Inadequacies of Indian Industrial Property Rights
Regime.
Authors: Adv.
R. Muralidharan[1],
Advocate and Mediator, Patent & Trademark Attorney, Manu Associates,
Bangalore and Ms. Anupama S Pillai,
Advocate, Manu Associates, Bangalore.
1. Indian IPR policy
On
12th May 2016, Department of Industrial Policy & Promotion, Ministry
of Commerce & Industry, Government of India published the National
Intellectual Property Rights Policy 2016 and it was approved by the Cabinet on
13th May 2016. The Policy is the brain child of a 6 member Committee,
the Think-Tank - headed by Justice Prabha Sridevan, a former judge (Madras High
Court) and former chairperson of the Intellectual Property Appellate Board
(IPAB). Other members of the Think Tank are :- Prathiba Singh [Senior Advocate];
Punita Bhargava[ Advocate, Inventure IP] ; Unnat Pandit, [Cadila
Pharmaceuticals]; Rajeev Srinivasan, [Director, Asian School of Business]; and
Narendra Sabharwal, [Retired DDG, WIPO].
While
the current members are accomplished, knowledgeable and persons of integrity,
the Think Tank did not include a possible representation for foreign applicants
who file the maximum number of patent applications in India. After all, one
must recognize that the Patent system is primarily meant to protect public
interest; this demands respect for IP Rights. In today’s scenario, most of the
Applicants (above 80%) are of Foreign origin. Some of them, particularly those
belonging to the U.S. have complaints and they occasionally become subjudice
before International forums and sovereign institutions regulating
global trade policies. Hence, the Think Tank should
be broader based, and include representatives from the Foreign/Indian
commercial entities which spend substantial money
on research and development.
2. New Organizational Structure for IPR Regime Administration
As
of now, IPR Administration in India comes under the ambit of different
Ministries of the Union of India. For example, Patent Design and Trade Marks
Office is an Independent Statutory Functionary coming under the Ministry of Commerce and Industry. The
Copyright Office comes under the Ministry of Human Resource Development.
Protection of Plant Varieties and Farmers Rights comes under the Ministry of Agriculture.
Topography of Integrated Circuits Act Registration comes under Ministry of Communications
and IT. This is not conducive to the promotion of an IPR culture. It is
necessary to have a full-fledged Department of Industrial Property, headed by
some of the IPR Cadre Officers, which will exercise overall control of
administering IPR Regime in India. The proposed department of Industrial
Property can draw people from the legal profession and include/consist of
people from the other IPR departments who are currently administering the regime.
Ensuring that this Independent organizational structure is headed by a Joint
Secretary or a Secretary is absolutely necessary to minimize conflicts that
will be inherent in any multidepartment control.
3.
Do we need New Additional Legislations in IPR?
About
30 years ago, an IPR law student in India studied only Patent, Trademark, Copyright,
and Design. Today, in addition to the above classical IPR, the curriculum
includes Geographical Indications, Protection of Plant Varieties and Farmer’s
Rights, Semi-Conductor Chips, Trade Secrets, and Valuable Commercial
Information under Common Law. But, in India we do not have some types of IPR
which other countries have found to be useful and hence, are today, a part of
their IPR System. These are:
a) Law
of utility model:
These
are peculiar to Continental and Civil Law countries. They are different from
patent in that they do not insist on ‘Inventive Steps’. But, like Patent,
they insist on Novelty, Utility, and Statutory Subject matter. The applicants
should themselves do a bonafide search on novelty and make a declaration. They
have a reduced span of protection. These are not available for process but only
for products. Normally, for products having a design element, Applicant applies
for both Patent and Utility Model Protection. The grant occurs within 6 to 9
months of the application as there is no preceding examination. The Applicant
opts for Patent Protection if there is a favorable Examination Report on
Inventive step in their patent application. This protection is particularly
best suited to grass root rural inventors who may have satisfied the
requirement of Novelty, Utility, and Statutory Subject matter but not inventive
steps. In fact, Industrial Commercial Organizations of India have been
demanding the introduction of Utility Model System. It is gratifying to note
that the Think Tank has recommended the enactment of Utility Model protection.
b) Pharma
focused new generation of IPR:
Nowadays,
there is a mind block, bordering on prejudice, relating to the health care
inventions. We have the words of Madam Indira Gandhi, at WHO, that the
inventions relating to human and animal health must be freely available to all,
unfettered by commercial monopoly. Current Indian Patent Law implements the
letter and spirit of Mrs. Gandhi’s wishes. However, in the interests of the
Indian Pharma Industry, it is time that we consider whether we should have the
following new generation IPR as part of our IPR system: -
I.
