[Ip-health] National IPR Policy – Who Makes it in India?!

Elizabeth Rajasingh elizabeth.rajasingh at keionline.org
Tue May 5 09:31:19 PDT 2015


National IPR Policy – Who Makes it in India?!
by Swaraj Paul Barooah May 5 2015

Last week, in an email Shamnad sent to our subscribers, as well as in my
post “Modi shames India, calls patent laws under-developed“, we noted how
Modi’s referral to India’s patent laws as not being compliant with global
standards, was a very problematic one. A couple of days ago, the USTR
issued their annual “Special 301 Report”, which listed India on their
“Priority Watch List”, designated for countries the USTR deems as having a
poor IPR regime. Whether in response to the outcry over the Prime
Minister’s statement, or whether in response to the USTR report, Commerce
and Industry minister Nirmala Sitharaman has come out with some strong
words. The Hindu reports her as saying, “India believes in a strong patent
regime. We are compliant with international standards,” while the ET
reports her as saying India is fully aligned with international
intellectual property rights standards and “there is no need for anyone to
question us.”

It’s interesting to note Sitharaman’s stance of India’s regime as being a
‘strong’ one – for this employs the rhetoric that western countries have
often used against India., i.e., calling their own preferred version
‘strong’, automatically implying that the other is ‘weak’ and thus
undesirable. The west’s arbitrary reference to their patent regime, (which
amongst other things can’t stop ever-greening, allows the stupidest of
inventions to be patented, etc,) as a ‘strong’ one is something I’ve had a
problem with for years. I’m very glad to see that India is finally
referring to our own regime, which actively seeks to stop ever-greening, as
a ‘strong’ one. (This of course does not mean we don’t have IPR issues of
our own to address. However, it would be foolhardy to take these comments
out of the present context where India is facing international pressure for
certain types of IP provisions). Sitharaman also rightly notes that till
now, India hasn’t been taken to any international court on IPR matters,
while acknowledging that nevertheless, India does need a greater push for
innovation – a welcome separation of focus on IPR, and focus on innovation.
She also tried to clarify that the PM’s statement actually meant that India
was already compliant with global standards, and must continue to be so —
though I can’t say I find that a very convincing explanation.

Timeline: India on IPR policy (Sept 2014 – May 2015), including US pressure.

However, as admirable as Sitharaman’s defence of India’s IPR regime may be,
the differences in stances within the government point to a very
problematic trend. I’ve put together a timeline of important events – what
India has said about its IPR regime, and what pressure it has faced from
the US – since September 2014.  It reveals some worrying information: Modi
seems inclined towards giving in to US pressure; at the same time,
Sitharaman keeps saying India’s IP regime is fine; USTR seems to think it’s
influencing Indian IP policy; and no one really seems to know what’s
happening in and around the IPR think tank which is apparently setting our
IPR policy!

Sept 9th. 2014: Sitharaman says India has well-established IPR laws but
need to spell it out in the form of a policy. Says, “We are very strong in
IPR and we certainly want to protect our interest… Just because we do not
have a policy, they [USTR] are picking holes in our IPR regime,” [ET link]
Sept 23rd, 2014: We report that civil society, academics, etc send an open
letter to PM, worried about implications of saying India has no IPR policy.
[SpicyIP link]
Sept 30th, 2014: After a meeting of US President Obama and Indian Prime
Minister Modi, a USA-India joint statement was released. Tucked away in one
line in the midst of this long joint statement, was a worrying commitment
to ‘establish an annual high-level Intellectual Property (IP) Working Group
with appropriate decision-making and technical-level meetings as part of
the Trade Policy Forum.” (For the uninitiated, this is precisely the manner
in which USTR applies pressure on countries around the world to change
their IP policies as per USTR’s wishes). [SpicyIP link]

Oct 14th, 2014: We report that USTR will be conducting an “Out-of-Cycle”
review of India’s IPR regime, to see if the new government was more
friendly towards USTR’s idea of good IP policy. [SpicyIP link]
Oct 16th, 2014: The Indian govt takes a strong stance and refuses to
co-operate with unilateral OCR mechanisms by USTR, as per anonymous
government official. Anon govt official also says new IPR policy “would
settle the matter forever”. [SpicyIP link] [Business Standard link]

Dec 3rd, 2014: We report the mysterious circumstances around an arbitrarily
dismissed draft of the National IPR Policy, followed by a re-constitution
of a new body to make a new draft, just 3 days after the (now arbitrarily
dismissed) first draft had been submitted. [SpicyIP link 1] [SpicyIP link 2]
Dec 16th, 2014: USTR takes a u-turn and applauds new Indian govt, and say
Modi govt is taking the right steps towards fixing its IPR regime, even
though India hadn’t taken any (known) action besides promising an IPR
policy – as per anonymous government official. [Business Standard link]
[SpicyIP link]
Dec 24th, 2014: Newly formed IPR Think tank released a 30 page draft IPR
policy. It asks for comments by Jan 30th, 2015. Stakeholder consultations
to be on Feb 5th. [SpicyIP link]. [draft IPR policy – PDF]

Jan 26th, 2015: Modi announces that he is more than happy to accept the
suggestions made by the IP Joint Working Group. No news available on what
these suggestions are. [SpicyIP link]
Jan 27th, 2015: USTR Michael Froman gives a written statement to their
Senate Committee on Finance, including the following line: “Use of the
out-of-cycle review helped to secure commitments from India in the 2014
Trade Policy Forum on a broad range of IP issues of concerns to the United
States and its stakeholders.” [IP-Watch link] [Froman’s Statement – PDF]

Feb 1st, 2015: We report that Senior Advocate and former UN Special
Rapporteur Anand Grover has sent an email alert that inside sources
indicate Modi is keen to assure Obama that India will agree to changes made
by them. And that these changes are likely to include Data Exclusivity and
Patent Linkage – both of which are TRIPS plus provisions. [SpicyIP link]
Feb 9th: We start receiving/collecting copies of submissions made to DIPP
on the draft policy. Many are very critical of the draft. [SpicyIP link 1]
[compilation of all comments received by SpicyIP]
Feb 10th: Nirmala Sitharaman announces that there is no question of
‘appeasing’ US or anyone else on IPR. [LiveMint]
Feb 25th: Nirmala Sitharaman, in Rajya Sabha, says there is no proposal to
amend the Indian Patents Act. [Outlook]

April 15th: CIS receives responses from DIPP on RTIs around IPR Think tank.
Responses show cause for concern. [CIS link] [SpicyIP link]
April 23rd: Modi announces that India’s IPR standards are below global
standards, and that India needs to work on bringing their standards to
global standards. [SpicyIP] [Business Standard]

May 1st, 2015: USTR announces Special 301 Report. India is on Priority
Watch List.
May 3rd, 2015: Sitharaman announces that “India believes in a strong patent
regime. We are compliant with international standards“. [ET link]

All in all, a very inconsistent timeline of events – one that does not tell
me any good stories of what’s happening with our IPR regime. Why are there
contradicting positions coming out of the government? Whose position
carries more weight – Modi’s or Sitharaman’s? How are either of them
commenting on our policy if they’ve asked an IPR think tank to come up with
a new IPR policy? What exactly is going on with our IPR think tank? Who are
they answerable to? What influence is the USTR having on our policy? Who
decides our IPR policy? And on what basis?

So many questions… are there any answers out there???

Elizabeth Rajasingh
Perls Research and Policy Fellow, Knowledge Ecology International
1621 Connecticut Ave. NW, Suite 500
Washington, DC 20009
elizabeth.rajasingh at keionline.org | 1-202-332-2670

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