National IPR Policy, Intellectual Property Rights Issues

National IPR Policy, 2016

The Policy aims to push IPRs as a marketable financial asset, promote innovation & entrepreneurship, while protecting public interest.
The plan will be reviewed every five years in consultation with stakeholders.
To have strong & effective IPR laws, steps would be taken — including review of existing IP laws — to update & improve them or to remove anomalies & inconsistencies.
The policy is entirely compliant with the WTO’s agreement on TRIPS.
Department of industrial policy & promotion (DIPP) is the nodal agency for all IPR issues.
The policy retains the provisions on Compulsory Licensing (CL) as well as preventing ever-greening of drug patents (Section 3(d) of India’s Patents Act).
Under Indian Patents Act, a CL can be issued for a drug if the medicine is deemed unaffordable, among other conditions, & the government grants permission to qualified generic drug makers to manufacture it.

There are many IPR issues that one faces while getting IP rights in India. The issues are as follows:

One of the most important intellectual property rights issues challenges is the prevention of the evergreening of the patents for multinational companies.
Evergreening is strategy for extending the term of granted patent which is about to expire without increasing therapeutic efficacy in order to retain royalties.
As we know, the companies cannot evergreen their patents simply by making minor changes.
So, section 3(d) in the Indian Patent Act (IPA) possess as one of the biggest issues with regards to IPR.
This act bars the grant of patents to new forms of substances.
This has discouraged investments from western countries.

A major form of subsidies includes food subsidy, fertilizer subsidy, education subsidy, etc.
For the complete implementation of TRIPS agreements, one needs to reduce or eliminate these subsidies.
Thus, GOI needs to create a balance between providing subsidies & providing IP rights in India.

A product patent protects a product.
It offers high protection to the original inventor to reduce the competition for the same product.
Whereas a process patent protects the process through which one manufactures the product & not the product.
It reduces the element of monopoly in the market.
As India is a part of the TRIPS agreement, the agreement requires all its members to shift their patent regime from process to product patent.
This remains a challenge for India, as process patent would be more helpful to a country like India.
This is since India is a developing country & ordinary people are struggling with basic necessities like food.

Traditional knowledge, especially in the field of medicine, is like a gold mine.
GOI is bound to protect traditional knowledge by not allowing MNC’s to get patents on traditional culture.
Above all, the government has created a Traditional Knowledge Digital Library (TKDL) to prevent the patenting of traditional knowledge.
So, this is one of the intellectual property rights issues in India.

One of the most important intellectual property rights issues that the government needs to address is the use of compulsory licensing.
Compulsory licenses are authorizations given to a third-party by the Government to make, use or sell a particular patented product without the need of the permission of the patent owner.
The provisions regarding compulsory licenses are given in the Indian Patents Act, 1970 & in the TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement.
It is a relaxation available to the developing countries under the TRIPS agreement, something which organizations misuse sometimes.
Moreover, under section 84 of the IPA, a company can acquire a compulsory license for “private commercial use” under certain circumstances.
With the Drug Price Control Order, the company needs to justify the price of the drug with regards to investments.
If someone plays foul, then the government has the right to intervene.
Multinationals are asking the government to revoke this provision.
However, the government is not ceding the demands to protect the interest of the masses.

Trademark Violations: India has very high level of trademark counterfeiting against which the authorities in India do not take proper actions.
Enforcement of IPR regulations is quite weak in the country because of two important reasons
India is key exporter of counterfeit fake products such as foodstuffs, textiles, shoes, electronics etc
Judicial delays in IPR disputes
India maintains high custom duties on IP intensive products as advocated by western countries impacting the investment (US puts India into priority watch list i.e., special 301 report).