Authored By: Anurag Gupta
Vinoba Bhave University
Introduction
Intellectual Property Rights (IPR) are the legal rights granted to the creator or inventor for their intellectual creations. In the context of India, IPR forms a critical, multifaceted legal framework designed to stimulate innovation, creativity, and technological progress by ensuring that creators can reap the economic benefits of their labor for a specified period. The IPR regime in India is not merely a collection of domestic laws; it is deeply rooted in the nation’s commitment to international obligations, primarily the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) administered by the World Trade Organization (WTO).
The key administrative body is the Office of the Controller General of Patents, Designs, and Trade Marks (CGPDTM), which oversees the registration and grant of the major forms of industrial property. India’s IPR landscape is characterized by a deliberate attempt to strike a delicate balance between protecting the interests of rights holders and safeguarding the broader public interest, particularly in areas like public health and education, a philosophy often referred to as a “pro-public health” approach.
The major legislations governing IPR in India are:
The Patents Act, 1970 (as amended, notably in 2005).
The Trademarks Act, 1999.
The Copyright Act, 1957 (as amended).
The Designs Act, 2000.
The Geographical Indications of Goods (Registration and Protection) Act, 1999.
This article will delve into the four core pillars—Patents, Trademarks, Copyrights, and Designs—followed by an examination of the legal enforcement mechanisms and the evolving challenges in the digital and global economy.
The Pillars of IPR in India
Patents (The Patents Act, 1970, as Amended)
A patent is an exclusive right granted for an invention, which is a product or a process that provides a new way of doing something, or offers a new technical solution to a problem. The term of a patent in India is 20 years from the date of filing, provided renewal fees are paid periodically.
Patentability Criteria
An invention must satisfy three key statutory criteria for the grant of a patent:
Novelty: The invention must not have been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing the patent application.
Inventive Step (Non-obviousness): The invention must involve a feature that is not obvious to a person skilled in the art.
iii. Industrial Application (Utility): The invention must be capable of being made or used in an industry. 2. Non-Patentable Subject Matter (Section 3 & 4)
A defining characteristic of India’s patent law is its robust set of exclusions, detailed primarily in Section 3 of the Act. These exclusions ensure that the grant of a patent does not impede public interest or merely protect non substantive improvements.
- Section 3(d): The Ever-greening Check: This is perhaps the most famous and contentious exclusion. It stipulates that the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance, or the mere discovery of any new property or new use for a known process, substance or machine, is not an invention. This provision was central to the landmark Supreme Court ruling in the Novartis v. Union of India case, effectively preventing the “ever greening” of patents, particularly in the pharmaceutical sector, by blocking patents on minor modifications of existing drugs without demonstrable enhanced therapeutic efficacy.
- Section 3(k): Excludes mathematical or business methods, computer programs per se, or algorithms. This has been a focal point for the IT industry, leading to guidelines that allow software claims only if they demonstrate a “technical effect” or are in combination with novel hardware.
iii. Section 3(j): Excludes plants and animals in whole or any part thereof other than microorganisms, but including seeds, varieties and species, and essentially biological processes for production or propagation of plants and animals.
Patent Grant Process and Recent Amendments
The process involves: Filing \right arrow Publication (18 months) \right arrow Request for Examination (RFE) \right arrow First Examination Report (FER) \right arrow Response to FER \right arrow Grant. The Patents (Amendment) Rules, 2024, introduced significant changes to expedite the process:
Reduced RFE Deadline: The time limit for filing the Request for Examination (RFE) has been reduced from 48 months to 31 months from the priority date or filing date, significantly accelerating the process. ii. Simplified Form 3: The requirement to file statements regarding foreign patent applications (Form 3) has been streamlined, now only requiring submission within three months of the issuance of the FER, reducing the recurring compliance burden.
iii. Certificate of Inventorship: A new provision was introduced to formally recognize the inventor’s contribution.
