Intellectual Property Rights Policy
IPR issues and terms
What are IPRs?
- Intellectual Property Rights (IPRs) are legal rights, which result from intellectual invention, innovation and discovery in the industrial, scientific, literary and artistic fields.
- These rights entitle an individual or group to the moral and economic rights of creators in their creation.
TRIPS is an international agreement administered by the World Trade Organization (WTO), which sets down minimum standards for many forms of intellectual property (IP) regulations as applied to the nationals of other WTO Members.
- It was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994.
- TRIPS requires WTO members to provide copyright rights, covering content producers including performers, producers of sound recordings and broadcasting organizations; geographical indications, including appellations of origin; industrial designs; integrated circuit layout-designs; patents; new plant varieties; trademarks; trade dress; and undisclosed or confidential information.
Clauses in India’s patent act
- Section 3(d) of Indian Patents Act- gives the criteria under which an invention would be patentable. It says that inventions are not patentable in the following case among other- the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance”
- Swiss pharma major Novartis lost the case to patent its blood cancer drug Glivec due to this provision.
- Applying for a patent without any extraordinary invention just by making some minor changes in the original substance/drug is called patent evergreening. The section 3(d) is a bulwark against patent evergreening.
- Compulsory licensing-
- The compulsory licensing provision in the Indian Patents Act is meant to ensure that patents do not impede the protection of public health and nutrition
- Hence, it aims to strike a balance- between the need to reward the patentee for their invention and making the patented products, specially lifesaving drugs, available to large population especially in developing countries
- Hence compulsory license can be granted to another manufacturer except patentee to produce a patented product and pay a royalty to the patentee, if any of the 3 conditions below are met-
- Reasonable requirements of public have not been satisfied
- Patented invention is not available to the public at affordable prices
- Patented invention is not worked with the territory of India
- The 1st compulsory license was given to Natco to produce generic version of Bayer’s drug Nexavar used in treatment of liver and kidney cancer
- The US Trade Representative (USTR), in its annual (2016 edition) Special 301 Report on the global state of IPR protection and enforcement, retained India on the ‘Priority Watch List’ for “lack of sufficient measurable improvements to its IPR framework.”. Clearly, India’s patent law especially section 3(d) and patent evergreening provisions do not bode well with US pharma giants
Need for the policy
- need to increase awareness on IPRs in India, be it regarding the IPRs owned by oneself or respect for others’ IPRs.
- The importance of IPRs as a marketable financial asset and economic tool also needs to be recognised. For this, domestic IP filings, as also commercialization of patents granted, need to increase.
- IPR policy is important for the government to formulate incentives in the form of tax concessions to encourage research and development (R&D). It is also critical to strengthen the Make In India, Startup and Digital India schemes.
- Global pressure to have an IPR framework
- Global drug brands led by US companies have been pushing for changes to India’s intellectual property rules for quite some time now. They have often complained about India’s price controls and marketing restrictions.
- The IPR policy comes at a time when India and other emerging countries faces fresh challenges from the developed world and mega regional trade agreements such as the Trans-Pacific Partnership (TPP)
Main highlights of the policy
- Vision Statement:
- An India where creativity and innovation are stimulated by Intellectual Property for the benefit of all
- an India where intellectual property promotes advancement in science and technology, arts and culture, traditional knowledge and biodiversity resources
- an India where knowledge is the main driver of development, and knowledge owned is transformed into knowledge shared
- The Policy recognizes that India has a well-established TRIPS-compliant IPR framework which meets its international obligations while utilizing the flexibilities provided in the international regime to address its developmental concerns.
- These flexibilities include the sovereign right of countries to use provisions such as Section 3(d) and CLs for ensuring the availability of essential and life-saving drugs at affordable prices.
- Mission Statement:
- Stimulate a dynamic, vibrant and balanced intellectual property rights system in India to:
- foster creativity and innovation and thereby, promote entrepreneurship and enhance socio-economic and cultural development, and
- focus on enhancing access to healthcare, food security and environmental protection, among other sectors of vital social, economic and technological importance.
- The Policy lays down the following seven objectives:
- IPR Awareness: Outreach and Promotion - To create public awareness about the economic, social and cultural benefits of IPRs among all sections of society.
- Generation of IPRs - To stimulate the generation of IPRs.
- Legal and Legislative Framework - To have strong and effective IPR laws, which balance the interests of rights owners with larger public interest.
- Administration and Management - To modernize and strengthen service-oriented IPR administration.
- Commercialization of IPRs - Get value for IPRs through commercialization.
- Enforcement and Adjudication - To strengthen the enforcement and adjudicatory mechanisms for combating IPR infringements.
- Human Capital Development - To strengthen and expand human resources, institutions and capacities for teaching, training, research and skill building in IPRs.
- Department of Industrial Policy and Promotion (DIPP) which shall be the nodal department to coordinate, guide and oversee implementation and future development of IPRs in India.
- The National Intellectual Property Rights (IPR) Policy will endeavor for a “Creative India; Innovative India:
Laudable points in the policy
- aims to push IPRs as a marketable financial asset, promote innovation and entrepreneurship while protecting public interest including ensuring the availability of essential and life-saving drugs at affordable prices
- The Policy entails that the Indian IPR regime be compliant with (World Trade Organisation’s) Doha Declaration on Trade Related IPR Agreement (TRIPS) and Public Health
- To ensure strong and effective IPR laws, the Policy states India will engage constructively in the negotiation of international treaties and agreements in consultation with stakeholders.
- Government sources said the international treaties and agreements referred to are international IP classification agreements, including the Nice and Vienna Classifications, and not pacts like the Trans Pacific Partnership, which apparently has TRIPS-plus provisions.
- the government has not yielded to pressure from the United States to amend India’s patent laws via USTR reports. The policy says it will be TRIPS compliant, subtly rejecting the demand to go beyond TRIPS coming from various quarters.
- The policy aims at increasing ease of IPR filing. By 2017, the window for trademark registration will be brought down to one month. This will help in clearing over 237,000 pending applications in India’s four patent offices.
- It also seeks to promote R&D through tax benefits available under various laws and simplification of procedures for availing of direct and indirect tax benefits.
- Unlike earlier where copyright was accorded to only books and publications, the recast regime will cover films, music and industrial drawings. A host of laws will also be streamlined — on semi-conductors, designs, geographical indications, trademarks and patents.
- Policy is aimed at a gold rush towards IPR. A blind rush towards IP could be a deterrent to innovation itself by restricting knowledge flow
- Policy recommends scientist and professors to convert all their discoveries into IP which inturn has the potential to curb the free flow of knowledge
- IPR policy is driven by the agenda of IP maximalism, where IP owners’ rights will be maximised at the cost of public interest. This (policy) will influence courts and judges who might consider rights of patentees above that on common man in certain cases.
- Connection between patenting and application of patented knowledge is yet to be established. Hence, patenting and not applying the new invention could deter progress
- Policy recommends criminalization of unauthorised copying of movies - which is just a civil wrong.
- Not understanding the modes of creativity and sharing in "shadow economy ", the policy leans towards superimposition of formal IP framework.
- While IP could accelerate innovation in certain technologies it in turn impedes in others. Policy recommends scientist and professors to convert all their discoveries
- Fostering an environment where innovation flourishes and a knowledge economy is built, is the key idea. Hence, the policy should have a balance. It should encourage patenting and at the same time ensure that patentability of a product/process does not deter further innovation and progress.
- Intellectual Property must not be about patents on paper but dearth of application in reality. The organisations such as CSIR and others must be encouraged to work upon socially useful applications of their patents.