1.1 Contemporary Issues: IP Awareness and Drug Price Caps
1.1.1. Introduction
The realm of intellectual property (IP) rights has been in existence and been a driving force for novelty and innovation for centuries and can be dated back to at least 500 BC when a state in Greece provided protection for 1 year to innovators of ‘a new refinement in luxury’, ensuring innovators can monopolize and reap benefits out of their innovations.[i] That being the case, the first international convention (known as the ‘Paris Convention’) was enforced much later in the year 1883, establishing a union for the protection of ‘industrial property’. Since then, we have seen rapid growth in the field of IP rights. It goes without saying that till the time entrepreneurs are incorporating companies, innovators are inventing technology or artists are creating their works of art and/or literature, the domain of IP will only progress further.
Although the evolution of international IP regime has been rapid and the laws have become a lot more complicated than they initially were, it appears that we have only scratched the surface of the extent and reach of IP rights. It cannot be stressed enough that IP rights are crucial to every company, creator and inventor since it ensures that their rights and interests are protected and gives them the right to claim relief against any violation.
Insofar as the Indian IP regime is concerned, we have seen a gradual but crucial development in our laws which has now motivated not only foreign corporations to seek IP protection in India but has also supported start-ups in seeking protection of their IP to the extent that these enterprises have the liberty to seek the protection of their IP at significantly reduced fees (barring copyright and geographical indications). The Indian Intellectual Property Office (IPO) has also taken measures to promote e-filing by reducing costs associated therewith and improving its e-filing system/mechanism. However, the issues arise when start-ups and small enterprises seek to register their IP and are unaware of these common, but cost-effective mechanisms in place.
Besides, our intellectual property policies (especially patent policies) have been a subject matter of criticism for a long time at a global stage due to the government’s intervention in the enforcement of patent rights. One of the primary concerns for foreign corporations and organizations have been related to working of patented inventions in India and the issue of compulsory licensing.
1.1.2. Lack of Awareness of Intellectual Property Rights
Launched by the Government of India in 2014, the ‘Make in India’ project has motivated entrepreneurs to establish their business with the help of government funding and foreign direct investments (FDI) of up to 100%.[ii] This step has led to a boost in people exploiting their entrepreneurial skills to establish a successful business (in most cases). Although the Make in India project also focuses on the importance of IP rights by attempting to educate the entrepreneurial minds of the importance and benefits of their IP, it appears that small businesses are yet to benefit from the IP aspect of the project. These businesses/start-ups do not realize the importance of their IP and tend to often misuse violate another’s. This leads to the institution of a lawsuit seeking infringement (or passing off) against such businesses by big corporations and since defending such Suits is an expensive and time-consuming process, it becomes an uphill task for the entrepreneurs to defend the Suits and run their business effectively. Entrepreneurs are often misinformed and miseducated of the basics of IP by professionals who do not have an expertise in the area of IP law, which leads them to believe that their acts of adopting an identical or deceptively similar trademark would go unnoticed or would not constitute infringement or passing off. Due to their lack of knowledge in the domain of IP and lack of proper guidance by professionals, these entrepreneurs tend to believe that: –
- Adopting an identical mark (intentionally) in a different class does not constitute infringement or passing off;
- Adopting a similar mark in the same (or allied and cognate) class does not constitute infringement or passing off;
- Even if the competing marks are identical or deceptively similar, filing a trademark application with a user claim would give them a defensible stand against the true proprietor’s claim.
Needless to say, these are some of the common misconceptions which lead to a claim of infringement or passing off being raised by true proprietors of the marks. Also, the possibility of the Court of law imposing damages and/or costs on a defendant cannot be ruled out either. In such a scenario, due to the limited funding of these start-ups, they are often forced to reconsider their entire business strategy in-line with the pending lawsuit. This can, however, be avoided if the entrepreneurs are either well-educated in the field of IP law or take necessary steps to ensure that they receive proper guidance regarding risks involved in registration and use of their mark, from a professional with expertise in the field of IP laws. Instances of start-ups adopting a similar or identical mark of a big corporation/start-up are quite common nowadays with some of the known cases being instituted by ‘Bookmyshow’ against ‘Bookmyoffer’, ‘Shaadi.com’ seeking relief against use of ‘Secondshaadi.com’, ‘Naukri.com’ suing ‘naukrie.com’, etc.[iii]
In instances involving the pharmaceutical industry, the issue becomes far severe since adopting a similar or identical mark can result not only in infringement of IP but can only be extremely harmful to the patients/consumers. Unlike any other consumable item, patients/consumers are at much greater risk if they consume wrong medication and such instances where corporations adopt a similar or identical mark for its pharmaceutical drug, the consequence can be fatal to the extent that it may even lead to death. In one such famous instance in India where the Defendant was a repeated/hardened infringer, the High Court of Bombay while imposing exemplary costs of INR 1.5 crores stated “Drugs are not sweets. Pharmaceutical companies which provide medicines for the health of the consumers have a special duty of care towards them. These companies have a greater responsibility towards the general public. However, nowadays, the corporate and financial goals of such companies cloud the decision of its executives whose decisions are incentivized by profits, more often than not, at the cost of public health. This case is a perfect example of just that”.
