Innovation Patent

The New IPR Policy: A Painful Paradox!


CreativeSwaraj recently announced the piloting of a new Indian IPR policy, found here on the DIPP website.

In this Hindu editorial, I take issue with a fundamental flaw permeating this policy, namely the assumption that IP is an end in itself and we must notch up more IP registrations for the mere sake of it. Given this fundamental flaw, the policy makes a number of empirically unsound assertions, such as a near compulsion for publicly funded scientists to register all their new discoveries as IP.

Whilst acknowledging some of its positives (such as expedited examination, an open IP exchange, and the infusion of CSR funds into open innovation), I note that the policy unduly skews in favour of a reductionist and unidimensional IP/innovation frame, missing the wood for the trees. Something that we (in our capacity as the first IP think tank [which went on to be unceremoniously disbanded without notice]) had cautioned against. For a history of this sordid saga, see our post here

For readers in the know, you will appreciate that some of the dogmatic proposals critiqued in the piece below were inserted by the government in its final version (and may not necessarily be found in the relatively more progressive policy by the think tank). My critique is directed at the final government policy as published on the DIPP website.

For those interested, I reproduce the Hindu editorial below.

“Intellectual property (IP) regimes suffer a classic paradox. While they attempt to encourage innovation and creativity, they have themselves been shielded from innovation experimentation. For some years now, India has been attempting to break this mould and craft a regime to suit its own distinctive set of concerns. Section 3(d) of the Patents Act, 1970, was a bold attempt in this direction, aimed at eradicating “evergreen” drug patents.

Sadly, this distinct attempt at diversifying a problematic global IP script is slowly yielding to larger market forces. It is reinforcing a realpolitik predicated to a large extent on various campaign contributions flooding the coffers of candidates striving to lead the most powerful democracy of the world, namely the U.S.

Enter India’s recently unleashed IP policy into this new political fray — one that, at best, repeats ad nauseam the various platitudinous phrases around intellectual property. That it is meant to foster innovation and creativity. That it must be balanced against public interest and public health. And that the Agreement on Trade-Related Aspects of Intellectual Property Rights or TRIPS is the benchmark and that India is compliant with relevant international norms.

And yet, at worst, the policy represents an extreme excess in terms of its one-sided view of IP as an end in itself. And therein lies the greatest flaw. The policy fails to situate IP within the larger context of the innovation ecosystem, refusing to acknowledge that while IP could accelerate innovation in certain technology sectors, it impedes innovation in others. This is a truth touted not only by those labelled as left-liberal ideologues, but powerful industry giants facing the brunt of a promiscuous patent regime — renowned giants such as Tesla’s Elon Musk who have either eschewed patents or dedicated them to the public domain.

And yet the entire edifice of the present IP policy is built on this flawed foundation equating more IP with more innovation. The policy sounds almost militant when it proposes that despite our ancient “laudable” heritage where knowledge was freely and extensively shared, we must now make amends and convert each piece of our knowledge into an IP asset. This flawed frame results in a number of problematic assertions in the text of the policy.

It advocates that publicly funded scientists and professors must compulsorily convert all of their discoveries into IP assets, much before they have even written this up and published it in reputed science journals — and that their promotions be predicated on the number of IP applications made. A hark back to the past would reveal that visionary scientists such as Benjamin Franklin and, closer home, our own J.C. Bose shunned patents owing to their potential to curb the free flow of knowledge. We must encourage a plurality of approaches when it comes to IP and innovation; our scientists should be free to take this call on whether or not they wish to register IP. Doing so for the mere sake of it is stupid, quite apart from the fact that on an empirical cost-benefit analysis, most U.S. universities lose more money on IP registrations than they make through IP royalties.

The policy needs to be commended for taking note of our “informal” (rural) economy and the need to encourage the prolific creativity found within. Unfortunately, far from understanding the drivers of creativity and the modes of appropriation/sharing in this “shadow” economy, the policy leans towards the superimposition of a formal IP framework on this marginalised sector.

