Patent

EXPORTING BAYH DOLE TO INDIA: WHITHER TRANSPARENCY? (PART I)


Many of you may have heard of the government’s move to introduce a Bayh Dole style legislation in India. The latest is an article from “Science”, some paragraphs of which I’m reproducing below:

“The Indian government is preparing to introduce legislation that it hopes will reverse the traditional hands-off attitude at most Indian universities toward commercializing the results of basic research. The proposed bill, a draft of which was obtained by Science, sets out rules that institutions must follow once their scientists make a patentable discovery. In addition to serving as the first such nationwide guidelines, the legislation is meant to send a message to university officials that technology transfer is part of their job.

“The idea is to create an environment of innovation,” says Maharaj Kishan Bhan, secretary of the Department of Biotechnology, which helped to draft the bill. Until now, he says, “university administrators [have been] free to encourage or discourage patenting and commercialization efforts. And there are many who believe that industry and academia should be kept miles apart.”

The legislation directs institutions to report patentable discoveries to the funding agency as soon as they come to light and to file patent applications within a year. Institutions and inventors who fail to meet the deadline would forfeit their intellectual property rights to the agency that funded the research. Institutions must give inventors at least 30% of any revenues from a patent and spend the rest on research.

The government plans to introduce the bill this spring in Parliament, where it is expected to win swift passage”.

SpicyIP tried very hard to get a copy of this bill, but was told by several sources that the bill was “confidential”. Given that we are very interested in promoting transparency in Indian intellectual property policy, this is one word that does not sit well with us.

By “confidential”, does the government mean that they are not interested in a public debate? I visited the Ministry of Science and Technology (the Ministry which is pushing this bill) website to check for any references to this bill. Apart from a parsimonious reference to a proposed bill in one of the parliamentary question/answer sessions, the website makes no other mention of this important piece of legislation. Much to my incredulity however, the Ministry has uploaded a draft bill that seeks to regulate “medical devices”. Importantly, it has specifically called for public comments. See here.

Quite clearly, “medical devices” are of greater public interest than a purported Bayh Dole style legislation—which seeks to address issues of innovation, the nature of university research, university-industry technology transfer etc!!

Yes, the government may say that they intend to make this public after the bill is introduced in Parliament. But don’t we all know that once introduced, it is much more difficult to effectuate amendments, even if faults are spotted?

I repeat the last sentence of the science article referred to above: “The government plans to introduce the bill this spring in Parliament, where it is expected to win swift passage”. I am not sure how swift the passage will be. Perhaps a little flashback is in order here: in late 2004, many of us watched with shock as a presidential ordinance introducing pharmaceutical product patents was pushed through overnight. In other words, when the government wishes, it will put even Japan’s pride, the Shinkansen to shame..

It needs to be noted that this is a bill that will have important ramifications, necessitating inputs from all stakeholders and the public at very earlier stages. The issues involved are far too serious and have implications for the nature of university research, university–industry technology transfer and issues of innovation and access generally. I’m not sure as to the kind and quantum of background study already conducted by the government before they decided to import this model from the US. Were there any empirical studies conducted on the patenting trends at universities, the various bottlenecks to achieving better university-technology transfer, how best to achieve better knowledge spillovers of University research etc?

I’ve now dug up what turns out to be a much older version of this bill and have posted it here . I understand that a newer version of this will be introduced in Parliament soon. I will post some preliminary thoughts on the structure of this bill tomorrow. In the meantime, if any of you get access to the bill, do forward us a copy.

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. AvatarPatman

    Nobody can force Indian Universities to change their attitude.As far as Indian Universities are concerned, patents are mere tools to increase the prospects of promotion and also to obtain funding. Earlier researchers depended on the number of scientific papers published for increasing their prospects. Only a good patent can be successfully commercialized. It also needs a lot of effort on part of the patentee to take necessary steps to convince interested persons to commercialize their inventions. Further, the academic-industry interaction is abysmal in India. Unless original research flourishes and results in genuine patents, there is simply no use in bringing a Bayh Dole style legislation to India.

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  2. AvatarShamnad Basheer

    Thanks Patman,

    Great comments. I think the general idea of doing something to make it easier for universities to patent in some circumstances is good. But we ought to also understand that the purpose is to facilitate innovation and knowledge spill overs–and not merely to increase the number of patents. As you rightly allude, those patents per se may mean nothing and may be worthless.

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  3. AvatarAnonymous

    So long as hifalutin jargon such as “The idea is to create an environment of innovation”, etc. are being used justify the bill, one can be sure that nothing will come of it. I also read a ‘discussion paper’ on a proposed ‘innovation law’ which relies heavily on World Bank reports and other such reports by big name financial institutions and management institutes. It is laughably simplistic and completely lacks an Indian context. It simply believes that what is good of America must be good for India. I believe we are entering dangerous territory here and a vigorous public debate is needed.

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  4. AvatarNilanjana

    I agree with what Patman says. Indian scientists as a general rule just don’t do the kind of research necessary for commercialization. The criteria for a commercial success is much tougher than just publication and/or patenting. Right now most scientist are just using patenting as an additional entry to their resume to increase their prospects when promotion is due. Most already know the viability of their research.

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