Intellectual Property Rights in India

India remains one of the world’s most challenging major economies with respect to protection and enforcement of IP. The pace of reform has not matched high-level calls to foster innovation and promote creativity. India was listed on the Priority Watch List in USTR’s Special 301 report for 2018. The country continues to remain the home to several "Notorious Markets" across the breadth of the country, according to USTR’s latest report.

Recent Developments

Intellectual Property Index 2018

The US Chamber of Commerce’s intellectual property rights advocacy arm, Global Innovation Policy Centre (GIPC), has ranked India 44th out of 50 countries in terms of suitability of IP climate. India, however, gives no formal recognition to such rankings and has in the past even dismissed criticism heaped on its IPR regime by the US government as part of its annual US 301 report.

Key Points

  • The 6th edition of the GIPC index showed that India ranked 44th of 50 economies - a jump from 43rd of 45 economies one year ago - improving its performance both in relative and absolute terms.
  • For the first time, India has broken free of the bottom 10% of economies measured, and its score represents the largest percentage improvement of any country measured. This is further evidence of a country on the move.
  • India improved its score as it passed guidelines to strengthen the patentability environment for technological innovations, improved the protection of well-known marks, and initiated IP awareness and coordination programs, thereby implementing some tenets of the 2016 National IPR Policy.

South African Intellectual Property Policy and Lesson for India

South Africa has recently adopted a new Intellectual Property Policy, which seeks to align IP with the country’s national development plan.


  • IP and Public Health: In facilitating local production and export of pharmaceuticals in line with its Industrial Policy, the new policy recommends the following changes: introduction of substantive patent search and examination, introduction of patent opposition, strengthening of patentability criteria, incorporation of disclosure requirements, parallel importation, exceptions, provisions to regulate voluntary licensing, compulsory licences, use of IP and competition law. All these provisions utilise flexibilities provided in the TRIPS (Trade related aspects of IP Rights) Agreement to safeguard development objectives.
  • TRIPS Flexibilities: The implementation of SA’s patent law would be on par with the Indian Patents Act, which successfully incorporated TRIPS flexibilities a long time ago while complying with the TRIPS Agreement. But, there’s a difference.

Lessons for India

In comparison to South Africa, India does have a history of considering national needs while complying with international IP obligations. As a result, the Indian Patents Act, along with various judicial decisions, has provided a balanced framework for the protection of public health, food security, and transfer of technology.

However, India’s IP Policy adopted in 2016 overlooks the legislative intent and policy objective behind the patent regime - something that other nations are taking note of-

  • Unlike SA’s policy, India’s IP Policy does not make a reference to other existing policies like Health or Science and Technology, thereby disconnecting it from the country’s developmental needs.
  • The approach of the Indian IP Policy offers only lip service to the use of flexibilities and does not offer any measures to optimise the use of flexibilities.
  • Ironically, it seems to move away from its orientation of optimum utilisation of the TRIPS flexibilities incorporated in the Patents Act.
  • The results are visible. A recent report reveals that the Patents office granted nearly 72 per cent secondary patents in contravention of the Patents Act.

Evergreening of Patents Rampant Despite a Strong Law

As per the recent reports, evergreening of patents is rampant in India, despite having a strong anti-evergreening law in place.

  • Patent that Rewards innovation for 20 Years: The first step that pharmaceutical corporations take on discovering an entirely new drug is to secure intellectual property rights for it in the form of a patent. A primary patent, covering a new molecular/chemical entity, rewards innovation with a free reign over the marketplace for a period of 20 years, which is the term of the patent.
  • When Generics Enter the Market: After 20 years, generics enter the fray with cheaper versions and compete in this lucrative marketplace to drive prices down.
  • Evergreening of Patents: Pharmaceutical corporations seek to rest the 20-year clock by subsequently filing patents that are minor variants of the patent compound, called Secondary Patent. This practice, known as evergreening, allows a prolonged monopoly that unfairly denies the public access to medicines at equitable prices.

India’s Attempt to Stop Evergreening

A key highlight in the Indian law is Section 3(d) of The Patents Act, 1970, which was introduced in 2005 as a yardstick to distinguish real innovation from trivial tweaks.

  • The statute clearly defines the standard for follow-on patents on drugs as one of therapeutic efficacy, where applicants may need to supply some clinical evidence.
  • Section 3(d) was instrumental in the Indian Patent Office (IPO) rejecting the patent for Novartis’ drug Glivec (Imatinib Mesylate).
  • Its Constitutional validity was challenged and upheld before the Madras High Court. The decision rejecting the patent for Glivec was upheld by the Intellectual Property Appellate Board (IPAB) and later by the Supreme Court in 2013.

Intellectual Property Rights in India

Intellectual Property (IP) is a term referring to a brand, invention, design or other kind of creation, which a person or business has legal rights over. Almost all businesses own some form of IP, which could be a business asset. Common types of IP includes-

  • Copyright: this protects written or published works such as books, songs, films, web content and artistic works;
  • Patents: this protects commercial inventions, for example, a new business product or process;
  • Designs: this protects designs, such as drawings or computer models;
  • Trademarks: this protects signs, symbols, logos, words or sounds that distinguish your products and services from those of your competitors.
  • IP can be either registered or unregistered. With unregistered IP, you automatically have legal rights over your creation. Unregistered forms of IP include copyright, unregistered design rights, common law trademarks and database rights, confidential information and trade secrets.
  • India has laws covering various areas of intellectual property as enumerated herein below:
    • Trade Marks
    • Patents
    • Copyrights and Related Rights
    • Industrial Designs‑
    • Geographical Indications
    • Layout Designs of Integrated Circuits
    • Plant Varieties
    • Information Technology and Cyber crimes
    • Data Protection

IPR Development in India : Landmark Years

1967

  • The Patent Bill is introduced in Parliament.

