Summary: ‘Review Of The Intellectual Property Rights Regime In India (Parliamentary Standing Committee Report No. 161) – Section On The Patent Act, 1970, (pp: 45-59)’ (Parliamentary Standing Committee On Commerce)

The Department Related Parliamentary Standing Committee on Commerce (“Committee”) presented a report titled “161st Report: Review of the Intellectual Property Rights Regime in India” (“Report”) in Rajya Sabha on 23rd July, 2021. The Committee, headed by Shri V. Vijayasai Reddy, reviewed various Intellectual Property related statutes, practices and regulations and recommended measures to improve the current landscape relating to IPR. It included a chapter on The Patent Act, 1970 (“Act”) detailing shortcomings and recommending changes.

The Report, delving into the history of the Act, recommends a slew of changes to make the patent granting process more transparent and objective. It suggests amends to the Section 3(b) of the Act, which currently provides no guidance to the Controller for denying of patents, so as to make it more concrete and provide against arbitrary exercise of power by the Controller in declining patents. Further, it recommends the allowing of patenting of discoveries of non-living substances, which currently are denied under Section 3(c) of the Act.

Going into the punitive aspects of the Act, it finds that Section 122(2) of the Act (which prescribes a punishment by way of imprisonment up to six months on intentionally falsifying information related to a patent) to be too stringent. Taking a step towards reducing litigation in the country, the Report recommends changes to the provision of jurisdiction under Section 104 to promote establishment of alternative dispute resolution mechanism for ensuring speedy justice to the aggrieved.

Further commenting on the much polarizing Section 3(d) of the Act, which prevents ‘evergreening’ of patents, the Report stands by the provision and acknowledges its role as a protector of public benefit. It was apprised that India being a sovereign nation has the right and power to decide the limitations on the protection provided by patents. In the spirit of keeping up with the fast-moving world, the Report suggests the Department to update and modernize its website and portals to improve simplicity and availability of information.

Driven by the recent scarcity of drugs against COVID-19, the Report recommends that the Government should delve into the prospect of temporarily wavering patent rights and issuing Compulsory Licenses to tackle the inadequacy. Ending the chapter on the Act, the Report finds that Form 27 is crucial element ensuring the adequate working of the patented invention for the benefit of the public and recommends easing the requirements under the provision by relaxing the form filling to a yearly basis to reduce compliance burden on R&D institutions and universities.

The Report can be found at:

https://rajyasabha.nic.in/rsnew/Committee_site/Committee_File/ReportFile/13/141/161_2021_7_15.pdf

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

Copyright: ALG India Law Offices LLP

Summary: ‘Review Of The Intellectual Property Rights Regime In India’ – Parliamentary Standing Committee Report No. 161) – Section On Traditional Knowledge, (pp. 83-87)’ (Parliamentary Standing Committee On Commerce)

The Department Related Parliamentary Standing Committee on Commerce, chaired by Shri V. Vijayasai Reddy, presented the 161st Report on “Review of the Intellectual Property Rights Regime in India” (the “Report”) to both Houses of the Parliament on July 23, 2021. The Report aims to analyse the current intellectual property rights (“IPR”) regime in India and list ways to promote and protect different types of IPRs.

In relation to Traditional Knowledge and IPRs, the Report highlights the challenges faced by indigenous innovators at the grassroots level due to lack of statutory protection for inventions based on traditional knowledge. In addition to this, the stringent criteria for patentability in India, prohibiting the patenting of an invention that is effectively traditional knowledge or an aggregation of traditionally known components, also contributes to the non-patenting of useful inventions that improve upon existing traditional knowledge. The Report suggests that this patentability criteria, set forth in Section 3 (p) of the Patents Act, 1970, should be revised and made more inclusive of the incorporation of traditional knowledge elements in inventions.

The Report also notes that the registration of traditionally known products or processes linked to specific locations as Geographical Indications (“GI”), would help in the consolidation and protection of traditional knowledge.

With respect to India’s Traditional Knowledge Digital Library (“TKDL”), the Report mentions how structural issues and inefficiency in execution had left the TKDL inaccessible to Indians, leading to countries like the U.S. and China misappropriating traditional ayurvedic compositions from India. It is considered imperative for the government to strengthen the TKDL as a database, and implement a systematic mechanism of documentation and preservation of traditional knowledge in the country.

Furthermore, the Report states that there is insufficient understanding about converting IPR into monetary benefits in India. Therefore, it is urged that the government play a more active role in spreading awareness among tribal communities, forest dwellers, artisans and craftsmen, to claim IPR in traditional knowledge. It also encourages the government and the communities practising traditional knowledge to claim joint ownership of the IPRs arising out of such traditional knowledge, so as to limit their misappropriation and exploitation.

Concluding its observations, the Report highlights India’s role as a member of WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. In lieu of the same, it is recommended that India should engage with other WIPO member states to finally establish an internationally binding treaty for the protection of traditional knowledge.

The Report can be accessed here: 

https://rajyasabha.nic.in/rsnew/Committee_site/Committee_File/ReportFile/13/141/161_2021_7_15.pdf.

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

Copyright: ALG India Law Offices LLP

Summary: ‘Review Of The Intellectual Property Rights Regime In India (Parliamentary Standing Committee Report No. 161) – Section On Trade Marks Act, 1999, (pp: 59-64)’ (Parliamentary Standing Committee On Commerce)

The Parliamentary Standing Committee on Commerce tabled the 161st Report on the Review of the Intellectual Property Rights Regime in India on 23rd July, 2021. The Report in light of the increasing importance of Intellectual Property Rights (IPRs) observed and analysed the current IPR scenario in India and the challenges involved in strengthening the IPR regime.

