Intellectual property rights

The first principle

An idea, once shared, can be copied at almost no cost, so without protection an inventor or author bears the whole cost of creating it while copiers share the gain, and less gets created. Intellectual property solves this with a bargain: the state grants a limited monopoly, and in return the creator discloses the work and lets it pass to the public when the term ends. Every debate in this note, from medicine prices to traditional knowledge, is an argument about where that bargain should be struck, and India has consistently struck it closer to access than the rich countries would like.

The core

The rights

• A patent protects an invention, a product or process that is new, involves an inventive step (not obvious to a person skilled in the field) and is capable of industrial application. It lasts 20 years from filing under the Patents Act, 1970, in return for full disclosure.
• Copyright protects the expression of an idea, not the idea itself, in literary, dramatic, musical and artistic works, films, sound recordings and software; it arises automatically, lasts for the author's life plus 60 years under the Copyright Act, 1957, and allows fair dealing for study, research and reporting.
• A trademark protects a word, logo, shape or sound that tells one trader's goods or services from another's, for 10 years at a time under the Trade Marks Act, 1999, renewable without limit, because a mark serves consumers as long as it is used.
• An industrial design protects the shape, pattern or ornament of an article, how it looks rather than how it works, for 10 years extendable by 5 under the Designs Act, 2000.
• A geographical indication (GI) identifies goods whose quality or reputation comes from a particular place, such as Darjeeling tea, the first Indian GI, registered in 2004. It belongs to the community of producers, is registered at the GI Registry in Chennai under the Geographical Indications of Goods (Registration and Protection) Act, 1999 for renewable terms of 10 years, and India now has several hundred registered GIs.
• Plant varieties and layouts. The Protection of Plant Varieties and Farmers' Rights Act, 2001 protects new varieties for 15 years, 18 for trees and vines, and uniquely lets farmers save, use, exchange and sell farm saved seed, though not branded seed; the Semiconductor Integrated Circuits Layout Design Act, 2000 protects chip layouts for 10 years.
• Trade secrets have no statute in India and are protected only by contract and court remedies for breach of confidence; the Law Commission's 289th Report of 2024 recommended a separate law.

What Indian patent law refuses

• Section 3 lists what is not an invention, including a discovery, a mathematical method, a business method, a computer programme per se (Section 3(k)), methods of agriculture or of treating humans or animals, and traditional knowledge.
• Section 3(d), added in 2005, denies a patent to a new form of a known substance unless it shows enhanced efficacy, and salts, esters, polymorphs, isomers and other derivatives count as the same substance unless they differ significantly in efficacy. Its target is evergreening, extending a monopoly by patenting small changes as the original patent nears expiry.
• Compulsory licensing. Under Section 84, three years after a patent is granted, anyone may ask the Controller for a licence if the reasonable needs of the public are not met, the invention is not available at a reasonably affordable price, or it is not worked in India; Section 92 allows licences in a national emergency, and Section 92A allows export to countries that cannot make a medicine themselves.
• Opposition and the Bolar exemption. Anyone may oppose an application before grant, and an interested person within one year of the grant being published, while Section 107A lets generic makers develop and test a drug before the patent expires, so that cheaper versions reach the market on the day it does.

Dimensions

• Economic. Patents reward invention and draw investment in research, but they also raise prices for the length of the monopoly that a technology importer pays.
• Health. India's generic industry supplies a large share of the world's affordable medicines, and its patent law is designed to keep that possible; this is why it is often called the pharmacy of the developing world.
• Legal and international. The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), which came with the World Trade Organization (WTO) in 1995, set minimum standards for all members, and India changed its law in 1999, 2002 and 2005, the last bringing product patents to medicines, food and chemicals. The Doha Declaration on the TRIPS Agreement and Public Health of 2001 confirmed that members may protect public health, grant compulsory licences and decide their own grounds for them.
• Traditional knowledge. Knowledge held by communities is often old, oral and collective, so it fits poorly into a system built for named inventors and novelty, and it is open to biopiracy, patents taken abroad on uses already known in India.

