From think tank to trade reports – IP on the boil, again

Close to 10 years after the Indian Patents Act was amended in January 2005, discussions around intellectual property are on the boil again.

Last week, the Government set up a think tank to draft a national policy on intellectual property rights (IPR), and have a coordinated IP approach across various Government departments.

And while this is an opportunity for India to counter criticism from some global quarters on its IP enforcement track-record, the discussion is not without its concerns. From the composition of the think-tank to concerns on whether features in the amended Patents Act would be watered-down – questions abound. And transparency will be key, as the Government formulates its IP road-map and the think tank begins its meetings, the first of which is expected this week.

With Prime Minister Modi’s agenda of “make in India” as the canvas, the thrust will be on spurring innovation at home. While none may disagree with this, the challenge will be in protecting innovator rights, without for instance, whittling down public health concerns of citizens.

IP think tank member, senior advocate Pratibha Singh says, they would work as a support group, so the Government can have a coordinated approach and encourage more people to innovate and produce in India. Beyond this, the aim is to produce a single document outlining India’s IP achievements. These range from documenting measures taken involving online copyrights to communicating outcomes where foreign companies have in fact got injunctions in their favour.

Concerns on dilution

Healthworkers laud the presence of Justice Prabha Sridevan as Chairperson of the think tank, but express concern on the absence of other seasoned IP academicians. IP lawyers also worry on the fate of section 3 (d) of the amended Patents Act that disallows frivolous patents, unless the product shows greater efficacy.

Despite Commerce Minister Nirmala Sitharaman’s assurances on the Patents Act, there is concern being expressed in IP circles on testimonies made by Arvind Subramanian, before he was appointed as India’s Chief Economic Adviser. He had termed some provisions in the Act as “problematic”, in submissions made in the U.S. earlier this year in the run up to two US trade reports.

The Special 301 report in April stopped short of further downgrading India, but nevertheless called for “out of cycle” reviews. This annual controversial report grades U.S. trade partners on their IP track-record.

The second report, by the U.S. International Trade Commission, is expected next month. Here, the U.S. evaluates the impact India’s trade policies have had on American businesses. And in the past, several U.S. trade and congress representatives have criticized India’s trade policies and IP enforcement, especially involving pharmaceuticals. In fact, they caution, the lack of IP protection would hold back both innovation and investment.

IP and innovation

Against this backdrop, a recent study – “Innovation, Intellectual Property, FDI & Economic Growth: A Scholarly Review of Findings”- by three academicians observed that while innovation was key to economic growth, suggesting strong IP rights were essential to provide incentives for innovation was “ambiguous” . Economists too are divided on the relationship between IP and foreign direct investment, it said, adding that stronger IP may induce “adverse welfare effects”.

A “careful and creative policy deliberation” involving multi-party dialogues is required, the report said, especially in markets where societies grapple with availability and access to healthcare and incentives for medical innovation. The report was commissioned by the Indian Pharmaceutical Alliance, a body representing large Indian drug companies.

But as more conflicting, though well-reasoned viewpoints are put on the table, the think tank has its task cut out. But it’s going to be anything but easy.