Vote of confidence

India's IP regime still has a lot of ground to cover

The Global Innovation Policy Centre (GIPC) of the US Chamber of Commerce, which compiles the annual global IP Index, has acknowledged appreciable improvement in India’s intellectual property (IP) protection regime. The IP Index 2019, released by it, places India at 36, up eight slots from the previous year’s 44, among 50 world economies which together account for over 90 per cent of the world’s gross domestic product. Significantly, this is for the second year in a row that India’s gain in ranking is the largest among all the countries included in the index that takes into account 45 parameters covering patents, trademarks, copyrights and trade secrets. The Index report concedes that the surge in the score reflects improvement in India’s IP environment as a result of reforms focused sharply at building and sustaining an innovation ecosystem for domestic entrepreneurs and foreign investors alike. The reformist measures cited in the report include accession to IPR-related international treaties; consent to initiate a Patent Prosecution Highway with international offices; dedicated set of IP incentives for small business enterprises; and a strong awareness-raising effort on the negative impact of piracy and counterfeiting.

However, it’s not roses all the way, as the report has red-flagged some areas as problematic, calling for more reforms. The GIPC has pinpointed some issues which, though compatible with the global treaty on Trade-Related Intellectual Property Rights (TRIPs), seem ill-suited to innovation-based businesses looking for perpetuating their patents. The most prominent among these are the provision in the patent law for “compulsory licensing” to allow commercial production of a patented product in public or national interest and an unambiguous definition of patentability that denies extension (read ever-greening) of a patent on trivial grounds. The other purportedly objectionable aspects include barriers to licensing and technology transfer, limited framework for safeguarding bio-pharmaceutical IPRs and lengthy procedure for pre-grant opposition to patents.

Indeed, it is not for the first time that these issues have been underscored by the GIPC or, for that matter, the Office of the US Trade Representative (USTR). The latter has, in fact, been keeping India on the ‘Priority Watch List’ for lax IP regime for years. It is uncertain whether the country would be excluded from this list in view of the substantial improvement in the IP system post-promulgation of the new IPR protection policy in 2016 — as endorsed by the higher IP rank. The fact that none of these issues has ever been challenged in international IPR forums bears out their conformity with the TRIPs mandate. India has, like most other nations, made use of the flexibilities provided under the TRIPs agreement to safeguard domestic industry and other commercial interests. The country’s plant varieties and breeders’ rights protection legislation, which is often deprecated by multinational seed companies, is also a sui generis law as permitted under the TRIPs accord. This aside, New Delhi has speeded up the process of granting patents by hiring more patent examiners and streamlining the scrutiny process. The backlog of applications awaiting clearance has shrunk perceptibly. However, some issues such as infringement of copyrights and piracy of IP-protected contents still remain to be suitably tackled. But these are areas that require better enforcement of the IPR laws and not any changes in the statutory provisions.