GS Notes

19. Science and Technology Notes 16

22 min read

Elaborate Notes

Intellectual Property Rights (IPR)

Intellectual Property (IP) refers to creations of the mind, such as inventions, literary and artistic works, designs, symbols, names, and images used in commerce. Intellectual Property Rights (IPR) are the legal rights that protect these creations. These rights are granted by the state to creators or owners of IP, providing them with exclusive control over the use of their creation for a specified period. The philosophical underpinning of IPR is twofold: a utilitarian perspective, which argues that such protection provides an economic incentive for innovation and creativity, benefiting society as a whole; and a natural rights perspective, which posits that creators have an inherent moral right to control the fruits of their intellectual labor. The modern IPR regime is largely shaped by international agreements, most notably those administered by the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO).

Patents

A patent is an exclusive right granted for an invention, which is a product or a process that provides a new way of doing something or offers a new technical solution to a problem. It is a powerful form of IP that grants the patent holder a temporary monopoly on the invention, allowing them to prevent others from making, using, or selling it without permission.

  • Conditions for Patentability: To be granted a patent, an invention must satisfy three key criteria:

    1. Novelty: The invention must be new and not part of the existing state of knowledge (known as ‘prior art’). It should not have been published, used, or otherwise disclosed to the public before the date of the patent application.
    2. Non-obviousness (or Inventive Step): The invention must not be obvious to a ‘person having ordinary skill in the art’ (PHOSITA). This means the invention must represent a significant technical advancement over existing knowledge, not just a trivial or logical extension. For example, changing the color of a known device would be obvious, but discovering a new chemical process that significantly improves its efficiency would likely be non-obvious.
    3. Industrial Applicability (or Utility): The invention must be capable of being made or used in some kind of industry. It must have a practical application and cannot be a purely abstract or theoretical concept.

  • Legal Framework in India: In India, patents are governed by The Patents Act, 1970, which has been amended several times, most significantly in 2005 to comply with the TRIPS agreement. The term of a patent in India is 20 years from the date of filing the patent application.

  • Rationale for Limited Term: The 20-year term is a balance. As argued by economists like Fritz Machlup (“An Economic Review of the Patent System,” 1958), a limited monopoly incentivizes inventors to disclose their inventions rather than keep them as trade secrets. After the term expires, the invention enters the public domain, allowing for competition (e.g., manufacturing of generic drugs), which fosters further innovation and lowers prices for consumers.

  • What Cannot be Patented in India (Section 3 of the Patents Act, 1970):

    1. Frivolous Inventions: Inventions that claim to defy established natural laws, such as perpetual motion machines (PMMs), which violate the laws of thermodynamics.
    2. Inventions Contrary to Public Order or Morality: This includes devices for gambling, biological warfare agents, or methods that cause serious prejudice to human, animal, or plant life or health. The patenting of embryonic stem cells is a contentious area under this clause due to ethical concerns.
    3. Mere Discovery of a Scientific Principle: One cannot patent a law of nature like Newton’s law of gravitation. However, an application of that principle, such as a device that uses gravitational forces in a novel way, can be patented. Similarly, the discovery of a naturally occurring microorganism is not patentable, but a genetically modified microorganism with enhanced utility could be.
    4. Mere Admixture: A simple mixture of substances resulting only in the aggregation of their properties is not patentable unless the mixture results in a synergistic effect, i.e., an effect greater than the sum of its parts.
    5. Methods of Agriculture or Horticulture: These are excluded to protect the interests of farmers and ensure food security.
    6. Plants and Animals in whole or any part thereof: Naturally occurring biological materials are not considered inventions. However, microorganisms can be patented.
    7. Traditional Knowledge: Knowledge that is already in the public domain, often held by indigenous communities for generations, cannot be patented. To prevent biopiracy, India created the Traditional Knowledge Digital Library (TKDL), a database that documents traditional Indian knowledge (e.g., medicinal uses of turmeric and neem) to prevent erroneous patents from being granted internationally. The case of the US patent on the healing properties of turmeric, which was successfully challenged and revoked in 1997 by India’s Council of Scientific and Industrial Research (CSIR), is a landmark example.
    8. Atomic Energy Inventions: Inventions relating to atomic energy are not patentable under the provisions of the Atomic Energy Act, 1962.

