Break in India: Leapfrogging Patent Obsolescence

The US Chamber of Commerce is at it again! Ranking India close to the bottom of its inane IP index. Unfortunately, some of our commentators have fallen prey to the seductive logic of these rankings and warned us in dire tones that if we didn’t ramp up our patent numbers, we’d suffer on the technological front.

I’ve cautioned against this myopic vision in a recent op-ed in the Hindu. This comes close on the heels of a recent post by Prashant, where he rightly points to the credibility of the institution/agency doing these rancid rankings; namely, the US Chamber of Commerce, through its fancifully titled think tank, Global Intellectual Property Center (GIPC). As to how a US agency under the Trump presidency can lay claim to “global-hood” is beyond me! But we’ll leave that debate for another day.

The GIPC and the US Chamber of Commerce have a clear vested interest in coercing countries to further American industrial interests (given the pervasive influence of campaign funding in the US, its not difficult to see why the GIPC may be lured by a well endowed Pied Piper such as Pfizer). Little wonder then that they rank a country such as India as low as possible, given India’s refusal to play ball on the IP front!

As Swaraj noted in the past, the GIPC IP index is rife with methodological flaws. Also, see this oped of mine in the Indian Express, where I highlight the fact that even Togo has been ranked above us! No offence to Togo, but whoever speaks of Togo and innovation in the same breath?

I go on to end my editorial by suggesting that we consign these rankings to the loo, where it belongs. Given the recent patenting of poo (and associated technologies), may well be appropriate in more ways than one!

“So what do we do with these rancid rankings? Max Reger, a composer of some fame, is alleged to have reacted to a critical reviewer thus: “Sir, I am seated in the smallest room in the house. Your review is before me. Shortly, it will be behind me.”

I would urge that these deliberately devious IP rankings, designed to pressure India… meet with the same fate.”

Anyway, for those interested, here is my piece as published in the Hindu today:

Time to Break in India

The U.S. Chamber of Commerce is at it again, admonishing us for lagging behind on the IP infobahn by refusing to bolster up our patent numbers, and ranking us close to the bottom on their insidious IP index, 43rd out of a total of 45 countries. India is even below Brunei, a nation known more for its rich royalty (not of the IP kind) than innovation/ technology, only because it signed up to the Trans-Pacific Partnership.

And therein lies the biggest problem with the index: it is rife with methodological flaws. It is a fraudulently formalistic method of shaming countries into thinking that they are children of a less creative god, a point made by some of us in previous years where they ranked Togo too above India. And yet the U.S. Chamber of Commerce and its IP wing, the ‘Global Intellectual Property Center’, continue to dole out such rankings with gay abandon.

A seductive logic

What is most striking is that our indigenous innovation gurus have been quick to lap up the seductive logic of these rankings and warn us in dire tones that we need to catch up, or else be left behind. And that if we have to truly ‘Make in India’, we must ramp up our patent numbers.

But should we be ‘making’ IP in India? Or ‘breaking’ it? Our technological proficiency in pharmaceuticals came through the active breaking of multinational IP, yielding a world-class generic industry and affordable medications for our public. But that is an old script, and we need to move on.

The time is ripe for another kind of breaking. For the standard IP script has done its time, one that harks back to a 15th century Venetian model. Barring some tweaks here and there, we’re stuck with largely the same frame. It is a tad bit paradoxical that when IP rights are meant to further innovation, the legal regimes themselves have been shielded from innovative experimentation.

It is time therefore for India to break this ancient IP paradigm, for it rests on the assumption that IP and the technological information that it protects can be treated as real property. Centuries ago, a clever jurist by the name of Hugo Grotius theorised that water could never be appropriated in the same way as land, since it “flowed”. From there we got the notion of the high seas, exclusively appropriable by no single nation but available to all. With information, the flow properties are even greater. And yet our IP regime continues to equate it to land and real property. Read a patent document cover to cover, and you’ll understand why it’s impossible to know even where the “fence” that delimits this alleged property lies.

Quite apart from the fact that the patent grant itself is at best a lottery: a probabilistic right as some U.S. scholars are wont to label it. Here today, gone tomorrow! Some may say this is peculiar to India, which invalidates patents by the dozen. But if data are anything to go by, we’re not that different from our allegedly more advanced patent comrades, the U.S. and Germany, where the invalidity rate is as high as 50%. There is a reason for this. Patent offices often get it wrong, being resource starved and all that. But more importantly, the fine art of adjudicating the merits of a patent rests on the highly subjective test of whether or not an alleged invention is cognitively superior to what existed before (“prior art”), leading to highly differential results across the world on the very same patent application — as Pfizer found to its dismay in the famed Viagra case, where the Japanese and the Americans held the patent to be valid, but the British invalidated it on the ground that there was a thinly veiled reference to the allegedly inventive path in a science publication authored by a Nobel Prize winner.

The AI challenge

This uncertainty is bound to increase as patent offices get more circumspect about the grant of patents, and like India begin asserting their right to insist on stricter patent standards. But more problematically, the test of cognitive advancement that is central to patent law rests on the notion of the person skilled in that particular art/technology. Would it be obvious to him/her? Now that we’re in the age of artificial intelligence where machines can think as well as humans (well almost), and are inventing by the dozen (since its now possible to code them with creativity, at least of the combinational kind), the skilled person could soon be this artificially intelligent machine. Under its infinitely vast repertoire, almost nothing would count as inventive or non-obvious, given that every potential combination of prior art (which is what most patents are about) is known or at least knowable to these non-sentient sapiens.

In short, patents breed uncertainty of an order that is far more significant than most other legal instruments, and are terribly inefficient even on their own internal economic logic. Little wonder that that some of the finest minds in the technology space such as Elon Musk are now giving up on patents.

Given this scenario, there is no point hitching our bandwagon to what will soon be an obsolete patent game. We must therefore leapfrog and think through alternative innovation incentives such as prizes and open source formats. Much the same way that we did with smartphones, where we avoided the huge costs that might have come with investing significantly in landlines, laptops and the like.


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.

One comment.

  1. Krishnaraj

    Also, the U.S. has ranked itself at the top (with the highest score) in the report (page 4).

    This is analogous to conducting your own test and ranking yourself at the top, regardless of what others have done. I would go one step further and say, this is also analogous to posting a picture (of yours) and liking it yourself in Facebook. It is about time these reports are called for they are. I’m glad that this sector of law in India is surrounded with watchful eyes.

    By the way, since when do we taken the reports from Washington seriously, particularly under the current (yuge?) administration?


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