Publication

India & Intellectual Property-Problems & Prospects

 

Intellectual Property Rights are such Intangible rights which are confined to a certain territory/area and have a fixed term and can be obtained / renewed only after fulfilling requisite criteria as laid down by the respective sections and rules of Intellectual Property Laws of a nation and after making payment of the official fees. Unlike other moveable and immoveable properties, these rights can be separately held in many countries at the same time. These rights can be assigned, gifted, sold, and licensed.In India and many parts of the world Intellectual Property Rights are broadly divided into four segments i.e. Patent, Design, Trademark and Copyright.

Role of Intellectual Property in Wealth Creation:

Today, IPR plays an important role in every sector and has become an important source of wealth creation. The continuous efforts of the governments of all the nations in policy establishment, IP protection, infrastructure, IPR search portals and manpower have made this Industry a step ahead.

Many studies have established that there is a positive relationship between the strength in intellectual property rights and the inflow of foreign direct investment (FDI), which is an important broad measure of a country’s attractiveness for investing and doing business. The Organization for Economic Co-operation and Development (OECD) found that a 1% change in the strength in a country’s IP rights environment is associated with a 2.8% increase in FDI inflows.

India on International Intellectual Property Platform (Source: GIPC):


Reasons behind India’s Outlier International Platform:

Firstly, when IPR was in its preliminary stage in India, series of problems arose relating to its implementation, policies, Act/ Rules, financial and governmental support. Earlier, companies and inventors were also not aware of IPR, therefore risk of infringement was at an alarming level without a healthy system, Companies were not interested to go for R&D process in India. All these resulted in the death of inventions, high risk of infringement, economic loss and decline of an intellectual era in the country.

Secondly, In India IPR still lacks its roots in remote areas, such areas are considered to be the hot bed of inventions. Many people are still unaware about IPR and their advantages in taking rights for their intellectual property. Large number of awareness camps and educational hubs have to be organized for the skilled impart of knowledge among the inventors.

Thirdly, legal issue plays an important role in IPR situation in the country. Today various trademark and patent infringement matters are gaining their significance in the legal story of our country. In such circumstances of increase in IPR matters, a skilled team of law persons (Judges, advocates) and IPR professionals are required.

Fourthly, there are countable numbers of IPR monitoring agencies and only 4 Patent, Trademark, Copyright Registration Offices, located at Delhi, Mumbai, Kolkata and Chennai, which is a major obstacle in grant of ownership qua various Intellectual Property Rights and in spread of awareness amongst the people about the hidden potentials of Intellectual Property Rights.

Apart from the above issues, flexibility qua enforcement and understanding of TRIPS related obligations is yet another obstacle in India’s path to IPR achievements.Earlier, when Indian Patent system was not in compliance with TRIPS, there was a risk of a healthy Patent protection provision in India. But today the condition has totally changed. India is now a member of TRIPS agreement and our patent system is fully compliant with the TRIPS. Even though Indian Patent Act contains all the TRIPS flexibilities, the relevant provisions require fine tuning, especially of those related to the patent protection, compulsory license and government use.

Steps taken by India to improve its stand on International Intellectual Property Platform:

Keeping in view all the above problems, India has taken strong steps in strengthening IPR in the country. For example, the first Indian Patent Law came in 1856. Further, the same was modified from time to time by Indian patent system.

New patent law was made after independence in the form of the Indian Patent Act 1970. Later, it was amended in compliance with the TRIPS provision. Recently, in2005, amendments were made in IPR. While the process of bringing out amendments was going on, India became a member of the Paris Convention, Patent Cooperation Treaty, Budapest Treaty and finally signed the TRIPS agreement to comply with the International and Indian standards. Recently, India signed the "Madrid Protocol" which further enhances the applicability of Trademarks in 89 countries.

Further, interest of Small and Medium Enterprises (SMEs), Indian industries, technologist, scientist and inventors are gaining in this field. More number of research oriented persons are filing their inventions on a large scale. More number of foreign companies are now establishing their in-house R&D centres in India, which is a clear sign of IPR influence in the country.

Apart, from this, the country's first Compulsory License (CL) against the Bayer cancer drug "NEXAVAR" highlights the Indian IPR regime on the international window. This CL gives a ray of hope to Indian Pharma INC which is not capable of producing life saving drugs and now can manufacture such drugs at a very low cost. Such nature of CL boosts up the health industry of the country. Due to this, high end drugs can be manufactured and supplied to the patients at a very nominal rate which is a sign of a disease free society. According to a recent survey, it was estimated that the number of Trademark and Patent filings have increased 20 times as that of previous years.

Conclusion:

In the present era of technology, knowledge and intellect, a country's ability to translate knowledge into innovation and to gain wealth determines its future. Therefore, issues of generation, evaluation, protection and exploitation of IP are becoming critically important all over the world. No doubt, India being a developing nation, has shown a considerable growth in its research and development and has taken giant leaps in competing with rest of the world in these aspects but our IPR system is still in an enact stage and requires our continuous efforts in order to overcome challenges which restrict our IPR and prohibit us from becoming a paragon for rest of the world. A general awareness amongst the masses needs to be created for preservance and popularity of this concept.

Major Abbreviations Used:

1 GIPC: Global Intellectual Property Centre.

2. TRIPS: Trade Related Aspects of Intellectual Property Rights.