[Ip-health] Why India’s IP Policy needs a South African tweak

Shirin syed shirinsyed511 at gmail.com
Wed Aug 8 10:37:56 PDT 2018

Why India’s IP Policy needs a South African tweak

India's IP policy needs to be more aligned to maximise use of TRIPS

Shirin Syed

South Africa recently adopted a new Intellectual Property (IP) Policy where
it has aimed to align IP with the country’s national development plan.

 “The IP Policy must be informed inter alia by the Constitution, National
Development Plan (NDP), the National Industrial Policy Framework (NIPF) and
the various iterations of the Industrial Policy Action Plan (IPAP). It
should also be aligned to the country’s objectives of promoting local
manufacturing, competitiveness, and transformation of industry in South
Africa,” the policy states.

 What works for the new SA policy is that it addresses the interface
between IP and public health.

For instance, in facilitating local production and export of
pharmaceuticals in line with its Industrial Policy,  the new policy
recommends the following changes: the introduction of substantive patent
search and examination, the introduction of patent opposition,
strengthening of patentability criteria, incorporation of disclosure
requirements, parallel importation, exceptions, provisions to regulate
voluntary licensing, compulsory licenses, use of IP and competition law.
Interestingly, all these provisions utilize flexibilities provided in the
TRIPS (Trade related aspects of IP Rights) Agreement to safeguard
development objectives.

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. However, there's a

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 conveniently 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 optimize 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 percent secondary patents in contravention of the
Patents Act.

 The SA Policy has expressly mentioned that it must first and foremost
engender the ethos of the South African Constitution and also reflect the
country’s broader social economic development objectives. Hence, the policy
remains aligned to the constitutional objectives and its socio-economic
goals. “The South African Constitution provides a balanced approach to
property rights in general by affording protection against arbitrary
deprivation of property, while also taking into account the public
interest. In this regard, public interest includes the nation's commitment
to bring about reforms that promote equitable access to services and
products involving IP, such as in the sphere of health”.

 India’s IP policy fails to take notice of obligations under Fundamental
Rights and   Directive Principles of the right to health engendered in its
Constitution while promoting IP rights. On the contrary, it focuses on
enhancing the protection and enforcement of IPRs, which goes beyond its
international obligations (referred as ‘TRIPS-plus’) without taking into
consideration its negative implications. It’s worth mentioning that India
which is at the forefront of international fora in defending the TRIPS
flexibilities, ignores its use for herself at the domestic level. Taking a
cue from the South African IP policy, the government of India should revamp
the National IP Policy with a clearer vision of realisation of its
constitutional promise of right to health for all, which includes better
access to medicines.

(The writer is an IP Researcher with the North Maharashtra University
(NMU). Views expressed are personal.)

Shirin Syed
IP Researcher,
North Maharashtra University (NMU),

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