India: First Draft Of India’s National IPR Policy: Encouraging Indigenous Innovation

Last Updated: 13 February 2015
Article by Priya Anuragini

Faced with the constant scrutiny of its Patent laws, Indian Government decided that it was time to move beyond the rhetoric surrounding the patentability thresholds for pharmaceutical innovations and have a comprehensive IP Policy in consonance with India's national priorities and development needs. Accordingly, an IPR think tank under the leadership of erstwhile IPAB Chairman Justice Prabha Srideven was constituted with the mandate of drafting National Intellectual Property Rights Policy. Interestingly, the constitution of the think tank coincided with the formation of joint Indo –US Working Group on IPR and was mostly seen as the by-product of the US pressure. Also, the surreptitious manner in which the members of the think tank were chosen, with almost no information in the public domain regarding the basis of selection, did not go down too well with the stakeholders. While the criticism and concerns poured in, the six member think tank submitted the first draft of National IPR Policy in December last year and invited comments and suggestions from the stakeholders.

Policy Formulations in the First Draft

Commencing with the motto of Creative India; Innovative India, the draft policy's introduction effectively articulates the important thrusts of India's IP policy and stresses emphatically that India shall continue to give precedence to its national development priorities while adhering to its international commitments and will keep avoiding TRIPS plus provisions signalling quite clearly that Think Tank has steered clear of any foreign pressure while drafting the policy. Focussing on the utilitarian dimension of IP, the draft envisions an India where knowledge owned is transformed into knowledge shared and innovation is encouraged for the benefit of all and proclaims to establish a dynamic, vibrant and balanced intellectual property system in India. In pursuance of this the draft identifies seven core objectives that the policy framework needs to achieve and lists down measures essential to actualize them. In its concluding sections, the 30 page draft recognizes the need to implement the legal provisions pertaining to IP harmoniously so as to avoid conflict, overlap or inconsistencies in their administration. To this end, the draft policy calls for establishment of a high level body in the Government to coordinate, guide and oversee implementation and future development of IP in India and to bring cohesion among various ministries.

Key Themes in the Policy

While the think-tank has identified seven primary objectives for Indian IPR policy ranging from augmentation of IP awareness, creation, administration, commercialization, enforcement to fine-tuning of legislative framework and strengthening of human resources, institutions and capacities for skill building in IP, one of the underlying themes that seasons each of these objectives is the emphasis on India's special strengths in IP and the measures that need to be undertaken to bolster IPs where India has future potential. Thus, the policy recommends recognition to petty patents or utility models as a form of IP and enactment of a new law on utility models so as to facilitate protection of small inventions. The measure will facilitate protection of "makeshift inventions" popularly known as "Jugaad" in India. In the same vein, the policy proposes creation of a sui –generis system for protection of traditional knowledge to promote further research in products and services based on traditional research. To encourage Indians to register innovations, the policy supports "patent fee waiver" and statutory incentives" from "creation to commercialization" of an invention, in particular, for MSMEs, individual inventors and innovators and also calls for an IP audit or a baseline survey to identify sectors that need assistance. The policy also recognises the practice of many research institutions, of registering patents only as a R & D formality, who never venture to commercialize or market the innovation and calls for Government support to commercialization by forging linkages between IP creators and investors, designing suitable strategies for IP Valuation, promoting going to market activities and facilitating patent pooling and cross licensing to create IP based goods and services. For sustained institutional support, the Policy also recommends creation of IP Facilitation centres, establishment of IP Promotion and Development Units (IPPDU) in various regions supervised by an IP Promotion and Development Council (IPPDC) which would act as the nodal agency for IP promotion, creation and commercialization. While the policy suggests numerous novel mechanisms for spreading IP awareness and facilitating collaboration between different categories of stakeholders, it also takes stock of the current regulatory and administrative IP regime and acknowledges that that laws need revisiting to keep up with digital progress, socio-economic needs of India and international commitments and acknowledges that there is a need to update and improve existing laws and to streamline IP related rules, procedures, procedures, practices and guidelines as also the need to sensitize and acquaint IP officers at all levels with the rationale behind IP laws, international obligations and linkages between different IP laws. To this end, it mandates more autonomy for intellectual property offices, adoption of standardized procedures for examination of IP applications, coordination between different IP offices and identification of important areas of study and research for future policy development such as IP interface with competition law and policy, protection of undisclosed information not extending to data exclusivity, exhaustion of IP rights, etc. Considering that IP enforcement has always been the weakest link in India's IP regime with piracy and counterfeiting being its two biggest nemesis, the draft encourages both application of technology based solutions in enforcement of IP rights and Alternate Dispute Mechanisms in arriving at solutions in cases of IP disputes.

At this stage it may be said that the draft policy has covered in detail areas of interest for indigenous innovators and if the policy crystallizes into practice, it would indeed give a major flip to innovation in India.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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