  • Patent Pool: This is a consortium of at least two companies agreeing to cross-license patents and other IP rights related to a particular technology. Patent pools can promote innovation by reducing transaction costs, clearing blocking patents, and facilitating the adoption of new technology standards (e.g., MPEG-2 for video compression). However, as noted by antitrust authorities like the U.S. Department of Justice, they can also have anti-competitive effects, such as price-fixing or disincentivizing further innovation outside the pool, effectively becoming cartels.

Copyrights

Copyright is a legal right granted to the creator of original works of authorship, including literary, artistic, musical, and dramatic works, as well as films and sound recordings. It does not protect ideas themselves, but the specific expression of those ideas.

  • Scope of Protection: Copyright grants the owner a bundle of exclusive rights, including the right to reproduce the work, create derivative works, distribute copies, and perform or display the work publicly.
  • Legal Framework in India: Governed by the Copyright Act, 1957.
  • Duration:
    • For literary, dramatic, musical, and artistic works: The author’s lifetime plus 60 years after their death.
    • For cinematograph films, sound recordings, and photographs: 60 years from the year of publication.
  • Fair Use/Dealing: A significant limitation on copyright is the doctrine of ‘fair dealing’ (in India) or ‘fair use’ (in the US), which permits the limited use of copyrighted material without the owner’s permission for purposes such as criticism, review, reporting, research, and private study. The landmark case of The Chancellor, Masters & Scholars of the University of Oxford & Ors. v. Rameshwari Photocopy Services & Anr. (2016) saw the Delhi High Court rule that the creation of course packs by photocopying portions of copyrighted books for educational purposes falls under fair dealing and is not an infringement.

Trademark

A trademark is a recognizable sign, design, or expression which identifies products or services of a particular source from those of others.

  • Function: Its primary function is to serve as a badge of origin, ensuring that consumers can distinguish between competing goods and services. It embodies the goodwill and reputation of a business. Examples include the Nike “swoosh,” the Apple logo, or the name “Coca-Cola.”
  • Legal Framework in India: Governed by the Trade Marks Act, 1999.
  • Duration: A trademark registration is valid for 10 years and can be renewed indefinitely as long as it remains in use.

Industrial Design

An industrial design protects the ornamental or aesthetic aspect of an article. It relates to the visual features of shape, configuration, pattern, or composition of lines or colors applied to an article.

  • Purpose: Protection is granted for the appearance of a product, not its functional aspects (which may be protected by a patent). The design must be new, original, and appeal to the eye. For example, the unique shape of a Coca-Cola bottle or the design of a specific model of a car.
  • Legal Framework in India: Governed by the Designs Act, 2000.
  • Duration: Protection is granted for 10 years, which can be extended for a further period of 5 years.

Geographical Indication (GI)

A GI is a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin. It acts as a certification that the product possesses certain qualities, is made according to traditional methods, or enjoys a reputation due to its geographical origin.

  • Examples: Darjeeling Tea, Basmati Rice, Kanchipuram Silk, Nagpur Orange.
  • Legal Framework in India: Governed by The Geographical Indications of Goods (Registration and Protection) Act, 1999.
  • Duration: Registration is valid for 10 years and can be renewed indefinitely.
  • Benefits: GIs help protect traditional knowledge and local industries, promote rural development and tourism, and prevent the misuse of a region’s reputation by unauthorized producers.

Trade Secrets

A trade secret is any confidential business information that provides an enterprise with a competitive edge. It is not publicly known and is protected by measures taken by the company to keep it secret.

  • Scope: Can include formulas (like the Coca-Cola recipe), processes, business strategies, customer lists, or experimental data.
  • Protection: Unlike patents, trade secrets do not require formal registration. Their protection lasts indefinitely, as long as the information remains confidential. However, if the secret is independently discovered or reverse-engineered legally, there is no protection.
  • Legal Framework in India: India does not have a specific standalone law for trade secrets. Protection is derived from principles of equity and common law, and through provisions in other laws like the Indian Contract Act, 1872 (covering confidentiality clauses) and the Information Technology Act, 2000.

