India’s patenting record since TRIPS compliance of her patent regime

ABSTRACT

India’s patent regime underwent a major change in 2005 when its various provisions were brought into conformity with the TRIPS Agreement. The expectation was that the patent regime was made stronger from the point of protection of intellectual property leading to an incentivisation of innovation, leading to more production of patents in important technologies and especially by domestic enterprises. The paper undertakes a detailed survey of India’s patenting record to check if domestic enterprises and institutions have been very active in creating this important knowledge asset. Ownership of this intangible asset has become very important as the country is now once again moving to a new policy regime of enhanced technological self-reliance.

KEYWORDS:

• TRIPS compliance
• India‌
• patents
• compulsory licensing
• commercialisation of patents‌

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Terminal year of the 12th five-year plan (2012–2017) which incidentally is the last five-year plan which started in 1951.

2 See the details of this package at https://static.pib.gov.in/WriteReadData/userfiles/Aatma%20Nirbhar%20Bharat%20%20Presentation%20Part%205%2017-5-2020.pdf (accessed on July 5, 2020).

3 See Chaudhuri (2005).

4 One of the world’s largest and least cost vaccine manufacturers is an India firm. Several other Indian firms are also very much active in vaccine research for dealing with SARS-CoV 2. Several pharmaceutical firms have entered into licensing agreements with MNCs abroad for developing generic versions of certain repurposed drugs that have shown some potential to reduce the duration of hospital stays for COVID-19 patients. According to the union minister for textiles, India has now (ca2020) the capacity to produce 4.5 lakh pieces of PPE kits and there are about 600 enterprises which are active in this area. Furthermore, the country has a growing number of essentially start-ups having the technological capability to design and manufacture a full range of medical devices at extremely low prices.

5 See Department for Promotion of Industry and Internal Trade, Government of India, https://dipp.gov.in/policies-rules-and-acts/policies/national-ipr-policy (accessed on July 7, 2020).

6 See CIPAM, http://cipam.gov.in/ipr-awareness-2/industry/ (accessed on July 7, 2020).

7 The committee had fixed 100 applications per examiner. See http://164.100.47.5/newcommittee/reports/EnglishCommittees/Committee%20on%20Commerce/88th%20Report.htm#a4 (accessed on July 11, 2020).

8 See Controller General of Patents, Designs and Trademarks, http://www.ipindia.nic.in/newsdetail.htm?351 (accessed on August 2, 2020).

9 According to the guidelines,

in case of any conflict between these guidelines and the provisions of the Patents Act, 1970 or the Rules made there under, the said provisions of the Act and Rules will prevail over these guidelines. The guidelines are subject to revision from time to time based on interpretations by Courts of law, statutory amendments and valuable inputs from the stakeholders.

10 The above view was also expressed by the Joint Parliamentary Committee while introducing Patents (Amendments) Act, 2002:

In the new proposed clause (k) the words ‘per se’ have been inserted. This change has been proposed because sometimes the computer programme may include certain other things, ancillary thereto or developed thereon. The intention here is not to reject them for grant of patent if they are inventions. However, the computer programmes as such are not intended to be granted patent. This amendment has been proposed to clarify the purpose.

11 https://newsroom.ibm.com/2020-01-14-IBM-Tops-U-S-Patent-List-for-2019 (accessed on July 22, 2020).

12 See Department of Industrial Policy and Performance (2009):

13 The specific circumstances can be any of the following three:

• the reasonable requirements of the public with respect to the patented invention have not been satisfied

• the patented invention is not available to the public at a reasonably affordable price

• the patented invention is not worked in the territory of India.

14 This call is by a select number of developing and 4 developed countries urges manufacturers of vaccines, therapeutics and diagnostics of patented products to issue voluntary licenses so that these products are easily available to the masses that too at affordable prices. See https://www.who.int/emergencies/diseases/novel-coronavirus-2019/global-research-on-novel-coronavirus-2019-ncov/covid-19-technology-access-pool/solidarity-call-to-action (August 1, 2020).

15 The index is the unweighted sum of five separate scores for: coverage (inventions that are patentable); membership in inter-national treaties; duration of protection; enforcement mechanisms; and restrictions (for example, compulsory licensing in the event that a patented invention is not sufficiently exploited). The index was designed to provide an indicator of the strength of patent protection, not the quality of patent systems.

Additional information

Funding

This work was supported by Centre for Deveopment Studies, Trivandrum.

Notes on contributors

Sunil Mani

Sunil Mani is Director and Professor, RBI Chair, Centre for Development Studies, Trivandrum, Kerala, India. His area of research is on the economics and policy studies of technological change. He has held visiting professorships at Bocconi University, Milan, Italy, the National Graduate Institute for Policy Studies, Tokyo, Japan and University of Toulouse-Jean Jaures.