Is this what we could call Trump’s Triumphant Intellectual property Pact?

It is long known that there has been a clear divide between first-world countries and third-world countries when it comes to fashion or facilities. The same stands true to intellectual property rights as well and this is why the TRIPS Agreement was enforced to gear up the developing nations to reach a sturdy platform incorporating streamlined notions of IP embraced by all countries alike. However, think of it as a mechanism for the developed countries who proliferate and have grabbed much already in the race for acquiring these right to benefit from such a system by furthering their interests. The same ideology can be implanted upon the United States and India, where US has been constantly pushing for the implementation of better practices in IPR through the medium of WTO and other bilateral or regional free trade agreements like those in the form of TRIPS Plus or other flexibilities to ensure smooth entry of US enterprises/ inventors into Indian mainstream and vice-versa.

Recently, the eventful “Namaste Trump” resulted in the exchange of ideas by both the counterparts of which intellectual property emerged to be a topic of sound debate which resulted into the signing of an accord in the form of an MoU to reduce the friction of trade disputes between the two. Despite the hush and muffled speeches, it can however be gathered that this is an initiative which may in future have a direct bearing on protecting international pharmaceutical that some experts quote to have detrimental effect on patentees’ rights. While the terms of the MoU remain undisclosed, it is amply clear that the MoU does not embody any obligation for implementation of laws. In addition to that, the MoU allows “knowledge-sharing” on both the ends to understand and study the nitty-gritties of IP laws.


Therefore, US has proposed to train patent-examiners regarding examination process in the light of US patent laws which might mark the move to change Indian practices in their direction. This is clothed as a training but it resonates to one holding another’s hand to guide that other to do how things are meant to be done, to be done their way! This pact was a probably a result of facing pressure from US by alarming India of warding-off the GSP subsidy (Generalized System of Preferences tariff system) upon certain goods to limit duty-free entry of Indian goods or because of India stooping down to the 40th position on the US Chamber’s International IP Index but the Question is what is the legal basis of these reports and how far can they be imposed? Reports like Special 301 are backed by eco-political interests coupled with R&D activities which is why India or any other country may or may not be obliged to act in a direction quoted, however, it serves as a legit warning.

It is possible that this move is targeted to enhance the understanding of an even stricter implementation of section 3(d) of the Act which is the anti-ever-greening provision in the law which is why a few -saving drugs in India like those for tuberculosis, cancer, diabetes etc. are still expensive because these patented drugs have more than a single patent on them which results in extension of monopoly in the market alongside exorbitant pricing. A recent study indicated that 72 per cent of pharmaceutical granted in India are for minor or marginal improvements on existing drugs which contravene the present Indian Act. The study also said the public interest provisions are not implemented by the Indian office. However, this is not true since India and the US have very different patentability standards. While US is faced with a proliferation of on new uses of a known substance, combinations and new forms of known medicines which is instrumental in keeping generics out of the market and lowering of patentability standards of novelty, non-obviousness and industrial application; India on the other hand strictly limits the patenting of known medicines and has rejected a number of such applications. This weighs in the interest of public-health but against medical inventions.

Even though the MoU doesn’t imply a legal commitment, experts have commented that India should be cautious. Understanding the nature of polarity between the laws in India and US, and considering the fact that Indian Patent law is often looked-up to as a model law for implementing pro-public interest laws, how far does such MoU look reasonable to you is the question we would like to ask.



Impervious claims make you win the Technology game.

As a matter of constant debate, it is often cited how traditional Intellectual Property laws and attorneys shall keep-up with the pace of the technical advancement and literal improvements. The recent evolution of 3D printing and its multifold capabilities have reverberated across all fields alike. Additive Manufacturing, commonly known as 3D-printing has revolutionized the manufacturing process with its disruptive advancement in domains like automotives, manufacturing, aerospace, pharmaceutical & healthcare, fashion, retail and sports, leaving aside the fabrication of a human tissue as we’ve already seen in endless episodes of Grey’s Anatomy. Almost a decade back, a for “fused deposition modeling” had expired and inventors began to brain-storm around the periphery of the said invention. Kick starter introduced 3D printing and the hype built then has not witnessed a dip ever since. Tracing the developments from the past few years, the top-10 scoreboards leaders are from US and a few from Germany; these include General Electric, HP Inc. and United Technologies Corporation as the flag bearers.

Although, it has substantially pushed down the cost and issues of feasibility, it certainly has escalated the problem of potential infringements in the domain of intellectual property rights. holders often robe themselves with a rhino’s skin when they hear about how copyrights are infringed by piracy and flouting of , hoping to remain untouched by such technology capable of printing not just books but objects as well.

While brushing upon the issue of , its quintessential to note how there’s a depression in the IP system not catering to flouting of proprietor rights by deployment of such technologies under the existent framework. Considering a CAD file which lays the blueprint for printing an object, incorporates the article’s digital impression which could amount to of copyright as an unfair use of derivative works since it uses technical drawings and diagram models. Such issues cannot be ignored and requires requisite enhancement of the legal framework in the form of digital copyright infringements.  For better protection of these rights against unauthorized use, it would be wise to incorporate a “unique identifier” while generating CAD files to ensure that the end-user is identified before proceeding to access the file. Furthermore, to draw a parallel with landmark copyright case laws, would it not be correct to hold that proprietors of 3D printing technologies are capable of inducing future infringements? Napster and Groxter did not make infringing copies of sound labels but they most certainly aided its user in the process of generating pirated sound records. If the two were shut down on such premise, then why does the same not stand true here.

Another issue is the problem hovering around where a protected technology is facsimiled and an existing object is created using a different mechanism. This also amounts to , provided the fact that the object is protected. A non-patented feature of a patented object can be produced without attracting any objection. To cater to patent infringements facilitated by 3D printing, the provision with respect to indirect infringement can be strictly construed holding inappropriate use of such technology to be legally actionable. The only issue with this approach in the domain of is that to succeed in a case of alleged inducement of , it requires the Plaintiff to establish that the defendants had actual knowledge of the relevant which may be a challenging task. Therefore, one can easily dust their hands claiming that they were unaware of the existence of such and thereby escape liability. This is why we need a straight-jacket formula. It is pertinent to enforce a uniformly regulated system for proportional use of the said technology in the industry. In furtherance of this objective, it is important that the claims in future applications dealing with such kinds of technologies are tightly framed without leaving any potential pits that could be filled in by opportunist which would help in securing such rights in the favor of a handful with controlled administration (through , assignment, etc.). Therefore, lesser the owner of such technologies, greater is the chance to supervise.

Furthermore, the non-functional feature of the replicated object, i.e. the appearance of the same will attract claims of of the design. However, it goes without saying that non-commercial and private use of the said article although manufactured via 3D printing would not gather legal action. To what extent can such fabrication be mapped across the globe is the question where is costly and long-drawn. The number of welcoming issues in the domain is beyond count. To prove a point, consider where the 3D technology is used to print guns and ammunition. Is this not an ethical issue or a safety issue against public safety?

It is the unsaid duty of the government to safeguard the right of a holder in exchange of which it receives disclosure of a patented invention. In furtherance of this objective, the legislative wing of the government shall invite suggestions from the public as well as specialized reports from the government committees to ensure better execution and administration of laws to warrant that such an invention is not frivolously put to use. To end this on a conclusive note, I personally believe that the use of such dynamic technology shall be controlled and supervised since it can have polarized outcomes.