We are extremely pleased to bring to our readers a guest post by Prashant Reddy T. and Saranya Ravindran on the lack of transparency on public funded R&D in India. Prashant, one of our most prolific bloggers, is an advocate and an author. Saranya is a 3rd year student at Nalsar University of Law, Hyderabad.
Over the Last Decade India has Spent Rs. 1,00,000 crores on Scientific Research with No Transparency: Time to Resuscitate the PUPFIP?
Prashant Reddy T. and Saranya Ravindran
This June 28th marks the thirteenth anniversary of the tabling of the Parliamentary Standing Committee Report on The Protection and Utilisation of Public Funded Intellectual Property Bill, 2008 (PUPFIP) – a legislation introduced by the UPA government on the recommendations of the National Knowledge Commission. The Standing Committee after hearing a range of stakeholders, including the late Prof. Shamnad Basheer, had recommended a record 75 amendments to the Bill. Subsequent to the tabling of the report, the UPA government never really made a push for the legislation and it was withdrawn from the Rajya Sabha by the Modi government in December 2014.
Since the withdrawal of the PUPFIP bill, the governance of public funded R&D has been approached at a policy level through a patchwork of departmental policies and guidelines. An earlier excellent post by Swaraj and Anupriya published during the pandemic in 2021, covered the various departmental policies and guidelines governing public funded R&D in great detail. As they point out, like Shamnad did earlier in context of the PUPFIP bill, many of these policies and guidelines did not deal adequately with the issue of “march-in” rights for government in certain scenarios like public health emergencies such as the COVID pandemic. Simply put “march-in” rights would allow the government to take control of the IP rights of inventions owned by private companies if those inventions have been funded by public money through grants from the government or through licensing agreements with government R&D institutions. This was a serious issue in the United States for some COVID vaccines that were funded through grants from the American government.
The other problem with departmental guidelines or policies is that these are not binding on most public research institutions in India since most such institutions conducting research like the Council for Industrial & Scientific Research (CISR), the Indian Council for Agricultural Research (ICAR) & The Indian Council for Medical Research (ICMR) are autonomous institutions not bound by departmental guidelines or policies of individual ministries. Similarly funding agencies like the Technology Development Board (TDB), The Scientific & Engineering Research Board (SERB) and Department of Biotechnology (DBT) which give out grants to both the public and private sector which are governed either by their governing statutes or governing bye-laws.
All the above research institutions and funding agencies have their own IP policies. A few of them can be accessed here: TDB – funding guidelines, SERB – Terms and Conditions of the Grant, CSIR guidelines on sponsored research grants, ICAR – Guidelines for Intellectual Property Management and Technology Transfer/ Commercialization, BIRAC – Guidelines for BIRAC-PATH(Patenting & Technology Transfer for Harnessing Innovations)(BIRAC has multiple policies for different kinds of grants). Most of these policies leave considerable discretion to the individual institutions to decide the terms of licensing/assigning the IP in inventions to the public sector. Similarly, all these policies lack binding clauses on “march-in” rights.
The closest we have to a “march-in” clause is present in the funding guidelines of TDB, which states that the Board can in “exceptional circumstances” retain the use of intellectual property and “may reserve” the right to require the IP holder to license it to others. Similarly, the Grant-in-Aid agreement of BIRAC states that for “nationally important projects”, the IP will be governed by a Specific Order of BIRAC. However, further information on what is an “exceptional circumstance” or a “nationally important projects”, is absent from these documents.
Given the ambiguity and silence in these policies, what exactly are the terms governing the funding agreements or collaborative agreements with the private sector? Who owns IP resulting from these agreements? The answer to this can be found only in individual contracts between these public institutions/grantees and the private sector. Except, these contracts are not proactively published by most of these institutions and are not shared even under the RTI Act. For example, one of us asked for copies of some of the funding agreements for COVID related vaccines. However, the public institutions in question refused to give us the information and the the CIC upheld the decisions to not share these contracts. (The CIC’s decisions are currently under review before the Delhi High Court). Some other agencies involved in transferring public funded research to the private sector, like the National Research Development Corporation (NRDC) have shared templates of their contracts – they have declined to share actual contracts.
This lack of information on the transfer of publicly funded innovation to private institutions should however worry all of us because vast sums of taxpayer money are spent on research through direct funding of public research institutions or through grants made by funding bodies like TDB/DBT etc. Our back of the envelope calculations reveals the following budgets for R&D authorised by Parliament for the last decade: Rs. 40,555.25 crores for CSIR (2012-22); Rs. 17,000 crores for the Dept. of Ayush (2012-22); Rs 10,209.2 crores for ICMR (2012-21); Rs. 689 crores for TDB (2012-22); Rs. 7,295 crores for SERB (2012-22); Rs. 195.68 Dept. of Health Research (2012-22); Rs. 17,690 crores for Department of Biotech (2012-22) & the Indian Institute of Science, Bangalore: 22,000 crores. Cumulatively, these grants add up to almost Rs. 1,00,000 crores in a decade. This is not a complete accounting of all the public money spent on research, since we have not included the R&D budgets for the space, defence and atomic energy departments or for that matter the budgets of central universities/IITs which have substantial research budgets. Despite these vast amounts of money being spent on research and innovation, there is often very little we as citizens know about how these institutions utilise these monies or the terms as per which these public research institutes enter into IP licensing agreements/technology transfer private institutions. The only way to throw light on the opaque manner in which these vast amounts of public money are spent on R&D and then commercialised, is through a parliamentary legislation. While the PUPFIP bill is a good starting point to the discussion, it will need major amendments to ensure greater transparency. Rather than making vague commitments to transparency, the legislation must lay down a checklist of information that must be voluntarily disclosed. Separate from ‘transparency’, the legislation must of course also tackle the issue of “march-in” rights for public funded inventions in cases of public emergency.