The 2015 Special 301 Report continues a trend, beginning last year, of scrubbing a lot of language that long graced previous reports threatening other countries about WTO TRIPS and other international treaty violations. (See Special 301, A Historical Primer). This could be seen as an acknowledgment that such threats violate the World Trade Organization dispute settlement understanding. The WTO clearly states:
[Joint Letter from 12 American NGOs] We write as American organizations in advance of your trip to India this month to ask you to support India’s central role in providing high-quality, low-cost generic medicines—which are essential for health care around the world. Recent U.S. policy stances have sought to topple parts of India’s intellectual property regime that protect public health in order to advance the interests of multinational pharmaceutical corporations in longer, stronger, and broader exclusive patent and related monopoly rights. India’s laws fully comply with the WTO TRIPS Agreement. Millions around the world depend on affordable generic medicines that would disappear if India acceded to these proposals, including many beneficiaries of US-funded programs. Instead of using your trip to promote the narrow interests of one segment of the pharmaceutical industry, we ask you to support the interests of people who need affordable medicines, whether they live in the U.S., in India, in Africa or elsewhere. Our world is safer and healthier because of India’s pro-health stance and we ask you to say so publicly while you are there.
[Federal Register Notice from the office of the U.S. Trade Representative, Link] …USTR is hereby requesting written submissions from the public concerning foreign countries that deny adequate and effective protection of intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection…
Dates/Deadlines: The schedule and deadlines for the 2015 Special 301 review are as follows:
[Lawyers Collective, India] As you know, transnational pharmaceutical companies and the US Government are putting pressure on the Indian Government to change India’s IP laws especially the Indian Patents Act, which will make medicines unaffordable to millions of people in India and other developing countries.
Peoples’ groups, patients’ networks and civil society organizations have come together in one voice to ask the US government to stop pressuring India against use of its legitimate rights to protect public health. The petition asks the US Government to stop pressuring India. The petition also urges the Indian Government to hold its ground and not give in to the pressure.
[Swaraj Paul Barooah, SpicyIP, reposted from with author’s permission] In a very welcome and quick response to USTR’s Special 301 Out of Cycle Review (OCR) process for India that opened for comments a couple of days ago (October 14th), the Government of India has told the American authorities that they will not be cooperating with this unilateral process, writes Nayanima Basu in the Business Standard.
[Gabriel Michael, ‘To Promote the Progress?’ Blog, Link (CC-BY-SA)] My previous post discussed how Special 301′s enforcement mechanism has rarely been used, and is even less likely to be used in the future. But the frequency with which an enforcement mechanism is used is not a measure of effectiveness. We don’t measure the effectiveness of criminal justice systems by the number of people in jail (at least, we shouldn’t). Perhaps Special 301 is effective in accomplishing its goals even without resort to its enforcement mechanism.
On April 30, the United States Trade Representative released the 2014 Special 301 Report, which fulfills its mandate under the Trade Act (19 U.S.C. § 2242) to identify countries that “deny adequate and effective protection of intellectual property rights, or deny fair and equitable market access to United States persons that rely upon intellectual property protection.” The report is based partially on input including the public comments and hearing statements that are available on regulations.gov, and partially on other inputs such as meetings with other government agencies. Below are six observations:
In the weeks leading up to today’s publication of the Special 301 report, Indian officials were reportedly ready to file a challenge to the program in the World Trade Organization. That threat seems to have been avoided by the USTR refusing industry calls to list India as a “priority foreign country.” This follows USTRs decision to suspend a 301 investigation of Ukraine because of the political situation in that country. This leaves the 2014 list again with no priority foreign countries listed.
The Office of the US Trade Representative’s 2014 Special 301 Report is expected out shortly. The 301 Report places countries on a watch list for practices the US Government believes reflect “inadequate” intellectual property protection, even when these policies protect important public interests including health.
Public Citizen submitted comments in February to inform this year’s 301 Report. We address the TRIPS compliance and public interest value of specific rules and practices in India, Canada, Chile, Colombia, Indonesia, Peru, Philippines and Turkey. We also criticize 301 – the process should be discontinued entirely – and articulate several principles which could be applied to make meaningful the US Government’s relevant public health commitments, by not listing countries for public interest practices that comply with international rules.
We the undersigned organizations and individuals are writing this letter to urge you to reject the pressure tactics of the United States (US) administration against India and to resist and challenge such US unilateral threats at multilateral forum.
The United States Trade Representative (USTR) recently announced that it would not seek sanctions against Ukraine following its designation as a Priority Foreign Country in the Special 301 process last year. The notice states that the USTR sticks by its finding that “certain intellectual property rights (IPR) acts, policies, and practices of Ukraine are unreasonable and burden or restrict United States commerce and are thus actionable under section 301(b) of the Trade Act of 1974, as amended (Trade Act).” But it is not taking action “[i]n light of the current political situation in Ukraine.” There is another reason USTR is not taking any action – sanctioning Ukraine or any other World Trade Organization member under Special 301 would violate the WTO.
We thank and appreciate the interest of the office of the United States Trade Representative (USTR) in allowing us to participate in the Special 301 hearing. We remain hopeful that our impartial, expert contribution to the process will assist the USTR’s efforts in assessing the legality of India’s intellectual property protections under binding international law and determining whether it is being deployed in an illegal protectionist manner against U.S. right holders.