Intellectual Property Rights

- Vejay
What is IPR?
Globalized scenario of expanding multilateral trade and
commerce, it has become inevitable for any country to protect its
intellectual property by providing statutory rights to the
creators and inventors and thus help them fetch adequate
commercial value for their efforts in the world market.
How IPR works ?
Apple have patent rights for each and every product of it, even for
its icons in the OS, so if Samsung copy (hell knows Samsung
always copying it) apples design, Apple can try it in court and can
get huge amount as compensation. (It actually happened, just
google it, it will be interesting to read)
Why we need IPR?
Neem the natural product that we are using from ancient times.
Suddenly an MNC Pharma company proclaimed that we are the
first to use Neem for medicinal purposes. That means here after if
our small Ayurveda pharma companies uses Neem for any
medicinal purposes or any mosquito repellants they have to pay
for using it and get royalty for the Neem which is growing in their
lands from the MNC Company.
So, MNC is wrong? No.
Then Our Ayurveda Pharma? No.

Then who?.

Its our government, When we open our market for Foreign

companies we should have a proper IPR policy and patent frame
work. So, that MNCs will R&D and commercialize their products
according to that.
So, We didnt have an IPR?. No.
We are forefathers of IPR. Thanks to British.
In 1911 itself, we had a patent legislated in world standard.
Lets take one issue of IPR..
So, whats the current issue?
India, in order to improve the domestic pharma industry abolished
patents on pharma during 1970s. It means, anybody can develop
any medicines and can copy anyones chemical combinations. Ex:
a Paracitamol by the US MNC can be reverse engineered in India
without any fear from penalties by external world and Indian
government.
Why Indian government abolished it?

MMR(Maternal Mortality Ratio) was high, it was mapped to an

undeveloped nation. We cant depend on foreign companies for
drugs. Huge import of drugs -> needed more Forex -> Borrowing
-> CAD (Current Account Deficit) -> BOP(Balance of Payment).
Poor couldnt afford generic medicines.
So, only way -> Abolishing Patents for Pharma.

Reverse Engineering -> Breaking a tablet, analyzing its

ingredients and shamelessly copying it and packing it with made
in India.

Is it wrong?.
No! How? Continue reading.

Result:

India -> hub for generic drugs, even US importing our drugs
because of their costlier drugs. Worlds Top 6 drug manufactures
in Top 10 is from India.
Happy? , anyone can copy anything? , then how a creator will be
encouraged if his product is copied and used without paying
royalty to him?.
How the MNCs will be encouraged to invest hugely on
discovering new medicines or new innovations if everyone copy
their products easily?

After all, we also started innovating, we need to protect

our inventors interest before other countries counterfeit
our product.

LPG -> Multi lateral Trade increases in world

nations.

WTO Created to govern the global Trade:

WTO enacted TRIPS -> Trade Related Intellectual Property
Rights.
India as a founding member of WTO has ratified the Agreement
on Trade Related Intellectual Property Rights (TRIPS). As per
the agreement, all member countries including India are to abide by
the mutually negotiated norms and standards within the stipulated
timeframe. If any country violated TRIPS then it can be punished
with penalties and sanctions, i.e a simple violation of state
recognized and unrecognized products which a foreign country/MNC
holds a patent.
Accordingly, India has set up an Intellectual Property Right
(IPR) regime, which is WTO compatible and is well established at
all levels whether statutory, administrative or judicial
OMG, then No more Generic medicines?, how could poor afford
medicines?, what about our traditional rights like using neem,
ginger, Ayurveda plants for medicines and cooking purpose?
Dont worry, here comes the flexible provision in TRIPS,

Government can issue compulsory licenses to manufacture

drugs/products that are deemed unaffordable to large sections of
people and it is needed for the welfare of the people.
Thats why India signed TRIPS. Is it violating the rights of patent
holder? .
Then what principle the TRIPS made this provision?
Because,

Naalu perukku nalladhu na edhuvum

thappu illa :P
Actually the reason was to support the Least Developed and
developing countries and upliftment of their society.

Ministries and Their respective departments regarding

patent:
1.Ministry of Commerce and Industries
Department of Industrial Policy and Promotion-----> 'Controller
General of Patents, Designs and Trade Marks (CGPDTM)' has been
set up.
It looks after -> patents, designs, trademarks and geographical
indications

2.Ministry of Human Resource Development

Department of Education ----> 'Copyright Office' has been set up to
provide all facilities including registration of copyrights and
its neighboring rights.
3.Ministry of Information Technology
Department of Information Technology' ---> take care issues relating
to layout design of integrated circuits.
4.Ministry of Agriculture
Based on Plant Varieties and Farmers Rights Act, 2001
'Protection of Plant Varieties and Farmers' Rights Authority' in
administers all measures and policies relating to plant varieties.Ex:
Ginger,Neem.

