India’s Intellectual Property Right Enforcement Woes

In about mid nineteenth century, Charles Dickens urged America, the then developing nation with difficult economy, to join the fight towards better international copyright system for literary works. It was a time when literary works were reprinted and sold unauthorised in America, depriving authors of royalty. He met with strong criticism from the American press.

Today, we see the prominence of Intellectual Property (IP) rights around the globe. With globalization and increase in trade, IP related issues are important while doing businesses between nations. Courtesy the developed nations of World Trade Organisation (WTO), all the member countries, have  IP laws in accordance to the standard laid down by agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) which came in effect from 1995. India with rapid economy change and huge consumer market caught business world’s attention and past decade has indeed witnessed better foreign trade and also effective increase in foreign patent applications. In recent times there has been criticism and apprehensions against India’s IP policies and also allegations that India discriminates against foreign patent applicants. A glance at data provided by India’s IP office last year regarding pharma patents substantiates that such unfitting allegations are overreactions and probably pressure tactics. As per the said data, out of the total pharma patents granted in India in the preceding 3 years about 77% were granted to the foreign drug makers.

As discussed in my previous blog article here , section 3(d) of India’s Patent Law has been the centre of international ire alongside the issue of compulsory license under sections 84 and 92. With rights come responsibilities. If a patent owner with 20 years long monopoly, wilfully or else, does not work his inventions satisfactorily  , specifically when it comes to healthcare system, in view to safeguard public interest, India’s Patent Law avails the flexibility under TRIPS and provides with provisions in favour of compulsory license, whereby certain parties are allowed to use or manufacture a patented product without the permission of the patent owner in exchange for a specified royalty. Under TRIPS, which provides flexibilities in order to prevent abuse of patent rights by the patentee (patent owner),each member country is free to determine the grounds upon which the compulsory licences are granted. In India subject to additional factors and strict process of law, compulsory license may be granted in following cases-

If reasonable requirement of the public has not been satisfied or,

If patented invention is not available to the public at a reasonable affordable price or,

If the patented invention is not worked in India or,

In a case of a national emergency.

In March 2012, Natco Pharma Ltd. was granted India’s first compulsory license to produce Bayer Corporation’s cancer drug “Nexavar” .The decision which although in full compliance with domestic as well international law, sparked international criticism, with strong observations against it. It was presumed that India jumped on the bandwagon of granting compulsory licenses. Two years have since passed with no further grant of compulsory license and applications not complying with strict criterias mandatory to grant have been rejected.

To be at par with developed nations in enforcing IP rights, is a challenge for developing nations. Overburdened with socio economic problems, India is striving hard to sustain as well grow. In a country with high poverty and illiteracy rate, where many are not only unaware of their rights but completely oblivious that they have any right at all, it would be a mammoth task to spread awareness towards IP rights at ground level including small urban and rural India.

The real issue which does demand immediate further attention are counterfeit products in the market. It is important to prevent legitimate businesses of brand owners from suffering loss and strict actions against producers and marketers of counterfeit products is necessary. Better knowledge on IP Rights amongst people as well police is needed, since the duplicate product market is now more sophisticated, it is often difficult to distinguish between genuine and duplicates. IP owners, whether patent, trademark, copyright or design need to be vigilant and keep an eye on market against current or potential infringements. Ideally police should not wait for requests to take action against infringers, but in practice such is not the case and brand owners have to play a very active role in the whole process to ensure appropriate actions against the law breakers . Serious efforts are required in sensitizing judiciary and police to treat IP infringements at par with other serious offences

As put in by Leo Tolstoy, “Writing Laws is easy but governance is difficult…” , to have a favourable IP legislation is job only half done, it is important to strengthen all mechanism crucial in the process of enforcement. It is rather difficult for India’s already stretched resource of police and judiciary to allot special attention to IPR enforcement. Increase in infringement cases are indicative of the fact that strong police attention is required along with zealous efforts on the part of government in allocating better resource towards spreading IP awareness and strict implementation of IP laws.