Comparison of National IPR Strategy September 2012, National IPR Strategy July 2014 and Draft National IP Policy, December 2014
Nehaa Chaudhari provided inputs, analysed, reviewed and edited this blog post.
As part of our IPR Policy Series, we have so far CIS has submitted comments to the Department of Industrial Policy and Promotion on the proposed IPR Policy and the first draft of the National IPR Policy, traced the development of the National IPR Policy, evaluated how the IPR Policy holds up to WIPO’s suggestions , filed RTI’s regarding the formation of the IPR Think Tank and the functioning of the Sectoral Innovation Council.
In this blog post Amulya.P compares the National IPR Strategy September 2012 prepared by the Sectoral Innovation Council, the National IPR Strategy July 2014 and the Draft National IP Policy, December 2014 to understand the commonalities and differences between the three.
Vision/ Mission
The vision stated in the IPR Strategy, July 2014 is “To develop India during the decade of Innovation into a major Innovative competitive and knowledge based economy by strategic utilization of IP as an engine for accelerated growth and sustainable and inclusive development.” This is comparable to the vision statement laid out in the Draft National IP Policy, December 2014 (Draft Policy) that states as follows: “An India where IP led growth in creativity and innovation is encouraged for the benefit of all; an India where IPRs promote advancement in science and technology, arts and culture, traditional knowledge and bio-diversity resources; an India where knowledge is the main driver of development, and knowledge owned is transformed into knowledge shared.” The Mission Statement laid out in the Draft Policy reads as follows “Establish a dynamic vibrant balanced intellectual property system in India to : foster innovation and creativity in a knowledge economy, accelerate economic growth, employment and entrepreneurship, enhance socio-cultural development and protect public health, food security and environment among other areas of socio-economic importance”
Clearly the Draft Policy strives for more balance and envisions IPRs as not only a tool to ensure social welfare alongside economic growth, but also envisions IPR as a tool to ensure the sharing of knowledge.
Objectives/ Approaches
The objectives of both the September 2012 National IPR Strategy and the July 2014 National IPR Strategy are more or less to “ Transform India into an innovative economy that would be reflected in high rankings in development and innovation indices from a global standpoint and develop, sustainable and innovation-promoting IPR management system in India while ensuring that the IP system continues to have appropriate checks and balances conducive to social and economic welfare and to a balance of rights and obligations. Besides measures that need to be taken, the strategy also needs to have an implementation matrix and a time bound schedule.”
In addition to this, the September 2014 IPR Strategy Document lays down a four pronged approach- to promote respect for IP, to simulate creation of IPRs ,creation of new IP regimes to address needs of the country and strengthening protection of IP, and to facilitate commercialization of IP. The IPR Strategy of July 2014 expands on this to include the establishing of cost effective, efficient, service oriented administration, institutional capacity building and development of human capital and the integrating of IP components of national sectoral policy and the Addressing of IP issues in international fora.
The Draft Policy though has enumerated seven objectives throughout the report. They are: a) “To create public awareness about economic social and cultural benefits of IP among all sections of society for accelerating development, promoting entrepreneurship, enhancing employment and increasing competitiveness”.b) “To stimulate creation of growth of IP through measures that encourage IP generation.”c) “To have strong and effective laws with regard to IPRs that are consistent with national priorities and international obligations which balance the interests of rights owners with public interest.” d) “To modernize and strengthen IP administration for efficient, expeditious and cost effective grant and management of IP rights and user oriented services.” e) “To augment the commercialization of IP rights, valuation licensing and technology transfer.” f)”To strengthen the enforcement and adjudicatory mechanisms for combating IP violations, piracy and counterfeiting, to facilitate effective and speedy adjudication of IP disputes to promote awareness and respect for IPRs among all sections of society.” f) “To strengthen and expand human resources, institutions and capacities for teaching, training, research and skill building in IP.”
Clearly the Draft Policy lays more emphasis on raising public awareness about the benefits of IP, strengthening the enforcement and adjudicatory mechanisms to combat violations and on balancing different interests during the creation of new IP laws and regulations.
Raising Awareness
While the September 2012 IPR Strategy speaks of raising awareness as a tool in encouraging creation of IP and facilitating commercialization of IP, the Draft Policy envisions an elaborate awareness raising and publicity program. Some of the schemes suggested in the Draft Policy include: Adoption of the slogan “Creative India: Innovative India” and launching an associated campaign on electronic , print and social media by linking IPRs and other national initiatives such as Make in India, Digital India, Skill India and Smart Cities. Reaching out to industry, MSMEs, R&D institutions, science and technology institutes, universities, colleges, inventors, creators, farmers/plant variety users, traditional knowledge holders, designers and artisans through campaigns tailored to their needs and concerns. Promoting the idea of high quality and cost effective innovation as a particularly Indian competence leading to competitive advantage, Involving of eminent personalities as ambassadors to spread awareness of India’s IP, Using audio visual material in print/electronic/social media for propagation, Creating moving exhibits that can travel to all parts of the country, Establishing Innovation and IPR museums, announcing a National IPR day and celebrating world IPR day etc.