Another issue these entrepreneurs/start-ups tend to face in the realm of IP law is vis-a-vis use of copyrighted material without knowledge/intention to infringe upon someone else’s IP rights. For instance, when start-ups launch their online portals, they tend to use images/GIFs or music for their videos which are copyrighted and use thereof without permission is illegal. On account of lack of knowledge of IP laws and consequences of such misuse, they often violate rights residing in the copyrighted work and are then subject to either a legal notice from the owner/proprietor of the copyrighted material or a lawsuit before the Court of law.
The United States of America’s (USA) Chamber of Global Innovation Policy Center (GIPC) which promotes innovation and creativity through intellectual property standards, in its 2019 list of countries performing in the field of IP law, places India at a substantially low rank of 40 out of 53[iv] which indicates that USA considers India as a major threat when it comes to development and investment the field of IP rights in India (especially in the field of patents). Additionally, India also lacks in the number of patent applications filed before the Indian Patent Office, averaging at around 9,500 filings per year, compared to 2,69,000 filings in the USA.[v] One of the primary reason behind this difference might have something to do with India’s lack of support towards the encouragement of IP protection, especially for start-ups.
1.1.3. Raising Awareness on Intellectual Property Laws for Entrepreneurs
With almost 50% of litigations within the domain of IP pertaining to trademark infringement and passing off,[vi] entrepreneurs and small businesses must take the following necessary steps to ensure that their rights and interests in their business are protected: –
- Entrepreneurs/Business owners must entrust lawyers/law firms specializing in the field of IP rights to advise and prosecute their trademark applications;
- Understand or attempt to understand each and every step involved in prosecuting and registering a trademark application and participate in discussions leading to every step taken in the prosecution of their IP; and,
- Approach IP lawyers/law firms to get a gist of importance of IP protection along-with freedom to use a mark either before registering it or using the said mark for goods in classes not forming part of the trademark registration.
It is also the duty of IP lawyers/law firms to promote IP protection for entrepreneurs and small businesses by organizing interactive sessions with new and/or domestic clients and providing competitive charges for prosecuting and enforcing IP rights of these entrepreneurs and businesses.
Statistics reflect that majority of IP infringement cases in India involve a small enterprise being unaware of the basics of IP rights and therefore, using an IP that is either deceptively similar or virtually identical to a registered and/or well-known IP.[vii] Often businesses expanding their presence in the online portal (either through their website or a social media page) use copyrighted material without realizing that their use of the same would tantamount infringement. Raising awareness of the importance of IP and consequences of infringement (and passing off) would ensure that start-ups avoid misusing an IP belonging to someone else.
1.1.4. The imposition of Price Caps on pharmaceutical drugs in India and its work-around
One of the primary reasons why the USA considers India’s IP regime a major threat has something to do with India’s patent laws, especially vis-à-vis the pharmaceutical industry. Albeit the US Trade Representative (USTR) last year stated that the USA is attempting to restrict patentability for new pharmaceutical drugs which are “essentially mere discoveries of a new form of a known substance which does not result in enhancement of the known efficacy of that substance ….. machine or apparatus” (which is identical to Section 3(d) of the Indian Patents Act, 1970),[viii] it still considers India as a threat to its IP regime, especially due of India’s patent laws.
