Appeasement for none Intellectual property policy should focus on implementation

A preliminary draft of a new intellectual property rights policy for India has been the occasion for much discussion. Commerce Minister Nirmala Sitharaman even felt it necessary to assert on Twitter that the proposed revamp is not meant to appease the United States, given that this remains a major outstanding irritant in relations between the two countries. The government has argued that the major changes in the draft are directed largely at promoting and protecting indigenous innovations. However, the stress laid in the new policy on better administration and enforcement of IPR systems and safeguarding the commercial interests of intellectual property owners may address some of the key concerns of IP-intensive industries in the US and other countries. Apex bodies of sectors like pharmaceuticals, clean energy (solar) and information technology continue to lobby with the US administration to ask India to bolster its IPR regime. India is a "Priority Watch List" country, according to the United States Trade Representative, for its supposedly weak IPR and patents regime. Any downgrade might entail trade sanctions; the new policy might hopefully avert that threat. In any case, India's IPR regime has undergone a marked change since the late-1990s. Some nine IP-related laws have either been enacted or enhanced between 1999 and 2012. These include the landmark amendment of the Indian Patents Act, 1970, which facilitated the switch-over from process patenting to product patenting. The updated IPR legal framework, the government has argued, is compliant with the provisions of the global agreement on the trade-related intellectual property rights (TRIPs). Certainly, it has not been challenged at the World Intellectual Property Organisation (WIPO).

But beyond the law is its implementation. And this has certainly been a weak point in India. Piracy and counterfeiting are rampant - which adversely impact the commercial interests of not only foreign but also domestic IP-owners in several sectors. They also hurt the end-consumer, who suffers from want of variety and authenticity as a consequence. Since online piracy, which has blurred geographical boundaries, has also assumed significance, the new policy draft has called for strengthening the machinery for curbing it effectively and expeditiously. The two most widely discussed aspects of the Indian IPR regime relate to compulsory licensing for the local production of pharmaceutical products that are decided to be otherwise unaffordable by national authorities; and efforts to bar the extension or "evergreening" of patents on grounds that are deemed trivial, such as incremental innovation that is apparently insignificant. These provisions might well stand up to international legal scrutiny; it is unlikely that the government will concede any major ground on this front.

One of the striking features of the proposed IPR policy is the emphasis on patenting of innovative utilitarian inventions which are the result of human ingenuity and creativity. The new policy draft stipulates amendment of the present laws or enactment of a new statute to facilitate the patenting of these innovations. Perhaps this will bolster grass-roots creativity. But the exact nature of a law to protect "jugaad" innovation - which by its very nature is haphazard - is difficult to imagine. The government's IPR policy should focus harder to implement the laws India already has. That in itself will help the country address concerns around adherence to global standards.