Data Exclusivity:
Introduction
of a new drug or a new combination of earlier approved drugs requires Marketing
Approval from Drug Controllers around the world. It is estimated that often,
the cost of obtaining regulatory approval is between 5 to 10 times the cost of
generating new molecules. In the course of obtaining regulatory approval the
companies spend a lot of money on research relating to the method, conduct of
clinical trials, analysis of data, etc. In the U.S.A., the results are
protected under Hutch-Waxman Act and Europe also provides for similar
protection. If Indian Companies are going to develop new molecules as opposed
to the present generic drug business, the enactment of data protection laws in
India may be absolutely necessary.
In
this connection Satwant Reddy Committee[2]
recommended enactment of laws in India for the protection of Data Exclusivity
under patent laws. However, the above committee had recommended a much-watered
down version in comparison with global peers.
II.
Orphan Drug/Generic/Pediatric/Exclusivities:
U.S.
Laws provide 5 years protection for the Orphan Drugs i.e. for drugs meant for
rare diseases having fewer patients and Generic Exclusivity of 120 days for
those who introduce a new cheaper generic drug in place of patented medicine to
substitute the more expensive Patented Drug, Pediatric Exclusivity, etc. If
Indian Pharmaceutical Industry is to grow in a vibrant way and if India aspires
to become a supplier of research developed drugs, to the world, the Think Tank
should necessarily consider whether these types of rights are desirable in the
present Indian context.
III.
Traditional Knowledge Protection:
Of
late, it has become fashionable amongst nationalistic intelligentia to demand
that there must be some kind of legal protection for Traditional Knowledge in India.
However, this demand overlooks the fundamental truth that any Traditional
Knowledge is part of public domain, incapable of appropriation by anyone. It is
like the fishes located in high seas beyond territorial and exclusive economic
zones of a country, which can be fished by anyone in the world. This,
jurisprudentially, falls under the Latin Maxim “res omnium communis”.
Making
Traditional Knowledge capable of appropriation by the social groups; that are
responsible for the generation and preservation of the Traditional Knowledge
overlooks the second obstacle namely, none of these individual or social groups
have made a serious demand for the protection of these rights. I doubt whether
these groups will be able to afford the cost of registration and expenses to
enforce them. Conferring these rights on the social groups and leaving the
enforcement either to government agencies or NGOs, will only result in another
form of IPR bureaucracy with no tangible benefit to the so called social groups
who are the possessors (not owners) of the Traditional Knowledge.
Furthermore,
it has to be understood that a modern welfare state runs on the economic
principle that in a free market there must be perfect competition. Every IPR
grants commercial monopoly which actually distorts the competition. Thus, every
IPR is statutorily sanctioned exception justified by strong economic and
ethical reasons. For an applicant to be entitled for a patent or plant variety
monopoly, he must create something which was not originally there. After the
period of monopoly, the technology in the patent enlarges into public domain
adding thereby to the knowledge of the people. Over a period, this can become a
part of Traditional Knowledge. Hence, there is no economic, social, or even
ethical justification for grant of any monopoly over Traditional Knowledge.
Furthermore,
even though the Indian Patent Act, 1970 prohibits the patentability of any Traditional
Knowledge per se, but any improvement to Traditional
Knowledge that meets the requirements of Novelty, Utility, Non-obviousness, and
Statutory Subject Matter is patentable. Similarly, in India and many
parts of the world, if a person rediscovers specific implementation solutions
for lost Traditional Knowledge, there is no reason why he should be denied
patent protection. Hence, there should not be any legislation for protecting Traditional
Knowledge when the social groups that possesses the Traditional Knowledge are
unable and unwilling to undergo the expensive process of IPR registration and
its enforcement.
IV.
Protection of Computer Software:
At
the moment, computer software in India is primarily protected under the
umbrella of Copyright Laws as “literary
work”. It is well known that Copyright Law protects only “Method
of Expression (form)” and not the “idea” (content) or its
“commercial expression”. Thus, it is
inappropriate to protect software under copyright laws.
Even
though the Indian Patent Act, 1970 prohibits the patentability of software perse,
the Patent Manual published by the Indian Patent Office does not totally rule
out the patentability of the improved technical effect brought about by the
employment of new software. The test of improved technical effect manifested in
any product or process is different from the operation of the computer or the
software. However, the monopoly provided under patent is much stronger in
comparison with the protection under copyright law. The IT industry today is
getting used to the concept of a non-exclusive, irrevocable, perpetual license
on non-discriminatory terms. Software Patents will complicate the situation.
