GS-3, Indian Economy, Uncategorized

Now, a ‘tatkal’ system to expedite patent examination

The Hindu

What happened?

  • The government has amended rules and introduced several measures including a system similar to ‘tatkal’, to expedite examination of patent applications by start-ups as well as entities choosing India for the first filing of patent.

Why this move?

  • There are around 2.37 lakh patent applications pending in the country.
  • The government is aiming to bring down the time period for initial examination of patent applications from the present 5-7 years to 18 months by March 2018.
  • The move is to popularise India as a patent filing hub so that more companies file applications in India. Now many applications for the initial examination are filed abroad, in places like Europe, the US or Japan.
  • Government has also announced the National Intellectual Property Rights (IPR) Policy to push IPRs as a marketable financial asset and economic tool, promote innovation and entrepreneurship/start-ups, while protecting public interest.

Expedited examination

  • Under the ‘tatkal’-like system applicants can opt for the ‘expedited examination’- route on the grounds that they have chosen India as the competent International Searching Authority or International Preliminary Examining Authority in the corresponding international application, and file their applications first in India.
  • The ‘expedited examination’-route is also available to all entities that qualify as a start-up as per the definition for start-up provided in the Patent Rules.
  • The applications for this route have to be filed only electronically.
GS-2, Indian Economy, Uncategorized

All you need to know about the new IPR Policy

Article Link

Finance Minister Arun Jaitley recently released India’s new National Intellectual Property Rights (IPR) Policy.

  • The Policy which is in compliance with WTO’s (World Trade Organisation) agreement on TRIPS (Trade Related aspects of IPRs), aims to sustain entrepreneurship and boost ‘Make in India’ scheme.
  • It also aims to create awareness about economic, social and cultural benefits of IPRs among all sections of society.

What are IPRs?

Intellectual Property Rights (IPRs) are legal rights, which result from intellectual invention, innovation and discovery in the industrial, scientific, literary and artistic fields. These rights entitle an individual or group to the moral and economic rights of creators in their creation.

Why have an IPR?

IPR is required to safeguard creators and other producers of their intellectual commodity, goods and services by granting them certain time-limited rights to control the use made of the manufactured goods. It gives protection to original ideas and avoids the commercial exploitation of the same.

What is the National IPR Policy?

According to the government, the National IPR Policy is a vision document that aims to create and exploit synergies between all forms of intellectual property (IP), concerned statutes and agencies.

  • It sets in place an institutional mechanism for implementation, monitoring and review.
  • It aims to incorporate and adapt global best practices to the Indian scenario.

Seven objectives of IPR Policy:

  1. IPR Awareness: To create public awareness about the economic, social and cultural benefits of IPRs among all sections of society.
  2. Generation of IPRs: To stimulate the generation of IPRs.
  3. Legal and Legislative Framework: To have strong and effective IPR laws, which balance the interests of rights owners with larger public interest.
  4. Administration and Management: To modernize and strengthen service-oriented IPR administration.
  5. Commercialization of IPRs: Get value for IPRs through commercialization.
  6. Enforcement and Adjudication: To strengthen the enforcement and adjudicatory mechanisms for combating IPR infringements.
  7. Human Capital Development: To strengthen and expand human resources, institutions and capacities for teaching, training, research and skill building in IPRs.

Highlights of the policy:

  • The new policy calls for providing financial support to the less empowered groups of IP owners or creators such as farmers, weavers and artisans through financial institutions like rural banks or co-operative banks offering IP-friendly loans.
  • The work done by various ministries and departments will be monitored by the Department of Industrial Policy & Promotion (DIPP), which will be the nodal department to coordinate, guide and oversee implementation and future development of IPRs in India.
  • The policy, with a tagline of Creative India: Innovative India, also calls for updating various intellectual property laws, including the Indian Cinematography Act, to remove anomalies and inconsistencies in consultation with stakeholders.
  • For supporting financial aspects of IPR commercialisation, it asks for financial support to develop IP assets through links with financial institutions, including banks, VC funds, angel funds and crowd-funding mechanisms.
  • To achieve the objective of strengthening enforcement and adjudicatory mechanisms to combat IPR infringements, it called for taking actions against attempts to treat generic drugs as spurious or counterfeit and undertake stringent measures to curb manufacture and sale of misbranded, adulterated and spurious drugs.
  • The policy will be reviewed after every five years to keep pace with further developments in the sector.

