Intellectual Property Rights Explained

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Context:  Despite being actively engaged in research and new innovations, over 35% of people are not aware of intellectual property rights (IPR), the latest study revealed. 

Relevance:
Prelims: Current events of national and international importance.
Mains: GS III-

  • Indian Economy and issues relating to planning, mobilization of resources, growth, development, and employment. Inclusive growth and issues arising from it.
  • Awareness in the fields of IT, Space, Computers, robotics, nano-technology, bio-technology and issues relating to intellectual property rights.

About Intellectual Property Rights
  • Intellectual property rights (IPR) are the rights given to persons over the creations of their minds:
    • Inventions, literary and artistic works, and symbols, names, and images used in commerce.
  • They usually give the creator an exclusive right over the use of his/her creation for a certain period of time.
  • These rights are outlined in Article 27 of the Universal Declaration of Human Rights, which provides for the right to benefit from the protection of moral and material interests resulting from authorship of scientific, literary or artistic productions.
  • The importance of intellectual property was first recognized in the Paris Convention for the Protection of Industrial Property (1883) and the Berne Convention for the Protection of Literary and Artistic Works (1886).
History
  • The laws and administrative procedures relating to IPR have their roots in Europe.
  • A Venetian Law of 1474 made the first methodical attempt to protect inventions in a form of patent, which allowed rights to an individual for the first time.
  • The invention of the printing press and movable type by Johannes Gutenberg around the year 1450, helped in the origin of the first copyright system in the world.
  • The International Intellectual Property system began with the creation of the Paris Convention for the Protection of Industrial property in 1883 and the Berne Convention for the protection of Literary and Artistic Works in 1886. Both treaties are administered by the World Intellectual Property Organization (WIPO)
  • The patent act in India is more than 150 years old. The first Act was in 1856, which was based on the British patent system and it has provided the patent term of 14 years followed by numerous acts and amendments.
Types of Intellectual properties
  • Intellectual property rights are customarily divided into two main areas:
    • (i) Copyright and rights related to copyright:
      • The rights of authors of literary and artistic works (such as books and other writings, musical compositions, paintings, sculptures, computer programs, and films) are protected by copyright, for a minimum period of 50 years after the death of the author.
    • (ii) Industrial property:
      • Industrial property can be divided into two main areas:
        • Protection of distinctive signs, in particular trademarks and geographical indications:
          • Trademarks distinguish the goods or services of one undertaking from those of other undertakings.
          • Geographical Indications (GIs) identify a good as originating in a place where a given characteristic of the good is essentially attributable to its geographical origin.
          • The protection of such distinctive signs aims to stimulate and ensure fair competition and to protect consumers, by enabling them to make informed choices between various goods and services.
          • The protection may last indefinitely, provided they sign in question continues to be distinctive.
        • Industrial designs and trade secrets:
          • Other types of industrial property are protected primarily to stimulate innovation, design and the creation of technology. In these category fall inventions (protected by patents), industrial designs and trade secrets.

About types of Intellectual properties
  • Copyright:
    • It covers literary works (such as novels, poems, and plays), films, music, artistic works (e.g., drawings, paintings, photographs, and sculptures) and architectural design.
    • Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and broadcasters in their radio and television programs.
  • Industrial Property includes patents for inventions, trademarks, industrial designs, and geographical indications:
    • Patents:
      • Patents are exclusive rights granted by the Government to a company/individual for an invention. Patents are time-bound.
      • Forex: In India, patents are granted for a period of 20 years from the date of filing of the patent application.
      • It is also to be noted that the patents are valid only within the territory where they have been granted. Once a patent expires, protection ends and the invention enters the public domain
    • Trademark:
      • Trademark is a word, or symbol, or phrase, or design, or any combination of these, which identifies and distinguishes the source or origin of a product or service.
      • Other forms of identifying features that have come to be recognized as trademarks include particular color combinations, smells and sounds (for example, an advertisement jingle), textures, packaging, shapes, etc.
      • The period of protection varies, but a trademark can be renewed indefinitely upon payment of the corresponding fees.
    • Design: 
      • Design refers to the features of shape, configuration, pattern, ornamentation or composition of lines or colors applied to any article, in two or three dimensional (or both) forms.
      • It may be applied by any industrial process or means (manual, mechanical or chemical) separately or by a combined process, which in the finished article appeals to and is judged solely by the eye.
      • Term of protection granted is generally five years, with the possibility of further renewal, in most cases for a period of up to 15 years.
    • Geographical Indication:
      • A geographical indication is a sign used on goods that have a specific geographical origin and possess qualities or a reputation due to that place of origin.
      • Most commonly, a geographical indication consists of the name of the place of origin of the goods.
    • Plant Breeders’ Rights:
      • Plant breeders’ rights (PBRs) are granted for new and distinct varieties of plants.
      • When PBR is granted, the breeder gets especial rights in relation to transmitting material of their new plant variety.
    • Trade secrets:
      • Trade secrets are Intellectual Property rights on confidential information that can be sold or licensed.
      • The unauthorized accession, use or disclosure of such secret information in a manner contrary to honest commercial practices by others is regarded as an unfair practice and a violation of the trade secret protection.