The Draft Policy has a much more elaborate program for awareness raising and publicity and this is reflected throughout the document with almost every stakeholder and department being involved in the awareness programme.
MSMEs
The July 2014 IPR Strategy and the September 2012 IPR strategy both call for very similar policies with regard to MSMEs. Both lie emphasis on educating and incentivizing MSMEs to create new IP and formalize existing ones, on government intervention in setting up IP facilitation centers to bring about collaboration between the facilitation centers and the activities of existing industrial clusters, provision of access to databases on patent and non-patent literature to enable prior art research to IITs and NITs free of cost so that they can assist MSMEs or individuals with determining novelty in their inventions free of cost and other provide assistance with the patent application for a fee. While the September 2014 strategy called for identifying such institutions, the July 2014 Strategy does. Both of these strategies however, call for favorable tax treatments toward MSMEs for R&D Expenditures. Both also call for support mechanisms to offset IP costs and facilitate technology transfer through in-licensing from publicly funded research.
The Draft Policy discusses MSMEs in less detail, but still calls for creation of educational materials for MSMEs and highlighting special mechanisms for them to develop and protect IP, encouraging IP creation by establishing and strengthening IP facilitation centers especially in industrial and innovation university clusters, Introducing “first-time patent” fee waiver and support systems for MSMEs and reduce transaction costs in other ways (e.g. prior art search). It does not specifically mention favorable tax treatment to MSMEs or access to databases to determine novelty or provision of assistance with patent application or call for government intervention to better the IP facilitation centers.
Academia and Research Organisations
The July 2014 IPR Strategy and the September 2012 IPR strategy again recommend similar strategies when it comes to academia and research organisations. They both recommend some sort of education/awareness rising targeted at researchers and innovators regarding precautions to be exercised before patent application such as not selling inventions to company at early stages / not publishing research to public etc. they also recommend promoting university startups to motivate scientists to take up technology ventures. They both promote encouraging IITs and other similar institutions to undertake research on national issues like poverty, health, food, security, energy, information technology, bio-technology etc. They both recommend that IP creation be a key performance indicator for universities and institutions that participate in publicly sponsored/collaborative research and development and that this be gradually introduced in Tier 1 and Tier 2 institutions. And finally they both recommend that basic concepts of IP creation and respect for IP as part of formal education at school/college/university/vocational level including a course on IPR that is to be included in the curriculum of all technical programmes recognized by AICTE and in post grad/research programme in science and applied fields in universities.
The Draft Policy recommends all this and more. It recommends the formulation of institutional IP policy/strategy in higher education, research and technical institutions. Even though it recommends educating researchers and innovators regarding IP and precautions to be taken with respect to protecting their invention before publishing, it doesn’t go into detail or state that there is a need to protect against inventions being sold prematurely to companies. The Draft Policy also recommends that public funded research organisations and private sector are to be tapped to create campaigns highlighting the process of IPR creation and the value generated therefrom. It also recommends that IITs NITs etc. be encouraged to focus on research in areas such as nanotechnology, data analytics and ICT in addition to areas such as food security, healthcare and agriculture. Further in addition to creating educational material about IPR at school and university levels, the Draft Policy also calls for online and distance learning programs for all categories of users that focus on IPR. And for IP courses/modules to be introduced in all major training institutes such as judicial academies, National Academy of Administration, Police and Customs Academies, IIFT, Institute of Foreign Service Training, Forest Training Institutes etc., creating IPR cells and technology development and management units in such institutes. The Draft Policy also recommends that IPR be a compulsory subject in all legal educational institutions, NIDs NIFTs, agricultural universities and management institutes, and making IP teaching a part of accreditation mechanism in institutes under the purview of UGC, AICTE MCI as well as IITs and IIMs.
Large Organisations
The September 2012 IPR Strategy recommends that the government encourage large organisations to take a long term view of R&D and make research investments to create strong self-reliant tech portfolio and also acquire the scale to build strategic global positions, it recommends that the government encourage these organisations to share their expertise and resources for national benefit through PPPs, development of high technology base requires strategic relationships with overseas players, it recommends that it be made mandatory for MNCs to align with innovation strategy and the National Innovation systems and that the MNCs be encouraged by the state to leverage their standing and reach to ensure inflow of best practices and investments.it also recommends sops and preferential treatment in public contracts to large Indian organisations with a strong culture of IP creation. And that these organisations be encouraged to tap open innovation platforms and tie ups with academia. The July 2014 IPR Strategy recommends more or less the same strategies with regard to large organisations.
