Statement by India at the 11th Session of the Patent Cooperation Treaty (PCT) Working Group (18th June to 22nd June 2018) on Agenda Item 18: ‘Delegation of Designated or Elected Office Functions’ delivered by Sh. Animesh Choudhury, Second Secretary on 21st June 2018 in WIPO HQ, Geneva

Statement by India at the 11th Session of the Patent Cooperation Treaty (PCT) Working Group (18th June to 22nd June 2018) on Agenda Item 18: ‘Delegation of Designated or Elected Office Functions’ delivered by Sh. Animesh Choudhury, Second Secretary on 21st June 2018 in WIPO HQ, Geneva.

Thank You Mr. Chair,

India would like to thank the Secretariat for its presentation on the proposal contained in the document PCT/WG/11/7 regarding Delegation of Designated or Elected office functions. However, India strongly objects to the proposal on the following grounds:

  1. India strongly believes, PCT is a treaty to streamline procedures to ease the burden on applicants in terms of a single application and provide for international search and preliminary examination reports. However, the same is not meant to supplant the sovereignty or right to determine the substantive conditions of patentability of any nation. Therefore any attempt to abrogate such rights of the contracting member states by whatsoever manner would be interference in the sovereign rights of a member state.
  2. In the proposal, it has been mentioned that the International Bureau has stated its view that the current PCT legal framework only allows a State to “close the national route” if the State is also a party to a regional patent treaty within the meaning of Article 45(1). IB has also stated that at present there is no express provision in the PCT that would allow a State not party to a regional patent treaty to close its national route in that way. India agrees with this view of the IB. However, under the framework of the PCT, no provision exists that supports the proposed rule 50bis. Further, during the negotiation of the PCT, at no time was such an eventuality discussed, that is, closing the national phase in the absence of a regional patent treaty. It is therefore understood that the proposed rule is clearly ultra vires the PCT. This working group does not have the mandate to allow acts that are not allowed by the PCT itself. This proposal, if at all it were to be even considered, would require an amendment in PCT itself.
  3. India is strongly against any attempts aimed at harmonization of patent law, which are neither desirable nor acceptable.
  4. This proposal also amounts to undermining the flexibilities provided in the TRIPS Agreement, something we firmly believe is not the mandate of PCT. In this regard, the Report of the UN High-Level Panel on Access to Medicines, which recommended that ‘WTO members must make full use of the TRIPS flexibilities as confirmed by the Doha Declaration to promote access to health technologies when necessary.’
  5. India believes that every State has to decide its policies on the basis of its developmental needs. One-size fits all approach will be counter-productive. Accordingly, focus should rather be on providing technical assistance in accordance with Article 51 of the PCT, so as to develop the search and examination capabilities of Patent Offices of developing and least developed countries, taking into account the 2007 WIPO Development Agenda and its 45 recommendations- which all the member nations are agreed upon. We believe that only a balanced patent system that addresses the circumstances prevailing within a State can contribute towards a sustainable patent ecosystem

2. Hence, we strongly oppose this proposal as it undermines the flexibilities provided under the TRIPS Agreement and infringes on the sovereign rights of member nations.

Thank You.

 
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