A Principle Of Balance: Top Official Explains India’s IP Policy

Adopted in May, the first Indian intellectual property policy brought some concerns that the focus on IP rights might dampen India’s willingness to use the IP flexibilities to safeguard national policy space. It was also perceived by some as giving in to pressure from the foreign pharmaceutical industry for India to strengthen patent protection. However, a high level Indian official in an interview this week said the policy caters to Indian development needs and India is aware of its pioneering role in certain sectors like access to medicines.

Rajiv Aggarwal, Joint Secretary at the Indian Department of Industrial Policy & Promotion Ministry of Commerce & Industry sat down with Intellectual Property Watch’s Catherine Saez to describe how India’s IP policy [pdf] came into being, to what aim, what it is expected to change in the Indian IP landscape, and how Indian is standing fast to its principle of balance.

INTELLECTUAL PROPERTY WATCH (IPW): What is the new Indian IP policy in substance, what brought on that IP policy, and what changes is it expected to bring?

Rajiv Aggarwal, joint secretary, Indian Department of Industrial Policy & Promotion,
Ministry of Commerce & Industry

RAJIV AGGARWAL: India has a TRIPS [World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights] compliant IP regime, and in 2005 amended its Patents Act to be in compliance with TRIPS.

We have a very robust and dynamic IP regime, but there was realisation that IP rights are not the mere mechanical process of registration of IP rights but they are also financial tools and assets which can be used for economic interests.

For any growing economy, it is crucial that the country recognises IP and makes people aware of the IPs that they own so that they can protect these IPs as IP rights. The country should also provide the infrastructure so that people are able to enforce their rights.

Two years ago, India realised that it needed a holistic, overarching policy that not only states India’s position clearly, but also lays a roadmap so as to give a vision, the direction in which India would like to move in terms of its IP regime.

India realised that it needed a holistic, overarching policy that not only states India’s position clearly, but also lays a roadmap so as to give a vision

For this purpose, a think tank was constituted with IP experts, who after deliberations came up with a draft document, which was put in the public space and commented on by over 300 stakeholders. The think tank also had discussions with these people. Among those stakeholders were five foreign governments: the United States, the United Kingdom, Canada, Japan, and the European Union, as well as other organisations.

The final draft was circulated to various departments and ministries of the government of India. On 12 May 2016, the Union Cabinet, which is the final authority of the country, approved the Indian National IPR Policy.

IPW: Can you describe the changes expected to be implemented following this IP policy?

AGGARWAL: We have had our laws in place for the last several years. We have laws for patents, trademarks, industrial designs, geographical indications, plant varieties, biodiversity/ genetic resources, and semiconductor layout designs.

We thus have separate sui generis legislations, but we felt that we needed a more cohesive approach, which is why a policy was needed.

A lot of things have happened in the last year. What we have to accept and realise is that the policy is a vision document. It cannot be, in a way, prescriptive. Under the policy we have approximately 200 action points under seven objectives. Each action point is allotted to a particular nodal government department which will be responsible for ensuring that this action point is taken forward. For each action point, there will be quantifiable milestones, with weightages and timelines. This process of identifying milestones is going on right now.

We are looking at a five-year horizon. After five years, if need arises, there might be a possible review of the policy.

Coming to actual progress, the first is India’s biggest challenge, which has been the pendency of patents and trademark applications. A month ago, the pendency of patent applications was nearly 230,000 and in trademark applications it was much more. What was happening was that the first examination of a patent application is currently taking 5 to 7 years. That’s too much! And we realised and recognised it.

On the trademark front, when you gave your application, it was taking 13 months before the first examination would take place. Given that this time duration was so long, it was actually a dampener on a lot of domestic filings.

A year ago we had 130 patent examiners, today we have recruited 458 more, who are currently being trained. They will start functioning as patent examiners toward the end of 2016.

In patents, we are going to bring down our backlog for first examination from 5 to 7 years at present to 18 months by March 2018.

Similarly on trademarks, 100 examiners were recruited, and already the pendency is down to 7 months, instead of 13 and we are going to bring it down to just 1 month by March 2017.

In 2015-2016, patent filings shot up by 10 percent and our trademark filing shot up by 35 percent. Between 90 and 95 percent of trademark filings are domestic filings.

Trademark applications reflect buoyancy in the economy. When there is more business on the streets it gets reflected in trademark filings.

The next major change that we have introduced is simplifications in our procedures. Patent rules have been amended recently, and trademark rules are expected to be amended in a couple of months.

