[Long post ahead. But it mostly consists of a timeline of events regarding formation of / comments on Indian IP policy over the last 9 months – a timeline that paints a very worrying picture!]. [Editor’s note: Minor additions have been made to the timeline based on comments received – 6/5/2015]
Last week, in an email Shamnad sent to our subscribers, as well as in my post “Modi shames India, calls patent laws under-developed“, we noted how Modi’s referral to India’s patent laws as not being compliant with global standards, was a very problematic one. A couple of days ago, the USTR issued their annual “Special 301 Report”, which listed India on their “Priority Watch List”, designated for countries the USTR deems as having a poor IPR regime. Whether in response to the outcry over the Prime Minister’s statement, or whether in response to the USTR report, Commerce and Industry minister Nirmala Sitharaman has come out with some strong words. The Hindu reports her as saying, “India believes in a strong patent regime. We are compliant with international standards,” while the ET reports her as saying India is fully aligned with international intellectual property rights standards and “there is no need for anyone to question us.”
It’s interesting to note Sitharaman’s stance of India’s regime as being a ‘strong’ one – for this employs the rhetoric that western countries have often used against India., i.e., calling their own preferred version ‘strong’, automatically implying that the other is ‘weak’ and thus undesirable. The west’s arbitrary reference to their patent regime, (which amongst other things can’t stop ever-greening, allows the stupidest of inventions to be patented, etc,) as a ‘strong’ one is something I’ve had a problem with for years. I’m very glad to see that India is finally referring to our own regime, which actively seeks to stop ever-greening, as a ‘strong’ one. (This of course does not mean we don’t have IPR issues of our own to address. However, it would be foolhardy to take these comments out of the present context where India is facing international pressure for certain types of IP provisions). Sitharaman also rightly notes that till now, India hasn’t been taken to any international court on IPR matters, while acknowledging that nevertheless, India does need a greater push for innovation – a welcome separation of focus on IPR, and focus on innovation. She also tried to clarify that the PM’s statement actually meant that India was already compliant with global standards, and must continue to be so — though I can’t say I find that a very convincing explanation.
Timeline: India on IPR policy (Sept 2014 – May 2015), including US pressure.
However, as admirable as Sitharaman’s defence of India’s IPR regime may be, the differences in stances within the government point to a very problematic trend. I’ve put together a timeline of important events – what India has said about its IPR regime, and what pressure it has faced from the US – since September 2014. It reveals some worrying information: Modi seems inclined towards giving in to US pressure; at the same time, Sitharaman keeps saying India’s IP regime is fine; USTR seems to think it’s influencing Indian IP policy; and no one really seems to know what’s happening in and around the IPR think tank which is apparently setting our IPR policy!
- Sept 9th. 2014: Sitharaman says India has well-established IPR laws but need to spell it out in the form of a policy. Says, “We are very strong in IPR and we certainly want to protect our interest… Just because we do not have a policy, they [USTR] are picking holes in our IPR regime,” [ET link]
- Sept 23rd, 2014: We report that civil society, academics, etc send an open letter to PM, worried about implications of saying India has no IPR policy. [SpicyIP link]
- Sept 30th, 2014: After a meeting of US President Obama and Indian Prime Minister Modi, a USA-India joint statement was released. Tucked away in one line in the midst of this long joint statement, was a worrying commitment to ‘establish an annual high-level Intellectual Property (IP) Working Group with appropriate decision-making and technical-level meetings as part of the Trade Policy Forum.” (For the uninitiated, this is precisely the manner in which USTR applies pressure on countries around the world to change their IP policies as per USTR’s wishes). [SpicyIP link]
- Oct 14th, 2014: We report that USTR will be conducting an “Out-of-Cycle” review of India’s IPR regime, to see if the new government was more friendly towards USTR’s idea of good IP policy. [SpicyIP link]
- Oct 16th, 2014: The Indian govt takes a strong stance and refuses to co-operate with unilateral OCR mechanisms by USTR, as per anonymous government official. Anon govt official also says new IPR policy “would settle the matter forever”. [SpicyIP link] [Business Standard link]
- Oct 22nd, 2014: DIPP announces formation of new IPR think tank. [DIPP announcement]. Later, (Dec 3rd) we report the mysterious circumstances around an arbitrarily dismissed draft of the National IPR Policy, followed by a re-constitution of a new body to make a new draft, just 3 days after the (now arbitrarily dismissed) first draft had been submitted. [SpicyIP link 1] [SpicyIP link 2]
- Nov 13th, 2014: New IPR think tank calls for comments on National IPR Policy despite no draft policy or documentation issued by them. Due date is 30th November. [SpicyIP link]
- Dec 16th, 2014: USTR takes a u-turn and applauds new Indian govt, and say Modi govt is taking the right steps towards fixing its IPR regime, even though India hadn’t taken any (known) action besides promising an IPR policy – as per anonymous government official. [Business Standard link] [SpicyIP link]
- Dec 24th, 2014: Newly formed IPR Think tank released a 30 page draft IPR policy. [SpicyIP link]. [draft IPR policy – PDF]
