India has ratified the World Intellectual Property Organization (WIPO) Performances and Phonograms Treaty.

India lacks a comprehensive framework in place that provides effective protection of trade secrets, but there are limited measures addressing some issues related to them. As per the decision of the Delhi High Court in 1995, a trade secret is defined as any information with commercial value that is not available in the public domain and the disclosure of which would cause significant harm to the owner. Moreover, Indian courts and tribunals have upheld the protection of trade secrets under other laws such as contract law, copyright law, principles of equity, and common law action of breach of confidence (which is basically a breach of an obligation to keep a piece of information secret). In addition to the above, the Information Technology Law of 2000 also sets legal means of protection for confidential information in the form of electronic records.

It is reported that there is an obligation for passive infrastructure sharing in India to deliver telecom services to end users, and it is practised in both the mobile and fixed sectors based on commercial agreements.

According to Section 6.2.14 of the 2020 Consolidated Foreign Direct Investment (FDI) Policy Circular, full foreign direct ownership is permitted in the telecommunications sector (including Category-I Telecommunications Infrastructure Providers). However, government approval is required for FDI above 49%. This regulatory requirement has been in effect since the enactment of the Consolidated FDI Policy Circular 2013 (Section 6.2.15).

India applies a residency requirement for the members of the board of directors. Art. 149.3 of the 2013 Companies Act requires every company to have at least one director who has stayed in India for a total period of not less than 182 days in the previous calendar year.

According to the Consolidated Foreign Direct Investment (FDI) Policy Circular 2020, broadcasting services require that a majority of the company’s directors are Indian citizens. Additionally, the CEO, the chief officer responsible for technical network operations, and the chief security officer must all be resident Indian citizens. Furthermore, officers or officials of the licensee companies involved in the interception of services must also be Indian citizens. This requirement has been in effect since the implementation of the Consolidated Foreign Direct Investment (FDI) Policy Circular 2013 (Section 6.2.7.6)

India has traditionally implemented FDI screening for investors from Bangladesh and Pakistan. According to Section 3.1.1 of the Consolidated FDI Policy 2020, non-resident entities may invest in India, subject to the conditions specified in the policy, except in prohibited sectors or activities. However, investment by citizens of Bangladesh or Pakistan is permitted solely through government approval. This regulatory requirement has been in effect since the enactment of the Consolidated FDI Policy Circular 2013 (Section 3.1.1).
Notwithstanding this framework, in April 2020, the Ministry of Commerce and Industry introduced the Review of Foreign Direct Investment (FDI) Policy for Curbing Opportunistic Acquisitions of Indian Companies (Press Note 3). Under this policy revision, the FDI regime was expanded to mandate government approval for investments from any entity based in a country that shares a land border with India. Furthermore, the policy stipulates that any direct or indirect transfer of ownership of existing or future FDI in India, which results in a change in beneficial ownership falling within the scope of the conditions set forth in the Press Note, will similarly require government approval.
This legislative adjustment primarily targeted China in response to escalating border tensions between the two nations. Since the introduction of Press Note No. 3, an estimated 150 private equity and venture capital investment applications from China and Hong Kong have remained pending government clearance.

According to Section. 6.2.14 of the 2020 Consolidated Foreign Direct Investment (FDI) Policy Circular, full foreign direct ownership is permitted in the telecommunications sector (including Category-I Telecommunications Infrastructure Providers). However, government approval is required for FDI above 49%. This regulatory requirement has been in effect since the enactment of the Consolidated FDI Policy Circular 2013 (Section 6.2.15).

According to the Patent Act, 1970 (Act No. 39 of 1970, as amended up to Act No. 15 of 2005) and the Patents Rules, 2003 (as amended up to Patents (Amendment) Rules, 2012), applications for copyright, trademark and patents can be filed online, however, design applications can only be filed in person. Moreover, applicants who do not have a registered place of business in India are required to file applications through an Indian attorney or agent.

In 2002, the foreign filing license requirement was introduced in the Indian Patents Act of 1970. This requirement provides that any inventor who is a resident of India should file a patent application for his/her own invention first in India. The patent application can be extended internationally only six weeks after the initial filing date. Alternatively, the inventor is required to obtain the controller’s permission for filing the patent application outside India. However, given that the process is reported as burdensome, applying first in India is the preferred way of complying with these provisions. The violation of such rule results in criminal liability under Section 118 of the Indian Patent Act of 1970, with consequent monetary fine or imprisonment of up to two years, in addition to the impossibility of proceeding with the patent application.

