India's Intellectual Property Regime
2023 OCT 13
Science and Technology > IP Rights > Copyrights & Patents and others
- Recently, the Delhi High Court issued summons to an Instagram account called People of India (POI) in a copyright infringement suit filed by the storytelling platform Humans of Bombay (HOB).POI tells stories of common people in a similar way to HOB, whose Instagram account has over 2.7 million followers.
- Also, draft Patents (Amendment) Rules 2023 were released in August 2023 for stakeholders’ comments.
Draft Patents (Amendment) Rules 2023:
- According to the government, the draft rules released by the Department for Promotion of Industry and Internal Trade aim to streamline the operations of the patent office and expedite patent processing timelines.
- However, some clauses in the draft Patents (Amendment) Rules, 2023, have triggered fears that important public health safeguards against patent evergreening and unmerited monopolies will be diluted.
- The amendments introduce a dynamic and exorbitant fee for filing pre-grant oppositions, granting excessive authority to the Controller to determine the maintainability of the representation. This marks a departure from the current practice of not charging any fees for pre-grant opposition filings and allowing “any person” to provide critical information to the patent office, aiding the Controller in examining patent applications.
- Experts argue that pre-grant opposition is a key safeguard against patent evergreening and unmerited monopolies, ensuring that quality-assured and affordable generics remain accessible.
WHAT IS INTELLECTUAL PROPERTY?
- Intellectual property refers to creations of the mind: inventions; literary and artistic works; and symbols, names and images used in commerce.
WHAT IS INTELLECTUAL PROPERTY RIGHT?
- Intellectual property rights (IPR) are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time.
- The key forms of intellectual property protection are:
- Patents: A patent gives the inventor the exclusive right to prevent others from making, using or selling a similar product for a fixed period of time
- Copyrights: Copyrights offer protection for music, films, written works of fiction, poems, architectural designs and other works of cultural value.
- Trademarks: Trademarks are commercial source indicators, distinctive symbols, words or designs that identify certain goods or services produced or provided by a specific person or enterprise.
- Trade secrets: Any information that may be used in the operation of a business and is sufficiently valuable to give actual or potential economic advantage is considered a trade secret.
- Intellectual property rights are customarily divided into two main areas:
- Copyright and rights related to copyright:
- The rights of authors of literary and artistic works are protected by copyright, for a minimum period of 50 years after the death of the author.
- Industrial property:
- One area can be characterized as the protection of distinctive signs, in particular trademarks and geographical indications
- Other types of industrial property are protected primarily to stimulate innovation, design and the creation of technology. In this category fall inventions (protected by patents), industrial designs and trade secrets.
ABOUT INDIA'S INTELLECTUAL PROPERTY REGIME:
- India is a member of the World Trade Organization.
- It is committed to the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS Agreement).
- India is also a member of the World Intellectual Property Organization (WIPO).
- WIPO is responsible for the promotion of the protection of intellectual property rights throughout the world.
National IPR Policy 2016:
- The Union Cabinet has approved the National Intellectual Property Rights (IPR) Policy on 12th May, 2016 that shall lay the future roadmap for IPRs in India.
- Its motto is “Creative India; Innovative India”.
- The ‘Cell for IPR Promotion & Management (CIPAM)’, under the aegis of DIPP (Department of Industrial Policy & Promotion), is entrusted with the implementation of the objectives of the National IPR Policy.
- The policy document highlights seven key 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.
SSUES ASSOCIATED WITH INDIA'S INTELLECTUAL PROPERTY REGIME:
- Weak enforcement of rights and IPR violations:
- Copying, plagiarism, piracy and other IPR violations are rampant, causing huge losses to IPR owners.
- Violations are rife because of poor enforcement of rights and court cases that could last for years.
- For instance, India is on the United States Trade Representative’s (USTR’s) "Priority Watch List" for poor protection of the rights of American companies.
- Lack of IPR literacy:
- Lack of IPR literacy among the common people.
- For example, 64 per cent of the patents filed in India are by foreign entities.
- “Evergreening patents”:
- Provisions such as Sections 3(d), 53(4), and 107A of the Patents Act were expressly introduced to prevent the mischievous practise of "evergreening" of patents.
- Despite the foresighted engrafting of these provisions in the Indian Patents Act to prevent a repeat of such evergreening behaviour, "Evergreening patents" on drugs that relate to the treatment of diabetes, cancer, cardiovascular diseases, and other serious conditions continue to be granted to pharmaceutical innovator companies by the Indian Patent Office.
- They are regularly enforced through the courts at the expense of the statutory rights of generic manufacturers and to the detriment of patients.
- The direct consequence of this is the delayed entry of generic versions of off-patent drugs.
- This, in turn, adversely affects the availability of affordable medicines to patients, especially in a country like India, where out-of-pocket expenditure on healthcare by households is very high.
- In simple terms, patent evergreening refers to the continuing extension of patent rights. It also refers to the process of obtaining many patents for the same item. By accumulating patents on superior versions of existing products, these patents cover many aspects of a single product.
Supreme Court judgement on evergreening and Section 3(d):
- The Supreme Court’s Novartis AG v. Union of India & Others (2013) verdict shed brilliant light on the legislative intent behind the insertion of Section 3(d) in the Patent Act — to prevent the evergreening of a patent monopoly on a drug by making inconsequential additions or changes that in no way enhance the drug’s therapeutic efficacy.
- IPR protection in agriculture:
- Under the TRIPs agreement, subsidies like minimum support prices for agricultural produce and those for fertilizer etc. have to be phased out.
- Since issues of food security and livelihoods are involved, IPR protection in agriculture is very complex and sensitive.
- Also, there has been some resistance from farmers to the patenting of seeds by multinational corporations.
- Pro-patentee position of IPR regime:
- Another concern regarding the present IPR regime in the country is the pro-patentee position at the expense of public health obligations and national interest.
- There are four stakeholders under the Patents Act: society, the government, patentees, and their competitors.
- Each of these stakeholders has rights under the statute, which makes them all rightful owners.
- The pro-patentee positions along with practises like "evergreening" abridge and reduce the legitimate rights of other stakeholders.
- Traditional knowledge:
- No specific measures for protection of traditional knowledge and its usage for betterment of society
- Over commercialization:
- Over commercialization of IPR under new IPR policy
- Review of existing IPR policy to identify the challenges and corrective measures that need to be taken for its effective execution.
- Creating an exclusive apex level Institution for IPR Development
- Human resource development by developing a pool of IPR professionals and experts in spheres such as policy and law, strategy development, administration and enforcement.
- Encourage awareness by creating IPR Facilitation Centers, IP courses and curriculum in schools and colleges.
- IP funds should be established for instilling IP culture
- Strong IP law enforcement by strengthening IPR cells in State police forces.
- Separate category of IP rights for AI and AI related inventions and solutions.
- Involving State Governments to play an active role in evolving a strong IPR regime by formulating their own strategies and policies.
- Collaborative efforts with countries and international organisations for exchange of information on best practices and expertise in IPR.
- Protecting IPRs can be tough in India, where awareness is low and enforcement is weak. But protecting patents, trademarks, and copyrights is vital for innovation and rapid progress on the industrial, scientific, and economic fronts. Strong IPR regime would beneficial for fostering innovation and achieving the targets of AtmaNirbhar Bharat.
Q. Discuss the challenges associated with India's IPR regime and suggest corrective measures to make it more robust.