- Dec 30th, 2014: Think tank calls for comments by Jan 30th, 2015. Stake-holder consultations to be on Feb 5th. [DIPP Press release]
- Jan 26th, 2015: Modi announces that he is more than happy to accept the suggestions made by the IP Joint Working Group. No news available on what these suggestions are. [SpicyIP link]
- Jan 27th, 2015: USTR Michael Froman gives a written statement to their Senate Committee on Finance, including the following line: “Use of the out-of-cycle review helped to secure commitments from India in the 2014 Trade Policy Forum on a broad range of IP issues of concerns to the United States and its stakeholders.” [IP-Watch link] [Froman’s Statement – PDF]
- Feb 1st, 2015: We report that Senior Advocate and former UN Special Rapporteur Anand Grover has sent an email alert that inside sources indicate Modi is keen to assure Obama that India will agree to changes made by them. And that these changes are likely to include Data Exclusivity and Patent Linkage – both of which are TRIPS plus provisions. [SpicyIP link]
- Feb 9th, 2015: We start receiving/collecting copies of submissions made to DIPP on the draft policy. Many are very critical of the draft. [SpicyIP link 1] [compilation of all comments received by SpicyIP]
- Feb 10th, 2015: Nirmala Sitharaman announces that there is no question of ‘appeasing’ US or anyone else on IPR. [LiveMint]
- Feb 25th, 2015: Nirmala Sitharaman, in Rajya Sabha, says there is no proposal to amend the Indian Patents Act. [Outlook]
- April 15th, 2015: CIS receives responses from DIPP on RTIs around IPR Think tank. Responses show cause for concern. [CIS link] [SpicyIP link]
- April 23rd, 2015: Modi announces that India’s IPR standards are below global standards, and that India needs to work on bringing their standards to global standards. [SpicyIP] [Business Standard]
- May 1st, 2015: USTR announces Special 301 Report. India is on Priority Watch List.
- May 3rd, 2015: Sitharaman announces that “India believes in a strong patent regime. We are compliant with international standards“. [ET link]
All in all, a very inconsistent timeline of events – one that does not tell me any good stories of what’s happening with our IPR regime. Why are there contradicting positions coming out of the government? Whose position carries more weight – Modi’s or Sitharaman’s? How are either of them commenting on our policy if they’ve asked an IPR think tank to come up with a new IPR policy? What exactly is going on with our IPR think tank? Who are they answerable to? What influence is the USTR having on our policy? Who decides our IPR policy? And on what basis?
So many questions… are there any answers out there???
” I’m very glad to see that India is finally referring to our own regime, which actively seeks to stop ever-greening, as a ‘strong’ one. (This of course does not mean we don’t have IPR issues of our own to address) ”
This statement of yours indicate that there definitely is room for some improvement in our own policy. Guess everything of West is not right and so is true for countries situated in the East..
There is definitely room to improve our policy! And this improvement must be brought about very soon. As a simple example, we must make our innovation system more accessible to the poor as well – who currently are quite excluded by the patent system.
However, in the context of US pressure on India to modify India’s IPR policies, it is no secret that US (due to their strong Big Pharma lobby) is asking India to make life easier for big pharmaceutical companies, by allowing them to sit on patented drugs with minimal effort. And in this context, India’s current policies are doing quite well, by watching out for India’s national interest, and not the interest of Foreign pharma companies. If India does pander to Big Pharma here, it literally means the lives of Indians are on the line!
Even in the pharmaceutical sector, there is room for improvement – for e.g., see Prashant’s post here (https://spicyipweb.wpcomstaging.com/2015/04/guest-post-a-captured-commerce-ministry-puts-profits-before-the-safety-of-made-in-india-medicines.html) , with some very pertinent questions as to why India seems to be getting defensive about its drug manufacturing quality standards, instead of directly showing whether it is safe or not. It would appear, from his post, that the Commerce ministry is covering up something, out of fear that local industry would be affected. However, this too, can affect the lives of people – and industry, even if local, should not be prioritized over these lives!! Here too the government must get its act together, and not blindly defend India!
In other words, I’m defending India’s pharma IPR policy here, simply because there is huge pressure for India to make those particular standards much worse than they currently are. This does not mean India is right in all its policies.
High level of interference by politicians in the functioning of relevant office maligns its integrity, which ultimately effects the final policy-outcome. Ambiguities are raised deliberately by politicians to keep both sides happy. While UPA was pretty deft at this, NDA seems very immature to handle such issues. Perhaps this is why they are issuing contradictory statements. Whatever the case may be, it’s high time that politicians start thinking more as policy makers by keeping the public concern at its helm, especially while acting upon technical issues like Intellectual Property Rights.
I don’t want to comment on IP policies of other countries, but in my opinion Indian has strong IP policy and well defined Patent Act. Section 3 of Indian Patent Act defines inventions not patentable which in-compliance with protecting national interest is. But IPO needs to overcome the procedural delays associated with examination and granting of patent application and strongly improve the patent search tool.