Probable Strategic IP Policies During The Pandemic

¹Over the last few years, foreign companies owning most of the patents have sued Indian companies for alleged infringement of patents ranging from medical devices to drugs. The limitations that Indian companies are facing include high price of technologies along with not having enough infrastructure to manufacture such products. In the current scenario, where the world is facing a challenge to deal with COVID-19, there is no doubt that foreign companies will cater to their needs first as the same would be expected of Indian patentees in the same situation. However, Indian government should not be complacent and let the foreign patentees limit the Indian manufactures from entering the field at this crucial time.

There are a number of options for the Indian government to break the monopoly of the foreign patentees. One of them is section 92² of the Indian Patent Act, wherein the government can declare a national emergency due to COVID-19. According to section 92 and sub section 1, if the Central Government is satisfied, in respect of any patent in force, in circumstances of national emergency or in circumstances of extreme urgency or in case of public non-commercial use that necessitates grant of compulsory licenses at any time after the sealing thereof, to work the invention, the government may make a declaration to that effect, by notification in the Official Gazette.

A second option can be the utilization of section 100³ of the Indian Patent Act, wherein government can authorize specific organizations to use any patents or patent applications for the purpose of government. Once the authorization is achieved, the authorized patents or the patent applications can be used to begin manufacturing along with negotiating royalties associated with the patent.

Further on, the government can acquire the relevant patent, under section 102 of the Indian Patent Act from the patentees to work upon for public purposes. In all the above-mentioned possibilities, a reasonable royalty is required to be fixed and it should be made sure that the technology is available at a reasonable price for Indian consumer.

Considering the fact that compulsory licencing and/ or government acquisition is a long term process, the government can also focus on negotiating on bulk public procurement as it can massively reduce the price of patented products. While considering the necessary steps being taken by the government, it should also be kept in mind whether the foreign patentees have the manufacturing capacity to meet the requirements from India. If there is a chance that the foreign patentees lack capacity to cater the demand from India, the government should encourage transfer technology to Indian companies under reasonable royalty agreements.

Patent monitoring can also be a useful practice that should be performed using patent landscaping, wherein the government can obtain useful information filed by patentees in Form 27 filed under section 146 of the Patent Acts clearly indicating the extent of foreign patents sales in India for future prospects.

Footnotes

1 https://spicyip.com/2020/03/the-need-for-an-ip-policy-to-build-astrategic-stockpile-for-pandemics.html

2 http://ipindia.nic.in/writereaddata/Portal/ev/sections/ps92.html

3 http://ipindia.nic.in/writereaddata/Portal/ev/sections/ps92.html

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