IPR policy: Noble intent but challenges galore

By Zakhir Thomas, The Deccan Herald | May 19, 2016
The national Intellectual Property Rights (IPR) policy aims to create an innovative India. The policy is predicated upon the principle that intellectual property protection is necessary to spur innovation. 

The IPRs act as a mechanism to ensure return on investment at the market place thereby incentivising creativity and innovation. A large body of academic literature stresses that IPRs alone do not spur innovation. Innovation happens in a complex ecosystem where a number of players have to work in tandem.  A number of policies addressing its various components are necessary and hence the IPR policy may only be a work in progress towards its professed goal.

The biggest challenge before the policy could be its objective of stimulating generation of more patents. The patent filing by domestic Indian inventors remain abysmally low. As per the latest Research and Development Statistics published by the Ministry of Science and Technology for 2010-11, a total of 39,400 patent applications were filed in India, out of which only 8,312 were from Indian nationals and the rest 31,088 were from abroad. The lag between domestic filers and foreigners has been consistent over many years. Increasing domestic filing is a complex task connected to improving the R&D activity in the country, both in private and public sector, which require a number of measures beyond the IPR policy.

The challenge in drawing up an IPR policy is that the rights and obligations have already been defined in the respective laws. Therefore, the policy space to manoeuvre is limited and the policy addresses mainly the administrative measures in implementing the laws. The statutes governing different IPRs in India are Patents Act, 1970; Trade Marks Act, 1999; Designs Act, 2000; Geographical Indications of Goods (Registration and Protection) Act, 1999; Copyright Act, 1957; Protection of Plant Varieties and Farmers’ Rights Act, 2001; Semiconductor Integrated Circuits Layout-Design Act, 2000 and Biological Diversity Act, 2002.

The main administrative thrust of the policy is to bring all of them under the umbrella of Department of Industrial Policy and Promotion (DIPP). The policy promises a service oriented outlook at IP offices with a commitment to timelines for disposal of IPR applications. This measure is significant for the trademark applicants, mostly domestic Indian applicants, including startups in protecting their brands. India is among the top five filers in the world.

The policy affirms that India will continue to utilise the legislative space and flexibilities available in the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, including the Doha Declaration. Enhanced access to affordable medicine is sought to be achieved by encouraging cross-sector partnerships between public sector, private sector, universities and NGOs. It is unclear how this approach will ensure affordable medicine as most drugs are developed and marketed by pharmaceutical companies. With affordability as a core concern, the mandate and outlook of DIPP will need new focus. The vision statement aspires to translate knowledge-owned to knowledge-shared which would need promotion of open access publishing by science and education departments.

The DIPP has to ensure the vital balance of public interest enshrined in the Copyright Act, 1957. They have the delicate task of protecting authors’ interests which sometimes conflict with publishing industry interests and in promoting access to knowledge by students and academia. The IP and generics may seem poles apart, but generics find a place in the IP policy. The policy explicitly recognises the contribution of the Indian pharmaceutical sector in enabling access to affordable medicines globally to earn the sobriquet ‘pharmacy of the world.’

Generic drug industry

It addresses a weakness of generic drug industry – India’s dependence on China for import of active pharmaceutical ingredients (API) and talks of incentivising manufacture of APIs in India. The policy promises strong measures against attempts to treat generic drugs as spurious or counterfeit. Recently, genuine generic drugs meant for African market was seized on transit in the European Union wrongly branding them as counterfeit.

The policy encourages alternative models of innovation and R&D including open source based research such as Open Source Drug Discovery (OSDD) by the Council of Scientific and Industrial Research (CSIR) for diseases that have high incidence. The protection and promotion of traditional knowledge is envisaged through the Traditional Knowledge Digital Library (TKDL) of CSIR. This mandate requires CSIR to expand its OSDD programme focussed on tuberculosis to other diseases and its TKDL programme.

For the first time, the policy gives a commitment of consultation with stakeholders when India engages in negotiation of international treaties and agreements. Such consultation has also been committed in any review of existing IP laws. This is a step that would be welcomed by both industry and civil society as well as patient groups. The policy explores the provision of suitable legal framework to address the issue of access to essential technologies embedded in Standard Essential Patents (SEP) on fair and reasonable terms, which has been troubling Indian mobile manufacturers.

The Make in India programme will get a boost if this is implemented earnestly. The policy leaves it to the Competition Commission of India to curb the licensing practices that may restrain competition in the market place. The policy proposes to create awareness about the importance of IPRs as a marketable financial asset and an economic tool. Success of an idea as a financial asset or an economic tool is dependent on a number of factors as many startups are finding out and mere awareness creation may not be sufficient.

Like any good policy, it contains noble intent but the challenge is in its implementation. Many ministries and departments will be required to take follow up action. Multi stakeholder dependency is one of the key challenges the policy will face in its objective of fostering innovation. The DIPP may have to reinvent itself as a department of innovation promotion.

 

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