Intellectual property: the rights, the Acts and India's flexibilities

Prelims and MainsCurrent affairs on this: Intellectual property and Geographical Indications

Intellectual property is a bundle of separate rights, and a question turns on which, for how long, under which Act. A patent protects an invention that is new, inventive and useful for 20 years from filing; copyright protects the expression of a work, not its idea, for the author's life and 60 years; a trademark protects a sign that tells goods apart, renewable for ever; a design protects appearance; a Geographical Indication protects goods whose quality comes from a place and belongs to its producers. India's Patents Act, 1970 is known for what it refuses: Section 3(d) denies a patent to a new form of a known drug without better efficacy, which is why Novartis lost over Glivec in 2013, and Section 84 allows a compulsory licence, used once, in 2012. Both are flexibilities the TRIPS Agreement of 1995 permits, and both keep India on the United States watch list.

• The rights, in the figure: patents, designs, trademarks and Geographical Indications are administered by the Controller General of Patents, Designs and Trade Marks under the Department for Promotion of Industry and Internal Trade; copyright by the Registrar of Copyrights; plant varieties by their own Authority under the Protection of Plant Varieties and Farmers' Rights Act, 2001, which also gives farmers the right to save and sell seed; semiconductor layouts have an Act of 2000; trade secrets have no statute and rest on contract.
• What a patent needs and refuses: novelty, an inventive step and industrial application; not a discovery, a mathematical method or an algorithm, a computer programme as such (Section 3(k)), a method of agriculture, or a new form of a known substance without enhanced efficacy (Section 3(d), the bar on evergreening). Anyone may oppose before grant and for a year after; the Intellectual Property Appellate Board was abolished in 2021, so appeals from the office go to the High Courts, Delhi's through its intellectual property division, and infringement suits to the civil courts.
• The flexibilities: the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) of 1995 sets minimum standards for World Trade Organization members and leaves room, confirmed by the Doha Declaration of 2001, for compulsory licences on public health grounds, parallel imports and strict patentability tests; a trade agreement that asks for more, longer terms, data exclusivity, patent linkage, is TRIPS plus, and India refuses those clauses. The United States Trade Representative's Special 301 report keeps India on its priority watch list for exactly these choices.
• Traditional knowledge and genetic resources: the Traditional Knowledge Digital Library, on its own subject, documents prior art so that turmeric and neem patents are refused; the Biological Diversity Act, 2002 requires approval and benefit sharing before a patent on an Indian biological resource; and the World Intellectual Property Organization's treaty of May 2024 requires patent applicants to disclose the origin of genetic resources and associated traditional knowledge, a demand India made for two decades.
• The policy and the numbers: the National IPR Policy of 2016 made the Department for Promotion of Industry and Internal Trade the nodal body and created the Cell for IPR Promotion and Management; patent filings have roughly doubled in a decade and Indian residents now file more than foreigners; Geographical Indications, on their own subject, number over 700, Darjeeling tea the first in 2004.

Mains: India's patent law is written for a country that makes medicines cheaply and invents few of them, so its refusals are policy, not weakness; the test as India's own firms begin to invent is whether the same law can protect them abroad without giving up the flexibilities that keep drugs affordable at home.

Further reading: The Jan Vishwas (Amendment of Provisions) Bill, 2022 (PRS India)

See also: Geographical Indications · Traditional Knowledge Digital Library · Research integrity: fake patents and retractions · GM crops in India: what is approved, who approves · Who regulates medicines in India, and the drug schedules