Why this policy was need of the hour?

  • Global drug brands led by US companies have been pushing for changes to India’s intellectual property rules for quite some time now. They have often complained about India’s price controls and marketing restrictions.
  • Also, an IPR policy is important for the government to formulate incentives in the form of tax concessions to encourage research and development (R&D). It is also critical to strengthen the Make In India, Startup and Digital India schemes.
  • The IPR policy comes at a time when India and other emerging countries faces fresh challenges from the developed world and mega regional trade agreements such as the Trans-Pacific Partnership (TPP).

Issues associated with this policy:

  • According to the policy, India will retain the right to issue so-called compulsory licenses to its drug firms, under “emergency” conditions. Also, the government has indicated that there is no urgent need to change patent laws that are already fully World Trade Organization-compliant. So India has resisted pressure from the US and other Western countries to amend its patent laws.
  • The policy also specifically does not open up Section 3(d) of the Patents Act, which sets the standard for what is considered an invention in India, for reinterpretation.

Benefits of this policy:

  • The new policy will try to safeguard the interests of rights owners with the wider public interest, while combating infringements of intellectual property rights.
  • By 2017, the window for trademark registration will be brought down to one month. This will help in clearing over 237,000 pending applications in India’s four patent offices.
  • It also seeks to promote R&D through tax benefits available under various laws and simplification of procedures for availing of direct and indirect tax benefits.
  • Unlike earlier where copyright was accorded to only books and publications, the recast regime will cover films, music and industrial drawings. A host of laws will also be streamlined — on semi-conductors, designs, geographical indications, trademarks and patents.
  • The policy also puts a premium on enhancing access to healthcare, food security and environmental protection.
  • Policy will provide both domestic and foreign investors a stable IPR framework in the country. This will promote a holistic and conducive ecosystem to catalyse the full potential of intellectual property for India’s growth and socio-cultural development while protecting public interest.
  • It is expected to lay the future roadmap for intellectual property in India, besides putting in place an institutional mechanism for implementation, monitoring and review. The idea is to incorporate global best practices in the Indian context and adapt to the same.

Why the US would not be happy with this policy?

Last month, the US Trade Representative kept India, China and Russia on its “Priority Watch List” for inadequate improvement in IPR protection. However, brushing aside concerns of the US on India’s IPR regime, the government said its intellectual property rights laws are legal-equitable and WTO-compliant. Thus, the government has not yielded to pressure from the United States to amend India’s patent laws.

TRIPS:

TRIPS is an international agreement administered by the World Trade Organization (WTO), which sets down minimum standards for many forms of intellectual property (IP) regulations as applied to the nationals of other WTO Members.

  • It was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994.
  • TRIPS requires WTO members to provide copyright rights, covering content producers including performers, producers of sound recordings and broadcasting organizations; geographical indications, including appellations of origin; industrial designs; integrated circuit layout-designs; patents; new plant varieties; trademarks; trade dress; and undisclosed or confidential information.
  • The agreement also specifies enforcement procedures, remedies, and dispute resolution procedures.
Editorials, GS-3, Uncategorized

Software patent

Livemint

  • Context
    The author has praised  Indian policymakers as they have steadfastly refused to kiss the pig called “software patents”, despite it being dressed up in the lipstick of “innovation”. This gives Indian software developers the freedom to innovate without worrying about patent lawsuits.Lipstick on a pig” is a popular Americanism for making superficial or cosmetic changes that disguise the true nature of a product.