To better understand the problems faced in the Indian pharmaceutical industry, it would be prudent to point out that unlike developed nations, the Indian government (through its Patents Act and policies) keeps strict control over the drug pricing with an intention to make healthcare (specifically medication) accessible amongst all States and income groups. This can especially be observed in pharmaceutical drugs for cancer and diabetes medication. The Government of India has imposed strict price restrictions for its pharmaceutical drugs, thereby diluting IP rights and causing a severe impact on IP valuation of those pharmaceutical drugs.[ix]Although the impact might seem insignificant to consumers since they benefit from these price reductions, making cancer medicines 90% cheaper due to price control would not make IP holders happy or promote invention. Simply put, once the government slashes prices of pharmaceutical drugs intending to make them easily accessible to the majority of patients, it severely impacts the profit margin of the pharmaceutical industries, forcing them to invest more into the industry of generic drug manufacturers because of a bigger profit margin and lesser costs, rather than invest into inventing new drugs, which might although tackle a currently incurable disease (or a curable disease more effectively), but would at the same time, lead the corporation into losses. These price cuts would also force the pharmaceutical corporations to compromise on the quality of drugs which might, in a longer run, have a severe impact on healthcare.
India’s investment in its healthcare sector has been a major concern since the Indian States ideally spend as low as 1.3% of their gross domestic product (GDP) on healthcare which results in a substantial increase in out-of-pocket expenses and placement of poor healthcare mechanisms.[x] India’s heavy reliance on generic drugs supporting the lesser privileged consumers has been expressed as a concern by the USTR[xi] and global pharmaceutical giants to the extent that investors and pharmaceutical corporations have restricted their investment into the Indian pharmaceutical industry since their price margin would result in government either forcing price caps on the drugs or implement compulsory licensing for the expensive and life-saving drugs.
As stated above, this approach of placing price caps towards the Indian and global (vis-à-vis their sale of drugs in India) pharmaceutical industry has a major impact on India’s patent laws since it affects innovation, and since innovation is an essential part of the invention in the healthcare sector, pharmaceutical industries tend to focus more on generic drug production, profit from out-of-pocket expenses of consumers/patients, hospitalization costs, etc.[xii] The imposition of price caps has shown to have no significant improvement in accessibility of pharmaceutical drugs.
Although the imposition of price caps is necessary for a developing nation, the same should be practiced to a limited extent. For instance, instead of capping the price of a pharmaceutical drug and dropping its price by 90%, the price caps should be dependent on the situation and need for the drug. For instance, cancer and diabetes medication are in high requirements in India[xiii] (and other nations) and therefore, the government can impose price caps and reduce the cost of the drugs by 50%. Insofar as other (less crucial/critical) pharmaceutical drugs are concerned, the government can either refrain from price caps or impose a price cap of a maximum of 20%. This would not only promote investment in innovating patented drugs but would also increase FDI in the Indian pharmaceutical sector, thereby permitting Indian pharmaceutical corporations to invent new and possibly better pharmaceutical drugs.
At the same time, a concerned person always reserves their right under Section 84(1)[xiv] of the Indian Patents Act, 1970 to request for issuance of a compulsory license (after the expiry of three years from the date of grant of the patent) against the said pharmaceutical drug in case it does not comply with the guidelines issued under Section 83[xv] of the afore-mentioned Act like in the case of Bayer Corporation v. Union of India.[xvi] In essence, the Indian government must invest more in its healthcare sector policies to reduce out-of-pocket expenses incurred by patients/consumers and reduce the price caps by a significant amount to promote innovation in the field of patent laws, especially in the pharmaceutical sector.
1.2. A Global Upcoming Issue: Impact of Use/Commercialization of Artificial Intelligence on Intellectual Property Rights
1.2.1. Introduction
“Can machines think?” – Alan Turing, 1950
A few years after Alan Mathiso Turing, a renowned English mathematician, cryptanalyst and computer scientist played a pivotal role in defeating Hitler’s Nazi Germany, he wrote a paper titled ‘Computing Machinery and Intelligence’ (1950) where he asked a simple, yet intriguing question: “Can machines think?”. His paper and subsequent research established the basis of what we refer to as ‘Artificial Intelligence’ (AI) or machine learning/intelligence. Fast forward to today, the concept of AI has become a lot more complex than what had been imagined by researchers around half a century ago. AI or a machine which reflects the ability to think and act in as close of a manner as a human mind is as of date, an exciting new development in the field of technology.