What is the need for IPR?
  • The progress and well-being of humanity rest on its capacity to create and invent new works in the areas of technology and culture.
    • Encourages innovation:
      • The legal protection of new creations encourages the commitment of additional resources for further innovation.
    • Economic growth:
      • The promotion and protection of intellectual property spur economic growth, create new jobs and industries and enhances the quality and enjoyment of life.
    • Safeguard the rights of creators:
      • IPR is required to safeguard creators and other producers of their intellectual commodity, goods, and services by granting them certain time-limited rights to control the use made of the manufactured goods.
      • It promotes innovation and creativity and ensures ease of doing business.
      • It facilitates the transfer of technology in the form of foreign direct investment, joint ventures and licensing.
Various International Treaties
  • There are different subject matters of intellectual property like Patents, Copyright, Trademarks, Industrial design, Plant Varieties, etc.
  • The need for protection in these different subjects arose in different periods. These are reflected in different treaties.
  • Agreement on TRIPS, under the aegis of WTO, remains most influential, comprehensive and inclusive of all. Other treaties are covered here for background information.
  • There are two main bodies:
    • World Intellectual Property Organization (WIPO) under the UN which administers 1-7 treaties mentioned below.
    • The 8th treaty is independent of any organization. Another relevant body is the World Trading Organization. 9th (or TRIPS) is administered by WTO.
    • The 10th treaty comes under UNESCO.
  1. Paris Convention for Industrial Property,1883:
    1. Since it deals only with Industrial property, it covered only Patents and Trademarks.
    2. It was among the first treaties to recognize various principles of international trade like National Treatment, Right of Priority, Common rules, etc.
  2. Bern convention for literary and artistic works, 1886:
    1. It provided for copyright system. It doesn’t provide for any formality to claim protection.
    2. Protection is automatically accorded to any creation, provided work is original and other conditions under the treaty are fulfilled.
    3. It means that your work, if original, is already protected. You can claim that you have copyright.
  3. Madrid Agreement, 1881:
    1. Governs the international recognition of trademarks.
    2. Made international fillings easy and cheap.
  4. Patent co-operation treaty, 1970 :
    1. It was earlier not possible for an entity to claim protection in different countries by a single application.
    2. This was made possible as it aimed for co-operation and it was open for all parties to Paris convention.
  5. Budapest Treaty of 1980 :
    1. It made possible patenting for micro-organisms.
    2. The claimant is required to deposit his invention on micro-organisms with an Authority – ‘International depository of Micro-Organisms’ under WIPO.
    3. He shall make all the adequate disclosures.
  6. Trademark Law Treaty, 1994 :
    1. Harmonized administrative procedures and introduced ‘service marks’ in the ambit of trademarks.
    2. Earlier trademarks were accorded only to goods.
  7. The Hague Agreement concerning the International Deposit of ‘Industrial Design’ 1925:
    1. It created the International Design Bureau of WIPO.
  8.  International Union for protection of new varieties of plants, 1961 :
    1. This provides breeders and farmers the right to new plant varieties.
  9. Agreement on Trade-Related Aspects of Intellectual Property :
    1. It is a landmark and most comprehensive treaty on Intellectual property. While earlier treaties’ subject matters were specific, TRIPS deal with 8 kinds of property rights – Patents, Trademarks, trade dress, Copyrights, Industrial Designs, Plant Varieties, Integrated Circuits and layouts, and Geographical Indication.
    2. Further, almost all countries are party to TRIP.
    3. In earlier treaties, only limited countries participated. It also provides enforcement mechanism which was not available in WIPO treaties.
    4. It mandated all member countries to make their domestic laws complaint to TRIPS. India passed certain laws and amended others. India’s IPR regime now stands fully complaint to TRIPS.
    5. For E.g. India amended patent law in 2005 to provide ‘product’ patent protection. Earlier protection was available only to ‘processes’.  
    6. TRIPS was a result of discussions held in the Uruguay round which led to the formation of WTO. This treaty is an offshoot of the General Agreement on Trade in Goods (GATT). This treaty provided a robust Dispute Resolution Mechanism and stringent penal provisions under auspices of WTO.
  10. Universal Copyright Convention, 1952:
    1. This convention is administered by UNESCO.
    2. This exists simultaneously with the Bern Convention. This treaty provides for procedural formalities for filing and recognition of copyright. As Bern convention provides for an automatic route to copyright, this treaty has lost its relevance.