Lobbying by the MNCs

Ever since the Indian Patent Office (IPO) issued the revised Computer Related Inventions Guidelines, a host of MNCs has been busy trying to lobby the Indian government to overturn these guidelines.

Information Technology

  • Information Technology has gained special significance in the past two decades.
  • It has emerged as a vital tool for scientific development.
  • The term “Information Technology” encompasses the whole gamut of inputting, storing, retrieving, transmitting and managing data through the use of computers and various other networks, hardware, software, electronics and telecommunication equipment.
  • Industry has witnessed rapid growth due to the computerization of activities which were hitherto carried out manually or mechanically.
  • The advent of the internet and the World Wide Web (www) coupled with the exponential growth of processing and storage power has led to capabilities previously unheard of.
  • The core elements in the application of Information Technology are computers and their peripherals.

Computer Related Inventions (CRIs)

  • Computer Related Inventions (CRIs) comprises inventions which involve the use of computers, computer networks or other programmable apparatus and include such inventions having one or more features of which are realized wholly or partially by means of a computer programme or programmes.
  • Creators of knowledge in the domain of Computer Related Inventions (CRIs) have consistently endeavored for appropriate protection of their IPRs.
  • The patent regimes have to cope up with the challenges of processing of patent applications in the field of computer related inventions and related technologies.
  • This has been a subject of international attention in the recent past.
  • Major patent offices across the world are confronted with the issue of patentability of CRIs.
  • They have developed examination guidelines/ manuals for examination of patent applications from these areas of technology so as to achieve uniform examination practices.

Legal Provisions relating to CRIs

The Patents (Amendment) Act 2002 (No. 38 of 2002) came into effect on 20th May, 2003.

  1. It amended the definition of invention under section 2(1)(j) as “Invention” means a new product or process involving an inventive step and capable of industrial application;

 

and as per section 2(1)(ja)2 “inventive step” means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art;

Further, section 2(1)(ac)3 states that “”capable of industrial application”, in relation to an invention, means that the invention is capable of being made or used in an industry;”

  1.       The Patents (Amendment) Act, 2002 also introduced explicit exclusions from patentability under section 3 for Computer Related Inventions (CRIs) as under:

(k) a mathematical or business method or a computer programme per se or algorithms;

(l) a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions;

(m) a mere scheme or rule or method of performing mental act or method of playing game;

(n) a presentation of information;

Patents are not suitable for software

  • Software developers, and researchers who study innovation, contend that the US, which has the most permissive patenting system in the world, made a huge mistake by bringing software under the ambit of patentability.
  • Software falls within the realm of abstract ideas, and  it is impossible to draw boundaries around abstract ideas.
  • Patent seekers have turned into “clients” and not applicants at United States Patent and Trademark Office (USPTO) and USPTO (much like IPO) has been chronically strained for resources, with patent examiners often having just a dozen hours to assess a patent application.
  • The flood of poor quality patents in the US has led to a surge in lawsuits, and the rise of patent trolls—organizations that make nothing, and whose sole business is to acquire patents and use them to extract royalty payments from unsuspecting users.
  • Under the Patent Cooperation Treaty, if India allows software patents, it will have to give priority to the existing patents that have been filed in other countries.

India should not make the same mistake

  • If these patents are granted in India, MNCs will have the right to exclude Indian companies from using their claimed inventions.
  • This will slow down the pace of innovation, and nip India’s growing software product ecosystem in the bud.
  • It is to the credit of Indian policymakers that they have steadfastly refused to kiss this pig called “software patents”, despite it being dressed up in the lipstick of “innovation”.
  • This gives Indian software developers the freedom to innovate without worrying about patent lawsuits.
Editorials, GS-3, Indian Economy, Uncategorized

‘Make in India’ not at cost of IPR: US

The US Trade Representative’s annual Special 301 report, that identifies trade barriers to U.S. companies and products due to a foreign government’s intellectual property regime, has placed India on the Priority Watch List, the same as last year.

What is special 301 report?

