Justice Prabha Sridevan, Chairman of the IPAB, who just a few days ago upheld India’s first post TRIPs era Compulsory License, gave a very well received speech “Life of P.I.” (Public Interest) as the keynote speaker for the MIP India and Innovation Forum held in Delhi yesterday. Her marathon 7 hour dictation while upholding the compulsory license order started out by establishing that ‘Compulsory Licensing’ is not a bad word and her keynote address yesterday seemed to place that thought in the broader context of the inherent and integral presence of Public Interest in IPRs. Although short, her speech was rich in scope as well as examples and touched upon several instances of this PI in IP, including in compulsory licenses, purity of trademark registries, bio-prospecting, the IPAB, and equitable conduct of applicants. Notably, she also points out that India’s IP policies cannot be ignored by the rest of the world anymore.
I reproduce some portions of her speech below but would recommend reading the whole speech provided in the link below!
Life of P.I.
“The creation of the intellectual property is itself in public interest and we only have to imagine a world without the patented inventions and the copyrighted works of literature and art, and the Brand names that signify quality and perhaps Champagne. It is also in public interest to define the extent of ownership strictly, so that neither will the rights owner get more than he deserves, nor will the commons occupant constantly have to worry if he is trespassing.” … “But now before you, the reference to public interest will be the general interest of the public, the “public interest” that was in the mind of the Parliament when it referred to “dissemination of technology” or “public health” or “socio-economic development” etc in the Chapter on Compulsory licensing in the Patents Act; or the words “deceive the public” or “cause confusion on the part of the public” in the Trade marks Act and so on. The reference is to “us the people”, or you may say that “We, the People”, are concerned if the incentive to innovation, enterprise, or creativity is at the cost of justice… The presence of limited term monopolies, compulsory licensing, fair use, maintaining the purity of a register, avoidance of squatting and clogging are evidence of Public Interest in the Intellectual Property Rights space.”
“Why did the inventor, creator, artist, or artisan spend his time and energy to claim rights over the intellectual property? Not just to make money, that too for sure. It is also to see the excellence of what he has done and to win universal acclaim. Even before these rights were created there were inventions, compositions etc. Few of us are proof against the lure of applause. Mahatma Gandhi said “Applause comes without a welcome and goes without a farewell”. We are not of such stuff as the Mahatma was made of, and there is also gratification per se when we create the intellectual property. In India intellectual property ownership was known not in the present form but it was implicit in the exclusivity of knowledge that existed in a wide variety of crafts, arts and sciences, and the unique knowledge was passed on by inheritance or to special communities. This was an unlegislated rights-creation. Ideally knowledge should be available to all, but we do not live in an ideal world and the statutes governing intellectual property rights try to balance the inventor’s rights with public welfare.” … “There is an apparent conflict between the right to control information and the right to use it to handle and meet crises.”
Regarding Patent law:
“With his exclusive cache of rights, the patentee is free to reap economic benefits. Meanwhile, society can use the knowledge to build on it and improvise it. Compulsory licenses may be imposed on patented inventions in keeping with greater good. Doomsday may be upon us sooner than we think and retaining an exclusive monopoly over a drug which is the only cure for a galloping super-virus may not only be destructive to the fabric of social progress, but also defeat the purpose of such an invention. But we must encourage the inventive genius for the public benefits from inventions and further the commons become richer after the time of the patent is over. There are inventions which have changed our lives forever. Breakthroughs in medicine help cure diseases that were otherwise deemed incurable. And yet, and yet… the exclusive control over the reins of the invention must not ride as an adversary to affordability and availability. Patent Law systems have their own checks and balances in this regard. ”
“The provision relating to compulsory licensing in the Indian Patents Act is an example of the balanced approach. The grant of a CL for the first time in India caused a huge furore. We wondered whether the heavens had fallen. A patent should not impede the protection of public health and nutrition and should, instead, act as an instrument to promote public interest especially in sectors of vital importance for socio-economic and technological development of India. So if one asks Shylock-like “Is that the law?” The answer must be a Portia-affirmative.” … “If you have to look at anything to see the delicate balance between the individual rights and public interest, it is S.3 (d). The entire S.3 is concerned with what is not patentable. This subsection(d) alone has an Exception, which says that if there is a significant enhancement of efficacy the 3(d)bar is lifted.”
Regarding IP in Litigation:
“In common law systems, while a judge may adhere to the notions of audi alteram partem, there is no active involvement in pursuing the matter till the end – to ensure that due justice is not only done, but seen to be done. It is a possibility that the extra mile may be forged, in a petition filed in public interest, or an IPR issue through a writ petition – otherwise judicial initiative may not kick in. In instances of this kind, the civil law aspect might just come in handy, to handle IPR issues. Therefore a sui generis mechanism to handle the modus operandi of IPR disputes would make the most sense and in this regard the Indian law gives a great deal of flexibility to the IPAB. We need not be hemmed in by procedural barriers it is enough if we ensure that fair play and natural justice govern our proceedings.
The IPAB in India has expressed its position regarding public interest and has held that the words ”person aggrieved” should be construed liberally under the Trademarks Act, and that the primary duty of the Court is towards the public and the maintenance of the purity of the register. It has also held that the definition of the words ”person interested” in the Patents Act is inclusive and therefore extensive and not restrictive. And that it is as much against public interest to have unjustified attacks on a deserving patent as it is to allow an unworthy patent to remain on the register. The Public interest is a persistent presence in intellectual property law and will neither melt nor dissolve into thin air.”
“Next I will touch upon the equitable conduct of the IP applicant. In Trademarks cases, the “clean hands” concept is invoked by the challengers of a mark. In Patents too, the right to an exclusive monopoly does not come easily, the Law expects the owner to deserve it and lapse in compliance with S.8 requirements which relates to the patentee’s conduct results in revocation of the patent. There is a view that insistence on S.8 will be heaping coals on our head, it will discourage foreign industries. It is an arguable point as our Supreme Court is fond of saying. CFR says Public interest is best served by full and frank disclosure. Our law too says so. No entity which intends to do business globally can afford to ignore India and her burgeoning market. That is why Mr. Ang Lee said Namaste. India can stand on her IP laws firmly, the patentee overseas will comply with our law believe me. There can be no compromise on ethics in IP practice, it is in public interest.
So we have seen Pi’s presence in this jurisdiction, in the substantive law, in the procedural law and in the field of discretion! You may ask me who is the hyena, the storm, the Richard Parker or the meerkat. I will allow you to make your guesses.”
To read the full keynote address, click here.