India's Intellectual Property Rights regime has consistently fallen short of international best practices and the recent steps taken by the country under the IPR policy remain "merely aspirational", the US Chambers of Commerce has said.
In its submission to the US Trade Representative's Special 301 Review, the business body said, "...We see no substantive basis for a change in India's previous designation from the 2016 Special 301 Review and continue to see value in a meaningful mid-year progress assessment."
The US Trade Representative (USTR) is expected to come out with its report in April.
"The level and frequency of engagement between the US and Indian governments in 2016 continued to be a source of hope for the future, marked by ongoing dialogue on a broad range of intellectual property rights issues between India and the US under the Trade Policy Forum, the Strategic and Commercial Dialogue, and the High-Level Working Group on Intellectual Property," the Chambers said.
"Yet, at this time, substantive improvement in the IP environment in India remains merely aspirational. India released the long-awaited National IPR Policy in 2016, providing evidence of an evolving yet equivocal political attitude toward IP," it said.
"The Policy expressed a positive inclination toward steps to improve IP administration, and an implicit recognition of the importance of IP to domestic innovation and further contemplates efforts to educate Indian businesses about IP rights and facilitation initiatives to leverage IP rights in support of domestic innovative activity," Chambers said in its submission.
The Policy addresses a number of important gaps in India's national IP environment, including the need for stronger enforcement of existing IP rights through the building of new state-level IP cells and investing more resources in existing enforcement agencies; strengthening administrative capacities at India's intellectual property offices, including reducing processing times for patent and trademark applications; as well as the need for introducing a legislative framework for the protection of trade secrets.
"Comprehensive reform and execution in these areas would mark a notable improvement to India's national IP environment," it said.
However, the Chambers argued, the Policy's dismissal of the need for substantive changes to improve India's statutory and regulatory IP framework, which has consistently been found to fall short of international best practices, demonstrates the continued political challenges to realising an IP environment favourable to an innovative and creative economy.
"Specifically, the Policy does not provide details with respect to inter-ministerial coordination on implementation, budget allocation, and did not address the challenges and uncertainties rights-holders face when it comes to protecting their patent rights, modernising existing copyright laws or introducing international best practices, and new sector-specific IP rights such as regulatory data protection for submitted biopharmaceutical test data," it said.
Chambers said ultimately, the year was characterized by
several disappointing developments: balanced and reasonable Guidelines for Examination of Patent Applications for Computer Related Inventions (CRIs) issued in 2015 were withdrawn and re-issued in 2016 in a non-transparent fashion, with the result that the 2016 Guidelines will make most if not all software inventions ineligible for patent protection.
"Then, in response to public outcry, a government committee was formed to re-review the guidelines, with no deadline for decision, leaving software innovators in regulatory limbo. Subsequent high-level dialogues between the US and Indian governments failed to result in any resolution of this matter," it said.
"In fact, the strongest statement to emerge from bilateral dialogues in 2016 was an endorsement by the Indian Commerce Secretary of calls by an independent UN panel for broad use of 'TRIPS flexibilities' to justify routine use of compulsory licenses against patented products," US Chambers said.
"It is worth noting that India has been a strong champion of weakening of IP rights in multilateral organisations, including WIPO and the WHO. Meanwhile, the Seeds Directive issued in 2016 seemed to suggest a possible return in this sector to innovation-threatening compulsory licensing practices. The recent High Court of Delhi decision regarding photocopying copyrighted content was likewise highly discouraging," he added.
