THE 21st century will be a century of knowledge, indeed a century of the mind. Innovation is a key to the production as well as processing of knowledge. A nation’s ability to convert knowledge into wealth and social good through the process of innovation will determine its future. In this context, issues of generation, valuation, protection and exploitation of intellectual property (IP) are going to become critically important all around the world. Exponential growth of scientific knowledge, increasing demands for new forms of intellectual property protection as well as access to IP related information, increasing dominance of the new knowledge economy over the old ‘brick and mortar’ economy, complexities linked to IP in traditional knowledge, community knowledge and animate objects, will pose a challenge in setting a new 21st century IP agenda.
Intellectual property will no longer be seen as a distinct or self-contained domain, but rather as an important and effective policy instrument relevant to a wide range of socio-economic, technological and political concerns. The development of skills and competence to manage IPR and leverage its influence will need increasing focus, particularly in countries such as India.
The importance of IPR in the Indian economy will have to be understood properly. Tomorrow’s wars will be fought not by conventional weapons, guns, missiles and so on, but in the knowledge markets with new thermonuclear weapons called information and knowledge. The war on patent rights which took place between Eastman Kodak and Polaroid was settled for about one billion dollars recently. So these wars in the knowledge market will be expensive. As India plays its new role in a globalized world and changes its IP laws, it will have to gear up to fight these wars in both India and abroad.
We have already made several changes in our IP acts over the years. The nation always needs a robust IP act to facilitate innovation, growth as well as development. Several amendments to the Copyright Act, creation of a new Trademark Act, a new Designs Act and amendments to the Patents Act show India’s desire to change and adapt. New acts have also been enacted covering semi-conductors and layout designs which will be of considerable importance to the electronic industry. Similarly, our plant variety protection act and farmers rights act will impact on agriculture and food industry and the geographical indications act will protect the interests of groups in the different geographical areas of our country.
Although intellectual property covers diverse aspects such as copyright, trademarks, design, among others, it is the issue of patents that has attracted the greatest attention. Therefore, we need good patent laws in India. The first patent law in India was enacted in 1856. At the beginning of the 20th century, in 1911, the Indian Patents and Designs Act was enacted. The need for a comprehensive law so as to ensure that patent rights are not worked to the detriment of the consumer or to the prejudice of trade or the industrial development of the country was felt as early as in 1948. After several attempts a bill introduced in the Parliament came on the statute book as the Patent Act 1970.
While reflecting on the changes and evolution in Indian patent law, let us not assume that what we did historically by enacting this Indian Patent Act 1970 was not right at that point of time. India needed that act given our state of scientific, technological and industrial development at the time. I do not think we could have succeeded in having the drug and pharmaceutical industry that we have today without the Patent Act of 1970. Our pharmaceutical industry is the most developed among the developing countries thanks to this act. However, the context decides the content. The context of 1970 was different. Today the context has changed. The time has come for us to move up the innovation chain.
Apart from the new act, we have to be prepared to face new challenges in diverse fields connected with IP. For instance, skills in filing, reading and exploiting patents will be most crucial in the years to come. We must properly protect our inventions. We must fully understand the implications of the patents granted to our competitors. Many of the patents written by our professionals could be easily circumvented. Manpower planning for IPR protection needs priority. IPR must be made a compulsory subject matter in law courses in our universities. The graduates coming out of engineering and technology streams have no idea about IPR, and yet it is these young people who will have to fight these emerging wars in the knowledge markets.
A number of patent training institutes will have to be set up. China has already set up several patent training institutes and we have none! Judicious management of patent information will require well-structured functioning of information creating centres, information documenters and retrievers, information users, IPR specialists and information technology experts.
Albert Einstein had once said that ‘imagination is more important than knowledge.’ Abraham Lincoln had said, ‘the patent system added the fuel of interest to the fire of genius.’ That is how the western world viewed IP. That is how the US built its economy. We have been late beginners, but we must catch up fast. In this context, I am happy to see CSIR showing the way to the nation. Ten years ago, CSIR secured only five to six US patents per year. In 2003, it secured 196 US patents in a single year! CSIR has been constantly among the top three in the list of top fifty PCT filers brought out by World Intellectual Property Organization (WIPO) for the developing countries and has maintained a 30% to 40% share of the US patents granted to Indians in India.
A knowledge based industry needs to move aggressively and increase its share in IP. In particular our IT, pharmaceutical and biotech industries, among others, will have to face many challenges under the new IPR regime. The IT industry has maintained an impressive growth rate in software export and we dream of becoming an IT super power. For this to happen, we will have to reduce the content of body shopping and move on to innovative IT products, which will need IP protection. The Indian IT industry has so far not factored this in their strategic plans, but it will have to pay increasing attention to this aspect.
The same is the case with our pharma industry. From an importer of formulations in the early ’50s, our pharma industry has become a net exporter. We need to recognize that it will soon start feeling the heat of global competition. It has survived so far without developing new molecules. Indeed, only fourteen new molecules have been developed in the last forty years, out of which eleven have been from the CSIR system. But with the advent of the new patent regime, the strategies will have to change. The Indian pharma industry can once again rise to the occasion just as it did in the ’70s under the provisions of the Indian Patents Act 1970. This industry, apart from pursuing novel synthetic routes to known molecules must pursue basic research for patent-worthy inventions comprising new molecules. It will have to forge partnerships with national laboratories in a Team India spirit to surge ahead.
