Patent

Indian IP Policy Formulation: From Confusion to Coherence


We reported earlier on the promising appointment of V Bhaskar, a distinguished civil servant to the Department of Industrial Policy and Promotion (DIPP), the nodal agency for all matters relating to IP in India. We hoped that the government would consolidate all IP related functions (that had hitherto been dispersed amongst several IP officials) under the charge of Mr Bhaskar.

It now turns out that our hope indeed came to pass and Bhaskar has been vested with the enviable task of co-ordinating all IP issues that fall within the jurisdiction of the DIPP, including patents, trademarks, GI’s and designs. However, some species of IP continue to remain outside the net of the DIPP.

Copyrights fall under the exclusive domain of the Ministry of Human Resource Development (HRD), new plant varieties fall under the jurisdiction of the Ministry of Agriculture, and semiconductors (protection of new layout designs) under the jurisdiction of the Ministry of IT. The latter is perhaps the only IP subject matter that has generated the least amount of India…and one can only envy those in charge for all the free time on their hands.

If a traditional knowledge (TK) legislation finally passes, we’re not really sure which ministry will be vested with control over this. The Ministry of Environment appears to be keen on getting some of the action, as evident from overly broad “rules” that have been framed under the aegis of the Biodiversity Act to regulate TK ..rules that would appear susceptible to serious constitutional challenge, as argued persuasively by Prashant in his post here.

Interestingly, the DIPP issued a press release recently as under:

“A discussion Forum on IPR issues has been set up in the Department of Industrial Policy and promotion (DIPP)’s Website at www.dipp.nic.in with a view to have wider consultation on all IPR issues particularly those which are discussed in the meetings of WIPO.

Individuals, Organizations, Stakeholders and other interested parties are invited to post their comments on the issues identified in the discussion forum. The DIPP administers the Patents Act, 1970, The Trade Marks Act 1999, The Designs Act, 2000 and the Geographical Indication of Goods (Registration and Protection) Act, 1999.

DIPP is also the nodal Department in the government of India for matters concerning World Intellectual Property Organization (WIPO), a specialized agency of the United Nations for the matters related to Intellectual Property. “

While this is an extremely laudable initiative, I was particularly struck by the last paragraph. Is DIPP the nodal agency for all WIPO issues, including international copyright issues as well? Or does the Ministry of Human Resource Development (HRD) subsume charge and claim jurisdiction here?

Some of you may recall the unfortunate fallout between Ministry of HRD and Ministry of Commerce over the issue of a letter written by Debabrata Saha, the then deputy permanent rep to the UN. Saha had openly attacked Dr Mashelkar for chairing a meeting relating to the Substantive Patent Law Treaty (SPLT) in Casablanca.

Subsequent to this letter, most WIPO and international IP affairs were shifted by the Prime Ministers’ Office (PMO) from the Ministry of HRD to the Ministry of Commerce. However, my understanding was that international copyrights (and WIPO issues related thereto) continued to vest with the Ministry of HRD. And if current practice is anything to go by, most WIPO meetings on copyright issues are attended by Mr G Raghavender, the current registrar of copyrights.

In order to make for coherent IP policy formulation in India, it is critical that the jurisdictional bounds of the various ministries be drawn out clearly. Further, India must take active steps to sort out some of the schizophrenia that is increasingly being felt between its “domestic” and “international” posturing on IP.

Pharmaceutical IP policy is likely to be particularly problematic, with several ministries moving in to claim their share of the turf. The Ministry of Commerce can legitimately claim the greatest part of the pie, given that it is in charge of patents overall. The Ministry of Health and Family Welfare could theoritically intervene and devise solutions, in so far as public health issues intersect with patents. However, it has not been too active on the “patent” front yet.

Interestingly, while the WHO IMPACT fiasco was being reported in the popular media, the Ministry of Commerce began attempting to rework the domestic definition of “spurious” within the Drugs and Cosmetics Act (DCA). To what avail, I’m not sure..as they simply lack the jurisdictional competence to effectuate any amendments within the DCA. Not too surprisingly, the Ministry of Health got wind of the situation, sprung into action and has now constituted a committee to look into the matter. One hopes that this initiative will end in a definition of “spurious” that de-links IP and drug regulation once and for all. For those interested, apparently, the committee has the following members:

1. Director, DIPP
2. Director, Ministry of Commerce and Industry
3. Director, Department of Pharmaceuticals
4. Dr K Satyanarayana, ICMR
5. DG Shah, Indian Pharmaceutical Alliance (IPA)
6. President, IDMA
7. Chairman, Federation of Pharma Entrepreneurs (FOPE)

Apart from the above, the Ministry of Chemicals and Fertilizers is starting to play a larger role in pharmaceutical patent matters. Indeed, in 2008, the Department of Pharmaceuticals was set up to exclusively focus on pharmaceutical issues. And this department has already began flexing its “patent” muscle. It was particularly active during the European drug seizures issue (though a Ministry of Commerce spokesperson was more visible in the media). A recent notice announcing a FICCI patent round-table suggests that key personnel from this Department will hold forth on section 3(d), a section that is yet to be conclusively interpreted by a court of law.