Now lets see some Issues between India and US in IPR regime.
Since, these facts are available in mrunal, I limited the facts (have a
look at mrunal.org/IPR to know about the issues, he explained
lucidly)

Issue 1: Novartis Vs Govt of India.

Novartis Swiss company, had patent of Glivec -> a cancer drug.
According to TRIPS, a drug manufacturer can hold its patent rights
till 20 years only. After that any company can reverse engineer it
for the welfare of the people. But after 20 years, Novartis did some
changes in chemical combination of the drug and asked patent for
another 20 years (this is called Ever greening).
India rejected it, our Patents act prohibits Ever greening. Our SC
upheld the GOIs rejection.

Issue 2: Compulsory licensing (remember TRIPS)

Judgment:

NEXVAR

Nexvar = German Company Bayer Pharmas Patented drug for

liver & kidney cancers.
2008: Bayer got patent in India. Its 120 tablet pack costs more
than 2.5 lakh rupees. Indian govt asked to set a manufacturing
plant in India since there was huge demand for this drug in India,
because of importing huge and tariffs , the drugs prices inflated,
if you manufacture in India then price of the drug will reduce and
our people can afford it. But Bayer refused because they couldnt
afford to invest in India.
2012: NATCO Pharma (Hyderabad) sought permission to produce
generic version of the same drug Sorofenib Tosylate, to sell at
cheap price.
Bayer took case to SC->
SC ,ordered NATCO to pay 6% royalty for Bayer and upheld the
validity of NATCOs generic version drugs. The historic judgment
in a welfare nation.
So, MNCs didnt have any route other than lobbying.

During Modis visit Obama had shown his concern about our laws
and asked to facilitate MNCs.
A panel set up by "Ministry of Commerce and Industry" -> 6
member panel -> headed by retired justice "Prabha Sridevan" ->
will draft IPR policy
The draft is yet to come.

Favored arguments:
MNCs are birth place of innovation, they are the ones who spend
crores of money in R&D and developing lifesaving drugs. If we
make legislations like this then they wont show any interest
towards R&D.

Anti-Arguments:
India is abiding TRIPS and it is not going against TRIPS and
international laws. We cant go by whatever law US enacts.
We should not dilute our patent laws, because not only our people
but also the people of least developed countries depends on our
generic medicines.
So, lets talk in a forum, so Trade Policy Forum talks going on
between Indian and US delegates.

Why we need policy?

MNCs couldnt track all our patents provisions that are scattered
in many legislations. Our patent rights approval mechanism for
different products vested with different ministries as seen above.
And for a nation that need to become super power must protect

its intellectual properties against other MNCs. So, we need IPR

policy, a single document for all our IPR issues and procedures.
Some analysis on our IPR:
China started its IPR regime in 1995, but it is leading world
nations in patent holdings including patent rights in foreign
countries.
IP is the real wealth of the nation.
We are lagging behind US by 100 years not in monetary
terms but in Intellectual assets, it will take minimum 100
years to develop our scientific society equal to US.
Currently we are spending huge amount for defense
procurement and fertilizers, everything is a technology that
India didnt have. So it increases our CAD and make us
dependent on a foreign nation.
We are at 76th place in Global Innovation Index.
What we are lacking?
We are good at inventing but not in implementing. A single newly
innovated product takes 5 to 10 years to get patent and
commercialize in market, by that time it becomes out dated.
Our R&D are lacking of fund and facilities, we have cheap skilled
labors and scientists. Many Think tanks and Premier institutions
are ready to research but what they need is sponsorship and
encouragement .If we develop our own drugs then we no need to
negotiate with MNCs for patents and our relationship with US is
degrading because of this issue.

Needed high quality basic and higher education for our people,
this is the only way to develop an intellectual society that
develops scientific temper according to our DPSP. Indian students
are not competitive enough in science and humanity field,
government should encourage students take up science and
humanity in their higher education.

Innovators must be recognized on time, else it will lead to Brain

Drain.
Patents should be granted with in a stipulated time frame else,
the innovators hard work go in vain.

