Sunday, 18 September 2011

Challenges faced by the Indian IPR System

The modern IPR system in India, in the real sense, is a post-WTO phenomenon which has many new dimensions such as protection of IC layout design, geographical indications, and new plant varieties which were not part of the earlier Indian system. Earlier there were only four forms of IPR prevalent in India namely, patents, copyrights, trademarks, and registered design. It would be safe to state that most contested disputes in the country fell in the categories of copyrights and trademarks. The Indian patent laws were comparable to those of many countries except that product patents in the area of drugs, chemicals, and food items were excluded from patentability. Now, however, the laws are fully TRIPS-compatible and also allow product patents in all areas of technology. However, there are some provisions in the law, mandated by the social and political thought process, which do not allow certain types of invention to be patentable. Patents were not used as a competitive tool in the pre-WTO days because we had a centralized economy with very little competition. Globalization and opening up of the economy have increased competition and it will continue to rise at a rate not witnessed in the past. Obviously, each cubic centimeter of space in the world of trade will be strongly contested by many players. IPR will play a very important role in the competitive world and it would be in the interest of every one that there is a legal framework which is sensitive to the social, cultural, and political needs of the country but still provides enough incentives for innovators and the process of innovation.

What we see today in terms of increasing IP issues was anticipated by many when it was decided to modify our IPR laws. It may be difficult to go back to the old system. Property always causes conflicts and disputes. This has now started happening in India in the IPR area as well and can be considered normal. When brothers can fight with each other on property matters, fight between two companies on IPR matters should not be a cause of disturbance and alarm. What perhaps would be required in disposing such disputes is judicial maturity, understanding of technological issues, and a balanced interpretation of patentable inventions to meet social goals. One will have to depend on the case laws within our country for developing a robust system for resolving IPR disputes. Indian courts had, for example, earlier disallowed the use of word ‘scotch’ for Indian whiskies. Yet, in another case, the Supreme Court has recently allowed the use of the word in respect of Peter Scotch.
The IP system of a country is now heavily influenced and governed by the IP systems of other countries, especially the developed ones. Patent practices in respect of biotechnological inventions were revolutionized in 1980 in USA; many similar events have been occurring since then. We must learn to develop a foresight to anticipate what is likely to happen. For example, inventiveness or nonobviousness of inventions will occupy the attention of many law- making authorities, international agencies, and judiciary. Indian inventors and their employers (if applicable) will have to pay serious attention to this aspect if they wish to have a right which can be defended in a court of law. The success will depend on critical scientific enquiry of each invention. Similarly, novelty determination is very crucial in light of expensive litigation and risk of losing market position. Therefore, awareness and training continue to be important elements for tilting the IPR system to our advantage.

New challenges are likely to emerge with the introduction of a system for protecting the new plant variety. One of the most important ones would be to register farmers’ varieties because no nationwide system is in place to undertake this massive task. It may be reckoned that one will have to take farmers in confidence and educate them about the new laws which are farmer-friendly. There should be systems to identify such varieties, generate adequate scientific data to establish their reproducibility, stability, and the unique traits before going in for registration. This may become handy to address food security problems in the rainy days. Geographical indications are becoming popular. As the social and political ramifications could be serious in some cases where more than one state could be the interested parties, it would be a good idea to have government intervention right at the beginning.
One of the important principles to be adopted for ensuring that wrongs are not done is to examine whether unfair trade practices are being encouraged by the use of IPR. There are many dimensions to this aspect including transaction of IP. The Competition Commission of India has brought out some guidelines to avoid unfair trade practices which are quite similar to what are being followed elsewhere in the world. It may be reckoned that TRIPS also endorses that unfair trade practices in IP-related contracts should be avoided.

Open source system for collating and utilizing innovations is in the nascent stage and is yet to generate enough evidence for its candidature as an effective tool for generation and sharing of IPR. It may perhaps make an impact if suitable models for benefit sharing is evolved which could provide enough remuneration to inventors. In the present form, it seems to lack equitable sharing of IPR. Perhaps patent pooling in the specific areas regulated by standards may be a better candidate to be pursued provided a proper legal framework is worked out.
There are many issues which need to be studied and researched in the Indian context to work towards a balanced practical state for our IPR system. In the absence of data, it is not possible to establish the advantage or disadvantage of the existing system. The research should be interdisciplinary in nature involving laws, science, engineering, business, economics, commerce, and social sciences.

(This article written by R Saha when he was Scientist/Advisor, Department of Science & Technology, Government of India, appeared in VIKALPA • VOLUME 33 • NO 2 • APRIL – JUNE 2008  EMERGING IPR CONSCIOUSNESS IN INDIA)  (Note: The views expressed above are that of the author.) .
Read the orignal article at
© R Saha

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