representative from Equador also attended the meeting. CARICOM was also represented in the meeting.


     Mr. Arun Jaitley, Minister for Commerce & Industry
     at the meeting of G-20 Trade Ministers in Brasilia (Brazil)
on December 12, 2003

WTO Director-General Supachai Panitchpakdi and European Union’s Trade Commissioner Pascal Lamy met with the G-20 Ministers, as special guests.

The G-20 engaged in a constructive dialogue with the WTO Director-General Supachai on how to move forward the negotiations in the light of the discussions in Geneva and that the DG has maintained with several major players. The G-20 also had a positive and open dialogue with Trade Commissioner Pascal Lamy of the European Union, on the respective positions on agriculture with a view to consider new possible approaches to make progress in the negotiations.

Ministers reiterated the importance they attach to the WTO and to the multilateral rules-based trading system. In particular, they reaffirmed their commitment to the successful and timely completion of the Doha Development Agenda based on the fulfillment of the mandate agreed to during the 4th WTO Ministerial Conference. A successful conclusion of the negotiations will promote growth in world trade and a more positive integration of developing countries in the multilateral trading system.

G-20 Ministers called on all WTO Members to approach upcoming negotiations with an open spirit and readiness to reach consensus that will pave the way for an effective liberalisation of agricultural trade capable of reflecting the needs and sensitivities of developing countries and the interests of the international community as a whole.

The negotiations on agriculture are central to move the Doha Round to a successful and timely conclusion. Trade in agricultural products continues to be hindered by all sorts of barriers and distortions. True liberalisation in agricultural trade and reform that address these barriers and distortions would be a major contribution to the development objectives of the Round. Furthermore, this will assist in dealing with the deterioration of commodity prices. The elimination of barriers and distortions in agricultural trade could also contribute to the economic transformation, reduction of poverty and the promotion of social and political stability in developing countries.

Ministers highlighted that, by bringing together developing countries from Africa, the Americas and Asia, with different agricultural structures and orientations within a common negotiating platform, the G-20 has substantially contributed to making the WTO process more inclusive. The G-20 is prepared to continue to play an important role in that respect and to extend its cooperation with other groups. The Ministers also called on WTO members to give effective and substantive consideration to the concerns of LDCs - as expressed before and since Cancun.

Ministers recognised the situation faced by countries dependent on preferences and, under conditions to be determined in the negotiation, are open to consider approaches to deal with this matter.

Ministers took note of the Cairo Declaration adopted at the Mini-Ministerial Meeting of African countries which recognises the large areas of convergence between the African Group and the G-20. They felt that closer cooperation between the two groups should be pursued. Ministers underlined the economic, social and political importance of cotton for a large number of African countries. They called upon WTO members to think in innovative ways to address this problem within the Doha mandate.

The G-20 is a coalition of countries, which has been formed to address the concerns of its members that are also common to most developing countries relating to:
- the elimination of practices that distort agricultural trade and production;
- the search for substantial improvement in market access; and
- the rural development, food security and/or livelihood security needs.

Note was taken of the Chairman of the General Council’s consultations in line with the Ministerial Conference instructions. The prospect for an agreement, however, continues to elude WTO members. In agriculture, in particular. Ministers underlined that the only way for a successful outcome of the discussions is to achieve a fair basis for the negotiations, which neither pre-determines their outcome, nor implies a reduction in the level of ambition of the Doha mandate.

Ministers reiterated the need to preserve the integrity of the Doha Development Agenda and emphasised that any reinterpretation or dilution of the mandate would affect the delicate balance among the various negotiating fronts and would jeopardise the development focus of the work programme.

The G-20 took note that the text contained in document Job (03)/150/Rev. 2 was the subject of extensive consultations and concerns expressed by many delegations, especially from this Group. The
G-20 insists that, in the process of reaching agreement on a final set of modalities, the level of ambition of the Doha mandate remains the guiding principle of the negotiations. In such a process, any framework in order to be viable should be consistent with the Doha mandate and lead to the establishment of modalities capable of ensuring that negotiations in agriculture would result in substantial reductions in domestic support, substantial increase in market access, phasing-out of all forms of export subsidies and operational and effective special and differential treatment that takes into account rural development and food security concerns of developing countries. Moreover, the particular concerns of recently acceded Members should also be effectively addressed in this context.

The G-20 is ready to contribute to the success of the Doha Round in General and in the area of agriculture, in particular. The biggest trading countries, which are responsible for the main distortions in agricultureal trade, should set the example, as to permit further strides in the attainment of the long- term objective of a fair and market oriented agricultural trading system.

Reaffirming their engagement in the trade negotiations and pledging their support to the efforts undertaken by the Chairman of the General Council and by the WTO Director General, Ministers emphasised their willingness to contribute to the prompt resumption of the talks in the negotiating bodies so as to permit progress to be achieved during 2004, with a view to completing the Round within its original timeframe, as any delay will come to the detriment of developing countires, LDCs and all WTO membership. It is the view of the Group that this will require intensification of the negotiations as of early 2004.

Ministers instructed their representatives in Geneva to develop a work programme for the Group based on the discussions held in Brasilia and on this communique.
Ministers agreed to meet again whenever necessary to consider progress in the agriculture negotiations and to coordinate the G-20 positions. They considered that the next meeting could be held on the occasion of UNCTAD XI in June 2004, or at an earlier date, should progress in the negotiations so warranted.


Brasilia, 12 December 2003

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MULTILATERAL PROCESS IS IMPORTANT FOR INDIA

(Statement by Mr. Arun Jaitley, Minister for Commerce & Industry, in Lok Sabha on 19th December, 2003, regarding the Fifth Ministerial Conference of WTO held at Cancun, Mexico during 10-14 September, 2003)

1. I rise to make a statement on the proceedings of the Fifth Ministerial Conference of     the WTO held at Cancún, Mexico during 10-14 September 2003. A copy of the     Ministerial Statement is being placed on the Table of the House.

2. The Cancún Ministerial Conference was due to take stock of the progress in      negotiations under the Work Programme launched by the Doha Declaration and to      provide guidance to negotiators on key areas such as agriculture, tariff negotiations      for non-agricultural products, special and differential treatment and implementation      issues. The Conference also had to decide on whether or not to launch negotiations      on Singapore Issues based on modalities agreed to by ‘explicit consensus’.

3. In preparation for the Conference, the Government held wide-ranging       consultations with all major stake holders and had accordingly formulated its       negotiating strategy. This strategy was based on an appreciation of our trade       interests, development concerns and gains to be made by improving the       multilateral trading system. We went to Cancún in a positive frame of mind with a       desire to engage proactively in the negotiations for a fruitful outcome.

4. The Conference which concluded in Cancún on 14 September 2003 could not reach a      decision covering all areas. An important reason for the lack of a decision at Cancún      was the inability of the proposals on the table to forge a consensus by taking into      account the concerns of all Members on many contentious issues. The conference      ended with a Ministerial Statement which recognised that more work needed to be      done in key areas to enable WTO Member countries to proceed towards the      conclusion of negotiations under the Doha mandate.

5. The developments at Cancun have been a disappointment for us. We are interested      in having a healthy, effective multilateral trading system, which would provide      the institutional backdrop for a process of economic development that would      benefit all countries. The overriding priority and consideration for a developing      country like India in any trading arrangement is the implication of such an      arrangement for its economic development. This focus on development determines our      position on any trade rules and proposals at the WTO. Our goal at Cancun on major      issues was guided by national interest.

6. In agriculture, our desire was to ensure that agriculture markets across the world      are freed from the substantial distortions that are caused by large scale subsidisation.      These distortions prevent agriculture from fulfilling its potential of being an engine of      growth. Income inequalities caused so far by such distortions continue. It is essential      in the interests of equity, justice and fair play that the distortions in agriculture are      gradually eliminated. Therefore, agricultural market access in developing countries has      to be sequenced appropriately with reductions in market distortions elsewhere. At the      same time, we wish to protect the interests of the millions of subsistence level      framers who depend on agriculture as their sole means of sustenance. Therefore,      there has to be a calibrated approach to market access vis-à-vis reduction in      distortions in agriculture with a transition period in which affected farmers are      shielded through the use of special safeguard mechanisms and protection for special      products. In view of all this, expecting us to make onerous market access      commitments inconsistent with the reality in agriculture was unreasonable. The draft      modalities on agriculture proposed at Cancun, on the other hand, did not take into      account these concerns fully and would in all probability, have perpetuated      distortions. We had no choice but to oppose these modalities.

7. On tariff negotiations in non-agricultural products, significant convergence in      negotiating positions could be realised by taking on board the concerns of all      Members.

8. On Singapore Issues, one has to address the question of multilateral rule making      taking primacy over economic development goals, particularly in areas where the      interplay between these new issues and development is unknown. The Ministerial      Conference had to take a decision on modalities for all the Singapore Issues.      However, this was to be by explicit consensus. Discussions clearly revealed that not      only was this consensus absent but that most developing countries felt that the      clarification process on these issues had not run its full course. In the absence of      clarity on many elements, a majority of the membership of the WTO had rejected      launch of negotiations on these issues and sought a continuation of the clarification      process. There were concerns that a framework on Investment would constrain the      policy space for developing countries in utilising FDI for their development goals.      There was no certainty that such a framework would lead to larger FDI flows nor was      any need for a framework demonstrated. On Competition Policy, the issue of      encroaching upon the freedom of competition authorities was disquieting. The      benefits of a framework on Transparency in Government Procurement was also not      clear. In spite of this, proposals tabled suggested launch of negotiations in some      areas. In the absence of explicit consensus, launching negotiations was, however, an      impossibility.

9. India was also disappointed that no time frame was prescribed for resolving      outstanding implementation issues. These issues highlight the imbalances arising      out of the Uruguay Round agreement and need to be addressed on a priority basis so      that imbalances brought in by the Uruguay round are redressed. On Special &      Differential Treatment Issues, India felt that adequate urgency was not being shown      in addressing these issues.

10. An important outcome from our viewpoint is the engagement of developing      countries in the negotiating process. Unlike in the past, when they were      blamed for non-participation, the degree of participation of the large group of      developing countries is a welcome development. Not only have developing      countries become participants in the process but have also shown adequate      flexibility to reach out to other fellow countries to form alliances which have      been formed during and after the conference. The G-20 on Agriculture and the      G-16 on Singapore Issues embody the desire of developing countries to      generate common positions on issues.

