Monopoly rights stifle and not promote innovation. Barriers to research collaboration can grow, diffusion of knowledge suffers and access to knowledge and innovation is harmed under any strong IP system.
 
The same is the story when applied to the fields of 3 D printing. Patents, designs and layouts were not applicable to such technologies when the foundational tools emerged in the case of all these generic technologies. Scientists had to be pushed to treat some of these cases as IP by the technology transfer offices of the US universities.
 
Did a strong IP regime work for the benefit of the pharmaceutical industry after the adoption of TRIPS Agreement? The policy does not demonstrate how a regime favouring maximum possible incentive for IP owners and the granting of monopolies will be able to ensure the “socio-cultural development” of India.
 
Analysis of the impact of the patents granted on new chemical entities (NCEs) by this author in the forthcoming publication for the two hundred sixty two drugs introduced in India since 1995 indicates that the market power of foreign firms is on the rise due to the adoption of the product patent in various therapeutic groups such as anti-cancer, cardiovascular, central nervous system, diabetes, urology and other such non-communicable diseases.
 
The data clearly reveals that the market power of foreign firms would have been greater had India opted for early TRIPS implementation like many of the countries in Latin America did and made their industries as well as people suffer the adverse consequences of a strong intellectual property regime.[6]
 
In fact, far more contrary –and interesting –evidence is directly available from the pre-TRIPS period. The Green Revolution took place in India without any IP protection for the breeders of new varieties of seeds.
 
The Indian pharmaceutical industry became the pharmacy of the Third World because of the rejection of the strong intellectual property rights (IPRs) system in the 1970s. Since the domestic pharmaceutical industry supplies a large number of pharmaceuticals to the regulated markets of US and Europe and is the lifeline for patients particularly in the developing world, it is paradoxical that the policymakers of the Modi Government choose to do little more than give lip service to India's global role in the case of generic pharmaceuticals. With no mention at all of the use of critical safeguards in India's patent law such as compulsory licenses, parallel imports or support for patent oppositions, it seems there was some merit to the news of India's assurances to the US industry that compulsory licenses will no longer be issued in India.  
 
The policy focuses on improving the IPR output of National Research Laboratories, Universities, Technology institutions and researchers by encouraging and facilitating the acquisition of IPR.

It proposes to link research funding and career progression with the creation of IPR and includes this as a key performance metric for public funded R&D institutions as well as Technology institutions. Although it is clear that the policy suggests the harnessing of intellectual property by public institutions to be undertaken in a big way (through, for example, the patenting or licensing of research results) and the partnering of public institutions with the private sector, it chooses not to ask the obvious question of what has been the outcome of the perusal of precisely such policies in the laboratories of the Council of Scientific and Industrial Research (CSIR) and the Indian Council of Agricultural Research (ICAR).

Since the mid-1990s, CSIR researchers were directed to file patents but the policy failed to yield patents that could earn CSIR revenue. A vast majority of patents obtained by CSIR (2001–2010) lie idle and have not able to generate licensing revenue to the extent of covering even four to five percent of the cost incurred on the filing of patents by the CSIR. 

The policy on patenting has cost the CSIR not just money to maintain these patents in India and abroad, it has also directed CSIR away from more important directions. In order to generate IP that can be commercialised, the laboratories are required to plan patent portfolios without which enforceable IP will not get generated.

It is not enough to celebrate the intellectual property of individual researchers. Indian patents are the outcome of non-collaborative individual organisation based efforts, both for industry and research institutions. Analysis indicates that 90 per cent are single entity patents and the percentage was as high as 96 per cent in 2010 for India’s US patents. Only seven per cent of the total patents are outcomes of collaborative R&D.[7]

Even in the case of patents filed with the Indian Patent Office (IPO), a large majority (75 per cent) were filed and obtained by individual assignees. Both R&D institutions and industry have been acting separately in their pursuits of technology development related investments.