The Draft Policy recommends that public funded research organisations and private sector be encouraged to create campaigns highlighting the process of IPR creation and its value, that MNCs and large organisations develop IPR programs for their employees, that government encourage large organisations to create, protect and utilize IP in India and that the government create an industry-academia interface for encouraging cross-fertilization of ideas and IPR driven research and innovation in jointly identified areas. It makes no mention of requiring large organisations to align with the National IPR Policy, to ensure best practices but also doesn’t particularly mention tax cuts or other sops to encourage large organisations with a strong IP culture. The Draft Policy makes no mention at all of open innovation platforms. In large parts the Draft Policy is vague and lacks specifics with regard to strategies toward large organisations.
Startups and Individuals
The September 2012 IPR Strategy and the July 2014 IPR Strategy both make separate recommendations aimed at startups and individuals. They both recommend that information on the delivery mechanism for support services including things like venture capital funding should be made expedient and that identified public institutions should offer end to end support for creation, protection and commercialization of IP. The September 2012 Strategy also recommends that procedural mechanisms adopted for giving financial support for patent filing should be made smoother and that the assistance provided should be improved. The Draft Policy does not include any specific recommendations with regard to start ups or individuals apart from involving them in the publicity/awareness campaigns. In this measure the Draft Policy seems to fall short.
Strengthening IP Protection/ Creating New IP Regimes
The September 2012 IPR strategy generally called for improvement in institutions that grant IPRs and in institutions that are responsible for its enforcement and expansion of rights to include new IPRs.
The July 2014 IPR Strategy had a significant advance to this and recommended periodic review and streamlining procedures and process and guidelines for search, grant examination, maintenance and registration of IPRs in consultation with relevant stakeholders and benchmarked with best practices. It also recommended that full benefit be taken of global protection systems of WIPO, Patent Cooperation Treaty, Madrid System for International Registration of Marks etc. and that consequent upon amendment in 2012 of the Copyright Act, 1957, consideration be given to acceding to the Marrakesh Treaty for the blind, that avenues for international cooperation in IPR be studied. And finally it recommended that with respect to traditional knowledge and grant of patents in other countries, the Nagoya protocol is a step in the right direction and while the Patents Act, 1970, Biological Diversity Act, 2002 and the Plant Variety Protection and Farmers Rights Act, 2001 address the issue, a sui generis system of protection to check misappropriation is required at the international level.
The Draft Policy generally recommends that there be a review of existing IP laws to update and improve them and remove any inconsistencies, a review of IP related rules and procedures etc. to ensure clarity, simplification, streamlining, transparency and time bound process in administration and enforcement of IP rights. The Draft Policy also recommends that the government actively engage in negotiating international treaties and agreements in consultation with stakeholders, examine accession to some multilateral treaties that are in the countries interest and become a signatory to those treaty that India has defacto implemented so that India can participate in their decision making process. The central problem here is of course that what is in the countries interest may be open to debate, the Draft Policy does not at any point for example indicate whether or not the Government would consider taking on TRIPS plus obligations, the Draft Policy does not clarify what the Governments general stance on such issues would be.
The Draft Policy further recommends that important areas of study and research for future policy development be identified, some examples provided are: a) Interplay between IP laws and other laws to remove ambiguities or inconsistencies, b) Interface between IP and competition law and policy, c) Protection of undisclosed information not extending to data exclusivity, d) Guidelines for authorities whose respective jurisdictions impact the administration or enforcement of IPRs such as patents and bio-diversity, e) Exceptions and limitations and f) Exhaustion of IP rights. A prominent concern here would be data exclusivity, while the policy uses vague language and only wants these issues to be studied, Data exclusivity among others are demands made by the EU and others in Free Trade Agreements that go beyond our obligation under TRIPS and could harm the public interest.
Establishing Cost Effective, Efficient and Service Oriented IP Administrative Infrastructure
The July 2014 IPR Strategy recommends that IPOs be restructured to aim for ISO 9002 model to increase efficiency, quality and cost effectiveness; that after a review of the need of human resources to enable IPOs to discharged workload efficiently the required amount of manpower be employed; that recruitment training and career development of officials has to be reviewed to recruit and retain best personnel in the IPO; that the possibility of providing advisory services and value added products be studied; and recommends that there should be cooperation with IPOs in other countries in the area of capacity building, human resource development and awareness.
