It’s been two weeks since the Indian electorate, defying all poll predictions, voted the Congress led UPA Government back into power (minus the comrades from the Left parties). The resounding victory of the UPA Government is widely seen as the vindication of the UPA’s aam-admi (common man) policies such as the NREGA and the agricultural loan waiver.
Since PM Manmohan Singh’s government has proposed a 100 day action plan for various ministries it is but obvious that we must chip in and propose a revised IP policy which extends the concept of intellectual property to stimulate innovation amongst even the aam admi be it the grass-root innovator or various knowledge rich, resource poor indigenous communities around the country. As you may remember Shamnad in one of his earlier posts urged the creation of more informal IP norms to extend the benefits of IP to even the informal economy. There is no better time to push for such a policy especially since the aam admi is back on the agenda.
The two legislations that I had in mind for this purpose are Firstly a Utility Model Protection System and Secondly a sui generis system for protection of traditional knowledge.
A Utility Model Protection System: One of the drawbacks of the current Patents Act in India is the fact that it lays down a very time-consuming, expensive process to secure patent protection. Additionally the standard of inventiveness under this Statute is considerably higher than the level of innovation that is likely to be demonstrated by a grass-root innovator. Therefore in all likelihood it will be quite difficult for a grass root innovator to secure patent protection for his invention under the patent system. This is to the detriment of only the grass-root innovator but also the economy as a whole.
As demonstrated by the National Innovation Foundation and the Honey Bee Foundation there is immense potential for grass-root innovation in India. In fact the Honey Bee Foundation has an exhaustive directory of grass root innovations in India. As evidenced by the vast amount of literature published on its website there is a desperate need for a Utility Model Protection System in India.
The chief advantages of a Utility Model Protection System (aka Petty Patent System) is that it will be cheaper and easier to get protection under such a system since there will no exhaustive examination of the claimed invention. An exhaustive examination of the invention will take place only if infringement has taken place. Additionally the threshold for protection under this system will be significantly lower. Obviously even the term of protection under such a system will be significantly lower. As a sum of all these advantages the grass root innovator will be in a better position to secure protection for his Intellectual Property. For more on utility model protection system please download this excellent and exhaustive paper on the topic by Dr. Kardam, Assistant Controller of Patents, India Patent Office.
A sui generis TK legislation: From what little I’ve heard a sui generis Traditional Knowledge legislation was drafted and doing the rounds somewhere in India but never saw the light of day. There seems to be a very romanticized notion of traditional knowledge i.e. something which existed in the yesteryears which does not have to be protected. However even Traditional Knowledge needs to be constantly replenished. There is no denying that there is scope for furthering innovation and creativity even in the field of traditional knowledge. In order to replenish the existing traditional knowledge it is necessary to provide the holders of such knowledge with property rights so as to give them an incentive to innovate further. Currently under the Patents Act traditional knowledge is not patentable. One way of getting around this is to have a legislation which focuses on the protection of only traditional knowledge. Several other countries have framed sui generis legislations for protections of traditional knowledge system and these can be viewed on the website of WIPO.
The Biological Diversity Act attempts to provide some kind of incentive to communities which have held traditional knowledge of their environment. This legislation however goes about it the wrong way. It has absolutely no requirement of Prior Informed Consent i.e. the community holding the knowledge has no right to oppose commercialization and utilization of their knowledge. Instead it is the National Biological Authority which decides the terms of commercialization. To an extent this amounts to nationalization of the traditional knowledge held by these communities. It is indeed quite surprising that such a legislation was passed at a time when the rest of the economy was being liberated from the shackles of government control. Regardless to say there is definitely a requirement to empower the holders of traditional knowledge and give them a greater say in controlling the terms on which their knowledge maybe disseminated.
Hopefully the Government of India will consider an IP policy for the aam admi.