From ‘The Turin Test’ in the year 1950 to creation of Sophia, a humanoid robot created by Hanson Robotics in the year 2016, technology, especially in the field of AI has progressed at a drastic rate, with some of the major developments being the creation of Google’s Home device (2016), Apple’s virtual assistant ‘Siri’ (2011), Microsoft’s virtual assistant ‘Cortana’ (2014), Amazon’s home assistant ‘Alexa’ (2014), etc. occurring in the past decade (2010 to 2019) itself. It is safe to say that with this progress, it is not far-fetched to assume that we may soon see the age of commercialization of much smarter versions of currently existing machine learning devices. The technology relating to AI has seen explosive growth in recent times with the number of patent applications for technologies relating to AI exceeding 1,00,000.[xvii]
Today, AI can be dissected into two types of intelligence, namely:
- Weak AI: This is a more common type of AI which is used amongst major corporations like Google, Apple, Microsoft, etc. and although it is being used widely, its abilities are limited to performing tasks that it has been trained to perform. Such AI can store data and present it to the consumer upon enquiry or on need-basis. However, the algorithms do not permit this AI to think and act in a manner a human mind would and therefore, this AI does not pose a threat within the domain of IP.
- Strong AI: Unlike weak AI, this form of AI would perform more cognitive functions that imitate a human mind more closely as against weak AI. Even though weak AI is known to perform basic functions more efficiently (when compared to humans), the strong AI will not only perform those basic functions of a weak AI but also will also perform more complex tasks such as inventing or creating a new IP (like a new copyrightable sound or video or a unique design, etc.).
To a certain extent, researchers worry about the consequences of AI in case its goals end up being misaligned to ours. But at this stage, AI seems to be more promising than dangerous, especially in the field of healthcare and agriculture which is a critical industry for India.
Needless to say, corporations are investing a lot of resources to develop this field of technology which is said to have revolutionary impacts including prediction of epidemics, advanced disaster warnings and damage prevention methods, increased productivity in all industries, etc. The possibilities and benefits (and in many cases, risks) of AI are innumerable and at the current rate of its development, it will quite possibly be overwhelming. Regardless of its pros and cons, commercialization of AI is inevitable and therefore, this raises a material question: Do we have the appropriate laws in place to tackle issues arising out of commercialization (or use) of AI? The answer, unfortunately, is no.
1.2.2. The Current Scenario
Being an upcoming digital frontier, it is apparent that AI will have a huge impact on our current laws and practices. For instance, our current world IP regime only permits a ‘person’ to be a proprietor and/or owner of an IP (see Naruto v. Slater[xviii]) which implies that any form of IP that is generated/invented by an AI cannot be a subject matter of registration. However, a recent decision by the Chinese Court wherein a tech giant ‘Tencent’ claimed copyright infringement against a local financial news company overwork created by its Dreamwriter robot might reflect a contrary view. The Court in the said case held that an article generated by AI is protectable under Chinese copyright law.[xix] Holding a contrary view, the European Patent Office (EPO) in the case pertaining to patent applications filed by ‘DABUS’ an AI technology, gave a finding similar to the Naruto case wherein it held that application has to be filed by a human being.[xx] Professor Ryan Abbott along-with his multi-disciplinary team at the University of Surrey had filed (through their AI called DABUS) the first-ever patent application without a human inventor[xxi] indicating that the move towards AI-based IP filing is underway, however, given that the laws are currently not in place, the application was, unfortunately, refused.
Although an old principle, the Courts around the world at times rely (either directly or indirectly) on the principle of “sweat of the brow”, which indicates the inventor’s effort and hard work invested in creating an IP. However, the application of the said principle becomes rather complicated when the issue of IP generated by AI comes into the picture. At the same time, the commercialization of AI might also lead to dilution of IP rights, given that the possibility of AI being better and quicker at generating IP than human beings cannot be ruled out. Undoubtedly, AI might eventually be considered as a ‘smarter’ variant of a human inventor since an AI would require a significantly less amount of time and effort to generate a registrable IP. Apart from the ones already mentioned above, several unknown issues are likely to arise upon commercialization of AI (to generate IP) and there is a dire need to highlight and resolve these issues at the earliest.
The World Intellectual Property Organization (WIPO) has recently taken an initiative to invite public feedback on possible impacts of AI on the world IP regime[xxii] by conducting press conferences to tackle the impending issues vis-à-vis IP laws upon commercialization or use of AI. Although the topic of discussion during the previous conference was somewhat restricted to Patent laws and did not tackle IP laws holistically, the next round of sessions might emphasize on all IP laws and be more holistic towards progress. Needless to say, AI will impact our IP regime all the way from the creation of an IP to valuation, commercialization, transfer/assignment, etc. thereof, which would require a complete overhaul of our current laws in order to inculcate and appreciate the investment (in terms of time and costs) and labour involved in the creation of the AI, as well as use/transfer/assignment of an IP generated by that AI.
