Local Working under the TRIPS Agreement : Flexibilities and Implications for India

The obligation to work a patent in the patent granting country contributes to a variety of public policy goals such as technology transfer resulting in narrowing the deep North-South gap in development levels. With the advent of the TRIPS Agreement, pre-existing rights of country members to continue to treat non-working as an abuse has turned into a controversial and divisive debate. There are two competing views concerning local working of patents. On the one hand, TRIPS enthusiasts and MNCs articulate that article 27.1 of the TRIPS ban working obligations of patents in the granting country. On the other hand, unwilling partners of the TRIPS, mostly developing countries, continue to treat local working obligations in their national laws. The study analyses origin of the local working requirement in the patent system, negotiating history, flexibilities and implications of the provisions related to local working requirements in the TRIPS; from developing countries’ perspective in general, and India in particular; to interpret it to advance its own public policy goals. The paper establishes that the national laws of the WTO member countries containing local working obligations and relatively broad powers for granting compulsory licence are not in contravention of the TRIPS