National Intellectual Property Rights (IPR) Policy 2016

In the second week of May 2016, the Union Cabinet has approved a new National Intellectual Rights Policy to outline the future roadmap for IPR in India.

Vision Statement

This policy has been released with a vision statement that envisages an India where – creativity and innovation are stimulated by IP for benefit of all; IP promotes advancements in Science & Technology, arts & culture, traditional knowledge and biodiversity resources; knowledge is main driver of development and knowledge owned is transformed into knowledge shared. It endeavours for a “Creative India; Innovative India”.

Mission

The mission of the new IPR policy is to stimulate a dynamic, vibrant and balanced IPR system in India which can foster creativity and innovation and thereby promote entrepreneurship, enhance development, enhance access to healthcare, food security; enhance environmental protection etc.

Seven Objectives

The Policy lays down the following seven objectives:

1. To increase public awareness about IPR and their economic, social and cultural benefits.
2. To stimulate creation of IPR in the country.
3. To create a strong legal and legislative framework around IPR.
4. To modernize administration and management of IPR
5. To promote commercialisation of IPR.
6. To strengthen enforcement and adjudication mechanism around IPR
7. To expand Human Capital Development.

Goals

The IPR policy has spelled out some tangible goals as follows:

• Reducing the time taken on clearing the backlog of IPR applications from current 5 to 7 years to 18 months by March 2018.
• Approve trademark applications within one month by 2018. Currently, a trademark approval takes around 13 months on average.
• Designate DIPP as nodal agency for coordination, guidance and regulatory works.
• Cover Films, music, industrial drawings by copyright.
• To review the policy in five years in consultation with stakeholders.
• The Policy also seeks to facilitate domestic IPR filings, for the entire value chain from IPR generation to commercialisation. It aims to promote research and development through tax benefits.

Questions for Analysis

• One of the major allegations is that government has released this policy under pressure of US and lobbying groups in that country. What kinds of pressures are these?
• To what extent, Government has succumbed to the pressures?
• What do the critics say about this policy?

One of the major allegations is that government has released this policy under pressure of US and lobbying groups in that country. What kinds of pressures are these?

The IP rights were included in the international trade regulations as a part of the Uruguay Round (1986-94) and thus resulted in the TRIPS {Trade-Related Aspects of Intellectual Property Rights} Agreement. This agreement provided a framework on how the IP rights have to be protected, particularly of companies that invest huge amounts in inventions and creation of patents. In summary, these provisions demanded that every party to TRIPS will have to create domestic laws and regulations to create a sound protection system. However, within the TRIPs agreement, some flexibilities were included in favour of public interest for developing / least developed countries. These flexibilities allowed such countries relaxation in domestic laws.

However, this is a major issue for companies engaged in pharma because they wanted strict IPR laws in the countries where they sell their products. So, the pharma TNCs chose to not to recognize these flexibilities and deployed various ways to curb use of flexibilities. Using such flexibilities, India made two special provisions in its domestic law viz. compulsory license and Section 3(d) in patent law. The compulsory license enabled grant of compulsory license for export of medicines to countries which have insufficient or no manufacturing capacity. This was done to keep India’s generic drug exports to Africa and other countries alive and competitive. The Section 3(d) of Indian Patents Act puts caveat on some inventions which are not patentable (sets a novelty standard for patents). Both of these provisions have been controversial because they directly harm the interests of pharma MNCs and TNCs.

Meanwhile, due to these laws, the MNCs found whatever method deployed for protection of their IPR useless. They intensified lobbying with USTR {United States Trade Representative} to categorize India as a “preferred” foreign country in the Special 301 report that carried with it the threat of trade sanctions. These pressures led creation of a high level working group to discuss the IP issues {between US and India}. Thus, for the first time, India agreed to engage bilaterally with US on IPR issues. Since the government was also in the process of creation of new IPR, it got attention of US and US industry groups. There was a speculation that DIPP and Indian patent office came under the influence of US and shaped India’s new IPR policy under that influence only.

To what extent, Government has succumbed to the pressures?

IPR policy has tried to be a balancing act overall. Firstly, the policy has not tried to dismantle or bypass the Section 3(d) of Indian Patent Act 1970 which says that marginal alterations don’t entitle new patent. The policy makes it loud and clear that India will not go beyond what is needed to be TRIPS-compliant; and it will use flexibilities to address its developmental concerns. Secondly, the policy has kept Compulsory License intact with restrictions in case of a public health emergency such as in case of a public health emergency such as epidemics. This is also compliant with the World Trade Organization’s guidelines. This implies that government has not compromised on two major issues.

What do the critics say about this policy?

Acknowledging some of the positives of the new IPR policy such as expedited examination, an open IP exchange, and the infusion of CSR funds into open innovation, the critics say that this policy unduly skews in favour of a reductionist and one-dimensional IP/innovation frame. Most of these criticisms are rhetoric only.