1.2.3. India’s Approach towards Artificial Intelligence
India has seen rapid growth in its information technology (IT) sector which has further contributed to other primary sectors like agricultural sector, healthcare sector, etc. by developing various mechanisms such as a system for online trading or integrated crop management system (amongst other things). It is safe to say that technology has a big role to play in India’s growth. Apart from the agricultural industry, the software industry has played a pivotal role in India’s move towards becoming the fastest-growing trillion-dollar economy.[xxiii]
Being amongst the most profitable investment jurisdictions, India has recently been a hub for tech-related start-ups. Understanding the importance of technology, Indian entrepreneurs, along-with government support, have started to invest heavily in the technology field and with the help of FDI, there has been a substantial boom in the field of technology. Since other fields such as agriculture, healthcare and education are all somewhat dependent on this field, the scope of AI transforming all the other sectors through the tech sector is clearly perceivable.
As discussed earlier, India’s healthcare sector is in a dire need for investment and development and on account of lack of funding and need to make medication accessible, reliance on AI would drastically reduce costs incurred in labour, research and development, trials, etc., which would eventually reduce the costs of pharmaceutical drugs themselves, thereby impacting the final sale price of the drug. Reliance on AI (by developing the tech sector) would extinguish the need for State governments to invest heavily in their healthcare programmes. Although the current investment might not cut it, a substantial investment, in that case, would not be required. AI support in the development and marketing of pharmaceutical drugs, thereby reducing the overall costs and increasing production and sale would also invite more FDI in India’s healthcare sector. This will also eventually make healthcare more accessible in less developed regions in India. Statistics indicate that healthcare is majorly accessible/available in limited States/Cities like Bengaluru, Chennai, Gurugram, etc.[xxiv] while cities like Singrauli continue to suffer.[xxv] With the major impediment of drug pricing out of the way, access to healthcare will become more of a focus and would eventually thrive with AI support.
Insofar as the agricultural sector is concerned, the same plays an essential role in our developing economy. According to a report issued by India Brand Equity Foundation (IBEF), around 58% of Indian population relies on India’s agricultural sector with a contribution of an estimated $265.51 billion (approximately INR 18.55 lakh crore) of gross value added to its economy (in Financial Year 2019).[xxvi] This implies that majority of the lesser developed States and Cities in India rely solely on production and sale of their agricultural produce.[xxvii] With an FDI inflow of up to 100% and an increasing reliance on technology, the sector keeps looking for methods to increase crop yields in a cost-effective manner. Having said that, the agricultural sector still faces some major issues like weather instability and fluctuations, condition of agricultural labourers, poor farming techniques, inadequate irrigation facilities, etc.[xxviii] Unlike the healthcare sector, the agricultural sector is already witnessing the impact of AI from companies like Microsoft India and Intello Labs which have introduced mechanisms to maximize crop yield and reduce wastage/infestation. For instance, Microsoft India has introduced an AI-based sowing app which determines and informs the farmers of the best time to sow their crop based on analysis of climate data for the specific area and amount of rainfall and soil moisture the crops have received.[xxix] Farmers can benefit from these AI-based apps without spending any additional costs on installing sensors.
Indian (and foreign) tech industries have already played an important role in providing ease of business through reliance on weak AI and therefore, if India invests and conducts thorough research into strong AI, the implications of AI can be countless. However, since research and investment in the field of strong AI are extremely limited in India, commercialization thereof seems far-fetched as of date. Due to lack of expertise in the field of AI, it has been difficult to conduct research and yield any result. Colleges/Universities often refrain from investing in the field of AI research due to lack of participation and heavy research costs. Also, since the education system in the majority of institutions is somewhat traditional, graduates (or post-graduates) lack the required skill set to work in this technical field.[xxx]
In contrast, however, the Chinese government is already taking steps to become a leader in the AI space by 2030s. It has adopted a three-step method which involves appreciating AI-based applications by the year 2020, making cutting edge breakthroughs in the said field by 2025 and leading in the industry by 2030. To support this process, a Chinese Court has already ruled in favour of AI-generated copyright work in its decision favouring Tencent,[xxxi] a tech company focusing on communication and social platforms. Since India (through its tech industry) has started taking steps to work towards its AI technology (albeit weak AI for now) and has also entrusted its think-tank ‘NITI (National Institution for Transforming India ) Aayog’ for assistance in such development through the National Program on AI,[xxxii] we hope to see India catch-up to tech giants like China, USA and Europe.
