New Delhi: India’s intellectual property rights (IPR) system—designed to protect domestic innovators—needs to adopt a more offensive stance to compete on the global stage according to a new working paper by Sanjeev Sanyal, a member of the Economic Advisory Council to the Prime Minister (EAC-PM).
“Since independence, our IPR system has been defensive because we started with the assumption that Indian innovators cannot compete with international counterparts,” wrote Sanyal and Apurv Kumar Mishra, a consultant at EAC-PM.
“If India wants to be a major R&D hub and a place for cutting edge manufacturing and IP generation, we need to move away from a defensive to an offensive posture,” the paper added. “Instead of defending domestic markets, our focus must be on laying the groundwork for Indian innovators to capture global markets.”
This defensive system has been termed as ‘counter-productive’, since India ends up accepting foreign innovations regardless.
However, India’s patent landscape has undergone tectonic shifts in recent years. Patent applications and grants are on the rise. In 2023, the country filed 64,480 applications—a 15.7 percent increase—and recorded double digit growth for the fifth straight year. The number of patents granted also saw a 149.4 percent increase in 2023 over the previous year.
A report published by The World Intellectual Property Organization (WIPO) ranked India sixth globally in terms of patent applications, behind China, US, Japan, South Korea and Germany.
For Indian entities to leverage the economic potential of their IPRs in global markets, Sanyal and Mishra argue that the signing of international agreements will signal the right intentions about the country’s hope of becoming a R&D hub and protector of IPR.
The authors looked at 4 agreements administered by WIPO—Strasbourg Agreement, Hague Agreement, Design Law Treaty and Lisbon Agreement—all of which streamline the process for filing, registering and managing IPRs in foreign countries. India has only signed one of these agreements.
Sanyal and Mishra argue that India should ideally sign all four agreements, even though the short-term beneficiaries would majorly be foreign applicants.
“In the short term, the major beneficiaries will be foreign applicants but given the rising number of domestic IPR filings over the last few years and India’s aspiration to emerge as the manufacturing and R&D hub of the world, signing these agreements and aligning with the international best practices will send the right signals to domestic and foreign entrepreneurs about India’s commitment as a protector of IPR and showcasing itself as an IPR-savvy destination,” they wrote.
Strasbourg Agreement on patent classification
The Strasbourg Agreement Concerning the International Patent Classification (“Strasbourg Agreement”) was signed in 1971 and currently has 65 contracting parties, including China.
It established the International Patent Classification (IPC) system, which provides a unique alpha-numeric code based on a hierarchical system of classification.
At the highest level, there are eight sections ranging from ‘Physics’ and ‘Electricity’ to ‘Human Necessities’ and ‘Textiles, Paper’.
These are further divided into subgroups, resulting in the availability of over 70,000 unique codes for accurate patent classification.
Having patent categorisation as per IPC also allows for a process called ‘prior art search’, which leverages the classification system to evaluate a patent’s novelty by checking whether similar inventions exist in the public domain.
India already follows the IPC classification so signing this agreement would require no changes to domestic laws and therefore no downside, the paper noted.
Ratifying the agreement also ensures India’s global R&D contribution is not under-represented.
Industrial design and timely patents
The second agreement is specific to industrial design which focuses on the outward appearance of a product. Industrial design-specific IPRs protect a product’s unique shape, pattern and colour combinations. Lego bricks, Nike sneakers, Coca-Cola bottles are all examples of product designs protected under IPR.
In India, patent applications for industrial design increased by 36.4 percent in 2023, underscoring the country’s capabilities in product development.
The Hague Agreement Concerning the International Registration of Industrial Designs (“Hague Agreement”) creates a ‘simplified and time-bound process’ for the registration of industrial designs across multiple geographies.
Through a single application filed with WIPO, the agreement allows for a faster, cheaper and simpler process than filing applications individually in each country.
By ratifying this agreement, a member country will also have a more streamlined process for post-grant management. Everything from renewal fees to updates on licenses will fall under a single application, thereby reducing the burden on both applicants and administrative authorities.
The paper noted that, while signing the agreement would streamline the application process, it leaves the granting of IPR at the member-state level. In India, the registration and protection of industrial designs falls under the Designs Act, 2000, and Designs Rules, 2001.
Under the Hague Agreement, India would have to amend its existing laws, including allowing for a single application for multiple designs in the same class.
The country would also have to recognise the concept of deemed registration, where a design is deemed approved even if a country has not decided on an application within 6 months of its publication by WIPO.
Sanyal and Mishra recommended that India sign this agreement but have provisions in place to ensure capacity to process international applications while also carving out exceptions to prevent amendments to domestic laws.
The one treaty India has signed
The third agreement the paper discusses is the Design Law Treaty (DLT), the only agreement from the list that India has signed.
DLT was signed in Riyadh after nearly two decades of negotiations between member states and was finally adopted by WIPO in November 2024.
This agreement ensures that the filing and recording of changes in design licenses are made simple and affordable through international best practices.
Sanyal and Mishra highlighted two issues related to the agreement that clash with domestic laws, but also saw “no visible downside”.
The first issue is that in India, only unpublished designs are eligible for protection because this ensures novelty.
The DLT, however, provides a grace period of up to 12 months from first publication date for the design to be registered and protected.
The second is the option of deferred publication.
In India, all registered designs are immediately published by the Designs Office so that subsequent innovators cannot claim ignorance of their existence.
The DLT allows for deferred publication, allowing applicants to delay the publication of their design registration.
This is done to keep their designs confidential for a specific period after filing. An example of this would be a series of car models released over an extended period.
A geographic obstacle
The final agreement deals with ‘Geographical Indications’ (GIs), a unique mark on a product that exhibits characteristics from a specific location.
Examples of such products include Alphonso mangoes, Darjeeling tea and Basmati rice. The qualities associated with these products are linked to natural and human factors specific to their geographical area.
Like the Hague Agreement, the Lisbon System for International Protection of Geographical Indications (“Lisbon Agreement”) simplifies the registration process of GIs in foreign countries through a single application with WIPO.
The advantages are similar—a ‘centralised management of GI rights’ replaces individual country fees, documentation and language requirements.
However, ratifying this agreement would involve even greater amendments to domestic laws as compared to the Hague Agreement.
The Lisbon Agreement grants indefinite protection of GIs with no renewal, compared to India’s indefinite protection subject to a 10-year renewal.
Additionally, the agreement has stricter standards of protection across all goods to prevent imitation. Under Indian law, these standards are only extended to wine and spirits.
The Lisbon Agreement also follows the principle of deemed registration—if the national IPR office doesn’t reject the registration within 12 months, the GI is considered registered.
This is especially challenging for India, where it takes a lot longer to decide on applications despite the familiarity of the product, applicants, application language and geographical market.
Finally, the requirement to file applications online will be a major burden to India, who still file physical GI applications.
China has still not signed the Lisbon Agreement, preferring to protect its GIs through bilateral agreements instead.
Weighing the considerable obstacles in place, Sanyal and Mishra recommended that India not sign this agreement.
India still has a long way to go implement these agreements, even if the country considers signing them.
Sanyal and Mishra conclude that all four agreements would require India to deploy additional manpower to process applications in a timely manner, set up systems for e-processing of applications and potentially amend domestic laws to follow international best practices.
They also noted that in the short term, these agreements may benefit foreign applicants.
However, given India’s recent growth in domestic patent applications and grants, the agreements would pave the path for “Indian innovators to capture global markets”.
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