Lastly, much in line with its powerful IP rights-centric approach, the policy recommends that the unauthorised copying of movies be criminalised. No doubt Bollywood requires some protection from pirates, but criminalising what is essentially a civil wrong (much like defamation) is tantamount to killing an ant with an elephant gun, not to mention the potential for abuse at the hands of our police.

A short-sighted policy

Indeed, the present policy could well be the classic poster child for IP formalism. We had expressed caution against such a reductionist view in the first draft of the IP policy formulated by a think tank (of which I was part). Unfortunately the government unceremoniously disbanded our committee after we submitted the policy and disregarded our exhortation to conceive of the policy as a more broad-based and holistic Innovation Policy.

Granted, India is lagging on several counts. When compared with its glorious past boasting pioneering innovations from the likes of Sushruta (the father of modern surgery) and Nagarjuna (metallurgy), India has hardly had any noticeable technological marvels in its recent history.

But is the problem with the country’s IP regime? Or does the malaise lie elsewhere? Could it be cultural, where parents put undue pressure on their children for that fat salaried job, as opposed to a risky entrepreneurial venture? The policy advocates that IP be taught in schools and colleges. But why? What we need in schools and colleges are courses on creativity, not on IP. Even if we lack resources to impart specific courses on creativity, let’s at least ensure that we don’t stand in the way of a natural flowering of creativity in our children. A truth tellingly captured by Mark Twain’s sentiment: “I have never let my schooling interfere with my education.” And one that is now being controversially tested by Peter Thiel (PayPal’s legendary founder) who pays college students to drop out of college and run risky ventures.

Unfortunately, notwithstanding some of its praiseworthy proposals, such as expedited examination, an IP exchange and the proposal to encourage Corporate Social Responsibility funds into open innovation, this much-awaited IP policy is terribly short-sighted.

Many decades ago, a two-member committee (headed by Justice N.R. Ayyangar) conceptualised a patent policy that formed the blueprint of the present patent regime. It was one that triggered the remarkable growth of our pharmaceutical industry, enabling it to earn the moniker “pharmacy of the world”. It was a policy that was thoroughly researched, empirically validated and elegantly written in a little over a year.

Compare and contrast that with the present policy that took more than two years and two separate think thanks to come to fruition. One beset with banality, dogged by dogma, rife with ridiculous assertions, lacking in any credible empirical support, and written in language that, at best, mimics a masterful memo from one babu to another.

I began with a paradox. Let me end with one. While proudly proclaiming the slogan “Creative India, Innovative India”, the policy states: “There is an abundance of creative and innovative energies flowing in India.” A sheer pity that none of that abundant creative energy made it to this policy document, rendering it rather dreary.”

ps: Image from here

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.

11 comments.

  1. AvatarSusan Kling Finston

    Iin fact Dr. Amar Bose neither eschewed patents nor litigation to enforce his patents and/or other IP, and otherwise to advance his business interests:

    “Bose has been described by audio industry professionals as a litigious company.[59] [60] [61] In 1981 Bose unsuccessfully sued the magazine Consumer Reports for libel. Consumer Reports reported in a review that the sound from the system that they reviewed “tended to wander about the room.” Initially, the Federal District Court found that Consumer Reports “had published the false statement with knowledge that it was false or with reckless disregard of its truth or falsity” when it changed what the original reviewer wrote about the speakers in his pre-publication draft, that the sound tended to wander “along the wall.” The Court of Appeals then reversed the trial court’s ruling on liability, and the United States Supreme Court affirmed in a 6–3 vote in the case Bose Corp. v. Consumers Union of United States, Inc., finding that the statement was made without actual malice, and therefore there was no libel.[62] [63] [64] In an interview decades later Bose said “We had 37 people at the time. I gathered them in one room and said, ‘If we don’t do anything, it will probably kill us. But if we do something, we have no credibility since we’re just a small company and we can’t do anything against this.’ I said I think we oughtta do something. I wanted a vote. It was unanimous in favor of taking action. Little did we know it would take 14 years to go through the legal process.”[14]

