This bill will, in all likelihood, be submitted to a Parliamentary standing committee, tasked with a careful scrutiny of the bill. This committee will prepare a report, based on views of stakeholdea and members of the public. It is likely that the Committee will take about 4-6 months to hear parties, receive submissions etc and submit their report to the Parliament. One can expect considerable politicking around this bill and the standing Committee will have to be prepared for a great number of submissions that span several ideological spectra.
Ben Butkus of Biotech Transfer Week has a very well researched and interesting article on this bill, parts of which I reproduce below:
As India Mulls Bill Modeled on Bayh-Dole, Critics Claim It May Stifle Innovation
By Ben Butkus
A controversial intellectual property-ownership bill modeled on the US Bayh-Dole Act has been approved by India’s Union Cabinet, the nation’s highest executive authority, and is currently being considered in Indian Parliament, multiple news sources reported last week.
The bill would alter existing IP rules by allowing academic institutions, not the federal government, to patent publicly funded research, and would reward institutions and inventors with a share of royalties or licensing fees from resulting commercial products.
However, it was approved by the Union cabinet without an official draft having been released or publicly debated, according to reports, which spurred heavy criticism by scholars both in India and in the US.
For instance, the US student-run watchdog group Universities Allied for Essential Medicines last week warned that the legislation fails to provide safeguards to guide the direction of publicly funded research, and that its emphasis on commercialization may ultimately stifle innovation and impede access to medicines in India and other developing nations.
Further details of the bill, entitled the “Protection and Utilisation of Public Funded Intellectual Property Bill 2008,” or the “Indian IP Bill,” are unavailable as the Indian government has not publicly released an official version of it.
Shamnad Basheer, an associate at New Delhi’s Oxford Intellectual Property Research Center who has been following the bill’s progression on his blog SpicyIP, told BTW in an e-mail this week that the bill was likely first prepared in 2005 by the Indian Department of Science and Technology with the assistance of an IP law firm.
Currently in India, the federal government controls the rights to IP developed at academic or research institutions with the support of public funds. The bill would require the inventing institution to be assigned these rights, much like the Bayh-Dole Act does in the US.
In addition, the bill would require that any royalties generated from licensing the IP or selling products based on the invention be split equally among the inventing scientist or scientists; the academic institution that employs them; and Indian funding agencies, according to the reports.
Late last month, the Hindu Business Times reported that the bill was approved at a meeting of the Union Cabinet chaired by Indian Prime Minister Manmohan Singh, and is expected to be introduced into Indian Parliament soon.
Basheer told BTW that the bill will need to clear both houses of India’s Parliament, known as Rajya Sabha and Lok Sabha, before it becomes law. He did not provide an estimated time frame for the bill’s consideration by Parliament, but said that he believes it will pass — though not in its current form. He did not elaborate.
Representatives from the Indian Union Cabinet or Parliament could not be reached for comment.
An editorial published earlier this month by LiveMint.com, an online version of the Indian business newspaper The Mint, also confirmed that the bill will be reviewed by Parliament without an official draft having been released and publicly debated.
If the bill is significantly altered or shelved, it would be at the behest of several academic groups and media outlets in India and the US that have seen portions of the bill and claim that, as written, it could stifle innovation and impede access to healthcare innovations in developing nations.
In an editorial published on Nov. 1, The Mint intoned the latter argument by writing that “the sad significance” of the bill moving as far as it has without public review 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.”
According to Basheer, “the key advantage [of the bill] is that it provides more clarity on title and ownership to IP when government money is used. The key disadvantage is that it doesn’t protect public interest as much as it ought to have … and doesn’t vest enough discretion in the hands of the inventor.”
Basheer did not elaborate, but on SpicyIP and in an article published on SciDev.net, he noted that a laudable aspect of bill is that, unlike the Bayh-Dole Act, which leaves royalty-sharing policies to the academic institutions, the Indian IP Act would ensure that inventors receive at least 30 percent of any royalties stemming from licensing.
“But despite this guarantee of a share in the profits, individuals are left with little option of determining how their invention can be used,” Basheer wrote in the SciDev.net article. “For example, even if researchers wish to place their invention in the public domain or license it non-exclusively, they cannot do so — rather, the bill puts this discretionary power in the university’s [tech-transfer office].”
The Mint editorial agreed, writing that “the scientist will have no say here. So, [the Indian government] 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.”