Guest Post by Srividhya Ragavan of the University of Oklahoma College of Law
The Indian Department of Industrial Policy and Promotion recently requested comments to the Draft National Intellectual Property (IP) Policy that has been unveiled by a Think-tank which was the subject of much criticism for comprising largely of folks without adequate expertise in India. This Policy is a by-product of what most people would describe as undue pressure by the Office of the United States Trade Representative (USTR) as well as the International Trade Commission (USITC) bearing down on India backed by the political lobby of the IP industry, especially the originator pharmaceutical industry which seeks to maintain and expand the IP empires they currently occupy on the global scene. Perhaps, as a consequence of the pressure, a National Committee was hastily convened and worked within 3 months without any public engagement that a national of this stature would deserve and consequently, released a draft of the policy (National IP Policy).
I joined with Sean Flynn of American University and Brook Baker of North Eastern Law School to make a submission on the Draft Policy (submission) to highlight that it needs to include core doctrinal and policy considerations at the center of IP policy debates and IP’s role in trade relations. Our submission emphasizes that it is important to ensure that the National IPR Policy focus on IP as a tool to achieve sustainable human development goals. Usually, the exercise of drafting a National IPR Policy is a congruence of expert debate, discussion, and thought that results in a careful calibration of various competing interests with a clear course for the nation.
Links:
I am little bit confused..
Can someone please tell me, how the Draft IP Policy is related to the National IPR Strategy published in summer 2014?
Thanks
Although I did not see much substance in the subject hotlinked comments, I did find the following sentence strange and grating:
” “IP” should be replaced with a term like “knowledge governance” whenever the report is discussing means of promoting creativity and innovation.”
??
Patents do not “govern” knowledge. Patents do not restrict knowledge.* Patents automatically freely publicly disseminate knowledge, in a detailed required form.
*Not to be confused with private restrictions on knowledge in the relatively few instances in which trade secrecy can be maintained until lost by individuals or private organizations which is not discoverable from the product itself when it is commercialized.
But Paul,
We routinely have people here confusing abstract thoughts with actual machines and manufactures.
We also have MM wanting to drive a model T and use an 8086 processor after all according to the judicial activist and propagandist all that mattered in technology–the gisty MM sense– was done long ago… in a mind far far away…
Personally, I think it is cool the way these abstractions can help me get my work done.
Should not a major legal issue with your comments on this subject be whether or not they are in compliance with the TRIPS-GATT Treaty?
TRIPS is often brushed away either by (1) noting that TRIPS is extremely broad and give a lot of wiggle-room and/or (2) that TRIPS is a tool of Big Pharma and the West.
What is overlooked is that TRIPS/GATT was a boon for India because it gave international investors a degree of confidence that Indian laws and policy would conform to certain international norms. A sign of stability. A drastic change in Indian economic policy for short-medium term benefit (e.g. altered IP regime) would send a clear signal to investors that India is expressly favoring its domestic industry over foreigners, and that investors cannot rely on a stable set of laws.
Now, a lot of countries do find ways to favor their domestic industries (e.g. tariffs, the US ITC). But such ways have the virtues of (1) being open and transparent and (2) subject to rapid calibration with changes in policy. By contrast, fiddling with IP laws (e.g. cancelling patents) is a sledgehammer that is far more destructive and more unwieldy.
Paul, what are the sanctions for not being in compliance with GATT-TRIPS?
I assume that some of the drug companies already do not like compulsory licensing. I also assume that compulsory licensing is not in accordance with the treaty.
What about eBay then? When a patent owner is denied an injunction, is that not compulsory licensing?
A TRIPS violation only gives standing for another country to sue, not a private corporation. The only venue is through the WTO legal process and the judgment is advisory in nature.
IOW, TRIPS is only a signalling mechanism that a country will abide by specific norms. The real punishment for violating the norms is lack of investor confidence, altered exchange rates, and threats of trade sanctions.
For compulsory licensing, you might check out Articles 30 and 31.
It is predominantly here in the States that compulsory licensing is (typically) reviled.
Using IP policy as a tool to achieve broader, unrelated, societal goals is not only bad for IP, but undermines the other societal goals. If you want, e.g. cheaper Pharma, you can have a government health system that offers discount drugs and prefers generics, just as they do in Europe.
