Innovation

SpicyIP Tidbits


1. Minister gets Innovative, announces Indian Innovation Act:

CNN-IBN reports that Kapil Sibal, the Minister of Science and Technology is promoting an Indian Innovation Act. I quote:

“In an effort to increase research investment, the Science and Technology Ministry has announced the Indian Innovation Act. It has asked FICCI to prepare a draft for the act by December this year.

The aim of the legislation would be not just to increase research investment, but also strengthen education opportunities in science, technology, engineering, and mathematics and finally develop an innovation infrastructure. Science and Technology Minister Kapil Sibal said the draft act will be put up for debate in the public domain.

“We need an Indian Innovation Act which is India-specific, which deals with the challenges in India to make an innovative society,” he stated. Basically, this act should talk about how we should change our education policy to make our students more innovative and about how we can weaken bureaucratic control over research and development and scientific institutions,” he added.

Note the fact that “the draft act will be put up for debate in the public domain. ” In the light of our previous post on public participation in policy making, it’ll be interesting to see the kind of responses that this draft gets and the level of public participation that it will engender.

As a minister, Kapil Sibal has been very energetic on the IP front and one wishes that the IP portfolio was with him and not with the commerce ministry. In the short time since he took office, he has made great strides in helping place Indian science and technology on the global map–particularly in biotechnology. Interestingly, he was the first-ever Indian Minister to visit the Indian station at Antarctica, as a result of which, a third Indian station is being established there.

He is also the key force behind a proposed legislation that seeks to encourage university-industry technology transfer in India–something akin to a Bayh Dole like legislation. One wonders whether the Bayh Dole effort will now be subsumed under the Indian Innovation Act agenda.

Also, as some of you know, the Knowledge Commission of India headed by Dr Sam Pitroda is looking into similar issues (enhancing India’s innovation potential) and recently came up with an “innovation survey” on India. It begins by stating:

“While literature on Innovation has been growing in recent times, the NKC survey
on Innovation is perhaps the first detailed and in-depth quantitative and qualitative survey on Innovation in India (as defined more broadly than R&D) using firm level aggregate statistical data on a nationwide scale, with a sample that includes the top industry leaders as well as a large number of small and medium enterprises (SMEs), and across varied industrial profiles, ranging from manufacturing and services to diversified businesses.

It is expected that the survey will provide feedback and information on current Innovation trends to firms as well as generate necessary catalyzing effects for business Innovation to take place in India on an even larger scale, thus ensuring sustained Innovation led economic growth in the coming years.

The need for these two initiatives to co-ordinate with each other (and complement each others’ efforts) cannot be stressed enough–lest we end up with duplication and waste of tax payer money.

Spicy quote from Sibal: In a meeting with US Secretary of State, Condoleeza Rice, the Minister is said to have famously remarked:

“A very long time ago, in 1492 Christopher Columbus started on his journey to discover India and landed in the Americas. And unfortunately, since 1492 to the beginning of the new millennium, the United States wasn’t able to discover what India was all about. I think that it does credit to the two countries that at the beginning of this millennium, this process of discovery has begun”.

2. Novartis challenge to be heard by the High Court in October:

The Economic Times reports that:

The Madras High Court will hear on October 8, Novartis’ objection to the appointment of S Chandrasekaran, former Controller General of the Indian Patent Office, to consider its appeal against the rejection of patent for its anti-cancer drug Glivec.

The Swiss drug major had filed a petition last month with the Madras HC, arguing that Mr Chandrasekaran had himself refused the patent for Glivec in the first place. “We expect the opportunity to explain our case clearly to an objective board. Because the current technical member of the appellate board was responsible for the original rejection of the Glivec patent, and was a party in the patent appeal in the High Court, we believe he cannot act as an impartial member of the Appellate Board,” said a Novartis spokesperson.

In a similar case in May, the Delhi HC held that Mr Chandrasekaran could not hear an appeal by Belgium’s Magotteaux International against a patent decision, as it was under his tenure that the patent application had been rejected. If the Madras HC rules in favour of the Swiss drug major, the Intellectual Property Appellate Board (IPAB) will need to appoint a new person to hear Novartis’ appeal. Only a person with over five years’ experience working with the patent office, or a patent attorney with at least 10 years’ experience, may qualify. The appeal may also be heard by the two other members of the board, the IPAB chairman and the Trade Mark member. Also last month, the Madras HC had held a patent law section challenged by Novartis, upholding India’s position that incremental innovation that does not lead to substantial improvement in drug efficacy cannot be patented.

