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GIPC IP Index: India ranked last


The U.S. Chamber of Commerce Global Intellectual Property Centre recently released the latest ‘International IP Index’. As per this report, India has been placed last in terms of protection and enforcement of Intellectual Property practices out of 25 countries. India scored only 6.95 points out of 30. US ranked the highest, scoring 28.5 on 30.

Even in the previous GIPC Index, India was ranked last.

However, the findings of this report need to be examined. As Swaraj pointed out (here), even in the first edition of the GIPC, India’s low rank was attributed significantly to the Novartis judgment and its ‘continued use of CLs’. As is evident, Indian has not ‘continuously used CLs’, India has issued only one compulsory license so far. Also, after the Nexavar CL, the IPO rejected the CL application for Dasatinib (here and here).

As for the Novartis case, the report suggests that S. 3(d) is a “‘fourth hurdle’ with regard to inventive step” and is therefore TRIPs violative and 40 other countries have granted the patent to Novartis but India has not. Clearly, the issue of S. 3(d) being TRIPs compliant/voilative is not so cut and dry. Arguments have been made that show that S. 3(d) is not TRIPs violative.

Given the deficiency of reasoning for coming to these conclusions and also given the fact that this report is prepared by the U.S Chamber of Commerce without adequate representation from other countries, the report’s findings need closer thought and should not be taken at face value.

GIPC

The index evaluates and ranks countries on 6 factors viz. i) patents, related rights and limitations; ii)copyright, related rights and limitations; iii) trademark, related rights and limitations; iv) trade secrets and market access; v) enforcement and vi) membership and ratification of international treaties.

General observations on India’s IP performance “In India, the national IP environment continued to deteriorate in 2013 across a number of critical areas. In the biopharmaceutical space, Indian policy continued to breach international standards of the protection of innovation and patent rights, revoking patents generally accepted around the world and announcing that other patented medicines are being considered for compulsory licenses. Most notable was the April decision by the Supreme Court of India on the patentability of the anti-cancer drug Glivec; the court held that the drug did not meet patentability standards as imposed by the Indian Patent Act’s Section 3(d) regarding “incremental innovation” and limiting patent protection to what is specifically disclosed, again in contradiction to global norms. This is despite Glivec being recognized as a breakthrough drug and given protection in 40 jurisdictions around the world. Given the prominence and size of India’s generic pharmaceutical industry, other countries have taken notice and begun to introduce similar provisions into their own laws and regulations […]The continued use of compulsory licenses, revocation of patents, and weak legislative and enforcement mechanisms across all IP rights raise serious concerns about India’s commitment to promoting innovation..

It appears that India’s key areas of weakness as per the index are:

1. Patentability requirements in violation of TRIPS;
2. Regulatory data protection not available;
3. Patent term restoration not available;
4. Use of compulsory licensing for commercial and non-emergency situations;
5. Limited takedown mechanism in ISP notification system;
6. Limited DRM legislation;
7. High levels of software piracy, music piracy, and counterfeit goods;
8. Poor application and enforcement of civil remedies and criminal penalties
9. Not a contracting party to any of the major international IP treaties referenced in the IP Index

Other BRIC economies:

China, has improved its score from last time. In the category of Patents and related rights/limitations it scored the highest of all middle income countries and even out performed high income countries such as Chile and the UAE.

Russia’s score increased because of stringent implementation of ‘take down notices’ and the creation of an IP specialist court in 2013.

Australia and Brazil seemed to have slipped:

The reported observed that the “Australian government has limited the ability of pharmaceutical companies to seek adjudication of patent infringement by placing extra costs on companies whose claims are found to be invalid/ non-infringing.”

Brazil’s introduction of the ‘patent reform initiative’ in 2013 that purports to narrow patentability criteria along the lines of India’s S. 3(d), was one of causes of Brazil’s rank slipping.

 We would like to thank Astha Negi for this hat tip.

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Aparajita Lath

Aparajita graduated from the WB National University of Juridical Sciences, Kolkata. She was formerly an editor of the NUJS Law Review. She is a lawyer based in Bangalore. All views expressed by her on the blog are her personal views.

3 comments.

  1. AvatarR.S. PRAVEEN RAJ

    US Agency has ranked India at the bottom, because our country is more vigilant about Human rights violations (Access to cheap drugs also is part of fundamental rights of a citizen).

    According to the report, in the bio pharmaceutical space, Indian policy continued to breach international standards of the protection of innovation and patent rights, revoking patents generally accepted around the world and announcing that other patented medicines are being considered for compulsory licenses.

    There is a term called ‘Law of the Land’. We should make laws preferable to the citizens of the Country. Compulsory Licensing, Patent revocations etc. are some safeguards available in our Patent Act. I remember the following statement made by Sir Robert Reid, (a famous philosopher and politician) before the UK parliament.

    “I entirely agree…. About the necessity of revoking patents granted in this country to foreigners who do not work them here. Nothing can be more absurd or mere outrageous than that a foreign patentee can come here and get a patent and use it, not for the purpose of encouraging the industries of this country, but to prevent our people doing what they otherwise would do. To allow our laws to be used to give preference to foreign enterprises is, to my mind, ridiculous.”

    The above statement is more relevant for countries like India.

    Reply
  2. AvatarDr.S.Rama murthy

    The news that India scoring only 6.95 points out of 30 need not discourage the Indian scientific community. Indian patent laws are very good and and quality patents are granted. The funds available for research work are very less compared to major countries. Most of innovative products and processes are not protected by patents due to lack of funds in Educational Institutions and R&D institutions , which results in lower number of patents. India needs to gear up in Patent activities by training more engineers and scientists in the IP area and should bring IP culture among the innovators.

    Reply
  3. AvatarEric Dias

    This report seems to be completely fabricated. Come-on man, you don’t expect some of the countries mentioned in the report to have better patent filing and enforcement systems that India. I think the report is completely biased and fabricated. I find this extremely hard to believe being a practitioner in this filed for the last 12 years including experience in US,EP, CN and In practice.

    Reply

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