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.
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.