Realizing the Reality of Article 61 of TRIPS

Abstract

The enforcement of patents has been always crucial and the basis of strengthening the patent regime. While pondering
over strengthening of patent regime and patent enforcement dynamics, author came across and dealt with the ‗willful patent
infringement‘ under Article 61 of TRIPS mentioning the provision of criminal sanction for ‗willful patent infringement‘.
The scope of the research study has narrowed on the feasibility and implementation of criminal sanctions under Article 61 of
TRIPS, wherein it appears at the outset that the feasibility enquiry of criminal sanction for willful patent can make Article
61 of TRIPS meaningful and realizable.1 While analyzing the dynamics around the criminal sanction of willful patent
infringement as under Article 61 of TRIPS, a need of equipping the current patent enforcement mechanism in Indian context
was felt and is being recommended. The dynamics reveal that the scope of remedy for ‗willful patent infringement‘ wobbles
even today, between the conventional civil remedies (including the punitive trebled damages provided in some countries)
and criminal sanction (implemented in other countries). Having revealed the need of equipping the patent enforcement
mechanism, this study also enquires the constraints on implementing the criminal sanction. The increasing pressure on India
to strengthen the patent enforcement, in the course of international trade from United States of America as an example
which is a quite sufficient factor to discuss the issue that India might have to deal with in near future. Based on the three
categories of resources and secondary sources inferences and observations converge on the recommendation of having a
distinct patent enforcement mechanism, from the one in place. Accordingly, patent enforcement under TRIPS Article 61,
for ‗willful patent infringement‘ and the enquiry on feasibility of such criminal sanction for the same, is the primary
objective of this study.