India: IP Environment In India - Insight Of Opportunities And Threats

Last Updated: 10 March 2017
Article by Monika Shailesh

Most Read Contributor in India, December 2018

India is believed to have an incredible potential to become one of the world's leading markets and hub for the innovation, research and development. Intellectual property industry is assessed to have a huge growth potential in the current Indian and Global context. Intellectual Property Rights (IPRs) unarguably are emerging as a strategic business tool for any business organization to enhance its competitiveness. India has proven its endurance by not only withstanding the global economic slowdown but also emerged as one of the fastest growing economy across the globe. Over the last few years, with slogans like "Creative India: Innovative India"–"Make in India" the Government of India has been trying to position itself to be a pro-IP, knowledge-driven economy capable of competing with developed and developing countries in protecting and promoting innovation and other IPR in an array of industries. Lately, we have seen a paradigm shift towards high quality and value added ideas and innovations. Intellectual Property provides exclusive rights to the inventors or the manufacturer of the respective IP Property which in turns enables them to reap out the commercial benefits from the innovative idea or design. IPR provides some kind of granted monopoly and this is the main cause that inspires innovators to come up with innovations and new ideas. IPR also provides an added advantage of safety from the competitors.

Comprehending that invention is the engine for the growth of affluence and national competitiveness in the 21st century; The President of India has declared 2010 as the 'Decade of Innovation'. Declaration of 2010-2020 as the innovation decade can be seen as a desperate attempt towards making the Indian IP environment more healthy and supportive towards the indigenous as well as the international innovators. National Innovation Council (NInC) has been setup under the Chairmanship of Mr. Sam Pitroda, He will act as an adviser to the PM to discuss, to analyze and to help implement strategies for inclusive innovation in India and prepare a Roadmap for Innovation 2010-20201. Government of India has recently approved the new IPR policy 2016 on May 13, 2016, which targets to encourage escalate awareness about and administer Intellectual Property in India. IP offices across the country are being transformed to increase the efficiency in processing the applications. Patent offices have been directed to ensure uniformity and consistency in the examination of applications. A Roadmap to increase the bilateral cooperation at global level and raising the public awareness level has been set up. Mass recruitment of Patent and trademark examiners are planned to take care of the ever increasing backlogs. Startups have a very inadequate possessions and manpower and can sustain in the cut throat competition only through continuous growth and development oriented innovations. For them the union Government of India has started a facility of faster allocation of patents under the "Tatkal" scheme. Startups are also facilitated with the reduced patent examination fee. These facilities are also available to the innovators who file their patents first in India. The new provisions introduced in the Patents Rules by way of 2016 amendments seek to grant patent within two and a half years and within one and a half year by March 2018 which otherwise used to take about five to seven years. To clear the backlogs the government of India has recruited large number of Examiners in each of the technological department at the Patent Office.. Further, by

2016 amendment, the official fee for withdrawing an application for patent has been waived off and now the applicant can also claim a refund of 90% of examination fee in case the withdrawn application is not examined at the Patent Office. Accordingly, applicants are encouraged to withdraw application for which the applicant is "not interested" in acquiring a patent, thereby, automatically reducing the Examiner's load to some extent.

The Indian Government acknowledges that even after taking some major steps towards improving the overall IPR environment in the country, we still need to strike a balance in the IPR regime, its protection and effective promotion.. For instance, it will be obligatory for the administration to provide effect to the full essence and scope of the National IPR Policy, which endorses a host of methods including the periodic review and changes to the existing IPR legal and regulatory framework and creating a credible IPR enforcement system. Indian IP laws have many provisions for administrative, civil and criminal remedies for infringement of the IPR; however ineffective enforcement is one of the biggest problems that inhibit the growth of IP industry in the country

The Index which is created by the US Chamber of Commerce: Global Intellectual Property Center (GIPC) has around 30 principles critical to innovation including patent, copyright and trademark protections, enforcement, and engagement in international treaties. According to the report, the reason India scoring low rank was nonalignment with the international best practices in IPR. It also mentioned that India needs to provide ample protection from online piracy and shall strive to have proper law enforcement. The use of compulsory licensing, which is governments permission to allowing entities to manufacture, use, sell or import a patented invention without the permission of patentee, for the commercial and non-emergency situations has been a topic of discussion at various platforms.

Key Areas of Strength as per GIPC3

  • The government of India continued to make positive statements during 2015 on the need to introduce a strong IP environment.
  • Ex officio powers introduced in 2007 for the Deputy and Assistant Commissioners of Customs.
  • Key Areas of Improvement suggested as per GIPC3
  • Patentability requirements shall be made in line with that of the international standards.
  • Regulatory data protection and patent term restoration should be made available.
  • History of use of compulsory licensing for commercial and non-emergency situations shall be discouraged.
  • Steps should be taken towards effective application and enforcement of civil remedies and criminal penalties against patent infringements.

Taking positive cues out of the various reports, the Union Government has implemented major steps in the direction of enabling the law enforcement agencies with recourses against infringement of Patents, Trademarks and Copyrights. Government of India has launched a new mission where the Indian Police personals will be equipped with special knowledge toolkit to identify and prosecute the IPR violations. The toolkit is jointly developed by Cell for IPR Promotion and Management (CIPAM) and the Federation of Indian Chambers of Commerce and Industry (FICCI). The CIPAM has taken all the essential actions to build up a healthy IP environment in the country by creating various awareness programmes and seminars. To further strengthen the law

enforcement and awareness of the state police CIPAM has already organized seven batches of training for the police officials in Andhra Pradesh. Also a three day training programme was arranged for the Police Officials in the state of Uttar Pradesh. CIPAM has also directed all the state police and judicial academies to introduce and take up training on enforcement of intellectual property rights. CIPAM is actively facilitating international engagements in the field of intellectual property rights protection. Two MoUs on IPR were recently signed with UK and Singapore. India-USA Workshop on Protection of Trade Secrets was successfully organized by CIPAM to discuss various aspects related to Trade Secrets and its impact on Industry. 2

CONCLUSION

We now have to understand that creating innovation is of no use if we cannot assure the patent owner if the patent rights are protected by the State through adequate law enforcement. Today, India is on its way of adopting a balanced approach towards creating a stimulus for the betterment of the IPR industry as a whole. Recent developments in India, be it the New IPR policy or the initiatives taken by the National Innovation Council (NInC) or providing an effective toolkit in the form of checklist that will act as a reckoner for the police to deal with IP crimes or encouragement to innovators in terms of speedy patent examination in case they file first in India, all are a part of much needed attempt to improve the overall security of IPR and encouragement to create more IP in the country. While the latest Intellectual Property index results ranking India as one of the lagging end countries is a setback for us, however, the efforts undertaken by the

Indian Government in recent past would definitely improve the IPR protection in the country. Further, the Courts and the Government are indeed acting cautiously over the recommendations and identifying areas that need improvements while also continuing with policies like compulsory licensing where it really matters for example in the cases of life saving drugs. India being a developing country with second largest population needs to carefully identify exact areas to act upon and strike an ever-evasive balance between commercial rights/recommendations on IPR protection while not succumbing to international pressure and give away the socialist approach towards the public at large.

Footnotes

1 http://innovationcouncilarchive.nic.in  

2 http://pib.nic.in/newsite/PrintRelease.aspx?relid=156135  

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