Under Section 301 of US Trade Act, the office of US Trade representative (USTR) prepares a list of countries whose Intellectual property right regime (IPR) has negative impact on American products. Among such countries, special attention given to two groups:

Priority watch list countries Priority foreign countries
USA uses “carrot” policy to incentivize IPR reforms e.g. funding, training, capacity building, bilateral exchanges and conferences. “sticks” policy to force IPR reforms e.g. putting trade sanctions, approaching WTO dispute resolution.

Why is India kept in the Priority Watch list, in this report?

India is kept in Priority watchlist because

  • Report has raised multiple concerns, particularly related to the potential erosion in IP standards due to its push for promoting domestic manufacturing.
  • It  is concerned about actions and policies in India that appear to favour local manufacturing or Indian IPR owners.
  • According to the report,  India has not taken the opportunity to address long-standing and systemic deficiencies in its IPR regime and has endorsed problematic policies.
  • It said India was the source of a lot of pirated and counterfeit goods reaching the U.S shores.
  • It has asked for clarity from the Government of India regarding the compulsory license decision-making process, as it affects U.S. stakeholders.
  • India doesn’t have separate Anti-Camcording law to combat video piracy.
  • India doesn’t have special takedown procedures against piracy websites.
  • India is the top supplier of counterfeit pharmaceuticals to USA. Patent holder lose billions of dollar each year due to counterfeit / pirated products.
  • Thus, India’s IPR regime is not conductive for innovation by foreigners- at least in USTR’s interpretation, hence put under “Priority watch list” of Special 301 report

Compulsory Licencing

  • Compulsory licensing is when a government allows someone else to produce the patented product or process without the consent of the patent owner.
  • It is one of the flexibilities on patent protection included in the WTO’s agreement on intellectual property — the TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement.
  • The compulsory licensing provision arms the government with the power to ensure that medicines are available to patients at affordable rates and has so far been used in Brazil, Thailand and South Africa.
  • It gives the government the right to allow a generic drugmaker to sell copycat versions of patented drugs under certain conditions, without the consent of the patent owner.
  • The TRIPS Agreement does not specifically list the reasons that might be used to justify compulsory licensing.
  • However, the Doha Declaration on TRIPS and Public Health confirms that countries are free to determine the grounds for granting compulsory licences.

Stand of the Indian Government

  • The government of India does not engage with the process as it considers it an infringement on the country’s sovereignty.
  • Indian official sources pointed out that the categorisation is arbitrary and mostly a political decision, in order to reward or punish a target country.

How does India fare with respect to its competitors?

China too is in Priority Watch List  whereas Pakistan is in Watch List,  as according to the report Pakistan  has shown sufficient improvement in IP protection and enforcement.

GS-3, Uncategorized

The importance of IP rights for innovation

Context

Piracy is a problem all over the world, original content created by the innovators is being distributed in this digital age where data is distributed all over the internet and is rampant

Why India and US have a relationship in IP rights

Indian movie production companies and software development companies have made a mark around the world, US also has done the same, to protect the rights of creators from both countries and to grow our economies, we must try and curb this illegal distribution.

World Intellectual Property Day

  • World Intellectual Property Day is observed annually on 26 April.
  • 2016 theme “Digital Creativity: Culture Reimagined”
  • 2015 theme was “Get Up, Stand Up. For Music”
  • The event was established by the World Intellectual Property Organization (WIPO) in 2000 to “raise awareness of how patents, copyright, trademarks and designs impact on daily life” and “to celebrate creativity, and the contribution made by creators and innovators to the development of societies across the globe”
  • 26 April was chosen as the date for World Intellectual Property Day because it coincides with the date on which the Convention Establishing the WIPO entered into force in 1970.