 

World Intellectual Property Organization (WIPO)
  • The World Intellectual Property Organization (WIPO) is one of the 17 specialized agencies of the United Nations.
  • It was created in 1967 “to encourage creative activity, to promote the protection of intellectual property throughout the world.”
  • It has currently 188 member states, administers 26 international treaties, and is headquartered in Geneva, Switzerland.
  • Non-members are the states of Marshall Islands, Federated States of Micronesia, Nauru, Palau, Solomon Islands, South Sudan, and Timor-Leste. Palestine has observer status.
  • India is a member of WIPO and party to several treaties administered by WIPO.

 

WTO principles
  • National Treatment:
    • No foreign products, once they enter domestic territories, shall be discriminated in any manner. This also applies to intellectual property. Members must accord similar treatment to foreign creations, as they do to domestic ones.
  • Most Favored Nation:
    • If a member provides some privilege, favorable treatment or exemption to another country or group, then other members must get similarly favorable treatment.
  • Right to priority treatment:
    • If a similar patent application has been filed in two different countries, then the prior applicant has the right to the patent.
  • Concept of Minimum Standards :
    • This treaty provides for a minimum level of protection that every member should provide to intellectual property. Members have the discretion to provide more protection than minimum standards.

 

Various subject matters of Intellectual Property in India

 

