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What is Intellectual Property?

Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce. (About IP, 2019)

What does Intellectual Property include?

It includes the following:-

  • Trademark
  • Copyright
  • Patent
  • Design

Intellectual Property, however, is not just limited to Patents, Trademarks, Copyrights, Designs but is very extensive and also includes Confidential Information & Trade secrets, Plant Varieties, Geographical Indications (GI), Traditional Knowledge, Semiconductor Layout Designs, Biotechnology and inter alia. However, this topic will broadly cover information on the above mentioned four main categories of Intellectual Property.

The authority controlling intellectual property in India is the Ministry of Commerce and Industry’s Department for Promotion of Industry and Internal Trade. 

Why are Patents important?  Issues and resolutions:

India is the largest provider of generic drugs globally. Indian pharmaceutical sector industry supplies over 50 percent of global demand for various vaccines, 40 per cent of generic demand in the US and 25 percent of all medicines in UK. Presently over 80 per cent of the antiretroviral drugs used globally to combat AIDS (Acquired Immune Deficiency Syndrome) are supplied by Indian pharmaceutical firms. India thus enjoys an important position in the global pharmaceuticals sector. (Pharmaceuticals, 2019)

Developing countries are considered disadvantaged in this area owing to “patent illiteracy” in comparison with industrialized countries. (The World Bank, 2003) India would like to ensure that efforts by developing countries are not adversely affected by lack of knowledge and preparation to deal with such issues. India is ready to enact legislation relating to its indigenous plant knowledge to ensure that indigenous producers are adequately protected and no one preempts India in patenting what it produces. India is also interested in keeping track of the violators of provisions (for example, geographical indicators) to avoid undermining India’s export potential. There is a need to improve the capacity to implement services, such as patent and trademark offices, administrative and judicial courts, and customs procedures. In order to effectively implement Trade-Related Aspects of Intellectual Property Rights (TRIPS), considerable technical assistance is necessary for developing countries.

It is perhaps in area of intellectual property that developing countries are most disadvantaged. This has been mainly due to the “patent illiteracy” of these countries when the TRIPS agreement was formulated. Therefore today, it has become a crucial challenge for India to ensure that developing country interests are not adversely affected on account of lack of preparedness. For instance, people in India and Pakistan were surprised when they found that a Texas-based company got a patent to sell basmati rice in the United States, especially since the name “basmati” has been associated with the aromatic variety of rice grown in the foothills of northern Uttar Pradesh, the Punjab (in India and in Pakistan), and Haryana. So the patenting of U.S. rice as basmati was in direct conflict with Article 22 of TRIPS, which gives members the right to protect geographical indicators. But the argument made by Rice Tec was that basmati is a generic (general and not related to any particular group) name. This had led to litigation which was in 2016 resolved by the Intellectual Property Appellate Board (IPAB). (The Hindu, 2016) Article 22 of the TRIPS agreements says that unless a GI is protected in the country of its origin, there is no obligation under the agreement for other countries to extend reciprocal protection. India which is the largest producer and exporter of basmati rice in the world successfully earned the GI tag.

Further this also raises a fundamental question: Can the industrialized countries patent produce of agriculture or their special properties, which are known and have been used in the developing world for a long time but have not been recorded in any legal system? While it would take years, if not decades, before this issue is appropriately settled, India’s immediate concern with regard to TRIPS should be twofold. On the one hand, India needs to take stock of its indigenous plant knowledge, codify it, and protect it through an appropriate domestic law to ensure that indigenous producers are adequately protected and no one preempts India in patenting what is due to producers in India. The other is to keep check on violations of provisions, such as geographical indications, so that India’s export potential is not undermined.

Three development issues are most noteworthy. (Congressional Research Service, 2011)

One pertains to compulsory licensing of medicines and patent protection. The second deals with a review of provisions giving special and differential treatment to developing countries. The third addresses problems that developing countries were having in implementing current trade obligations.

The Doha Declaration on TRIPS and Public Health essentially reinterpreted the provision on compulsory licensing contained in Article 31 (f) of the TRIPS Agreement. (Economic & Political Weekly, 2003) While doing so, the Declaration made it clear that any member country of the WTO has a right to knock off patents on pharmaceutical products on public health grounds. However, it was not clear as to how the countries without domestic manufacturing capacity would take advantage of this right. The TRIPS Council was requested to find a solution by December 2002. However, a solution could not be found because the proposal suggested - a waiver of the ban on the export of patented protected medicines produced under compulsory licensing, for countries in need - which was accept-able to 145 countries was not to the liking of the US which remained singularly opposed to the proposal. The US wanted to restrict the disease coverage to HIV/AIDS, Tuberculosis, and Malaria for the process of waiver in compulsory licensing. On August 30, 2003, WTO members reached agreement on the TRIPS and medicines issue. Voting in the General Council, member governments approved a decision that offered an interim waiver under the TRIPS Agreement allowing a member country to export pharmaceutical products made under compulsory licenses to least-developed and certain other members.