In practice

• Novartis AG v Union of India (Supreme Court, 1 April 2013). Novartis sought a patent on the beta crystalline form of imatinib mesylate, sold as Glivec for a leukaemia; the Court held that under Section 3(d) efficacy means therapeutic efficacy and that better absorption alone did not prove it, so the patent was refused and the law's bar on evergreening was upheld.
• Natco Pharma v Bayer Corporation (Controller of Patents, 9 March 2012). India's first and only compulsory licence let Natco make sorafenib tosylate, a kidney and liver cancer drug sold by Bayer as Nexavar at about Rs 2,80,000 for a month's therapy, and sell it at Rs 8,880, paying Bayer a royalty of 6 per cent of net sales; all three grounds of Section 84 were found met. The Intellectual Property Appellate Board upheld the licence in 2013 while raising the royalty to 7 per cent, the Bombay High Court upheld it in 2014, and the Supreme Court declined to interfere in December 2014.
• Traditional knowledge defended. A United States patent on turmeric for healing wounds was revoked in 1997 after the Council of Scientific and Industrial Research (CSIR) showed the use in old Indian texts, and a European patent on a neem based fungicide was revoked in 2000. These cases led to the Traditional Knowledge Digital Library (TKDL), begun in 2001 by CSIR and the department that is now the Ministry of AYUSH, which translates traditional formulations into languages patent examiners read so that they can find the prior art.
• Biodiversity link. The Biological Diversity Act, 2002 requires the approval of the National Biodiversity Authority before an intellectual property right is granted on an invention based on Indian biological resources; the Biological Diversity (Amendment) Act, 2023 moved that approval from the time of application to the time of grant.
• The WIPO treaty of May 2024. The World Intellectual Property Organization (WIPO) Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge, adopted at Geneva on 24 May 2024, requires a patent applicant to disclose the country of origin or source of genetic resources and associated traditional knowledge on which a claimed invention is based. India and other biodiversity rich countries had pressed for it for two decades, and it enters into force three months after 15 countries ratify it.
• Policy and institutions. The National IPR Policy of May 2016, under the slogan "Creative India; Innovative India", made the Department of Industrial Policy and Promotion, now the Department for Promotion of Industry and Internal Trade (DPIIT), the nodal department and created the Cell for IPR Promotion and Management (CIPAM). The Intellectual Property Appellate Board was abolished in 2021, so appeals now go to the High Courts, and the Delhi High Court set up an Intellectual Property Division the same year.
• Numbers. In 2024-25 the Indian Patent Office received 1,10,375 patent applications, and Indian residents filed about 62 per cent of them, up from about 56 per cent a year earlier, according to the annual report of the Office of the Controller General of Patents, Designs and Trade Marks (CGPDTM) for 2024-25.

Issues and way forward

• Pressure for TRIPS plus terms. Trade partners seek data exclusivity, patent term extension and patent linkage, protections beyond what TRIPS requires, and the United States Trade Representative's annual Special 301 report has placed India on its Priority Watch List for years over Section 3(d) and compulsory licensing; India's answer has been that these flexibilities are lawful under TRIPS and Doha, and it should keep them out of free trade agreements.
• Backlog and quality. Recruitment and digitisation have cut long waits, and the next aim is consistent examination, because weak patents block competitors as surely as strong ones.
• Low commercialisation. Many patents from universities and laboratories are never licensed, so technology transfer offices and royalty sharing with inventors are needed, a theme of the science system note.
• Protecting communities. GIs help only when producers' bodies police quality and market the name, and traditional knowledge needs benefit sharing that reaches the community, not only refusals of foreign patents.
• New technology. Rules for patents on software and diagnostics, copyright in works made with artificial intelligence and a trade secrets law are pending questions on which India needs clear law.

Common confusions

• Patent and copyright. A patent protects a functional idea and must be applied for and examined, while copyright protects only the expression of a work and arises automatically on creation.
• Trademark and GI. A trademark identifies one trader and can be sold, while a GI identifies a place and belongs to all producers there who meet its standard, so it cannot be sold.
• Evergreening and incremental innovation. Evergreening extends a monopoly by trivial changes, while incremental innovation that genuinely improves therapeutic efficacy can still be patented in India under Section 3(d).
• Compulsory licence and parallel import. A compulsory licence lets a third party make the patented product without consent, while a parallel import brings in a genuine product that the owner sold more cheaply abroad.

For the exam

• Keyword bank: limited monopoly in exchange for disclosure, novelty, inventive step, industrial application, Section 3(d), evergreening, compulsory licence, Bolar exemption, TRIPS flexibilities, Doha Declaration, TRIPS plus, biopiracy, Traditional Knowledge Digital Library, disclosure of origin, Special 301.
• Previous year questions: Practise the previous year questions on this topic →
• Use in an answer:
  • Introduction with data: Indian residents filed about 62 per cent of the 1,10,375 patent applications received in 2024-25, showing that India is beginning to invent and not only to copy (CGPDTM Annual Report 2024-25).
  • Introduction with a judgement: In Novartis AG v Union of India (2013), the Supreme Court held that a new form of a known drug earns a patent only if it improves therapeutic efficacy, upholding Section 3(d) against evergreening.
  • Conclusion: India's patent law treats intellectual property as a bargain with the public rather than a natural right, and the TRIPS flexibilities it uses keep that bargain fair for a country that still imports most of its technology.
  • Conclusion: As Indian firms invent more, the task is to protect them strongly at home and abroad while keeping the safeguards for medicines, seeds and traditional knowledge, which the WIPO treaty of 2024 has begun to write into global law.