The global scenario on intellectual property rights (IPR) has been changing fast due to many reasons, a key factor being the pressure of competition.
India has ensured that all its IPR laws are in tune with the agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). The country is a member of many international treaties and agreements related to IPR.
Of late, some developments in India in the IPR area have drawn some criticism. These are often based on perceptions rather than fundamentals and ground realities.
Recently, Global Intellectual Property Centre (GIPC), a US-based agency, published its IPR ranking of countries — the International IP Index 2014, triggering some concern among Indian industry.
The Confederation of Indian Industry (CII) feels that the indices are mostly perception-based as they have failed to take cognisance of Indian IPR laws and other developments. CII’s assessment is that India’s ranking should be much higher.
In addition, issues have been raised about Indian laws, concerning patentability, compulsory licences, online piracy, cross border measures and regulations on drugs. CII has examined all these issues and will depose before the United States International Trade Commission (USITC) soon.
Prohibiting patenting Section 3(d) of the Indian Patent Act prohibits patenting of new forms of a known substance such as polymorphs, isomers, esters, particle size and so on, if the new form does not yield improved/higher efficacy than the known substance. It does permit incremental inventions if they meet the criteria of efficacy.
Thus, the level of inventiveness has been raised which cannot be considered ‘TRIPS-plus’ (in addition to TRIPS requirements); ‘TRIPS-only’ states that a discovery should be inventive or non-obvious.
Patents on polymorphs, isomers etc. are termed as secondary patents and lead to follow on drugs helping drug companies enhance the life of existing drugs. There is little evidence to show that polymorphs and isomers of a known substance would necessarily enhance efficacy.
Therefore, the provision in our laws mandating enhancement of efficacy is logical and scientific. The Supreme Court in the case of Novartis vs Union of India had upheld the decision of the Indian Patent Office and the Intellectual Property Appellate Board denying a patent to Novartis for a polymorph of its drug Glivec.
A noteworthy case, which has missed the attention of the global community, is the one relating to Ericsson vs Micromax on standard essential patent owned by Ericsson. Ericcson moved the Delhi High Court, arguing that Micromax was violating patents pertaining to 2G and 3G standards.
The Delhi High Court has passed orders protecting Ericsson’s interest and the defendant, Micromax, has been directed to make the necessary deposits.
Drug companies have been sceptical about the compulsory license awarded to Natco for a cancer drug whose patent is held by Bayer, fearing that there would be many more such decisions. It must be recognised that this was the first compulsory license awarded in India. One should take note of a recent case in which a compulsory license was denied to an Indian company seeking license from Bristol Meyer.
There is a need to have faith in the Indian judicial system. The process of issuing CL is complex and many factors need to be evaluated before a decision is arrived at.
Everyone is looking towards effective implementation of the recently issued CL. CII recommends a close monitoring of post compulsory license actions taken by the licensee.
India’s amended Copyright Act adequately addresses issues related to online piracy, digital rights management and technological measures.
The concept of ‘liability of internet service provider’ has been introduced. But at the same time, the Indian creative industry has concerns over millions of dollars of lost revenues as a result of piracy of television content and music, being hosted on websites based in the US.
Enough cover It will be incorrect to say the Indian legal system has not provided adequate protection for IP. The Indian enforcement system, especially courts, are rising to the occasion; in recent years many cases have been handled by Indian courts.
CII is clear that IPRs help industries and companies enhance economic position, competitive advantage, business, growth and investment in research and development. The management of IPRs in India is at its early stages of development and there is a need for consolidated efforts by government, industry, civil society and research institutions to continually evaluate the Indian IPR system.
IPR jurisprudence is yet to make the desired impact on social, cultural, economic and political fronts. India is sincere to its global commitments on this front and Indian industries are partners to the government in this effort.
(The writer is Director General, CII)