In
addition to patent and software protection, the IT industry extensively uses
“non-compete” and “non-poaching” obligations. An average employment contract in
the IT industry contains a restrictive covenant on employees that will continue
to operate even after the termination of contract of employment. This prima facie attracts the operation of Section
27 of the Indian Contract Act, 1872 which stipulates that agreement in restraint
of trade shall be void.
Hence,
it is necessary for the Think Tank to consider “sui generis” method of
protecting computer software; if necessary, by merging the best aspects of both
Patent Law and Copyright Law which will clarify the most fundamental
contractual principle that a restrictive covenant in restraint of trade can be
valid, if it is reasonable and for protecting the valuable commercial
information which is protected under statute, or unprotected yet may be protected
under the contract.
4.
Reforms to Patent law in General:
A. Review
of Section 3 of the Indian Patent Act, 1970:
The
present Indian Patent Law Regime draws its inspiration, substantially, from the
Justice Rajagopala Ayyangar Committee Report. The Committee, in the 1960s, recommended a very strict, Patentee unfriendly
Patent Regime considering the then prevailing socio-economic conditions which
can be summed up as under:
a. Between 1958 – 1970, India was a
predominantly agricultural country, where 85% of the population was dependent
on agriculture. There was no Indian Industry. The State was the driver and
mover of Indian Economy, Private Industry was never allowed to grow because of
“Licence and Quota Raj”. India was
closed to foreign capital and adopted excessively protectionist measures in
favor of state commercial monopoly in business matters resulting in a lot of
inefficiency and waste. Importantly, there was no such thing as a Service
Industry. All the above facts have undergone a drastic change. Today’s situation
can be summed up as under:
(i) Today 58% of Indians are involved in
agriculture, contributing to just 18% of its GDP.
(ii) India today is the supplier of good
quality cheap Generic Drugs to the world. Notwithstanding the occasional ban of
reputed Indian manufacturers, the State of Andhra Pradesh boasts of the maximum
number of U.S. FDA approved manufacturing facilities anywhere, outside the
U.S., (even when the whole of Europe is considered as a single unit.) India,
today, is the generic drug capital of the world.
(iii)India
constitutes 5% of Global Territory, has roughly 20% of global population and 20%
of share in the global digital traffic. Indian IT and Business Process
Outsourcing (BPOS) companies have set the bench mark in the Global Software
Industry.
(iv)Thanks
to the reforms in Higher Education which resulted in the proliferation of Indian
Universities, India today has many Universities. Many of these Universities are
committed to achieving excellence and are producing more engineers and
scientists than the Indian industry can reasonably absorb. Hence, from being
the exporter of low-value indentured labour between 1780 and 1850, today we
have become an exporter of high value Human Resources to many parts of the developed
world.
(v) Many Indian Companies are becoming
Multinational Companies. Reliance, TATA, Infosys and WIPRO, Dr. Reddy, Ranbaxy,
and Sun pharma have become Global brands. Even small and medium scale
entrepreneurs have established commercial facilities in many South-Asian and
African countries. There is a substantial outgo of Indian Capital for the
establishment of Indian controlled
businesses in different parts of the world. Even though we welcome foreign
capital, the facts speak for themselves: there is a substantial outgo of Indian
capital for owning business located abroad. Hence, the view that India is a
poor, developing, capital importing country warranting a strict patenting
regime deserves reconsideration.
In
the light of the above situation, we should reconsider our position on
Patentable Subject Matter. Section 3 of the Indian Patent Act, 1970, contains
17 categories of Non-Patentable Subject Matter. Some of these exclusions were
deleted but more exclusions were added. The Patent system is a reward for
people and entities that make human life better by their innovations. The rationale
behind Section 3 of the Indian Patent Act, 1970 namely that these categories of
inventions are absolutely essential for facilitating the Socio-economic
development of India overlooks this fundamental point. If these categories of
invention are more significant for socio-economic development in India, then
these categories should have even more significant protection than the rest!!
Thus, in my opinion, Section 3 in its present form
goes against our important WTO TRIPS obligation viz. we will protect all innovations without discrimination.
This
is not to say that Section 3 should be repealed. Many exclusions contained in
Section 3 are the result of Judicial Decisions in the U.S. also, even though
they do not have similar statutory provisions. In fact, if these foreign patent
specifications are sufficiently Indianised by incorporating additional data and
explanation, many of the so called non-patentable exclusions of Section 3 can be successfully overcome by a
smart Patent attorney in India.