Recent initiatives by GOI:

In make in India , Technology acquisition and Development
Fund -> to pool IPR's which can be used by SME's to get
technologies by paying royalties at low cost. So, even small scale
industries can access new technologies and improve their product
and process using these IPRs which they couldnt afford on their
own and SMEs will be linked to local higher educational
institutions so that students can do their final year projects in
these SMEs and there by SMEs could get cheap research projects
and students also can develop their knowledge practically.

Thus IPRs create confidence in innovators and encourage them to

innovate more and commercializing it in a fair manner will lead to
welfare of the people and create a knowledge society and
increase our National income with more productivity per labor
input, if we keep on innovating new technologies and
implementing them.

Inspired from:
https://www.techdirt.com
http://mrunal.org/
Yojana and The Hindu.

Point added by Governance Sir:

Brown fielding: The MNC companies currently buying our
generic drug companies and dismantling or reducing their
research capacity and investment in such a way they could
outfield the competitors.

Hope you enjoyed it!!!

Thank you!!!
Regards,
Vejay.

Later Added:

PATENT:
Definition and significance :

A patent is granted for an invention which is a new product or process,

that meets conditions of novelty, non-obviousness and industrial use.
Inventive step is the feature(s) of the invention that involves technical advance
as compared to existing knowledge and that makes the invention not obvious
to a person skilled in the art. Industrial use means that the invention is
capable of being made or used in an industry.
Ministry administering the IPR:

Department of Industrial Policy and Promotion,

Ministry of Commerce & Industry

Concerned IP Act :

The Patents Act, 1970 (as amended in 2005)

DESIGN :
Definition and significance :

A design refers only to the features of shape, configuration, pattern,

ornamentation, composition of colour or line or a combination thereof, applied
to any article, whether two or three dimensional or in both forms by any
industrial process or means which, in the finished article, appeal to and are
judged solely by the eye.
Ministry administering the IPR :

Department of Industrial Policy and Promotion

Ministry of Commerce & Industry

Concerned IP Act :

Designs Act 2000

TRADE MARK:
Definition and significance :

A Trade Mark can be a device, brand, heading, label ticket name,

packaging, sign, word, letter, number, drawing, picture, emblem, colour or
combination of colours, shape of goods, signature or a combination thereof.

A trademark means a mark capable of being represented graphically

and which is capable of distinguishing the goods or services of one
undertaking from those of other undertakings, shall be capable of constituting
a trademark.
Ministry administering the IPR :

Department of Industrial Policy and Promotion

Ministry of Commerce & Industry

Concerned IP Act :

Trade Marks Act 1999 (as amended in 2010)

GEOGRAPHICAL INDICATIONS:
Definition and significance :

A geographical indication identifies agricultural or natural or

manufactured goods as originating or manufactured in the territory of a
country or region or locality in that territory, where a given quality, reputation or
other characteristic of such goods is essentially attributable to its geographical
origin and in case where such goods are manufactured goods one of the
activities of either. The production or of processing of preparation of the
goods concerned takes place in such territory, region, or locality as the case
may be.
Ministry administering the IPR :

Department of Industrial Policy and Promotion

Ministry of Commerce & Industry

Concerned IP Act :

The Geographical Indications of Goods (Registration & Protection) Act,

1999

COPYRIGHT :
Definition and significance :

Copyright is a right given by the law to creators of literary, dramatic,

musical and artistic works and producers of cinematograph films and sound
recordings. In fact, it is a bundle of rights including, inter alia, rights of
reproduction, communication to the public, adaptation and translation of the
work.
Ministry administering the IPR :
Ministry of Human Resource Development The Copyright Act, 1957
Concerned IP Act :

The Copyright Act, 1957 (as amended)

PLANT VARIETY PROTECTION :

Definition and significance :

Protection granted for plant varieties, the rights of farmers and plant
breeders and to encourage the development of new varieties of plants.
Ministry administering the IPR :

Department of Agriculture and Cooperation

Ministry of Agriculture
Concerned IP Act :

The Protection of Plant Varieties and Farmers Rights (PPV&FR) Act,

2001

SEMICONDUCTOR INTEGRATED CIRCUITS LAYOUTDESIGN :

Definition and significance :

The aim of the Semiconductor Integrated Circuits Layout-Design Act

2000 is to provide protection of Intellectual Property Right (IPR) in the area of
Semiconductor

Integrated Circuit Layout Designs and for matters connected therewith

or incidental thereto.
Ministry administering the IPR :

Department of Electronics and Information Technology

Ministry of Communications and Information Technology

Concerned IP Act :

Semiconductor Integrated Circuits Layout-Design Act, 2000