India set to review Intellectual Property laws ahead of Donald Trump's visit

Even as India and the United States are working overtime to make the forthcoming visit of the US President Donald Trump to India a grand success, the Union Ministry of Commerce and Industry has initiated a discussion on a topic that is of tremendous interest to the US lobby groups - a review of India's intellectual property (IP) laws.

The purpose of the discussion is to suggest ways to make Indian IP laws, the laws that govern patents, copyrights and design rights etc, contemporary by drawing up a list of needed amendments.

The areas where the Department of Promotion of Industry and International Trade (DPIIT) has sought specific suggestions by stakeholders relate to rules on working of patents, pre-grant opposition provisions and the scope of patentability in general. Most of these areas are considered as hurdles to secure IP-linked market exclusivity for innovation-led companies.

For instance, Indian laws state that if a product that has an Indian patent is not commercially introduced in the market within a stipulated time, the patent rights can be stepped aside to provide compulsory manufacturing licences to competition to ensure that the patent is not misused to deprive India of the particular product. The clause was considered important from a pharmaceutical point of view as inordinate delay in the introduction of a patented medicine is directly linked to the patient's ability to access that medicine. The need to review this clause arose after several other technology driven industries such as IT and telecom, which complained about the clause stalling innovations in India. They felt that multinational companies would be encouraged to set up R&D base in India only if they have complete rights over the innovation.

The pre-grant opposition provision, which allows competition to oppose grant of patent before it is awarded did not find favour with global corporations as they complain that it is being rampantly misused by their competitors (generic companies in the case of pharmaceuticals) to delay the grant of patent to innovator company. The DPIIT is known to be looking at the possibility of doing away with the clause altogether, or make stringent conditions to further tighten pre-grant opposition procedures.

The third area that is of tremendous interest for the multinational corporations is the expansion of the definition of "invention" to include more products and newer technologies into the list of items that can seek IP protection. Gene therapy, an emerging area in medical science, is one example of technology that could be considered to be included through an amendment.

It is known that comments were also sought on the proposal to amend rules related to licence and royalties as well as overhaul of design law to turn them more contemporary.

The industry stakeholders admitted that the discussion is at a preliminary stage, but appears promising.

The decision to review the IP Act itself could be a good news for agencies, including the office of the United States Trade Representatives. It could be the first step towards a change.

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