11. The Ministerial Conference concluded with a Ministerial Statement which recognised      that more work needed to be done in some key areas to enable WTO Member      countries to proceed towards the conclusion of negotiations under the Doha      mandate. The Ministerial Statement has instructed officials to continue working on      outstanding issues with a renewed sense of urgency and purpose and taking fully into      account all the views expressed in the Ministerial Conference. The Chairman of the      General Council of the WTO, working in close coordination with the Director General,      were also asked to coordinate this work and to convene a meeting of the General      Council at senior officials level no later than 15th December 2003 to enable successful      and timely conclusion of the negotiations.

12. As Hon’ble Members would appreciate, trade negotiations are a protracted process.      We have been engaging constructively in the negotiations and are optimistic that      despite the lack of progress at the Cancun Ministerial Conference, it would be      possible to move forward in the weeks to come. Agriculture has been at the core of      the negotiations. Our sensitivities on Singapore Issues also need to be understood.      We are also committed to ensuring that ‘development’ lies at the core of the Doha      agenda, as mandated at the Doha Ministerial Conference of WTO.

13. For India, the multilateral process is an extremely important one. We believe      that a rule based trading system provides a fair, transparent, predictable,      secure and durable environment for trade relations between nations. We have      been demanding that the system be fair – fair to our development goals, to our      economic needs, to our economic and social reality and to our aspirations. The      multilateral system continues to enjoy our support and we are participating in the      process of further negotiations in Geneva. We are willing to work together and      engage in a process of give and take so that mutually acceptable outcomes may be      reached. Movement forward demands understanding and accommodation. Our only      desire is that the discussions be carried out in a more understanding and sensitive      manner so that trade liberalization does actually deliver the fruit of development”.

 

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IMPORTANT EVENTS ON WTO FRONT DURING DECEMBER 2003

The General Council meeting at senior officials level mandated by the Cancun Ministerial Conference of WTO took place during 15-16 December 2003 in Geneva, where Special Secretary participated. The meeting did not take any specific decision. However, from the statements by members and the concluding statement by the Chairman of the General Council the following points became clear: (I) There is a general willingness on the part of al WTO Members to move forward with the Doha Agenda and to conclude negotiations as per schedule, though doubts persisted about he feasibility of timely conclusion of negotiations; (ii) the various negotiating bodies that remain suspended should be revived; (iii) the overall coordination of negotiations should be by the Trade Negotiations Committee (TNC); (iv) to start with, a new Chairman of the General Council should be elected. Chairs of other negotiating bodies should also be elected. In our statement we supported early resumption of negotiations. We argued for the dropping of the issues of Investment and Competition policy from the agenda of WTO and registered our reservations against ‘blended’ approach as proposed now, as far as negotiations on agriculture are concerned.

India’s initial offer, which was tabled at the WTO on December 16, 2003, envisages greater commitments in the Engineering, Computer and Related Services, Telecommunications, Construction and Related Engineering services, Financial services, Hospital services, and Tourism & Travel related services. In addition, fresh commitments are being offered in Accounting and Book-keeping services, Medical, Dental and Midwives’ services and Maritime Transport services. We have also expanded the scope of the offer under Mode 4 at the horizontal level to cover contractual service suppliers, de-linked from commercial presence.

The initial offer would point towards the direction in which we are willing to liberalise. However, it has no legal status and can be withdrawn or amended at any time if we judge that the offers made by our trading partners do not adequately address the requests we have made. Should we be less than satisfied, we would scale down or even withdraw the commitments offered.

On agriculture, on 11-12 December 2003, the Government of Brazil hosted a Ministerial meeting of the G-20 countries on agriculture. The G-20 meeting was attended by 19 Members. Ecuador, which had earlier indicated its inability to remain in the Group, was represented at this meeting. Tanzania has also since joined the G-20. The purpose of this meeting was to assess the current state-of-play in the WTO negotiations, particularly in the agricultural sector, strengthen cooperation among the Members of the G-20, and develop a further joint strategy for the G-20. Towards this, the G-20 issued a Joint Communiqué outlining the outcome of its useful discussions. It is also noteworthy that the EU Trade Commissioner Pascal Lamy attended this meeting, and the frank and detailed exchange of views was emphasised in the Joint Communiqué issued by the EU and the G-20. This meeting was also attended by Dr. Supachai Panitchpakdi, Director General, WTO. The common position evolved between the G-20 on agriculture was subsequently presented at the meeting of the WTO at Geneva at Senior Officials level on 15-16 December 2003 held in accordance with the decision of the Ministers at this meeting in Cancun, Mexico.

On 8th December 2003 the European Communities has requested consultations with India under the WTO’s Dispute Settlement Understanding in respect of anti-dumping duties imposed by India against imports from EC in 27 cases. EC’s consultation request has raised various issues regarding these 27 measures but the main concern of EC appears to be that the determination of the effect of dumped imports and the causal link with injury does not seem to be based on positive evidence and on an objective examination. EC has also questioned adherence by India to the obligation requiring disclosure of relevant information on the matters of fact and law and the reasons which led to the imposition of the anti-dumping measures.

We have indicated our willingness to enter into consultations with the EC in this dispute. The date and venue of the consultations is under finalisation.

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          INDIA CALLS FOR DROPPING OF 3 SINGAPORE ISSUES

(Text of Intervention by Mr. S.N. Menon on behalf of India at the General Council Meeting of Capital Based Officials, 15-16 December, 2003

We believe that today’s meeting is of significance in our effort to conclude the Doha Programme on time. Our Ministers have directed at Cancun that senior officials should take necessary action not later than 15th December, 2003 to work on a road map to successfully conclude the negotiations. During the period post-Cancun, the Chairman of the General Council and the DG have worked tirelessly. We, like many other delegations, made genuine efforts to facilitate reactivation of the multilateral process. Recently, Ministers of the G-20, meeting in Brasilia, issued a communiqué in which “they reaffirmed their commitment to the successful and timely completion of the Doha Development Agenda based on the fulfilment of the mandate agreed to during the Fourth Ministerial Conference”. It is in this spirit, therefore, that we, like other members of the G-20, approach the negotiations.

Mr. Chairman, we thank you for your report. We are in agreement with your view that there is now need to revive the negotiating structure brought into place by the Trade Negotiations Committee decision of 1 February, 2002 in pursuance of the Ministers’ decision at Doha with such changes as are necessary to ensure early completion of all aspects of the negotiating mandate. In our view, this would necessitate a meeting of the Trade Negotiations Committee early next year to decide on the structure and the work programme. The mandate in respect of each negotiating issue has already been decided by the Ministers at Doha. Our task is, therefore, limited to the formulation of a work programme that would ensure expeditious completion of negotiations. The key issues identified by you would need to be examined and developed by each of the bodies.

After Cancun, all Members have utilised every opportunity that came their way to re-launch the Doha agenda. While there is a manifest desire on the part of all Delegations to make fast progress in the negotiations, there still remain strong differences on substance. One problem on which no convergence has so far emerged is how the issues could be tackled and the process of resumption of negotiations. On the starting point for the negotiation, we would like to recall the Ministerial statement at Cancun and I quote “We will bring into this new phase all the valuable work that has been done at this Conference. In those areas where we have reached a high level of convergence on texts, we undertake to maintain this convergence while working for an acceptable overall outcome.” The Ministers have not directed us to start from a text, but from “texts”. Secondly, they have asked us to maintain convergence on those areas where there is a high level of convergence and to build on the valuable work that has been done at Cancun. Members have also engaged themselves in discussions on this issue in various fora after the Cancun Ministerial Conference. We should not fail to capitalise on the work already carried out pre-Cancun, at Cancun and post-Cancun. The areas in which convergence has so far emerged and the valuable work already done at Cancun should be the basis for carrying on further work.

The issue of agriculture is at the core of the on-going negotiations. Resolution of fundamental differences in this area would depend on the depth of agriculture reform that is proposed to be carried out in the developed countries along with adequate safeguards to address livelihood and food security concerns of billions of farmers in developing countries. We have a responsibility to translate the Doha mandate into provisions that would ensure balance across the three pillars. The right level of ambition in agriculture would be that which balances the extent of reduction in distortions in world markets due to high support and protection in developed countries against the increased vulnerability of billions of farmers in developing countries due to further opening of their markets.

We have been working on a framework approach in agriculture, as in non-agricultural market access. Our assumption was that agreement on a framework would facilitate and expedite the finalisation of modalities which will form the basis of agricultural and non-agricultural liberalisation. A framework would, however, find acceptance only if certain conditions are fulfilled. The first condition is that it must fully reflect the principles laid down in the Doha mandate. To quote again from the G-20 Ministerial communiqué, issued last week at Brasilia, “The G-20 insists that, in the process of reaching agreement on a final set of modalities, the level of ambition of the Doha mandate remains the guiding principle of the negotiations. In such a process, any framework in order to be viable should be consistent with the Doha mandate, and lead to the establishment of modalities capable of ensuring that negotiations in agriculture would result in substantial reductions in domestic support, substantial increase in market access, phasing out of all forms of export subsidies and operational and effective special and differential treatment that takes into account rural development and food security concerns of developing countries”, besides effectively addressing the particular concerns of recently acceded countries. The second condition for acceptance of a framework is that it must not be ambiguous or uncertain. In this context, we have already brought to your attention our apprehensions regarding the blend approach for market access, suggested in the Derbez text, as it seems to impact differently on member countries depending on the tariff dispersion prevalent in each country and also does not take into account the cardinal principles of special and differential treatment through less than full reciprocity and a balance between the average tariff reduction undertaken by developed countries and that undertaken by developing countries. The Harbinson Approach and the tiered Uruguay Round formulation for developing countries as given in the Rev.1 Text are examples of approaches which could provide parity in efforts between various WTO members. The third condition for acceptance of a framework would be that the elements of the framework should not be structured in a manner that would prejudice the position of Member countries in further negotiations. We must not unwittingly agree to a framework that limits the scope for trade offs in the future. In the light of all these problems associated with frameworks, India as well as several other countries have suggested that it would be advantageous to negotiate some key numbers along with the framework in order to make it more certain and unambiguous. I note in particular that the distinguished Ambassador of China has made this point in his intervention today.