The same can be said of the collaboration between the academic institutions, universities and research institutions that have been granted patents—the trend is to “go-alone”.

The Indian scenario on international collaboration is no different. Analysis indicates that industry collaboration with universities and R&D laboratories is also negligible. There have been no more than 0–10 patents in any given year. Analysis of the patent assignment database of the USPTO indicates that only 173 out of the total 2420 patents obtained during the period resulted in licensing of other entities.

Further examination reveals that 32 of the 173 patents were instances of internal trading. Just 7.15 per cent of India’s patents were licensed on the whole and 5.83 per cent of the total, if we leave out cases where the transfer was to one’s own subsidiary[8]. 

Clearly, the message of this analysis is that the Indian industry and R&D organisations are not at the stage of development wherein the patent strategy is going to yield much returns. It seems that our policymaking is not informed by Indian reality but by pressures on and of the multinationals. Multinationals and R&D organizations abroad do not treat the challenge of IP generation without a strategy. They spend money on patent litigation. Does India want its laboratories to focus on science or litigation?

It is also a matter of significant concern that India is ranked quite low on the index of creativity and innovation; we are at 56, somewhere pretty low down on the ladder.

Further, it should not be forgotten that if publicly funded laboratories are encouraged to patent their research contributions, seek exclusionary rights and make money from the private sector from their research contributions, the tax payers will be paying twice.

The private sector will include the total R&D expensesincurred in the cost of product after adding a huge mark-up.

Why should the policymakers opt for exclusive licensing of public IP?

Exclusive licensing is an important element of a strong IP system. This is a matter of serious concern. The policy proposes to establish and strengthen IP facilitation centers as nodal points in industrial and innovation university clusters.
Evidence on the performance of Science and Technology (S&T) parks is not very encouraging with regard to IP based entrepreneurship from India. There is significant gap between scientists and industry with regards to important factors in the process of technology transfer from publicly funded R&D sector to private sector industry. Scientists consider the lack of motivation and demand from industry for investment in indigenous technology development to be a key barrier to sustainable collaboration.

Experience of success with IP based entrepreneurship and technology transfer from National Research and Development Corporation (NRDC), National Innovation Foundation (NIF) and Technology and Information Forecasting and Assessment Council (TIFAC), SIBRI and BIRAC of Department of Biotechnology is hardly encouraging. 

However, thanks to the high voltage propaganda that favors a strong IP, the same mantra of IP based entrepreneurship is repeated. Take the case of NRDC which manages the IP generated from the programme aimed at technological self-reliance[9] (PATSER) of the Department of Scientific and Industrial Research (DSIR).

In royalty paying projects, there was only one case where the firm paid on a regular basis. In most cases it was paid for one or two years by the firms. The amount of royalty paid varied widely, from as low as Rupees 954 to Rupees 86 lakhs. Most common reasons mentioned for non-commercialisation were either that the technologies developed were obsolete or there was no market demand for the technology developed[10].

The policy considers IP rights as private rights. The policy wants to promote IPRs as marketable financial assets. The policy views IP as an economic tool. But intellectual property is a regulatory tool for the government. The government should not be using it only as an incentive.

The government needs to provide safeguards to protect public interest when statutory monopolies are being offered to IP owners. The objectives and instruments of policy need to be guided by a social contract between state and society on the basis of the consequences of intellectual property regime for the development process.

As a regulatory tool, the state has to ask how and what benefits will corporates deliver and what kind of costs it entails to the Indian people.

A social bargain should reward or grant incentives to innovators but not without asking what kind of innovation and access to innovation is being offered by this particular system of reward,that is, exclusive rights through IP.

Incentive has to be as per the stage of development and be commensurate with the quality of intellectual property. Intellectual property has to maximize disclosure, diffusion and dissemination, access to knowledge, and public interest.
The policy is vague in how such a balance is to be achieved and how the rights of IP owners will be implemented in a manner conducive to social and economic welfare and to prevent misuse or abuse of IP rights. Although the policy speaks of encouraging open source drug discovery (OSDD), it is well known that the OSDD programme is no longer being pursued by CSIR.

