On Monday, the US Trade Representative requested establishment of a WTO dispute resolution panel to deal with its case challenging alleged deficiencies in Chinese intellectual property law. A quote from the USTR’s press release:
“In pursuing this action, the United States is seeking to eliminate significant
structural deficiencies that give pirates and counterfeiters in China a safe harbor to avoid criminal liability. The United States is also seeking to improve
enforcement procedures at China’s border, and to give copyright owners more tools to prevent the production of unauthorized copies in China.”
The U.S. is alleging 3 violations of TRIPS (copy of the TRIPS agreement here):
- The quantitative thresholds in China’s criminal
law that must be met in order to start criminal prosecutions or obtain criminal
convictions for copyright piracy and trademark counterfeiting. - The rules for disposal
of IPR-infringing goods seized by Chinese customs authorities. Those rules
appear to permit goods to be released into commerce following the removal of
fake labels or other infringing features, when WTO rules dictate that these
goods normally should be kept out of the marketplace altogether. - The apparent denial of
copyright protection for works poised to enter the market but awaiting Chinese
censorship approval.
This is one of five WTO cases the United States has brought against China and the third case in which the U.S. has requested has requested a WTO dispute settlement
panel. (More background at IP Dragon.)
The Novartis Glivec dispute (see also IP ThinkTank discussion) has highlighted another potential WTO TRIPS dispute, this time in relation to India and patents.
The pressure to do this has been increased by Tuesday”s Times of India article which suggests that the Indian Patent Act is a role model for other nations.
The question for Pharmaceutical lobby groups (such as PhRMA) then, is whether to put pressure on politicians in the U.S. or elsewhere to take a similar stance against India in relation to India’s section 3(d).
A threshold question before that, is of course, do they have a case? What do you think?