IPR trends in 2013: An alloy of problems and solutions

Trends in IPR in 2013 will be an alloy of problems and solutions based in the performance of TRIPs IPR frame, International Organisations (IO), International Agreements (IA), their interpretation and extent of international interference in domestic processes. Milind Sathe, Deputy General Manager-Projects, Unichem Laboratories expresses his views

Milind Sathe

The problems primarily amount to shrinkage of sovereign domains, unwarranted international interference due to lopsided interpretation of IPR and misinterpretation of IA, arrested industrial growth, failure of developing countries (DCs) and least developing countries (LDCs) to increase contribution in global trade and failure to expand the product list beyond conventional products, free flow of Traditional Knowledge (TK) outside and payment of heavy royalties on products derived from that TK, acceptance of imports for local working of patent resulting into centralisation of production activities in some remote corner of the globe, failure to boost exports over increased imports, exodus of national wealth, increased fragile nature of economy and threatened political stability. These problems of the knowledge economy will mark 2013.

Trends in 2013 will be dominated by following factors:

1. Monopolisation of sectors of vital importance in DCs and LDCs by foreign entities.
2. Exploiting IPR on domestic front to guard domestic markets and on international front to promote national industry houses and businesses to gain competitiveness and progress.
3. Convergence between diverse technology sectors, creating IP, protecting it to invade and rule the markets, e.g. Data, voice, and communication technology, voice, data and robotics, planar waveguide technology, light wave circuits and systems-on-the chip; photonic integrated circuit design, technology and applications; theory, modelling and numerical simulation of waveguide and integrated photonic devices and circuits.
4. Increased international insistence on protecting technical, personal data.
5. Pressures to adopt stringent IPR standards independent of their economic stage, industrial capabilities of the nation.
6. Adoption of stringent IPR standards to augment patenting and not innovation.
7. Learning and experience gained by DCs and LDCs for over 1.5 decade and their abilities to counter the IPR based invasion on their economy.