Reduced Fee for Educational Institutions: An 80% fee reduction was offered to educational institutions to promote academic research and patent filing.
Compulsory Licensing
As a mechanism to prevent the abuse of monopoly rights, Compulsory Licensing (CL) allows the government to grant a license to a third party to manufacture a patented product without the consent of the patent holder under specific circumstances, such as:
The reasonable requirements of the public have not been satisfied.
The patented invention is not available to the public at an affordable price.
iii. The patented invention is not worked in the territory of India.
India’s first and only CL under the Patents Act was granted in 2012 to Natco Pharma for Bayer Corporation’s patented cancer drug, Sorafenib Tosylate (Nexavar), reinforcing India’s commitment to public health over absolute patent monopolies.
Trademarks (The Trademarks Act, 1999)
A trademark is a visual symbol—which may be a word, name, device, label, or numeral—used by one business to distinguish its goods or services from those of other businesses.
- Functions and Protection
- Source Identifier: Identifies the origin of goods/services.
- Quality Guarantee: Implies a certain quality standard.
iii. Indefinite Duration: A trademark is initially valid for 10 years and can be renewed indefinitely upon payment of renewal fees, making it a perpetual asset.
- Enforcement: Infringement vs. Passing Off
- Infringement: A statutory remedy available only to a registered trademark owner when an unauthorized party uses a mark identical or deceptively similar to the registered mark in relation to the same or similar goods/services.
- Passing Off : A common law remedy available to the owner of an unregistered but established trademark. The plaintiff must prove that the defendant’s misrepresentation led to damage to their goodwill.
- Well-Known Marks
The Act provides for the recognition and protection of ‘Well-Known Marks,’ which are granted protection across all classes of goods and services, even if they are not registered in those classes, to prevent unfair advantage or detriment to the mark’s distinctive character.
Copyright (The Copyright Act, 1957, as Amended)
Copyright protects the expression of an idea, not the idea itself, covering original works of authorship. 1. Subject Matter and Duration
- Works Protected: Literary, Dramatic, Musical, and Artistic Works; Cinematograph Films; and Sound Recordings.
- Duration: For most works, the term is the lifetime of the author plus sixty years from the beginning of the calendar year next following the year in which the author dies.
iii. Automatic Protection: Unlike patents and trademarks, copyright protection is automatic upon the creation of the work. Registration is not mandatory but is advisable as it serves as prima facie proof in court.
- Rights and Fair Dealing
- Exclusive Rights: Include the right to reproduce the work, issue copies, perform the work in public, make cinematograph films or sound recordings, and make adaptations or translations.
- Moral Rights: The author retains Moral Rights (Paternity Right to claim authorship, and Integrity Right to restrain distortion or mutilation of the work) even after assigning the economic rights.
iii. Fair Dealing: Section 52 of the Act permits certain uses of copyrighted works without the owner’s permission, such as for private or personal use, research, criticism or review, and reporting current events. This is a crucial public interest safeguard.
Designs (The Designs Act, 2000)
Industrial Designs protect the visual, ornamental features of an article of manufacture. It deals with how an article looks, not how it works (which is covered by a patent).
- Criteria: A design must be:
- New or Original: Not previously published in India or elsewhere.
- Not Functional: The features must be purely aesthetic and not dictated solely by the article’s function. 2. Term of Protection
The initial term is 10 years, which can be extended for a further period of 5 years, totaling 15 years. This protection is territorial, meaning a registered design in India is only enforceable within India.
III. IPR Enforcement and Adjudication
A strong IPR regime is ineffective without robust enforcement mechanisms. India’s legal system provides both civil and criminal remedies against infringement.
Adjudication Mechanism
Commercial Courts Act, 2015: This Act established Commercial Courts and Commercial Divisions in High Courts to handle high-value IP disputes, streamlining the litigation process and reducing the time taken for resolution.