The issue of cotton subsidies, raised by several of our African colleagues, is one that deserves concrete action. Our discussion of this issue has been largely confined to the procedure to be followed rather than the substance. Progress on this issue can be achieved only if there is a response on the substance of the issue as you have mentioned in your report.

On NAMA, India would like to emphasise that it is essential to remain faithful to the mandate given under paragraphs 16 and 50 of the Doha Declaration, particularly the principle of less than full reciprocity in reduction commitments for developing countries. The right way forward does not appear to be a simple Swiss Formula with a single coefficient nor the concept of harmonisation of tariffs. The formula proposed by the Chairman of the negotiating group incorporated suitable S&D provisions and we are willing to work further on this. However, if there is to be only a general reference to a formula approach to reduction of tariffs, then it should be explicitly clarified that proposals relating to the formula put forward by all Members are still on the table. It also needs to be recognised that developing countries need a degree of flexibility with respect to sensitive products. Accordingly, the flexibility provided under para 7 of the Draft Annex “B” could be further refined. It would be appropriate to have the options of using both types of flexibilities proposed rather than having them as mutually exclusive alternatives.

Sectoral initiative should be voluntary rather than mandatory for developing countries, and can form part of supplementary modalities. The principle of less than full reciprocity in reduction commitments needs to be incorporated in any sectoral initiatives for elimination of tariffs so that there is non-zero tariff for developing countries. Finally, India would like to reiterate that non-tariff barriers are an integral part of the NAMA negotiations and should be adequately dealt with in the finalization of modalities.

At Doha, Ministers had emphasised the need to find effective and adequate solutions for the implementation issues raised by members and the importance of making special and differential treatment provisions precise, effective and operational. The Subsidiary Bodies of the WTO were mandated by the Doha Declaration to deliberate upon certain implementation issues and make recommendations for adoption by the General Council/ TNC by December 2002. There has been hardly any progress in the successful resolution of implementation issues in the period after Doha. As implementation issues are an integral part of the Doha Ministerial Declaration we have been consistently advocating the stand that these issues will have to be addressed on a priority basis, as decided by the Ministers at Doha. There is urgent need to agree on specific procedures for resolving the outstanding implementation issues and to operationalise S&DT provisions. Before the Cancun Ministerial Conference, a number of developing countries, including India, had sought the creation of a separate negotiating body to address and resolve implementation issues. Our experience during the last two years has now convinced us that there can be no other solution to deal with implementation issues and special and differential treatment issues in an effective manner and we call upon the General Council or the Trade Negotiations Committee, as the case may be, to create a separate negotiating body exclusively for implementation issues and special and differential treatment issues. This negotiating body should also address the issue of commodity price stabilisation in agricultural products that had been raised by Kenya and other African countries in the run up to Cancun. As Kenya had pointed out in the General Council discussions that followed introduction of their paper, this is one of the unresolved issues arising from Part IV of GATT and is of great significance to many developing countries.

On Singapore Issues, a large number of developing and least developed countries, including India, have already clearly set forth their views in the General Council document WT/GC/W/522 dated 12 December 2003. We fully endorse the views set out in this document. I do not, therefore, need to further elaborate our position which is essentially that further work on trade and investment, trade and competition policy and transparency in Government procurement should be dropped. With regard to Trade Facilitation, work on clarification of various aspects of this issue may continue in the light of the interest expressed by several Delegations. However, many of the proposed elements would require substantial commitments in terms of modernisation and upgradation of systems, infrastructure and computerisation. A related issue is how resources would be made available to developing countries. Clarity is also required on the mechanisms for handling situations where infrastructural facilities available in a member country at different entry points vary widely. Another grey area is how the proposed principles of proportionality, necessity, least trade restrictiveness, periodic review and non-discrimination would apply to customs procedures adopted on account of security considerations. We would also be very much interested in discussing a multilateral framework for effective cooperation between customs authorities to combat unlawful activities as part of any package on trade facilitation. We believe that this is an integral component to adoption of trade facilitative procedures. Similarly, we are also keen to see that while discussing trade facilitation, we do not lose sight of other pending trade facilitative issues, particularly, a time bound completion of the Harmonisation Work Programme under the Agreement on Rules of Origin and to address the implementation issues related to the Agreement on Customs Valuation. We also hold the view that any discussion on trade facilitation cannot exclude the trade restrictive aspects of quarantine procedures followed by many countries and the fact that such procedures should be subject to definite time frames and stricter conditions. Any clarification on trade facilitation, however, should not attempt to seek an early harvest in advance of progress on core issues in Doha Work Programme. Furthermore, any subsequent decision on modalities would need to be by explicit consensus, before negotiations can commence.

Mr. Chairman, I am aware that you are fully conscious of the fact that we would need clarity on any aspect of the Singapore issues. We would need to know what issues remain on the WTO Work Programme, what structures would be put in place and what would constitute the terms of reference of any future work. More consultations at the level of the General Council would be needed to clarify these aspects and India would engage constructively in all such consultations.

The way forward would involve genuine effort on the part of all Members to show a spirit of goodwill and accommodation in the negotiations. We need to discuss substance now. Where else can this be done but in the negotiating bodies? On Singapore Issues, it must be noted that a large number of members, perhaps constituting the majority, have expressed their views clearly. We must not repeat the Cancun experience and ignore their views any more. Addressing the issue of cotton and other development related issues in a sincere and time bound manner is essential. The Doha agenda has been termed Doha Development Agenda and there should be conscious and concerted efforts to ensure that the development dimension is not diluted, but occupies centre stage. This alone would ensure progress in trade liberalisation on a sustainable basis. Lastly, as the festive season is approaching, I would like to wish all of you a merry happy Christmas and a happy New Year. I hope, Mr. Chairman, that 2004 could be a productive and useful year in which substantial progress could be achieved.

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                      SINGAPORE ISSUES: THE WAY FORWARD
Joint Communication from Bangladesh (on behalf of the LDC Group), Botswana, China, Cuba, Egypt, India, Indonesia, Kenya, Malaysia, Nigeria, Philippines, Tanzania, Uganda, Venezuela, Zambia and Zimbabwe

The following joint communication, dated 12 December 2003, is being circulated at the request of the Delegations of Bangladesh (on behalf of the LDC Group), Botswana, China, Cuba, Egypt, India, Indonesia, Kenya, Malaysia, Nigeria, Philippines, Tanzania, Uganda, Venezuela, Zambia and
Zimbabwe :

In the Doha Ministerial Declaration (paragraphs 20, 23, 26 and 27), relating to the Singapore issues, Ministers stated that negotiations will take place after the Fifth Session of the Ministerial Conference on the basis of a decision to be taken, by explicit consensus, at that Session on the modalities of negotiations. It is thus clear that a decision on modalities, by explicit consensus, is required before negotiations can commence. Certain elements were identified for clarification, besides which Members were free to raise other issues of relevance. A work programme on each of these issues was adopted, which was to be completed in the period until the Fifth Session.

However, during this period, various elements relating to each of the four issues remained unclear. More importantly, there was significant divergence of views among Members on each of the Singapore issues. A group of countries, in response to the Chairman’s Draft Ministerial Text (Job(03)/150/Rev.1), indicated, in their Ministerial Conference document (WT/MIN(03)/W/4 dated 4 September 2003), the various elements that need to be clarified in respect of each of these issues.

At the Cancún Ministerial Conference, discussions on the Singapore issues were held under a Facilitator. A large number of developing country Members expressed concern, inter alia, about the impact that multilateral rules on the four Singapore issues would have on their domestic polices and the fact that they have neither the negotiating resources nor the capacity to implement obligations, which such multilateral rules will entail. A revised text was produced by the Chairman of the Cancún Ministerial Conference (Job (03)/150/Rev.2 dated 13 September 2003). The revised text on Singapore issues, however, did not address the concerns of the majority of Members, who expressed their strong opposition to it. As a consequence, no decision was taken at the Cancún Ministerial Conference by explicit consensus on the modalities of negotiations on any of the four Singapore issues. The Ministers, in their Statement (WT/MIN (03)/20) adopted on 14 September 2003, instructed officials to continue work on outstanding issues and asked the Chairman of the General Council, working in close co-operation with the Director General, to co-ordinate this work. The Ministers also stated, “We will bring with us into this new phase all the valuable work that has been done at this Conference. In those areas where we have reached a high level of convergence of texts, we undertake to maintain this convergence while working for an acceptable overall outcome.”

Subsequent to the Cancún Ministerial Conference, the Chairman of the General Council has held informal discussions with Delegations on these issues. However, the fact remains that on all these issues, there continues to be significant divergence of views among Members, and in the absence of explicit consensus, there is no basis for the commencement of negotiations.

Article III:2 of the Marrakesh Agreement Establishing the WTO makes it clear that “the WTO shall provide the forum for negotiation among its Members concerning their multilateral trade relations.....”. The core competence of the WTO lies in trade in goods and services. The co-sponsors of this paper believe that binding disciplines on Singapore issues would certainly not only curtail the policy space for developing countries but would also entail high costs, which many developing countries cannot afford at their present level of development. Moreover, due to continued division over such a long period among Members on the status and substance of the Singapore issues and in the interest of early completion of this round of negotiations, we should concentrate our efforts first and foremost on issues of core competence of the WTO namely, agriculture, non-agricultural market access, services and development issues.

It is also important to note that in the Green Room process at Cancún, one major proponent of the Singapore issues was willing to drop further work on two issues, namely, Trade and Investment and Trade and Competition Policy. During further discussions in the Green Room meeting, it became clear that there was no consensus on the need for any multilateral disciplines on Transparency in Government Procurement and hence, there was a suggestion that further work on this issue may also be dropped. The co-sponsors of this paper, therefore, are of the view that all further work on Trade and Investment, Trade and Competition Policy and Transparency in Government Procurement should be dropped.

With regard to Trade Facilitation, work on clarification of various aspects of this issue may continue in the light of the interest expressed by several Delegations. However, this work should be carried out in parallel with the other segments of the Doha Work Programme and there should be no attempt to seek an early harvest on Trade Facilitation in advance of progress on core issues in Doha Work Programme. This work must also address the points raised by a group of developing and least developed countries, which are contained in Ministerial Conference document (WT/MIN(03)/W/4 dated 4 September 2003) such as cost of compliance, justification of any binding rules subject to the DSU, commitment for provision of technical and financial assistance to meet the cost of compliance and implementation of any possible multilateral framework. Furthermore, after completion of the clarification process, a decision would need to be taken on the modalities, by explicit consensus, before negotiations can commence.

