South Africa recently adopted a new Intellectual Property Policy, which seeks to align IP with the country’s national development plan. “The IP Policy must be informed inter alia by the Constitution, National Development Plan (NDP), the National Industrial Policy Framework (NIPF) and the various iterations of the Industrial Policy Action Plan (IPAP). It should also be aligned to the country’s objectives of promoting local manufacturing, competitiveness, and transformation of industry in South Africa,” the policy states.

What works for the new SA policy is that it addresses the interface between IP and public health.

In facilitating local production and export of pharmaceuticals in line with its Industrial Policy, the new policy recommends the following changes: introduction of substantive patent search and examination, introduction of patent opposition, strengthening of patentability criteria, incorporation of disclosure requirements, parallel importation, exceptions, provisions to regulate voluntary licensing, compulsory licences, use of IP and competition law. All these provisions utilise flexibilities provided in the TRIPS (Trade related aspects of IP Rights) Agreement to safeguard development objectives. The implementation of SA’s patent law would be on par with the Indian Patents Act, which successfully incorporated TRIPS flexibilities a long time ago while complying with the TRIPS Agreement. But, there’s a difference.

In comparison to South Africa, India does have a history of considering national needs while complying with international IP obligations. As a result, the Indian Patents Act, along with various judicial decisions, has provided a balanced framework for the protection of public health, food security, and transfer of technology.

Telling disconnect

However, India’s IP Policy adopted in 2016 overlooks the legislative intent and policy objective behind the patent regime — something that other nations are taking note of. Unlike SA’s policy, India’s IP Policy does not make a reference to other existing policies like Health or Science and Technology, thereby disconnecting it from the country’s developmental needs. The approach of the Indian IP Policy offers only lip service to the use of flexibilities and does not offer any measures to optimise the use of flexibilities. Ironically, it seems to move away from its orientation of optimum utilisation of the TRIPS flexibilities incorporated in the Patents Act. The results are visible. A recent report reveals that the Patents office granted nearly 72 per cent secondary patents in contravention of the Patents Act.

The SA Policy mentions that it must engender the ethos of the South African Constitution and also reflect the country’s broader social economic development objectives. The policy is aligned to constitutional objectives and socio-economic goals.

“The South African Constitution provides a balanced approach to property rights in general by affording protection against arbitrary deprivation of property, while also taking into account the public interest. In this regard, public interest includes the nation’s commitment to bring about reforms that promote equitable access to services and products involving IP, such as in the sphere of health”.

India’s IP policy fails to take notice of obligations under Fundamental Rights and Directive Principles of the right to health engendered in its Constitution while promoting IP rights. Instead it focusses on enhancing the protection and enforcement of IPRs, which goes beyond its international obligations (referred as ‘TRIPS-plus’) without taking into consideration its negative implications. India, which is at the forefront of international fora in defending the TRIPS flexibilities, ignores their use for itself at the domestic level.

Taking a cue from the South African IP policy, the Government of India should revamp the National IP Policy with a clearer vision of realisation of its constitutional promise of right to health for all, which includes better access to medicines.

The writer is an IP Researcher with the North Maharashtra University (NMU). Views are personal