Intellectual property regime in India

SYLLABUS

Science and Technology   >   IP Rights   >   Copyrights & Patents and others

REFERENCE NEWS

In 2022-23, India recorded 82,805 patent applications and 34,153 grants, which has been a substantial increase from 45,444 patent applications and 9,847 grants in 2016-17.

Now, India needs to shift its focus from quantity to quality of the patents, to avoid the ‘patent paradox‘ situation like China.

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 IP REGIME- LAWS AND SCHEMES:

• Patents Act,1970: To protect and safeguard Intellectual products. The innovator acquires the monopoly of the product for utilising the product.
• The Trade Marks Act,1999: An Act to amend and consolidate the law relating to trade marks, to provide for registration and better protection of trade marks for goods and services and for the prevention of the use of fraudulent marks.
• The Geographical Indications of Goods Act,1999: An Act to provide for the registration and better protection of geographical indications relating to goods
• 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:

• Motto: “Creative India; Innovative India”
• Implementation: ‘Cell for IPR Promotion & Management (DIPP)
• Seven key objectives::
  • IPR Awareness: Outreach and Promotion:
  • Generation of IPRs:
  • Legal and Legislative Framework:
  • Administration and Management:
  • Commercialization of IPRs:
  • Enforcement and Adjudication:
  • Human Capital Development

Patent Box regime: Special tax regime for IP revenues. A lower rate of tax is applicable for the income generated from licensing or transfer of IPR.(Finance Act,2016)

iPRISM: An Intellectual Property (IP) competition for students of schools, polytechnic institutes, colleges and universities.

ISSUES 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.
  • Ex: 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:
  • Ex: The WIPO Global IP Perception Survey 2023 showed that India along with Bangladesh scored on the lower end of the awareness index in the Asis-Pacific region.
• “Evergreening patents”:
  • Patent evergreening refers to the continuing extension of patent rights. By accumulating patents on superior versions of existing products, these patents cover many aspects of a single product. Ex:  Bedaquiline case
  • Provisions such as Sections 3(d), 53(4), and 107A of the Patents Act were expressly introduced to prevent the mischievous practice of "evergreening" of patents.
  • The Indian Patent Office continues to grant "Evergreening patents" to pharmaceutical companies for drugs treating serious conditions like diabetes and cancer. 
  • This practice, despite contrary provisions in the Indian Patents Act, often leads to legal enforcement against generic manufacturers. 
  • As a result, the entry of generic drugs into the market is delayed, impacting the availability of affordable medicine, particularly in India where household healthcare costs are high.

• 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 practices like "evergreening" abridge and reduce the legitimate rights of other stakeholders.
• Traditional knowledge:
  • No specific measures for the protection of traditional knowledge and its usage for the betterment of society
• Over commercialization: Over commercialization of IPR under new IPR policy
• Lack of dedicated body due to abolition of IPAB(Intellectual property appellate board)

WAY FORWARD:

• 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.
• 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.

Protecting IPRs can be tough in India, where awareness is low and enforcement is weak. However protecting patents, trademarks, and copyrights is vital for innovation and rapid progress on the industrial, scientific, and economic fronts. A strong IPR regime would be beneficial for fostering innovation and achieving the targets of AtmaNirbhar Bharat.

PRACTICE QUESTION:

Q: Critically evaluate the effectiveness of India's current patent regime in fostering innovation.Provide suggestions to improve the current system.(15 Marks, 250 Words)