From a to z trends listed below, some trends will be visible in 2013

1. Some nations will change policies to encourage and maintain adequate IPR protection and enforcement; to then align with IAs, to protect economy, to give inventors the confidence to invest in the production, to license out without allowing the IPR holder to insist on his insane demands, giving fair indication that his failure will disallow him to label sovereign action as misappropriation or theft of his IP. Invasive interpretations and international interferences troubling ‘indigenous inventive ingenuity and its commercialisation’ will be more resisted than in past. IAs shall be interpreted in sane manner to suit national priorities to arrest invasive, lopsided interpretations of IPR and curb tendency to blame national legislations.
2. DCs and LDCs will adopt policies to protect domestic business and industry to meet the needs of consumers and society. They will aggressively protect their IP overseas; to promote the competitiveness and growth of domestic business and industry houses, globally, by close interaction with trading partners expecting others to respect their national identities and priorities. This will, give a new perspective to IPR, its interpretations and enforcement. Policy statements describing what is abuse and misuse of IPR and steps to be taken to eliminate its impact will emerge. Maiden precedents will be established and these may displease few nations. Some nations will begin the activity of identifying economic indices and correlating IP enforcement with them, to eliminate abuse and misuse of IP for economic progress. Harmonised coherent approaches to protect domestic markets shall be adopted in more countries by coordinating customs, judiciary, enforcement departments and industry where imports or in-transit goods are involved. New strategies will emerge to install and commission effective mechanisms for identification, tracking and isolation of IPR infringing goods. New guidelines will emerge to help judiciary to construe the meaning, the intension of apex institute to facilitate enforcement. Complicated laws for digital and internet governance will suffocate DCs and LDCs.
3. Actions alleged as infringements of IPR causing financial losses to IPR holder, shall be briskly debated within and on international platforms questioning national priorities and sovereign domain powers although allowed by TRIPs and other IAs. What is a legitimate right and legitimate business within a nation will be on the anvil.
4. Innovation and creativity shall be evaluated against its availability, accessibility and affordability to do away with pernicious interpretation.
5. International interference and insistence for Data protection, protection from unfair commercial use, policies to protect IPR in internet related business primarily from copyright piracy and their enforcement shall be very brisk.
6. Superiority of Compulsory Licenses (CL) over patent pools will be realised. Continued abuse and misuse of IPR will expand the list of countries granting CL. These events may soften the rigid stance of patentees and encourage voluntary licensing or licensing on mutually agreed terms. It will advance innovation, public policy goals, improve accessibility to and affordability of IPR protected goods. CL may be granted for non medicine products.
7. Industry associations will improvise their stance by insisting IP wings to publish the list of non-worked patents, will liaise with apex institute to put in place a mechanism to force IP wings to identify, notify and publish non-worked patents open for CL. This new development shall reduce the durations of litigations, eliminate wasteful expenditure and lead to quicker CL decisions.
8. CL awareness will rise. More people will know that developed nations have used CL very frequently. India and many other nations will voice that CL provisions in their laws are far better, transparent and more predictable than similar provisions in IP laws and other documents of few other nations.
9. Awareness about reverse settlements springing from IPR litigation preventing entry of generics into markets of some countries will rise. How these settlements prevent an efficient operation of IP system, how these disable nation’s ability to spur innovation and bring new services and products to the marketplace faster, will be realised by larger subject population. This will raise public pressure to stop these settlements in future.
10. Complications in global trade by enforcement of border measures and debates about what are and what are not counterfeit goods will continue. Some major brands will be sued by local brands registered earlier. Territorial nature of brands will be globally questioned.
11. DCs and LDCs will face resource crunch to install IPR enforcement mechanisms, leading to more compromises. Extreme dangers arising from lack of precedents, lack of knowledge of IPR laws to judiciary, government employees, IPR practitioners and enforcement officials, inappropriate interpretations of IPR laws and policy directives may lead to some turbulent decisions prejudicial to national priorities, public interest. It will harm domestic industry, national economy, lead to political instability and will disturb social tranquility. Balance of interests, pure territorial interests, national priorities, capacity building and sustainable development shall govern interpretation and enforcement of IPR being the only solution to prevent IPR driven catastrophe.
12. Acute shortage of well read and well led staff driven by national values, identity and striving to achieve national goals will continue in LDCs and DCs. National priorities will continue to be at risk where Law, Trade, Industry, Commerce and finance portfolios are guided by IPR ignorant individuals. Across the globe educating employees and individuals in IP wings and profession, judiciary and in enforcement departments on IPR matters will assume importance. There will be new job openings in Govt. departments, IP/legal wings and in IP profession. IP education imparted by foreign nation will trigger identity diffusion leading to identity crisis because such training is unfit for the situation in DCs and LDCs, because it is heterogeneous to local requirements imposed by local economy, industry, public interest, sovereign identity. Establishment of heterogeneous unworthy precedents, leading to faster shrinkage of sovereign domains by foreign trained force may augment political instability, harm social tranquility. Internally, national leaderships will be in a precarious situation and will be seen as voiceless, remotely controlled robots, externally. Intelligent apex institutes would depute their subjects to foreign IP training to understand how national interests will be invaded by lopsided interpretations of IPR laws, policies and how to design and install domestic IPR frame to safeguard national priorities and sovereign identity. Developed nations will also need the education to avoid recurrence of international trade complexities by their actions. 2013 may witness some more events where developed world enforcement agencies will contradict IAs, leading to loss of lives and property due to inadequate knowledge of IPR. Party suffering from such action will seek damages or manage undisclosed political compromise.
