At a time when the Centre is set to introduce a new Intellectual Property Rights policy, the latest US Chamber of Commerce International IP Index has placed India at number 37 out of the 38 countries analysed with regard to international best practices, with only Venezuela scoring lower.
The index, produced by the Chamber’s Global Intellectual Property Center (GIPC), found that India’s score was largely unchanged while blaming that the patent protection in India remains outside of international best practices. Indian law does not provide adequate enforcement mechanisms to effectively combat online piracy, it said.
The US Chamber of Commerce on Wednesday released its 4th annual International IP Index -Infinite Possibilities- which measured the IP environment in India alongside 37 other economies. GIPC noted that the publication of new guidelines for patentability of computer implemented inventions (CIIs) would have provided a greater level of clarity on what until now was a grey area of patentability.
Unfortunately, in late 2015 these guidelines were suspended until further review by the Indian authorities. The US body pointed that broadly, a number of concerns remain with India’s national IP environment.
There is a lack of specific IP rights for the life sciences sector, the enforcement environment remains challenging with continued high levels of physical and online piracy, it said. India is also not a contracting party to any of the international treaties included in the IP Index, nor has India concluded the FTA with substantial IP provisions since acceding to the TRIPS Agreement, the US body said.
“While we have been encouraged by the Modi administration’s rhetoric to improve India’s IP environment, we have yet to see it translate into concrete action. Nations such as Thailand, who surpassed India in the rankings this year, provide an example of the way that incremental changes to a country’s IP framework can strengthen the overall IP ecosystem. All countries should look at the index and incorporate the infinite possibilities that exist to improve their IP environment to encourage the next greatest innovation takes place on their soil,” said David Hirschmann, president and CEO of GIPC.
The index noted that the Indian compulsory licensing legislation and the active issuing of such licenses for biopharmaceuticals outside of public emergencies is one of the primary reasons India’s IP rights regime continues to be an international outlier. At the time of research, no additional compulsory licenses for biopharmaceuticals had been issued by Indian authorities in 2015.
It found that Indian patent law has in place an additional requirement to patentability that goes beyond the required novelty, inventive step, and industrial applicability requirements. Under section 3(d) of the Indian Patent Act, there is an additional fourth hurdle with regard to inventive step and enhanced efficacy that limits patentability for certain types of pharmaceutical inventions and chemical compounds.
A number of cases, most notably involving Novartis’ Glivec and Roche’s Tarceva, have established an interpretation of Indian patent law whereby Section 3(d) can only be fulfilled if the patent applicant can show that the subject matter of the patent application has an improved therapeutic efficacy compared with the structurally closest compound as published before the patent application had been filed, regardless of whether or not a patent application on the earlier compound was filed in India.