The New Intellectual Property Rights policy was announced by the Government of India on 13th May 2016 with the slogan ‘Creative India, Innovative India’.
This policy lays out the future roadmap for Intellectual Property Rights in India. It envisages to provide a comprehensive framework for Intellectual Property Rights by reviewing existing laws related to Intellectual property and updating or improving them wherever required.
The rationale behind this policy is to provide a conducive environment for innovation, entrepreneurship, creativity, and research in India.
It also aims to push Intellectual Property Rights as a marketable financial asset. [Marketable financial assets are assets which can be easily traded and some examples of these assets are equity shares, bonds, mutual funds etc. ]
There are 7 main objectives of the new policy:
- Creating awareness: The policy seeks to create public awareness about the economic, social and cultural benefits of Intellectual Property Rights (IPR). It has been included in the school curriculum and a National research institute for Intellectual Property Rights has been established to promote Intellectual Property.
- Stimulate the Generation of IPRs: More IPRs should be generated through greater innovation and research.
- Strong and effective Legal and administrative framework: The legal framework for the IPR should be strong. It envisages to provide a balance between the interests of the Intellectual Property Rights holder and public interest.
- Modernise and strengthen administration and management of IPR and user-oriented services: One of the steps taken to improve the administration of IPR is the speeding up of Trademark registration to one month from 13 months currently.
- Commercialisation of IPR– To get an adequate value of IPR by increasing commercialisation and pushing IPR as marketable financial asset
- Enforcement and adjudication: Strengthening enforcement and adjudication mechanisms to effectively combat IPR infringement.
- Human capital development: To strengthen and expand human resources, institutions and capacities for teaching, training, research and skill building in IPRs.
Department of Industrial Policy and Promotion (DIPP) has been appointed as an agency to regulate IPR.
All industry stakeholders will be sent detailed analysis of the new policy.
It has to be noted that no changes have been made in the Indian patents Act, 1970. The patents in India are regulated by the Indian Patents Act, 1970. Global pharmaceutical companies have been putting pressure on India to make amendments in the Act. US Trade representative ‘ Special 301 programme’ also placed India on a priority watch list for inadequate IPR protection.
India resisted the pressure to amend the Act by reiterating that it is in compliance with the TRIPS (Trade-Related Aspects of Intellectual Property Rights) agreement of the World Trade Organisation/ WTO. [The TRIPS is an international agreement of WTO that sets down minimum standards for Intellectual Property regulations and is applicable to all members of WTO.]
The particular section of the Indian Patents Act which is contentious is section 3 (d). Section 3 (d) of the Indian Patents Act, 1970 prevents ever-greening of patents. To explain this let us take the example of the global pharmaceutical companies. When a pharma company invents a new drug, it is entitled to patent the product for a certain number of years (generally 14 years). This is done to incentivise them to spend on research and development activities and recover the costs involved.
After the term of 14 years ends, the patent expires. Other companies are allowed to manufacture the drug. These are called generics. Prices are much lower for the generic drugs. But, the inventor obviously wants to extend its patent by more than 14 years to prevent competition.
They use a process called evergreening. Evergreening is achieved by seeking extra patents on slight modifications/variations of the original drug – new forms of release, new dosages, new combinations or variations.
To prevent evergreening Section 3 (d) has been incorporated in the Patents Act. As per Sec 3 (d), if the variations of the original drug does not lead to increased efficacy, an extension of the patent is not allowed. India’s Supreme Court rejected an attempt by Novartis AG to patent an improved version of its anti-cancer drug Glivec. The court ruled that the improved version of the drug Glivec cannot cure cancer more effectively than the original. (No increased efficacy, hence patent not allowed) (Source: //www.thenational.ae/news/world/south-asia/indias-supreme-court-rejects-patent-for-novartis-cancer-drug-glivec)
India has retained the right of compulsory licensing also. Compulsory licensing is when a government authorises a party other than the patent owner (inventor) to produce the patented product or process, without the patent owner’s (inventor’s) consent. It is done before the expiry of the patent. It is one of the flexibilities provided in the TRIPs agreement of the WTO to address the concerns of the developing countries to provide affordable healthcare to the people.
Under Section 84 (1) of the Indian Patent Act, any person may request a compulsory license if
- after three years from the date of the grant of a patent the needs of the public to be covered by the invention have not been satisfied; (needs of the patients in case of pharma companies)
- the invention is not available to the public at an affordable price;
- or the patented invention is not “worked in,” or manufactured in the country, to the fullest extent possible.
In a landmark move, the Indian Patent Office announced in 2012 that it has issued its first compulsory license to a domestic generic drug maker. The decision effectively ends German pharmaceutical company Bayer AG’s monopoly over an anti-cancer drug and authorises the production of a low-cost version for the Indian market. (Source: //www.ictsd.org/bridges-news/bridges/news/india-grants-first-compulsory-license-to-generic-drug-producer)
In conclusion, India has done the right thing by not succumbing to the pressure of the multinationals as we have to provide affordable healthcare to the people.
Other Reference:
//theconversation.com/explainer-evergreening-and-how-big-pharma-keeps-drug-prices-high-33623
For the uninitiated:
Intellectual Property is any creation of the mind, such as inventions, literary &artistic work
Intellectual Property Rights is the protection to the creator of IP. Examples: patent, Trademark, copyright, Geographical indication of goods etc.
(Source: Wipo.int)