World Intellectual Property Organization

  • The World Intellectual Property Organization (WIPO) is one of the 17 specialized agencies of the United Nations.
  • WIPO was created in 1967 “to encourage creative activity, to promote the protection of intellectual property throughout the world
  • WIPO currently has 188 member states,administers 26 international treaties, and is headquartered in Geneva, Switzerland

What is the idea behind protecting intellectual property

  • That the original content creators are rewarded for their creations whether it be movies, art work, music, computer software and other so that future generations appreciate the rich, diverse and creative cultures as to the ones we enjoy today.
  • Also people make their living by selling their content and if their creations are not protected, they will go out of work, and producers will no more be encouraged to produce new things

How is it becoming impossible to protect the content

Growth in broadband connectivity also means an increase in the proliferation of piracy, which reduces the incentive of content innovators to create and erodes the desire of companies to invest. Illegal downloads, recording in movie theatres and other forms of intellectual property theft cost the creative industry dearly

GS-3, Uncategorized

Patents over patients

The U.S.-India Business Council (USIBC) to the U.S. Trade Representative (USTR) recently revealed that India has given private assurances to the US that it will not grant licences allowing local firms to override patents and make cheap copies of drugs by big Western drug makers.

Background:

It should be noted here that the USTR has placed India on its “priority watch” list for two years in a row saying the country’s patent laws unfairly favour local drug makers. A bone of contention has been a legal provision that allows the overriding of patents on original drugs and granting of ‘compulsory licences’ to local firms to make cheaper copycat medicines.

What is Compulsory Licensing (CL)?

CL is the grant of permission by the government to entities to use, manufacture, import or sell a patented invention without the patent-owner’s consent. Such licenses permit a third party to make, use, or sell a patented invention without the patent owner’s consent.

Laws governing such licenses:

India can grant such licences under certain conditions, such as public health emergencies, to ensure access to affordable medicines.

  • Under Indian Patent Act, 1970, the provision with regard to compulsory licensing is specifically given under Chapter XVI. The conditions which need to be fulfilled in order for a compulsory licence to be granted are also laid down under Sections 84 and 92 of the Act.
  • Under Section 84 (1) of the Indian Patent Act, any person may request a compulsory license if, after three years from the date of the grant of a patent, the needs of the public to be covered by the invention have not been satisfied; the invention is not available to the public at an affordable price; or the patented invention is not “worked in,” or manufactured in the country, to the fullest extent possible.
  • India’s National Manufacturing Policy (NMP) also supports the application of CL across different manufacturing sectors, more specifically to ensure access to the latest green technologies that are patented.
  • The NMP provides the “option” to entities such as the Technology Acquisition and Development Fund “to approach the government for issue of a CL for the technology which is not being provided by the patent holder at reasonable rates or is not being ‘worked in India’ to meet the domestic demand in a satisfactory manner.”
  • CL is also permitted under the WTO’s TRIPS (IPR) Agreement provided conditions such as ‘national emergencies, other circumstances of extreme urgency and anti-competitive practices’ are fulfilled.

Concerns over the recent assurance:

The disturbing word in the recent communication from the USIBC to the US Trade Representative is “privately”. This is related to Track II Diplomacy (Track II diplomacy refers to “non-governmental, informal and unofficial contacts and activities between private citizens or groups of individuals, sometimes called ‘non-state actors’. It contrasts with track I diplomacy, which can be defined as official, governmental diplomacy that occur inside official government channels).

  • Track II flourishes in diplomacy, but the idea of Track II policy is problematic. Policy must always be created and operated transparently, or government runs the risk of losing credibility.
  • Yet, the government appears to have offered a verbal, Track II-like reassurance on drug patents, which has found its way into the official record.
  • Technically, private assurance suggests that India is willing to pay heed to multinational requests to respect intellectual property and to protect incomes accruing from it, even if it amounts to disrespecting the right of its citizens to life and health.
  • Such an assurance also goes against the main spirit of Patents Act and the public health safeguards enshrined in it.

Natco’s case:

Based on section 84, Natco, an Indian generic manufacturer, applied for India’s first compulsory licence some years ago and convinced the patent office that Bayer’s patented drug for kidney cancer, Sorafenib Tosylate, was excessively priced and available to hardly 2% of patients.

