Innovation Patent

Are Patents Property: India vs United States


In a recent brief filed before the United States Supreme Court, the US government argued that patents are not property! For those not in the know, this relates to a monumental constitutional challenge (Oil States Energy vs Green’s Energy Group) to a proceeding at the US patent office called the Inter-Partes Review (IPR), where third parties can contest the grant of a patent. A bit similar to our post grant opposition proceeding.

Under US law, you cannot divest someone of private property rights without a jury trial. The challenger argues that the inter-partes review is an internal patent review by the patent office that often results in patent invalidity, without the benefit of a jury trial.

I, for one, eagerly await the results of a case that will hopefully explore the patent: property nexus a bit more deeply.  For those interested, the transcripts of the arguments are available here. One waits for the day when a similarly recorded feast would be available on our home turf here in India.

For more background on this US case, see the excellent Patently O site.  Also, all of the case documents are meticulously documented on the SCOTUS blog.

In particular, see this piece on Patently O which summarises the government brief quite well. I extract:

“Rather than seeing a patent right as property, the Government brief identifies patents as simply “revocable privileges” or “governmentally-conferred franchises” whose creation are not associated with any natural right of an inventor but instead are simply tools of public policy designed to “benefit the public by providing an incentive to innovate.”

Compare and contrast this to the position of the Indian government which claims in its newly minted CIPAM website that patents are indeed “property”! See this link (http://cipam.gov.in/basics-of-ip/), where they state the following propositions in no uncertain terms:

“1. Intellectual Property (IP) means the property, which is created with intellect such as inventions, books, paintings, songs, symbols, names, images, or designs used in business, etc.

2. IP is a property which cannot be touched or seen and is product of a person’s intelligence, hard work, and skill.

3. IP, like any real property that i) can be bought, sold, licensed, exchanged, given away ii) The owner can prevent unauthorized use and can take legal action, in case someone else uses it without permission

4. Legal rights conferred on such property are called “Intellectual Property Rights” (IPRs).”

Paradox of positions eh? Making India even more pro patent than the US! One wonders what impact this might have on the next Super 301 review? Or the even more dubious US Chamber of Commerce (GIPC) ranking? Will we fare more favourably?

As Shashi Tharoor once said: Everything you say of India can be equally true; and equally false!

And on that ironic note, let me end this post.

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.

3 comments.

  1. r k jain

    I extend to the quote of Mr. Tharoor: Everything you say of India can be equally true; and equally false!, and what is left unsaid is more right than wrong.
    I do not see the issue as patent being challenged as a property class , but rather a subtle means of challenging the power of patent offices to invalidate the patent on being disputed by third parties.
    Assume US continues to treat it as property as in India. But on being invalidated by patent office subsequent to challenge by the third parties, patent or property is lost. Won’t it be better for third party challengers that challenge to patent to have the option of direct going to courts, thereby leaving patent office rudderless. So to circumvent this issue, it seems that the interested have camouflaged their real goal in portraying this as a right to property. In India also you have to reinstate the patent property rights through courts after losing them at patent office.
    R.K.Jain
    Patent Agent

    Reply
  2. Swaroop MV

    Actually, this question has some impact on GST, and I recently argued that patents in India aren’t property. This is because common law jurisprudence seems to suggest that statutory rights are not “property”, and in India there is no right to a patent outside of the statute. (Also, in the Rameshwari judgment, the Delhi High Court ruled that copyrights in India are statutory rights.)

    Reply
    1. Shamnad BasheerShamnad Basheer Post author

      Thanks Swaroop. Can you send us details on this case. And is it okay if we run a piece on it. Nothing like it if you can do a guest post though on this issue. Thanks!

      Reply

Leave a Reply

Your email address will not be published.