Are you saying every government program or policy should only have one goal, even if that goal is contradictory to another government program or policy? i.e. have one that increases the costs of drugs and another that exists to subsidize it.
Wouldn’t being upfront about the conflict, and at least considering if it is possible to address the goal in the program make sense?
For example, secrecy requirements of military vs. patent public disclosure, seems to be easily met through the current use of IP policy in a number of countries.
Canada provides extra patent protection for drug patents vs. non drug patents, but imposes price controls on patented medicines. A trade off designed to balance the promotion of innovation with the costs of providing drugs through a public health care system. Maybe not the best system, but it seems to be meeting the overall policy goal (i.e. comply with international treaties regarding patent rights while not breaking the bank to pay for patented medicines).
Should every type of patent always be treated the same? There seems to be a strong push for a one size must fit all approach to patent policy when it comes to term, enforcement, damages, injunctions etc. yet when we come to obviousness the level of improvement over the prior art required to obtain a patent seems to vary considerably field by field.
I agree that programs can have more than one goal. The problem is that having too many goals in a single program leads to a host of unintended consequences and complications. A classic example is tying food stamps to agriculture protection, under which we find ourselves subsidizing corn syrup ahead of fruit and vegetables, while complaining about the poor diet of the poor. Or the FAA, whose goal of promoting airlines sometimes conflicted with its role as a safety regulator, leading to widespread criticism in the 90s, IIRC.
As to your example: under the Canadian health laws there is a quid pro quo of extended protection in return for price caps (IIRC). Likewise, in the USA, the biggest single purchaser of medical care is the government and they will aggressively negotiate on price. If you want to increase sales, you might agree to that lower price. Same in Europe, Australia, etc. Now, in all these cases, this health policy is effected through health agencies, NOT the patent office.
Perhaps they should just drop the “P”, in “IP”.
Intellectual property is not an “end in itself”, as Sean Flynn puts it but a “means for achieving social and economic progress through enhanced production of and access to the fruits of creativity and innovation”.
Individual rights and ownership … what’s that? Turning Red reading this… I doubt it.
Anon2, As Winston C. observed, “Socialism is a philosophy of failure, the creed of ignorance, and the gospel of envy, its inherent virtue is the equal sharing of misery.”
Thank you Ned. That is a great quote.
There IS an “I” in Quid Pro Quo after all…
😉
(there is also an “I” in Lincoln, as well as in ‘Adam Smith’)
In order to enhance actual R&D conducted in India, one might consider the following:
1. Provide that compulsory licenses not apply to any patent that issues on an invention made in India.
2. Provide that inventions made in India should enjoy a right of priority to the date of invention in India.
3. Provide that prior art for inventions made in India not include anything not actually known or used in India, or which is not an enabling printed description published in the manner that is available in India.
Ned, your paragraph 3. suggestion to limit prior art [other than publications] to domestic-only acts and knowledge for domestic inventions is of course no longer the law even in the U.S., under the AIA, and hardly anywhere else. That might be desirable for India, but it would leave Indian patent law inconsistent with the rest of the world.
Re: “inventions made in India should enjoy a right of priority to the date of invention in India. ” Are you suggesting adoption of the former 102(g) and an interference proceeding system administered in India? [Horrors] But if by invention date you mean filing date, then of course they have that priority date already under the Paris Convention.
There also the general question as to how much domestic discrimination can be validly provided in domestic patent legislation in view of the Paris and TRIPS-GATT Treaties?
Good comment, Paul
Paul, Until just recently, the law I suggest for India was the law of the US. It did not cause a collapse of any world order.
Regarding “compatibility,” that is an interest of those outside India trying to protect their inventions in India. It is of less concern to to policy makers in India trying to provide incentives to conduct R&D in India.
As to interferences, I might suggest a rule that between rival Indian inventors, the first to file prevails.
Ned,
Don’t you think that you are going to have a problem with Article 3, National Treatment, with your propositions?
Anon, in what way, anon? That was the law in the US until last year.
Not so Ned.
The point is subtle, but no less there.
Any (and all applicants, no matter their origin) had to play by the same set of rules in the US. There was a US focus (for example, as you allude to with prior art), but that US focus applied to all applicants equally.
What you state here violates that. You apply different rules based on nationality of applicant – a violation of Article 3.
You cannot have rules based on origin of applicant. This is in fact different than basing other rules on territorial interests and then apply those other rules to all applicants on the same basis.
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