Plant Variety Protection

This is a sui generis (of its own kind) IPR system that grants breeders exclusive rights over new plant varieties they have developed.

  • Legal Framework in India: The Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Act, 2001 is a unique piece of legislation that seeks to balance the rights of plant breeders with those of farmers. It recognizes farmers not just as cultivators but also as conservers and breeders.
  • Rights Granted: The Act allows farmers to save, use, sow, re-sow, exchange, share, or sell their farm produce, including seed of a protected variety, except for selling it as “branded seed.”
  • Duration: Protection lasts for 15 years for annual crops and 18 years for trees and vines.
  • Pepsico Case (2019): PepsiCo sued several Gujarat farmers for cultivating the FC5 potato variety, for which it had secured a PPV&FR certificate. Following public and political backlash, the company withdrew the lawsuit. In 2021, the PPV&FR Authority revoked PepsiCo’s registration for the FC5 variety, upholding farmers’ rights under the Act.

Semiconductor Integrated Circuit Layout-Design

This form of IPR protects the specific three-dimensional configuration (layout-design or topography) of electronic circuits in a semiconductor integrated circuit (IC) or chip.

  • Rationale: The design of a modern IC is extremely complex and expensive, but can be copied relatively cheaply. This IP right protects the design effort.
  • Legal Framework in India: Governed by the Semiconductor Integrated Circuits Layout-Design Act, 2000.
  • Duration: Protection is for a period of 10 years from the date of filing the application.

TRIPS Agreement

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is a comprehensive international agreement administered by the WTO.

  • Significance: It was negotiated during the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994. It introduced IP rules into the multilateral trading system for the first time and set down minimum standards of protection that each member country must provide for various forms of IP.
  • Dispute Resolution: Disputes between WTO members over TRIPS obligations are subject to the WTO’s dispute settlement procedures.
  • Flexibilities for Developing Countries: TRIPS contains flexibilities to help developing countries balance IPR with public policy goals. A key flexibility is Compulsory Licensing.
    • Compulsory Licensing: As enshrined in Section 84 of the Indian Patents Act, 1970, this allows a government to authorize a third party to produce a patented product or use a patented process without the consent of the patent holder. This can be invoked under specific conditions, such as national emergencies, public health crises, or if the patented invention is not available to the public at a reasonably affordable price.
    • Example: In 2012, India granted its first compulsory license to the generic drug manufacturer Natco Pharma for the production of a kidney cancer drug, Nexavar, originally patented by Bayer. The decision was based on the grounds that Bayer was not making the drug sufficiently available and its price was exorbitant.

WIPO (World Intellectual Property Organization)

WIPO is a self-funding specialized agency of the United Nations, established in 1967. Its mission is to lead the development of a balanced and effective international IP system that enables innovation and creativity for the benefit of all. It administers 26 international treaties.

  • Key Treaties Administered by WIPO:
    • Paris Convention for the Protection of Industrial Property (1883): One of the first IP treaties, it covers patents, trademarks, and industrial designs.
    • Berne Convention for the Protection of Literary and Artistic Works (1886): Forms the basis of modern international copyright law.
    • Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (2013): This treaty creates a set of mandatory limitations and exceptions to copyright law for the benefit of the visually impaired. India was the first country to ratify it in 2014, demonstrating its commitment to access to knowledge.
  • Global Innovation Index (GII): An annual ranking of countries by their capacity for, and success in, innovation. It is published by WIPO in partnership with Cornell University and INSEAD. In the GII 2022, India ranked 40th out of 132 countries, a significant improvement over previous years.

IPR Related Issues

  • Developed vs. Developing Country Conflicts: Developed nations, particularly the US, often criticize India’s IPR regime for not providing strong enough protection, especially for pharmaceuticals. The USTR’s “Special 301 Report” annually places India on a “Priority Watch List,” citing issues like:

    • Restrictive patentability criteria (Section 3(d)).
    • Concerns about copyright piracy and trademark counterfeiting.
    • Administrative and judicial delays in enforcing IPR.
    • Lack of a specific law for trade secret protection.