Copyrights
  • Law:
    • Copyrights Act 1957, amended in 2012
  • Ministry:
    • Copyright Office, Ministry of Human Resource Development
  • About:
    • Copyrights of works of the countries mentioned in the International Copyright Order are protected in India as if such works are Indian works.
    • The term of copyright in a work shall not exceed that which is enjoyed by it in its country of origin.
    • The acquisition of copyright is automatic and it does not require any formality.
    • Copyright comes into existence as soon as a work is created and no formality is required to be completed for acquiring copyright.
    • However, certificate of registration of copyright and the entries made therein serve as prima facie evidence in a court of law with reference to dispute relating to ownership of copyright.
    • Application for copyright can be filed in the Copyright office.
    • Computer Software or programme can also be registered as a ‘literary work’.
    • As per Copyright Act, 1957 “literary work” includes computer programmes, tables, and compilations, including computer databases. ‘Source Code’ has also to be supplied along with the application for registration of copyright for software products.
    • The 2012 amendments make Indian Copyright Law compliant with the Internet Treaties – the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT).
    • A lifetime of the author + sixty years from the beginning of the calendar year next following the year in which the author dies.
    • Until sixty years from the beginning of the calendar years next following the year in which the work is first to publish
    • India has a very large copyright-based creative industry.   The Copyright Act is comprehensive and with the recent amendments, the rights of creators have been strengthened.
    • India was the first country to ratify the Marrakesh Treaty 2013 for Access to copyright works for visually impaired persons.
    • Enforcement in copyright has been significant and will be further reinforced. Judgments of Indian courts have adequately balanced the rights of copyright owners with the rights of the public. Moral rights are fully recognized.
    • Indian copyright owners are also victims of copyright violations and piracy. Apart from the Copyrights Act, Information Technology Act, 2000 to has certain relevant provisions for copyright in electronics and digital fields.
    • There have been disagreements over the question of whether Softwares are eligible for copyrights or for patents.
    • Copyright Office recently held that software, if are not in conjuncture with novel hardware should be protected by copyright.
    • This is a relief for the software industry as Copyrights are cheap, automatically recognized and protects for 60 years while patents are only for 20 years. 
Patents
  • Law:
    • Patents Act, 1970, amended in 2006
  • Ministry:
    • DIPP, Ministry of Commerce and industry
  • About:
    • The fundamental principle of Patent law is that a patent is granted only for an invention that must have novelty and utility.
    • It is essential for the validity of a patent that it must be the inventor’s own discovery as opposed to mere verification of what was, already known before the date of the patent. A patentable invention, apart from being new manufacture, must also be useful.
  • Evergreening of the patent is not allowed:
    • In order to be patentable, an improvement on something known before or a combination of different matters already known should be something more than a mere workshop improvement, and must independently satisfy the test of the invention or an inventive step.
    • It must produce a new result, or a news article or a better or cheaper article than before. The new subject matter must involve “invention” over what is old.
  • It allows Compulsory Licensing:
    • This strikes balance between two objectives – Rewarding patentees for innovation and making sure that patented products, particularly Pharmaceutical ones, are available to the public in developing and underdeveloped countries at affordable prices.
    • In March 2012, India granted its first compulsory license ever.
    • The license was granted to Indian generic drug manufacturer Natco Pharma Ltd for Sorafenib tosylate, a cancer drug patented by Bayer. Non-governmental groups reportedly welcomed the decision.
    • TRIPS also allows for compulsory licensing under certain circumstances.
    • The principal requirement for the issue of a compulsory license is that attempts to obtain a license under reasonable commercial terms must have failed over a reasonable period of time.
    • Some examples are:
      • Unaffordable prices of a particular drug for masses or the inability of a patentee to fulfill demand in markets.
  • It allows both Product and Process patent:
    • Prior to the 2006 amendment, only the process was allowed to be patented.
    • It means that if the same product is manufactured using some process different than that was patented, there shall be no infringement.
  • System of pre-grant and post-grant oppositions:
    • Introduced in 2005, ensures that only deserving patents are granted. It is now possible to raise objection both before and after the patent has been granted.
  • Data exclusivity:
    • Indian Patent Act doesn’t specifically provide for data exclusivity. Companies spend significant time, energy and money on research and clinical trials.
    • During all this, they gather a large amount of useful data.
    • While obtaining permission for the launch of the product in markets or while applying for patents, these companies have to provide data to authorities.
    • By the provision of data exclusivity, companies want authorities not to share such data with any third party for a certain period.