The Draft Policy recommends that IPOs be restructured, upgraded and be granted greater responsibility and autonomy taking into account the rapid growth and diversity of IP users and services, it also recommends an increase in manpower according to findings after a review to ensure speedy liquidation of backlog, requirements of global protection systems and productivity parameters. And that the process of recruitment training, cadre structure and career development of officials be studied and reviewed to retain the best talent to enhance efficiency and productivity. The Draft Policy also recommends that the government collaborate with R&D institutions universities, funding agencies, chambers of industry and commerce in providing advisory services which will improve IP creation and management and utilization, promote cooperation with IP offices in other countries in areas of capacity building, HRD, training, access to databases, best practices in search and examinations, use of ICT and user oriented services, enhance international and bilateral cooperation and post IP attaches in select countries to follow IP developments and advice on IP related matters.
Office of CGPDTM
The September 2012 IPR Strategy recommended that Grant/registration procedure to be quickened through recruitment and increasing human resources, that the functioning of IPOs be improved by measures such as: complete digitization of IP records and uploading for public view to improve transparency, communication with applicant/agents to be improved to bring in transparency meticulousness, database to be made searchable so that researchers can conduct effective searches to identify state of the art technology, electronic filing of applications and subsequent examination through electronic mode to be mandatory, Increase in filing fee with specific discounts for identified sectors such as MSEs.
The 2012 IPR Strategy observed that the quality of examination of IP applications needs to be improved and suggested reassessment of procedures followed in IPO to reduce timelines toward statutory actions.
The July 2014 IPR Strategy recommended that the grant and registration procedure be quickened through recruitment and increasing human resources, and that there be regular meetings between the CGPDTM and the National Biodiversity Authority to resolve issues that arise from implementing guidelines about grant of patents on inventions using genetic resources and TK.
The Draft Policy recommended that the government establish close cooperation between IPOs and create a common web portal for ease of access to statutes regulations, guidelines, databases and for better coordination.
The Draft policy also recommended that the CGPDTM examine joining centralized access for search and examination (CASE) and WIPO digital access services (DAS), that the CGPDTM fix and adhere to timelines for grant of registration and disposal of opposition matters, create a service oriented culture, include appointing public relations officers who would make the IP office user friendly, that the CGPDTM conduct periodic audits of processes being adopted in IP administration for efficient grant and management of IP rights.
The Draft Policy also recommended that the CGPDTM implement quality standards at all stages of operations with the aim to obtain ISO certification and adopt best practices with respect to filing and docketing of documents, maintenance of records and digitizing the same including document workflow and tracking systems, and take steps to expedite digitization of the design office and enable online search and filing in the design office
The Draft Policy also recommended that the CGPDTM ensure that public records in IP office are easily available and accessible both online and offline and establish effective coordination between its office and NBA to enable harmonious implementation of guidelines relating to grant of patents on inventions using genetic resources and associated TK, that the CGPDTM remove disparities among different branches of the trademark registries and patent offices and adopt standardized procedures in examination/grant of applications including maintenance of rights, implement centralized priority field wise on a national basis and provide value added services in form of helpdesks, awareness and training materials, patent mapping, licensing and technology transfer support services, ease of remote access of the international patent search mechanisms and other IP related databases. And that the CGPDTM implement incentives for MSMEs to encourage filing by the said sector like waiver of official fee, support of examiners and pro-bono legal help for the first time filing.
Administrative Departments of Other IP Institutions
The September 2012 IPR Strategy and the July 2014 IPR Strategy both generally recommended that the administrative departments of other IP institutions also take up similar actions as the CGPDTM.
The Draft Policy however, goes into this with some detail. The Draft Policy recommends that with regard to the office of Registrar of Copyright, the Government take measures to expedite modernization of the office both in terms of office space and infrastructure and in terms of introducing e filing facility including e- applications, electronic processing and issuance of final extracts of registrations etc. It also recommends that all copyright records be digitized and that the government introduce an online search facility and provide necessary manpower and adequate training facilities to personnel in the copyright office. It further recommends that the government take urgent measures for the effective management and administration of copyright societies to ensure transparency and efficiency in the collection and disbursement of royalties in the best interests of rights holders and that the government provide user friendly services in the form of help desks, awareness raising and training materials.
The Draft Policy recommends that the registrar of Semiconductor Integrated Circuits Layout Design study the reasons for lack of interest in filings under the Semiconductor Integrated Circuits Layout Design Act, 2000 and suggest appropriate measures. The Draft Policy also recommends that the government formalize a consultation and coordination mechanism between the National Biodiversity Authority and the IPOs with a view to harmonious implementation of guidelines for grant of IP rights and access to biological resources and associated traditional knowledge and benefit sharing.
