Intellectual Property Rights (IPR) – UPSC

In this article, You will read Intellectual Property Rights (IPR), and National IPR Policy – for UPSC IAS.

Intellectual Property rights means providing property rights through patents, copyrights, and trademarks. Holders of intellectual property rights have a monopoly on the usage of property or items for a specified time period. The term intellectual property began to be used in the 19th Century. Only in the 20th century did it become part of the world’s legal systems.

Intellectual Property Rights (IPR)

  • Intellectual Property Rights (IPR) are the rights acquired by an owner of intellectual property.
  • Intellectual property is a category of property that includes intangible creations of the human intellect.
  • In simple terms, it refers to creations of the mind, such as
    • inventions
    • literary & artistic works
    • designs & symbols,
    • names & images used in commerce.
  • The main purpose of intellectual property law is to
    • encourage the creation of a wide variety of intellectual goods &
    • strike the right balance between the interests of innovators & wider public interest.
  • These rights are outlined in Article 27 of the Universal Declaration of Human Rights, which provides for the right to benefit from the protection of moral and material interests resulting from authorship of scientific, literary, or artistic productions.

Various International Treaties

There are different subject matters of intellectual property like Patents, Copyright, Trademarks, Industrial design, Plant Varieties, etc. The need for protection in these different subjects arose in different periods. These are reflected in different treaties. Agreement on TRIPS, under aegis of WTO, remains most influential, comprehensive, and inclusive of all.

The importance of IPR was first recognized in the

  1. Paris Convention for the Protection of Industrial Property (1883) &
    • Since it deals only with Industrial property, it covered only Patents and Trademarks.
    • It was among the first treaties to recognize various principles of international trade like National Treatment, Right of Priority, Common rules, etc.
  2. Berne Convention for the Protection of Literary & Artistic Works (1886).
    • It provided for copyright system. It doesn’t provide for any formality to claim protection.
    • Protection is automatically accorded to any creation, provided work is original and other conditions under the treaty are fulfilled. It means that your work, if original, is already protected. You can claim that you have copyright.
  • Both (Paris Convention & Berne Convention) are administered by the World Intellectual Property Organization (WIPO).
  • IPRs have been outlined in Article 27 of the Universal Declaration of Human Rights.
  • WTO governs IPR through Trade-Related Aspects of the Intellectual Property Rights (TRIPS).
World Intellectual Property Organization (WIPO)
  • WIPO is one of the 17 specialized agencies of the United Nations (UN).
  • WIPO was created to promote and protect intellectual property (IP) across the world by cooperating with countries as well as international organizations.
  • It began operations in 1970.
  • Headquarters: Geneva, Switzerland.
  • WIPO currently has 193 member states.
  • WIPO’s activities include
    • hosting forums to discuss and shape international IP rules and policies,
    • providing global services that register and protect IP in different countries,
    • resolving transboundary IP disputes,
    • helping connect IP systems through uniform standards and infrastructure, and
    • serving as a general reference database on all IP matters.
  • India joined WIPO in 1975.
Trade-Related Aspects of the Intellectual Property Rights (TRIPS)
  • TRIPS is an international agreement on intellectual property rights.
  • It is a landmark and most comprehensive treaty on Intellectual property.
  • While earlier treaties’ subject matters were specific, TRIPS deal with 8 kinds of property rights –
    • Patents,
    • Trademarks,
    • trade dress,
    • Copyrights,
    • Industrial Designs,
    • Plant Varieties,
    • Integrated Circuits and layouts, and
    • Geographical Indication.
  • Further, almost all countries are party to TRIP. In earlier treaties, only limited countries participated.
  • It also provides an enforcement mechanism that was not available in WIPO treaties. It mandated all member countries to make their domestic laws complaint to TRIPS.
  • India passed certain laws and amended others. India’s IPR regime now stands fully compliant to TRIPS.
    • For E.g. India amended patent law in 2005 to provide ‘product’ patent protection. Earlier protection was available only to ‘processes’.
  • TRIPS was the result of discussions held in the Uruguay round which led to the formation of WTO. This treaty is an offshoot of the General Agreement on Trade in Goods (GATT). This treaty provided a robust Dispute Resolution Mechanism and stringent penal provisions under the auspices of WTO.
  • It came into force in 1995 & is binding on all members of the World Trade Organization (WTO).