    • Article 39(3) of the TRIPS states:
      • That that “Members when requiring, as a condition of approving the marketing of pharmaceutical or of agricultural chemical products which utilize new chemical entities, the submission of undisclosed test or data, the origination of which involves a considerable effort, shall protect such data against unfair commercial use.
    • There is no need for a “further protection” to pharmaceuticals in the form of “Data Exclusivity” as the protection under the Patents Act, 1970 is not only sufficient but also in conformity with the TRIPS Agreement.
    • The protection in the form of “Data Exclusivity” is a “TRIPS-plus” provision to which Indian does not owe any obligation.
Trademarks
  • Law:
    • Trademark Act 1999
  • Ministry:
    • DIPP, Ministry of Commerce and industry
    •  
  • About:
    • A trademark is typically a name, word, phrase, logo, symbol, design, image, or a combination of these elements.
    • There is also a range of non-conventional trademarks comprising marks which do not fall into these standard categories, such as those based on color, smell, or sound (like jingles).
    • A trademark cannot be offensive
    • India joins Madrid Protocol, 2013
    • The Madrid System for the International Registration of Marks offers trademark owners a cost-effective, user-friendly and streamlined means of protecting and managing their trademark portfolio internationally.
Designs
  • Law:
    • Designs Act, 2000
  • Ministry:
    • DIPP, Ministry of Commerce and industry
  • About:
    • Apple iPhones are manufactured in China. But, China is able to capture paltry 2-5% of its value while the overwhelming part is cornered by the USA.
    • This is mainly attributed to value added by Designing and Research, which is based in the USA. Thus, the importance of design protection can’t be overstressed.    
    • ‘An industrial design may consist of three-dimensional features, such as the shape of an article, or two-dimensional features, such as patterns, lines or color.’
    • Industrial designs refer to creative activity which results in the ornamental or formal appearance of a product and ‘design right’ refers to a novel or original design that is accorded to the proprietor of a validly registered design.
    • Industrial designs are an element of intellectual property.
    • Under the TRIPS Agreement, minimum standards of protection of industrial designs have been provided for. As a developing country, India has already amended its national legislation to provide for these minimal standards.
    • The existing legislation on industrial designs in India is contained in the New Designs Act, 2000 and this Act will serve its purpose well in the rapid changes in technology and international developments.
    • India has also achieved a mature status in the field of industrial designs and in view of globalization of the economy, the present legislation is aligned with the changed technical and commercial scenario and made to conform to international trends in design administration.
Geographical Indications
  • Law:
    • Geographical Indications of Goods Act, 1999
  • Ministry:
    • DIPP, Ministry of Commerce and industry
  • About:
    • Protection for a geographical indication is usually obtained by acquiring a right over the sign that constitutes the indication.
    • Geographical indications are typically used for agricultural products, foodstuffs, wine and spirit drinks, handicrafts, and industrial products.
  • How are geographical indications protected?
    • Broadly speaking geographical indications are protected in different countries and regional systems through a wide variety of approaches and often using a combination of two or more of the approaches outlined above.
    • These approaches have been developed in accordance with different legal traditions and within a framework of individual historical and economic conditions.
  • There are three main ways to protect a geographical indication:
    • So-called sui generis systems (i.e. special regimes of protection);
    • Using collective or certification marks; and
    • Methods focusing on business practices, including administrative product approval schemes.
    • These approaches involve differences with respect to important questions, such as the conditions for protection or the scope of protection.
    • On the other hand, two of the modes of protection: namely sui generis systems and collective or certification mark systems: share some common features, such as the fact that they set up rights for collective use by those who comply with defined standards.
Plant Varieties
  • Law:
    • Protection of Plant varieties and farmers’ right Act, 2001
  • Ministry :
    • Department of Agriculture and Cooperation, Ministry of Agriculture
  • About:
    • With the advent of hybrid and genetically modified plants, it is possible to create different quality of plants of the same genus or species.
    • There has been an unending quest of developing plant varieties that are more productive, more fortified with nutrients, more resistant to vagaries of nature and are reasonably priced.
    • Such development demands a lot of expenditure and time just like any other patentable invention.
    • TRIPS agreement says that either a member should cover plant variety in domestic patent law or it should be provided a sui- generis protection.
    • Accordingly, India’s patent law doesn’t cover plant varieties and the POPVFR act provides sui-generis protection.    
    • The Govt. of India enacted “The Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Act, 2001” adopting sui generis system. 
