India: Revised National IPR Policy India- From Industry And Public Development Perspective

Last Updated: 10 January 2017
Article by Monika Shailesh

Most Read Contributor in India, December 2018

May 2016 marked a new era in the history of IPR policy and regulation in India. The Union Cabinet on May-12- 2016 approved the much anticipated "National Intellectual Property Rights (IPR) Policy" to lay the future roadmap for intellectual property in India. It is said to be a "first of its kind" policy for India, covering all forms of intellectual property together in a single framework. The ideologies laid down in the policy incentivize IP owners by granting them monopoly rights. The Policy is in compliance with WTO's (World Trade Organization) agreement on TRIPS (Trade Related aspects of IPRs), goals to sustain entrepreneurship and boost the scheme "Make in India".

The National IPR Policy is a vision document that 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. This policy shall weave in the strengths of the Government, research and development organizations, educational institutions, corporate entities including MSMEs, start-ups and other stakeholders in the creation of an innovation-conducive environment, which stimulates creativity and innovation across sectors, as also facilitates a stable, transparent and service-oriented IPR administration in the country.1

Vision Statement:

An India where creativity and innovation are stimulated by Intellectual Property for the benefit of all; an India where intellectual property promotes advancement in science and technology, arts and culture, traditional knowledge and biodiversity resources; an India where knowledge is the main driver of development, and knowledge owned is transformed into knowledge shared.2

Mission Statement

Stimulate a dynamic, vibrant and balanced intellectual property rights system in India to:

  1. Foster creativity and innovation and thereby, promote entrepreneurship and enhance socioeconomic and cultural development
  2. Focus on enhancing access to healthcare, food security and environmental protection, among other sectors of vital social, economic and technological importance.

The new policy is set to administer the subsequent Acts: Patents, Trade Marks, Design, Copyright, Protection of Plant Varieties and Farmers' Rights, Semiconductor Integrated Circuits Layout Design and Biological Diversity. It is expected, therefore, that it will impact sectors as diverse as pharmaceuticals, software, electronics and communications, seeds, environmental goods, renewable energy, agricultural and health biotechnology, and information and communications. Developed countries like USA have been forcing India to tighten its IPR policy regime to gain added advantage for their MNC's. Experts believe that the revised IPR policy shows that India has not surrendered to the mounting international pressure over the formulation of new IPR policy but India should have made the policy a bit more radical to safeguard India's Generic Industry. The new policy is completely silent on the generic medicines in the pharma industry. New IPR policy is established over the Doha Declaration for the policy framework and is in compliance with the TRIPS agreement and public health. The Doha Declaration is a 2001 WTO text which recognizes that IP and patent regimes have to be weighed against the context of burning health issues like HIV/AIDS, tuberculosis, malaria and other epidemics that primarily affect the developing nations. Developed nations like USA and European countries have been trying to extract more and more out of the developing countries on the basis of TRIPS agreement. The new IPR policy however has made it clear that India for sure is not going to deliver anything more than the intents of the TRIPS agreement and it is assumed to be good step towards the indigenous and generic Indian Industry. The basis of this can be seen in the light that India has not opened any debate on Section 3(d) of patents act that states inventions that are mere discoveries of a new form of a known substance and do not result in any increase in the efficiency are not patentable. This has given a great reprise to the Indian generic pharma industry, otherwise in case patents are granted to International firms like Tykerb which applied patent for the cancer drug it would have made the cancer drug so expensive and out of reach of many patients. However the new policy seems to be a failure where it is required to create a favorable environment for the creativity and innovation. The developed countries are least interested in developing medicines for diseases like malaria that haunt the third world or the developing countries while the new IPR policy completely fails to encourage the innovations in the area of biomedicine for Indian companies.Indian applicants have rather leading in the trademark applications and not patents. The number of new drug applications filed by Indian companies with USFDA, for instance, has never crossed the single digit figure. So many experts do criticize that the new policy framework will not do any significant job in enhancing this situation.

OBJECTIVES OF NEW POLICY FRAMEWORK3

  1. IPR Awareness: Outreach and Promotion - To create public awareness about the economic, social and cultural benefits of IPRs among all sections of society.
  2. To stimulate the generation of IPRs
  3. Legal and Legislative Framework - To have strong and effective IPR laws, which balance the interests of rights owners with larger public interest.
  4. Administration and Management - To modernize and strengthen service oriented IPR administration.

    Commercialization of IPR - Get value for IPRs through commercialization.
  5. Enforcement and Adjudication - To strengthen the enforcement and adjudicatory mechanisms for combating IPR infringements.
  6. Human Capital Development - To strengthen and expand human resources, institutions and capacities for teaching, training, research and skill building in IPRs.

CONCLUSION

In totality the new IPR policy appears to be fair and balanced, particularly the way the new IPR policy has safeguarded the interest of the generic biomedicine sector of India. The policy makers are to be applauded for not yielding to the ever mounting international pressure and lobbying by the big MNC's. The recommended trail for IPR in India appears to be clear, explicit, and see-through. The policy comprehensibly has not taken any extreme stance on any aspect of the IP. The policy expresses of encouraging IP as a financial asset and economic tool. However, the policy seems to be failing to provide safety from improper valuation of the IPR asset. It is encouraging to note that now there will be high level body would monitor the progress and implementation of the new policy to see through a clear indication on the performance and target deliverables. The new policy do encourages the "THINK TANK" by providing statutory incentives, like tax benefits linked to IP creation, reduction in fee for patents that will lead to public development, reduction of time taken to grant patent or express service to patents that intent to start manufacturing in India, under "MAKE IN INDIA" scheme etc. The IPR policy favors the government considering financial support for a limited period on sale and export of products based on IPRs generated from public-funded research. As per the WTO norms, a compulsory licensing (CL) can be invoked by a government allowing a company to produce a patented product without the consent of the patent owner in public interest. Under the Indian Patents Act, a compulsory licensing (CL) can be issued for a drug if the medicine is deemed unaffordable, among other conditions, and the government grants permission to qualified generic drug makers to manufacture it. Compulsory licensing is the approach towards bending the aim of patents for public interest. New policy also aims to create an effective loan guarantee scheme to encourage start-ups. Overall the new IPR Policy regime can be classified as a balanced scheme where the interest of both the industry as well as the public development domain has been considered.

Footnotes

1 http://pib.nic.in/newsite/PrintRelease.aspx?relid=145338   (Last visited on 20/12/2016)

2 http://pib.nic.in/newsite/PrintRelease.aspx?relid=145338   (Last visited on 20/12/2016

3 http://dipp.nic.in/English/Schemes/Intellectual_Property_Rights/National_IPR_Policy_08.08.2016.pdf    (Last visited on 20/12/2016)

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