Provides advice on IPR protection, including information on the registration of patents and trademarks.
Developments over the last five years
India announced its first National Intellectual Property Rights (IPR) policy in 2016. After the announcement, the portfolio of Copyright and Semi-Conductors shifted to the Department for Promotion of Industry and Internal Trade (DPIIT). Under DPIIT, the Cell for IPR Promotion and Management (CIPAM) is tasked with implementing IP Policy and interagency coordination. It spearheads the government’s efforts to streamline IP processes, increase IP awareness, promote commercialization, and enhance enforcement.
Over the past five years, the GOI has taken many positive steps to strengthen its IPR regime, such as efforts to modernize its IP offices; increase manpower; use IT and technology in e-filing of applications; deliver certificates of grant/registration of patent, trademark and designs in digital format; reduce the number of trademarks forms; use video conferencing for hearing of IP applications; create expedited examination procedures; and spread awareness on IPR.
DPIIT, in association with Federation of Indian Chambers of Commerce and Industry (FICCI), launched an IPR enforcement toolkit to aid police with handling IP crimes, in particular counterfeiting and piracy. The Maharashtra Cyber Digital Crime Unit (MCDCU) was set up in August 2017 as a public-private partnership to enable industry to work directly with state police to combat digital piracy. The MCDCU serves as a potential model for digital enforcement that other Indian states.
U.S. Government Engagement
Engagement with India on IPR continues, primarily through the U.S.-India Trade Policy Forum’s Working Group on Intellectual Property, which restarted in June 2021 after a gap of nearly three years. Further, the GOI and USG continue to actively engage across various platforms, such as the U.S.-India IP Dialogue, and routinely through bilateral interactions on specific IP issues. In addition, the USG maintains positive working relationships with Indian Customs, Police and Judiciary officials, as well as with industry representatives to discuss ways to strengthen India’s important enforcement ecosystem.
To further bilateral engagement on intellectual property matters, in December 2020, the United States Patent and Trademark Office (USPTO) and DPIIT signed a new Memorandum of Understanding relating to IP technical cooperation mechanisms and the promotion of IP.
While India has laws covering almost all types of intellectual property rights and enforcement procedures, the legislative process is often lengthy and uncertain, and the same issues can remain pending for many years. This can create uncertainty for industries and complicate their strategic intellectual property and enforcement decisions.
The Commercial Courts Act, enacted in 2015 and amended in 2018, was established to help reduce delays and increase expertise in judicial IP matters. However, to date, only a limited number of courts have benefited under the Act. Rights holders report that jurisdictional challenges have reduced the effectiveness of the commercial courts, and that inadequate resources for staffing and training continue.
Pharmaceutical and agrochemical products can be patented in India. Plant varieties are protected by the Protection of Plant Varieties and Farmers’ Rights Act, 2001. However, Indian law does not protect against unfair commercial use, nor against the unauthorized disclosure of undisclosed test or other data submitted to the government during the application for market approval of pharmaceutical or agrochemical products.
The Designs Act allows for the registration of industrial designs. The Designs Rules, which detail classification of designs, conform to international standards and are intended to address the proliferation of design-related activities in various fields. India’s Semiconductor Integrated Circuits Layout Designs Act is based on standards developed by WIPO; however, the law remains inactive due to a lack of implementing regulations.
Until 2018, the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007, included provisions for the recording of all categories of IP. A June 2018 amendment to the Customs Rules on IPR removed patents from the scope of customs protection. Accordingly, the new customs redecoration system permits only owners of trademark, designs, copyright, and geographical indications to record their IPR with Customs and seek affirmative enforcement action in the event of counterfeit activity at the ports. Customs officers have ex-officio authority to seize and destroy counterfeit goods, though rights holders must pay for the storage and destruction of counterfeit materials.
There is no statutory protection of trade secrets in India, which creates uncertainty for businesses needing to secure sensitive information exchanged between parties. Protection and enforcement of trade secrets is challenging as there are no civil or criminal laws in India that specifically address their protection. While India relies on contract law to provide some trade secret protection, it applies only where a trade secret owner and a party accused of misappropriation have a contractual relationship. Criminal penalties are not available for trade secret misappropriation in India, and civil remedies are reportedly difficult to obtain and do not have a deterrent effect.
India does not provide data protection for the registration of agricultural products. Despite previous attempts to introduce data protection provisions into the Pesticides Management Bill, the pending Bill, introduced in 2020, does not provide for data protection for the registration of new pesticides.
The Cinematograph Bill: In 2019 the cabinet approved anti-camcording language to be inserted in the Cinematograph Bill. The Bill contained provisions criminalizing illicit camcording. While the bill is still pending, India issued a Notification on June 18, 2021 seeking public comments on the Draft Cinematograph (Amendment) Bill, 2021.
On July 23, 2021, India’s Department Related Parliamentary Standing Committee on Commerce (DRPSCC), presented its 161st Report on “Review of the Intellectual Property Rights Regime in India”. The Report emphasizes that the IPR regime should be in compliance with international agreements, rules and norms, and be compatible with those of other nations and foreign entities. While many of the recommendations in the Report are welcomed, some recommendations, such as those relating to compulsory licenses and online broadcasting, raise serious concerns and are regarded as problematic for IP rights holders.
Despite several positive developments, there are also many regulatory hurdles and challenges that affect the commercialization of intellectual property in India. For instance, the interpretation and application of patent law can be unpredictable and inconsistent, particularly in important such as determining the scope of patentable subject matter, pre-grant opposition proceedings, and provisions governing grant of compulsory licenses.
