Intellectual Property Rights: Problems and Privilieges

The Intellectual Property Rights (IPR) have gained worldwide prominence since the TRIPS agreement of 1995, which mandated that all the WTO-member countries accord to uniform patent laws. India is also a signatory of the TRIPS agreement and as such has to follow all the guidelines set down by it.

On one hand, IPRs is a boon for creators and innovators, but on the other hand, it is a bane for the less privileged, who have to bear the added costs of such exclusive products. In India, the less privileged, which includes illiterate and poor people, now have to face commodification of their skills, knowledge and products, due to the global patent regime unleashed since 1995. Hence, it is important to consider how the patent laws have impacted their innate occupations and life-essentials.

Problems with Indian Patent System

In the years from 2005 to 2012, only 59,998 patents were filed by Indian residents.[1] Compare this to China where over 2 million patents were filed by Chinese residents in the same period of time. The reason for this disparity is not the lack of expertise or creativity amongst us. However, we Indians relatively lack the basic awareness, resources and infrastructure which will help us in asserting our intellectual property rights.

In India, most of the products are patented by government-sponsored educational institutes and foreign multinational companies. We do not see many patents originating from individuals like an ITI (Industrial Training Institute) trained mechanic or electrician. Even if someone is able to invent a product, the multinationals, with their large purses, purchase such innovations. The individual inventors also, willingly or unwillingly, sell their patents to multinationals because of their financial considerations.

There are very many people whose creativeness goes unnoticed because they lack patent expertise or lack the funds required to hire expensive patent drafting services of lawyers or due to general unawareness regarding the patent laws in India. Poorly drafted patents also make it difficult for the Indian Patent Office to find suitable applications to grant the patent. In such a scenario, it would be better for individual innovators if the government could establish special patent offices for them, just like the consumer courts, where the patent granting process could be more speedy, easy and efficient.

A country’s ability to research and innovate has been adjudged based on its ranking on the intellectual property index, a survey conducted by the United States’ Chamber of Commerce (USCC). India has consistently maintained a lowly rank in this ranking. A major problem cited by the index has been that of weak IPR infrastructure.[2]

India lacks patent examiners, both qualitatively and quantitatively, which leads to pendency and protracted application examination periods. Hence, it is necessary that the government proactively fill up the vacancies by appointing qualified people, especially those who have undergraduate or post-graduate degrees in the field of law or science, and in addition open more patent offices across India.

Further, we don’t have enough qualified lawyers and judges to protect innovations. In western countries like the United States and the United Kingdom, it is common for patent lawyers to have science and law degrees. To produce patent lawyers with similar qualifications, we must train more people in the skill of drafting and obtaining patents, especially engineering and science graduates.

IPR & the Less Privileged

In a developing country like India, the multitudes of less privileged people often find themselves in the dilemma of having to choose between an original, legal copy and a pirated, illegal copy. The less privileged, bound by their circumstances, lean towards the latter. Even the courts have stood by their side, as we have seen in the Delhi photocopy case.[3]

However, a right balance must be sought between the knowledge of the creators and the users of such knowledge. Users must respect the intellectual property rights of the creators, but in circumstances where basic human rights of food, shelter and clothing aren’t respected, it would be a travesty to. People will respect others’ rights when they are situated in a position to do so. But for that to happen we need to have holistic economic growth in our country.

It is important that food and medicines are available to all people at low costs. We have sui generis laws like The Protection of Plant Varieties and Farmers’ Rights Act, 2001 which were enacted to safeguard the rights of breeders as well as farmers.  But we have seen that over the years the Indian farmer has been dependent upon high-yielding seeds “patented” by companies like Monsanto.[4] Such kind of commodification of agriculture is hurting our farmers who have to purchase seeds from such multinational companies at a far higher price. Hence, the government must evaluate whether and up to what level has the PPVFR act of 2001 given impetus to farmer-led and farmer-centric research. There is also a need to evaluate whether the act has supported and fostered the small-scale seed industries and helped preserve the traditional knowledge of farmers.

Similar is the case with the pharmaceutical industry, where most of the Indian pharmaceutical companies are engaged in producing generic medicines which are available after the patent protections given to the original developer expires. All these years the pharmaceuticals industry has avoided investing in R&D on the back of relaxed IPR laws and significant government backing.

The generic medicine producing Indian pharmaceutical industry has been protected by section 3(d) of the Indian Patents Act, 1970 which prohibits ever-greening of patents.[5] But there is strong pressure on the Indian government to tighten the IPR laws in this regard from countries like the USA who wants to help its pharmaceutical industry by driving out competition from Indian firms. So, if in the future the government succumbs to such external pressure or decides to enter into an agreement like the Trans-Pacific Partnership (TPP), which prescribes its members to harmonize their IPR laws to global standards, the pharmaceutical industry will be at loss, since it won’t have any original innovations of its own.

Increase in standards will also increase the costs of medicines. It will seriously affect the health of the less-privileged as they will not be able to afford the high prices of medicines set by the multinationals. A balance must be sought between IPR and creativity to stimulate research and development of vital medical technologies. As a first step towards this, the government could start competitive funding schemes to encourage speedy and cost-effective development of new medicines.

IPR is a necessity in the present age of globalisation. It is especially necessary for the preservation of traditional knowledge like those of the saree weavers in Pochampally, A.P. or the Kani tribal people in the tropical forests of southern-western India. Possessors of traditional knowledge are particularly more vulnerable to their products getting copied by firms in countries like China and in Southeast Asia. Their exploitation also stems from their penury, illiteracy and low social status. The government must suo moto take cognizance of such communities’ traditional knowledge and document it and help them in acquiring patents for their knowledge.

In India, it is important that right equilibrium must be sought between new patented technologies and people’s power to purchase those. The government must focus on fostering creativity among Indians through ingenious educational policies and inspire students to take risks and develop their innovative ideas. The government, through its “Start-Up India” campaign, could help such genuinely innovative ideas by providing financial backup.

[1] Dipti Jain, India’s Patent Problems, LIVE MINT, (November 24, 2014), available at http://www.livemint.com/Politics/LkKhP62yJrhSRJZDoqDIiN/Indias-patent-problems.html (Last Visited on August 12, 2017)

[2] Maintaining a tricky balance on IPR, LIVE MINT, (February 14, 2017), available at http://www.livemint.com/Opinion/Hqc2ySVux5AGfK3P797qfI/Maintaining-a-tricky-balance-on-IPR.html (Last Visited on August 12, 2017)

[3] The Chancellor, Masters and Scholars of the University of Oxford and Ors. v. Rameshwari Photocopy Services and Anr., 2016 SCC OnLine Del 5128.

[4] Harish Damodaran, GM technology: Trait fee war between Monsanto and Indian seed firms intensifies, THE INDIAN EXPRESS, (December 22, 2016), available at http://indianexpress.com/article/india/gm-technology-trait-fee-war-between-monsanto-and-indian-seed-firms-intensifies-4439264/ (Last visited on August 12, 2017)

[5] Section 3(d), Indian Patents Act, 1970.


ABOUT THE AUTHOR

Pratik Dixit

PRATIK PRAKASH DIXIT

Law Student pursuing BA LLB (Hons) at NLSIU, Bangalore. Interested in social and political issues.

 

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