Indian "Bayh Dole" Bill Clears Cabinet: But Still Remains a Secret

A couple of days back, the Hindu Business Line reported that the “Union Cabinet at a meeting chaired by Prime Minister Dr Mannmohan Singh …approved the Protection and Utilisation of Public Funded Intellectual Property Bill 2008”.

The Mint responded to this news in a very punchy edit, reiterating concerns of “secrecy” and lack of sufficient “public interest” safeguards:

Not in Public Interest

“It is quite curious. Just a week ago, science and technology minister Kapil Sibal acknowledged media and experts’ concerns and promised to review the flaws in a proposed new law. Yet, a cryptic official press release on Friday said the Union cabinet gave its approval to enact that very legislation —the public-funded R&D Bill, popularly known as the Indian Bayh Dole Act after its equally controversial US counterpart.

So, the Bill is set to be tabled in Parliament without the official draft having been released and publicly debated. The sad significance of this stems from two factors. First, it is all about patenting output of research financed by public money. Second, it is strictly geared to exclusive licensing for commercial use of what could be crucial innovations for public health. The scientist will have no say here. So, CSIR would not have the power to repeat past decisions such as not patenting an antimalarial compound that could make a low-priced drug available. As we’ve argued before, this Bill needs to encourage open source and non-exclusive licensing, too. Yes, minister?”

A group of reputed US IP professors have come up with a very thoughtful piece highlighting why Bayh Dole style legislations may be bad for developing countries. Interestingly, Professor Arti Rai, one of the key IP advisors to President elect Barrack Obama is a co-author.

They note in particular that developing countries ought not to buy into the romanticised version of Bayh Dole doing the rounds. Rather, they ought to look closely at the numbers to understand that the impact of Bayh Dole was fairly limited:

“Although universities can and do patent much more in the post-BD era than they did previously, neither overall trends in post-BD patenting and licensing nor individual case studies of commercialized technologies show that BD facilitated technology transfer and commercialization. Empirical research suggests that among the few academic patents and licenses that resulted in commercial products, a significant share (including some of the most prominent revenue generators) could have been effectively transferred by being placed in the public domain or licensed nonexclusively”.

The paper however does concede that:

“Since the passage of the Act in 1980, US academic patenting, licensing, and associated revenues have steadily increased. BD [Bayh Dole] accelerated this growth by clarifying ownership rules, by making these activities bureaucratically easier to administer, and by changing norms toward patenting and licensing at universities.”

The paper cautions that if developing countries such as India wish to have Bayh Dole type legislations, they must incorporate a number of safeguards. We’ve already dealt wtih some of these safeguards (such as non exclusive licensing) in our previous posts. However, one safeguard that caught my eye and which is very relevant, given the propensity of our government to keep this bill a “secret” even at this stage is the following:

“The legislation should ensure transparency in the patenting and licensing of publicly funded research. Public accountability should follow public funding. Institutions that engage in patenting and licensing should be required to report or make public all information that is necessary to determine whether they are reasonably serving the public interest. Such information may include the number of patents and licenses obtained, the funds expended on patenting and licensing activities, licensing revenues, and the key terms (e.g., exclusive or nonexclusive, humanitarian access, research exemption, definition of market segmentation or field of use, performance milestones, and march-in rights) of licenses. The lack of a transparency mandate is a key flaw of the BD Act that should not be replicated.”

Is the Indian Government listening?