Institutional Capacity Building
The July 2014 IPR Strategy recommended that the RGNIIPM act as a think tank, carry out research on IP matters, formulate and deliver training courses and develop teaching curricular for academic institutions, develop linkages with other national and international institutions involved in similar fields and develop joint training programs and conduct joint research studies on IPRs including programs for plant variety protection and issues related to traditional knowledge and bio resources. And establish IP institutes with state governments for raising awareness and training and teaching.
It also recommended that the MHRD IPR chairs provide support to all ministries and departments in policy making law making and negotiations under bilateral or multilateral frameworks. The Strategy also recommended that institutes responsible for training customs, police, judiciary, forest research institutes have IP training as an essential part of the curriculum, that National level institutes associated with creation enforcement or commercialization should be encouraged to incorporate IP training and capacity building in their operations and finally that industry, business, IP professional bodies, inventers associations, venture capital funds etc. should be encouraged to develop IP training modules for their members as well.
The Draft Policy recommends all this and more and suggests that RGNIIPM Nagpur conduct training for IP administrators , managers in the industry, academicians, R&D institutions, IP professionals, inventors, civil society apart from training the trainers, developing training modules and links with other similar entities at the international level and set up state level institutions. Further it recommended that the MHRD IPR Chairs provide high quality teaching and research, develop teaching capacity and curricula and evaluate their work on performance based criteria.
The Draft Policy also recommends that the CGPDTM provide continuous training to the IPO staff and update them with developments in procedures, substantive laws and technologies along with the RGNIIPM.
The Draft policy also recommends that the government establish national level institutes of excellence to provide leadership in IP, conduct policy and empirical research, examine trends and developments in the field of IP at the national and international level, support the government in strategic development of IP systems and international negotiations, establish links with similar institutes and experts in other countries for exchange of ideas, information and best practices and suggest approaches and guidelines for inter-disciplinary human capital development. And that the government facilitate industry associations, inventors and creators associations and IP support institutions to raise awareness of IP issues for teaching, training and skill building.
Strengthening Institutional Set-up to Improve Enforcement of IPRs and Create Respect for IPRs
The September 2012 IPR Strategy and the July 2014 IPR Strategy both recommend that the government encourage small and niche businesses to protect their products through trademarks, the September 2012 Strategy also adds that these businesses should be encouraged to seek international protection to participate in global competition and contribute to international trade activities. The Draft Policy recommends increasing awareness of international mechanisms and treaties (e.g. PCT, Madrid and The Hague) to encourage creation and protection of IP in global markets.
The 2012 IPR Strategy and the July 2014 Strategy go into further detail, they recommend that the service sector be encouraged to adopt strategies for registration of trademarks to ensure competitiveness and to leverage the goodwill of strong indigenous brands that have acquired traction in international markets. They also recommend that SME clusters be encouraged to develop a comprehensive database of their products to ensure that a parent isn’t issued on unprotected innovations.
As far as GI is concerned, both the July 2014 and the September 2012 IPR Strategy recommend that central public bodies such as the development commissioner for handicrafts and handlooms etc. partner with the suitable state, district and Panchayat level entities to educate communities on the benefits of registering GIs, to put in place examination protocols to ensure GI owners comply with quality standards. They further recommend that these bodies develop a roadmap to build brands for better market presence for products registered as GIs and coordinate with relevant state authority on enforcement and provide periodical updates to enforcement taskforce on issues that need redressal.
The Draft Policy only recommends that the government encourage registration of GI through support institutions and assist GI producers to define and maintain acceptable quality standards and providing better marketability.
As far as designs are concerned, both the July 2014 IPR Strategy and the September 2012 IPR Strategy recommend that the government encourage a move from informal to formal practices of protecting designs by administrative intervention, while the Draft Policy recommends the encouraging of creation of design related IP rights by identifying, nurturing, and promoting aspects of innovation protectable under the design law and educating designers to utilize and benefit from their designs , involve the NIDs , NIFTs and other institutions in sensitization campaigns.
With regard to plant varieties, both the 2014 and 2012 IPR Strategies recommend awareness generation programmes to encourage filings of new extant and essentially derived varieties. While the 2012 IPR Strategy further stated that there was a need to evaluate whether restructuring institutions/merging all IP issues under one umbrella would improve efficiency and a need for centrally managed National IP Enforcement Taskforce that could :a) Maintain database on criminal enforcement measures instituted for trademark infringement and copyright piracy, civil cases filed to be collated also, b) Mandated to deliberate upon operational issues of enforcement with the concerned Central and State agencies, c) Conduct periodic industry wise infringement surveys d) Coordinate capacity building programmes for the central and state enforcing agencies.