The co-sponsors would also like to make it clear that they are against the efforts for the adoption of a plurilateral approach in respect of any multilateral issues because such an approach is systemically unsuitable for a consensus-based multilateral organisation like the WTO. A plurilateral approach could lead to a two-tier system of membership, which would be contrary to the basic character of the WTO.

 

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INTRODUCING THE PRODUCT PATENTs REGIME Third Amendment to the Patents Act, 1970

 

The law relating to patents is contained in the Patents Act, 1970, which came into force from April 20, 1972.

This Act was amended in March, 1999 to introduce a transitional facility (mailbox) from January 1, 1995 to receive and hold product patent applications in the fields of pharmaceuticals and agriculture chemicals till January 01, 2005. Further, it also provided that, on fulfillment of certain conditions, exclusive marketing rights would be available for a period of 5 years or till the product patent is granted or patent application is rejected, whichever is earlier. This was done to meet India’s international obligations, which came into force from January 01, 1995 under the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs).

The Act was again amended in June, 2002 to meet the obligations under the TRIPs Agreement which came into force from January 01, 2000. This amendment related to modifications in the provisions concerning rights of patentee, term of patent protection, compulsory licensing, reversal of burden of proof, etc. Certain provisions were also made in the law to simplify and rationalise the procedural aspects so as to achieve greater user satisfaction. The Joint Committee of Parliament which examined the amendments notified in June, 2002 provided in the legislation effective flexibilities to enable an appropriate, timely and efficient response to national and public interest requirements/concerns, especially those relating to public health and nutrition.

The Act was again required to be amended to meet the obligations under the TRIPs Agreement, which are due from January 01, 2005. This is mainly related to introduction of product patent protection in all fields of technology.

Given the importance of the issues, the Government undertook broad-based and extensive consultations involving different interest groups on aspects critical to the changes which may be necessary in the Patents Act, 1970.

A Bill to amend the Act, namely, the Patents (Amendment) Bill, 2003 was introduced in Parliament (Lok Sabha) on December 22, 2003.

While considering amendments to the Act, efforts have been made to make the law not only TRIPS compliant but also to simplify and rationalise the procedure governing grant of patents so as to make the system more user-friendly.

Some of the salient features of the Bill are as under:

a) to introduce product patent protection in all fields of technology as per Article 27 of the TRIPS Agreement;

b) to delete the provisions relating to exclusive marketing rights and to introduce a transitional provision for safeguarding exclusive marketing rights already granted;

c) to introduce a provision for enabling grant of compulsory licence for export of medicines to countries which have insufficient or no manufacturing capacity to meet emergent public health situations. This provision is in accordance with the agreement reached on August 30, 2003 for implementation of Para 6 of the Doha Declaration on TRIPS and Public Health;

d) to amend and strengthen the provisions relating to national security;

e) to amend the provisions relating to Appellate Board with a view to extending its jurisdiction to revocation of patents also;

f) to amend the provisions relating to opposition procedures;

g) to amend certain provisions with a view to harmonising them with the Patent Cooperation Treaty to which India is a signatory;

h) to amend the provisions relating to time lines for different activities with a view to introducing flexibility and reducing the processing time for patent application.

i) to amend provisions of the Act with a view to simplifying and rationalising the procedure aimed at benefiting the users.
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                                                                                     As introduced in Lok Sabha on 22                                                                                            December, 2003 Bill No.92 of 2003

The Patents (Amendment) Bill, 2003 - Text  

A BILL
further to amend the Patents Act, 1970

 

Be it enacted by Parliament in the Fifty-fourth Year of the Republic of India as follows :-
Short title and commencement

1.   (1) This Act may be called the Patents (Amendment) Act, 2003.
     (2) It shall come into force on such date as the Central Government may, by notification in the                 Official Gazette, appoint; and different dates may be appointed for different provisions of this             Act and any reference in any such provision to the commencement of this Act shall be                      construed as a reference to the coming into force of that provision.

39 of 1970                                                                                                          Amendment of Section 2

2. In section 2 of the Patents Act, 1970 ( hereinafter referred to as the principal Act ), in sub-section (1).-

(a) after clause (ab), the following clause shall be inserted, namely:-
‘(aba) “Budapest Treaty” means the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure done at Budapest on 28th day of April, 1977, as amended and modified from time to time;

(b) in clause (d), for the words, brackets and figures “notified as such under sub-section (1) of section 133”, the words and figures “ referred to as a convention country in section 133” shall be substituted;

(c) clause (g) shall be omitted;

(d) in clause (h),-
(i) in sub-clause (iii), after the words and figures “the Companies Act, 1956”, the word “or” shall be inserted; - 1 of 1956 (ii) after sub-clause (iii), the following sub-clause shall be inserted, namely:-
“(iv) by an institution wholly or substantially financed by the Government;”.
(iii) the words “and includes the Council of Scientific and Industrial Research and any other institution which is financed wholly or for the major part by the said Council” shall be omitted;

(e) for clause (i), the following cluase shall be substituted, namely:-
‘(i) “ High Court”, in relation to a State or Union territory, means the High Court having territorial jurisdiction in that State or Union territory, as the case may be;’

(f) for clauses (i) and (m), the following clause shall be substituted, namely:-
(l) “Opposition Board” means an Opposition Board constituted under sub-section (4) of section 25;

(m) “patent’ means a patent for any invention granted under this Act;

Amendment of Section 3
3. In section 3 of the principal Act, in clause (d), for the words “new use”, the words “mere new use” shall be substituted.

Omission of Section 5
4. Section 5 of the prinicipal Act shall be omitted.

Amendment of Section 7
5. In section 7 of the principal Act, -
(a) after sub-section (1A), the following sub-section shall be inserted, namely:-
“(1B) The filing date of an application referred to in sub-section (IA) and its complete specification processed by the patent office as designated office or elected office shall be the international filing date accorded under the Patent Cooperation Treaty.”;
(b) in sub-section (3), for the word “owner”, the word “person” shall be substituted;
(c) for sub-section (4), the following sub-section shall be substituted namely:-
“(4) Every such application (not being a convention application or an application filed under Patent Cooperation Treaty designating India) shall be accompanied by a provisional or a complete specification.”

Amendment of Section 8
6. In section 8 of the principal Act, -
(a) in sub-section (1), -
(i) for the words “within such period as the Controller may, for good and sufficient reasons, allow”, the words “within the prescribed period as the Controller may allow” shall be substituted;
(ii) in clause (b), for the words “up to the date of the acceptance of his complete specification filed in India”, the words “up to the date of grant of patent in India” shall be substituted;
(b) for sub-section (2), the following sub-section shall be substituted, namely:-
“(2) At any time after an application for patent is filed in India and till the grant of patent or refusal to grant of a patent made thereon, the Controller may also require the applicant to furnish details, as may be prescribed, relating to the processing of the application in a country outside India, and in that event the applicant shall furnish to the Controller information available to him within such period as may be prescribed.”

Amendment of Section 9
7. In section 9 of the principal Act,
(a) for sub-section (1), the following sub-section shall be substituted, namely:
“(1) Where an application for a patent (not being a convention application or an application filed under the Patent Cooperation Treaty designating India) is accompanied by a provisional specification, a complete specification shall be filed within twelve months from the date of filing of the application, and if the complete specification is not so filed, the application shall be deemed to be abandoned.”;
(b) in sub-section (2), the following proviso shall be inserted at the end, namely:
“Provided that the period of time specified under sub-section (1) shall be reckoned from the date of filing of the earliest provisional specification.”;
(c) for sub-section (3), the following sub-section shall be substituted, namely:
“(3) Where an application for a patent (not being a convention application or an application filed under the Patent Cooperation Treaty designating India) is accompanied by a specification purporting to be a complete specification, the Controller may, if the applicant so requests at any time within twelve months from the date of filing of the application, direct that such specification shall be treated, for the purposes of this Act, as a provisional specification and proceed with the application accordingly.”;
(d) in sub-section (4), for the words “the acceptance of the complete specification”, the words “grant of patent” shall be substituted.

Amendment of Section 10
8. In section 10 of the principal Act,-
(a) in sub-section (3) for the words “before the acceptance of the application”, the words “before the application is found in order for grant of a patent” shall be substituted;
(b) in sub-section (4), in the proviso,
(i) in clause (ii), for the words “the material to an authorised depository institution as may be notified by the Central Government in the Official Gazette”, the words “the material to an international depository authority under the Budapest Treaty” shall be substituted;
(ii) for sub-clause (a), the following sub-clause shall be substituted, namely:
“(a) the deposit of the material shall be made not later than the date of filing the patent application in India and a reference thereof shall be made in the specification within the prescribed period;”;
(c) for sub-section (4A), the following sub-section shall be substituted, namely:
“(4A) In case of an international application designating India, the title, description, drawings, abstract and claims filed with the application shall be taken as the complete specification for the purposes of this Act”.

Amendment of Section 11
9. In section 11 of the principal Act,-
(a) after sub-section (3), the following sub-section shall be inserted, namely:
“(3A) Where a complete specification based on a previously filed application in India has been filed within twelve months from the date of that application and the claim is fairly based on me matter disclosed in the previously filed application, the priority date of that claim shall be the date of the previously filed application in which the matter was first disclosed.”;
(b) in sub-section (6). after the brackets and figure “(3).”, the brackets, figure and letter “(3A),” shall be inserted.