Indeed, despite the passage of 5 years since its inception, it is surprising that apart from a paragraph in the famed Novartis decision involving Novartis’ constitutional challenge against section 3(d), this section has never been comprehensively looked into and interpreted by a court of law. As we note in an article, this is a section that requires plenty of ironing out and we hope that the courts will soon be offered an opportunity of doing so. For, no matter how much we discuss and debate section 3(d), the power to ultimately interpret and fashion the contours of this section vest with our courts.

Apart from the above, the Ministry of Chemicals has a little more “IP” say through its agency, the National Pharmaceutical Pricing Authority (NPPA), tasked with regulating pharmaceutical prices. With the creation of the Dept of Pharmaceuticals (DOP), NPPA functions have now been moved to the DOP.

Too many government agencies and too little co-ordination: a sure recipe for confusion. Unless we find ways of drawing out clear jurisdictional turfs, the confusion is likely to confound. More importantly, we need to find effective ways of helping them co-ordinate better with each other, so as to make for coherent IP policy formulation, both domestically and internationally.

ps: This post was an offshoot of discussions I’ve had with Tania Bubela, a Canadian Professor of Health Policy. I thank her for forcing me think through some of these issues.

Shamnad Basheer

Shamnad Basheer

Prof (Dr) Shamnad Basheer founded SpicyIP in 2005. He is currently the Honorary Research Chair of IP Law at Nirma University and a visiting professor of law at the National Law School (NLS), Bangalore. He is also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof Amartya Sen. Professional History: After graduating from the NLS, Bangalore Professor Basheer joinedAnand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Prof Basheer has published widely and his articles have won awards, including those instituted by ATRIP and the Stanford Technology Law Review. He is consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also serves on several government committees.

One comment.

  1. AvatarShamnad Basheer

    A friend who wishes to remain anonymous writes as below. In particular, I completely agree with his proposal for a separate IP ministry. Though I would rather that it be a separate “Ministry of Innovation and Creativity”–just so that we signal the fact that what we are concerned about is innovation and creativity and IP is but a tool that may help achieve these goals. In fact, the UK has such a ministry and this may be one transplant that may be desirable from our colonial masters.

    “Dear Shamnad
     
    Am I glad for this rather paradoxically clear enunciation of the confusion that prevails in IP matters in Government of India.
     
    However, in a funny way this confusion actually prevents any one department or even one person from hijacking the entire policy framework on IP in the Government. This is not an impossibility as was seen in the case of Casablanca fiasco. As it is, regulator capture is a feature common in most developing countries. This type of capture was indeed at the core of the licence-permit Raj of yore. It can still happen. You just need to go to any meeting of the Apex chambers of commerce and you would find the ubiquitous American telling us how good IP is for us and how bad it is for us to debate any issue related to the goodness or otherwise of IP per se.
     
    The fallout of the Casablanca issue was not between Commerce and HRD. It was between Mashelkar and HRD. Dr. Mashelkar felt slighted (he had overreached in this case and Saha really twisted the knife) and reacted in the most petulant manner by lobbying hard to have the allocation changed.
     
    Even the DIPP did not have any credentials of public consultations on most IP issues till Rajiv Ranjan as Director took to large-scale consultation on the amendments to the Patents Act. The DIPP till recently, despite James’ gentle hints could not think beyond FICCI on any issue.

    Also, while DIPP might think so but the Allocation of business between different government departments does not allocate all IP issues to DIPP. As it goes the allocation is as follows:

    V. PROTECTION OF INTELLECTUAL PROPERTY RIGHTS (INDUSTRIAL PROPERTY)

    28. Standardisation of international products and raw materials.

    29. The Designs Act, 2000 (16 of 2000).

    30. The Trade and Merchandise Marks Act, 1958 (43 of 1958).

    31. The Patents Act, 1970 (39 of 1970).

    31A. Matters concerning World Intellectual Property Organisation (WIPO) including coordination with other concerned Ministries or Departments.

    Regarding Copyright also, DIPP has no functional role except to act as the coordinator on WIPO issues. The lack of understanding that comes packaged with it has been most visible in its inability to appreciate that the Broadcasting treaty being discussed in WIPO was not a broadcasting issue but a Related Rights issue and therefore M/o I&B had no role in it. In fact the allocation of business rules does not mention anything on this issue. Pity the Copyright Office did not make an issue out of this at the relevant time.
     
    I would for one be a strong votary for an independent Department of IP with all coordination work with it. The IP offices need to be made free of Government interference of the kind we see today. The Patent Office still has to pay obesiance to the DIPP and the Copyright Office is but a division of the Department of Higher Education of the MHRD. It would not be bad idea to have this department report to the Prime Minister just as DAE does.
     
    As regards a National IP Policy that is being talked of nowadays, I would be strong votary for not having a policy of this type. A documented policy is likely to stymie the intra-Government debate and is likely to be used by our trading partners as the proverbial long rope to help us hang ourselves with.”

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