In the Doha Ministerial Declaration, the trade ministers reaffirmed special and differential (S&D) treatment for developing countries and agreed that all S&D treatment provisions “be reviewed with a view to strengthening them and making them more precise, effective and operational.”

At the Doha meeting, the Ministerial Declaration directed a two-path approach for a number of remaining issues: (1) where a specific negotiating mandate is provided, the relevant implementation issues will be addressed under that mandate; and (2) the other outstanding implementation issues will be addressed as a matter of priority by the relevant WTO bodies. Outstanding implementation issues are found in the area of market access, investment measures, safeguards, rules of origin, and subsidies and countervailing measures, among others.

A case study to better understand the importance of Intellectual Property is the Novartis case. Glivec (imatinib mesylate), produced by the Swiss pharmaceutical company Novartis, is used to treat Chronic Myeloid Leukemia (CML) and Gastrointestinal Stromal Tumours (GIST), and is patented in 35 countries across the world. In 2006, the Indian Patent Office first refused Glivec’s patent under Section 3(d) of the Indian Patent Act arguing that it was only a modified version of an existing drug, Imatinib, and therefore that the drug was not innovative. Novartis challenged this decision of the Indian government. After more than a decade of legal battles surrounding its patentability, the Supreme Court of India gave its final decision on 1st April 2013, rejecting the appeal of the Swiss giant drug manufacturer and thwarted the attempts of multinational companies to evergreen (filing patents using a strategy, which can increase the patent protection (exclusivity) beyond the normal term of 20 years) Indian medicines. The Novartis case arguably sets an important precedent for the global pharmaceutical industry and ideally will help improve access to lifesaving medicines in the developing world by demanding that patient health needs supersede commercial interests. The 300,000 patients currently taking the drug and their advocates welcomed the verdict. According to Dr Unni Karunakara, the Médecins Sans Frontières (MSF) International President: “The Supreme Court’s decision now makes patents on the medicines that we desperately need less likely. This sends a very strong signal to Novartis and other multinational pharmaceutical companies that they cannot try to game Indian patent law”. This decision has “no precedent”, explained Pratibha Singh, a lawyer from the Indian drug manufacturer Cipla, because from now on “patents will be given for genuine inventions, and repetitive patents will not be given for minor tweaks to existing drugs”. (NCBI, 2019).

Conclusion:

Intellectual property means innovation and so where exists innovation, there also risks and protection. Thus intellectual property should be protected and also harnessed for the economic, social, scientific and cultural development of the society. Today the companies are investing their major chunk of share in Research & Development (R&D).

A company or an industry should not be just encouraging the research and development (R&D) but should also be able to proactively promote the implementation of their Intellectual Property solutions in the proliferation of their revenues and returns. This can be done by fostering joint ventures, mergers or even by licensing or assigning their creations. This will not just help them explore their Intellectual Property to a wider domain but will also lead to the exploitation of their Intellectual Property in a positive way and for the benefit of society. The Government of India to encourage the startups doing innovation have also initiated a Startups Intellectual Property Protection (SIPP) scheme offering them several incentives and tax benefits. Thus besides promoting and protecting Intellectual Property Rights, it will also help in commercialization of their Intellectual Property and nurture innovative and emerging technologies in the economic market.

Resources:

(2019, April 01). Retrieved from NCBI: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3884017/

About IP. (2019, March 26). Retrieved from WIPO: https://www.wipo.int/about-ip/en/

Case Studies. (2015, September 16). Retrieved from WIPO: https://www.wipo.int/ipadvantage/en/details.jsp?id=2564

Case Studies. (2015, September 16). Retrieved from WIPO: https://www.wipo.int/ipadvantage/en/details.jsp?id=2592

Congressional Research Service. (2011). World Trade Organization Negotiations: The Doha Development Agenda. Congressional Research Service.

Economic & Political Weekly. (2003). WTO and South Asia: From Doha to Cancun. Economic & Political Weekly.

Pharmaceuticals. (2019, April 01). Retrieved from IBEF: https://www.ibef.org/industry/pharmaceutical-india.aspx

The World Bank. (2003). Agriculture, Trade and the WTO in South Asia. Directions in Development.

The Hindu. (2016, September 02). National. Retrieved from The Hindu: https://www.thehindu.com/news/national/indian-basmati-rice-gets-gi-tag/article8198492.ece

Image source: Adobe Stock

(The views expressed by the author are his personal. For any feedback, he may be reached via shrikrishna.law@gmail.com)

 

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Written By Shrikrishna Kachave

Shrikrishna is an introvert, a pacifist and takes pride in being a righteous human being.

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