India: IP Environment In India - An Insight On Opportunities And Threats

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

Comprehending that invention is the engine for growth of affluence and national competitiveness in the 21st century; the President of India had declared 2010s 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 for the indigenous as well as the international innovators. The National Innovation Council (NInC) was setup under the chairmanship of Mr. Sam Pitroda, designated to act as adviser to the PM to discuss, analyze and help implement strategies for inclusive innovation in India and prepare a Roadmap for Innovation 2010-2020. Government of India approved the new IPR Policy 2016 on May 13, 2016.

The new IPR Policy targets to 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 bilateral cooperation at global level and raise level of public awareness has been set up. Mass recruitment of patent and trademark examiners is planned to take care of the ever-increasing backlogs.

Startups usually have inadequate possessions and manpower and can sustain in the cut-throat competition only through continuous growth and development-oriented innovations. For them, the Government of India has started a facility of faster allocation of patents under the "Tatkal" scheme. Startups are also charged a reduced patent examination fee. These facilities are also available to the innovators who file their patents first in India. The new rules sought to grant patent within two and a half years at first when the rules came to force and within one and a half year from March 2018 onwards which earlier used to take about five to seven years. To clear the backlogs, the government also allowed withdrawing the patent applications with application fee refunds.

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. Even though the government and officials make public statements to encourage the innovators, yet some of the policies and decisions seem to be against the protection of IP rights. It is 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 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 in the country.

The Index which is created by the Chamber's 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 nonproliferation with the international best practices in IPR. It also mentioned that India needs to provide ample protection from online piracy and should strive to have proper law enforcement. The use of compulsory licensing, which is government's permission to allowing entities to manufacture, use, sell or import a patented invention without the permission of the patentee, for commercial and non-emergency situations is a topic for discussion at various platforms.

Key Areas of Strength as per GIPC

  • The government of India continued to make positive statements during 2015 on the need to introduce a strong IP environment.
  • Patentability requirements outside international standards; confirmed in 2015 Controller General Rulings.
  • Regulatory data protection and patent term restoration should be made available.
  • History of using compulsory licensing for commercial and nonemergency situations; expanded use being considered by the Indian government in 2015.
  • 2015 Supreme Court ruling on notice and takedown requirements for copyright-infringing content limits' practical usability of already unclear system and laws.
  • Poor application and enforcement of civil remedies and criminal penalties.
  • Not a contracting party to any of the major international IP treaties referenced in the Index.

Taking positive cues out of the various reports the union government has taken some major steps in the direction of enabling the law enforcement agencies with weapons against Patent, Trademark and Copyright infringements. Government of India has launched a new mission where the Indian Police personnel 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 essential actions to build up a healthy IP environment in the country by creating various awareness programmes and organizing knowledge seminars. To further strengthen law enforcement and awareness in 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 APOs and other 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 of the police and judicial officers on enforcement of Intellectual Property Rights. CIPAM is actively facilitating international engagements in the field of Intellectual Property Rights. Two MoUs on IPRs 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.

CONCLUSION

It is important to understand that creating innovation is of no use if we cannot assure the patent owner that his patent rights are protected by state through adequate law enforcement. We need a balanced approach towards creating a stimulus for the betterment of the IPR industry as a whole. Recent developments in India like the New IPR policy, the initiatives taken by the National Innovation Council (NInC), an effective toolkit in the form of checklist that will act as a reckoner for the police to deal with IP crimes, encouragement to innovators in terms of speedy patent examination in case they file first in India - all form a part of much needed attempts to improve the overall security and encouragement to the innovators. The latest results from the Intellectual Property Index are admittedly a setback for us but we should heed the recommendations and should identify and act upon the areas that need improvement. We must also continue with our policies like compulsory licensing where it really matters like in the case of health care and medicines since it directly affects the poor who cannot afford the high cost of patented drugs. India still being a developing country needs to identify the exact areas to act upon based on international recommendations yet still not succumbing to international pressure.

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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