New Delhi, Sep 20: As Prime Minister Narendra Modi prepares for his US visit from Sep 23 to 28, industry there is keenly awaiting to hear from his Team India’s stand on intellectual property rights (IPR). This has been a major irritant in boosting economic ties between the two nations, says Patrick Kilbride, executive director of the US Chamber’s Global Intellectual Property Center, which seeks to safeguard intellectual property rights.
In an e-mail interview, Kilbride says USA Inc was particularly interested in some movement forward in India on issues such as legislative changes, pharmaceuticals patenting, enforcement and compulsory licensing.
Excerpts from the interview:
Q: What are the key things in IPR-related issues that will be watched during Indian Prime Minister Narendra Modi’s visit to the US?
A: The upcoming visit of Prime Minister Modi to the US and his interactions with our innovative industries will provide him with a better understanding of the importance of IPR to US industries. We hope that this appreciation will be reflected in the policies India adopts and implements to promote innovation and manufacturing in India.
We are hopeful a dialogue between the US and Indian government on IPR issues yields positive, definitive outcomes in the near future and that the resolution of issues will provide significant opportunities for collaboration and engagement between US and Indian industries.
Q: What are the three key things India should do in the IPR space to make it more flexible?
A: We urge the Indian government to take the necessary steps to create an IPR environment which provides innovators and creators with the ability to effectively protect and enforce their intellectual property rights. A predictable system will ultimately encourage the investments required to grow India’s innovative industries.
A credible first step to achieving a strong and flexible IPR system is to address gaps or deficiencies in the existing legal framework which would include, for example, addressing deficiencies in the current Indian Copyright Act to combat online piracy, circumvention of technological protection measures and the illegal cam-cording of films.
Likewise, India can put itself in a global leadership position on an issue that will be critical to its own competitiveness by enacting meaningful legislation to protect trade secrets. Innovation in high technology industries must be supported, and not discouraged, by the Indian Patents Act. The recent release of the patent examination guidelines, confirming the scope of patentability for computer-related inventions, was a welcome development and will catalyze innovation in the ICT sector.
To further encourage innovation, the Indian government can clarify the scope and application of the Patents Act, especially in relation to Section 3(d). It continues to deny patents for innovative and beneficial pharmaceutical products — the same products which enjoy patent protection around the world. To drive innovation in the pharmaceutical and biotechnology sectors India will want to bring its patentability requirements in line with the rest of the international community.
Finally, India must address the weaknesses in its enforcement system which is routinely described as ineffective. Credible enforcement is required as a deterrent to infringement, piracy, and counterfeiting. The implementation of judicial reform proposals recommending specialized courts or benches and the imposition of deterrent penalties will greatly improve the effectiveness of the current enforcement system.
Q: What do you think of India’s position regarding compulsory licensing, under which governments can allow someone else to produce a patented product or process without the consent of its owner?
A: We respect the right of India to exercise its right to use compulsory licences under appropriate circumstances under multilateral pacts. However, India’s grant of its first compulsory licence in 2012 followed by extensive internal discussions to expand the use of compulsory licences to access the newest generation of cancer drugs sent a very negative signal to all innovative industries.
Compulsory licences should only be used in exigent, or the rarest of, circumstances — not as a matter of course. The Indian government’s policy on the use of compulsory licencing has negatively impacted the US-India bilateral relationship and made US industries, which rely on patents as key business assets, hesitant to enter or make further investments in the Indian market. To achieve the broad goals of the “Make in India” campaign and make India a research and development hub, the Indian government must once and for all remove the looming spectre of compulsory licences as a routine policy tool.
Q: India’s norms on clinical trials are not always liked in the US. Do you think it is going to change with the new draft policy?
A: While a clinical trials policy is not a part of the IPR discussions, this policy has also negatively impacted the industry. Both domestic and foreign companies are aligned in their concerns about the policy and the delays in its announcement and implementation. In real terms, India has lost ground as a site for clinical trials and it will be difficult to make it up. The unpredictability of the clinical trial system in India and the indecisiveness of the Indian government have shaken the confidence of the industry. This is yet another area where clarity in policy could yield positive results.
Q: Is the awareness of IPR enough in India?
A: Awareness of IPR is rarely enough. However, efforts to raise IPR awareness are critical to creating a positive IPR culture. IPR systems empower a society in many ways which are underappreciated. In the US, with a system that is widely perceived to be very supportive of innovators, more than one-third of the GDP, and a similar percentage of employment, is based in IP-intensive industries. While we don’t have a similar study in India, we can logically assume that the media, entertainment and software industries equally contribute to India’s economic competitiveness and job growth. As public awareness of IPR continues to grow, we would anticipate two outcomes: A) it will stimulate innovation and creativity in India and B) it will discourage counterfeiting and piracy as the public accepts and respects intellectual property rights.