Further, every treaty under WTO is based some principle which are –

  1. National Treatment – No foreign products, once they enter domestic territories, shall be discriminated in any manner. This also applies to intellectual property. Members must accord similar treatment to foreign creations, as they do to domestic ones.
  2. Most Favored Nation – If a member provides some privilege, favorable treatment, or exemption to another country or group, then other members must get similarly favorable treatment.
  3. Right to priority treatment – If a similar patent application has been filed in two different countries, then the prior applicant has the right to the patent.
  4. Concept of Minimum Standards – This treaty provides for a minimum level of protection that every member should provide to intellectual property. Members have the discretion to provide more protection than minimum standards.
  5. Universal Copyright Convention, 1952 – This convention is administered by UNESCO. This exists simultaneously with Bern Convention. This treaty provides for procedural formalities for filing and recognition of copyright. As the Bern convention provides for the automatic route to copyright, this treaty has lost its relevance.

Types of Intellectual Property

Patents

  • A patent is an exclusive right granted for an invention, which is a new product or process that meets conditions of
    • novelty,
    • non-obviousness, &
    • industrial use.
  • A patent provides the owner with the right to decide how – or whether – the invention can be used by others.
Criteria for issuing Patents in India
  1. Novelty: it should be new (not published earlier + no prior Public Knowledge/ Public Use in India)
  2. Non-obviousness: It must involve an inventive step (technical advanced in comparison to existing knowledge + non‐obvious to a person skilled in the relevant field of technology)
  3. Industrial use: It should be capable of Industrial application
  • Patents in India are governed by “The patent Act 1970” which was amended in 2005 to make it compliant with TRIPS.
What cannot be patented?
  • Frivolous Invention: Invention that harms public order/Morality/ health of animals, plants & humans
  • Methods of agriculture or horticulture
  • Traditional Knowledge
  • Computer Program
  • Inventions related to Atomic Energy
  • Plants & Animals
  • Mere discovery of scientific principle

Patent (Amendment) Rules, 2020

  • The central government has published an amended Patent (Amendment) Rules, 2020.
  • The new rules have amended the format of a disclosure statement that patentees & licensees are required to annually submit to the Patent Office.
  • The format contains disclosing the extent to which they have commercially worked or made the patented inventions available to the public in the country.
  • The disclosure is to be made in the Form 27 format as prescribed under the Patent Rules, 2003.
  • The patentees & licensees as well as the Patent Office have blatantly disregarded this statutory requirement.
  • There has been significant pressure from MNCs & the U.S. to do away with this requirement.
Criticism of Patent (Amendment) Rules, 2020
  • The amendment has significantly weakened the requirement of submitting information in the disclosure.
  • This could hamper the effectiveness of India’s compulsory licensing regime which depends on full disclosure of patent working information.
  • This in turn could hinder access to vital inventions including life-saving medicines.

Industrial Designs

  • An industrial design constitutes the ornamental or aesthetic aspect of an article/object.
  • A design may consist of three-dimensional features, such as the shape or surface of an article, or of two-dimensional features, such as patterns, lines or colors.
  • Industrial Designs in India are governed by “The Designs Act 2000”.

Copyright

  • Copyright is a legal term used to describe the rights that creators have over their literary & artistic works.
  • Works covered by copyright range from books, music, paintings, sculpture & films, to computer programs, databases, advertisements, maps & technical drawings.
  • Copyrights in India are governed by “The Copyright Act, 1957”.

Trademarks

  • A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises.
  • Trademarks date back to ancient times when artisans used to put their signature or “mark” on their products.
  • Trademarks in India are governed by Trade Marks Act 1999 which was amended in 2010.

Geographical Indications

  • A GI tag is a legal recognition given primarily to an agricultural, natural or a manufactured product (handicrafts & industrial goods) originating from a definite geographical territory.
  • GI tag conveys an assurance of quality & distinctiveness of a product, which is essentially attributable to the place of its origin.
  • Most commonly, a geographical indication includes the name of the place of origin of the goods.
  • Once the GI protection is granted, no other producer can misuse the name to market similar products.
  • It also provides comfort to customers about the authenticity of that product.
  • Geographical Indicators in India are governed by “The Geographical Indications of Goods (Registration & Protection) Act, 1999”.
What is the difference between a Geographical Indication (GI) & a Trademark?
  • A trademark is a sign/word/phrase used by an entity to distinguish its goods & services from those of others.
  • A geographical indication tells consumers that a product is produced in a certain place & has certain characteristics that are due to that place of production.
  • A trademark gives the entity the right to prevent others from using the trademark.
  • On the other hand, GI may be used by all producers who make their products in the place designated by a geographical indication.

