Intellectual Property Challenges & Issues

Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce. IP is protected by law, for example, patents, copyright and trademarks which enable people to earn recognition or financial benefit from what they invent or create. By striking the right balance between the interests of innovators and the wider public interest, the IP system aims to foster an environment in which creativity and innovation can flourish.
Important IPR are:
A Patent is an exclusive right granted for an invention. Generally speaking, a patent provides the patent owner with the right to decide how – or whether – the invention can be used by others. In exchange for this right, the patent owner makes technical information about the invention publicly available in the published patent document. Copyright is a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture and films, to computer programs, databases, advertisements, maps and technical drawings. A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises. Trademarks date back to ancient times when artisans used to put their signature or “mark” on their products. Geographical indications and appellations of origin are signs used on goods that have a specific geographical origin and possess qualities, a reputation or characteristics that are essentially attributable to that place of origin. Most commonly, a geographical indication includes the name of the place of origin of the goods. An industrial design constitutes the ornamental or aesthetic aspect of an article. A design may consist of three-dimensional features, such as the shape or surface of an article, or of two-dimensional features, such as patterns, lines or color. Trade secrets are IP rights on confidential information which may be sold or licensed. The unauthorized acquisition, use or disclosure of such secret information in a manner contrary to honest commercial practices by others is regarded as an unfair practice and a violation of the trade secret protection.
Intellectual property challenges are the threats to the stability of copyright, trademark, patent, and other areas of intellectual property (IP) protection. The balance between the interests and needs of creators and the public is a fundamental underpinning of IP law. When this balance is no longer maintained, respect for Intellectual property protection is in danger. Thirty years ago, IP was a small specialty area of law; today, it is an ever-growing field that supports billion-dollar industries. Despite this increased importance and prevalence, the sanctity of IP protection is threatened by a lack of respect for this area of law. Many individuals believe that: IP infringement doesn’t hurt anyone; if they do infringe on another’s IP, they won’t get caught; IP rights allow the owner to collect inflated profits; IP rights restrict competition. These perceptions indicate that many believe that the balance of IP laws is in favor of the holders of these rights, as illustrated by the ready availability of counterfeit products; pirated movies, music, and software.
India joined WTO (World Trade Organization) and became a signatory of the TRIPS (Trade-Related Aspects of Intellectual rights) agreements in the year of 1995. With this, all the signatories were supposed to align their IP rules in conformation with the TRIPS agreement. However, developing countries like India were granted a window period of 10 years (5-compulsory +5 extended) to comply with the rules put forth by the agreement. Though India had aligned its rule in accordance to TRIPS in the year 2005, still, there are many challenges and issues that need to be addressed to maximize the benefits. Thus getting and granting IP rights in India have become a matter of contention since 2005 and various stakeholders are interested in knowing India address these issues.
Though, there are many challenges we will list only the top 6, that are of utmost importance in India, they are:
1. From Process to Product Patents- One of the binding point in TRIPS agreement is that all member countries are required to shift their patent regime from “Process Patent” to “Product Patent.” The fundamental difference between a Process Patent regime and a Product Patent regime lies in the fact that the former protects for processes only while the latter products. It becomes a contentious issue when it comes to getting IP rights on pharmaceuticals and food products.
2. Section 3(d) of the Indian Patent Act- Another challenge that it is facing is the condemnation of section 3(d) of the Indian Patent Act. This section prevents multinational companies ever greening their patents simply by making minor changes. Implementation of 3(d) was exercised in challenging the patent of Novartis Glevac drug. The Court rules that multinational companies can’t evergreen their patents simply by making minor changes in earlier patents and they need to show considerable “Therapeutic Efficiency” to get patent protection in already existing patents.
3#Compulsory licensing- With the provision of compulsory licensing, the Govt. of India can compel the owner company or other companies to mass produce some drugs in emergency irrespective of who got the patent. Multinationals are accusing India of being opportunistic in their stand and are asking to abrogate this provision. However, Indian Govt. is not willing to cancel this provision to safeguard the interests of mass
4. Provision of Drug Price Control Order- With this provision companies can’t charge an unfair price for drugs that they are producing. The price has to be justified regarding investments, and if someone plays foul, then the Govt. has the right to intervene.
5. Food security and IPR- India is a land of farmers wherein most of the people are engaged in doing farming for their livelihood. In such a country Govt. offers many subsidies to farmers. India’s domestic support schemes are generally in the form of “minimum support price” for major agricultural commodities and “input” subsidies provided to farmers in the types of electricity, fertilizers, seeds, etc. However, for complete implementation of TRIPS agreements, these subsidies will have to be reduced or eliminated. Thus, the Indian Government is struggling to create a balance between food security and providing IP rights in India.
6. IPRs, Community property rights, & Indigenous knowledge- Traditional knowledge gives ready-made leads for pharmaceutical companies and then simply come up with the new formulation to show the efficacy of the general traditional understanding. The Indian Govt. is bound to protect the rich source of traditional knowledge by not allowing multinationals to get patents on traditional culture. As a defensive mechanism, the Govt. has created TKDL (Traditional Knowledge Digital Library) to challenge patenting traditional Indian understanding. Multinationals and developed countries are also opposing this move.
Intellectual Property Rights (India): Neglected Issues
In Manipur context, main issues of IPR are: Lack of awareness about IPR among people; there are no state specific IPR policies; there are issues related to bio piracy and misappropriation of traditional knowledge; Poor protection for indigenous designs, arts and crafts. In fact unique Manipuri crafts lack IP protection and absence of GI tag as results motifs of copying Manipuri designs by outsiders is a well-known fact. The case of King Chili (Uoo Morok) is an example as it was claimed as the assets of Nagaland and case of Modi Ghamsha in UP, copying of Rani Fee as well as Wangkhei fee designs by outsiders etc. Therefore we need awareness drives about IPR importance; formulate IPR policies and incentives; set up IP felicitation center for promoting innovation; protect traditional knowledge digitally and support GI and branding indigenous goods.
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