  • Evergreening of Patents: This is a strategy used by innovators, especially in the pharmaceutical industry, to extend the patent life of a drug by making minor modifications or finding new uses for it and filing for new patents.

    • India’s Stance (Section 3(d)): Section 3(d) of the Indian Patents Act is a crucial provision designed to prevent evergreening. It states that the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance is not an invention.
    • Landmark Case: The Supreme Court of India’s judgment in Novartis AG v. Union of India (2013) upheld the constitutionality and interpretation of Section 3(d). The court rejected Novartis’s patent application for a new crystalline form of its anti-cancer drug Glivec (Imatinib Mesylate), stating that the new form did not show significantly enhanced therapeutic efficacy over the existing substance. This decision was hailed globally as a victory for public health and access to medicines. More recently, in 2023, the Indian Patent Office rejected Johnson & Johnson’s attempt to extend its patent on the critical anti-TB drug Bedaquiline, citing Section 3(d).

  • Patent Waiver: This refers to the temporary suspension of IPR (specifically patents) on certain technologies to allow for wider production.

    • COVID-19 Context: During the COVID-19 pandemic, India and South Africa jointly proposed a temporary waiver of certain provisions of the TRIPS Agreement for technologies related to the prevention, containment, and treatment of COVID-19, including vaccines and medicines. The rationale was that this would enable multiple manufacturers, especially in developing countries, to produce these essential items, thereby increasing global supply and ensuring equitable access. The proposal faced strong opposition from developed countries and pharmaceutical companies, who argued it would stifle innovation. A heavily diluted version was eventually agreed upon at the WTO in 2022.

Prelims Pointers

  • IPR Legislations in India and their Year:
    • The Patents Act: 1970
    • The Copyright Act: 1957
    • The Trade Marks Act: 1999
    • The Designs Act: 2000
    • The Geographical Indications of Goods (Registration and Protection) Act: 1999
    • Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Act: 2001
    • Semiconductor Integrated Circuits Layout-Design Act: 2000
  • Duration of IPR Protection in India:
    • Patent: 20 years from the date of filing.
    • Copyright: Author’s lifetime + 60 years for most works.
    • Trademark: 10 years, renewable indefinitely.
    • Industrial Design: 10 years, extendable by 5 years.
    • Geographical Indication: 10 years, renewable indefinitely.
    • Plant Variety: 15 years for annuals, 18 years for trees/vines.
    • Semiconductor Layout: 10 years.
  • Key Legal Provisions:
    • Section 3(d) of the Patents Act, 1970: Prevents evergreening of patents.
    • Section 84 of the Patents Act, 1970: Pertains to Compulsory Licensing.
  • International Organizations and Treaties:
    • WIPO (World Intellectual Property Organization): A specialized agency of the UN, established in 1967.
    • TRIPS Agreement: Administered by the World Trade Organization (WTO).
    • Berne Convention: Governs international copyright.
    • Paris Convention: Governs industrial property (patents, trademarks).
    • Marrakesh Treaty: Facilitates access to published works for visually impaired persons. India was the first country to ratify it.
  • Reports and Indices:
    • Global Innovation Index (GII): Published by WIPO, Cornell University, and INSEAD. India’s rank in 2022 was 40th.
    • Special 301 Report: Published annually by the United States Trade Representative (USTR). India is consistently on its ‘Priority Watch List’.
  • Important Case Laws and Examples:
    • Novartis v. Union of India (2013): Supreme Court upheld Section 3(d), rejecting patent for the drug Glivec.
    • Natco Pharma vs. Bayer Corporation (2012): India granted its first compulsory license for the cancer drug Nexavar.
    • Pepsico Case: Involved the FC5 potato variety and farmers’ rights under the PPV&FR Act, 2001.
  • Items not Patentable in India:
    • Mere discovery of a scientific principle.
    • Methods of agriculture or horticulture.
    • Plants and animals (other than microorganisms).
    • Traditional knowledge.
    • Inventions related to atomic energy.

