INNOVATION AND INTELLECTUAL PROPERTY RIGHTS LAW -- AN OVERVIEW OF THE INDIAN LAW
The present article reviews the legal regime governing innovation and intellectual property rights in India. The article begins with examining the relevant guarantees under the Indian Constitution that protect the right to property, which includes intellectual property. While the right to property is not a Fundamental Right (after 1978), nevertheless it enjoys constitutional protection under Article 300A. Moreover, the Chapter on Directive Principles of State Policy of the Constitution also contains provisions that are relevant for the purposes of protection of intellectual property rights and concomitant concerns regarding public health.
The article proceeds to provide an overview of the law of patents in India, dealing with contentious issues such as Fair, Reasonable and Non-Discriminatory (FRAND) licensing, effect of the Novartis decision of the Supreme Court, and considerations of access to life-saving drugs. Thereafter, the article moves on to deal with the legal regime governing copyrights in India. Within the law of copyright, the article expounds on key concepts such as the idea-expression dichotomy and compulsory licensing. The nature of moral rights and the legal protection that such rights enjoy under the copyright regime are also dealt with. Before proceeding to the law on trademarks, the article analyses the interaction between the law of trademarks, designs and copyright.
The article also independently discusses the law relating to trademarks in some detail, and highlights the salient features of the Trademarks Act. Finally, the last part of the article deals with the particularly thorny question of the remedies that can be granted in case of IPR violations. Apart from traditional civil remedies, the law of IPR has also evolved to allow for injunction orders against unnamed defendants, in what are called “John Doe” orders. The law governing such orders is analysed in detail. The article also deals with the “public interest” element in granting any remedy for violation of IPR. The article concludes by discussing the role of the judiciary in upholding IPR and predicting a course for the future evolution of the law in this area.