Creating an innovation act for India

By Abhai Pandey,Lex Orbis IP Practice
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Research over the last few decades has unequivocally established a near coalescence of the generative, application and commercial aspects of knowledge.

Abhai Pandey, Lawyer, Lex Orbis IP Practice
Abhai Pandey
Lawyer
Lex Orbis

The intersection of seemingly unconnected and diverse fields of science and technology has generated unforeseen interfaces, creating convergence technologies spanning development in biotechnology, information and communications.

Burgeoning economic need has led over 100 foreign organizations to open R&D centres in India. Some are involved in developmental innovation to support existing products while others are developing new products and contributing towards enhancing the technological competitiveness of their parent companies.

In turn, the government has announced an India Innovation Act to spur research and innovation. The act is in line with the America Competes Act and its goal is to harness the country’s innovative potential and the need to combine venture with knowledge.

There is a felt need for realistic legal frameworks that nurture innovation and evolve the policy environment to improve the social rate of return on innovation. Faster innovation, knowledge ownership and strategic management are assuming crucial dimensions and demanding new structures for academia and enterprises that allow for quick value and wealth creation.

India’s need of a statute modelled on the US Bayh-Dole Act cannot be denied but it has to be tailored to the needs of the country. The university system needs science managers to help researchers identify markets to facilitate patents, links between research institutions and industry, as well as new patent cells.

Scientists in the US are also finance experts and entrepreneurs but in India scientists are more often focused only on research. The current state of affairs in the US may be the fallout of the Bayh-Dole Act but it still reinforces the need for similar legislation in India.

Almost all internationally recognized university-level research in India is carried out by government-controlled or supported institutions but patenting efforts are dominated by industry.

A study by the National Institute of Science, Technology and Development Studies showed that industry files around 55% of patents at the Indian Patent Office. Research institutes contribute around 40%, with the Council of Scientific and Industrial Research (CSIR) responsible for about 34% of patents.

Only 3% went to universities.

It is evident that the process of converting research into sustainable commercial application is deficient. Research conducted in universities is not used as a vehicle for enhancing the economy by increasing the flow of knowledge to industry.

There is therefore a pressing need to revamp the entire system to develop a culture of patenting; the creation, appropriation and professional management of intellectual property (IP); and gear up administrative systems besides the passage of legislation. The approach has to be three pronged.

First, it has to help scientists understand, interpret and analyze the techno-legal business information contained in patents. Second, research institutes have to use information acquired from the analysis of IP documents to mount strategic R&D programmes, manage IP portfolios as a defensive business activity or aggressively forge strategic alliances and international collaborations. Third, the government has to act as a facilitator of technology transfers ensuring that public funds are invested in areas that may lead to notable progress in science, or in other fields that yield the greatest benefits.

The most successful and practical example of a strategic policy is at CSIR, which adopted an Intellectual Property Policy in 1996 “to maximize the benefits of CSIR from its intellectual capital by stimulating higher levels of innovation through judicious system of reward ensuring timely and effective legal protection of its IP and forging strategic alliances for enhancing the value of its IP”.

The success of CSIR can be gauged from the profile of the Central Drug Research Institute, Lucknow, one of its laboratories.

The institute has developed and standardized process technologies for over 100 products out of which 70 have been released to industry and 13 commercialized successfully. Similar results can be replicated countrywide by a well chalked out, provident national IP policy.

With the Ministry of Science & Technology speaking of bringing university research into mainstream patenting, debates have ensued as to the pros and cons of the move. Some say the new regime would help industry. But scientists fear that it may lead to more patents of lower quality while patenting research may prohibit the publication of research papers.

The proposed law should link industry, research in order to overcome the drawbacks of Bayh-Dole Act.

It should distinguish between inventions that directly lead to commercial products and fundamental discoveries that call for further research.

Abhai Pandey is a lawyer with LEX ORBIS IP Practice, a law firm specializing in intellectual property issues.

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