Strategic IP Sovereignty: India’s Path to Innovation Autonomy
Sep. 10, 2025 • Setu kumar Rai National Law University of Meghalaya
Strategic IP Sovereignty: India’s Path to Innovation Autonomy
Abstract
India’s quest for innovation sovereignty under Atmanirbhar Bharat requires recalibration of its Intellectual Property (IP) regime. This article examines the Patents Act, TRIPS obligations, case laws, and trade negotiations, highlighting opportunities and risks. Policy suggestions focus on compulsory licensing, sovereign patent funds, and IP-aligned incentives.
Introduction
Past and Present Conditions
India's historical intellectual property policy has achieved some balance between two competing goals: affordable access to technology and medicines, and domestic innovation. The Patents Act, 1970, initially rejected pharmaceutical product patents to align with public health goals.[1] Implementing product patents after compliance with TRIPS in 2005 was a significant shift towards enhanced IP protection.[2]
India faces a dual challenge: to reduce dependence on foreign technology while simultaneously developing a viable, strong domestic innovation ecosystem. Over the last several years, the tension between national priorities and international obligations has become more pronounced, with increasing push from developed countries to introduce "TRIPS-plus" commitments.[3]
Future Prospects
Future trajectories entirely rely on how India approaches negotiations on international trade. Trade agreements like the India-UK FTA could restrict the flexibilities available to India under TRIPS.[4]Meanwhile, domestic strategies, such as Production-Linked Incentives (PLIs), could offer Indian firms the opportunity to develop intellectual property (IP) as a means to technology leadership.[5] The key issue is whether India can retain its right to a compulsory license and develop innovation capabilities.
Scope
This article has explored India's patent regime under the Patents Act, 1970, examined its relationship with TRIPS, and explored the broader global IP landscape. While India remains the focus, it has also considered how global comparisons and international negotiations shape India's IP sovereignty.
Before understanding how India can attain innovation sovereignty, we must first explore the legal architecture that internationally and nationally presents India's patent regime.
Legal Framework
National Laws and Policies
The Patents Act, 1970, is the Indian legislation that governs patents in India, and later additions to it were made to comply with its TRIPs commitments.[6] Some of the key provisions in relation to innovation sovereignty as addressed by the TRIPS treaty are as follows :
Section 84: Compulsory licensing "on the grounds of public interest".
Section 92: Special provisions in emergencies.
Section 92A: Three compulsory licensing related to the exporting of medicines to countries that do not have any manufacturing capability.
These provisions are key stakeholder tools for India to promote or develop public health or an industrial policy, while also considering international innovation incentives.[7]
International Agreements
TRIPS Agreement (1995): Provides minimum level protections for IP. India's use of TRIPS flexibilities - specifically compulsory licensing - arose to ensure access to public health interests.[8]
Paris Convention (1883): Basic principles of national treatment and priority rights.
Bilateral and Regional FTAs: More FTAs include "TRIPS-plus" obligations, which provide stronger protections for patents, data exclusivity, and longer terms of protection.^11
Case Laws
Natco Pharma Ltd v Bayer Corporation (2012): This was India’s first compulsory licence for the generic production of Bayer’s cancer medication, Sorafenib tosylate, with the controller general noting that the key determinants were affordability and reasonable access to the public.[9]
Novartis AG v Union of India (2013): The Supreme Court found that Section 3(d) prohibits the "evergreening" of patents and dismissed Novartis' patent application for Glivec.[10]
Bayer Corporation v Union of India (2014): The Delhi High Court affirmed the legality of Section 92A and dismissed Bayer's challenges. The Court's decisions reaffirmed India's rights under TRIPS flexibilities to grant compulsory licenses to facilitate export.[11]
The courage reflected in these cases shows that the judiciary in India was eager to assume responsibility as a balancing counterpoint to the protection of IP law and its socially reasonable goals.[12]
Positive and Negative Impacts
The effectiveness of India’s IP sovereignty strategy can be evaluated through its benefits and challenges.
Positive Impacts
- Affordable Access: Compulsory licensing provisions safeguard public health and enable affordable drug access.
- Policy Autonomy: India retains sovereign tools to resist TRIPS-plus pressures.
- Global Reputation: India’s jurisprudence is admired globally for balancing patents and public interest.
- Domestic Innovation Boost: PLIs linked with patent creation could incentivize Indian firms to invest in R&D.
Negative Impacts
- Trade Weakenings: FTAs can potentially hinder India's exercise of TRIPS flexibilities.