Before we protect IP we must generate IP which is worth protecting. Our institutions, national laboratories and industrial R&D laboratories will have to gear up for this. Nurturing a strong innovation base through a balanced system of recognition and rewards is the need of the hour. We will have to invest liberally to enhance the skills and knowledge base of scientists through structured in-house and external professional training programmes, some even abroad, on understanding, interpreting and analyzing the technolegal and business information contained in IP documents, and in drafting of IP documents. For this we need to avail the services of quality national and foreign consultants and attorneys.
We need to encourage the publication of R&D results in scientific papers only after careful consideration of the consequences on IP rights. It is hard to estimate the loss of Indian intellectual property due to the inadvertent publication of usable knowledge in the last few decades. Monitoring national and international patents and other IP through access to on-line databases to ensure effective protection and to ward off infringements and threats to India’s IP portfolio will be crucial. Analyzing and assessing technolegal and business information and market intelligence to identify strategic alliances and to exploit potential uncovered niche areas of opportunities itself will give rise to new knowledge based business.
There is a need for further exposure for those in the judiciary to deal with the evolving developments in the intellectual property field. In our country, the delay in law courts causes great frustration to the patentee, and as such it would be desirable to have the members of the judiciary exposed to the decisions and the guiding principles that emerge from them.
There are special areas of concern to India, and that includes its rich traditional knowledge base, in particular its great strength in traditional medicine. Indeed, traditional medicine (TM) play a crucial role in health care services and the health needs of a vast majority of people in developing countries, including India.
The protection of TM under intellectual property rights (IPRs) raises two types of issues. First, to what extent is it feasible to protect the existing IPR system? Patents or other IPRs may cover certain aspects of TM. There have also been many proposals to develop sui generis systems of protection. Such proposals are based on the logic that if innovators in the ‘formal’ system of innovation receive compensation through IPRs, holders of traditional knowledge should be similarly treated.
The codification of TM varies significantly. A distinction can be made, particularly in India, between the codified systems of ‘traditional medicine’ and non-codified medicinal knowledge, which includes ‘folk’, ‘tribal’ or ‘indigenous’ medicine. Thus, in India, folk traditions are handed over orally from generation to generation. The ‘folk’ medicine is based on traditional beliefs, norms and practices based on centuries old experiences of trials and errors, successes and failures at the household level. These are passed through oral tradition and may be called, ‘people’s health culture’, home remedies or folk remedies. Individuals may possess TM. In some cases, for instance, healers use rituals as part of their traditional healing methods, which often allow them to monopolize their knowledge despite disclosure of the phytochemical products or techniques used. The codified tradition consists of medical knowledge with sophisticated foundations expressed in thousands of manuscripts covering all branches of medicine. Some examples are ayurveda, siddha, unani and the Tibetan tradition.
The grant of patents on non-original innovations (particularly those linked to traditional medicine) which are based on what is already a part of the traditional knowledge of the developing world, have been a cause of great concern to the developing world. It was CSIR that challenged the US patent No. 5,401,5041, which was granted for the wound healing properties of turmeric. In a landmark judgment, the US Patent Office revoked this patent in 1997, after ascertaining that there was no novelty; the findings by innovators having been known in India for centuries. This was a landmark event in the sense that it was the first time such a patent given on the traditional knowledge was challenged.
This case was followed by yet another case of revocation in May 2000. The patent granted to W.R. Grace Company and US Department of Agriculture on neem (EPO patent no. 436257) by the European Patent Office too was quashed on grounds that its use was known in India. Then followed another case. India filed a re-examination request for the patent on Basmati rice lines and grains (US Patent No. 5,663,484) granted by the USPTO, and Ricetec Company from Texas decided to withdraw the specific claims challenged by India and also some additional claims.
The grant of patents linked to indigenous knowledge of the developing world needs to be addressed jointly by the developing and developed world. A recent study by an Indian expert group examined randomly selected 762 US patents which were granted under A61K35/78 and other IPC classes having a direct relationship to medicinal plants in terms of their full text. Out of these patents, 374 patents were found to be based on traditional knowledge, not that all of them were wrong. The governments in the Third World, as well as members of the public, are rightly concerned about the grant of patents for non-original inventions in the traditional knowledge systems of the developing world. At the international level, there is significant support for opposing the grant of patents on non-original inventions. For example, more than a dozen organizations from around the world got together to oppose the EPO neem patent and the entire process took five years. Such a process of opposition is understandably expensive and time consuming.
To mitigate this problem, the Government of India has taken steps to create a Traditional Knowledge Digital Library (TKDL) on traditional medicinal plants and systems, which will also lead to a Traditional Knowledge Resource Classification (TKRC). Linking this to an internationally accepted International Patent Classification (IPC) System will mean building a bridge between the knowledge contained in an old Sanskrit shloka and the computer screen of a patent examiner in Washington! Hopefully this will eliminate the problem of the grant of wrong patents since the examiner will be aware of the Indian rights to that knowledge.
As India begins this journey into the 21st century, a century of knowledge, its strategies on not only the generation of new knowledge but also its protection and valorization will play a critical role. Our strategy has to evolve around bringing IP protection into the mainstream of our endeavours in education, science and technology, legal and judicial systems, trade and economics. Then alone can India move rapidly into a commanding position among the comity of nations.