    Bose sued Thiel Audio in the early 1990s to stop the audiophile loudspeaker maker from using “.2” (point two) at the end of its product model “CS2.2”. To comply with Bose’s trademark of “.2” associated with the Bose Model 2.2 product, Thiel changed their model name to “CS2 2”, substituting a space for the decimal point.[65] Bose did not trademark “.3” so in 1997 when Thiel introduced the next model in the series, they named it the “Thiel 2.3”, advertising “the return of the decimal point.”[66]

    In 1996, Bose sued two subsidiaries of Harman International Industries—JBL and Infinity Systems—for violating a Bose patent on elliptical tuning ports on some loudspeaker products.[59] In 2000, the court determined that Harman was to cease using elliptical ports in its products, and Harman was to pay Bose $5.7 million in court costs.[59] Harman stopped using the disputed port design but appealed the financial decision. At the end of 2002 the earlier judgment was upheld but by this time Bose’s court expenses had risen to $8 million, all to be paid by Harman.[67]

    Bose was successful in blocking QSC Audio Products from trademarking the term “PowerWave” in connection with a certain QSC amplifier technology. In 2002, a court decided that the “Wave” trademark was worthy of greater protection because it was well-known on its own, even beyond its association with Bose.[68]

    In 2003, Bose sued the non-profit electronics trade organization CEDIA for use of the “Electronic Lifestyles” trademark[69] which CEDIA had been using since 1997. Bose argued that the trademark interfered with its own “Lifestyle” trademark.[70] Bose had previously sued to protect its “Lifestyle” trademark beginning in 1996 with a success against Motorola and continuing with settlements against New England Stereo, Lifestyle Technologies, Optoma and AMX.[71] In May 2007, CEDIA won the lawsuit after the court determined Bose to be guilty of laches (unreasonable delays), and that Bose’s assertions of fraud and likelihood of confusion were without merit.[72] CEDIA was criticized for spending nearly $1 million of its member’s money on the lawsuit, and Bose was criticized for “unsportsmanlike action against its own trade association”, according to Julie Jacobson of CE Pro magazine.[71]

    In July 2014, Bose sued Beats Electronics for patent infringement, alleging that its “Studio” headphones line incorporated Bose noise cancellation technology.[73] [74] Bose and Apple had collaborated on the SoundDock for iPod music players in 2004, then in May 2014 Beats was bought by Apple, bringing Bose and Apple into direct competition in the headphones market. Bose headphones were once the foremost brand offered in Apple stores, but Beats headphones outnumbered Bose headphones in Apple stores at the time of the lawsuit, and Beats had captured 60% of the market while Bose held 25%.[75] In October 2014, Bose dropped the lawsuit, as Bose and Beats settled out of court without revealing the terms.[76] [77] [78] Apple removed all Bose products from its Apple stores a few days after the lawsuit was settled,[79] but two months later Bose products were returned to shelves.[80]”
    Source: http://everything.explained.today/Bose_Corporation/

    For list of patents see:
    http://products.bose.com/static/patents/index.html

    See also: http://www.analogplanet.com/content/dr-amar-bose-dead-83#MCGy0S1mjOkX7uWG.97

    Reply
    1. Shamnad BasheerShamnad Basheer Post author

      Indeed! How could I have missed this? That there can only be one “Bose” in all of India. That JC Bose and Amar Gopal Bose are but the same person! Such an uncommon surname. Sigh! On a more serious note, you can read about JC Bose here. https://en.wikipedia.org/wiki/Jagadish_Chandra_Bose. And Amar Bose (the person whose wonderful patent fights you so elaborately referenced in your comment), can be found here. https://en.wikipedia.org/wiki/Amar_Bose. Unfortunately, even Google demands a fair bit of discretion when we search.

      Reply
      1. AvatarSusan Kling Finston

        Thank you Shamnad, and apologies for confusion – so we have one prominent Bose who eschewed patents and another who based his success on the patent system! In fact there is a third famous Bose – I had thought that the Bose scholarship was related to either JC or Amar Bose and it is yet another: http://iusstf.org/story/53-74-For-Indian-Students.html As a physicist, Dr. Satyendra Nath Bose’s work with Albert Einstein was foundational to the famous Higgs -Boson “God-particle” http://www.biography.com/people/satyendra-nath-bose-20965455 Obviously I have a lot to learn about all three!!