- Investment Anxiety: Stronger compulsory licensing could rouse concerns of more foreign investors escaping high-tech industries. For instance, India’s FDI inflows dropped sharply from about $49 billion in 2022 to $28 billion in 2023, marking a 43% decline, and India sank from the 8th to the 15th largest FDI recipient globally. Similarly, in FY 2023–24, FDI fell further to just $26.6 billion, a 37% year-on-year drop, signaling a notable risk perception among global capital.[13]
- Capacity Limitations: Generally, domestic enterprises cannot fully exploit patents due to a lack of capacity. For example, between October 2020 and early FY 2025, the US FDA refused 4,089 India-origin shipments, exceeding the entire count from FY 2024. Leading exporters like Sun Pharma and Cipla faced 335 and 244 rejections, respectively, often for failures related to Good Manufacturing Practices (CGMP).[14]
- Geopolitical Risks: Overplaying sovereignty could leave India isolated from some global benefits of collaboration activities, which may have other associated benefits.
Comparative Insight
Nations employ different tactics to align IP with industry objectives. The PRC integrates patents deeply into its national plan in the "Made in China, 2025" plan, using government-backed funders and technology transfer, and is seeking to develop industrial strength. In this case, IP serves as a proactive tool for growth. India attempts to carve out space and has primarily been a follower in the global process, partly owing to the TRIPS agreements. The patent regime in India uses compulsory licensing, and Section 3(d), to ensure that medications are accessible and prevent evergreening. The PRC has been aggressively filing patents (or accumulating them) while India is very reactive in filing patents, primarily based on external trade pressures. This illustrates that IP can be a powerful force for industrial scaling or protecting access and flexibility.
Recommendations
- Sovereign Patent Funds: India can establish funds, invest in overseas firms, and acquire patents to ensure access to key technologies. While India hasn’t yet created a formal sovereign patent fund, China’s "Zhigu" IPR Fund—launched in 2018 with over USD 50 billion under state-backed investment—demonstrates how such a fund can support IP acquisition, licensing, and domestic commercialization.[15]
- Encourage Patent Pooling: Patent pools within an industry can limit litigation and improve the chances of collective innovation. Indian firms—Cipla, Dr Reddy's, and Serum Institute—joined the Medicines Patent Pool (MPP) and C-TAP, facilitating access to COVID-19-related patents and enabling vaccine manufacturing and distribution at scale.
- Incorporate PLIs into IPR: Production-linked incentives should incorporate measurable costs of patent creation, as well as mechanisms for patent transfers. India’s Production-Linked Incentive (PLI) schemes—across pharmaceuticals, electronics, and solar manufacturing—can be further adapted to recognize patent creation as part of eligible expenditure
- Negotiate in FTAs: India must push back against TRIPS-plus requests that limit the ability of states to utilize compulsory licensing rights. In its EFTA (Switzerland, Norway, Iceland, Liechtenstein) FTA, India secured a $100 billion investment commitment without conceding to TRIPS-plus norms like data exclusivity
- Build Capacity: Encourage universities and start-ups to generate significant intellectual property through government-supported incubators. Universities like IIT Bombay’s BETiC are developing and licensing medical devices (50 produced by 2019, 20 licensed to startups/industry).[16]
Ultimately, a sovereign innovation path for India is not about isolationism; it is about self-reliance and trust in its own capabilities, which recognizes the rest of the world, a complex IPR policy that cooperates selectively while balancing national interests and disproportionate international cooperation.
Conclusion
India has to figure out how to achieve innovation sovereignty without the pressure from the TRIPS commitments on national interests. The key issue is whether to protect mechanisms like compulsory licensing, preserve its domestic capacity, or focus on sovereign patent funds that could help achieve the notion of Atmanirbhar Bharat (self-reliant India). With increasing pressure on global trade, India's real test is how to transform IP into a growth engine and not reduce access. The other question is whether India can pivot its IP regime from a defensive shield to a strategic tool for long-term innovation leadership?
[1] The Patents Act 1970 (India)
[2] WTO, Agreement on Trade-Related Aspects of Intellectual Property Rights (1995).
[3] Prabhash Ranjan, India and Bilateral Investment Treaties: Refusal, Acceptance, and Backlash (OUP 2019)
[4] Ruth Okediji, ‘The International Relations of Intellectual Property’ (2003) 7 Sing JICL 315
[5] Ministry of Commerce and Industry, Atmanirbhar Bharat and Innovation Policy Report (2021
[6] Carlos Correa, Public Health Perspectives on Compulsory Licensing of Patents (WHO 2011).
[7] WTO, Doha Declaration on the TRIPS Agreement and Public Health (2001)
[8] Paris Convention for the Protection of Industrial Property 1883.
[9] Natco Pharma Ltd v Bayer Corporation (2012) Compulsory Licence Application No 1 of 2011.
[10] Novartis AG v Union of India (2013) 6 SCC 1.
[11] Bayer Corporation v Union of India (2014) 60 PTC 277 (Del)
[12] Peter Drahos, Intellectual Property, Indigenous People and Their Knowledge (CUP 2014
[13] https://wisdomwav.in/insights-from-the-world-investment-report-2024/