Question Bank

May 17, 2016 @ 3:00 am
Question Bank

17th MAY 2016


(1 Question)

Answer questions in NOT MORE than 200 words each. Content of the answer is more important than its length.

Links are provided for reference. You can also use the Internet fruitfully to further enhance and strengthen your answers.



1.    The new National Intellectual Property Rights (IPR) Policy of India aims at balancing promoting innovation and access. How can this be ensured? Elucidate.

Finance Minister Arun Jaitley released India’s National Intellectual Property Rights (IPR) Policy recently. The Policy which is in compliance with WTO’s (World Trade Organisation) agreement on TRIPS (Trade Related aspects of IPRs), aims to sustain entrepreneurship and boost Prime Minister Narendra Modi’s pet scheme ‘Make in India.’

Here are the highlights:

  • The Policy aims to push IPRs as a marketable financial asset, promote innovation and entrepreneurship, while protecting public interest.
  • The plan will be reviewed every five years in consultation with stakeholders.
  • n order to have strong and effective IPR laws, steps would be taken – including review of existing IP laws – to update and improve them or to remove anomalies and inconsistencies.
  • The policy is entirely compliant with the WTO’s agreement on TRIPS.
  • Special thrust on awareness generation and effective enforcement of IPRs, besides encouragement of IP commercialisationthrough various incentives.
  • India will engage constructively in the negotiation of international treaties and agreements in consultation with stakeholders. The government will examine accession to some multilateral treaties which are in India’s interest, and become a signatory to those treaties which India has de facto implemented to enable it to participate in their decision making process, the policy said.
  • It suggests making the department of industrial policy and promotion (DIPP) the nodal agency for all IPR issuesCopyrights related issues will also come under DIPP’s ambit from that of the Human Resource Development (HRD) Ministry.
  • Trademark offices have been modernised, and the aim is to reduce the time taken for examination and registration to just 1 month by 2017. The government has already hired around 100 new examiners for trademarks. Examination time for trademarks has been reduced from 13 months to 8 months, with the new target being to bring the time down to one month by March 2017.
  • Films, music, industrial drawings will be all covered by copyright.
  • The Policy also seeks to facilitate domestic IPR filings, for the entire value chain from IPR generation to commercialisation. It aims topromote research and development through tax benefits.
  • Proposal to create an effective loan guarantee scheme to encourage start-ups.
  • It also says “India will continue to utilise the legislative space and flexibilities available in international treaties and the TRIPS Agreement.” These flexibilities include the sovereign right of countries to use provisions such as Section 3(d) and CLs for ensuring the availability of essential and life-saving drugs at affordable prices. (The 301 report of USA attacks section 3(d) of the Indian Patent Act. US Special 301reports investigations on other countries’ IPR regimes and India has been continuously put on the `priority watch’ list of countries with ineffective IP protection.)
  • The policy left the country’s patent laws intact and specifically did not open up Section 3(d) of the Patents Act, which sets the standard for what is considered an invention in India, for reinterpretation.
  • On compulsory licensing (CL), India has issued only CL for a cancer drug. Mr. Jaitley said, “We rarely exercise this power.” The statement assumes significance as developed countries, including the US, have raised concerns over India issuing the CL. As per the WTO norms, a CL can be invoked by a government allowing a company to produce a patented product without the consent of the patent owner in public interest. Under the Indian Patents Act, a CL can be issued for a drug if the medicine is deemed unaffordable, among other conditions, and the government grants permission to qualified generic drug makers to manufacture it.
  • The IPR policy favoured the government considering financial support for a limited period on sale and export of products based on IPRs generated from public-funded research.

A critique of the New IPR policy:

Intellectual property (IP) regimes suffer a classic paradox. While they attempt to encourage innovation and creativity, they have themselves been shielded from innovation experimentation. For some years now, India has been attempting to break this mould and craft a regime to suit its own distinctive set of concerns. Section 3(d) of the Patents Act, 1970, was a bold attempt in this direction, aimed at eradicating “evergreen” drug patents.

While IP could accelerate innovation in certain technology sectors, it impedes innovation in others. This is a truth touted not only by those labelled as left-liberal ideologues, but powerful industry giants facing the brunt of a promiscuous patent regime – renowned giants such as Tesla’s Elon Musk who have either eschewed patents or dedicated them to the public domain.

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 – and that their promotions be predicated on the number of IP applications made. A hark back to the past would reveal that visionary scientists such as Benjamin Franklin and, closer home, our own J.C. Bose shunned patents owing to their potential to curb the free flow of knowledge. We must encourage a plurality of approaches when it comes to IP and innovation; our scientists should be free to take this call on whether or not they wish to register IP. Doing so for the mere sake of it is stupid, quite apart from the fact that on an empirical cost-benefit analysis, most U.S. universities lose more money on IP registrations than they make through IP royalties.

The policy needs to be commended for taking note of our “informal” (rural) economy and the need to encourage the prolific creativity found within. Unfortunately, far from understanding the drivers of creativity and the modes of appropriation/sharing in this “shadow” economy, the policy leans towards the superimposition of a formal IP framework on this marginalised sector.

Lastly, much in line with its powerful IP rights-centric approach, the policy recommends that the unauthorised copying of movies be criminalised. No doubt Bollywood requires some protection from pirates, but criminalising what is essentially a civil wrong (much like defamation) is tantamount to killing an ant with an elephant gun, not to mention the potential for abuse at the hands of our police.

Granted, India is lagging on several counts. When compared with its glorious past boasting pioneering innovations from the likes of Sushruta (the father of modern surgery) and Nagarjuna (metallurgy), India has hardly had any noticeable technological marvels in its recent history.

The policy advocates that IP be taught in schools and colleges. But why? What we need in schools and colleges are courses on creativity, not on IP. Even if we lack resources to impart specific courses on creativity, let’s at least ensure that we don’t stand in the way of a natural flowering of creativity in our children. A truth tellingly captured by Mark Twain’s sentiment: “I have never let my schooling interfere with my education.” And one that is now being controversially tested by Peter Thiel (PayPal’s legendary founder) who pays college students to drop out of college and run risky ventures.

Unfortunately, notwithstanding some of its praiseworthy proposals, such as expedited examination, an IP exchange and the proposal to encourage Corporate Social Responsibility funds into open innovation, this much-awaited IP policy is terribly short-sighted.

Many decades ago, a two-member committee (headed by Justice N.R. Ayyangar) conceptualised a patent policy that formed the blueprint of the present patent regime. It was one that triggered the remarkable growth of our pharmaceutical industry, enabling it to earn the moniker “pharmacy of the world“. It was a policy that was thoroughly researched, empirically validated and elegantly written in a little over a year.

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