  • In sharp contrast to Bayer’s Rs 2.8 lakh per month price tag, Natco offered to sell its version of the drug at Rs 8,800 per month.
  • The controller of patents granted a licence upon the payment of a 6% royalty rate to Bayer, ensuring this was not a zero-sum game but one that could potentially benefit the patent owner as well, given Natco’s knack of selling in markets beyond the ordinary purview of the high-priced patented drug.
  • Upon appeal by Bayer, the patent office decision was validated, with some minor modifications in royalty rates.

Unfortunately, despite this excellent start to the invocation of an important public health safeguard, no other licence has been granted since.

WTO’s view:

The WTO’s fourth ministerial conference in Doha in 2001 had adopted a declaration which balanced the imperative of national health against the transnational rights to intellectual property.

  • It established the primacy of the right of member nations to protect public health and promote access to medicines for all. It further clarified that each member has the sovereign right to decide the grounds for granting compulsory licences according to national interests, and implicitly did away with the need for an emergency or a situation of urgency, which are listed both in Trips and in the IPA.
  • The Indian government is, therefore, under no compulsion to put multinational interest ahead of the imperative of public health. It only needs to be fair in its policy — and transparent.

What needs to be done now?

World over, compulsory licensing is largely a matter of government discretion to be invoked at the government’s pleasure. However, in India, Section 84 makes clear it’s a legal entitlement that cannot be pimped away through private assurances to foreign friends. Rather, the government is obliged to adjudicate each application on merit, donning its robe as a quasi-judicial authority. The patent office must, therefore, be equipped with personnel vested with a fair degree of adjudicatory competence and independence.

  • If serious about its constitutional commitment to good health, the government must immediately formulate a legal framework to compel private parties to disclose drug and disease data.
  • Also, it must ensure quasi-judicial authorities (the patent office) remain relatively independent and are infused with sufficient training to ensure a fair, impartial and competent dispensation of justice.
Indian Economy, Uncategorized

For Make in India, we must create intellectual property and its jurisprudence

There are two  key pre-requisites. One, India has to support innovation and the creation of intellectual property at multiple levels: of policy, import duty, financial outlays and legal support. Two, Indian entrepreneurs must show ambition to operate on global scales of quality and quantity.

Create Intellectual Property:

It is welcome the government proposes to reduce the tax break for R&D to 100%. This must be supplemented with subsidy to the extent of 100% for valid research, whether in-house, contracted out to specialized labs or university departments. Subisdies are scrutinized and audited far better than tax exemptions.

India’s import duties are inefficient, often ‘inverted’, meaning, the duty on components is higher than that on the finished product—it is cheaper to import the final product than to assemble it locally using imported components. A higher tax on the finished good than on components will certainly encourage import of components and local assembly. But the resultant value addition would be make-believe, not made in India, the product of the duty differential.

Take phone components, with zero import duty and zero countervailing duty (CVD). The phone itself has a 12% CVD, alongside zero import duty. So Indian brands import semiknocked down kits from China at zero duty, add negligible value and sell at a mark-up while pocketing a fat excise duty concession.

To avoid both killing domestic production with inverted duties as well as spurious local value addition that reaps duty differentials, and to promote true manufacture in India, which takes advantage of proximity to India’s huge market and low wage costs, import duty has to be the exact self-same rate on all imports, whether raw material, component or finished good, each of which will enjoy that rate of real effective protection. And this rate should be kept low.

Build Judicial Capacity

To develop innovation, R&D is not enough. The legal system must support it, by protecting the transient monopoly for the creator granted via intellectual property. In the case of fast-changing technology, there is probably a case for sharply lowering the patent period from the 20 years of the pharma world, but this has to be done via global consultation. But for Indian companies to be in a position to license technologies and claim royalty, they will have to begin by licensing others’ technologies, building them into their products, paying royalty for the privilege, and learn to improve on these on their own.