India: Understanding The National IPR Policy

Last Updated: 4 October 2016
Article by DSK Legal

The Union Cabinet on 12th May, 2016, approved the long awaited national intellectual property rights policy ("Policy"), with a view to promoting creativity, innovation and entrepreneurship. It stresses on the need to recognize the importance of Intellectual Property Rights ("IPRs") as a marketable financial asset and economic tool. To achieve the same, the Policy lays down certain objectives i.e. increasing IPRs awareness, building a strong legislative framework, modernizing administration and management of Intellectual Property ("IP"), strengthening enforcement and adjudication for combating IPRs infringement. The Policy also seeks to create a framework for expanding human capital development for teaching, training, research and skill building in IP.

Key Takeaways from the Policy

  • It is laudable that the Policy did not open up the debate on Section 3(d) of the Patents Act, 1970 which sets the standard for what is considered an invention in India. Section 3(d), which stopped ever-greening of patents, states that inventions that are discoveries of a new form of a known substance but do not result in increased efficacy, are not patentable.

In this regard, it must be noted that Novartis's cancer drug 'Glivec' and GSK's breast cancer drug 'Tykerb' were denied patent protection by the Indian courts on such grounds. Had the same been allowed, the aforesaid drugs would be selling at a price several times more than their generic versions sold by the Indian drug companies. Similarly, provisions on compulsory licensing of patents under the Indian patent laws have been retained as well, and will be exercised only under emergency conditions.

  • The Policy stresses on the need for a holistic approach to be taken on legal, administrative, institutional and enforcement issues related to IP. To achieve the same, the Department of Industrial Policy and Promotion ("DIPP") has been named the nodal point to coordinate, guide and oversee implementation and future development of IPRs in India. Therefore, the IPRs which were previously administered by the Ministry of Human Resource Development and the Ministry of Communications and Technology, will henceforth be administered by the DIPP. The Policy also envisages constituting a "Cell for IPR Promotion and Management" (CIPAM) under the administration of the DIPP for promoting, creating and commercializing IP assets.
  • The Policy directs the Controller General of Patents Designs and Trademarks to fix and adhere to timelines for granting registration and disposal of opposition
  • matters with respect to trademarks. In furtherance of the same, the government aims to lower the average time period for processing trademark applications for registration to one month from 2017 onwards.
  • The Policy aims to expand the ambit of the Traditional Knowledge Digital Library (TKDL) beyond Ayurveda, Yoga, Unani and Siddha, to allow public research institutions and private players to use TKDL for further research and development ("R&D").
  • The Policy also plans to reach out to the less visible IP creators and holders, especially in rural and remote areas, which include small businesses, farmers, holders of traditional knowledge, traditional cultural expressions and folklore, designers and artisans.
  • The Policy plans to develop IPRs expertise among academia, legal practitioners, judiciary, IP users and civil society by adequate training and introduction of multi-disciplinary IP courses in all major training institutes such as judicial academies, the National Academy of Administration, police and customs academies etc. It further aims to make the study of IPRs an integral part of the curriculum in all legal, technical, medical and management educational institutions, and progressively introduce IP teaching in schools and colleges as well.
  • Pursuant to the Policy, the government plans to conduct a comprehensive IP audit across various sectors, with the intent to formulate and implement sector-wise programs to tap their potential, assess needs and lend support towards creation of IP.
  • Various incentives to promote R&D with respect to IP have been proposed under the Policy, which include:

i. Providing tax benefits by simplifying the process for availing direct and indirect tax benefits;

ii. Providing financial support for sale and export of products based on IPRs generated from public funded research;

iii. Formulating an effective loan guarantee scheme to encourage start-ups and cover the risk of genuine failures in commercialization based on IPRs as mortgage-able assets.

Concluding Remarks

IPRs are a significant chapter in India's growth story. A national IPRs regime needs to balance the interests of foreign manufacturers and innovators with those of indigenous innovators, especially, budding entrepreneurs and small and medium enterprises. It further needs to ensure that the interests of the most deprived sections of the society are not jeopardized, particularly in social sectors as crucial as health. These conflicting pressures can be balanced only through a stable and predictable policy. The Policy is a significant step forward in this direction and seeks to develop a holistic and fair regime.

However, it must be borne in mind that adequate implementation and enforcement of the objectives set out in the Policy, hold the key to its success. It would interesting to note how soon and effectively the Policy's objectives are implemented, as many of the measures contemplated by the Policy may require amendments to the existing legal framework.

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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