1.2.4. Development of Intellectual Property Laws on Artificial Intelligence: An Indian Perspective
Since WIPO has only recently started discussing the implications of AI on global IP laws, the member states of WIPO are yet to come out with laws pertaining to AI-based IP. While beginning its public consultation process on AI and IP policy, Director General of WIPO Mr Francis Gurry said: “Artificial intelligence is set to radically alter the way in which we work and live, with great potential to help us solve common global challenges, but it is also prompting policy questions and challenges,”.[xxxiii] On December 13, 2019 WIPO also published ‘Draft Issues Paper on Intellectual Property Policy and Artificial Intelligence’ with an intent to invite feedback/opinion on the most pressing issues IP policymakers will face in the near future. One of the most crucial questions where jurisdictions conflict is whether AI can be an inventor/owner of an IP. While the EPO held that an AI cannot be the inventor of a patent application, the Chinese Court observed the contrary, holding that an AI can be an inventor of a copyrightable subject matter. Apart from the issues arising vis-à-vis prosecution of such applications (assuming an AI can be an inventor/originator of an IP), another important issue would pertain to enforcement by or against IP owned by an AI. For instance, if an AI generates a copyrightable subject matter which is deceptively similar or identical to a copyrighted matter, against whom will a Suit claiming infringement and damages lie? Further, in case of a finding against the AI wherein damages have been awarded, will the AI be expected to bear the damages or the owner of the AI? To answer these complex questions, WIPO has invited inputs from member States on issues (not exhaustive) published on December 13, 2019.[xxxiv]
In view afore-mentioned development, India should establish a team of technical and legal (IP) experts to review the current laws and issues drafted by the WIPO Secretariat, draft possible answers to the issues and suggest required amendments to our current laws to inculcate rights of AI in the best way possible and then discuss the same at a larger stage, i.e., at the 25th Session of the WIPO Committee on Development and Intellectual Property (CDIP). Until now, India’s role/participation in WIPO’s sessions/meetings has been passive and considering how AI would impact its various sectors, especially the agricultural and healthcare sector (a sector which needs an improvement), India must play an active role in the development of IP laws to support AI. Given the fact that India is one of the fastest-growing economies and one of its cities is also considered as the ‘Silicon Valley’ of India,[xxxv] commercialization/use of AI would greatly benefit its economy to the extent that it would substantially reduce labour costs and at the same time, benefit a lot of entrepreneurs in the tech industry. Additionally, AI would also be crucial for government offices as it would greatly reduce delay in processing time and errors. For instance, the use of AI in Indian Intellectual Property Offices would enable machines to review applications for basic defects such as non-filing of an essential document or improper authentication, etc. In case strong AI is adopted by these departments, it would also enable machines to raise basic objections on applications and upon clearance thereof, advertise or register the same, thereby reducing significant costs and time.
It goes without saying that AI is the next big thing in the field of technology and once it is commercialized at a large scale, it is going to have a huge impact on our laws (especially IP laws). Given India’s interests and possible benefits in the field of AI, its involvement in the development of our current IP regime is pivotal.
Notes
[i] Jeff Williams, The Evolution of Intellectual Property, Law Office of Jeff Williams PLLC; link: https://txpatentattorney.com/blog/the-history-of-intellectual-property(published on November 11, 2015).
[ii] Foreign Direct Investment, published by Make in India; link: http://www.makeinindia.com/policy/foreign-direct-investment.
[iii] Top 17 Startup Legal Disputes, published by Wazzeer; link: https://wazzeer.com/blog/top-17-startup-legal-disputes (published on May 02, 2017).
[iv] GIPC IP Index 2020, published by Global Innovation Policy Center; link: https://www.theglobalipcenter.com/ipindex2020-details/?country=in.
[v] Darrell M. West, India-U.S. relations: Intellectual property rights, Brookings India; link: https://www.brookings.edu/opinions/india-u-s-relations-intellectual-property-rights (published on June 04, 2016).
[vi] Thehasin Nazia & Rajarshi Choudhuri, The Problem of IPR Infringement in India’s Burgeoning Startup Ecosystem, IPWatchdog; link: https://www.ipwatchdog.com/2019/11/16/problem-ipr-infringement-indias-burgeoning-startup-ecosystem/id=116019 (published on November 16, 2019).
[vii] Press Trust of India, Absence of legal awareness root cause of rights’ deprivation, Business Standard, Nagpur; link: https://www.business-standard.com/article/pti-stories/absence-of-legal-awareness-root-cause-of-rights-deprivation-119081800664_1.html (published on August 18, 2019).