It is reported that the potential threat of patent revocations, lack of presumption of patent validity, and the narrow patentability criteria under the India Patents Act impact companies across different sectors. In addition, it has been reported that courts take a significant amount of time to make a final decision in a patent case. A patent lawsuit ordinarily takes approximately five to seven years to be finally decided after trial if contested by the other party. The Commercial Courts Act is helping to speed up the process with case management hearings and time-bound trials. However, the backlog of cases at the court and the shortage of judicial officers have an impact on the time it takes for a final decision on a case.

The Public Procurement (Preference to Make in India) Order 2017 - Notification of Telecom Products, Services, and Works establishes a list of telecom products, services, and works for which procurement preference is granted to domestic manufacturers. The telecom products and services covered under this Order include encryption systems, ethernet switches, IP-based soft switches, set-top boxes, and Wi-Fi-based broadband wireless access systems, among others. The local content requirements range between 30% and 70%. Annexure B of the Order outlines the conditions for inputs to qualify as local content, which include components such as integrated chips, active components, and cables, among others, that must be manufactured in India. The Order also stipulates that local suppliers must manufacture equipment from the component level in India and develop local vendors for procuring raw materials, components, and parts to enhance local content.

With the enactment of the Public Procurement (Make in India) Order 2018 for Cyber Security Products, the Ministry of Electronics and Information Technology underscored the strategic importance of cybersecurity. As a result, governmental entities are directed to prioritise the procurement of domestically manufactured cybersecurity products when tendering processes. A domestically manufactured cybersecurity product is defined as one where an Indian company owns the intellectual property (IP), and the company has the autonomy to distribute, modify, or commercialise the product without third-party consent. Additionally, products composed of multiple sub-components may also qualify as domestically manufactured cybersecurity products if at least 60% of the total product cost is attributed to local content and third-party licensing fees do not exceed 20% of the total product cost.
Additionally, the Public Procurement (Make in India) Order 2019 for Cyber Security Products granted preferential treatment to companies incorporated and registered in India or to startup firms meeting the criteria set by the Department for Promotion of Industry and Internal Trade (DPIIT), provided that revenue from the product and IP licensing is accrued within India. The scope of cybersecurity products covered by these notifications includes anti-virus software, cloud security solutions, mobile security applications, firewalls, OTP gateways, encryption services, and others. A comprehensive list of products can be found in the Public Procurement (Make in India) Order 2019 for Cyber Security Products.

The Policy for Providing Preference to Domestically Manufactured Electronic Products in Government Procurement (PMA) mandates that domestically manufactured equipment be prioritised in both government procurement and select private sector procurement activities. The policy stipulates that each ministry or department must meet a minimum percentage of their demand for electronic products with locally manufactured goods that comply with the prescribed minimum value addition requirements for each item. This policy aligns with India’s broader objectives to enhance domestic manufacturing capacity and safeguard the security of its telecommunications infrastructure.
According to the 2015 Guidelines on the implementation of this policy, the minimum threshold for domestic procurement of any electronic product is set at 30%. Additionally, the rate of total procurement value accorded preference for domestically manufactured electronic products should be determined in a manner that encourages domestic manufacturing while maximising competition.
In addition, the Guidelines list the electronic products subject to this policy, including but not limited to notebooks, tablets, desktop PCs, servers, printers, keyboards, monitors, USB devices, ATMs, photocopiers, scanners, faxes, smartcards, mobile handsets, handheld terminals, PC projectors, and POS-based services. Telecom products under the Guidelines include SIM cards, encryption platforms, leased line network equipment, WiFi access systems, among others.

M/s ITI Limited (a public sector enterprise under the Ministry of Telecommunications) has a reservation quota for procurements made by three state-owned telecommunications companies (BSNL, BBNL and MTNL). The reservation quota for M/s ITI Ltd. in procurements began on September 21, 2013. It was initially extended in November 2018 for three years, maintaining a 30% reservation threshold, with value addition requirements of 12% in 2018-19, 16% in 2019-20, and 20% in 2020-21. The policy has been subject to periodic reviews, with the latest extension in 2024 continuing beyond the initial three-year period.