The Draft Policy recommends that the protection of plant varieties and farmers rights authority should: a) Support increased registration of new, extant and essential derived varieties and streamline procedures, b) Facilitate development of seeds and their commercialization by farmers., c) Establish links with agriculture universities, research institutions, technology development and management centers and Krishi Vikas Kendras, d) Coordinate with other IPOs for training sharing expertise and adopting best practices, e) Augment awareness building, training and teaching programs and modernize office infrastructure and use of ICT.
With regard to Traditional Knowledge, the Draft Policy also recommends that the government create a sui generis system for protecting TK which will safeguard misappropriation of traditional knowledge as well as promote further research and development in products and services based on traditional knowledge.
Creation of New IP Rights to Address Gaps
The September 2012 IPR Strategy recommended protection of utility models, utility patents as they have Protection of utility model. Utility patents / models proposed as they have less stringent patentability criteria, faster examination/grant, shorter term of protection as a cost effective way to incentivize incremental innovation and encourage creation of IPRs, with sector specific exemptions to ensure TRIPS compliance. And included a proposal for a predictable recognizable trade secret regime to improve investor confidence and facilitate flow of information.
The Draft Policy also recommended that the government facilitate creation and protection of small inventions through a new law on utility models, enact laws to address national needs to fill gaps in protective regimes of IPRs such as utility models and trade secrets to keep up with advancements in science and technology to strengthen IP and innovation ecosystem from example IP created from public funded research, to protect and promote traditional knowledge. As pointed out in the CIS Submission to the IPR Think Tank, the creation of utility models should by no means be assumed to be completely uncontroversial, many countries that had this system have now given it up, further this could lead to granting of frivolous patents and thereby harming development.
Facilitating Commercialization of IPRs
Both the July 2014 and the September 2012 IPR Strategies have similar recommendations with respect to facilitating commercialization of IPRs; they both recommend policy interventions to create strong and transparent national strategies to encourage: licensing of rights to another entity for commercialization, cross licensing agreements, leveraging the intellectual assets for future R&D growth and improved services, sale merger acquisition of either IPR or entire business distinguished and appropriately valued by their intellectual capital, patent pooling, reinforcing stability of IP license contracts.
And they both recommend that National research laboratories and academia and public institutions to stimulate commercialization of research resultants: intervention in building strengthening institutional capacity of research led organisations to enable utilization of IP.
The 2012 IPR Strategy also recommends national level policy changes to encourage development of indigenous technologies, that government fund (grants/loans) demonstration projects of new technologies that require large investment, suitable tax breaks for indigenously developed and commercialized products till attainment of some maturity levels, that qualification requirements during tendering process to accord acceptance to indigenously developed products where heavy development investments have been incurred, strengthening the indigenous R&D ecosystem policy frameworks should provide for flexibility in outsourcing technical expertise in niche areas and type testing of prototypes. Further it visualizes the emergence of open innovation systems and the role of voluntary SSOs.
The Draft Policy does all this and more. It recommends that the government establish an IP Promotion and Development Council (IPPDC) as a nodal organization for promotion and commercialization of IPR, the IPPDC is supposed to, among other things, promote licensing and technology transfer of IP, devise suitable contractual and licensing guidelines to enable commercialization of IP, promoting patent pooling and cross licensing to create IP based products and services and also establishing links with similar organisations for exchange of information and ideas as also to develop promotional educational products and services for promotion and commercialization, to facilitate access to databases on Indian IP and global databases of creators/innovators, market analysts, funding agencies, IP intermediaries, to study and facilitate implementation of best practices for promotion and commercialization of IP within the country and outside. IPPDC to establish IP Promotion and Development Units (IPPDU) in various regions The IPPDC is also tasked with identifying opportunities for marketing Indian IPR based products and services to a global audience.
The government is also recommended to provide statutory incentives like tax benefits linked to IP creation for the entire value chain from IP creation to commercialization, to support financial aspects of IP commercialization by: a)Enabling valuation of IP rights by application of appropriate methodologies including for better accounting as intangible assets, b) Facilitating investments in IP driven industries and services through the proposed IP exchange for bringing investors/funding agencies and IP owners /users together, c) Providing financial support to less empowered groups of IP owners or creators like farmers weavers, artisans, craftsmen etc. through financial institutions like rural banks or cooperative banks offering IP friendly loans, d) Taking stock of all IP funding by the government and suggesting measures to consolidate the same to the extent possible generating scale in funding and avoiding duplication, enhancing the visibility of IP and innovation related funds so that utilization is increased, performance based evaluation for continued funding, c) Regulating IP created through publicly funded research by a suitable law.