In 2016 and 2017, the Patents Rules and the Trademarks Rules were revised, adopting strict timelines to dispose of cases, streamline examination, and reduce certain filing fees to incentivize startup activity. In 2019, the Patents (Amendment) Rules further expanded the categories of applicants eligible for expedited examination of their patent applications. The 2017 examination guidelines for Computer Related Inventions removed all examples of what can and cannot be patentable, deferring to the patent examiner’s discretion and raising concerns about the consistency of patentability decisions.
India’s Copyright (Amendment) Rules, 2021, became effective on March 30, 2021. These Rules introduced a host of changes regarding copyright societies including their registration, management, and functioning.
Pharmaceutical and medical devices
The lack of coordination between DPIIT and the Central Drugs Standard Control Organization (CDSCO) through either patent linkages or an effective notification system invites abusive infringing activities, which compromises the ability of innovative industries to effectively commercialize and enforce their rights in India. Liberal price controls, coupled with the potential abusive use of procedures such as pre-grant and post-grant opposition proceedings, further complicate an effective IPR regime for the pharmaceutical and medical device industries.
In April of 2017, the Ministry of Health and Family Welfare (MOHFW) removed the requirement for companies to inform whether a new drug is under patent at the time of filing for a manufacturing license. This is viewed as a regressive step and goes against India’s National IPR Policy, which calls for better central and state coordination on IP. India still lacks an effective system for notifying interested parties of marketing approvals for follow-on pharmaceuticals, which would allow for the early resolution of potential patent disputes.
The threat of price controls for patented pharmaceuticals continues to concern rightsholders. In 2017, several pharmaceutical drugs and medical devices came under price controls. In 2018 and 2019, additional rounds of pharmaceutical price controls included patented drugs on the National List of Essential Medicines (NLEM) list. The List is currently under revision again, and the threat of patented drugs being added to the list remains a significant concern.
In January 2019, the Department of Pharmaceuticals (DOP) amended its 2013 Drugs (Prices Control) Order (DPCO) to exempt a manufacturer producing a new drug patented in India from price controls for five years from commencement of their commercial marketing of the drug in India. While this is viewed as a positive development, it has raised serious concerns from the pharmaceutical industry. Industry continues to seek clarity from DOP on the manner in which the amendment is going to be implemented.
In the pharmaceutical sector, the absence of clear guidance in implementing Section 3(d) of the Indian Patents Act has restricted patent-eligible subject matter in a way that fails to incentivize innovation by hindering the development of improvements to benefit Indian patients.
In December 2020, the DOP issued guidelines for implementation of the provisions of the 2017 Public Procurement Order, specifying a minimum of 80 percent local component requirement for a Class I local supplier and 50 percent to qualify as a Class II local supplier. The guidelines effectively disqualify non-local bidders from government tenders.
Technology, brand and IP licensing
In 2018, the GOI formed an inter-ministerial group to investigate reinstating royalty caps for all technology collaborations and brand licensing, limiting the amount of foreign exchange that can leave the country. If implemented, such caps would negatively affect all sectors of the economy in which a company licenses its brand name or enters into a technical collaboration. India had a similar provision prior to 2009, but it was abandoned in favor of attracting higher levels of foreign investment.
India generally has adequate copyright laws barring few exceptions. A recent Parliamentary report recommended amending aspects of the Copyright Act to extend statutory licensing to include internet or digital broadcasters. DPIIT’s efforts to consider the report’s recommendation has deeply concerned music, entertainment, and other creative industries. In addition, the granting of licenses under Chapter VI of the Indian Copyright Act and overly broad exceptions for certain uses, has raised concerns about the strength of copyright protection and complicated the functioning of the market for music licensing.
The Indian Patents Rules require Form 27 to be filed annually by patentees and licensees on the details of their commercial activities for all their patents in force in India. While the annual requirement was initially created to ensure that patentees are working their inventions in India, in actuality, the form may be hindering innovation. Revisions to Form 27 in October 2020 improved things, though it still places significant risks and undue burden on rights holders and may compromise their confidential business information and strategies. In addition, failing to comply with Form 27 requirements can form grounds for seeking a compulsory license and could lead to loss of patent, substantial penalties, and/or imprisonment.
2021 saw the abolition of the Intellectual Property Appellate Board (IPAB), transferring the jurisdiction to adjudicate appeals over patents, trademarks, copyrights, and other IPR matters to the High Courts. In July 2021, the Delhi High Court (DHC) created a dedicated Intellectual Property Division (IPD) to hear IPR matters previously before the IPAB. The DHC is currently framing comprehensive rules for the IPD.
In 2020, India took steps against websites with pirated content. Despite positive steps taken in online copyright enforcements, such as “dynamic injunction” for repeat offenders, copyright holders continue to report high levels of piracy, particularly on the Internet and through commercial broadcasts. This includes ongoing issues, such as unauthorized file sharing of videogames, signal theft by cable operators, commercial scale photocopying, unauthorized reprints of academic books, and circumvention of Technology Protection Measures.
While there has been some progress, weak enforcement of IP generally by the courts and police, a lack of familiarity with investigative techniques, and the absence of a centralized IP enforcement agency, combined with failure to coordinate actions on both the national and state level, threaten to undercut progress in this area.
See our India IPR Snapshot for more information.
In any foreign market, companies should consider several general principles for effective protection of their intellectual property. See our article on Protecting Intellectual Property and visit Stopfakes.gov for more resources.
For more information, contact:
U.S. Intellectual Property Counselor for South Asia
American Center, 24 Kasturba Gandhi Marg, New Delhi, 110001
Tel: +91 11 2347 2000
ITA’s Office of Intellectual Property Rights Director: Stevan Mitchell at