Indian Bayh Dole Bill: Secret "Public" Discussions by FICCI?


I recently came across news of a FICCI workshop on the Indian Bayh Dole bill that was held on 16th October. For our previous posts on this highly contentious and ‘secret” Bill, please see here.

The FICCI invitation that appears to have gone out to only a select few stated thus:

“FICCI is organizing a Seminar on the Public Funded R&D (Protection, Utilization and Regulation of Intellectual Property) Bill, 2007 on 16th October 2008, at 10.30 am, at Federation House, New Delhi. We are organizing this debate so that awareness about the utility of the Bill could be generated and misconceptions removed.

Hon’ble Minister for Science & Technology and Earth Sciences, Mr. Kapil Sibal has kindly consented to deliver the Inaugural Address at this Seminar. The discussion will involve all the stakeholders namely scientists, venture capitalists, industry, academia and the Government.”

How many stakeholders were involved in this event? Was this a public event (albeit subject to registration etc) or a “secret” event, mirroring a key attribute of the alleged subject matter of its discussion, the Public Funded R&D (Protection, Utilization and Regulation of Intellectual Property) Bill, 2007 OR more commonly the Indian Bayh Dole? I didn’t see any reference to this event on the FICCI website.

Most importantly perhaps, has the bill been made public? I didn’t see a copy of it on the DST website the last time I checked. Or the FICCI website, particularly since FICCI appears to be taking credit for having drafted this legislation. See this report by Evalueserve here which states:

“Federation of Indian Chambers of Commerce and Industry (FICCI) has drafted the Indianised version of the Bayh-dole Act by the name of ‘Public Funded Research and Development (Protection, Utilisation and Regulation of Intellectual Property) Bill, 2007’.”

It’s rather paradoxical that one would profess to “organize this debate so that awareness about the utility of the Bill could be generated and misconceptions removed” and allegedly “involve all the stakeholders” when the Bill itself has not been made public! It happens only in India.

What makes this continuing secrecy around the Bill even more puzzling is the fact that other legislative efforts by the DST have all been made publicly available at initial stages. Consider the Medical Devices Regulation Bill and more recently, the Innovation Act, both of which were put up on the DST website as soon as a draft was ready. As to why the same transparency norms cannot be followed in the case of the Indian Bayh Dole Bill is unfathomable. Who is the government afraid of here?

Perhaps this bill ought to be relabeled as the “Indian Publicly Funded Secret Bill”. And the recent Innovation Act with extensive provisions on “trade secrecy” ought to be expanded to include “secrecy” measures by the Government in drafting legislations of public import!

It is a real shame that even depsite myriad calls for transparency from the media and several stakeholders, the govt and FICCI continue to unabashedly keep this important piece of legislative effort a secret. And we are supposed to be the world’s largest democracy!

However, we are happy to note that the Minister is now “re-examining” the Bill to address certain concerns that have been raised. Unfortunately, the scope of review appears rather limited to nothing more than a mere dotting of T’s and I’s.

See this latest update from Soma Das of the Financial Express who notes:

“The government has decided to reconsider the aspects of the Bill that seeks to enable the universities and research institutions to patent government-funded research, before it is tabled in the Parliament….

Although the Bill figured on the agenda of the Cabinet last Thursday, Sibal preferred a thorough review of the policy framework before a final decision on the issue is taken. Paying heed to the concerns that have been raised in several quarters and refuting claims that the Bill has not been made available for public debate, Sibal said that the bill will discussed thoroughly in public domain before it turns into an Act.

There are also other provisions envisaged in the Bill that led the experts, industry and NGOs to protest…..Shamnad Basheer of Oxford IP research centre feels in the current draft an inventor has no say in whether or not his/her invention is best left in the public domain. Instead, it is for the government-funding agency to decide the fate of the technology in question. He adds the Bill assumes that industry will not invest in university research unless such research is patented and then exclusively licensed to industry. However, in a few cases, particularly when the technologies stand for larger public good deserve wider dissemination, the Bill needs to encourage non-exclusive licensing.”

We are indeed happy that the Minister has withdrawn the Indian Bayh Dole bill to address certain concerns. However, we urge the Hon’ble Minister to use this occasion to promote transparency by publishing the Bill. And to engage the public more constructively by utilising their collective wisdom to arrive at a more evolved version of a bill.

Shamnad Basheer

Shamnad Basheer

Prof. (Dr.) Shamnad Basheer founded SpicyIP in 2005. He's 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 Prof. Basheer joined Anand 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. Later, he was the Honorary Research Chair of IP Law at Nirma University and also a visiting professor of law at the National Law School (NLS), Bangalore. Prof. Basheer has published widely and his articles have won awards, including those instituted by ATRIP, the Stanford Technology Law Review and CREATe. He was consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also served on several government committees.

2 comments.

  1. AvatarR S PRAVEEN RAJ

    The Preamble of the Right to Information Act passed by Indian Parliament in 2005 says – “Democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed”

    Is that the present Manmohan Government and its science & Technology Minister against democratism and transparency of information ?

    Reply
  2. AvatarLalit Ambastha

    I appreciate and agree with your comment on the way our Administration and executives work in so called democratic Country.

    I was very much there in the seminar on October 16, 2008, organized by FICCI. There were around 50 people from academia, knowledge commission and industries. We raised the same question to Mr. Kapil Sibbal regarding the availability of R&D bill. And, dutifully, Mr. Sibbal had promised us to make the document available on the ministry website by October 17, 2008, but as you know, it is still awaited by many. There was no debate as such at all on the drafted [secret] bill. The discussion was rather oriented towards CSIR’s contributions towards the nation and Ministry of Science & Technology. The excerpts which were provided by SpicyIP were the only part of small talk on table and that too so as to tell what the Bill is all about.

    Many guests present there were not aware about the patent system, marketing rights etc., let alone the upcoming role of this R&D Bill.

    This is after all…. our India !!

    Reply

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