Breaking the anti-IP myth

The last 20 years has been an eventful and positive period for intellectual property in India. The period post-TRIPs has been one of great activity. On the basis of this 20-year IP story, certain questions stand out. Is there a bias in India against IP owners? Is Indian intellectual property driven by foreign businesses or do Indian businesses also play a role? Is there a bias in the judicial system either in favour of or against foreign businesses? Are the trends different for trade marks, copyrights, and patents cases?

The purpose of this piece is to offer answers to the above questions based on statistics. However, statistics regarding IP cases are not easily available, as most courts in India do not publish separate filing and disposal numbers for IP cases. Since filing numbers were not readily and accurately available, analysis has been done on the basis of reported precedents (cases which have culminated in judgments or orders either at interlocutory or at final stage and reported in law journals). Such an analysis has thrown up interesting results. (The statistics are based on judgments and orders passed by high courts and not including cases filed and disposed of at the district level).

The analysis of reported precedents led to five distinct findings: (i) there were a total of 2157 reported IP cases in 20 years and 1433 decisions went in favour of IP owners (66.43% of cases); (ii) the total number of reported cases involving a foreign entity on either side was approximately 595 (27%) out of which 387 cases were decided in favour of the foreign entity (65%); (iii) thus, a huge majority of almost 77% of IP litigations involved domestic entities; (iv) in trade marks and copyrights, 80% of the cases involved domestic parties; and, (v) in the case of patents and designs, the percentage of cases involving foreign entities was slightly higher (approximately 28 to 29%) and the statistics revealed that, for patents, 50% of the cases were decided in favour of foreign entities.

An analysis of Table 1 reveals that in percentage terms, there is not much difference between cases decided in favour of IP owners in general and those decided in favour of foreign IP owners. The former is 66.43% and the latter is 64.93%. The overall analysis, therefore, reveals that over a period of 20 years, more than two-thirds of cases reported have been decided in favour of IP owners (including even foreign entities).

1	Total cases reported from 1995 to May 2014	2157
2	In favour of IP owners	1433
3	Against IP owners	724
4	Total cases involving foreign companies	595
5	Cases in favour of foreign companies	387
6	Cases against foreign companies	209

A segregated analysis in respect of trade marks, copyrights, patents and designs also does not reveal too much variation. In the case of trade marks, there were a total of 1593 reported cases between 1995 to May 2014. Out of them, approximately 450 cases involved foreign entities and 302 cases were decided in favour of the foreign entities (approximately 67%). Table 2 gives the figures on a yearly basis.

For copyright, there were a total of 366 reported cases between 1995 to May 2014. Out of them, approximately 80 cases involved foreign entities and 52 cases were decided in favour of the foreign entities (65%). Table 3 below gives the figures on a yearly basis.

	Year	Trade marks
		Total cases reported	Foreign party involved	In favour of foreign party	Against foreign party
1	1995	41	12	7	5
2	1996	58	19	15	4
3	1997	63	11	6	5
4	1998	54	13	9	4
5	1999	62	15	14	1
6	2000	49	9	3	6
7	2001	53	23	20	3
8	2002	47	24	15	9
9	2003	92	21	16	5
10	2004	101	16	14	2
11	2005	77	22	14	8
12	2006	69	15	11	4
13	2007	126	44	29	15
14	2008	127	43	24	19
15	2009	130	29	18	11
16	2010	102	29	13	16
17	2011	147	42	30	12
18	2012	69	12	5	7
19	2013	71	24	16	8
20	2014	62	26	23	3
	TOTAL	1593	449	302	147

	Year	Copyright
		Total cases reported	Foreign party involved	In favour of foreign party	Against foreign party
1	1995	5	1	1	0
2	1996	9	0	0	0
3	1997	7	2	0	2
4	1998	6	0	0	0
5	1999	10	2	1	1
6	2000	14	2	0	2
7	2001	13	5	4	1
8	2002	12	5	1	4
9	2003	22	8	6	2
10	2004	19	2	2	0
11	2005	13	1	1	0
12	2006	18	1	0	1
13	2007	31	6	2	4
14	2008	43	12	9	3
15	2009	45	11	8	3
16	2010	26	6	6	0
17	2011	38	8	6	2
18	2012	14	2	1	1
19	2013	14	3	3	0
20	2014	10	3	1	2
	TOTAL	366	80	52	28

In the case of patents and designs, recent trends show an increased number of cases, especially in the former. Since patent filings are quite recent and patent cases take longer to be decided, the number of reported judgments and orders is not as high as the filing. However, out of a total 164 cases, 66 cases involve foreign entities; in the case of patents, the percentage of cases decided in favour of foreign entities is 50% and in the case of designs it is 43%. Considering that patent and design cases are drawn-out, intense and comparatively serious processes, this percentage is not disheartening.