Trade secrets

  • Trade secrets are IP rights on confidential information which may be sold or licensed.
  • The unauthorized acquisition use or disclosure of such secret information by others is regarded as an unfair practice & a violation of the trade secret protection.
  • There is no specific law.

Plant Variety Protection

  • It refers to the protection granted for plant varieties.
  • These rights are given to the farmers & breeders to encourage the development of new varieties of plants.
  • Plant variety protection in India is governed by “The Protection of Plant Varieties & Farmers’ Rights (PPV&FR) Act, 2001”.

Protection of Plant Varieties & Farmers’ Rights (PPVFR) Act, 2001

  • PPVFR Act, 2001 has been enacted in India for giving effect to the TRIPS Agreement.
  • The PPVFR Act retained the main spirit of TRIPS viz., IPRs as an incentive for technological innovation.
  • However, the Act also had strong provisions to protect farmers’ rights.
  • The act allows farmers to plant, grow, exchange & sell patent-protected crops, including seeds, & only bars them from selling it as “branded seed”.
  • It recognised three roles for the farmer: cultivator, breeder & conserver.
  • As cultivators, farmers were entitled to plant-back rights.
  • As breeders, farmers were held equivalent to plant breeders.
  • As conservers, farmers were entitled to rewards from a National Gene Fund.

After joining WTO in 1995, the choice before India was to either enact a law or to accept the plant breeders’ rights given by the International Union for Protection of New Plant Varieties (UPOV Convention).

UPOV option was earlier rejected because it denied the farmers the freedom to re-use farm-saved seeds & to exchange them with their neighbours. However, in 2002, India joined the UPOV convention.

Objectives of the PPVFR Act
  • Facilitate an effective system for the protection of plant varieties & the rights of farmers.
  • Encourage the development of new varieties of plants.
  • Protect the rights of the farmers in respect of their contribution in conserving plant genetic resources.
  • Facilitate the growth of the seed industry which will ensure the availability of high quality seeds.
Criticism of PPVFR Act, 2001
  • Discourages research & innovation: PPVFR Act allows farmers to use patented varieties & hence private companies are not keen to bring new technology.
  • India neither invests in public sector nor respects private & foreign players’ IPR (bad for business).

National IPR Policy, 2016

  • The Policy aims to push IPRs as a marketable financial asset, promote innovation & entrepreneurship while protecting public interest.
  • The plan will be reviewed every five years in consultation with stakeholders.
  • To have strong & effective IPR laws, steps would be taken — including review of existing IP laws — to update & improve them or to remove anomalies & inconsistencies.
  • The policy is entirely compliant with the WTO’s agreement on TRIPS.
  • Department of industrial policy & promotion (DIPP) is the nodal agency for all IPR issues.
  • The policy retains the provisions on Compulsory Licensing (CL) as well as preventing ever-greening of drug patents (Section 3(d) of India’s Patents Act).
  • Under Indian Patents Act, a CL can be issued for a drug if the medicine is deemed unaffordable, among other conditions, & the government grants permission to qualified generic drug makers to manufacture it.
Objectives under policy are
National IPR Policy 2016

Intellectual Property Rights Issues: The Five Major Challenges Faced

  • There are many IPR issues that one faces while getting IP rights in India. The issues are as follows:

Patent Evergreening Prevention

  • One of the most important intellectual property rights issues challenges is the prevention of the evergreening of the patents for multinational companies.
  • Evergreening is strategy for extending the term of granted patent which is about to expire without increasing therapeutic efficacy in order to retain royalties.
  • As we know, the companies cannot evergreen their patents simply by making minor changes.
  • So, section 3(d) in the Indian Patent Act (IPA) possess as one of the biggest issues with regards to IPR.
  • This act bars the grant of patents to new forms of substances.
  • This has discouraged investments from western countries.