With the court holding section 3(d) of the amended patent law valid, chances that the IPAB will revert its decision seem slim, say legal experts. The Madras Patent Office rejected Novartis’ patent application for Glivec in January 2006, stating that the Basel, Switzerland-based drug maker’s innovation did not meet the requirements of the section. Glivec is patented worldwide. However, the invention of Glivec’s base compound, Imatinib mesylate, was patented in 1993, and is therefore not eligible for a patent in India, which joined WTO only in 1995. Novartis is seeking patent protection for a crystalline form of Imatinib mesylate, which was patented in 1997.

SpicyIP has already said enough about Chandrasekharan in previous posts!!

Shamnad Basheer

Shamnad Basheer

Prof (Dr) Shamnad Basheer founded SpicyIP in 2005. He is currently the Honorary Research Chair of IP Law at Nirma University and a visiting professor of law at the National Law School (NLS), Bangalore. He is also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof Amartya Sen. Professional History: After graduating from the NLS, Bangalore Professor Basheer joinedAnand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Prof Basheer has published widely and his articles have won awards, including those instituted by ATRIP and the Stanford Technology Law Review. He is consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also serves on several government committees.

4 comments.

  1. Avataryogi

    Dear Shamnad,
    This is something good, provided it does not lead to duplication of work, as suggested by you. I have reviewed the work of the NKC, but it doesn’t seem to me that they are reaching any far.
    Again, I am doubtful whether something akin to the Bayh Dole Act is necessary for India. I guess the background for Bayh Dole in US was the legal restriction placed on patenting inventions coming out of public funded research. Is there any such existing legal restriction on public funded institutes in India? It appears to me that there is a fundamental problem of incentives for research in these institutions. Historically, they have never focused on patents. Even today, some good old professors believe that paper publication is good. For them, its quick and a efficient coefficient!They don’t simply understand simple economics and dynamics of industry-academia tie ups. But they still have a point. They face this problem of timelessness associated with acquisition of patents and also that they cannot be sure of the grant.
    The problem is with inculcating the culture of protection in them. For that they need to innovate first. For innovation they need to know a little of imitation as well. I guess its still too far but I am positive! Probably, our new “innovation Act” should consider this basic nuance of innovation through imitation, if its really concerned with creating intellectual property by Indians.

    Reply
  2. AvatarShamnad Basheer

    Dear Yogi,

    Great comments. You’re right–a blind adoption of Bayh Dole without considering the specific nature of educational establishments in India and their nexus with with industry will not work.

    As for papers and patenting, I don’t think they are mutually exclusive. A professor can do both. Whether excessive patenting will lead to less sharing of research results is certainly a concern. Or will the advantages of patenting offset any such concerns? As you may appreciate, without teh grant of exclusive rights in certain technology areas like pharma, industry will never license an invention–and to this extent, universities that come up with such inventions may need to take a patent and exclusively license. Of course, in other areas, one can insist on non exclusive license terms, so that the benefits of the invention are more widely shared.

    When you say “imitation” should be preferred, are you sugesting this for all areas –across the board–and for all the time. In other words, should India imitate for ever? And in all technology areas? shouldn’t the country be innovating at all? when’s the right time to make this transition?

    Reply
  3. Avataryogi

    Thanks Shamnad. In some areas for wider creation of something “synonymous” to public domain, non-exclusive license must be made mandatory for innovations coming out of public funded research. Probably, areas that are key to technology growth may be taken into consideration.
    The “imitation” context is suggested because of current incapacities of Indians to innovate. You might be aware that we are still far from realizing the IP break even point. This would take sometime. I don’t believe that we need to imitate forever. We are smarter than the Americans. Unlike them, we would not need to pirate for a century and half. Clarifying the IP break even point, I feel that it would be realized when rent seeking through IP is no more available as an option. It means there is true and fair competition in a particular relevant market. In such such situations IP truly acts as an incentive for innovations.

    Reply
  4. AvatarShamnad Basheer

    Dear Yogi,

    Excellent comment. Just a couple of quick clarifications:

    1. you say: “I guess the background for Bayh Dole in US was the legal restriction placed on patenting inventions coming out of public funded research.”

    My query: where was this “legal restriction” stemming from? A statute?

    2. “The “imitation” context is suggested because of current incapacities of Indians to innovate.”

    My query: Don’t you think this is too sweeping a statement? we cannot innovate in any technology sector?

    3. “You might be aware that we are still far from realizing the IP break even point”

    Query: Again, my concern is that this is too sweeping and doesnt take into account sector specific issues. So, are we far from realizing IP break even point in software, mechanical devices, pharma–and all other technologies? Would be interesting to know the basis for your conclusion.

    Reply

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