Navigating Intellectual Property Rights in the Electric Vehicle Industry in India

Mahesh Wasadikar

Introduction
India is one of the largest markets for automobiles in the world. Vehicular pollution has been a significant contributor to increased pollution and a decline in air quality in Indian cities. India has committed to net-zero carbon emissions by 2070 and to reduce the total projected carbon emissions by 1 billion tonnes by 2030. India is also heavily reliant on oil imports and high crude oil prices have had an adverse impact on its economy.

Electric vehicles (“EVs”) with zero tail-pipe emissions have evolved as one of the solutions to the fossil fuel problem. EV companies have made substantial investments in India, also encouraged by the Indian government’s policies and incentives aimed at increasing the adoption of EVs and developing the EV ecosystem (in turn meeting its above objectives).

The EV industry in India is seeing significant innovation with start-ups as well as established players embracing the EV revolution. Therefore, it has become essential for EV companies to safeguard their intellectual property to allow them to effectively monetise it.

Types of intellectual property relevant to EVs

In India, patents, designs and copyrights are key to the protection of the intellectual property of EV companies. Protection of trade secrets is also crucial, while there is no separate statute governing it.

While trademark protection is equally important for EV companies as for any other company, the protection and enforcement of trademarks are broadly similar, and we have not delved into those in this article.

1.Patents As per the Patents Act, 1970[1], a patent can be granted for 20 years for a new product or process capable of industrial application. For a patent to be granted, the product or process has to be (a) new and not publicly disclosed; (b) not obvious to someone skilled in the technology; and (c) have practical application.As of November 2023, 11,512 patent applications have been filed in India relating to EVs[2], including for powertrains, battery and battery management systems, braking and steering systems, converters and charging technology and infrastructure.With the increasing number of patent
applications, certain challenges in obtaining patents have emerged such as (a)
delays in light of a large number of patent applications with similar technologies; (b) complexity and convergence of technologies in EV-related innovations; (c) patent trolls acquiring patents to earn licensing revenue, rather than to manufacture the products; and (d) submission of broad patent applications.EV companies will have to be mindful in navigating the above challenges for obtaining patents.

2.Designs Upon registration of an original design (i.e., the shape, configuration, pattern, ornament or composition of lines or colours applied in two-dimensional and/ or three-dimensional forms by any industrial process or means), the Design Act, 2000[3] grants protection of up to 10 years to the owner to prevent unauthorised copying or imitation. Similar to patents, for designs to be registered, they have to be (a) new or original; (b) not previously disclosed to the public; and (c) significantly distinguishable from known designs.This is relevant in various aspects of EVs such as the exterior body, interior layout, user interface and other visual elements, and helps manufacturers distinguish their products from those of their competitors. As of November 2023, 2,573 design applications have been filed in India relating to EVs[4] for various design elements.

3.Copyrights As per the Copyright Act, 1957[5], copyright subsists in original creative works and gives owners exclusive rights to reproduce, distribute, display, or perform their works. For EVs, copyright would protect software and firmware (including operating systems and infotainment systems), designs and drawings (including technical drawings of EV components), manuals and artistic elements in and relating to EVs.Copyright protection comes into effect as soon as the original creative work is created, does not require any registration or other formality to be completed, and subsists for 60 years. However, it is beneficial to have a registered copyright in case there is an infringement.It is relevant to note that while the Copyright Act, 1957 recognises the right of the employer to the intellectual property created by employees, EV companies should ensure that employment contracts (as well as contracts with consultants/ freelancers) ascribe ownership of the copyright generated over the original creative work to them.

4.Trade Secrets It is important to safeguard trade secrets and confidential information of an EV company to protect its proprietary knowledge considering the significant investments made to develop innovative designs and unique processes. Rights in trade secrets can be created under contract and enforced under the Indian Contract Act, 1872[6].EV companies must adopt strategies to safeguard these trade secrets. This can be done by a combination of contractual safeguards (by way of entering into robust confidentiality agreements with employees, vendors etc.) and implementing technological solutions to avoid
breach.
Conclusion
In the fast-evolving EV industry, EV companies will continue to evolve newer technologies and designs. The importance for such EV companies to safeguard their intellectual property, and to be prepared to enforce their intellectual property rights in case of infringement, will prove to be a key factor for their growth.