Mains Insights

  1. The Dilemma of Balancing Innovation and Access:

    • Cause-Effect: A strong patent regime is argued to incentivize high-risk, high-cost R&D, particularly in the pharmaceutical and technology sectors. This can lead to new life-saving drugs and technological breakthroughs. However, the resulting monopoly allows patent-holders to charge high prices, creating a barrier to access, especially in developing countries.
    • India’s Approach: India’s IPR policy, particularly the Patents Act, attempts to strike a balance. Provisions like Section 3(d) (anti-evergreening) and compulsory licensing are tools to prioritize public health and affordability. This approach, while lauded by public health advocates, is criticized by multinational corporations and developed countries for allegedly weakening the innovation incentive.
    • Debate: The core debate is whether financial incentives from patents are the only or most effective way to drive innovation. Scholars like Joseph Stiglitz argue that the patent system can stifle innovation by creating “patent thickets” and promoting litigation over research. Alternative models like government-funded research, prize systems, and open-source collaboration are proposed as complements or substitutes.

  2. IPR as a Tool in Geopolitics and Trade:

    • North-South Divide: The standards for IPR protection are a major point of contention in international relations. Developed countries (the ‘North’), which are net exporters of IP, push for stronger, harmonized IPR standards globally (TRIPS-plus provisions in Free Trade Agreements). Developing countries (the ‘South’), often net importers of IP, advocate for flexibilities to pursue their developmental goals, such as public health and technology transfer.
    • USTR’s Special 301 Report: This unilateral report by the US is an example of using trade policy to pressure other countries to adopt stronger IPR laws that favor US corporations. India’s consistent presence on the “Priority Watch List” reflects this ongoing geopolitical tension.

  3. Harnessing the Potential of Geographical Indications (GIs):

    • Potential Benefits: GIs can be a powerful tool for socio-economic development. They can preserve traditional knowledge and culture, boost rural incomes, create niche markets, and promote tourism. They act as a form of collective, community-owned IP.
    • Implementation Challenges in India:
      • Lack of Quality Control and Authentication: There is often no robust mechanism to ensure that all products sold under a GI tag adhere to a consistent quality standard. This dilutes the brand value.
      • Poor Marketing and Branding: Merely obtaining a GI tag is not enough. There is a need for strategic marketing, brand-building, and creating a compelling story around the product for both domestic and international markets.
      • Supply Chain Inefficiencies: Poor infrastructure, involvement of multiple middlemen, and lack of direct market access for artisans/farmers prevent them from realizing the full commercial benefits.
      • Community Mobilization: The benefits of a GI are meant for the entire community of producers. However, lack of effective producer organizations and internal conflicts can hinder collective action and benefit-sharing.

  4. Evergreening vs. Incremental Innovation:

    • The Fine Line: The pharmaceutical industry argues that what critics call “evergreening” is actually “incremental innovation”—small improvements to existing drugs that can lead to significant benefits like reduced side effects, easier administration, or improved efficacy.
    • India’s Stand (Section 3(d)): The Indian law sets a high bar, requiring “enhancement of the known efficacy.” This is a deliberate policy choice to prevent the extension of monopolies for trivial changes, thereby ensuring timely entry of generic competition.
    • Consequences: This stance makes India a global leader in the production of affordable generic medicines, often called the ‘pharmacy of the world’. However, it also leads to accusations of creating a difficult business environment for innovator pharmaceutical companies.

Previous Year Questions

Prelims

  1. With reference to the ‘Global Innovation Index’, which of the following statements is/are correct? (UPSC CSE 2019)

    1. It is published by the World Intellectual Property Organization (WIPO) in collaboration with Cornell University and INSEAD.
    2. It ranks the innovation performance of countries.
    3. India has been consistently moving up the ranks in the last few years.

    Select the correct answer using the code given below. (a) 1 and 2 only (b) 2 and 3 only (c) 1 and 3 only (d) 1, 2 and 3

    Answer: (d) Explanation: All three statements are correct. The Global Innovation Index (GII) is published by WIPO, Cornell, and INSEAD. It is a ranking of innovation performance. India’s rank has steadily improved over the years, reaching 40th in the 2022 report.