While the policy speaks of promoting free and open source software, it could have given a genuine boost to the idea of open source in the areas of software, seeds and creative publishing if the government was willing to announce a public procurement policy for encouraging open source in software and seeds.

The policy should have announced a law favoring open source licensing. Special licenses for non-exclusive dissemination of intellectual property could have been encouraged. Twenty-five countries including Australia, Belgium, Croatia, Czech Republic, France, Germany, Greece, Hungary and Italy provide for legislative support to open source[11].

The policy also refers to open innovation as part of the promotion of corporate social responsibility (CSR). Open innovation is practiced by large companies as a programme of collaborative R&D strategy, and it is not a CSR activity for them. Apart from the NIF (National Innovation Foundation) which has tried collaborating with Big Bazar to market the “outcomes of grassroots innovations” (wherein also we are yet to see the market being developed for such innovations), there are not too many corporate social responsibility (CSR) examples which can be multiplied by the R&D organizations. The CSIR has many rural technologies to offer from its own shelf, but we have not seen large companies being willing to transfer these technologies to the base of pyramid population. 

The policy provides for the enhancement of the capacity of IP enforcement agencies at various levels, including strengthening of IPR cells in State police forces. It proposes to adjudicate IP disputes through Commercial courts. The policy marks a major departure from the earlier well-stated understanding by BakshiTekchand and Justice Iyengar committees[12] that guided the framing of Indian patent law. These committees created the Patent Act, 1970.

The model patent act provided for granting of rights for the use of new processes for the benefit of the pharmaceutical and food industries and laid the basis for creative imitation or reverse engineering approach which led the Indian R&D institutions to create over fifty new chemical reactions processes for more than one hundred essential drugs.

The policy states in writing that the government will engage constructively in the negotiation of international treaties and agreements. It also states that it will examine accession to some multilateral treaties which are in India's interest. Is this a signal that India could be party to Trans-pacific partnership (TPP) where the TRIPS plus agenda is already in place?

Needless to say, the IP maximalist agenda of the new IPR policy will warm the heart of the US government in a big way. It seems that the government wanted to gift something to the USA, and decided on gifting the IPR policy. This particular gift to the US must be withdrawn. It should be prevented from becoming the national policy.

The policy seeks respect for IP and in its usual style the present government wants this message to be taken to the schools, colleges and public.

It wants to involve multinational corporations in the IP awareness programmes. The policy proposes to strengthen and spread IPR facilitation centers. The policy proposes to open up the traditional knowledge digital library (TKDL) to the corporates. What is of greatest concern perhaps is the targeting of the judiciary through “awareness” and “training” on an IP maximalist agenda that is likely to threaten the fine balance between public interest and IP that the courts have struggled to maintain. This is going to be a big change.

The policy says India will remain committed to the Doha Declaration on TRIPS Agreement and Public Health with no real provisions of the policy dedicated to the actual use of public health safeguards in India's patent law.

Nor can it be ignored that the Government of India agreed to give in to the US Government’s twenty-first century issues of trade and investment at the Nairobi Ministerial at the WTO. According to the United States Trade Representative (USTR), the Doha Development Agenda is dead. There has been no progress.

Needless to say, the IP maximalist agenda of the new IPR policy will warm the heart of the US government in a big way. It seems that the government wanted to gift something to the USA, and decided on gifting the IPR policy. This particular gift to the US must be withdrawn. It should be prevented from becoming the national policy.
 
(The author is Convener, National Working Group on Patent Laws)

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The Government of India (GOI) allocated Rupees 7060 crores for the Smart Cities Mission in its interim budget of 2014-15. The budget of 2015-16 had a provision of Rupees 6000 crores for the Mission and the development of 500 habitations under the National Urban Rejuvenation Mission (NURM). A government panel has approved the allocation of Rupees 2.73 crores over the next ten years for the development of 100 smart cities under the NURM.