        Reply
  2. AvatarAnonymous

    “The policy advocates that IP be taught in schools and colleges. But why? What we need in schools and colleges are courses on creativity, not on IP. ”

    With due respect, herein lies the paradox. Creativity cannot be an end in itself, and if we believe it to be so, then the entire efforts behind protecting creativity and innovation through IPR are rendered futile. The relationship between creativity and creation of IP looks to me like that of basic and applied sciences. Basic scientific research is great work, but we cannot deny the importance of applied research in solving real world issues. Surely creativity precedes IP, but it could also be that the lure of owning an IP asset motivates a left brained person to get it “right”.

    Reply
    1. AvatarAmit

      The major role of every policy to keep up the interests of all stakeholders – industry, academia and common public. In country of 1.2 billion people when hardly 1% of people aware of patents and intellectual property, primary objective of every policy should be creating awareness. The proposed policy and government efforts are doing important work in this direction. When no Indian Universities / Research Institution under 50 in world research index or any other parameters, its seems baseless to have discussion on knowledge flow vs encouraging public funded institutions to file patents. In my 20 years of academic / research career I never witness any scientific article by Indian Scientist working in a public funded institution (except those working in US Universities) appeared in high impact journals or received higher citations. The policy document is simple and written in a manner that appeal to broader audience. (compare to your article where you select worlds to show your literature acumen)

      Reply
  3. AvatarAnonymous

    The major role of every policy to keep up the interests of all stakeholders – industry, academia and common public. In country of 1.2 billion people when hardly 1% of people aware of patents and intellectual property, primary objective of every policy should be creating awareness. The proposed policy and government efforts are doing important work in this direction. When no Indian Universities / Research Institution under 50 in world research index or any other parameters, its seems baseless to have discussion on knowledge flow vs encouraging public funded institutions to file patents. In my 20 years of academic / research career I never witness any scientific article by Indian Scientist working in a public funded institution (except those working in US Universities) appeared in high impact journals or received higher citations. The policy document is simple and written in a manner that appeal to broader audience. (compare to your article where you select worlds to show your literature acumen)

    Reply
  4. AvatarAnonymous2

    “our ancient “laudable” heritage where knowledge was freely and extensively shared, we must now make amends and convert each piece of our knowledge into an IP asset”.

    I hope you know that patents are issued only for new disclosure/knowledge. I hope you are aware that patents cannot be issued for publicly available knowledge. Patents are issued in return for Inventor to disclose his/her invention to the society as opposed to hiding it in secret. So, patents enable sharing knowledge and are in very much in line with the heritage of India to share knowledge. So, what is your problem? What is wrong of making our knowledge and scientists hard work into an asset? If you build a house don’t you do it for owning the house or do you build a house so that everybody can live in your house? Why should it be any different for a scientist? When can I come live in your home next time I am in Kolkata for free? If you think it is wrong why should you use scientists hard work for free? Because you are not a scientist – it is not your “house” on the line?

    Reply
  5. AvatarAnonymous2

    “despite our ancient “laudable” heritage where knowledge was freely and extensively shared, we must now make amends and convert each piece of our knowledge into an IP asset.”

    I hope you are aware that patents are issued for new knowledge, not old ancient knowledge. I hope you also know that patents are issued in return for the scientist to share his/her knowledge to the society. Otherwise they can be kept secret. So, they are very much in line with the heritage of sharing information/knowledge with the world.

    The using free part of your argument, why should scientists share the information for free? Do you build a house for everyone to come and live there for free? Can I come to Kolkota and live in your home for free? If not why should scentists hard work should be used for free? What is laudable about it? Only because it is convenient for you that you are not a scientist? It is not your hard work? If you want to stick by the argument that scientists should give out their knowledge for free, please first offer to give out your house, car and other assets for free.

    Reply

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