[viii] Kristina M. L. Acri née Lybecker, India’s Patent Law is No Model for the United States: Say No to No Combination Drug Patents Act, IP Watch Dog; link: https://www.ipwatchdog.com/2019/06/26/indias-patent-law-no-model-united-states/id=110727 (published on June 26, 2019).
[ix] Amir Ullah Khan, India’s drug price fix is hurting healthcare, Live Mint; link: https://www.livemint.com/politics/policy/india-s-drug-price-fix-is-hurting-healthcare-11572334594083.html (published on October 29, 2019).
[x] Ibid.
[xi] E Kumar Sharma, Hard bargaining ahead, Business Today; link: https://www.businesstoday.in/magazine/focus/us-to-pressure-india-change-intellectual-property-ipr-regime/story/214440.html (published on February 01, 2015).
[xii] Amir, supra note 9 at __(page No.)__.
[xiii] Key diabetes, anti-cancer drugs among 92 in price-ceiling list, published by ET Bureau, The Economic Times; link: https://economictimes.indiatimes.com/industry/healthcare/biotech/pharmaceuticals/key-diabetes-anti-cancer-drugs-among-92-in-price-ceiling-list/articleshow/65433283.cms?from=mdr (published on August 17, 2018).
[xiv] Section 84(1) of the Patents Act, 1970 :-
Compulsory licenses –
(1) At any time after the expiration of three years from the date of the 170 [grant] of a patent, any person interested may make an application to the Controller for grant of compulsory license on patent on any of the following grounds, namely:-
(a) that the reasonable requirements of the public with respect to the patented invention have not been satisfied, or
(b) that the patented invention is not available to the public at a reasonably affordable price, or
(c) that the patented invention is not worked in the territory of India.
[xv] Section 83 of the Patents Act, 1970:-
General principles applicable to working of patented inventions –
Without prejudice to the other provisions contained in this Act, in exercising the powers conferred by this Chapter, regard shall be had to the following general considerations, namely;-
(a) that patents are granted to encourage inventions and to secure that the inventions are worked in India on a commercial scale and to the fullest extent that is reasonably practicable without undue delay;
(b) that they are not granted merely to enable patentees to enjoy a monopoly for the importation of the patented article;
(c) that the protection and enforcement of patent rights contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations;
(d) that patents granted do not impede protection of public health and nutrition and should act as instrument to promote public interest specially in sectors of vital importance for socio-economic and technological development of India;
(e) that patents granted do not in any way prohibit Central Government in taking measures to protect public health;
(f) that the patent right is not abused by the patentee or person deriving title or interest on patent from the patentee, and the patentee or a person deriving title or interest on patent from the patentee does not resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology; and
(g) that patents are granted to make the benefit of the patented invention available at reasonably affordable prices to the public.
[xvi] Special Leave to Appeal (C) No(S). 30145 of 2014.
[xvii] Ryan N. Phelan, Artificial Intelligence & the Intellectual Property Landscape, Marshall Gerstein & Borun LLP, published by Lexology; link: https://www.lexology.com/library/detail.aspx?g=8c2b5986-95bb-4e8e-9057-e4481bfaa471 (published on September 14, 2019).
[xviii] No. 16-15469 (9th Cir. 2018).
[xix] Stefano Zaccaria, AI-written articles are copyright-protected, rules Chinese court, World Intellectual Property Review (WIPR); published on January 10, 2020 (link:https://www.worldipreview.com/news/ai-written-articles-are-copyright-protected-rules-chinese-court-19102).
[xx] EPO refuses DABUS patent applications designating a machine inventor, European Patent Office; link: https://www.epo.org/news-issues/news/2019/20191220.html(published on December 20, 2019).
[xxi] Laura Butler, World first patent applications filed for inventions generated solely by artificial intelligence, University of Surrey; published on 01 August, 2019 (link: https://www.surrey.ac.uk/news/world-first-patent-applications-filed-inventions-generated-solely-artificial-intelligence).
[xxii] WIPO Begins Public Consultation Process on Artificial Intelligence and Intellectual Property Policy, published by World Intellectual Property Organization (WIPO); PR/2019/843; published on December 13, 2019 (link: https://www.wipo.int/pressroom/en/articles/2019/article_0017.html).
[xxiii] Caleb Silver, The Top 20 Economies in the World, Investopedia; link: https://www.investopedia.com/insights/worlds-top-economies/#5-india (published on November 19, 2019).
