Turning a corner with stronger IP breakthrough: India’s story

Major historical events are often remembered by a simple question: “where were you when it happened?” One year after we abandoned our offices, bus stops, and favourite restaurants, I have been thinking how our collective memory would recall the 2020 pandemic. Perhaps the questions are too numerous to ask—the emotions too complex to handle. Optimistically, then, I have thought that we might remember COVID-19 not with how it began, but how it ended.

Although we are far from declaring victory over this disease, each day brings positive news in the fight. Doctors and nurses continue to save lives thanks to an ever-improving standard of care. Researchers, manufacturers, and governments around the world forge ahead on vaccine development and distribution. Citizens are making choices to protect themselves and their loved ones. Amidst it all, though, this progress has been supported by a carefully calibrated structure of norms and laws: the international intellectual property ecosystem. One year later, these rules have been road tested like never before—demonstrating their enduring value in addressing society’s most challenging problems.

Such a realization made this year’s release of the U.S. Chamber’s signature research product on intellectual property, the International IP Index, all the more special. Since 2012, this report has measured a growing share of GDP (53 countries, or 90%) across 50 dynamic indicators outlining a high-standard IP system. Now in the ninth edition, we have a wealth of data at our disposal, from the effect of U.S. trade agreements on a country’s score to the performance of so-called “BRICS economies”: Brazil, Russia, India, China, and South Africa. As one of the world’s increasingly innovation-focused economies, it was no surprise that India’s score on the Index has gradually improved between 2012 to 2021. In the very first Index, India received 24.96 percent of the overall score. In the ninth edition, India received 38.40 percent. This year also brought positive changes to India’s IP environment, including updates to disclosure requirements (also known as Form 27) for patent holders in the country, improvements in dynamic judicial measures to address copyright infringement, and programs to encourage the use of IP assets by small and medium-sized enterprises. Despite this progress, India’s year-to-year score decreased by 0.06 points from 2020 to 2021 due to a change in the rate of physical counterfeiting measured. Even though this indicator varies from year to year, it speaks to the need for greater focus to enact lasting, positive changes to India’s IP system. This would have benefits to domestic innovators and creators alike. According to the Index’s Statistical Annex, for instance, nations with strong IP protections are more likely to reap the benefits of innovation, from increased rates of highly skilled and paid employees to greater research and development activity. This is particularly important given the fact that innovation-intensive sectors in India—such as public, private, and academic sectors—oftentimes do not work together, reducing technology transfer within the innovation ecosystem and limiting opportunities for commercialization of potential innovations.

To ensure that India does not fall behind, the government should do everything in its power to fill the gaps. One potential area of focus can be a clear and transparent law for the protection of trade secrets in India. A trade secret is information and data about a business that is not known to the general public but is—through reasonable attempts—kept confidential. Despite a global consensus that trade secret protections are a key part of a well-functioning IP system, rightsholders must rely on judicial precedents to understand the scope of protection in the country. This has proved a workable solution for many years but may become troublesome as more companies develop and use their trade secrets abroad. In addition, inaction on trade secret protections will also affect small business owners who stand to benefit from a diversification in their IP holdings. Whatever the result, India will, no doubt, be at a noticeable disadvantage. Meanwhile, the country continues to struggle with bureaucratic barriers for IP holders. From costly legal proceedings and disclosure requirements to standards out of step with global best

practices, India has become notorious for its complex administration of IP rights. All rightsholders—and especially small and medium-sized enterprises—would benefit from fewer, less costly requirements and fines. If there’s anything we have learned in the past year, it is that IP laws exist for more than just recognizing an innovator’s hard work. They can be applied to develop a workforce, encourage domestic innovation, or solve some of society’s most pressing issues. But a strong national IP regime doesn’t exist in a vacuum; for the international ecosystem to flourish we need international cooperation, for instance we need to support instruments like the World Trade Organization’s TRIPS Agreement, and focus on the potential it holds for indigenous innovation in all economies. As the world’s second-most populous nation—with so much to gain from a strong IP system—India would do well to continue on this path.



Views expressed above are the author’s own.



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