(B) Reforms
to Section 39 of Indian Patent Act, 1970:
The
published statistics of the Indian Patent Office revealed that 85% of
applicants for patents in India are of foreign origin. Of the remaining 15%
applicants, though
the applicant may be
Indian as a legal entity, there may be substantial foreign control. This is
because these organisations spend more money on research and development and
have a committed budget for IPR acquisition
and its enforcement.
India
is fast becoming a research process outsourcing destination. This research
process outsourcing is a higher margin Business Process Outsourcing. If the
outsourced research to India results in an improvement, which by contract it
would vest in the person who sponsored the research. Sometimes the foreign
applicant will mention the Indian personnel who generated the invention in
India. (Since, the foreign applicant has not complied with local filing
requirement of Indian Law)When the foreign applicant applies for Indian Patent
through PCT Route, the Patent Office can refuse patent for non-compliance of
local filing requirement. As a patent professional, I am unable to comprehend
the rationale behind this legislative provision except that the U.S.A. has it,
therefore we have it. In India, the consideration that prevails in U.S.A. does
not apply. It has been my experience that sometimes this provision applies
cruelly on Indian innovators who are
named as co-inventors or applicants in
a foreign patent when the foreign collaborator with better IPR culture take
immediate steps for IPR registration in their respective territories, which may
also have similar Local Filing Requirement. It is known that foreign entities
altogether leave out the name of Indian Resident inventor from the declaration
of Inventorship. Thus, this provision operates unjustly on Indian Innovators.
(C) Reconciling
the Apparent conflict between the operation of
Section 2(h) (Government Undertaking) and Section 47 (Government use of Patents) of the Indian Patent Act, 1970:
Every
Patent is a proprietary Right in rem which is granted by the
state after careful examination and scrutiny. Hence the patent should bind a
state as much as any other commercial entity operating in its territory.
Under
the Defense of Empire Rules, when a state requisitions private property occupies and uses it (even for
war and military purposes),( when the property is handed back to the owner),
the state is obliged under common law, to pay compensation to the land owner.
If patent is a proprietary Right in rem, then there is no
reason to apply a different yardstick for allowing Government use of patents.
Furthermore,
nowadays the Union of India and many state governments own and control companies
that are listed in the stock market, where lots of non-state actors own substantial shares. These
organisations essentially carry out commercial functions. Whichever way you look at it, a strict or
liberal interpretation of these two sections will enable a government
controlled entity or even NGOs that receive substantial funding from Government
to get away with blatant acts of infringement. In this connection, it may not
be out of place to mention the precedent in U.S.A. in Hughes Aircraft vs. NASA[3],
when a direct state functionary executing sovereign acts agreed to pay
compensation/damages to the patentee after the court ruled the existence of
patent infringement.
True,
Section 47 makes it clear that the government can use its patent, only for its “own
purpose”. It is common knowledge that “own purpose” cannot
include “commercial purpose”. If we have to follow the U.S. model, it
is fair and reasonable that the state pays reasonable royalty (comparable to
those given in Compulsory Licensing
cases) as and when a state or its instrumentality uses a Patented Technology. Definitely, listed commercial entities owned
or controlled by the state cannot be allowed to get away with patent infringement
and claim that it is government use of patent.
(D)Expropriation
without compensation when the Patent Subject matter relates to biological materials.
Form
– 1 (Application for Patent) imposes
obligations on the use of any biological material endemic to India,
without the applicant obtaining the permission from the Indian National Biodiversity Authority(NBA).
While granting such permission (which is an exercise of sovereign power), the
NBA can declare itself as a joint owner of the IPR. This is, partial
expropriation without compensation. This violates India`s
obligation under Paris Convention and the Convention on Protection of
Biodiversity. This unfairly discriminates against foreigners who may become victims of this
provision, even when the used Biological Material was from other parts of the
world, if the material is considered as endemic to India in the opinion of NBA.
(E)Question of an
Arbitrator pronouncing validity of a patent?
Usually, an International transfer of technology agreement involves Indian and Foreign Patents. The parties
exercise their choice of law and often have dispute settlement by Arbitration.
Under the Indian Arbitration Act ,the arbitrator may not have the required
power to pronounce on the validity of a patent. This is because a patent is a
right in rem and an arbitrator
appointed to adjudicate the contractual rights of the parties may not have the
legal competence to go into the question of validity of patent. In other words,
until the patent is revoked or at least the operation of patent is stayed, the
arbitrator has to proceed on the footing that the patent is valid. In case,the
licensing agreement is terminated and the dispute involves pronouncing on the validity
of the Patent, can an arbitrator sitting in an Indian forum decide on the
validity of an Indian Patent?