Abolition of the Intellectual Property Appellate Board (IPAB): A significant structural change occurred in 2021 with the abolition of the IPAB, a specialized tribunal. Its functions (appeals against the Controller/Registrar’s decisions and revocation/rectification proceedings) were transferred to the Commercial High Courts (primarily Delhi, Mumbai, Kolkata, and Chennai). While the IPAB offered specialized expertise, its abolition aimed to consolidate legal mechanisms and leverage the existing judicial infrastructure, though concerns about the loss of specialized technical benches remain.
Enforcement Remedies
a) Civil Remedies: The most common approach, including temporary and permanent injunctions (to stop the infringing activity), orders for the destruction of infringing goods, and claims for damages or accounts of profit. Courts, notably the Delhi High Court, have been known to award significant punitive damages to deter egregious infringement and counterfeiting, particularly in cases involving public health or high-value brands.
b) Criminal Remedies: Available under the Copyright and Trademarks Acts for counterfeiting and piracy. These include imprisonment and fines, often involving police raids and seizures of infringing materials.
c) Customs Enforcement: The IPR (Imported Goods) Enforcement Rules, 2007, empower Customs authorities to seize imported goods suspected of infringing trademarks or copyrights, acting as a crucial line of defense at the border.
Emerging Trends and Future Challenges
India’s IPR regime is continually evolving to meet the demands of a modern, technology-driven economy. A. Geographical Indications (GIs) and Traditional Knowledge
GIs protect goods that have a specific geographical origin and possess qualities or a reputation due to that origin (e.g., Darjeeling Tea, Basmati Rice, and Alphonso Mango).
Traditional Knowledge (TK): India has proactively worked to protect its TK from misappropriation, most notably through the creation of the Traditional Knowledge Digital Library (TKDL), a database containing over 34 million pages of documented TK, which is provided to international patent examiners to prevent the erroneous grant of patents on pre-existing Indian knowledge.
Artificial Intelligence (AI) and IPR
The rapid advancement of AI presents complex IPR challenges:
a) Inventorship: Can an AI be considered an “inventor” under the Patents Act, or must it be a natural person. The Indian Patent Office currently adheres to the latter, maintaining that a human inventor is necessary.
b) Copyright: Who owns the copyright in a work generated solely by an AI? The government’s official stance, as of 2024, has indicated that the existing legal framework under the Patent and Copyright Act is “well equipped” to protect AI-generated works, suggesting a reliance on existing human-authorship principles for now, likely attributing authorship to the operator or programmer of the AI.
Data Exclusivity and Trade Secrets
While India has no dedicated, comprehensive legislation for Trade Secrets (confidential business information), their protection is generally governed by common law principles, the Indian Contract Act, 1872, and the principles of equity. However, the complexity of cross-border data protection and corporate espionage is driving demand for a dedicated statute, with the possibility of a Protection of Trade Secrets Bill being considered.
Global Perception and International Alignment
India is a signatory to the major treaties (TRIPS, PCT, Madrid Protocol), and its patent law is often scrutinized by developed nations, particularly the US, which places India on its Special 301 Report watch list due to perceived deficiencies in its IP protection for pharmaceuticals and copyrighted works. India’s continuous efforts to streamline the grant process (like the 2024 Patent Rules) and enhance enforcement are aimed at improving its global standing and fostering foreign investment.
Conclusion
The Indian IPR regime is a dynamic and mature legal system that has successfully navigated the complexities of international obligations while remaining deeply committed to its national policy objectives, particularly in public health. While the administrative machinery, exemplified by the streamlined procedures of the 2024 Patent Amendments, is pushing for faster grants, the judicial system continues to develop specialized jurisprudence, particularly after the abolition of the IPAB.
India’s future challenge lies in harmonizing the protection of intangible assets in the digital age—from the nuanced issues of AI authorship to the need for explicit protection of trade secrets—while maintaining its celebrated balance of providing incentives for innovation alongside equitable access to essential goods and services. The trajectory confirms that IPR is no longer a peripheral legal domain but a central pillar of India’s economic and technological growth strategy.
