The Department of Industrial Policy and Promotion (DIPP) has been engaged in formulating the national IPR policy of India. It has already constituted an IPR Think Tank in this regard that would help DIPP in proper understanding and implementation of IPR related issues in India. Public comments were also invited by the DIPP and the last date for submission of the comments was 30-11-2014. As that date is over and the comments must have already been provided by the public, the Think Tank must be busy in formulating the national IPR policy of India.
India has already been managing effectively her IPR related laws and obligations in conformity with international treaties and conventions. At the same time India is also maintaining a balance between the constitutional protections and her international treaty obligations. Despite contrary claims, Indian patent law is in conformity with her international obligations. India is not at all obliged to adhere to TRIPS plus provisions and her current IPRs laws are not only well written but are also adequately enforced.
However, information and communication technology (ICT) has introduced many unique and complex issues before the Indian government. The proposed national IPR policy of India may cover these issues as well. However, these challenges cannot be effectively tackled unless the proposed national IPR policy of India is techno legal in nature i.e. a policy that can take care of both technological and legal issues simultaneously.
India is presently struggling to deal with technological issues of IPRs in general and techno legal issues in particular. This may be counterproductive in the long term as India has embraced policy initiatives like Digital India and Internet of Things (IoT) (PDF). Conflict of laws in cyberspace has made the enforcement of IPRs really tough especially when online infringements are involved. Internet intermediary liability and cyber law due diligence (PDF) issues are also not properly addressed in India so far.
There is also a need to ensure that innovation must be adequately represented by skilled IPRs professionals. For instance, right now only patent agents are allowed to file patent applications besides the applicant in person. There is a need to allow lawyers to file patents applications as well as that would increase the scope and numbers of patents applications in India.
Further, the legal analysis of SP.Chockalingam v Controller of Patents & Anr and its legal consequences are still not clear. The judgment gives an interpretation that lawyers can act as a patent agents while dealing with patents related issues at the registry. This is logical as well as a lawyer who can represent her client for the most serious matters should not be disallowed to act as patent agent/attorney at the patent office. Lawyers can already appear on behalf of patent applicants in tribunals and courts and there is no sense in prohibiting them from appearing before the Controller/Patent Office. We believe that a positive clarification in this regard by the Indian government would be really helpful as that would help in facilitating the creation and recognition of more IPRs by various stakeholders through lawyers.
The proposed IPR policy must also ensure that applications are disposed of in a time bound and transparent manner. Applicants must be encouraged to use online filing system of the Patent/Trademark/Copyright offices. This would automate the process of filing and processing of various IPRs applications and would save time and energy of various stakeholders.
IPRs dispute resolution is another area that requires innovative and out of the box solutions. For instance, issues like small claims (PDF), orphan works (PDF), minor IPRs issues and disputes, etc can be effectively resolved through methods of online dispute resolution (ODR) and e-courts. This would also help in effective implementation of National Litigation Policy of India (NLPI) as many disputes would be resolved out of the court itself.
Perry4Law and PTLB hope that the proposed national IPR policy of India would be comprehensive enough to cover techno legal issues as well as mentioned above.