All the above numbers do not take into account the bigger picture. Reported judgments represent only 10% of the total filings in high courts. In the Delhi High Court, there are 550 to 650 fresh IP suits filed every year. These numbers do not include writs, appeals, and other processes arising from tribunal proceedings. Most cases which are filed do not result in reported judgments and are mostly settled. Only contested matters result in reported judgements and therefore the numbers above relating to contested IP matters are extremely heartening. IP practitioners will vouch for the fact that in most IP cases, once injunctions are granted, defendants tend to settle and allow undertakings. In most cases in recent years costs and damages have also been paid. Apart from costs and damages, a large number of software and broadcasting cases result in licences being obtained by the defendants. So the success rate for IP owners is much higher if total filings are taken into account.

The numbers given above shatter several myths about the Indian IP system. First, the myth that the Indian system is not pro-IP. Second, that Indian IP owners do not take their rights extremely seriously. Finally, the numbers bust the myth that there is any bias against foreign entities in India.

Indian businesses are shown to be extremely IP-conscious and the Indian economy is maturing to levels which were previously not perceived. Every year from 1995 to 2014, in trade marks, patents and copyrights, the number of reported cases in favour of foreign companies is higher than those cases which have been against foreign companies. The analysis of cases also reveals that there has been a marked increase in IP litigation from 2007 onwards, peaking in 2011 when the total reported cases were more than 200. There has also been a marked increase in patent litigation. In 1995, there was only one reported patent case, whereas from 2009 to 2012 there were approximately 15 reported patent cases per year. This trend is interesting inasmuch as it shows that post TRIPs and the introduction of the product patent regime in India in 2005, patent litigation is on the rise.

"Patent and design cases are drawn-out, intense and comparatively serious processes "

Another positive, healthy and interesting trend is that, irrespective of foreign or domestic IP owners, approximately 66.5% of reported judgments have been decided in favour of IP owners. The analysis reveals that it is only in those cases where there is an extremely strong defence (such as generic and descriptive marks, public domain material, invalid patents, and fair-use defences) that Indian courts have refused to grant relief to IP owners. One disturbing trend is that, while there was a steady increase from 2007 to 2011 in the number of reported IP matters, there was a sharp decline from 2012 to 2013. This could be attributable to the general perception that India is an anti-IP country. Such a perception is neither based on actual fact, nor does it reflect the true IP sentiments that exist in the corridors of the courts; it is unfortunate, as the perception is thriving on the basis of a few infrequent but correct decisions that have been rendered. Having said that, the slowing down of the economy may also account for IP owners not wanting to incur legal costs. The contribution of the Indian legal system in protecting both domestic and foreign intellectual property is unassailable and needs to be presented in its true light: it has evolved into a mature system over the last 20 years, which serves both foreign and domestic parties alike.

One of the best ways to analyse trends is to review the reported precedents and judgments passed by different courts and tribunals. These are reported in journals which are in public domain, which lawyers and think-tanks are familiar with and which reveal a picture which is not entirely surprising but still needs to be brought to attention.

The debate about India being pro-IP or anti-IP is bound to re-emerge now that the new government is in place and has begun engaging with different jurisdictions including Japan, the EU and the US.

'Lies, damned lies and statistics' is the proverb used to describe conclusions drawn from numbers, but sometimes statistics do reveal some truths. It is worthwhile for everyone involved in the debate to consider the numbers, so that the real truth is not ignored.

Prathiba M Singh
		Prathiba M Singh is a leading IP lawyer in India. In December 2013, she was designate Senior Advocate by the Delhi High Court. Before this, Prathiba was the managing partner of Singh & Singh Law Firm. She successfully represents both Indian and international clients in IP and telecom and broadcasting matters, and appears on a regular basis before the Hon'ble Supreme Court of India, the Delhi High Court, the Intellectual Property Appellate Board, and the Trademark and Patent Office. Over the years, Prathiba has been a recipient of various awards, including IP litigator of the year 2012 and winner of the Asia women in business law award given by Managing Intellectual Property. Prathiba is an alumna of the faculty of law, Cambridge University. In 2013, the Prathiba M Singh Cambridge Scholarship for LLM students was instituted at Cambridge University, which grants scholarships to Indian students who have a strong interest in the study of IP law. Prathiba has represented clients in complex cases that have resulted in landmark judgments. For example, she successfully defended Indian pharmaceutical companies in the well-acclaimed Novartis matter before the Supreme Court of India. She has handled multiple litigations for telecom giants in the enforcement of various standard essential patents in telecommunications and trade mark litigation including comparative advertising and disparagement, design, copyright and patent litigatison. Prathiba advises a large number of leading law firms and corporates. She has been appointed amicus curiae to streamline the working of the copyright office, and she was appointed on a high level committee to streamline patent examinations. She is also a member of the CII National Steering Committee on Intellectual Property Rights and is the president of the Asian Patent Attorneys Association (Indian Group).