Also a major change has been the introduction of an 80 percent fee reduction on patent fees for start-ups.

Another achievement has been to implement synergies between IP offices. Patent, trademarks, designs and geographical indications were under the Commerce Department but the copyright office was under the Education Department. We have now brought copyright and semi-conductors under the same umbrella under the Department of Industrial Policy and Promotion.

However, two offices have been kept under a separate umbrella: the plant variety protection, and the national biodiversity authority.

India is also going for a major awareness campaign now towards schools, colleges, law schools, universities, industry clusters, and small-and medium-sized enterprises. Some US$ 12 million are expected to be invested in awareness and related activities.

IPW: It seems that the announcement that India was in the process of drafting its first IP policy raised both expectations from foreign industries, and concerns from civil society. India has been seen by many developing countries as a model of compliance to international trade law and at the same time carving out the necessary policy space. Will the new IP policy change India’s leading role of applying international trade agreements but also safeguarding policy space and use of flexibilities?

AGGARWAL: One thing should be very clear: this is India’s policy. It is our domestic policy and it has to take into consideration our needs, the needs of our citizens, and if India has a pioneering role in certain sectors like access to medicines, in making sure that millions across the world have access to these medicines and not deprived of treatment, then that is a responsibility that is on our shoulders. We are very aware of our role and our responsibilities.

One thing should be very clear: this is India’s policy. It is our domestic policy and it has to take into consideration our needs, the needs of our citizens, and if India has a pioneering role in certain sectors like access to medicines, in making sure that millions across the world have access to these medicines and not deprived of treatment, then that is a responsibility that is on our shoulders.

I will not comment on which industry says what, but we were very clear while we heard out all the views, we listened to everyone, but at the end of the day, we had to look at it from the developmental needs of India.

The policy very clearly mentions the commitment to the [WTO] Doha Declaration and the fact that we recognise that access to medicines is really crucial and important.

On the specific issue of Section 3d [of the Indian Patent Act preventing ever-greening of patents], I would say that insulin was discovered over a hundred years ago, it has been under some patent or other for a hundred years. There is something intrinsically wrong in that. It is not the question whether Section 3d is the right language or not. Why should an invention made a hundred years ago for which a patent was granted for 20 years, enjoy patent protection for a hundred years?

[on evergreening] Why should an invention made a hundred years ago for which a patent was granted for 20 years, enjoy patent protection for a hundred years?

A patent regime gives a monopoly, but only a limited monopoly. When an inventor gets a patent, he also recognises that the knowledge developed of this invention is now available to the public for its own learning, and for further inventions.

IPW: On awareness raising, would India consider a broad approach of IP and also include awareness about exceptions and limitations of the IP system?

AGGARWAL: You cannot have absolute rights without duties. If any IP regime gives you certain rights it will also put duties on you towards humanity and society. We have to recognise that if we do not respect humans and humanity then one day the same humanity and humans will turn their back on us. What is the use of a patent if there is no society at all? If there is any right to be granted it has to come with certain balances, and there have to be exceptions.

IPW: Would you say that India is at this point where the number of its inventors is growing, and protecting domestic inventions made the IP policy necessary?

AGGARWAL: A study carried out some years ago showed that Japanese inventors were mostly working for Japanese companies, but in the case of India, 66 percent of all Indian inventors were working for foreign companies. Now more and more Indians are coming up with their own inventions and going for filings.

We had to improve our filing system and our administrative mechanism so to give those inventors the chance to file patents in India as quickly as they would file them in, say, the US. We would like to be the driving factor to have more domestic filings.

IPW: How does India deal with pressure from industry about India’s IP legislation?

AGGARWAL: I don’t really look at it as pressure. Stakeholders have the right to say whatever they want. That does not mean we necessarily agree with what they say.

I’ll give one example without any judgement value. There is a drug for Hepatitis C which cost US$81,000 in the developed world. The same company has licensed this particular drug to 11 or 12 Indian generic companies. When they started manufacturing, the cost of the medicines was US$1,000 for the course of the treatment (3 months). Now this price has gone down to US$300-400.

It is not necessary that the industry and governments have to fight it out. There are ways to get to a win-win situation. At the end of the day, if people cannot afford treatment they are not going to buy the medicines. Everyone has a role to play.

It is not necessary that the industry and governments have to fight it out. There are ways to get to a win-win situation.

At the end of the day, if people cannot afford treatment they are not going to buy the medicines. Everyone has a role to play.

We are willing to talk and find the best way forward.

IPW: Thank you.

Image Credits: Catherine Saez