Amendment of Section 11A
10. In section 11 A of the principal Act,-
(a) for sub-sections (1) to (3), the following sub-sections shall be substituted, namely:
“(1) Save as otherwise provided, no application for patent shall ordinarily be open to the public for such period as may be prescribed.
(2) The applicant may, in the prescribed manner, request the Controller to publish his application at any time before the expiration of the period prescribed under sub-section (1) and subject to the provisions of sub-section (3), the Controller shall publish such application as soon as possible.
(3) Every application for a patent shall, on the expiry of the period specified under sub-section (1), be published, except in cases where the application
(a) in which secrecy direction is imposed under section 35; or
(b) has besn abandoned under sub-section (1) of section 9; or
(c) has been withdrawn three months prior to the period prescribed under sub-section (1).”;
(b) after sub-section (6), the following sub-section shall be inserted, namely:
“(7) On and from the date of publication of the application for patent and until the date of grant of a patent in respect of such application, the applicant shall have the like privileges and rights as if a patent for the invention had been granted on the date of publication of the application:
Provided that the applicant shall not be entitled to institute any proceedings for infringement until the patent has been granted.”,

Amendment of Section 11B
11. In section 11 B of the principal Act,-
(a) for sub-section (1), the following sub-section shall be substituted, namely:
“(1) No application for a patent shall be examined unless the applicant or any other interested person makes a request in the prescribed manner for such examination within the prescribed period.”;
(b) sub-section (2) shall be omitted;
(c) for sub-section (3), the following sub-section shall be substituted, namely:
“(3) In case of an application in respect of a claim for a patent filed under sub-section (2) of section 5 before the commencement of the Patents (Amendment) Act, 2003, a request for its examination shall be made in the prescribed manner and within the prescribed period by the applicant or any other interested person.”;
(d) in sub-section (4)
(i) the words, brackets and figure “or sub-section (2)” shall be omitted;
(ii) for the proviso, the following proviso shall be substituted, namely:
“Provided that -
(i) the applicant may, at any time after filing the application but before the grant of a patent, withdraw the application by making a request in the prescribed manner, and
(ii) in a case where secrecy direction has been issued under section 35, the request for examination may be made within the prescribed period from the date of revocation of the secrecy direction.”.

Amendment of Section 12
12. In section 12 of the principal Act,
(a) in sub-section (1), for the words, brackets, figures and letter “under sub-section (1) or sub-section (2) or sub-section (3) of section 11B, the application and specification and other documents shall be referred to by the Controller”, the words, brackets, figures and letter “under sub-section (1) or sub-section (3) of section 11B, the application and specification and other documents related thereto shall be referred at the earliest by the Controller” shall be substituted;
(b) in sub-section (2) for the words “a period of eighteen months from the date of such reference”, the words “such period as may be prescribed” shall be substituted.

Amendment of Section 13
13. In section 13 of the principal Act, in sub-section (3), for the words “it has been Amendment of accepted”, the words “the grant of a patent” shall be substituted.
Substitution of new sections for Sections 14 & 15
14. For sections 14 and 15 of the principal Act, the following sections shall be substituted, namely:

Consideration of the report of examiner by Controller
“14. Where, in respect of an application for a patent, the report of the examiner received by the Controller is adverse to the applicant or requires any amendment of the application, the specification or other documents to ensure compliance with the provisions of this Act or of the rules made thereunder, the Controller, before proceeding to dispose of the application in accordance with the provisions hereinafter appearing, shall communicate as expeditiously as possible the gist of the objections to the applicant and shall, if so required by the applicant within the prescribed period, give him an opportunity of being heard.

Power of Controller to refuse or require amendment of applications, etc., in certain cases.
15. Where the Controller is satisfied that the application or any specification or any other document filed in pursuance thereof does not comply with the requirements of this Act or of any rules made thereunder, the Controller may refuse the application or may require the application, specification or the other documents, as the case may be, to be amended to his satisfaction before he proceeds with the application and refuse the application on failure to do so.”.

Amendment of Section 16
15. In section 16 of the principal Act,- (a) in sub-section (1), for the words “before the acceptance of the complete specification”, the words “before the grant of the patent” shall be substituted; (b) for the Explanation, the following Explanation shall be substituted, namely:
“Explanation.- For the purposes of this Act, the further application and the complete specification accompanying it shall be deemed to have been filed on the date on which the first mentioned application had been filed, and the further application shall be proceeded with as a substantive application and be examined when the request for examination is filed within the prescribed period.”.

Amendment of Section 17
16. In section 17 of the principal Act, in sub-section (1), for the words “before acceptance of the complete specification”, the words “before the grant of the patent” shall be substituted.

Amendment of Section 18
17. In section 18 of the principal Act,-
(a) in sub-section (1), for the words “to accept the complete specification”, the words “the application” shall be substituted;
(b) sub-section (4) shall be omitted.

Amendment of Section 19
18. In section 19 of the principal Act, in sub-section (1), for the words and figures “by the foregoing provisions of this Act or of proceedings under section 25”, the words “under this Act” shall be substituted.

Substitution of new section for section 21
19. For section 21 of the principal Act, the following section shall be substituted, namely:

Time for putting application order for grant.
“21. (1) An application for a patent shall be deemed to have been abandoned unless, within such period as may be prescribed, the applicant has complied with all the requirements imposed on him by or under this Act, whether in connection with the complete specification or otherwise in relation to the application from the date on which the first statement of objections to the application or complete specification or other documents related thereto is forwarded to the applicant by the Controller.
Explanation.- Where the application for a patent or any specification or, in the case of a convention application or an application filed under the Patent Cooperation Treaty designating India any document filed as part of the application has been returned to the applicant by the Controller in the course of the proceedings, the applicant shall not be deemed to have complied with such requirements unless and until he has re-filed it or the applicant, proves to the satisfaction of the Controller that for the reasons beyond his control such document could not be refiled.
(2) If at the expiration of the period as prescribed under sub-section (1),
(a) an appeal to the Appellate Board is pending in respect of the application for the patent for the main invention; or
(b) in the case of an application for a patent of addition, an appeal to the Appellate Board is pending in respect of either that application or the application for the main invention, the time within which the requirements of the Controller shall be complied with shall, on an application made by the applicant before the expiration of the period as prescribed under sub-section (1), be extended until such date as the Appellate Board may determine,
(3) If the time within which the appeal mentioned in sub-section (2) may be instituted has not expired, the Controller may extend the period as prescribed under sub-section (1), to such further period as he may determine:
Provided that if an appeal has been filed during the said further period, and the
Appellate Board has granted any extension of time for complying with the requirements of the Controller, then the requirements may be complied with within the time granted by the Board.”.

Omission of sections 22 to 24
20. Sections 22 to 24 of the principal Act shall be omitted.

Omission of Chapter IV A
21. Chapter IVA of the principal Act shall be omitted.

Substitution of heading of Chapter V
22. In Chapter V of the principal Act, for the Chapter heading “OPPOSITION TO GRANT
OF PATENT”, the Chapter heading “REPRESENTATION AND OPPOSITION PROCEEDINGS” shall be substituted.

Substitution of new sections 25 and 26
23. Sections for 25 and 26 of the principal Act, the following sections shall be substituted, namely:

Representation by third party on patentability and opposition to the patent.
“25. (1) Where an application for a patent has been published but a patent has not been granted, any person may, in writing, represent to the Controller on the by third party grounds Of-
(a) patentability including novelty, inventive step and industrial applicability, or
(b) non-disclosure or wrongful mentioning in complete specification, source and geographical origin of biological material used in the invention and anticipation of invention by the knowledge, oral or otherwise, available within any local or indigenous community in India or elsewhere, and the Controller shall consider and dispose of such representation within the prescribed period.
(2) Notwithstanding anything contained in sub-section (1), the person making a representation referred to in that sub-section shall not become a party to any proceeding under this Act only for the reason that he has made such representation.
(3) At any time after the grant of patent but before the expiry of a period of one year from the date of grant of a patent, any person interested may give notice of opposition to the Controller in the prescribed manner on any of the following grounds, namely:-
(a) that the patentee or the person under or through whom he claims, wrongfully obtained the invention or any part thereof from him or from a person under or through whom he claims;
(b) that the invention so far as claimed in any claim of the complete specification has been published before the priority date of the claim ;
(i) in any specification filed in pursuance of an application for a patent made in India on or after the 1st day of January, 1912; or
(ii) in India or elsewhere, in any other document:
Provided that the ground specified in
sub-clause (ii) shall not be available where such publication does not constitute an anticipation of the invention by virtue
of sub-section (2) or sub-section (i) of section 29;
(c) that the invention so far as claimed in any claim of the complete specification is claimed in a claim of a complete specification published on or after the priority date of the patentee’s claim and filed in pursuance of an application for a patent in India, being a claim of which the priority date is earlier than that of the patentee’s claim;
(d) that the invention so far as claimed in any claim of the complete specification was publicly known or publicly used in India before the priority date of that claim.
Explanation.- For the purposes of this clause, an invention relating to a process for which a patent is granted shall be deemed to have been publicly known or publicly used in India before the priority date of the claim if a product made by that process had already been imported into India before that date except where such importation has been for the purpose of reasonable trial or experiment only;
(e) that the invention so far as claimed in any claim of the complete specification is obvious and clearly does not involve any inventive step, having regard to the matter published as mentioned in clause (b) or having regard to what was used in India before the priority date of the claim;
(f) that the subject of any claim of the complete specification is not an invention within the meaning of this Act, or is not patentable under this Act;
(g) that the complete specification does not sufficiently and clearly describe the invention or the method by which it is to be performed;
(h) that the patentee has failed to disclose to the Controller the information required by section 8 or has furnished the information which in any material particular was false to his knowledge;
(i) that in the case of a patent granted on convention application, the application for patent was not made within twelve months from the date of the first application for protection for the invention made in a convention country or in India by the patentee or a person from whom he derives title;
(j) that the complete specification does not disclose or wrongly mentions the source and geographical origin of biological material used for the invention;
(k) that the invention so far as claimed in any claim of the complete specification was anticipated having regard to the knowledge, oral or otherwise, available within any local or indigenous community in India or elsewhere, but on no other ground.
(4) (a) Where any such notice of opposition is duly given under sub-section (3), the Controller shall notify the patentee.
(b) On receipt of such notice of opposition, the Controller shall, by order in writing, constitute a Board to be known as the Opposition Board consisting of such officers as he may determine and refer such notice of opposition along with the documents to that Board for examination and submission of its recommendations to the Controller.
(c) Every Opposition Board constituted under clause (b) shall conduct the examination in accordance with such procedure as may be prescribed.
(d) On the basis of the recommendation of the Opposition Board, the Controller shall order either to maintain or to amend or to revoke the patent.
(e) In case the Controller issues an order under clause (d) that the patent can be maintained subject to amendment of the specification or any other document, the patent shall stand amended accordingly.

