Indian Bayh Dole Finally Goes Public: Access to Innovation?

PRS, an independent research initiative that aims to strengthen the legislative debate by making it better informed, more transparent and participatory, has published the final version of the Indian “Bayh Dole” bill that was introduced in the Rajya Sabha yesterday.

PRS is the brainchild of a visionary, CV Madhukar, who happens to be an Echoing Green Fellow and an Ashoka Fellow. For our previous posts on this controversial bill, please see here.

In particular, compare this with the original version of the Bill that we posted here. I haven’t undertaken a detailed comparison, but the compulsory licensing provisions seem to have been deleted from the old version. Not too surprising, since, as we opined in an earlier post, in any case, compulsory licensing provisons under the Patents Act would apply to patents arising from the Indian Bayh Dole Act as well. We noted in particular that:

“The bill provides for compulsory licenses and stipulates that the same grounds available under the patents act applies to inventions under the bill as well. This is not really saying much, as even without this specific position, that would have been the case. Patents on inventions coming out of government funding are treated like any other patent under the Patents Act and are subject to compulsory licenses. Given that these are patents arising out of government funding, the bill should have explored the opportunity of subjecting them to wider compulsory licensing norms than those that currently exist under the patents act.”

Sadly, the bill does very little by way of ensuring that there are either wider compulsory licesning norms or that the “pubnlc interest” is adequately protected, given that these inventions come out of tax payer money .

Strangely enough, the statement of objects and reasons that accompanies the text of the Bill states:

“The ultimate objective, however, is to ensure access to such innovation by all stakeholders for public good. “

Nothing could be further than the truth! There are absolutely no safeguards to ensure access to innovations, particularly, platform technologies and technologies that are in some way critical to the public. This is nothing short of political posturing and we must collectively expose this hollow rhetoric!

As mentioned in the last post, it is likely that this bill will go to a Joint Parliamentary Commttee. Let’s use that occasion to voice our opinion and let the government know that mere talk about “access to innovations” is not good enough. We will not sit back and suffer what appears to be the capturing of such an important policy initiative by vested interests, that have been immensely succesful in propelling the passage of this Bill in so secretive a manner in the world’s largest democracy.

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.

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