NAM: India’s IP Policy Shows Missed Opportunity with Backsliding on Patents, Trade Secrets

By: Ryan Ong, Director for International Business Policy at the National Association of Manufacturers 

India missed a clear opportunity to signal that it is serious about Prime Minister Modi’s promises to become an “innovation hub” last week with the release of its long-awaited National Intellectual Property Rights (IPR) Policy. Far from being the breakthrough document that India’s government has claimed, the final policy framework shows with little improvement to critical language and new, troubling provisions in key areas such as patents and trade secrets.

This is a disturbing signal on IP only weeks before Prime Minister Modi is set to visit the United States – and makes it even more imperative that Administration officials and members of Congress stress the need for strong intellectual property protection during his visit.

IP protection is a top priority for manufacturers in India and worldwide: innovation drives U.S. global leadership in manufacturing and promotes good-paying jobs and economic growth in a sector that is innovating more than ever before. Innovation is also a key factor that could fuel greater investment in India in line with high-level initiatives such as “Make in India” and “Digital India.”

When India began drafting its National IPR Policy in 2014, many had hoped that the policy would represent not just a symbolic step forward, but would mark a strategic shift in India towards protection of intellectual property and innovation. The NAM, for example, provided detailed comments urging India to use the policy to drive real progress in areas such as patents, trade secrets, and copyrights, and to address longstanding concerns in areas such as compulsory licensing and standards.

The NAM welcomes the fact that India does recognize throughout the document that IPRs do, in fact, make a valuable contribution to fostering creativity and innovation. And while including a few positive changes to reflect that underlying point, overall, India’s National IPR Policy does not evince any real willingness by India to tackle the greatest concerns with its existing IPR framework. Among the NAM’s concerns with the final policy are:

  • Continued use of language reaffirming India’s view that its IPR laws are robust and calling for India’s continued broad use of flexibilities under international IPR agreements, language that has used in the past to justify broad compulsory licensing powers including with regard to environmental and healthcare technologies and innovations.
  • Explicit requirements to ensure enhanced access to patented medicines, including use of “new licensing models” and language calling on India to take “strong measures” against attempts to treat generic drugs as spurious or counterfeit.
  • Expanded language on IPR licensing and technology transfer, setting these as explicit national goals and increased language related to standard-essential patents (SEPs) and active use of competition enforcement to address licensing abuses.
  • Removal of requirements for India to enact laws in key areas like trade secrets and patents, and remaining language that provides little push for India to revise key IPR laws that are out-of-date and out-of-line with international practice.

The final policy does call for India’s government to explore expedited patent examination to promote manufacturing and to “stimulate” foreign companies to create, protect, and use IPR in India. While positive, the language provides no detail on either issue to help foreign manufacturers understand whether they could benefit. While the policy does make modest improvements to copyrights and IPR enforcement, these limited steps do little to address the broader concerns that undermine a stronger U.S.-India commercial relationship and India’s own ability to drive more innovative manufacturing.

India’s National IPR Policy thus marks a significant disappointment for those in both the United States and India who had hoped that India could back up its lofty rhetoric that India was “open for business” and had ambitions of being an “innovation hub.” This letdown has implications for both countries: as the Indian government begins the concrete work of implementing the plan’s goals, it must strive towards – not away from – international IP practices if it is serious about attracting foreign investment. And as U.S. officials prepare for Prime Minister Modi’s visit in early June, intellectual property – and the problems with the new National IPR policy – must be front-and-center on the agenda, alongside the range of other commercial issues that continue to plague manufacturers trying to do business in India.