The ‘Mission Statement and Guidelines’ for the Smart Cities Mission released by the Ministry of Urban Development (MoUD) on June 25, 2015 identified in the Mission the following strategic components for implementation: retrofitting, redevelopment, green field development and pan-city development. The MoUD is in the process of setting up the Special Purpose Vehicle (SPV) for the Mission. Convergence with other government schemes, are also the guidelines for the release of funds for the Mission. 

However, there are key issues that need to be publicly debated and discussed — regarding the very concept of Smart Cities in general and the Smart Cities Mission, in India – that are yet to be discussed publicly by opposition political parties and within the Indian parliament. From a bare reading of the concept and thrust of the policy document, it is quite obvious that the model as conceived by the GOI will lead to non-inclusive development. Smart Cities are being seen as meeting the aspirations of only India’s educated middle class.

The focus is on the implementation of technology for providing the middle classes with the instruments of online access for the use of public services. Smart technology (ICT) based solutions will require large investments from high technology vendors identified as originating from the United States coupled with the real estate builders from India. The likes of McKinsey Global Institute and Price Waterhouse Coopers have been roped in, to prepare the reports. Needless to say these investors will demand handsome returns on their investment.

While the users of these new technologies among the middle classes will pay only in part to provide for these returns, it is the Indian poor as a whole, who will be bearing the burden of public investment promised by the Modi Government. The poor will also pay for the Smart City projects in the form of displacement. The poor will pay through the loss of their existing homes to pave the way for the implementation of new projects of redevelopment and Greenfield development.

While the users of these new technologies among the middle classes will pay only in part to access these services in return, it is the Indian poor as a whole, who will bear the burden for the public investment promised by the Modi Government. The poor will also pay for the Smart City projects in the form of displacement. The poor will pay through the loss of their existing homes to pave the way for the implementation of new projects of redevelopment and Greenfield development.

The smart cities programme envisages the implementation of projects with the help of public private partnerships (PPPs). The land to be acquired for smart projects under these will affect not only slum dwellers but also the farmers living within peri-urban areas. The dream of 24×7 water supply of the middle classes will be realised but at what kind of social cost for the poor? The crucial issue of decent living (liveability) for the urban poor needs to be central to any development, including the envisaged Smart Cities concept. The resource requirements, including energy and its associated environmental impact –costs of an instrumented automated wired city —raise concerns on the front of environmental sustainability too.

The social exclusion of citizens lacking in information technology (IT) competence and categorising them as IT uneducated is also a serious issue that needs to be tackled up front. Smart Cities in the Indian socio-economic context mean dilution of the democratic right of the poor to the city itself, this time the exclusion will be routed through technology. The technology divide can be expected to deepen further through these burgeoning smart cities.

The last decade saw the initiation of e-governance programmes as part of the municipal reform agenda. Experience indicates that the poor have remained excluded from the e-platforms, and the municipalities have had to continue with the use of manual systems of capturing data and complaints in parallel with computerised systems.

Information available on the funding strategy for smart cities suggests that Rupees 7 lakh crores will be required over the next 20 years to provide for the infrastructure. Some estimates suggest that Rupees 35,000 crores per year will be required to support the Smart Cities Mission. However, it is not clear whether this amount covers on-off investments. Obviously private sector investment will be ad hoc and will further be driven solely by a profit motive. It is however not clear as yet who will have to pay for the maintenance of this infrastructure. Without a substantial share of funding coming from either the GOI and state governments, can we expect urban local bodies in poor financial health to pay for the maintenance of technology based infrastructure of Smart Cities into which the Modi Government plans to lock-in a huge amount of public investment?

Foreign and private capital will be mainly targeting investments that have a higher rate of return, and the expansion of public services to be implemented in a universal service framework will not come into existence. The guidelines and notes released do not provide information on this aspect at all.

