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May 19, 2021

Summary: 2021 Special 301 Report – Section on India (Office of the United States Trade Representative)

Author: Intern - Yash Raj

The Office of the United States Trade Representative (USTR) on April 30, 2021 released the 2021 Special 301 Report (the ‘Report’) which is an annual review of the state of IP protection and enforcement in US trading partners around the world. India has again been included in the Priority Watch List in the Report which means that there will be extensive discussions regarding the Indian IP regime between the two countries in the coming year.

In relation to India, the Report highlights the challenges with regard to IP enforcement and protection. It lists certain long-standing issues of particular concern which inter alia include the narrow patentability criteria, costly & time-consuming pre-and post-grant oppositions and potential threat of patent revocations. The Report also lays down concerns with regard to the pharmaceutical sector such as restriction on patent-eligible subject matter in Section 3(d) of the Patents Act, lack of an effective system for protection of classified test data generated for marketing approval of products, etc.

The Report further takes note of issues pertaining to IP enforcement in India such as the absence of a centralized IP enforcement agency, presence of several counterfeit markets, etc. The Report also identifies certain issues pertaining to trademarks like excessive delays in opposition proceedings and lack of quality in examination. To address what it describes as  the lack of legal means to protect trade secrets, it recommends adoption of a comprehensive trade secret legislation. While discussing issues which according to the Report raise serious concerns for copyright holders, the Report also analyses the draft Copyright Amendment Rules of 2019 favored for broadening the scope of statutory licensing to include online streaming. It also lists pertinent copyright issues which inter alia include high level of online piracy and signal theft by cable operators. The Report mentions the jurisdictional challenges and inadequate resources plaguing the effectiveness of Commercial Courts Act, 2015, and takes note of the recent abolishment of IPAB as a matter of concern.

Finally, the Report highlights the efforts made for promotion of IP enforcement and protection and lists India’s accession to WIPO Internet Treaties in 2018 and Nice Agreement in 2019 as positive steps. It praises efforts of proposing amendments to the Copyright Act and the Cinematograph Act, while also acclaiming the adoption of the revised Manual of Patent Office Practice and Procedure in November 2019 and revised Form 27 on patent working in October 2020. Lastly, it compliments India’s measures for promoting IP awareness and cooperation along with the partnership for COVID-19 vaccine manufacturing under the Quad Vaccine Partnership as well as WHO and COVAX.

The Report can be accessed here: https://ustr.gov/sites/default/files/files/reports/2021/2021%20Special%20301%20Report%20(final).pdf

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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