  2. Consider the following statements: (UPSC CSE 2019)

    1. As per the Indian Patents Act, a biological process to create a seed can be patented in India.
    2. In India, there is no Intellectual Property Appellate Board.
    3. Plant varieties are not eligible to be patented in India.

    Which of the statements given above is/are correct? (a) 1 and 3 only (b) 2 and 3 only (c) 3 only (d) 1, 2 and 3

    Answer: (c) Explanation: Statement 1 is incorrect; essentially biological processes for the production of plants are not patentable. Statement 2 is incorrect; the Intellectual Property Appellate Board (IPAB) existed but was abolished in 2021 via an ordinance, so depending on the exact timing, this was tricky, but as of now, it’s correct that there is no IPAB. However, the key part of the question is statement 3. Statement 3 is correct; under the Indian Patents Act, plant varieties are not patentable. They are protected under a separate sui generis system, the Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Act, 2001.

  3. India enacted The Geographical Indications of Goods (Registration and Protection) Act, 1999 in order to comply with the obligations to: (UPSC CSE 2018) (a) ILO (b) IMF (c) UNCTAD (d) WTO

    Answer: (d) Explanation: The Geographical Indications of Goods Act, 1999 was enacted by India to comply with its obligations under the WTO’s TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement. Article 22 to 24 of the TRIPS agreement specifically deal with the protection of Geographical Indications.

  4. Which of the following has/have been accorded ‘Geographical Indication’ status? (UPSC CSE 2015)

    1. Banaras Brocades and Sarees
    2. Rajasthani Dal-Bati-Churma
    3. Tirupati Laddu

    Select the correct answer using the code given below. (a) 1 only (b) 2 and 3 only (c) 1 and 3 only (d) 1, 2 and 3

    Answer: (c) Explanation: Banaras Brocades and Sarees from Uttar Pradesh and Tirupati Laddu from Andhra Pradesh have been accorded GI status. Rajasthani Dal-Bati-Churma is a famous dish but does not have a GI tag.

  5. With reference to the circumstances in Indian agriculture, the concept of “Conservation Agriculture” assumes significance. Which of the following fall under the Conservation Agriculture? (UPSC CSE 2018)

    1. Avoiding the monoculture practices
    2. Adopting minimum tillage
    3. Avoiding the cultivation of plantation crops
    4. Using crop residues to cover soil surface
    5. Adopting spatial and temporal crop sequencing/crop rotations

    Select the correct answer using the code given below: (a) 1, 3 and 4 (b) 2, 3, 4 and 5 (c) 2, 4 and 5 (d) 1, 2, 3 and 5

    Answer: (c) Explanation: While not directly an IPR question, it relates to agricultural practices. The Indian Patents Act excludes “methods of agriculture or horticulture” from patentability. Conservation Agriculture principles include minimum soil disturbance (minimum tillage), permanent soil cover (using crop residues), and diversification of plant species (crop rotation). Therefore, 2, 4, and 5 are correct.

Mains

  1. In a globalized world, Intellectual Property Rights assume significance and are a source of litigation. Broadly distinguish between the terms—Copyrights, Patents and Trade Secrets. (UPSC GS Paper III, 2014) (Note: This is slightly older than 5 years but highly relevant and foundational)

  2. How is the Government of India protecting traditional knowledge of medicine from patenting by pharmaceutical companies? (UPSC GS Paper III, 2019)

  3. What are the key areas of reform if the WTO has to survive in the present context of ‘Trade War’, especially keeping in mind the interest of India? (UPSC GS Paper II, 2018) (Note: This question’s scope is broader, but the TRIPS agreement and its flexibilities are a key area of contention and reform discussion at the WTO, relevant to the answer)

  4. Highlighting the benefits of the GI tag, discuss the issues in harnessing the potential commercial benefits of GI in India. (Based on common question themes)

  5. What is compulsory licensing? Critically examine whether compulsory licensing provisions under Indian law are a deterrent to innovation. (Based on common question themes)

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