Delivering good governance to all –Sabka Saath, Sabka Vikas —implies that the government needs to pursue a universal approach on the providing of public services. If the Smart Cities by design are not targeted to undo the un-smart expansion of real estate into the wetlands and commons that served the cities’ drainage needs, it would not be incorrect to presume that we should be ready to face more urban (manmade) disasters of the likes of the Chennai floods (and earlier Mumbai, 2005) and the accompanying misery that these brought to their residents. All the cities, big and small, face the challenge of having to prepare themselves in advance to face extreme weather conditions that are expected to multiply.

Wireless technologies, sensor networks and digital (surveillance) will not make cities smart and sustainable. What Chennai saw in respect of the flooding of its own international airport will be repeated if we are not willing to undo un-smart expansion of the cities driven by corporate greed. Let us remember that the Chennai floods did not spare even the office of Infosys. How we can expect the IT infrastructure to be spared in Smart Cities?

If we are not willing to act against the big offenders among the high tech companies and real estate developers in respect of encroaching on the urban commons (land), then surely as a nation and its people we must discuss the Smart Cities mission threadbare, before-hand.

The Modi Government must be made to rethink the focus and emphasis behind this Mission of city development. While it appears that soot-boot ki sarkar wants to help its friends among the corporates, the opposition has a task cut out for itself. Opposition parties need to expose the undemocratic design of Smart cities. They should not allow the Modi Government to hide behind its self-acclaimed tag of smart governance. The process of development of Smart Cities is neither participatory nor transparent. It is an undemocratic project which needs to be opposed, tooth and nail.

 (The author is the Convener National Working Group on Patent Laws; his email is  dinesh.abrol@gmail.com)

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At Nairobi the dismal failure of the Modi Government to legally defend the rights of the people of India and other developing countries is nothing but an abject surrender. The Modi government failed to live up to its initial grandstanding at the Nairobi Ministerial. India failed to be firm with the developed world. The cost of this surrender cannot be hidden by merely expressing disappointment at the outcome. The Modi Government is only trying to hide the compromise made at the expense of legitimate development concerns. As at Paris,  where the Modi Government compromised in the Climate Summit Conference after a single call from Obama, India has again chosen to cave in to the pressures from the US and the Economic Union.

At Nairobi, India chose to surrender the only instrument that it had as a bargaining chip by agreeing to the Trade Facilitation Agreement (TFA). The TFA is nothing but an import facilitation agreement. In the World Trade Organisation (WTO) India had the option to tell the developed world  that,  since you are not ready to  negotiate the Doha agenda we will not be implementing the Trade Facilitation Agreement. In the WTO the accepted practice goes along the principle of “Nothing is agreed till everything is agreed”. The Modi Government needs to explain how India allowed the Trade Facilitation Agreement to be included in the declaration when the developed countries did not keep to their part of the commitments.

After all the noise the Modi Government had made on how the decision reached at Bali on public stockholding was wrong, India has given in unilaterally at Nairobi, without even asking for a quid pro quo in terms of a permanent solution to the public stock holding programme. It is unpardonable. No control or monitoring of the Special Safeguard Mechanism (SSM), and the mere acceptance of a work programme, means not only infinite postponement of the decision, but also a heavy price that India and other developing countries will have to pay in terms of the virtually unaccountable granting of greater market access. The irony is that the developed world is allowed protection against import surges in the agriculture and food products sector when only four to eight per cent of its population are dependent on agriculture, while the developing countries where over seventy per cent of the people depend on agriculture for their livelihood, are not being allowed by the US and EU to use the SSM to protect their own people. At Nairobi, the US and EU refused to allow negotiations on the issue of their own subsidies for agriculture. In the US, domestic agricultural subsidies have risen from 60 billion to 140 billion dollars. In the developed world the cow gets more subsidy than the farmer gets in India. The Modi Government has chosen to cave in on agriculture – which is not surprising, given its treatment of agriculture. It appears that the Modi Government looked the other way in the WTO at Nairobi so that it could tell the farmers that our hands were tied by WTO! A strong government? Or a weak-kneed capitulation by the Centre after much breast-beating? We must decide.