Under
section 294 of US Patent Act, the arbitrator has been specifically empowered to
go into the question on validity of Patent. In such situations, his decision
will be binding in between the parties.
Judicially,
Patent is a right in rem and only
public authorities like IPO, IPAB and High Courts can revoke the Patent. Thus,
it can be argued that no arbitrator can pronounce on the validity of an Indian
Patent. Hence, it might be necessary to make an amendment to Indian Patent Act
clothing the arbitrator with power to pronounce on validity of the Patent.
(F) A Silver lining to a dark cloud.
When
the compulsory licensing provisions were first incorporated in the Indian Patent
Act 1970, they attracted a lot of criticism from the United States of America
and research driven pharma multinational corporations. In fact, all countries
in the world have compulsory licensing provisions built in to their patent
regimes. Even in United States where the IPR laws do not specifically empower
the state to grant compulsory licenses the courts have may a time directed the parties
to negotiate a compulsory licence to prevent Antitrust abuse. India steadfastly
maintained supported to the Compulsory licensing provisions while reasonably
safeguarding the interest of the patentees at the same time.
Over a period
of time, other developing countries such as South Africa and Thailand,
supported the position of the Union of India on the legal regime relating to
grant of Compulsory licences In fact,
the present Indian regime on patent law incorporates new types of Compulsory
licenses in addition to the ones prevailing under the 1970 Act. Sec 91 of the
Patent Acts provided that related patents will also be available for Compulsory
licensing. Sec 92 further provides for Compulsory licensing by notification by
the Central government. Under the earlier Patent regime (1970) all pharmaceutical
and food process patents automatically came under the ambit of licences
of rights. Under the present Indian patent regime, this provision
of licences of rights has suffered a silent repeal. However, when the Central Government
issues notification under Sec 92 of the Indian Patent Act, then it will automatically
amount to a “Licences of right” to be decided by Central government and as
evidenced in the notification.
Furthermore,
under the traditional patent jurisprudence Compulsory licensing is only to
ensure that the Patented product is available in the local market at a
reasonable cost. Normally, Compulsory licences are not meant for meeting an
export demand. However, Sec 92 A of the Patent Act provides for Compulsory
licensing even for catering to a foreign market. Thus, India is in the global
forefront to ensure that Compulsory licensing provisions are essential for
preventing Patent abuse.
Under
the revised patent regime, the Patent office had opportunities to pronounce on
two applications on compulsory licensing. In Bayer v. Natco (decided on March
04, 2013)the Indian Patent Office granted Compulsory licensing in favour of
Nacto on the ground that the “Nexavar” patented medicine is not available in
the Indian market both in terms of quantity and cost. However the Patent Office and the IPAB ensured that there
will be royalty rate of 6% of the sales turn over as opposed to the 2 to 4%
recommend royalty as provided under UN procurement norms. The second case of
Compulsory licensing BDR Pharmaceuticals v. Bristol Myers (decided on October
30, 2013)The Indian Patent Office held that the applicant for Compulsory
licensing has not taken reasonable and diligent steps for procuring a voluntary
license on mutually negotiated terms. Thus in all fairness it must be said to
the credit of the Patent Office that they have been implementing the Compulsory
licensing provisions fairly and justly.
(F) Another area of concern.
Indian
Pharma patent regime continues to attract the attention and, in fact ,criticism
of developed countries. Recently, the Honorable Supreme Court of India had
upheld the decision of IPAB in the case of Glivic (Beta Crystalline form of
Imatinibe Myselate). In this case the applicant was able to demonstrate that
administration of the drug in the above form increases the bioavailability of
the drug by another 30%, thereby facilitating ease of administration and better
absorption of the product. However, the IPAB came to the conclusion that the
word “efficacy”
contemplated in Sec 3(d) explanation could only mean” therapeutic efficacy”.
The learned chairman of the IPAB (who subsequently became the Chairman of the
IPR think Tank) while deciding the meaning of the word ‘efficacy’ instead of
adopting the ‘golden rule of statutory interpretation’ chose to apply
the ‘mischief
rule of statutory interpretation’. In other words, the IPAB
concluded that Sec 3(d)and its explanation were essentially for preventing the
questionable practice of evergreening of patents by aggressively patenting even
incremental innovations. However, one should be conscious of the fact that the expression
‘therapeutic
efficacy’ is much more stricter than the expression ‘efficacy’.