The Draft policy also recommends that the government promote going to market activities by: a) Creating mechanisms to help MSMEs and research institutions to validate scale and pilot through market testing, b) Providing seed funding for market activities such as participating in trade fairs, industry standards bodies and other forums, c) Providing guidance and support to IPR owners about commercial opportunities of e commerce through internet and mobile platforms. And that the government study the role of IPRs in setting standards in various areas of technology, actively participate in standards setting processes at national, international and industry SSO levels and to encourage the development of global standards that are influenced by technologies and IP generated in India
Facilitating and Encouraging Commercialization of IP Assets
The July 2014 IPR Strategy had specific recommendations to make in this regard. It recommended that the government forge links between creators and inventors , universities, industry and financial institutions for commercialization, that the government establish an IP exchange to stimulate trading of IP and creating markets for IP assets, to facilitate MSMEs to identify protect and commercialize their IP, creations through facilitation centers by providing package of services, to encourage technologies acquired under the patent pool of the Technology Acquisition and Development Fund (TADF) and licensed as per provision in manufacturing policy.
The Draft IP policy recommends all of these, tasking the IPPDC with most of these tasks and also recommends that the government improve awareness of the value of copyright for creators, the importance of their economic and moral rights and the rationalization of payment mechanisms for them, and to support initiative taken by public sector research entities to commercialize their IPRs for commercialization and lastly to develop skills among scientists to access , interpret and analyze the techno-legal and business information contained in IP documents.
Enforcement and Adjudication
The Draft Policy makes very specific recommendations with regard to enforcement and adjudication, apart from suggestions that go toward creating awareness and sensitizing the public, students, industry and inventors about IP, the policy also recommends that the government establish a Multi-Agency Task Force for coordination between various agencies and providing direction and guidance on enforcement measures, creating a nationwide database of known IP offenders, coordination and sharing intelligence and best practices at the national and international levels, studying the extent of IP violations in various sectors, examining the implications of jurisdictional difficulties among enforcement authorities and introducing appropriate technology based solutions for curbing digital piracy.
The government is also tasked with working with state governments in establishing IP cells and including IP crimes under their special laws, increasing manpower and infrastructure of the enforcement agencies and building capacity to check proliferation of digital crimes, providing regular training for officials in enforcement agencies, encouraging application of tech-based solutions in enforcement of IP rights, initiating fact finding studies in collaboration with stakeholders concerned to assess the extent of counterfeiting and piracy and the reasons behind it as well as the measures to combat it and taking up the issue of Indian works and products being pirated and counterfeited abroad with countries concerned.
On improving IP dispute resolution, the Draft Policy recommends the designation of specialized patent bench in the High Courts of Bombay, Calcutta, Delhi and Madras, the designation of one IP court at the district level depending on the number of IP cases filed, working with judicial academies to conduct regular workshops for judges, promoting ADRs in the resolution of IP cases by strengthening mediation and conciliation centers and developing ADR capabilities, creating regional benches of the IPAB in all five regions where IPOs are located, increasing the powers of IPAB in its administration including autonomy in financial matters and selection of technical and judicial members and providing necessary infrastructure for its effective and efficient funding and also taking urgent steps to make the copyright board function effectively and efficiently and provide adequate infrastructure and manpower to it.
Work Plans
In addition to all of the above, the July 2014 IPR Strategy also recommends a work plan which includes commissioning a study on schemes and programs financed by the government including under the PP mode for innovation, signing and acceding to the Marrakesh Treaty, the NICE agreement on international classification of goods and services for the purpose of registration of trademarks, assessing the Hague Agreement regarding registration of industrial design vis a vis India’s Designs Act with a view to accede to the treaty, assessing the possibility of accepting facilitation centers run by universities/academic institutions/departments of science and technology as receiving offices for patent applications where there are no patent offices.
The Draft IP Policy also makes recommendations to integrate IP with other government Initiatives like Make in India and Digital India, and plans to integrate into these government initiatives the different schemes of the Department of Electronics, and IT for IP promotion and global protection. It further recommends the establishing of a high-level body in the government to co-ordinate, guide and oversee the implementation and development of IP in India in accordance with the National IP Policy. The body will be responsible for bringing cohesion and coordination among different ministries and departments with regard to how they deal with IP matters, laying down priorities for IP development and preparing plans of action for time bound implementation of national and sector specific IP policies, strategies and programs, monitoring the progress and implementation of the National IP policy linked with performance indicators, targeted results and deliverables, annual evaluation of the overall working of the policy and a major review of the policy ever three years.
