In its Annual Special 301 Report that identifies trade barriers to American companies due to IP laws of other countries, the USTR said that India remained one of the most challenging economies for IP enforcement and protection and the country’s overall IP enforcement was inadequate.
“India remains one of the world’s most challenging major economies with respect to protection and enforcement of IP,” it said in the 2022 report.
Certain data governance regimes whether proposed or implemented also raise concerns for intellectual property protection in general and trade secret protection of proprietary data in particular, it highlighted.
“India’s Personal Data Protection Bill and draft Non-Personal Data Governance Framework are examples of initiatives that potentially threaten innovation and economic growth,” USTR said in the report.
While India’s accession to the World Intellectual Property Organization (WIPO) Performances and Phonograms Treaty and WIPO Copyright Treaty, collectively known as the WIPO Internet Treaties, in 2018 and the Nice Agreement in 2019 were positive step, the USTR said the potential threat of patent revocations, lack of presumption of patent validity and narrow patentability criteria under the Indian Patents Act impact companies across different sectors.
The USTR said despite India’s justifications of limiting IP protections as a way to promote access to technologies, India maintains high customs duties on IP-intensive products such as medical devices, pharmaceuticals, information and communications technology products, solar energy equipment and capital goods.
On the multilateral front, the USTR said that the Joe Biden Administration supports a waiver of intellectual property protections for Covid-19 vaccines under the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), but the broader institution has not been able to reach consensus on an agreement to do so.