Indian "Bayh Dole" Amendments: A Historic Moment in Indian IP Policy Making

Ch Unni of the Mint reports on a rather historic moment for IP policy making in this country.

Pursuant to the public outcry against the Indian Bayh Dole bill, a Parliamentary standing committee headed by Mr Subbarami Reddy requested the government to undertake wider consultations on the bill, take into account the various objections of stakeholders and come back with a revised version of the bill.

After consultations with a variety of stakeholders including civil society activists, R&D Institutions and academics, the government made 52 amendments to the original version that had been peddled in utmost secrecy. Resulting in a much more evolved version, incorporating as it does several public interest safeguards. More importantly, the structure of the bill has moved from a penal one to a facilitative one and the problematic inclusion of other forms of IP such as copyrights, trademarks and GI’s have been dropped from the scope of the Bill.

Unni points out the key changes in the latest version of the bill in his article (extracted below).

1. The public funded institution (PFI) does not have to mandatorily disclose and patent every invention. It has to only disclose such invention to the government that it wishes to so patent.

2. Penal provisions wherein the PFI that fails to comply loses out on future public funding and has to also pay back 50% of its grant back to the government has been removed.

3. The government has the right to “use” any invention patented by a public funded institution. It also has the right to issue non-exclusive licenses to any third party for the use of the public funded patent in the public interest.

4. The bill now covers only patents and plant varieties. Designs, copyright., trademarks and GI’s have been removed.

5. The public funded institution has to disclose all its patents, and licensing and commercialization details on its website.

6. Public funded patents cannot be assigned without the permission of the government.

7. Exclusive licenses can be granted only when the licensee manufactures the patented product substantially in India.

This new version of the Bill will now be finalised by the Standing Committee of the Parliament. The government then has the option of re-introducing the bill to Parliament on these recommended lines or ignore the findings of the Standing Committee altogether!

Given that the 52 odd amendments were proposed by the government itself, the most likely route is that it will accept the findings of the Standing Committee and reintroduce the bill on these lines. Given the injection of more public interest provisions and the vesting of considerably more flexibility and discretion in favour of scientists and public funded institutions, I personally don’t see any problems for a smooth sailing of the Bill through Parliament.

Although I believe that the case for such a law (at least at this juncture) is rather weak, the government needs to be commended for undertaking consultations towards the end and coming up with a more evolved version of what it initially proposed. Further, one must appreciate that the key advantage of this bill is that it will help us “regulate” public funded patenting activities for the first time. But for this bill, such activities would have been on par with private patenting activities and under the regulatory radar, so to speak. This is our key thesis in an article (co-authored with Shouvik Guha) that will soon be published by the Columbia Journal of Asian law.

As I state in my interview to Unni:

“This was a truly revolutionary process in law making and I was pleasantly surprised at the level of openness and consultation. Never before in IP law making history has there been such a meaningful consultative process, where a Parliamentary standing committee took the pains to understand the nuances of a technical legislation from a wide array of stakeholders. Indeed, many amendments have already been executed by the government to the original text to make the current version of the bill more “public interest” friendly.

While the bill was initiated and peddled through in the most opaque manner, the level of consultation by the government towards the fag end of the process was truly inspiring. Enabling all of us to have more faith in the working of the world’s largest democracy!”

For a complete version of Unni’s succinct piece, see here. For his previous piece reflecting on an earlier sitting of the Parliamentary standing committee, see here. Before I sign off, let me leave you with an issue that’s been tickling me: isn’t it rather paradoxical that standing committees have “sittings”?