The “Doha development Round” is dead in the water. There is no unanimity on reaffirming the Doha Mandates, approaches and modalities of addressing the negotiations (Para 30). There is no unanimity on the Doha Structures and architectures (Para 32). There is no reference to the Trade Negotiating Committee (TNC), the supreme organ conducting the Doha negotiations. The only reference is to the General Council and Director General of WTO (Para 33). The declaration adopted at Nairobi is effectively the death knell of the Doha Development Round.

India and other developing countries had the option to use the legal rights available in structure of the WTO. Rather than expressing disappointment the Minister should have mobilised the developing countries to prevent the “Nairobi Surrender” from happening.

As if this humiliation was not enough, Para 34 goes on to state that “some wish to identify and discuss other issues for negotiations; while others do not”. The subtle change from “many” and “others” in Para 32 to “some” and “others” in Para 34 not only grants parity to opposing views but also constitutes an open invitation to table all new issues in the General Council (GC). The GC is a subordinate organ to the Ministerial Meeting, and not being bound by a mandate given to the TNC, will be well within its competence to take on board all the new issues. Developing countries will find themselves in no position to stop this.

Even to the deaf and blind, it is clear how the entire process, at the Tenth Ministerial Meeting was opaque, consensus-defying and exclusionary, driven by a few members.  Para 30 redundantly states “We acknowledge strong legal structure of this organisation.” India and other developing countries had the option to use the legal rights available in structure of the WTO. Rather than expressing disappointment the Minister should have mobilised the developing countries to prevent the “Nairobi Surrender” from happening.

If the Modi Government had shown courage and defended the rights legally, the Nairobi Ministerial could have been forced to take decisions by prescribed majorities. If this was not possible the Ministerial should have been allowed to collapse. In the latter case, India would have brought back the Doha Development Round to where it was before Nairobi without any encumbrances, such as of having to accept the exploration of new architectures which involves bringing back all the new issues – investment, government procurement, competition, state-owned enterprises, environment, labour and so on.

All these issues had been raised by the developed countries at the Singapore Ministerial in 1996, but were rejected by India. The Singapore Ministerial was not allowed to include these issues in the Work Programme. India was not afraid of being isolated and stood firm. This time India failed to nip in the bud the process of the new issues.  The Modi Government was timid inside and too intimidated. The Modi government is now shedding crocodile tears. The Minister is expressing disappointment after the deal is done at Nairobi and our interests have been sacrificed. This is of little use to the Indian people.

After Nairobi, India and other developing countries have further increased their cost of participation in WTO on account of the omissions and commissions of the Modi Government. India failed to mobilise other developing countries to exercise the legal rights available to them in the WTO. Unfortunately there was no discussion in the parliament prior to the Minister’s departure for Nairobi. We call on the Indian Parliament to debate the commissions and omissions of the Modi Government at Nairobi and direct the Modi Government to take initiatives to rebuild Southern unity. 

The government should be asked to prepare a White Paper on the WTO negotiations and on the various free trade agreements (FTAs) and autonomous liberalisation to stop further erosion of development policy space so crucial to the realisation of development concerns which include the basic rights to food, employment, education, public health and safe environment. The parliament should take over the power of the executive to enter into international agreements and treaties.

The National Working Group on Patent Laws and WTO call upon the farmers’ organisations, trade unions, mass organizations of students, youth, women, dalits, adivasis and all the other social groups to mobilize the people against further damage being done by the government through executive action in international treaties.

 (The author is the Convener National Working Group on Patent Laws; his email is  dinesh.abrol@gmail.com)      

WTO Nairobi Ministerial Declaration

 
 

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