SpicyIP Tidbits: More News on the Indian Bayh Dole

More news on the proposed Indian Bayh Dole (titled the “Public Funded R&D Protection, Utilization and Regulation of Intellectual Property) Bill” 2007). When it rains, it pours!!

For our earlier posts on this theme, see here and here.

“Down to Earth” carries a stinging critique of the secrecy with which the proposed Bayh Dole legislation for India has been shrouded. And argues that this secrecy could have been because some of the provisions are clearly against public interest. In contrast, a Business Standard article is more bullish on the wonders that this legislation can bring about. Excerpts from both articles are reproduced below:

Down To Earth: Vol 16, No 21, March 21, 2008

Public Funded R&D Bill May Benefit the Private Sector

The Union Ministry of Science and Technology is forcing through a controversial act which seeks to regulate rights over government-funded research. Many feel that Public Funded R&D (Protection, Utilization and Regulation of Intellectual Property) Bill, 2007, will benefit the private sector more than the public.

The ministry feels the benefits of government-funded research are not reaching the public since scientists are not able to translate their work into products. While the bill puts the onus on researchers to commercialize their work, it ignores crucial reasons behind the works lying unutilized.

Most of the research taking place in government-funded institutions are irrelevant to industry and the public. For example, out of the 400 research works recently patented at the Delhi’s Council of Scientific and Industrial Research, only 34 reached the public.“Government research bodies do not understand what the public and the industry need,” says Rajeswari Raina, senior fellow at the Centre for Policy Research in Delhi.

Moreover, industry does not have confidence in the research and the country lacks venture capital for product development.

The bill transfers patent rights to the researcher from the government. Currently, while researchers in some autonomous institutions such as iit and iisc can commercialize their research, the patent rights are largely held by the government. If a dispute on the ownership of the patent arises, there is no law to protect the rights of the researchers. The bill, however, says researchers have to make attempts to commercialize the research in 90 days after formally disclosing the findings. If they fail, the rights will go to the government.

Modelled on the controversial Bayh-Dole Act in the US, the bill ignores grassroots innovation

The bill is modelled on the controversial Bayh-Dole Act in the us (also see ‘Property wrongs’ Down To Earth April 15, 2007). The bill drafted by the department of biotechnology (dbt) is likely to reach the parliament soon. Final draft of the bill has already raised hackles of the scientific community who say that bill will not bring research to the public domain. They also question the transparency in drafting the bill.

Not for the public The bill is not yet open for a public debate. dbt says various ministries have been looking into the draft since April last year and it might come for a public scrutiny after the parliament approves it. “At some stage, the ministry should have placed it in the public domain,” says Dinesh Abrol, a patent policies expert with the National Institute of Science Technology and Development, Delhi.

In the us, scientists and policy analysts have for long debated the features of Bayh-Dole. “Sans such a debate, a copycat bill will not serve the purpose in India,” says Anand Patwardhan of Technology Information, Forecasting and Assessment Council of the department of science and technology.

The draft which Down To Earth managed to obtain shows the ministry has enough reasons to fear a public debate. It shows the public can hardly benefit from the bill. Instead it will fetch financial benefits to some scientists who have contacts in industry, and the acumen to commercialize their products. “It will make some scientists rich. But it will not do much public good,” says N Raghuram, an expert on bioethics. Some scientists also suggest this approach of giving incentives to scientists who can sell their research to industry will further alienate science and technology from development since researchers may lose interest in working on technologies that contribute to development.

There are also fears that the bill will make public research available to private companies at a low cost. “Scientists will sell them for cheap and the corporate world will gain. This will not bring more money into research, as it claims,” says P M Bhargava, former vice chairman of the National Knowledge Commission, the advisory body to the prime minister. Individual scientists will have less bargaining power than the government, he adds. dbt, however, differs: “This will encourage innovation and hence will bring in more money through commercialization,” says K K Tripati, one of the key authors of the draft.

The ministry says the bill will reach for a public debate only after the parliament approves it

The industry has welcomed the draft. “The sector will gain in terms of new technology while universities will get more money for research and the public will have more choices in technology and products,” says Akash Taneja, executive director of the Institute of Intellectual Property Development at the Federation of Indian Chambers of Commerce and Industry in Delhi.

Ignoring innovations
Those who drafted the bill seem to have had no idea of how the common people use and develop technology, says Raina. “Scientific policy makers in the government have no clue about grassroots innovations and technologies that can help the poor. Those who drafted the bill have not even heard about such innovations which are keys to public good,” she adds. “The bill reads like a conversation within the government”.

The National Innovations Foundation in Ahmedabad regularly records grassroots innovations in the country. In the recent past there were some excellent examples; a pen which the physically challenged can use with a single finger and a machine for spreading parboiled rice which is helpful to villagers who suffer from scalding of hands while spreading it for drying. The bill is silent on how such research will reach the public.

A large part of scientific innovations in India are taking place in small and medium scale enterprises (smes) which often use government fund for research. The bill says it will encourage smes, but inter alia (among many of its objectives). Many such companies use government funds for their research. Biswajit Dhar, at the Indian Institute of Foreign Trade says “Certain provisions in the draft even dissuade such innovations.” (See table: Wrong notes).
There are more incongruities. “The knowledge commission discussed the bill along with other issues to boost research. The commission which supported the bill ignored factors such as training scientists and lawyers on intellectual property rights,” Bhargava says. dbt claims the bill deals with all the infrastructure and human resource development issues which might hinder its proper implementation. “We are training scientists on intellectual property rights,” says Tripati.

Commercialising research
Business Standard / New Delhi March 21, 2008

The proposed legislation to empower state-funded research institutions, including universities, to commercialise their inventions, if carefully framed and enforced, can help boost science as well as science-based industrialisation. Optimism on this count emanates from the fact that the Bill drafted for this purpose, on the initiative of the National Knowledge Commission, seeks to encourage public sector research organisations to patent their inventions and offer them to industry for commercialisation on a revenue-sharing basis. While 30 per cent of the revenue from the use of the innovations is proposed to go to the inventor, 10 per cent will accrue to the institutions for ploughing back into upgrading the research infrastructure. The government, being the financier of the research, will keep the march-in rights, allowing it to issue compulsory licences for the production of any product in the public interest.

These provisions spell a win-win situation for all — researchers, research bodies and the government. The measure may, therefore, provide a much-needed reward-linked incentive for scientists and the research organisations to undertake result-oriented research. This motivation is mostly missing at present in government research institutions. Besides, the new system should also help improve the flow of new innovations and discoveries from the laboratories to the marketplace, accelerating the pace of science- and innovation-based industrialisation. And most importantly, it could reduce the public-funded research bodies’ coyness about joining hands with private entrepreneurs for earning revenue. In the process, it can facilitate the recovery of a part of the expenditure on research.

Meanwhile, caution is needed to avert any negative fall-out of the kind that emanated from the Bayh-Dole Act in the US. Linking scientists (read innovators) directly with commercial organisations for technology transfer, with provisions for monetary returns, has resulted in certain cases in the emergence of vested interests among researchers and research bodies, and even favouritism in selecting commercial partners. More significantly, the law has proved to be a distinct disincentive for conducting fundamental research because, despite its critical importance, such research does not offer much scope for commercialisation and revenue generation. If the Indian law can have provisions to preclude such an adverse fall-out, it will be all the more welcome.

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.

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