Innovation Patent

Pro-Patent vs Anti-Patent: Busting a Baneful Box!


out of the box

An earlier post of mine got the goat of one of our readers, who unleashed a rather caustic comment (in the comments section of the blog) as below:

“I wonder what this is all about? When there are several challenges filed against a pending patent application, many of them by Public Interest Groups (which one assumes represent the general public and not any vested groups), where is the question of closed proceedings and secrecy? Why are your posts increasingly becoming heavily anti patent? I can understand public interest but this is stretching it too far.

This was the first time one ever saw activist groups, heavily laced with placards and slogans, camping inside the Patent Office. What next? Are you clamouring for a full drama within the cramped hearing room of the Patent Office where the serious technical arguments of an important contentious proceeding are throttled by slogans whilst the proceedings are on? I mean what is this about? Let the due process of law be followed and if there are any grievances on merit owing to a perverse order of the Controller, let the higher authorities decide. Let’s not be too judgmental on everything.

I hope you aren’t suggesting that in the interest of ‘transparency’, the Patent Office should start holding hearings in open grounds so that members of the “public” can become spectators. Totally absurd and skewed post I must say, Shamnad.”

I responded as below:

“Unfortunately, whether you like it or not, that is the law of the land. These are public proceedings to which the public are entitled. And if our courts can suffer this public “engagement” and be transparent about it (permitting all and sundry to attend), why shield our patent office from this?

You mention “due process”. Due process is not an artificial construct. It is to be found in the law/legal norms. And here, the statute/rules make clear that these are public proceedings. So if people want to come inside and witness proceedings (without disrupting them), they are entitled to. Transparent proceedings lie at the core of the age old maxim: justice must be seen to be done. What does the patent office suffer by throwing this open? Lets keep the debate civil please. Its easy to hurl ad-hominem invectives; and I can reciprocate in kind. But that will leave us both the poorer for it..and do absolutely nothing to further the substantive points in the debate.

I don’t believe in this pro-patent vs anti-patent false dichotomy. What is pro-patent? Someone who clamours for 100 year patent protection? Or an infinite period of protection. Even the most ardent patent fans would never advocate that. Lets speak the language of pro innovation vs anti-innovation. If the patent furthers innovation, lets support it. Not otherwise. And that precisely is what this opposition is about.”

Pro vs Anti: Patent vs Innovation

The point of reproducing the persiflage above is to point to a rather painful tendency to paint the innovation landscape into a rigid “black vs white” box. A box that is routinely shattered by the best of innovators/creators. Think Da Vinci or any of the other creative greats, and you will see that they made it a habit of hammering these boxes/barriers/silos. Often transversing multiple domains of enquiry and knowledge to fashion new ways of making and thinking. And yet we continue to muddle along with an IP regime that has all but been cast in stone–for the last couple of centuries! As I note in this piece on alternative innovation incentives (published in the Intellectual Property Journal last year and now uploaded on SSRN):

“It is rather paradoxical that the very same regimes that allegedly incentivize innovation have themselves been shielded from innovative experimentation.”

A large part of the problem is the proliferation of IP formalism: where IP is treated as an end in itself, and not merely as one of the many tools available to potentially incentivise innovation. As Professor Jack Balkin put it colourfully some years ago at the second A2K conference at Yale:

Intellectual property should serve the functions of knowledge and information policy– information production and diffusion– and democratic culture. And not the other way around. A2K (Access to Knowledge) is the Boss. IP is just one of the employees. The nations of the world need to know who is the boss.”

Indeed, IP has been bossing around the Innovation landscape for way too long. It needs to be put in its place!

ps: Image from here

 

Shamnad Basheer

Shamnad Basheer

Prof (Dr) Shamnad Basheer founded SpicyIP in 2005. He is currently the Honorary Research Chair of IP Law at Nirma University and a visiting professor of law at the National Law School (NLS), Bangalore. He is 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 Professor Basheer joinedAnand 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. Prof Basheer has published widely and his articles have won awards, including those instituted by ATRIP and the Stanford Technology Law Review. He is consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also serves on several government committees.

One comment.

  1. AvatarM G KODANDARAM

    I totally agree with Mr.Shamnad’S view that patent applications should be considered for eligibility by making proceedings concerned, transparent and open to public. Fair justice is not possible by any decision made in secrecy. When contents of inventions seeking patent are in the open, the patentability to be determined should not be a closed affair. Every quasi-judicial proceeding should provide equal opportunity to all concerned and decisions should be through well reasoned speaking orders. Unless the tenets of natural justice are followed, no fair justice could be rendered.

    Reply

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