It is a fact that TRIPS agreement was the result of relentless efforts made by the developed countries. Despite the well-designed TRIPS objectives aimed at protecting and rewarding creativity and inventiveness, recently its enforcement the world over has precipitated some emerging issues that are both controversial and biased, favoring possibly only the powerful players in the WTO.

• IP rights are meant to encourage creativity, rewarding human intelligence. However, traditional knowledge (TK), which is the accumulated result of human intelligence over centuries, is denied IP status, whereas small simple acts of human creativity such as designs and such other forms are given protection and exclusive rights.
• Discrepancies over what is patentable and what is prior art is the most debated issue. It is interesting to note that on one hand, TK is considered prior art for purposes of non-inclusion as IP. On the other hand, it is argued that TK-related facts can be patented in countries that do not have TK – guggulu is patented in the US because such knowledge is not prior art there. Thus, prior art is subject to connotation to suit convenience.
• According to the provisions of TRIPS, “patent rights should be given to products irrespective of whether they are locally produced or imported.” This provision of TRIPS is in defense of the patented drugs being produced by alternative processes in India. When the same argument of TK not being prior art in US is applied for the knowledge of the process of making innovator drugs in India, which is not known here, it is not prior art; and hence, the process is patentable. But that is not possible as per TRIPS. It is thus quite obvious that word play and clever rephrasing of facts into meanings can make anything patentable or non-patentable, especially if it suits the economic needs of the country. Of course, to push this through, lobbying is needed.
• Normally GI is an IP that can be protected to prevent the use of these names, if they indicate that they originate from a specific geographic origin that is not the real place of origin of the product. For example, using the term Kashmir carpets to the carpets made elsewhere misleads the consumer into believing that they are of the same quality associated with the original quality which is unique to Kashmir carpets because of some specific quality attributable to them. Depending on the GI, the specific quality could be attributable to something unique to the geographic location, such as soil, climate, traditional method of production, etc.
• However, TRIPS agreement provides an “enhanced” minimum level of protection for GIs that identify wines and spirits. By this, wines and spirits cannot use GI even if they do not imply that they originate in a place other than the true place of origin. Thus, nobody can use the word “champagne” as the word does not indicate that it is not made in France. On the contrary, the words “chai” (referring to Darjeeling tea) and “mulligatony” soup (referring to a traditional South Indian pepper soup) are being used freely, with the former being used for a special brew made by the famous Starbucks Company of the US. We are not in a position to prevent the use of the word “chai” because it does not have the special enhanced protection like wines and spirits of France. The reason behind is powerful lobbying by France in a big way to ensure that its markets are protected. Hence “lobbying” is an available recourse for the inclusion of special category (within TRIPS) of any particular product to the exclusion of other similar categories. Each country has to “lobby” for its own cause as the world body can not take up the cause of a developing country on its own.
• In the same way, “trade secrets” and “disclosure of information” are not ideologically IP. TRIPS agreement has made exception to even the definition of IP by including trade secrets for IP protection. The justification of IP system is rewarding inventiveness with exclusive rights in exchange of the usage of the invention for the benefit of society. Holders of trade secrets are entitled to protection, though there is no mandatory disclosure of information. Even such a category gets special protection under the very IP system which by definition grants privileges in return for disclosure of information that will be of use to society. Here, an exception was made to include a category which neither fits into the criteria of being an individual act of creation nor is of any benefit to the society. The special protection is given only to further the economic interest of trade secret holders.
• The whole system of IP found international protection and acceptance under WTO due to the persistence and promotion by developed nations. Hence, only those categories that are in their economic interests have somehow managed to get included under TRIPS. It is up to the developing nations and countries holding TK to find ways and means of seeking protection for TK in order to prevent unjust exploitation of this wealth of knowledge by the very same instrument of IP rights which was supposed to protect it.
• It is argued that since IP rights are for individual rights, TK, being a collective right, is unable to seek protection. While the collective rights of bigger nations get managed to get protected, TK holders’ rights are waiting to be to be adequately protected. Meanwhile, cases of biopiracy of TK by bigger corporates of developing countries are being fought against at huge costs to these nations holding the TK.
• Ethical objectives are made with respect to pharmaceutical patents for the high medication prices they enable their proprietors to charge. This is unaffordable to poorer sections of the society.
• Questions are being raised regarding the rationale behind the high prices and exclusive patent rights required by pharmaceutical companies to recoup the large investments needed for research and development of these drugs. It is unfortunate that several new drugs so introduced at the end of long and expensive clinical trials are withdrawn hastily against new evidence of toxicity or adverse effects.
• Patenting seems to help misplaced pharmaceutical R&D priorities of making slightly improved treatments for lifestyle disorders as against developing life-saving drugs for the diseases that are devastating large parts of the world.
• Costs of patent litigation exceed their investment value as seen in the software industry. Similarly, infringement costs are exorbitantly expensive as was the case for fighting for revoking the US patents for neem and basmati by India.