In cases of "obtaining" Controller may treat the patent as the patent of opponent.
26. (1) Where in any opposition proceeding under this Act-
(a) the Controller finds that the invention, so far as claimed in any claim of the complete specification, was obtained from the opponent in the manner set out in clause (a) of sub-section (3) of section 25 and revokes the patent on that ground, he may, on request by such opponent made in the prescribed manner, direct that the patent shall stand amended in the name of the opponent;
(b) the Controller finds that a part of an invention described in the complete specification was so obtained from the opponent, he may pass an order requiring that the specification be amended by the exclusion of that part of the invention.
(2) Where an opponent has, before the date of the order of the Controller requiring the amendment of a complete specification referred to in clause (b) of sub-section (1), filed an application for a patent for an invention which included the whole or a part of the invention held to have been obtained from him and such application is pending, the Controller may treat such application and specification in so far as they relate to the invention held to have been obtained from him, as having been filed, for the purposes of this Act relating to the priority dates of claims of the complete specification, on the date on which the corresponding document was or was deemed to have been filed by the patentee in the earlier application but for all other purposes the application of the opponent shall be proceeded with as an application for a patent under this Act.”.

Omission of section 27
24. Section 27 of the principal Act shall be omitted.

Amendment of section 28
25. In section 28 of the principal Act
(a) for sub-section (4), the following sub-section shall be substituted, namely:-
“(4) A request or claim under the foregoing provisions of this section shall be made before the grant of patent.”;
(b) sub-section (5) shall be omitted;
(c) in sub-section (6), for the words, brackets and figure “Subject to the provisions of sub-section (5), where” the word “Where” shall be substituted.

Amendment of section 31
26. in section 31 of the principal Act, for the words “not later than six months”, the words “not later than twelve months” shall be substituted.

Amendment of section 34
27. In section 34 of the principal Act, for the words “to accept complete specification for a patent or to grant a patent”, the words “to grant a patent” shall be substituted.

Amendment of section 35
28. In section 35 of the principal Act, in sub-section (3), for the words “acceptance of complete specification”, the words “grant of patent” shall be substituted.

Amendment of section 36
29. In section 36 of the principal Act, in sub-section (1), for the words “twelve months”, the words “six months” shall be substituted.

Amendment of section 37
30. In section 37 of the principal Act
(a) in sub-section (1),-
(i) in clause (a), for the words “to accept”, the words “to grant” shall be substituted;
(ii) for the proviso, the following proviso shall be substituted, namely:-
“Provided that the application may, subject to the directions, proceed up to the stage of grant of the patent, but the application and the specification found to be in order for grant of the patent shall not be published, and no patent shall be granted in pursuance of that application.”;
(b) in sub-section (2), for the words “is accepted”, the words “is found to be in
Order for grant of the patent” shall be substituted.

Substitution of new section for section 39
31. For section 39 of the principal Act, the following section shall be substituted. namely:-

Residents not to apply for patents out side India without prior permission
“39. (1) No person resident in India shall, except under the authority of a written permit sought in the manner prescribed and granted by or on behalf of the Controller, make or cause to be made any application outside India for the grant of a patent for an invention unless-
(a) an application for a patent for the same invention has been made in India, not less than six weeks before the application outside India; and
(b) either no direction has been given under sub-section (1) of section 35 in relation to the application in India, or all such directions have been revoked.
(2) The Controller shall expeditiously dispose of every such application within a period not exceeding six weeks:
Provided that if the invention is relevant for defence purpose or atomic energy, the Controller shall not grant the permit without the prior consent of the Central Government.
(3) This section shall not apply in relation to an invention for which an application for protection has first been filed in a country outside India by a person resident outside India.”.

Substitution of heading of Chapter VIII
32. In Chapter VIII of the principal Act, for the Chapter heading “GRANT AND SEALING OF PATENTS AND RIGHTS CONFERRED THEREBY”, the Chapter heading “GRANT OF PATENTS AND RIGHTS CONFERRED THEREBY” shall be substituted.

Substituion of new section for section 43
33. For section 43 of the principal Act, the following section shall be substituted, namely:-

Grant of patents
“43. (1) Where an application for a patent has been found to be in order for grant of the patent and either
(a) the application has not been refused by the Controller by virtue of any power vested in him by this Act; or
(b) the application has not been found to be in contravention of any of the provisions of this Act, the patent shall be granted as expeditiously as possible to the applicant or, in the case of a joint application, to the applicants jointly, with the seal of the patent office and the date on which the patent is granted shall be entered in the register.
(2) On the grant of patent, the Controller shall publish the fact that the patent has been granted and thereupon the application, specification and other documents related thereto shall be open for public inspection.”.

Amendment of section 44
34. In section 44 of the principal Act, for the word “sealed”, at both the places where it occurs, the word “granted” shall be substituted.

Amendment of section 45
35. In section 45 of the principal Act, in sub-section (3), for the words “the date of advertisement of the acceptance of the complete specification”, the words “the date of publication of the application” shall be substituted.

Amendment of section 48

36. In section 48 of the principal Act, the proviso shall be omitted.
Amendment of section 52
37. In section 52 of the principal Act,-
(a) in sub-section (1),-
(i) for the opening words “Where a patent has been revoked”, the words and figures “Where the patent has been revoked under section 64” shall be substituted;
(ii) for the word “court”, wherever it occurs, the words “Appellate Board or court” shall be substituted.
(b) in sub-section (2), for the word “court”, occurring at both the places, the words “Appellate Board or court” shall be substituted;

Amendment of section 53
38. In section 53 of the principal Act,-
(a) after sub-section (1), following Explanation shall be inserted, namely:-
“Explanation.- For the purposes of this sub-section, the term of patent in case of International applications filed under the Patent Cooperation Treaty designating India, shall be twenty years from the international filing date accorded under the Patent Cooperation Treaty.”;
(b) in sub-section (2), the words “or within that period as extended under this section” shall be omitted;
(c) sub-section (3) shall be omitted.

Amendment of section 54
39. In section 54 of the principal Act,-
(a) in sub-section (3), for the words “complete specification”, occurring at both the places, the word “application” shall be substituted;
(b) for sub-section (4), the following sub-section shall be substituted, namely:-
“(4) A patent of addition shall not be granted before grant of the patent for the main invention.”.

Amendment of section 57
40. In section 57 of the principal Act,-
(a) for sub-section (3), the following sub-section shall be substituted, namely:-
“(3) Any application for leave to amend an application for a patent or a complete specification or a document related thereto under this section made after the grant of patent and the nature of the proposed amendment may be published.”;
(b) for sub-section (6), the following sub-section shall be substituted, namely:-
“(6) The provisions of this section shall be without prejudice to the right of an applicant for a patent to amend his specification or any other document related thereto to comply with the directions of the Controller issued before the grant of a patent.”.

Substitution of new section for section 58
41. For section 58 of the principal Act, the following sub-section shall be substituted, namely:-

Amendment of specification before Appellate Board of High Court
“58. (1) In any proceeding before the Appellate Board or High Court for the revocation of a patent, the Appellate Board or the High Court, as the case may be, may, subject to the provisions contained in section 59, allow the patentee to amend his complete specification in such manner and subject to such terms as to costs, advertisement or otherwise, as the Appellate Board or the High Court may think fit, and if in any proceedings for revocation the Appellate Board or the High Court decides that the patent is invalid, it may allow the specification to be amended under this section instead of revoking the patent.
(2) Where an application for an order under this section is made to the Appellate Board or the High Court, the applicant shall give notice of the application to the Controller, and the Controller shall be entitled to appear and be heard, and shall appear if so directed by the Appellate Board or the High Court.
(3) Copies of all orders of the Appellate Board or the High Court allowing the patentee to amend the specification shall be transmitted by the Appellate Board or the High Court to the Controller who shall on receipt thereof cause an entry thereof and reference thereto to be made in the register.”.

Amendment of section 59
42. In section 59 of the principal Act, for sub-section (2), the following sub-section shall be substituted, namely:-
“(2) Where after the date of grant of patent any amendment of the specification or any other document related thereto, is allowed by the Controller or by the Appellate
Board or the High Court, as the case may be,-
(a) the amendment shall for all purposes be deemed to form part of the specification along with other documents related thereto;
(b) the fact that the specification or any other document related thereto has been amended shall be published as expeditiously as possible; and
(c) the right of the applicant or patentee to make amendment shall not be called in question except on the ground of fraud.”.

Amendment of section 60
43. In section 60 of the principal Act, in sub-section (1), for the words, brackets and figures “prescribed period or within that period as extended under sub-section (3) of section 53”, the words figures and brackets period prescribed under section 53 or within such period as allowed under sub-section (4) of section 142" shall be substituted.

Amendment of section 63
44. In section 63 of the principal Act,-
(a) in sub-section (2), for the word “advertise”, the word “publish” shall be substituted;
(b) in sub-section (3), for the words “such advertisement”, the words “such publication” shall be substituted.

Amendment of section 64
45. In section 64 of the principal Act, in sub-section (1), for the words “on petition of any person interested or of the Central Government or on a counter-claim in a suit for infringement of the patent, be revoked by the High Court”, the words “be revoked on petition of any person interested or of the Central Government by the Appellate Board or on a counter-claim in a suit for infringement of the patent by the High Court” shall be substituted.

Substituion of new section for section 65
46. For section 65 of the principal Act, the following section shall be substituted, namely:-
Revocation of patent or amendment of complete specification on directions from Government in cases relating to atomic energy
“65. (1) Where at any time after grant of a patent, the Central Government is satisfied that a patent is for an invention relating to atomic energy for which no patent can be granted under sub-section (1) of section 20 of the Atomic Energy Act, 1962, it the Controller to revoke the patent, and thereupon the Controller, after giving notice, to the patentee and every other person whose name has been entered in the register as having an interest in the patent, and after giving them an opportunity of being heard, may revoke the patent.
(2) In any proceedings under sub-section (1), the Controller may allow the patentee to amend the complete specification in such manner as he considers necessary instead of revoking the patent.”.

Substitution of new section for section 68
47. For section 68 of the principal Act, the following section shall be substituted, namely:-
Assignments, etc. not to be valid unless in writing and duly executed.
“68. An assignment of a patent or of a share in a patent, a mortgage, licence or the creation of any other interest in a patent shall not be valid unless the same were in writing and the agreement between the parties concerned is reduced to the form of a document embodying all the terms and conditions governing their rights and obligations and duly executed.”.