    • ‘Protection of Plant Varieties and Farmers Right Authority’ has been created under the act. The application can be made (by farmer, breeders) to authority to claim protection on a particular plant variety.
Semi-conductors and integrated Layouts
  • Law:
    • Semi-conductors and integrated Layout design Act, 2000
  • Ministry:
    • Department of Electronics and I.T, Ministry of Communication and I.T.
  • About:
    • A semiconductor layout design means a layout of transistors and other circuitry elements and includes lead wires connecting such elements and expressed in any manner in semiconductor integrated circuits.
    • The first registration under the Semiconductor Integrated Circuits Layout-Design Act, 2000 was granted in October 2014.
    • It is expected that the industry will make increased use of this right to protect integrated circuit layout designs.
    • Under this, a SICLD registry has been created where layout designs of integrated circuit chips can be registered.
    • The Registrar will determine the originality of the design based on the information available with him as also through the mechanism of advertisement of the application for registration of the layout-design and or any input he may receive. On registration, protection is granted for 10 years.
Traditional Knowledge
  • About:
    • Collaboration Between the Council of Scientific and Industrial Research (CSIR) and the Department of Ayurveda, Yoga, and Naturopathy, Unani, Siddha and Homoeopathy (Dept. of AYUSH), Ministry of Health & Family Welfare, Government of India.
    • There is considerable unexplored potential for developing, promoting and utilizing traditional knowledge, which is a unique endowment of India.
    • Create a sui generis system for the protection of traditional knowledge which will safeguard misappropriation of traditional knowledge as well as promote further research and development in products and services based on traditional knowledge.
    • The creation of the Traditional Knowledge Digital Library (TKDL) has been a major achievement for India which has a vast pool of traditional knowledge.
    • India has been able to thwart attempts to misappropriate its traditional knowledge. The next challenge is to use India’s strength in traditional knowledge for its effective promotion, development, and utilization.
    • It manages a database of knowledge that exists in various local languages such as Sanskrit, Urdu, Arabic, Persian, and Tamil. TKDL has also converted the database into five international languages in patent application formats.
  • Some success stories of TKDL :
    • India Foils Colgate-Palmolive Bid to Patent Nutmeg Mouthwash:
      • In 2010, a Patent application was filed by Colgate-Palmolive Company titled “Oral compositions containing extracts of myristica fragrans and related methods”.
      • The company claimed an oral composition comprising a combination of extracts including an extract from Myristica fragrans and a natural extract other than the extract from Myristica fragrans.
      • The prime issue with this application by Colgate-Palmolive is that Myristica fragrans (nutmeg) has been traditionally used in the Indian system of medicines and is used almost every single day by an average Indian, especially those residing in the countryside.
      • CSIR-TKDL submitted proof in the form of references from an ancient book, which said that the herb and its extracts were used for oral diseases in Indian systems of medicine.
      • In addition, other third party observations also made submissions against the claims and the Patent application was shot down. The status of the application EP2689806 now stands canceled.
    • India wins the Patent war on hair loss formula:
      • Pangaea Laboratories Limited, a UK based company had filed a Patent application in February 2011 titled “Hair building solid agent” (EP2361602).
      • On a close reading of the application, they come across two important pieces of information viz, the description section of the application which reads:
      • “The hair building solid spray agent may include one or more pharmacologically active ingredients for treating one or more of hair loss, thinning hair and skin conditions.
      • Thus CSIR filed an objection to the application by providing the EPO with evidence from the TKDL citing the traditional use of curcumin, pine bark and green tea in the treatment of hair loss.
      • The third-party observations submitted by CSIR can be accessed here.
Biological Diversity
  • Law:
    • Biological Diversity Act, 2002 in pursuance of Convention on Biological Diversity, 1993
    • The Convention on Biological Diversity (CBD) is a legally binding multilateral environmental agreement that has 194 contracting Parties (Countries) as its members with three objectives :
      • Conservation of biological diversity,
      • Sustainable use of diversity and
      • Ensuring fair and equitable sharing of benefits of such use.
  • About:
    • There is no overlap between the Biological Diversity Act and the Protection of Plant Varieties and Farmer’s Rights Act (PPV&FRA).
    • The scope and objectives of these two legislations are different.
    • In order to harmonize both the legislations, an exemption has been provided under Section 6 (3) of the Biodiversity Act for applicants seeking protection under the PPV&FRA.
    • The purport of Section 6(3) is to ensure that before the grant of IPRs, it becomes possible to realize equitable sharing of benefits arising out of the use of biological resources and knowledge.
    • As the PPV&FRA also has a provision for benefit sharing, an exemption has been provided in the Biological Diversity Act for applicants seeking protection under the PPV&FRA.