Under the section concerning the review of the Trade Marks Act, 1999 after taking into account the suggestions by various stakeholders, the Report made recommendations on various fronts. The Report recommended that the Trademarks Department should introduce new categories of classifications in consonance with the developing requirements of industry and trade. Furthermore, such categories should be detailed and specific to avoid convoluted interpretations. While acknowledging the need for speedy grants of trademark registration, the Report recommended that the period for which application remains published and open for third-party objections should be reduced from 4 to 2.

The Report heralded the importance of using technology to make the working of the Trademarks Registry more efficient. It recommended that the Trademarks Department should take up initiatives to make the offices more modern and digital so that speedy redressal of work can also take place. A crucial point of consideration in the Report was Section 115(4) of the Trade Marks Act which deals with the cognizance of offences. As per this section, a police officer having a rank not less than the Deputy Superintendent of 

Police (DSP) is mandated to evaluate the existence of risk of an infringement and also the enforcement actions. Furthermore, such officers are also supposed to take the opinion of the Registrar of Trademarks before initiating any action. Attention was brought to the fact that a senior officer at the level of DSP is often burdened with other administrative and supervisory work and thus, is unable to conduct the required investigations timely. The Report in view of this recommended that the procedure set out in Section 115 of the Trade Marks Act should be simplified to expedite investigations. It was also recommended that one or more well-trained police officers having specialized knowledge of IP crimes should be deployed in place of a high ranking officer.

The Report also recommended that a separate category for Export Oriented Units (EoU) products should be made, so that such products could get their trademark registrations on a priority basis and contribute effectively to the national economy by timely export of the EoU products. 

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

Copyright: ALG India Law Offices LLP

Comment: ‘Will The Intellectual Property Division Be A Suitable Replacement For The IPAB?

The Tribunal Reforms (Rationalization and Conditions of Service) Ordinance 2021 (‘Ordinance’), on April 04, 2021, decided to abolish the Intellectual Property Appellate Board (‘IPAB’) on account of its incapability to timely delivery justice and reduce the burden on the exchequer. Pursuant to this decision, the Delhi High Court decided to set up a separate Intellectual Property Division (‘IPD’) that aims at resolving IP related matters. The author is of the opinion that the Intellectual Property Division will be able to efficiently resolve the problems for adjudicating IP disputes that were initially posed before the IPAB.

While the IPAB was a step in the right direction, it does not go far enough in terms of creating a robust framework for cultivating expertise from specialized personnel. Neither did it ensure that these judges experience a wide range of legal issues that would enlarge their vision and pave the way for a more holistic IP jurisprudence that can create a balance between private IP rights and interest of the public. Therefore, the creation of an Intellectual Property Division by the Delhi High Court is a first of its kind and has paved the way for quicker and effective settlement of the pending IP disputes.

Specialized IP Law bench is not a novel concept and it has been in existence across various other jurisdictions as well. The United Kingdom was one of the first such countries which established the Intellectual Property Enterprise Court (IPEC) in 2010. USA and Canada don’t have a separate tribunal or division for adjudicating IP disputes, but generally such matters are presided over by judges who have significant experience in the field. Hence Federal courts generally preside over the matters relating to IP. The IPD is in line with the international trend and serves a similar purpose.

IPD will streamline the adjudication of IP related matters by the Hon’ble High Court, thereby also reducing burden on the courts and will allow for a quicker adjudication process. It will also provide litigants to have their matter heard by judges who are considered as experts of IP adjudication. The Delhi High Court is already in the process of laying down comprehensive rules for the Intellectual Property Division. This certainly gives hope to litigants in these times of increasing commercial significance of intellectual property rights. Hence, IPD can be considered as an effective alternative to the IPAB.

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

Copyright: ALG India Law Offices LLP

Comment: Is The Future Of IP-Law Internships Virtual?

The COVID-19 pandemic has transgressed the boundaries of our usual norms. The whole world has made a shift towards the virtual environment in multifarious aspects. The pandemic ruled out the physical mode of working and even traditional brick-mortar offices adapted to the virtual working model.

The legal industry also saw a revamp in its working, legal chambers, firms and most importantly, courts started operating in a virtual model. Consequently, the concept of virtual internships also started budding since the importance of internships is insurmountable in the life of a law student. Internships provide hands-on experience of working in the legal field, thus, becoming essential for a law student whose only experience with law has been the course books.

In some aspects, virtual internships stand to be a much better option for law students and there are multifarious reasons for it. A law student can pursue a virtual internship all year round; there lies no barrier of time or place. These internships can be carried on while one is attending university as well since there is no requirement of physical attendance in neither the universities nor the law firms/offices. Furthermore, there lies not much expense which is to be expounded in virtual internships as they can be carried out from the comforts of ones’ home. Moreover, this puts a lot of students on an equal footing since not many can bear the cost of living in metro cities, where mostly all IP firms are situated. Due to the virtual environment, students have also been able to intern at foreign firms, thus expanding their knowledge about different jurisdictions of the world, without having to bear the expenses of being there.

Virtual internships have become more fruitful, especially in the IP field since the prosecution/transactional work mostly remained unfazed by the pandemic, as it was already being carried out seamlessly via the internet. With courts working virtually as well, even the litigation of IP matters has shifted to the online mode. This has become more beneficial for law students since they can hear IP matters during their internships, no matter where they are and without any hassle which one would face while being in the courts.

Though many are eager to shift back to the offline mode of working, virtual internships in the IP field should stay even beyond the pandemic. Virtual internships offer more opportunities, especially in the prosecution of IP matters and provide the flexibility to learn and enhance one’s skills all year-round.

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

Copyright: ALG India Law Offices LLP

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