Amendment of section 74
48. In section 74 of the principal Act,-
(a) for sub-section (1), the following sub-section shall be substituted, namely:-
“(1) For the purposes of this Act, there shall be a patent office, with such name as the Central Government may, by notification in the Official Gazette, specify.”;
(b) sub-section (2) shall be omitted.

Insertion of new section 92A
49. After section 92 of the principal Act, the following section shall be inserted, namely:-
Compulsory licence for export of patented pharmaceutical products in certain exceptional circumstances.
’92A. (1) Compulsory licence shall be available for manufacture and export of patented pharmaceutical products to any country having insufficient or no manufacturing capacity in the pharmaceutical sector for the concerned product to address public health problems, provided a compulsory licence has been granted by such country.
(2) The Controller shall, on receipt of an application in the prescribed manner, grant a compulsory licence solely for manufacture and export of the concerned pharmaceutical product to such country under such terms and conditions as may be specified and published by him.
(3) The provisions of sub-sections (1) and (2) shall be without prejudice to the extent to which pharmaceutical products produced under a compulsory licence can be exported under any other provision of this Act.
Explanation.- For the purposes of this section, “pharmaceutical products” means any patented product, or product manufactured through a patented process, of the pharmaceutical sector needed to address public health problems and shall be inclusive of ingredients necessary for their manufacture and diagnostic kits required for their use.’.

Amendment of section 100
50. In section 100 of the principal Act, in sub-section (3), for the words “acceptance of the complete specification in respect of the patent”, the words “grant of the patent” shall be substituted.

Amendment of section 105
51. In section 105 of the principal Act, in sub-section (4), for the words “after the date 40 of advertisement of acceptance of the complete specification of a patent”, the words “after the publication of grant of a patent” shall be substituted.

Amendment of section 107A
52. In section 107A of the principal Act, in
clause (a),-
(a) for the words “using or selling”, the words “using, selling or importing” shall be substituted;
(b) for the words “use or sale”, the words “use, sale or import” shall be substituted.

Amendment of section 113
53. In section 113 of the principal Act,-
(a) for sub-section (1), the following sub-section shall be substituted, namely:-
“(1) If in any proceedings before the Appellate Board or a High Court for the revocation of a patent under section 64 and section 104, as the case may be, the validity of any claim of a specification is contested and that claim is found by the Appellate Board or the High Court to be valid, the Appellate Board or the High Court may certify that the validity of that claim was contested in those proceedings and was upheld.”;
(b) for sub-section (3), the following sub-section shall be substituted, namely:-
“(3) Nothing contained in this section shall be construed as authorising to courts or Appellate Board hearing appeals from decrees or orders in suits for infringement or petitions for revocation, as the case may be, to pass orders for costs on the scale referred to therein.”;

Amendment of section 116
54. In section 116 of the principal Act, in sub-section (2), clause (c) shall be omitted.

Amendment of section 117A
55. In section 117A of the principal Act, in sub-section (2), for the words and figures “section 20, section 25, section 27, section 28”, the words, figures and brackets “section 20, sub-sections (3) and (4) of section 25, section 28” shall be substituted.

Amendment of section 117D
56. In section 117D of the principal Act, in sub-section (1), for the words “for rectification of the register” the words and figures “for revocation of a patent before the Appellate Board under section 64 and an application for rectification of the register” shall be substituted.”.

Substituion of new section for section 117G
57. For section 117G of the principal Act, the following section shall be substituted, namely:-
Transfer of pending procedings to Appellate to Board
“117G. All cases of appeals against any order or decision of the Controller and all cases pertaining to revocation of patent other than on a counter-claim in a suit for infringement and rectification of register pending before any High Court, shall be transferred to the Appellate Board from such date as may be notified by the Central Government in the Official Gazette and the Appellate Board may proceed with the matter either de novo or from the stage it was so transferred.”.

Amendment of section 120
58. In section 120 of the principal Act, for the words “ten thousand rupees”, the words one lakh rupees” shall be substituted.

Amendment of section 122
59. In section 122 of the principal Act, in sub-section (1), for the words “twenty thousand rupees”, the words “ten lakh rupees” shall be substituted.

Amendment of section 123
60. In section 123 of the principal Act, tor the words ‘’ten thousand rupees in the case of a first offence and forty thousand rupees”, the words “one lakh rupees in the case of first offence and five lakh rupees” shall be substituted.

Amendment of section 126
61. In section 126 of the principal Act,-
(a) in sub-section (1), in clause (c), sub-clause (i) shall be omitted;
(b) in sub-section (2), for the words, brackets and figures “the Patents (Amendment) Act, 2002", the words, brackets and figures “the Patents (Amendment) Act, 2003" shall be substituted.

Substitution of new section for section 133
62. For section 133 of the principal Act, the following section shall be substituted, namely:-

Convention countries
“133. Any country, which is a signatory or party or a group of countries, union of countries or inter-govemmental organisations which are signatories or parties to an international, regional or bi-lateral treaty, convention or arrangement to which India is also a signatory or party and which affords to the applicants for patents in India or to citizens of India similar privileges as are granted to their own citizens or citizens to their member countries in respect of the grant of patents and protection of patent rights shall be a convention country or convention countries for the purposes of this Act.”.

Amendment of section 135
63. In section 135 of the principal Act, after sub-section (2), the following sub-section shall be inserted, namely:-
“(3) In case of an application filed under the Patent Cooperation Treaty designating India and claiming priority from a previously filed application in India, the provisions of sub-sections (1) and (2) shall apply as if the previously Filed application were the basic application:
Provided that a request for examination under section 11B shall be made only for one of the applications filed in India.”.

Amendment of section 138
64. In section 138 of the principal Act, for sub-section (1), the following sub-section shall be substituted, namely:-
“(1) Where a convention application is made in accordance with the provisions of this Chapter, the applicant shall furnish, when required by the Controller, in addition to the complete specification, copies of the specifications or corresponding documents filed or deposited by the applicant in the patent office of the convention country as referred to in section 133 or otherwise verified to the satisfaction of the Controller, within the prescribed period from the date of communication by the Controller.”.

Amendment of section 142
65. In section 142 of the principal Act, in sub-section (4), for the words “complete specification”, the word “application” shall be substituted.

Substitution of new section for section 143
66. For section 143 of the principal Act, the following section shall be substituted, namely:-

Restrictions upon publication of specification
“143. Subject to the provisions of Chapter VII, an application for a patent, and any specification filed in pursuance thereof, shall not, except with the consent of the applicant, be published by the Controller before the expiration of the period prescribed under sub-section (1) of section 11A or before the same is open to public inspection in pursuance of sub-section (3) of section 11A or section 43.”.

Substitution of new section for section 145
67. For section 145 of the principal Act, the following section shall be substituted, namely:-

Publication of official journal
“145. The Controller shall publish periodically an official journal which shall contain such information as may be required to be published by or under the provisions of this Act or any rule made thereunder.”.

Amendment of section 151
68. In section 151 of the principal Act,-
(a) in sub-section (1), for the words “the High Court”, occurring at both the places, the words “the High Court or the Appellate Board” shall be substituted;
(b) in sub-section (3), for the word “courts”, the words “Appellate Board or the courts, as the case may be,” shall be substituted.

Omission of section 152
69. Section 152 of the principal Act shall be omitted.

Amendment of section 159
70. In section 159 of the principle Act, in sub-section (2),-
(a) for clauses (ia) and (ib), the following clauses shall be substituted namely:-
“(ia) the period which the Controller may allow for filing of statement and undertaking for in respect of applications under sub-section (1), the period within which the details relating to processing of applications may be filed before the Controller and the details to be furnished by the applicant to the Controller under sub-section (2), of section 8;
(ib) the period within which a reference to the deposit of materials shall be made in the specification under sub-clause (A) of clause (ii) of the proviso to sub-section (4) of section 10;
(ic) the period for which application for patent shall not be open to the public under sub-section (7) and the manner in which the applicant may request to the Controller to publish his application under sub-section (2) of section 11A;
(id) the manner of making the request for examination for an application for patent and the period within which such examination shall be made under sub-sections (1) and (3) of section 11B.
(ie) the manner in which an application for withdrawal of an application for grant of a patent shall be made and the period within which a request for examination from the date of revocation of secrecy directions shall be made under the proviso to sub-section (4) of section 11B.
(b) in clause (ii), for the word “advertised”, the word “published” shail be substituted;
(c) clause (v) shall be omitted.

Omission of section 163
71. Section 163 of the principal Act shall be omitted.

Transitional provision
72. (1) Notwithstanding the repeal of Chapter IVA of the principal Act, by section 21 of this Act, every application for ths grant of exclusive marketing rights filed under that Chapter before the commencement of Patents (Amendment) Act, 2003, in respect of a claim for a patent covered under sub-section (2) of section 5, such application shall be deemed to be treated as a request for examination for grant of patent under sub-section (3) of section of the principal Act, as amended by this Act.
(2) Every exclusive right to sell or distribute any article or substance in India granted before the commencement of the Patents (Amendment) Act, 2003, shall continue to be effective with the same terms and conditions on which it was granted.
(3) Without prejudice to any of the provisions of the principal Act, the appiications in respect of which exclusive rights have been granted before the commencement of the Patents (Amendment) Act, 2003, shall be examined for the grant of patent immediately on the commencement of this Act.
(4) All suits relating to infringement of the exclusive right granted before commencement of the Patents (Amendment) Act, 2003, shall be dealt with in the same manner as if they were suits concerning infringement of patents under Chapter XVIII of the principal Act.
(5) The examination and investigation required as carried out for the grant of exclusive right shall not be deemed in any way to warrant the validity of any grant of exclusive right to sell or distribute, and no liability shall be incurred by the Central Government or any officer thereof by reason of, or in connection with, any such examination or investigation or any report or other proceedings consequent thereon.

 

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Parliament Briefs                              


Services Negotiations with WTO
India has finalised its initial offer in services in the context of the on-going negotiations under the General Agreement on Trade in Services at the WTO. In the initial offer, improvements in the commitments offered in existing sectors as well as introduction of new sectors have been effected. Commitments have been offered in the service sectors of Accounting and Book Keeping, Health, Computer and related services, Telecommunications, Construction and Engineering, Financial, Tourism and Travel related services and Maritime Transport services in various modes of supply. The modes of supply in which commitments are offered vary from sector to sector, although overall, all modes are covered. This offer is conditional in nature and binding commitments would eventually be framed after a careful assessment of the counter offers made by other Member countries at the WTO. The elements of the offer are subject to change over the coming months as negotiations in the WTO progress.