1972

  • The Patents Act 1970 comes into force.

1994

  • The Uruguay round negotiations are ratified.
  • India accepts WTO membership.
  • Ordnance to amend patent laws is promulgated.

1995

  • The Uruguay round agreement come into force.
  • The Patent (Amendment) Bill is introduced in the Lok Sabha.

1997

  • The US complains to the WTO that India’s is violating the TRIPS agreement.
  • The WTO’s dispute settlement body rules (DS 13) against India.
  • India appeals against the DS 13 ruling. The WTO’s appellate body rejects India’s appeal.

1998

  • The WTO formally asks India to amend her patent laws. India agrees to 15 month implementation period.
  • India decides to accede to Paris Convention.

2001

  • Protection of Plant Varieties and Farmers Rights act 2001 Passed.

2002

  • Doha Declaration on TRIPS Agreement and Public Health.
  • New Drug Policy 2002 and Drugs (Price Control) Order 2002 Published.
  • The Biodiversity Bill 2002 Passed by Parliament.

2005

  • The Patent (Amendment) Act 2005 and the Patents (Amendment) Rules 2005 came into force.

Significance of Patents in India

  • Patents are becoming centre stage for nation’sscientific, industrial and economic growth and development. Indian Patent Law defined inventionas a new product or process involving an inventive step and capable of industrial application.
  • In India, the Patents Act, 1970 has come into force and aimed to encourage and protect the inventions that are new, non-obvious, and commercially applicable and thus enabling the innovators to appropriate the returns on their innovative activities.
  • One hand the Act is protecting the patents and the other hand ensuring the technology transfer, public interest and specific needs of the country.

Intellectual Property Legislations in India

  • India is a member of almost all international conventions. In 1999, a considerate passage of major legislations with regard to protection of Intellectual property rights in harmony with international practices and in compliance with India’s obligations under TRIPS. These include-
    1. The Patents (Amendment) Act, 1999 to amend the patents act of 1970 that provides for establishment of a mailbox system to file patents and accords exclusive marketing rights for five years.
    2. The Trade marks Act, 1999 which repealed the Trade and Merchandise Act, 1958
    3. The Copyrights (Amendment) Act, 1999.
    4. A sui generis legislation for the protection of geographical indications called the Geographical Indications of Goods (Registration and protection) Act, 1999.
    5. The Industrial Designs Act, 2000 which replaced the Designs act, 1911.
    6. The patents (Second Amendment), 1999 further to amend the Patents Act, 1970.
  • This was a beginning of a new era in the field of Intellectual property. To streamline and strengthen the Intellectual property administration system in the country the government has taken several measures. Projects relating to the modernization of patent information services and trademarks registry have been implemented with the help from WIPO/UNDP.
  • The first Indian patent laws were first promulgated in 1856. From time to time these were modified. New patent laws Indian Patent Act 1970 were made after the independence. The Act has now been radically amended to become fully compliant with the provisions of TRIPS. The most recent amendment was made in 2005 which were preceded by the amendments in 2000 and 2003.
  • Information Technology Act, 2000: The Information Technology Act, 2000 (hereinafter referred to as the “IT Act”) is an act to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as “electronic commerce”, which involve the use of alternative to paper-based methods of communication and storage of information to facilitate electronic filing of documents with the Government agencies.

Treaties and Reciprocal Agreements

India is signatory to the following international IP agreements-

  • The Paris Convention: under this, any person from a signatory state can apply for a patent or trade mark in any other signatory state, and will be given the same enforcement rights and status as a national of that country would be;
  • The Berne Convention: under this, each member state recognises the copyright of authors from other member states in the same way as the copyright of its own nationals;
  • The Madrid Protocol: under this, a person can file a single trade mark application at their national office that will provide protection in multiple countries;
  • The Patent Cooperation Treaty: this is a central system for obtaining a ‘bundle’ of national patent applications in different jurisdictions through a single application. India is not a signatory to the Hague Agreement, which allows the protection of designs in multiple countries through a single filing.

Data Protection Laws in India

Data Protection refers to the set of privacy laws, policies and procedures that aim to minimize intrusion into one’s privacy caused by the collection, storage and dissemination of personal data. Personal data generally refers to the information or data which relate to a person who can be identified from that information or data whether collected by any Government or any private organization or an agency. The Constitution of India does not patently grant the fundamental right to privacy.

The Government has notified the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011. The Rules only deals with protection of “Sensitive personal data or information of a person”, which includes such personal information which consists of information relating to:-

  • Passwords;
  • Financial information such as bank account or credit card or debit card or other payment instrument details;
  • Physical, physiological and mental health condition;
  • Sexual orientation;
  • Medical records and history;
  • Biometric information.

Related Content