Concluding Observations
The National IPR Strategies of 2012 and 2014 contain more or less similar recommendations, the key differences being that the 2014 IPR Strategy emphasizes the need to address IP issues in international fora and in establishing cost effective, efficient and service oriented IP administrative infrastructure. It does not, in contrast to the 2012 IPR Strategy, recommend the introduction of laws on utility models or protection of trade secrets, policy changes to encourage development of indigenous technologies, but it does more specifically address facilitating commercialization of IP.
The Draft Policy is an important advance over the National IPR Strategy of July 2014 and September 2012. It places makes important new recommendations with regards to publicity and awareness raising, creation of legal regime with regard to traditional knowledge, utility patents and trade secrets, enforcement and adjudication- including the setting up of new courts, creation of the IPPDC and of a new high-level government body to oversee the implementation of the policy. It does however miss out on the chance to help start-ups, MSMEs and individuals in contrast to recommendations of the previous IPR Strategies. And in context of its avowed aim to turn knowledge owned into knowledge shared does little to encourage open access and focuses heavily on IP creation assuming that increase in IP would promote innovation and thereby lead to national development.
Sectoral Innovation Council, National IPR Strategy, September 2012, Available at: http://dipp.nic.in/english/Discuss_paper/draftNational_IPR_Strategy_26Sep2012.pdf (Hereafter : National IPR Strategy, September 2012)
National IPR Strategy, July 2014, Available at: http://dipp.nic.in/English/Schemes/Intellectual_Property_Rights/national_IPR_Strategy_21July2014.pdf (Hereafter: National IPR Policy, July 2014)
IPR Think Tank, Draft National IP Policy, December 2014, Available at: http://dipp.nic.in/English/Schemes/Intellectual_Property_Rights/IPR_Policy_24December2014.pdf (Here after: Draft Policy)
National IPR Strategy, July 2014, p.5
[5] National IPR Strategy, July 2014, p.5
National IPR Strategy, September 2012, pp.11 and Draft Policy, December 2014, pp.5
National IPR Strategy, September 2012, pp.11
National IPR Strategy, July 2014, pp.5-6,
National IPR Strategy, September 2012, pp. 7, 11, 12, 19 20
National IPR Strategy, September 2012, pp. 21
National IPR Strategy, September 2012, pp.6-7 , 12-13 and National IPR Strategy, July 2014 , pp.6-8
Draft Policy, p.5, 9-10, 15,18-19
National IPR Strategy, September 2012, pp. 7, 13-14 and National IPR Strategy, July 2014 , pp.8-9.
National IPR Strategy, September 2012, pp.6, 14-15 and National IPR Strategy, July 2014 , pp.9-10
National IPR Strategy, September 2012, pp. 7, 15 and National IPR Strategy, July 2014 , pp.10
National IPR Strategy, September 2012, pp. 7, 15
National IPR Strategy, September 2012, pp. 15
National IPR Strategy, July 2014 , pp.10-12
Swaraj Paul Barooah, Data Exclusivity back on the table for India, SpicyIP, March 27, 2015, Available at: http://spicyip.com/2015/03/data-exclusivity-back-on-the-table-for-india.html
National IPR Strategy, July 2014 , pp.11-12
National IPR Strategy, September 2012, pp. 15-16
National IPR Strategy, September 2012, pp. 16
National IPR Strategy, July 2014 , pp. 12-14
National IPR Strategy, September 2012, pp.16 and National IPR Strategy, July 2014 , pp.14
National IPR Strategy, July 2014 , pp.14-15
National IPR Strategy, July 2014 , pp.15
National IPR Strategy, July 2014 , pp.15
National IPR Strategy, September 2012, pp.18 and National IPR Strategy, July 2014 , pp.15-16
National IPR Strategy, September 2012, pp.17-18 and National IPR Strategy, July 2014 , pp.16-17
National IPR Strategy, September 2012, pp.19 and National IPR Strategy, July 2014 , pp.16
National IPR Strategy, September 2012, pp.19-20 and National IPR Strategy, July 2014 , pp. 17-18
National IPR Strategy, September 2012, pp. 20 and National IPR Strategy, July 2014 , pp.18
National IPR Strategy, September 2012, pp. 18
National IPR Strategy, September 2012, pp. 20-22
See, CIS Comments to the First Draft of the National IP Policy, Available at: http://cis-india.org/a2k/blogs/national-ipr-policy-series-cis-comments-to-the-first-draft-of-the-national-ip-policy
National IPR Strategy, September 2012, pp. 22 and National IPR Strategy, July 2014 , pp. 18-19
National IPR Strategy, September 2012, pp.22 and National IPR Strategy, July 2014 , pp.18
National IPR Strategy, September 2012, pp.23
National IPR Strategy, July 2014 , pp.19
