Who needs a new IPR pol­icy?

In­dia has enough laws to pro­tect its in­tel­lec­tual prop­erty rights


IIT WAS an un­ex­pected an­nounce­ment that con­veyed a strong mes­sage. “We are very strong in ipr (in­tel­lec­tual prop­erty rights) and we want to pro­tect our na­tional in­ter­est. That does not mean we are go­ing to be re­gres­sive or re­stric­tive, but it is the duty and right of the gov­ern­ment to pro­tect the ipr of our coun­try.” That was Union min­is­ter for com­merce and in­dus­try Nir­mala Sithara­man at a re­cent meet­ing where she out­lined the ob­jec­tives her min­istry had set for it­self. “When we are go­ing for arbitration on ipr, oth­ers are pick­ing holes be­cause we don’t have an ipr pol­icy. The lack of pol­icy has re­ally curbed us from es­tab­lish­ing our rights in a force­ful way.”

It was a state­ment that also left many be­mused. Surely, In­dia had de­bated its pol­icy on ipr thor­oughly be­fore amending its laws thrice since 1999? And had the coun­try not brought about the big­gest change to its 1970 Patent Act by al­low­ing prod­uct patents almost 15 years ago? Sithara­man was clearly al­lud­ing to the per­sis­tent at­tacks on In­dia’s patent reg­u­la­tions by US business lob­bies and their sup­port­ers in the Congress.But the state­ment failed to clar­ify why a pol­icy how­ever sharply enun­ci­ated by the new nda gov­ern­ment would mol­lify the US in­dus­try, in par­tic­u­lar the big pharma com­pa­nies.

Th­ese com­pa­nies are miffed with sec­tions 3d and 3e of the patent law which bars them from ex­tend­ing or ev­er­green­ing patents on their orig­i­nal dis­cov­ery by seek­ing fresh ipr on in­cre­men­tal in­no­va­tions. The lob­bies are seek­ing a re­peal of th­ese “trou­ble­some sec­tions” through a pro­pa­ganda war rather than tak­ing the coun­try to the dis­putes set­tle­ment body of the World Trade Or­ga­ni­za­tion (wto) as they should if the law is not com­pli­ant with its re­quire­ments.

In­dia is per­haps the only de­vel­op­ing coun­try with a long his­tory of patent law­mak­ing start­ing with the colo­nial times.The turn­ing point came in 1957 when the gov­ern­ment ap­pointed the Jus­tice N Ra­jagopala Ayyan­gar Com­mit­tee to pro­vide a road map for re­vis­ing the patent sys­tem.In Septem­ber 1959,the Ayyan­gar Com­mit­tee sub­mit­ted its well ar­gued 397-page re­port which rec­om­mended the re­ten­tion of the patent sys­tem de­spite its short­com­ings. How­ever, there was a sig­nif­i­cant caveat in the na­tional in­ter­est: there would be no prod­uct patents in two key sec­tors—phar­ma­ceu­ti­cals and agri­cul­tural chem­i­cals. This re­port formed the ba­sis of the Patents Act,1970, which was passed after much de­lib­er­a­tions out­side and inside Par­lia­ment.

Crit­ics have termed this a de­fen­sive patent pol­icy but it helped to foster the de­vel­op­ment of a pharma in­dus­try that pro­vided in­ex­pen­sive generic ver­sions of high-cost medicines de­vel­oped by the in­no­va­tor drug com­pa­nies in the de­vel­oped world. In­dian com­pa­nies be­came adept at de­vel­op­ing new pro­duc­tion pro­cesses and novel for­mu­la­tions that brought about the gener­ics revo­lu­tion that was ad­mired—and re­viled—across the world. The process-only law passed in 1970 served the coun­try well un­til it signed the Trade Re­lated In­tel­lec­tual Prop­erty Rights Agree­ment or trips man­dated by wto rules.

What will a new ipr pol­icy look like? In­dia’s stated po­si­tion at sev­eral in­ter­na­tional fo­rums is that it favours open source in­no­va­tion. It is also strong on pro­tect­ing its tra­di­tional knowl­edge in a more fo­cused way. This is all to the good since the cur­rent patent sys­tem of grant­ing mo­nop­o­lies to the in­no­va­tor—usu­ally for a 20-year pe­riod—ig­nores the so­cial cost of pro­vid­ing pub­lic goods in a va­ri­ety of sec­tors.

The prob­lem, how­ever, is not with the pol­icy or the laws. In­dia has enough laws and more to pro­tect its ipr— even in bio­di­ver­sity and tra­di­tional knowl­edge.It’s the im­ple­men­ta­tion that is want­ing with reg­u­la­tors such as the Na­tional Bio­di­ver­sity Au­thor­ity and the Na­tional Bureau of Plant Ge­netic Re­sources fail­ing to safe­guard our nat­u­ral re­sources and the ipr on th­ese. Will a pol­icy fill the short­com­ings of the sys­tem?


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