    IPR may be included in study subjects at school level.
13. Lopsided interpretations of IPR, failure of TRIPs to increase contribution of DCs and LDCs in global trade and in expanding their traditional product lists, frustrated objectives of DCs and LDCs and their exposure to economic and financial crises more than ever will create large scale displeasure. It will increase awareness of origin, development and history (ODH) of patents and patent system. More people will understand that IPR is to ensure more employment opportunities and to ensure balance of private and public interests. Absence of “nonworking of patent” as patentee’s right in TRIPs Article 28 will be known to more people. This trend will proliferate and gain strong hold for the betterment of signatories. DCs and LDCs will orient to interpret IPR to stabilise domestic industry, to increase exports, create more employment opportunities and to question nonworking of patents. IPR enforcement shall be correlated to national economy more than ever.
14. Old legal concepts shall be revisited to redefine terms viz. “enemy”, locus standi”, “multiple litigations”, “admissibility of new evidence”. Few nations will submit to patent linkages, others will not. Few nations may force patentee to declare the patents protecting the product on label. Doctrine of exhaustion may receive new dimensions across the globe to protect domestic interests. Influential nations will continue to insist other nations to adopt certain definitions of legal terms.
15. Controls on global industrial activity will continue to centralise. Employment opportunities in DCs and LDCs in manufacturing sectors will continue shrink. SMEs and age old domestic players will continue to vanish. Thanks to substitution of imports for the local working of the patent, requirement. Nations may realign or begin to polarise into new groups primarily driven by balanced interpretation and enforcement of IPR. The noise to replace some existing IO with other IO which will say what it will do and will do what it will say will rise.
16. IPR driven trade frame will expose the gap between IMF and WTO necessitating an alternative means for transacting global trade.
17. Global understanding that IPR does not drive economy but economy drives IPR and that IPR is not an end but is means to an end, will rise, so will rise the awareness about ODH, utility of IPR and responsibility of IPR holder. People will understand that IPR is for the benefit of the nation. Identification and isolation of subjects voicing IPR version prejudicial to national and public interest will start to label them as enemy of the nation. Compromising national interest and patriotism for lopsided IPR version will be condemned. Idea of mechanism for global rights will surface again, with renewed force and vigor.
18. Futilities and risks to domestic industry by alleged trans-border or cross border reputation of non-registered marks will be recognised. Global hatred towards non-registered marks will rise.
19. Generic players will have to overcome multiple IPR barriers such as marks, trade dress, allegations of deceptive appearance and counterfeit products. Forcible rendezvous of IPR with regulatory bodies will complicate the drug approvals in many countries, create artificial scarcity facilitating MNCs. Regulatory norms will be more complicated favouring IPR generation by financially strong and politically influential entities.
20. Generation of IP in IT, communication, biopharmaceuticals, liquid crystals, biotechnology, pharmaceuticals, agrochemicals, seeds, fuel and energy, and alleged environment protective technologies will continue unabated. Throttling of technology transfer opportunities to DCs and LDCs will continue.
    MNCs will continue to resist requests for submission of information for regulatory approval by calling it confidential. International interference in government functioning will rise and IPR based business interests of many MNCs will be protected. Apex institution will be challenged and will be taken to dispute settlement bodies of IOs.
21. DCs will voice that their IP laws are TRIPs compliant and will find out means to circumvent TRIPs+ provisions in alleged free trade (?) agreement. To fulfill their trade interests, developed world will increase pressure on LDCs to accept TRIPs+ conditions and LDCs will succumb to it, albeit DCs, BRICS and pharmerging economies may be able to resist some extent.
22. DCs and LDCs will realize that
    i) lopsided interpretation of IPR will extinguish identity of their nation
    ii) each country has to fight its own war as most of TRIPs members are docile.
    iii) it is imperative to study and ensure that IPR clauses in IAs are consistent with their needs and policies.
    iv) IPR is the only tool in knowledge economy to protect domestic markets and to penetrate foreign markets.
23. Dissatisfaction about complicated DOHA CL provisions will grow and realistic and workable alternative may be visible.
24. DCs and LDCs will be forced to divert resources from more important sectors like agriculture, defense and public health to reinvigorate IP wings to impart more transparency in accessing prosecution details, online form filling, online file inspection, accessibility to prosecution history, use of emails and virtual interaction or interaction by audio-visual media rendering physical human presence exceptional and for e-renewals. Developed countries will raise fees for prosecution, grant and maintenance of IPR. DCs and LDCs will learn to disapprove patent claims not substantiated by illustrations or examples and claiming thousands of compounds in claim will be difficult in. Patent application backlogs will continue to rise across the globe. Capabilities of IP offices will be challenged. There will be opportunities for collaborative actions between IP offices of different countries.
25. LDCs and DCs will continue to share their TK with developed world free of cost and will pay huge royalties for the patent protected products derived from that TK. Wise DCs and LDCs will identify internal barriers to growth of IP by self assessment without the help of external input.
26. z) Seed producing companies will further tighten their grip over global food production, assert their IP, challenge sovereign of DCs and LDCs and will expose abilities of the national leaderships to serve public interest.

Quality and quantity of trends in 2013 will be product of the extent to which IPR and their ODH are understood.

(Views expressed in this article are personal)