Most mornings the dailies carry at least one article on intellectual property — scriptwriters fighting producers over copyright, celebrities registering their names, or the perennial question of patents and drugs. As an IP lawyer it is good to see the field covered at all, even where journalists interchange trademarks, copyright, patents and designs freely.
The context
With the Prime Minister travelling to attract international business to “Make in India”, one recurring point of discussion has been the protection of intellectual property and, more pointedly, the enforcement of those rights.
In line with those discussions, the government, through the Department of Industrial Policy and Promotion (DIPP), constituted a Think Tank to draft a National Intellectual Property Rights Policy on 24 October 2014.
The terms of reference
The Think Tank was tasked with:
- drafting the National IPR Policy;
- identifying areas requiring study and making recommendations to the Ministry;
- providing views on the implications of demands placed by negotiating partners;
- keeping the government informed of developments in IPR cases bearing on policy;
- advising on best practices for the Trade Marks and Patent Offices and other government offices dealing with IP, to create an efficient and transparent system;
- preparing periodic reports on best practices in foreign countries;
- highlighting anomalies in existing IPR legislation and advising on solutions;
- suggesting steps to improve infrastructure in IP offices and tribunals; and
- examining current issues raised by industry associations and in the media.
That is a broad mandate, and notably it extends well past drafting — into the operational functioning of the IP offices, which is where most practitioners’ complaints actually sit.
The composition question
The Think Tank was headed by Retired Justice Prabha Sridevan, former Chairperson of the IPAB, with five others.
Questions arose over how members were chosen — particularly the appointment of a member from Cadila Pharmaceuticals, given that company’s history of disputes with foreign drug makers. According to news reports, the USTR and pharmaceutical groups were concerned that the Think Tank comprised people generally sympathetic to Indian generic manufacturers, and might therefore be biased.
The response was that while the core group had been settled, anyone was welcome to contribute suggestions on what the policy should contain. A DIPP public notice of 13 November 2014 invited comments by email before 30 November 2014.
What came of it
The National IPR Policy was adopted in May 2016, built around seven objectives — IP awareness, generation of IP, a modern legal framework, administration and management, commercialisation, enforcement and adjudication, and human capital development.
Its most visible consequences were institutional rather than legislative. The Policy created the Cell for IPR Promotion and Management (CIPAM) to coordinate implementation, and the period that followed brought the Trade Marks Rules, 2017 — cutting 74 forms to eight — along with sustained investment in examiner recruitment and the reduction of pendency at both the Trade Marks Registry and the Patent Office.
Notably, the fears expressed at the time about the drafting group’s composition did not translate into changes to the substantive law on pharmaceutical patents. Section 3(d) was left intact, and the Policy explicitly affirmed that India’s existing IP laws are TRIPS-compliant and that the flexibilities within TRIPS would be retained. The concerns were about the drafters; the Policy’s actual character was consultative and administrative.
The takeaways
- The Think Tank was constituted in October 2014, chaired by a former IPAB Chairperson.
- Its mandate went beyond drafting into IP office functioning and legislative anomalies.
- Composition drew objections from the USTR and pharmaceutical groups.
- The National IPR Policy followed in May 2016, leaving Section 3(d) untouched.
Frequently asked questions
What was the IPR Think Tank? A six-member group constituted by DIPP in October 2014 to draft India’s National Intellectual Property Rights Policy and advise on IP administration and legislation.
When was the National IPR Policy adopted? In May 2016, built around seven objectives spanning awareness, generation, legal framework, administration, commercialisation, enforcement and human capital.
Why was the Think Tank’s composition criticised? The USTR and pharmaceutical groups suggested its members were generally sympathetic to Indian generic manufacturers and that it might be biased.
Did the Policy change India’s pharmaceutical patent law? No — Section 3(d) remained intact, and the Policy affirmed that India’s laws are TRIPS-compliant while retaining the flexibilities TRIPS allows.