[xxiv] Akriti Bajaj, Working towards building a healthier India, Invest India; link: https://www.investindia.gov.in/sector/healthcare (published on January 18, 2020).
[xxv] Leroy Leo, Niti Aayog calls healthcare system a ‘sinking ship,’ urges private participation in Ayushman Bharat, Live Mint; link: https://www.livemint.com/news/india/niti-aayog-calls-healthcare-system-a-sinking-ship-urges-private-participation-in-ayushman-bharat-11574948865389.html (published on November 29, 2019).
[xxvi] Agriculture in India: Information About Indian Agriculture & Its Importance, Indian Brand Equity Foundation (IBEF); link: https://www.ibef.org/industry/agriculture-india.aspx (published on November 2019).
[xxvii] Ayushman Baruah, Artificial Intelligence in Indian Agriculture – An Industry and Startup Overview, Emerj; link: https://emerj.com/ai-sector-overviews/artificial-intelligence-in-indian-agriculture-an-industry-and-startup-overview (published on November 22, 2019).
[xxviii] Vidya Sethy, Top 13 Problems Faced by Indian Agriculture, Your Article Library; link: http://www.yourarticlelibrary.com/agriculture/top-13-problems-faced-by-indian-agriculture/62852.
[xxix] Ibid.
[xxx] Neha Dewan, In the race for AI supremacy, has India missed the bus?, The Economic Times; link: https://economictimes.indiatimes.com/small-biz/startups/features/in-the-race-for-ai-supremacy-has-india-missed-the-bus/articleshow/69836362.cms (published on June 19, 2019).
[xxxi] Rory O’Neill and Stefano Zaccaria,
AI-written articles are copyright-protected, rules Chinese court, World Intellectual Property Review (WIPR); link: https://www.worldipreview.com/news/ai-written-articles-are-copyright-protected-rules-chinese-court-19102 (published on January 10, 2020).
[xxxii] National Strategy On Artificial Intelligence, published by NITI Aayog; link: https://niti.gov.in/national-strategy-artificial-intelligence.
[xxxiii] WIPO Begins Public Consultation Process on Artificial Intelligence and Intellectual Property Policy, PR/2019/843, World Intellectual Property Organization (WIPO), Geneva; link: https://www.wipo.int/pressroom/en/articles/2019/article_0017.html (published on December 13, 2019).
[xxxiv] WIPO Secretariat, WIPO Conversation on Intellectual Property (IP) and Artificial Intelligence (AI), Second Session, WIPO/IP/AI/2/GE/20/1, World Intellectual Property Organization (WIPO); link: https://www.wipo.int/edocs/mdocs/mdocs/en/wipo_ip_ai_ge_20/wipo_ip_ai_2_ge_20_1.pdf (published on December 13, 2019).
[xxxv] Bangalore, published by Wikipedia; link: https://en.wikipedia.org/wiki/Bangalore (last updated on February 07, 0220).
Image Credit: WIPO
Incidentally, Indian insurance industry for a long time has relied on one-size-fits-all insurance products in the market, but now the dynamics of the insurance market are changing. Innovative products like usage-based insurance, micro insurance and on-demand insurance are flooding the Indian market. The large section of uninsured population is a candy store of opportunities for competent start ups that are in search of potential markets.
Paytm which has users mostly in Tier II and Tier III cities has partnered with insurers to provide insurance services like premium payment and policy renewal and has launched PayTm Insurance in early 2020, tying up with leading insurance firms in india. Amazon and Flipkart have collaborated with ACKO and AEGON LIFE respectively to provide Point-of-Sale insurance(for example, insurance on electronics). Ola provides commutation insurance for the rides at Rs 1. IRDA and the incumbents have viewed this disruption as an opportunity to improve penetration and provision of service. Collaboration with incumbents would also reduce barriers to trade for the emerging start ups and would provide financial support for more innovations. IRDA granted licenses to AKCO, DIGIT INSURANCE, COCO by DHFL and reliance health insurance to work as “neo-insurers”; a sandbox was established for the initial testing of new innovations before launching them into the market; guidelines and regulations were laid down for the functioning of insurtech, under the supervision of IRDA.
Nevertheless, IRDA also acknowledged that this data capture poses several threats and challenges to the insurer and the customer. IRDA recognized the need for a regulator to understand the fast moving innovations in the sector, and develop proper knowledge and skills that foster Insurtech, simultaneously protecting the customers’ interests. In its report, it has made some recommendations regarding supervisory and regulatory framework with respect to InsurTech – Risk assessment, risk Improvement, product design and product pricing.