National IPR Policy
  • About:
    • The National Intellectual Property Rights (IPR) Policy 2016 was adopted in May 2016 as a vision document to guide future development of IPRs in the country.
    • Its clarion call is “Creative India; Innovative India”.
    • It encompasses and brings to a single platform all IPRs, taking into account all inter-linkages and thus aims to create and exploit synergies between all forms of intellectual property (IP), concerned statutes and agencies.
    • It sets in place an institutional mechanism for implementation, monitoring, and review. It aims to incorporate and adapt global best practices to the Indian scenario.
    • Department of Industrial Policy & Promotion (DIPP), Ministry of Commerce, Government of India, has been appointed as the nodal department to coordinate, guide and oversee the implementation and future development of IPRs in India.
    • The ‘Cell for IPR Promotion & Management (CIPAM)’, set up under the aegis of DIPP, is to be the single point of reference for the implementation of the objectives of the National IPR Policy.
    • India’s IPR regime is in compliance with the WTO's agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
  • 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 the 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.

Achievements under new IPR policy
  • Improvement in GII Ranking:
    • India’s rank in the Global Innovation Index (GII) issued by WIPO has improved from 81st in 2015 to 52nd place in 2019.
    • Strengthening of institutional mechanism regarding IP protection and promotion.
  • Clearing Backlog/ Reducing Pendency in IP applications:
    • The augmentation of technical manpower by the government has resulted in a drastic reduction in pendency in IP applications.
    • The automatic issuance of electronically generated patent and trademark certificates has also been introduced.
  • Increase in Patent and trademark Filings:
    • Patent filings have increased by nearly 7% in the first 8 months of 2018-19 vis-à-vis the corresponding period of 2017-18. Trademark filings have increased by nearly 28% in this duration.
    • IP Process Re-engineering Patent Rules, 2003 have been amended to streamline processes and make them more user-friendly. Revamped Trade Marks Rules have been notified in 2017.
  • Creating IPR Awareness:
    • IPR Awareness programs have been conducted in academic institutions, including rural schools through satellite communication, and for industry, police, customs, and judiciary.
  • Technology and Innovation Support Centres (TISCs):
    • In conjunction with WIPO, TISCs have been established in various institutions across different states.
Issues in India’s IPR regime
  • Section 3(d) of the Indian Patent Act 1970 (as amended in 2005):
    • It does not allow the patent to be granted to inventions involving new forms of a known substance unless it differs significantly in properties with regard to efficacy.
    • This means that the Indian Patent Act does not allow the evergreening of patents.
    • This has been a cause of concern for the pharma companies. Section 3(d) was instrumental in the Indian Patent Office (IPO) rejecting the patent for Novartis’ drug Glivec (imatinib mesylate).
  • Issue of Compulsory licensing (CL):
    • CL is problematic for foreign investors who bring technology as they are concerned about the misuse of CL to replicate their products. It has been impacting India-EU FTA negotiations.
    • CL is the grant of permission by the government to entities to use, manufacture, import or sell a patented invention without the patent owner's consent. Patents Act in India deals with CL.
    • CL is permitted under the WTO’s TRIPS (IPR) Agreement provided conditions such as ‘national emergencies, other circumstances of extreme urgency and anti-competitive practices’ are fulfilled.
    • India continues to remain on the United States Trade Representative's (USTR’s) ‘Priority Watch List’ for alleged violations of intellectual property rights (IPR).
    • In its latest Special 301 report released by the United States Trade Representative (USTR), the US termed India as “one of the world’s most challenging major economies” with respect to protection and enforcement of IP.
  • Data Exclusivity:
    • Foreign investors and MNCs allege that Indian law does not protect against unfair commercial use of test data or other data submitted to the government during the application for market approval of pharmaceutical or agro-chemical products. For this, they demand a Data Exclusivity law.
    • Enforcement of the Copyright act is weak, and piracy of copyrighted materials is widespread.
Recent Initiative by the Government
  • The DIPP (Department of Industrial Policy and Promotion) is responsible for the matters concerning the specialized UN agency on IPRs, the World Intellectual Property Organisation (WIPO), including coordination with other concerned Ministries or Departments.
  • National IPR Policy:
    • National IPR Policy for India adopted by the Govt in 2016.This policy laid down the future roadmap of IPRs in India.
    • CIPAM (Cell for IPR Promotion and Management) has been set up to coordinate the implementation of the National IPR Policy.
  • The Government has taken the following steps to enable and assist startups for filing of patents:
    • As per the amended Patents Rules, an 80% patent fee has been reduced for Startups as compared to larger companies.
    • Under the SIPP(Scheme for Facilitating Startups Intellectual Property Protection), 208 Patent Agents have been impaneled for assistance by the Controller General of Patents, Designs, and Trademarks, to provide assistance to Startups in the filing and preparation of their patent applications and, subsequently, during the stage of prosecution of applications before the Patent Office.
    • The facilitator's fees are paid by the Government as per the norms of the scheme.
    • Startups are also eligible for getting the processing of their patent applications expedited
Way Forward
  • Promoting an environment of innovations in schools. The academic curricula need to be rebooted.
  • A proper resolution mechanism for resolving IPR related issues is needed.
  • India will be unable to take full advantage of the transformative benefits of a strong IP system unless and until it addresses gaps in its IP laws and regulations.
  • The success of India’s flagship programs, Make in India and Startup India – depends on the boost of the innovation ecosystem with better IPR safeguarding.
  • More awareness is needed about the creation, protection and enforcement of IPRs to encourage the Indian industry not only to innovate but also to protect and enforce their innovations.
Conclusion
  • India has made a number of changes in its IPR regime to increase efficiency and has cut down the time required to issue patents. The culture of innovation is taking center stage in the country.
  • India is well poised to focus on R&D. This has been reflected in its improved ranking in the Global Innovation Index over the years.
  • The government’s effort to strengthen National IPR policy, IP appellate tribunal, e-governance and commitment to abide by the TRIPS agreement of WTO in letter and spirit will help in improving the perception of India globally.
  • An efficient and equitable intellectual property system can help all countries to realize intellectual property’s potential as a catalyst for economic development and social & cultural well-being.



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