For e.g. if a product covered by the patent can be produced in a more environmentally
friendly manner or at greatly reduced cost, from the point of view of the
common man there is an improvement in efficacy. However, this will not
constitute therapeutic efficacy as envisaged but the IPAB and subsequently upheld
by the Supreme Court. However, considering that this litigation is just first
of the many litigations which will occur in the future, one hopes that the Supreme
Court will apply the golden rule in statutory interpretation and make the
expression more just from the point of view of drug inventors.
INTERRELATION BETWEEN COPYRIGHT AND DESIGN
Design
Act 2000 that replaced Design Act 1911 was expected to be more modern. But,
alas, it retains its erstwhile primitive features!
a.
Section 15 of Copyright Act
First,
Section 15 of Copyright Act stipulates that where a copyright is registered, when
under law, it ought to have been protected under Design Act, the Copyright
protection would cease in respect of the article, when it is replicated more
than 50 times by an individual process.
I guess this
is unique to India. IP Attorneys all over the world do not put all their eggs
in one basket. They may seek concurrent registration under Trademark, Patent,
Copyright, Design, Semiconductor Integrated Circuits Layout-Design Acts etc. in
respect of one product. Though, Jurisprudentially, Copyright infringement
cannot be availed to injunct products embodying visual features, there is no
reason to extinguish copyright/design protection. The Applicant musa be given a
choice of election. This provision
should not promote unjust enrichment.
b. Inadequate Compensation in case of Piracy
of registered design
In case of a
design infringement, Compensation that can be granted is Rs. 25000/- per an act
of infringement subject to a maximum of Rs. 50000/-. This ceiling is
unreasonably low. Damages should depend on quantum of infringement and illegal
profits made from infringing acts. But, this should be a good reason for the
Courts to award interim relief, as compensation ceiling fixed by law makes the
loss, irreparable within the meaning of ‘relative hardship doctrine’.
c. Reforms to Section 5(4) of Design Act
2000:
As
per Section 5(4) of Design Act 2000, an appeal arising from the order of the
Controller refusing an application for design, or an appeal arising from
challenges to the validity of Registered Design lies with the High Court. Controller
General of Patents, Designs and Trade Marks is the primary authority vested
with the power of registration of Patents, Trademark, Designs and Geographical
Indications. However, an appeal from the decision of the Controllers in matters
of Patents, Trademark and Geographical Indications lies with the IPAB. Though
the new IP policy propagates Administration and Management - to modernize and
strengthen service oriented IPR administration, no effort is seen in the policy
to consider IPAB as a comprehensive authority to decide appeals from Controller
General of Patents, Designs and Trade Marks (CGPDTM).
Conclusions
About
30 years ago, IPR was not even taught as an optional subject in the law
schools. Now, in many law schools, IPR is a compulsory subject. Even in those schools
where it is optional, students opt for it in large numbers. In fact, many of the
leading law schools offer some type of a continuing education program resulting
in the award of a PG diploma in IPR. With all these developments, there is
still a serious shortage of human resources in IPR Laws. In many ways, the perception
of the general public and in fact a substantial section of the industry is very
similar to the experience of four blind men feeling and describing an elephant.
During 1980s, the number of people registered with Indian Patent Office as
patent agent was well below 200. In 2017, the total number of patent agents
hovers around 3000 compared , the United States’ Patent Office’s 30,000 patent agents.
Hence it is absolutely necessary for law ,management and technology schools to
promote IPR literacy in a big way. Many of the leading generic Indian pharma
companies have serious plans to become research driven drug companies. The Indian
IT revolution has increased the confidence level of general public. Yet, we are
one of the very few counties in the world who declare themselves a socialist country.
Again, we are unique in our constitutional declaration that the right to
property is not a fundamental right but a merely a statutory right. The Directive
Principles of the State Policy further declare that the state shall strive to
ensure that the means of production are not concentrated in a few hands.
Despite these constitutional reservations ,the Indian Parliament has granted
legally enforceable statutory monopolies in favour of IPR owners. If we grant
them a privilege, it must be a bonafide privilege. Other considerations should
not prevent reasonable enforcement of these privileges.
[1] Manu
Associates, Advocates and IPR Attorneys. NO.143/4, 8th Main, 14th Cross, Royal
Fort Apartment, Malleshwaram,
Bangalore-560003
Phone-080-23346166
Mobile-0-9448247549
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