Differences in WTO meeting at CANCUN
In view of the serious differences among Members, the Cancun Ministerial Conference of WTO ended without taking necessary decisions. However, a Ministerial statement was adopted at the end of the Conference which asked the Chairman of the General Council of WTO to convene a meeting of the General Council at Senior Official level no later than 15th December 2003 to take action necessary at that stage to enable Members to move towards a successful and timely conclusion of the negotiations. There were differences on all the major issues under consideration of the Conference viz./ Agriculture, Singapore issues and Development related issues. On agriculture, while developed countries were interested in substantial market access in developing countries, they were not willing to agree to significant reduction in domestic support or in eliminating export subsidies. On Singapore issues the concerns of developing countries related to availability of development policy space and the absence of clarity on the implications of multilateral rules in the four relevant areas. Lack of adequate progress on development related issues was a major concern for many developing countries. At stake for developing countries is the food security and livelihood concerns of millions of their population dependent on agriculture. India has always supported the smooth functioning of a rule based and fair multilateral trading system. At the same time, we have also been emphasising that if further progress is to be expected, all WTO Members should show genuine commitment to re-start of the multilateral process. The concerns of the large number of developing countries and least developed countries will have to be taken into account and the ‘development’ dimension envisaged in the Doha mandate will have to be retained in letter and spirit. This could be achieved through a process of decision-making that is both transparent and inclusive, without ignoring the sensitivities of developing countries. India is participating in all the informal consultations in this regard and is also interacting with other Members with a view to facilitating the process. India is also closely coordinating with various developing country groupings, especially the G-20 on Agriculture and G-16 on Singapore Issues.

US Watch-List of intellectual Property
Under the provisions of the US Trade Act of 1974 (19 U.S.C. 2242) popularly known as the “Special 301”, the Office of the United States Trade Representative (USTR) is required to identify countries that deny adequate and effective protection of intellectual property rights or deny fair and equitable market access to the United States. The USTR accordingly determines whether a country should be placed under “Priority Foreign Country” (PFC) or “Priority Watch List” (PWL) or “Watch List” (WL). As per the Annual Special 301 Report for 2003 released by the USTR, India has been retained in the Priority Watch List (PWL) along with 10 other countries, which are Argentina, Bahamas, Brazil, the European Union, Indonesia, Lebanon, the Philippines, Poland, Russia and Taiwan. India has been included in the PWL since 1995. The USTR is obliged under the US Trade Act to initiate action against only such countries as are listed under “Priority Foreign Country” and that too after holding consultations with the Government of the concerned countries. As such, no immediate serious implication of the Annual Special 301 Report for the year 2003 are perceived to the Indian industry.

Enforcement of Trips
TRIPS Agreement of the WTO covers seven areas of Intellectual Property Rights(IPRs) which are protected in India by separate legislation. These Acts provide for civil and criminal remedies against infringement of these IPRs. For civil remedies, a right holder may file a suit in a court not inferior to a District Court having jurisdiction to try that suit in a manner specified in the concerned Act. Where there are provisions for criminal remedies for infringement of IPRs like trademark, copyright, etc. a police officer-in-charge of a police station can investigate a case on his own when the commission of a cognizable offence is brought to his knowledge. In case of non-cognizable offences, the police can investigate only on order of a Magistrate having power to try such case. Enforcement of the provisions dealing with criminal penalties is the responsibility of the State Governments through police force. Ministry of Human Resource Development has also taken several measures to strengthen enforcement of copyrights. These include setting up of Copyright Enforcement Advisory Council, organisation of seminars/ workshops to create greater awareness about copyright law among the enforcement personnel and general public, encouraging setting up of collective/administrative societies, creation of separate cells in state police headquarters, etc.

Execlusive Marketing Right
Two exclusive marketing rights have been granted since 1995. The Patents Act, 1970 as amended by the Patents (Amendment) Act, 1999 provides for receipt and storage of product patent applications in the fields of drugs and medicines. As per the provisions in the law, these are to be kept unexamined till December 31, 2004. Government has undertaken broad-based consultations with a view to amend the Patents Act, 1970 for providing product patent protection in the field of drugs and medicines. Administratively, Government has undertaken a project for the comprehensive modernisation of Patent Offices and substantial action has since been taken. This includes: recruitment of additional examiners of patents specialised in different fields of technology, development of facilities for training of examiners, computerisation of operations, development of work manual for ensuring uniformity in operations, preparation of digital database of patent records, strengthening of library and search facilities, infrastructure upgradation, etc.

Importance of Life Saving Medicines
The Doha Declaration on the TRIPS Agreement and Public Health recognised that the TRIPS Agreement does not and should not prevent Members from taking measures to protect public health. It reaffirmed the right of WTO Members to use, to the full, the provisions in the TRIPS Agreement which provide flexibility for this purpose. The Declaration recognised that these facilities include the right of each Member to grant compulsory license and the freedom to determine the grounds upon which such license is granted, the right to determine what constitutes a national emergency or other circumstances of extreme urgency and the freedom to establish its own regime for exhaustion of intellectual property rights. Paragraph 6 of the Doha Declaration recognised difficulties of WTO Members with insufficient or no manufacturing capacities in the pharmaceutical sector in making effective use of compulsory licensing under the TRIPS Agreement and instructed the Council for TRIPS to find an expeditious solutions to this problem. The General Council of the WTO took a decision on 30 August 2003 for implementation of paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health. The decision allows manufacture and export of patented pharmaceutical products under a compulsory license to countries with limited or no manufacturing capacities in the pharmaceutical sector. This decision would enable countries with limited or no manufacturing capacities in the pharmaceutical sector to import pharmaceutical products at affordable prices. Customs duty on 126 life saving drugs/medicines was made zero vide Notification number 21/2002-Customs dated 1.3.2002.

Intellectual Property Right Appellate Boards
The Intellectual Property Appellate Board (IPAB) has been established at Chennai with effect from September 15, 2003. The Board consists of a Chairman, Vice-Chairman and Technical member. Under Section 84 of the trade Marks Act, 1999, the Central Government has specified Ahmedabad, Chennai, Delhi, Mumbai and Kolkata as the places at which a Bench of the Board shall sit. The Board has appellate jurisdiction against the decisions of the Registrar under the Trade Marks Act, 1999 and the Geographical Indications of Goods (Registration and Protection) Act, 1999.

Movement of Indian Professionals
The General Agreement on Trade in Services (GATS) establishes a multilateral framework of principles and rules for trade in services and for grant of market access and national treatment commitments on a sectoral basis by each country, including on temporary movement of natural persons for supply of services. In this context, the commitments taken by most countries during the Uruguay Round are linked to commercial presence and are subject to a number of limitations and administrative hurdles. The European Community has in its commitments, offered access for temporary movement of service providers in various categories subject to evaluation of the education and professional qualifications of the persons seeking access. In keeping with the understanding that developed countries have taken very minimal commitments with regard to the movement of natural persons, India had submitted a proposal on liberalisation of such movement at the WTO, identifying the barriers faced and suggesting strategies to achieve meaningful liberalisation. Furthermore, requests have also been made to important trading partners in individual service sectors seeking the removal of barriers to access. These aspects are being addressed in the context of the ongoing mandated negotiations
for achieving progressive liberalisation of trade
in services.

Anti-Dumping Cases Against China
Since 1992, the Directorate General of Anti-Dumping & Allied Duties has initiated 166 cases. Out of these 166 cases, Chinese exporters are involved in 70 cases.The proposed discussion mechanism between the DGAD and Ministry of Commerce of PR China will not affect the anti-dumping cases. The proposal is to have discussions and exchange of technical information of the parties' respective ways of carrying out investigation and applying rules concerning trade defence instruments. The Authorities may draw upon individual cases that have been concluded but will not interfere with the legally established procedural and substantive frame work or operation of ongoing investigations.

Restriction outsourcing of call centres and IT services
The issue regarding Bills for restricting outsourcing of Government's contracts to outside of USA was raised in the meeting with United States Trade Representative (USTR) and India's concern was registered. USTR described these Bills as "bad policy". The proposed Bills are aginst the spirit of market access. None of the Bills have so far been passed.
Source : Replies given in Parliament during December, 2003

 

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WTO NEGOTIATIONS ON SERVICES : INDIA SUBMITS REQUESTS

India has submitted requests in the sectors of Accounting, Architecture, Health, Computer related, Construction & Engineering, Financial, Audio-visual, Tourism and Maritime Transport services to a large number of trading partners. The request are part of the requests - offers process that is underway at the WTO. Further negotiations in response to the request and offers tabled by each member country would take place on a bilateral, plurilateral and multilateral basis.
The negotiations towards specific market access and national treatment commitments to be undertaken by each member country of the WTO are continuing. So far, about 40 countries have submitted their 'initial offers' for such commitments but final schedules of commitments would be worked out only towards the end of this round of negotiations, which is presently slated for 1.1.2005.

 

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       - Economic times Dt. 24.11.2003




 - Economic times Dt. 17.11.2003

                                   
                                              - Financial express Dt. 14.12.2003

 


                                                                                                    - Statesman Dt. 14.12.2003

 



                                                           - Deccan Herald (Bangalore) Dt. 15.12.2003



                                                         Deccan Herald (Bangalore) Dt. 15.12.2003



- Pioneer Dt. 23.12.2003                                                    - Business line Dt. 23.12.2003

 

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SCHEDULE OF MEETINGS AT THE WTO/GENEVA* JANUARY 2004

JANUARY
   1             New Year's Day (WTO non-working day)

   2             WTO non-working day

   9             Dispute Settlement Body

   14          Trade Policy Review Body - United States of                   America

   16          Trade Policy Review Body - United States of                   America

   20-22    Textiles Monitoring Body

   21-22    Working Party on the Accession of Saudi Arabia

   23          Dispute Settlement Body

   26          Council for Trade in Goods

   27          Working Group on Trade, Debt and Finance

   28          WTO Introduction Day

   30          Working Party on the Accession of Belarus

                         

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