ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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Is Section 3(d) Consistent with TRIPS?

This article looks at how inventions are assessed by various policy regimes in the world and analyses the Indian regulations in this light. A well-formulated and scientifi c legislation to apply the inventive step standard could avoid most of the complications caused by Section 3(d) of the Indian Patents Act, which is compatible with the Trade-Related Aspects of Intellectual Property Rights Agreement, but about which questions can still be raised.

Novartis challenged the consistency of Section 3(d) with regard to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) before the Madras High Court. The high court refused to entertain this argument. Interestingly, the Swiss government did not initiate a case in the World Trade Organization (WTO) in support of Novartis’s argument regarding the alleged violation of TRIPS. However, the Supreme Court decision has not foreclosed the possibility of such complaints and an analysis of the ;subject is still relevant.

On the one hand, the United States Trade Representative (USTR) – which has regularly cited Section 3(d) as one of the reasons to keep India on its list of countries whose intellectual property rights regimes are of “concern” to the US (Sampat et al 2012: 414)1 – stated (USTR 2013: 38) that the ;Indian Supreme Court decision

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