National IPR Policy: The 7 objectives, expert opinion, and more

The Central Government last week unveiled the long due National Intellectual Property Rights Policy after its approval by the Cabinet. The Policy, among other things, seeks to promote entrepreneurship and stimulate innovation & creativity..Pravin Anand, Managing Partner at Anand & Anand says,.“This is a far reaching document which promises to pave the way to making India an Intellectual Property super-power.“.The Policy has made Department of Industrial Promotion and Policy (DIPP) the nodal point department for all IPR-related developments in India, while respective ministries or departments will be responsible for actual implementation..The need for this Policy is evinced by the increasingly high number of outstanding patent applications and trademarks registrations..Even as the Policy was approved, the Intellectual Property Appellate Board (IPAB) was reduced to a one-member body without a head, after Chairman Justice KN Basha recently attained superannuation. The sole member, Sanjeev Kumar Chaswal, has been designated as temporary vice-chairman..One of the key provisions of this Policy is the expedition of the approval process involved in granting of patents and trademarks. The total number of patent applications and trademark registration requests pending as of February 1 was 2,37,029 and 5,44,171, respectively..Finance Minister Arun Jaitley, while giving a speech this month, said that the time required to register trademarks will be brought down to one month by 2017. On this point, Anand says,.“The correct position is not to reduce the registration process to one month but to reduce the time for examination of a trademark application to one month.“.Following the passage of the Policy, the Patent Rules, 2003 have been amended to include ‘Startup’ as an applicant. It also seeks to reduce the time required for examination of an application by providing for an “expedited examination process” for Startups..The Policy may be applauded for encompassing within itself the entire value chain. It is based on the following seven overarching objectives:.1. IPR Awareness: In this era of increasingly IPR conscious global economy, it is imperative that all sections of the society are made aware about the benefits of IPRs and its significance. While many sections may be discouraged owing to the complexities in the process involved, it will only add value once they know its true worth. This will require conducting campaigns, including IPR as a part of curriculum in major institutions etc..2. Generation of IPRs: This objective seeks to offset foreign dependence and reach out to the MSMEs, start-ups and grassroot innovators for building indigenous products by incentivizing them. India has a strong presence and scope in the field of designs and Geographical Indications. While the number of patent filings has increased over the years, it is still far behind a lot of countries and India must strive to achieve more. It also encourages publicly funded scientists and professors to convert all of their discoveries to IP assets by incentivizing them..3. Legal and Legislative framework: The Policy seeks to strengthen the existing IP Laws in India to remove any anomalies as such. If the legal framework and the protection provided therein isn’t strong enough, people will not be incentivized to create more IP. The Policy will therefore lead to stronger institutional mechanism to curb IP offences at the state level..4. Administration and Management: Establishment of a Cell for IPR Promotion and Management (CIPAM) under the aegis of DIPP is one of the most noteworthy features of the Policy. This objective recognises the need of a robust administration and infrastructural system to implement the co-objectives of the Policy and strengthen the IPR regime in India. Among other things, it calls for lowering the time for pending Patent applications to 18 months (down from 5-7 years) and trademark registration to one month (from 13 months), augmenting manpower and promoting interaction between various IP offices and public R&D institutions..5. Commercialisation of IPR: Aims at providing a thrust to entrepreneurship in order to realise the value of IPRs. Several small scale industries do not have the ability to commercialise their IPRs. This objective actively seeks to provide a platform for IPR owners and study the feasibility of an IPR exchange. Further, it recommends enabling valuation of IP rights as intangible assets and facilitating securitisation of IP rights..6. Enforcement and Adjudication: Recognition of IP rights as private rights and protecting IP with trademarks, copyrights and patents plays an essential role in monetising innovations. This requires some coordination between various agencies of the government to avoid digital piracy and infringements. Also, the Policy calls for setting up of new commercial courts to look into IPR disputes..Rajesh Vellakat, Partner at Fox Mandal & Associates, talks on the introduction of commercial courts:.“[The] Government is attempting to resolve adjudicatory delays by bringing IP disputes to newly planned commercial courts. Commercial courts are yet to commence its activities. How it will shape up, will that make difference from the traditional Indian court system is a million dollar question. Hence this entire objective is solely depending on the fate of commercial courts.“.7. Human Capital Development: In order to harness the full potential of IPRs for economic growth, the Policy seeks to (i) establish new institutions and capacities for teaching, training, research and skill building in IPRs; (ii) Open R&D institutions; and (iii) make IPR a compulsory subject to be taught in schools and colleges. The aim is to develop a increasing pool of skilled IP experts, to facilitate the growth and judicious management of IP assets..On the point of researchers being incentivised for filing ‘more’ patents, there seems to be a difference in opinion among several experts..As Shamnad Basheer notes,.“The policy sees IP as an end in itself. But most of the research in India is conducted in universities which are publicly funded. We cannot give patent for such knowledge to individuals.”.What he is trying to say is that the policy encourages researchers from publicly funded institutions to file patents even before publishing it, which goes against the free flow of knowledge as practiced by great scientists of the world. Linking patent filing with career progression may not be the best way to create innovation..In another article, Basheer says,.“The policy sounds almost militant when it proposes that despite our ancient “laudable” heritage where knowledge was freely and extensively shared, we must now make amends and convert each piece of our knowledge into an IP asset. This flawed frame results in a number of problematic assertions in the text of the policy..It advocates that publicly funded scientists and professors must compulsorily convert all of their discoveries into IP assets, much before they have even written this up and published it in reputed science journals …”.However, both Pravin Anand and Rajesh Vellakat believe it is only for the good. Vellakat says,.“If granted patents are considered as a metric then, that will make sure that the public fund is used for creating novel and industrially useful innovations.”.Anand says,.“Within the world of incentives and disincentives, the right environment ought to be created which will compel our researchers to think in terms of patents and not in terms of research papers alone.”.Additionally, the Policy gives an indication of India’s stance on whether or not it supports TRIPS Plus, which calls for even more stringent IP protection laws than what is mandated by the TRIPS, which India is a signatory of. The Policy merely states,.“India shall remain committed to the Doha Declaration on TRIPS Agreement and Public Health.”.What this means is that India will do nothing more than what is required under TRIPS, signalling its refusal to accede to the the TRIPS Plus..So should India be a part of TRIPS Plus? It’s not that simple, as Anand explains..“I am not particularly fond of this expression ‘TRIPS Plus’. There are industries in which our interest lies in being stronger in terms of intellectual property protection than in others and since TRIPS is a common denominator (an average line), we are bound to have some areas in our law where we have much stronger protection and perhaps some areas which are minimal but still over this average line. .We cannot give one answer to whether it is in our interest to be TRIPS Plus and the answer must depend upon the industry and the issue concerned.“.Image: Source