India's research and development has grown significantly in today's intellectual era. The presence of well-established state-of-the-art labs of both Indian and multinational corporations in the country has clearly demonstrated India's IP status in the world. The rise of the Indian economy is a clear result of the country's Intellectual Property (IP) influence.
As a developing country, India has made significant strides in competing for Trade Related Intellectual Property Rights (TRIPS) agreements and compliance with US and European Intellectual Property Rights (IPR) structures. The twenty-first century can be referred to as the century of technology, knowledge, and, in fact, the intellectual regime. The country's ability to translate knowledge into wealth-creating innovation will determine its future. Thus, innovation is thought to be the key to transforming knowledge into wealth. As a result, issues concerning the generation, evaluation, protection, and exploitation of intellectual property (IP) would become critically important all over the world.
Nature of IPR:
IPRs are territorial rights that have a fixed term and can be renewed after a specified time period as specified by law by paying official fees. Trade secrets, on the other hand, have an infinite life and do not need to be renewed. Aside from that, trade secrets can be assigned, gifted, sold, or licenced in the same way that any other tangible property can. Unlike other types of moveable and immovable property, these rights can be held in multiple countries at the same time. IPR can only be held by legal entities, i.e., those with the legal right to sell and buy property. In contrast, no non-autonomous institution has the right to own intellectual property. These rights are safeguarded by the sections and rules that govern them.
Development of IPR in India:
Previously, when IPR was in its early stages, a number of issues arose concerning its implementation, policies, Act/Rules, financial and governmental support. Previously, companies and inventors were also unaware of IPR, so the risk of infringement was high. Without a healthy system, companies were unwilling to conduct R&D in India. This resulted in the death of inventions, a high risk of infringement, economic loss, and the decline of a country's intellectual era.
Keeping all of the aforementioned issues in mind, India has taken significant steps to strengthen IPR in the country. The first Indian Patent Law, for example, was enacted in 1856. Furthermore, the Indian patent system modified it from time to time.
Following independence, a new patent law was enacted in the form of the Indian Patent Act 1970. It was later amended to comply with the TRIPS provision. Amendments to IPR were made recently, in 2005. While the amendments were being drafted, India joined the Paris Convention, the Patent Cooperation Treaty, the Budapest Treaty, and finally signed the TRIPS agreement in order to comply with international and Indian standards. India recently signed the "Madrid Protocol," which expands the applicability of trademarks in 89 countries. Furthermore, interest in this field is growing among Small and Medium Enterprises (SMEs), Indian industries, technologists, scientists, and inventors. On a large scale, a growing number of research-oriented individuals are filing their inventions. A growing number of foreign companies are establishing in-house R&D centres in India, indicating the country's IPR influence.
Aside from that, the country's first Compulsory License (CL) against the Bayer cancer drug "NEXAVAR" highlights the Indian IPR regime on a global scale. This CL provides a ray of hope to Indian Pharma INC, which was previously incapable of producing life-saving drugs and is now able to do so at a very low cost. The nature of CL boosts the country's health industry. As a result, high-end drugs can be manufactured and distributed to patients at a very low cost, indicating a disease-free society. According to a recent survey, the number of trademark and patent filings has increased 20 times over the previous years.
Despite the above accomplishments, our IPR system is still in the implementation stage. The Indian government's ongoing efforts propel the intellectual regime forward, but more efforts are needed to overcome the obstacles that prevent IPR from reaching international standards.
Indian Regime and IPR:
A knowledge-based product requires protection in order for companies' R&D investments to be justified. It has been observed that developing countries, such as India, provide inadequate intellectual property protection. India acknowledged the case for strict IPR protection in principle, but this could only be done in phases appropriate to its own ground reality. The reality is that the absence of international IPR protection for decades has resulted in millions of jobs, so an overnight crackdown on IPR violators would exacerbate social unrest.
This has made things difficult for companies investing in or willing to invest in research and development. India has lagged in developing relevant legislation, making it difficult to protect the country's biodiversity. We have a wealth of traditional knowledge and products in the public domain that must be adequately safeguarded. The Basmati controversy clearly demonstrates the importance of having strict intellectual property laws. Ricetec could not have branded its rice as ‘basmati rice lines and grains' if the Geographical Indication Law had been in place, as the law would have protected basmati on the basis of geographical indication, as France and Scotland did for Champagne and Scotch many years ago.
As globalisation expands, it increasingly includes the sharing, utilisation, and enjoyment of intellectual property (IP) products such as inventions, designs, books, and so on. India is quickly becoming a technology-producing country, particularly in the fields of biotechnology, information technology, and pharmaceuticals. As a result, the creation of a strict and tenacious IPR system is an urgent requirement. Keeping this emergency in mind, Indian corporations are responding positively to TRIPS by increasing R&D expenditures. In addition, the following work has been done in this direction by the government and legislation in order to provide a strong Intellectual Property protection system.