Subsidies & IPR Issues

  • A major form of subsidies includes food subsidy, fertilizer subsidy, education subsidy, etc.
  • For the complete implementation of TRIPS agreements, one needs to reduce or eliminate these subsidies.
  • Thus, GOI needs to create a balance between providing subsidies & providing IP rights in India.

The Product Patents Process

  • A product patent protects a product.
  • It offers high protection to the original inventor to reduce the competition for the same product.
  • Whereas a process patent protects the process through which one manufactures the product & not the product.
  • It reduces the element of monopoly in the market.
  • As India is a part of the TRIPS agreement, the agreement requires all its members to shift their patent regime from process to product patent.
  • This remains a challenge for India, as process patent would be more helpful to a country like India.
  • This is since India is a developing country & ordinary people are struggling with basic necessities like food.

Protecting traditional knowledge

  • Traditional knowledge, especially in the field of medicine, is like a gold mine.
  • GOI is bound to protect traditional knowledge by not allowing MNC’s to get patents on traditional culture.
  • Above all, the government has created a Traditional Knowledge Digital Library (TKDL) to prevent the patenting of traditional knowledge.
  • So, this is one of the intellectual property rights issues in India.

Compulsory Licensing & Drug Price Control Order

  • One of the most important intellectual property rights issues that the government needs to address is the use of compulsory licensing.
  • Compulsory licenses are authorizations given to a third-party by the Government to make, use or sell a particular patented product without the need of the permission of the patent owner.
  • The provisions regarding compulsory licenses are given in the Indian Patents Act, 1970 & in the TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement.
  • It is a relaxation available to the developing countries under the TRIPS agreement, something which organizations misuse sometimes.
  • Moreover, under section 84 of the IPA, a company can acquire a compulsory license for “private commercial use” under certain circumstances.
  • With the Drug Price Control Order, the company needs to justify the price of the drug with regards to investments.
  • If someone plays foul, then the government has the right to intervene.
  • Multinationals are asking the government to revoke this provision.
  • However, the government is not ceding the demands to protect the interest of the masses.

Some other issues

  • Trademark Violations: India has very high level of trademark counterfeiting against which the authorities in India do not take proper actions.
  • Enforcement of IPR regulations is quite weak in the country because of two important reasons
  • India is key exporter of counterfeit fake products such as foodstuffs, textiles, shoes, electronics etc
  • Judicial delays in IPR disputes
  • India maintains high custom duties on IP intensive products as advocated by western countries impacting the investment (US puts India into priority watch list i.e., special 301 report).

Achievements under new IPR policy

Global rankings

  • India is continuing to improve its global ranking. In the last years’ global innovation index, we improved five places to 52nd (2019).

IPR filings (Report of 2017-18)

  1. The number of patent applications examined more than doubled (108.2% increase over the previous year).
  2. Grant of patents increased by 32.5% and disposal of applications increased by 57.6%.
  3. The filing of copyright applications has increased by 7.4% during the year.
  4. a total of 11837 design applications were filed showing a 15.9% increase over the last year.
  5. A total number of 25 Geographical Indications were registered.

Strengthening of Institutional Mechanism

  • simplified trademark procedures and removal of redundant resulted in a reduction of the number of Forms from 74 to 8

Clearing Backlog/ Reducing Pendency in IP applications

  • The augmentation of technical manpower by the government has resulted in a drastic reduction in pendency in IP applications.
  • Automatic issuance of electronically generated patent and trademark certificates has also been introduced.

Creating IPR Awareness

  • Awareness creation in over 200 academic institutions through satellite communication. Awareness generation is done also for various stakeholders such as industry, police, customs, and judiciary.

IPRs in School Syllabus

  • The NCERT curriculum (Commerce stream) has included IPRs in its subjects.

Technology and Innovation Support Centres (TISCs)

  • 6 TISCs have been formed in various institutions in the country.

Q. Which of the following statements are correct?

  1. Compulsory licensing (CL) is when a government allows someone else to produce
    a patented product or process without the consent of the patent owner or plans to use
    the patent-protected invention itself.
  2. It is one of the flexibilities in the field of patent protection included in the WTO’s
    agreement on intellectual property — the TRIPS.
  3. When a CL is issued, the patent owner loses rights over the patent and need not be
    compensated for copies of the products made under the compulsory license.

a. 1 only
b. 1 and 2 only
c. 2 and 3 only
d. 1, 2, and 3

Answer: b. 1 and 2 only


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Shradha

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