Articles by Biswajit Dhar

The capacity of countries to take advantage of the patent system bears a relationship with their stage of development. This paper explores the relationship between economic development and domestic and foreign patenting behaviour. The study uses a unique data set covering 55 countries and 24 years. It determines the association of domestic patenting with gross domestic product per capita and openness to trade, and the association of foreign patenting with these variables and with foreign direct investment as a proportion of gdp.

Article 39.3 of the World Trade Organisation's agreement on Trade-Related Aspects of Intellectual Property Rights stipulates that undisclosed pharmaceutical test data should remain undisclosed in order to prevent its unfair commercial use. Explaining the historical context and the textual interpretation of Article 39.3, this paper examines whether such data exclusivity is justified. While the pursuit of data exclusivity may be viable for the pharmaceutical industry in the US and EU, the situation is altogether different for developing countries such as India, where pursuing data exclusivity could prove to be detrimental to its pharmaceutical industry.

This paper analyses some of the provisions of a draft substantive patent law treaty (SPLT) that were considered in the Tenth Session of the Standing Committee on the Law of Patents, WIPO in 2004. A key question in this regard is whether or not the harmonisation of patent laws, through the adoption of the SPLT, marks a step towards introducing a TRIPS-plus regime in terms of the obligations of signatory countries. It finds that flexibilities currently available under TRIPS could be considerably eroded if patent harmonisation initiated under the WIPO Patent Agenda moves towards higher and stricter standards. Clear linkages between the TRIPS and SPLT negotiating processes have not been established at the multilateral or domestic level in developing countries and there is an urgent need for these nations to make their presence felt at the SPLT negotiations.

The pressure exerted by the developing countries was a notable feature of the Doha ministerial conference of the member countries of WTO. The declaration on TRIPs agreement and public health adopted by the conference was the most conspicuous outcome of such pressure. On the other hand, the inclusion of five new issues in the negotiating mandate of WTO was a reminder that the developing countries could expect their pressure to go so far and no further. In making their preparations for the negotiations on the work programme agreed upon at Doha, the developing countries have to bear this reality in mind.

Of the two options available to India for meeting its obligations under the TRIPs agreement the 'exclusive marketing rights' (EMR) route and bringing forward introduction of the product patent regime from the year 2005 to 2000 the EMR route, which is what the government has chosen to adopt in the legislation now before parliament, has significant adverse implications so that it would have been preferable to have opted for the second option of advancing the product patent regime without availing of the transitional period provided under the TRIPs agreement.