How Meaningful Is India’s Improved Ranking On Intellectual Property Index? 

Score’s up but has India’s patentabilty environment really improved? 

An employee in protective clothing exits an area of the research and development center (Photographer: Dhiraj Singh/Bloomberg)
An employee in protective clothing exits an area of the research and development center (Photographer: Dhiraj Singh/Bloomberg)

India’s ranking improved among 50 countries in the annual International IP Index this year on better protection for trademarks and copyrights and easier rules to patent computer-related innovations.

The U.S. Chamber of Commerce Global Innovation Policy Center ranks countries annually based on their patent, trademark, copyright, and trade secrets protection policies. India’s rank on the sixth edition of index—44th of 50 economies compared with 43rd of 45 a year ago— has improved both in relative and absolute terms, Patrick Kilbride, vice-president of GIPC, told BloombergQuint in an emailed interview.

For the first time, India has broken free of the bottom 10 percent of economies measured. Compared with 25 percent (8.75 out of 35) of the possible total score in the fifth edition, India scored 30 percent (12.03 out of 40) in the sixth edition, representing the largest percentage improvement of any country measured.”
Patrick Kilbride, Vice-president, GIPC  

Yet, India stays among the bottom 10. And not everyone is convinced with the rankings and their methodology.

Once again, this is a “diabolical attempt” by U.S. industrial lobbies to shame countries into toeing their line, Shamnad Basheer, visiting professor of intellectual property law at the National Law School, Bangalore, told BloombergQuint. The GIPC methodology to rank countries continues to be flawed.

Just imagine, India is ranked below Brunei! That should tell you something, right? The last I checked no one ever spoke of Brunei while discussing innovation and creativity. Rather, it was known more for its luxurious royalty. And yet they ranked higher than India, a country known for its technological proficiency in some sectors at least, and its creativity in Bollywood movies, music and the like.
Shamnad Basheer, Visiting Professor, NLS Bangalore

The GIPC report points out that the improved rankings are a result of:

  • Guidelines for Examination of Computer Related Inventions that were revised in July last year. Since they did away with the requirement for hardware innovation, it has made patentability of computer-implemented inventions easier.
  • Ability to defend and enforce copyrights through injunctive relief. Since 2012, there have been a number of cases in which access to websites offering pirated and infringing content—including notorious international sites like The Pirate Bay—has been disabled through court orders, the report says.
  • New set of Trade Mark Rules issued in May last year that give owners the ability to protect their trademarks. So far, the Office of the Controller General of Patents, Designs and Trade Marks compiled a list of marks that it recognised as well-known. But this list is not exhaustive and does not include many marks that by any reasonable standard would be considered well-known, the report says. As per the new rules, individuals and entities can now apply directly to the registrar to receive official recognition for their marks as “well-known”.

Kilbride said these factors are just a step forward towards strengthening the patentability environment. The final guidelines on computer-related inventions are encouraging as they appear to preserve the patentability of all forms of technology, but the revised policy is yet to be implemented, he said.

To create an environment that welcomes and better protects life sciences investment, the Indian government should re-examine Section 3(d) of the Indian Patent Act, which adds an additional hurdle for patentability. It relates to non-patentability of inventions involving chemical forms that do not show increased efficacy.

Basheer said the strength of an IP regime comes from its ability to balance out a private monopoly against the larger public interest and the ability to sustain a public domain of knowledge against which all are free to draw and invent. “If it was only about private monopolies, then we should simply hand out perpetual monopolies to IP owners,” he said. And yet, such infinite IP protection would easily kill creativity and innovation—as even the most ardent IP supporter would admit, he said.

The GIPC index is based on the assumption that a perpetual monopoly is the best!
Shamnad Basheer, Visiting Professor, NLS Bangalore

“In short, the GIPC ranking is a fraudulently formalistic method of shaming countries into thinking that they are children of a less creative god.”

Hari Subramaniam, founding and managing partner at intellectual property firm Subramaniam & Associates, agreed that the improvement in ranking is not of much significance. The computer-related innovation guidelines have neither changed the law nor the thinking of the Patent Office, he told BloombergQuint.

“The law says that computer programme per se is not patentable. The Patent Office continues to reject computer related-inventions despite the fact that the invention may be more than computer programme.”

Also, Indian courts have been very active in enforcing several patents in the recent past (Bristol Meyer Squibb's Sitagliptin and Novartis' Vidagliptin patents or Ericcsson's cell phone patents) which hasn't been factored in, he said. The Commercial Courts Act that came into force last year and considerably fast-tracks IP cases has also not been taken into account, he said.

“I am not sure how far India’s ranking would have improved if all the above facts were taken into account... Since rankings are made by computer programme-based methods, accurate and complete input is crucial to get accurate output.”