Towards a Model National IPR Policy for India

Abstract

Intellectual property rights (IPR), with the patent system at its cynosure, is one such issue which has been party to some of the most heated debates, staged in various international forums. In this regard, the vertex of contention is the age old ideological deadlock between private monopoly and public welfare, with the specific rights pertaining to innovations serving as the arena in this case. The global IPR landscape underwent a paradigmatic shift with the introduction of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement in 1994, which established a set of minimal standards for IPRs. India, being one of the signatories to the treaty, was compelled to critically change its patent system wherein it had to start awarding patents on drugs. The change, which came into effect on 1st January 2005, symbolized a proverbial ‘change of guard’ per se in the history of India, wherein the deliberate exclusion of pharmaceutical products from patent protection had led to the development of an indigenous world-class generic drug manufacturing hub. However, its anti-monopolistic stance has caused India to receive, time and again, a fair share of flak for its IPR policy, with the NATCO and the Novartis cases being notable examples derived from the recent past. The situation reached a climax in 2014 with the USTR citing India on its ‘priority watch list’, for the purported “inadequacy” of its IPR norms. This precipitated the establishment of a national IPR Think Tank and the subsequent circulation of a draft National IPR Policy on 24th December 2014. With a country characterized by a quantum of diversity as extensive as India’s, the task of formulating an all-inclusive public policy in any sphere is challenging. This is especially accentuated for IPR, given that it is basically an intangible good stemming from a failure of the efficient markets hypothesis. However, it is quite conspicuous that the changes in India’s IPR regime over time have mirrored its gradual evolution from colonialism, to sovereignty, and now to superpower-in-the-making. Based upon this precept, it is quite intuitive that India ought to place the interests of its citizens on the top-most pedestal in arriving at a flexible IPR policy, wherein TRIPS-plus norms should be deemed sub judice. By virtue of this policy brief/article, I intend to propose an ideal national IPR policy for India with the aforementioned goals in mind. Furthermore, the proposed policy brief aspires to be as realistic as possible in its claims/suggestions, and hopes to engage its readers in a bidirectional dialogue regarding its specificity and appropriability, with regard to the fabric of the current Indian polity. In achieving its stated objectives, the article adopts a two-pronged approach. Firstly, it leverages upon the draft National IPR Policy (dated: 24/12/2014) as a skeletal framework, and carried out an impartial analysis of the same. It identifies the flaws/gaps in the postulates of the document and suggests ameliorations, wherever relevant. Secondly, it identifies lacunae in the existing informal Indian IPR policy structure, and recommends due directions in the stated areas. In all its analyses and/or postulates, the article proactively aims to accord the fundamental Constitutional directive principle of the achievement of an egalitarian and meritocratic the role its key thrust area.