Introduction

Intellectual Property Rights (“IPR”) has emerged as an important instrument for socio-economic development. India is witnessing a transition in becoming a market economy and a complete overhaul of laws, policies, and market environment that complement the IP system. Therefore, the goals of the national IP policy should be to strengthen competitiveness in market, to work in sync with the technological advancement of India and world, to set up the IP protection system in conformity with the stages of national development, to put in place the policy support system, to allocate IP management to various departments for technology, economy and trade, to foster public awareness of IP protection, and to guide enterprises, universities and research institutions so as to improve their capacity to utilize, manage and protect IP.

In light of this, a national IPR Policy was mooted and a draft discussion paper was also circulated by FICCI. This article tries to discuss the essential elements that provide national character to an IP policy and the crucial steps that should be considered while drafting a national IP policy for India.

1.0 Outline of IPR Policy

All the efforts for an IPR policy should have an all-encompassing approach addressing the concerns of various sectors, stakeholders and the public interest in general. Further, most of the individual steps/measures suggested should be a de-centralized effort so that government does not wait the efforts to trickle down to the lowest strata in times to come. Equitable and all-pervasive approach can ensure the success of IPR policy. Finally, the essence of true national IP policy lies in creating awareness and ensuring protection to the aware.

The crucial areas of coverage in the national IP policy should be are under:

• Sufficient opportunity for IP creation and its exploitation
• Establishment of a IP body
• Improving Awareness for IP
• Effective protection of the IP created

1.1 IP Creation

The two fundamental issues that should be addressed while providing for sufficient opportunities for IP creation in India are –

• how can the commercialization policies help in achieving public policy mandates and institutional missions without creating impediments to the development of new products, and

• how to deal with conflicts of interest between public interest, profit and economic development.

For research initiatives the following policy suggestions should be kept in consideration –

1. To strengthen the regulatory framework to identify, disclose, and protect IPR that results from public-funded research and encourage their commercialization. The rights and responsibilities for both the parties – universities and public research institutions together with the commercialization mechanism can be defined.

• To develop the institutional capacity of IPR so that the public interest is safeguarded and that the research not necessary for commercialization remains easily accessible to general public.

• To promote transparency in the licensing processes to preserve competition among potential licensees and to ensure that the IP resulting from public research is not misused. Effectively, the abuse of dominant position be checked. It requires regular surveillance.

There will also raise a subsequent need for a legislation to address IP ownership for inventions resulting from research that involves both public and private funding.

1.2 Establishment of an IP body

Most importantly, the efforts towards creating IP awareness should be taken at various levels and not concentrated in a few institutions. All the states should be made party to it. Creation of National IP Body/Committee should be mooted to serve the best interest in this regard.

A  National IP  Body/Committee  that can  monitor  the  IP  policy at  regular interval and suggest changes after consulting with all the stakeholders, help in creating awareness among the general business community, assist the courts in any IP related issues, among others. Such a body can also provide consultancy to help companies to access skills or know- how or also assist in industrial collaboration, in which the company provides not only funding but also access to company expertise and other integrated technology.

1.3 Improving Awareness for IP

Crucial is to take steps for creating IP awareness in industry. The recent crucial changes in the IP regulations to ensure creating awareness and safeguarding the IPR domestically are:

• the launching of the FICCI-IP facilitation centre under the scheme “Building Awareness on Intellectual Property Rights” for Micro, Small and Medium Enterprises,

• the 3rd draft patent amendment rules, 2010 notified by the Indian Patent and Trademark Office,
• approval granted for setting up a National Innovation Council to prepare a road map for the ‘Decade of Innovation 2010-2020’
• more usage of electronic means in the IP sphere by the IP registry in India.

1.4 Protection of IP

IPR protection will also help in promoting innovation among domestic firms and will help in creation of more IPR. A parallel structure of IP courts across the judicial system/hierarchy can be established by designating at least one court in every courts as “IP Court” and all matters related to IPR be listed therein. An IP Committee comprising of acknowledged and renowned IP professionals, researchers, scientists, and professors be set up as an advisory panel for judiciary. Courts can consult and deliberate with the IP Committee in all matters related to IP. The members of IP Committee can be appointed by the Governor in consultation of the Chief Justice of High Court of the State and President in consultation with the Chief Justice of India at the Central level. Or, there can be just one national level IP Committee with members from states.

One should bear in mind that most of the ADR awards are challenged in courts and therefore, mooting ADR as mechanism for effective dispute resolution policy can only be hogwash. However, optimum use of technology can make a difference in the current structure. If the IP courts become completely technology mediated and procedural guidelines with respect to time line for any dispute resolution (similar to the lines of NIXI- the national internet exchange of India), is also provided, ADR and also the e-IP courts can dispense off cases in least possible time which will suit the business community and especially the foreign participants.

Business houses sometimes give prominence to trade secret over patents and it is only a recent phenomenon in India that trade secret are protected in addition to patents. For companies protection for trade secrets has equal significance or sometimes even more. Abuse of trade secrets and rapid access to injunctive relief should be ensured to such companies as it forms a critical area for them.

Measures to create appropriate balance between antitrust and IPRs should be ensured so that the instances of abuse of dominant position are least. Though Competition Commission of India is the appropriate body to address such issues, it will be pertinent to include this aspect in the IP Policy as well. Assessing the risk of potential abuse of market dominance by IP right holders can be difficult in practice; however, the risk element can be substantially reduced.

The comprehensive policy should address the specific requirements of each sector it will cater to. Should not India protect the best interest of its stakeholders so that the comparative advantage position, wherever applicable is maintained. Adhering to the international agreements is fine but it should be adopted to suit the interest of Indian right holders. IPR policy should address this concern with due diligence.

The Interactive Guidance provided by the Patent Office, initiated as per the recommendation of the FICCI Consultative Working Group on Patents and Trademarks, needs to be improved.

In addition, the Indian ministerial committee on Customs enforcement has also improved through the implementation of the 2007 IPR (Imported Goods) Enforcement Rules as well as by seizures of unlicensed copyrighted goods intended for export. The government should initiate the process of conducting an “Infringement Survey” to analyze the actual situation. Thereupon utilize the Free Trade Agreements and Economic Partnership Agreements with other nations to check counterfeiting and piracy. Preventing the trade of counterfeits and pirated copies, especially through internet should also be prioritized. Finally, the cooperation between Public and Private sectors should be strengthened.

The issues related to “fair use” in copyright and “section 3(d)” in patents has created an impression that India is not open to much change in IPR. Such perspectives need to be addressed. Simultaneous efforts should be made to ensure that the IP interest of Indian parties    are    protected    at    the    global    front    and    government    agencies/industry associations/chambers should be quick to respond to situation like the “Google Settlement System”, particularly when the specific sector lacks awareness in IPR sphere. Also, coherence must be maintained between IPR and the related policies that affect IPR, like FDI.

Conclusion

With the influx of foreign technologies and IPR in India and Indian IPR going abroad, it has become pertinent to harmonize the IPR regulation with the international practices. Development of a coherent policy also depends crucially on consultations with the stakeholders. Government should identify the industry good IP practice and draft a document to this effect as well and finally help to diffuse this in business community. Strengthening of IPR systems will help in the strategic shift from static competition to dynamic competition which will solely be innovation-based. One important aspect that should be understood here is that a comprehensive IPR policy should aim to create a harmonious construction between “protection of innovation” and “facilitation of technology diffusion.” Such a measure can only ensure an effective and efficient IPR policy.

Authored by: Neeraj Dubey