Legislative Developments in IPR:
Copyright: The Copyrights Act of 1957, as amended by the Copyright (Amendment) Act of 1999, fully implements the Berne Convention on Copyrights. Furthermore, India is a signatory to the Geneva Convention for the Protection of Phonogram Rights and Procedures, as well as the Universal Copyright Convention. India is also a member of the World Intellectual Property Organization (WIPO) and the United Nations Educational, Scientific, and Cultural Organization (UNESCO). The copyright act has been a source of contention. The copyright act has been amended on a regular basis to keep up with changing requirements. The most recent amendment has brought the copyrights law up to date with advancements in satellite broadcasting, computer software, and digital technology. For the first time, the amended law includes provisions to protect performers' rights as envisioned by the Rome Convention. On the other hand, several measures have been put in place to strengthen and streamline the enforcement of copyrights. These measures include the formation of a Copyrights Enforcement Advisory Council, training programmes for enforcement officers, and the establishment of special policy cells to deal with cases involving copyright infringement.
Trademark: In terms of trademarks, the TRIPS agreement states that the initial registration of trademarks, as well as each renewal of registration, must be for a period of at least seven years. The registration shall be renewable indefinitely. Compulsory trademark licencing is not permitted. With the TRIPS agreement, changes in trade and commercial practises, globalisation of trade, and the need for simplification and harmonisation of trade mark registration systems in mind, a comprehensive review of the Trade and Merchandise Marks Act, 1958 was conducted, and a Bill to repeal and replace the act was passed by parliament. This amendment not only makes the Trademarks Act TRIPS-compliant, but also aligns it with international systems and practises.
Geographical Indications: The TRIPS agreement includes a general obligation that parties (countries) provide the legal means for interested countries to prevent the use of any means in the designation or presentation of goods that indicates or suggests that the good in question originates in a geographical area other than the true place of origin, in a manner that misleads the public as to the geographical origin of the goods. The agreement imposes no obligation to protect geographical indications that are not protected in their country of origin or have fallen out of use in that country. The Geographical Indications of Goods (Registration and Protection) Act 1999, a new law for the protection of geographical indications, has also been passed by parliament.
Industrial Design: responsibilities The TRIPS agreement provides that independently created designs that are new or original shall be protected in respect of industrial designs. Individual governments have the option to exclude designs dictated by technical or functional considerations from protection, as opposed to aesthetic considerations, which constitute the coverage of industrial designs. When such acts are undertaken for commercial purposes, the right holder has the right to prevent third parties who do not have his consent from making, selling, or importing articles or embodying a design that is a copy or substantially a copy of the protected design. The duration of protection must be at least 10 years.A new law repealing replacing The Designs Act, 1911 has been passed by parliament in the budget session, 2000 and was enforced in 2001.
Patents: The fundamental obligation in the field of patents is that inventions in all branches of technology, whether products or processes, are patentable if they meet the three criteria of being novel, involving an inventive step, and being capable of industrial application. Members may also exclude from patentability diagnostic, therapeutic, and surgical methods of treating humans, animals, and plants, other than microorganisms and essentially biological processes for plant and animal production. The TRIPS agreement stipulates a minimum term of protection of 29 years beginning with the date of filing. Articles 70.8 and 70.9 of the TRIPS agreement have already been implemented by India. A thorough review of the Patents Act of 1970 was also conducted, and a bill to amend it was introduced in parliament on December 20, 1999, making the patent law TRIPS compatible.
Challenges in IPR:
Today, intellectual property rights (IPR) play an important role in every sector and have become an important aspect of research for pharmaceutical and research-oriented industries. The government's ongoing efforts in policy establishment, IT protection, infrastructure, IPR search portals, and manpower have propelled this industry forward. Despite all of its accomplishments, our industry continues to face difficult challenges not only on a domestic but also on an international level. To begin with, IPR in India lacks roots in remote areas, despite the fact that such areas are thought to be a hotbed of inventions. Many people are still unaware of IPR and the benefits of acquiring rights to their intellectual property. In such cases, the government should raise awareness of intellectual property rights (IPR) in such remote areas. A large number of awareness camps and educational hubs must be organised to provide skilled knowledge transfer among inventors. Second, a legal issue is important in the country's IPR situation.
Today, various trademark and patent infringement cases are gaining prominence in the country's legal history. In light of the increased number of IPR cases, a skilled team of legal professionals (Judges, advocates) and IPR professionals is required. Aside from the aforementioned issues, TRIPS flexibility is another topic to be discussed here. Previously, there was a risk of a healthy Patent protection provision in India when the Indian Patent system was not in compliance with TRIPS. However, the situation has completely changed today. India is now a member of the TRIPS agreement, and our patent system complies fully with the TRIPS. Even though the Indian Patent Act contains all TRIPS flexibilities, the relevant provisions, particularly those relating to patent protection, compulsory licencing, and government use, require fine tuning.
Over the last decade, efforts have been made to complete critical amendments to the Patent Act of 1970, laying the groundwork for a fully functional patent system. The current regime's IPR influence is heavily influenced by its awareness and intellect. Various important steps have been taken in the current scenario to bring IPR to a new level of compliance with the USPTO, EPO, and other countries' IPR regimes, and it was believed that more steps needed to be taken. Furthermore, many people are still unaware of IPR and the benefits of acquiring rights to their intellectual property. In such cases, the government should raise awareness of IPR in outlying areas.
1st Year, LL. B
Law Centre II, Faculty of Law.