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Greater sensitivity needed at WTO

The World Trade Organisation's decision to extend, by seven-and-a-half years, the period available to least developed countries (LDCs) for bringing their intellectual property rights (IPR) rules in line with the relevant WTO agreement, is welcome for more than one reason. The decision, taken by the WTO Council on TRIPS (Trade Related Intellectual Property Rights) Agreement of 1994 just a few weeks ahead of the Hong Kong ministerial meeting last December, will afford more time for the LDCs (till July 2013) to prepare themselves for adopting the TRIPS regime covering patents, trade marks, copyrights, industrial designs, and other forms of intellectual property. It is at the same time an acknowledgment that the pursuit of globalisation with the aid of political and economic clout of the developed world cannot deliver results if the realities of the highly diversified and unequal status of national economies are ignored. The WTO decision also exempts the LDCs — of whom there are 32, including Bangladesh and Nepal in India's neighbourhood from the requirement of granting exclusive marketing rights (EMRs) for drugs pending the adoption of a product patent regime. The concept of EMRs, built into the TRIPS as part of the 1994 Marrakesh package establishing the WTO, was itself highly flawed. The EMRs in effect tended to neutralise the transition period given to developing countries and the LDCs for adopting a product patent regime for drugs and also linked the grant of EMRs in one country to grant of a patent in another.

Bulldozing countries in various stages of development to adopt a common IPR standard has, not surprisingly, proved problematical because even among the developed countries that can be said to have reached certain minimum level of industrialisation and economic progress, there are many differences on basic IPR-related issues. The U.S. and the European Union differ on whether patents have to be granted on the basis of first-to-apply or first-to-invent and on whether oral or published evidence of "prior art" is relevant. More strikingly, in August 2005, the EU saw its directive on harmonisation (within the Union) of national patent laws relating to software being thrown out by the European Parliament by a massive vote of 648 to 14. Against this background, it is doubtful whether the mere extension of "trade related technical assistance" to the LDCs and developing countries under the WTO to help them adopt the global standards of IPR protection determined by developed countries will be enough to bridge the gap resulting from development lags and the colonial and geopolitical intervention in their domestic affairs.

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