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To Patent or Not to Patent?

Dr. Shanthu Shantaram sshantharam@biologistics.us

India as a sovereign nation must reserve the right to exercise its powers to revoke patent rights to meet its emergency needs. This is a social responsibility of any government in the world. Such a provision in the Patent Act will be hovering around the private sector head always so that it fulfils its role as a responsible corporate citizen. There is a concern that the law is not sufficiently clear about what constitutes “emergency”. Leaving that definition hazy might well be for a good reason and if push comes to shove, the Supreme Court can step into provide legal definition that will be a sovereign right of India. No one should be crying about the lack of precision in defining emergency right now. That will be tested in due course of time. And put to rest.

Patent protections granted these days in the areas of modern biotechnology seem unfair to many objectors of IPR as they consider natural living beings as a common heritage of the world, and mere modern scientific validation (Dr Kochhar of NISTAD has coined a clever new term “molecularization”) of ancient knowledge by devising modern technological approaches (in this case approaches to gene discovery and gene manipulation technology) should not be sufficient grounds for granting IPR to an individual or a company or an organization To them, it is just a discovery and not an invention. What these critics fail to understand is that progress or advancement of knowledge has always been from the unknown in an incremental manner. Nobody creates knowledge from nothing. By this logic we should be doing away with awards and recognition for any creative individual or an organization as they would have made contributions based on someone else's contributions (Nobel Prizes come to mind). But, the scientifically advanced North America and the Europe that hold the world's largest IPR portfolio, their system gives them protection by recognizing their ingenious and creative efforts to discover (what is already there, but was not or could not be found or obvious to anybody else), invent, and manipulate biological molecules and organisms (extremophiles come to mind!) that have industrial application. With their way of granting IPR (both product and process patent), North America and Europe have built a formidable economy and have established a lead science and technology, and all of the developing world still knock on their doors for their scientific and technical know-how. This is all changing albeit slowly in India's next door China. By slowly adopting Western ways, China is trying to dominate the world as a super economic power. They do not seem to have time for endless and unproductive debates as it happens in India! They just do what is good for their rapid economic growth.

The common allegation against the patent system of the North is that many of their patented inventions are based on some prior knowledge, whether in the formal or informal domain, but by some minor or major application of present day science (some call it trickery), they garner protection and deny the benefits to those who contributed to the body of the knowledge based on which the present day “trickery” would not have been possible. This, according to many objectors, is patently unfair and such an IPR ought not to be encouraged or granted. They contend that many of the developing and third world countries are home to ancient civilizations and cultures are a treasure trough of millions of brilliant ideas and wisdom that will be pirated and turned into some useful commercial technology and these countries will receive nothing for their original contributions. On the face of it all these arguments look very passionately appealing and easy to provoke innocent and gullible politicians and ordinary people into believing that indeed the profit hungry foreign companies will run away with profits galore, and the people of the developing world will remain poor and will have to pay through their nose to buy back those patented technologies. What is at the root of this line of socio-economic argument? It is nothing but jingoism based on false national pride and a fertile case of self serving political activism.

There is no doubt that the patent system of the North has granted some patents without proper review and examination, some patents have been too broad, and many have been outright deceptive. Considering the volume of patent applications received, these wrongful patents are still a tiny minority (less than 1% of the total patens granted), and wrongful patents should not be condoned. Instead, they should be challenged and overturned as they usually are. That in itself can be a costly affair, which few in developing countries can afford. But, what is needed is a careful and prudent form of patent protection system that plugs all the abuses, misuses, frivolous claims, and yet provides patent protection for genuine inventions and discoveries that can spur genuine economic growth through industrialization or commercialization. India must strive to do just that. India can learn lots of lessons from what has gone wrong in the patent system of the US and Europe. Volumes of critical studies have been done to expose those faults and appropriate remedies have been suggested.
A comparison of the overall economic impacts of the patent system of the North with that of what most of the developing countries have should be an eye opener to policy makers in the developing countries. Developing countries may have ancient wisdom, but they have not been able to commercialize them for the economic benefit of the society today. The spirit of discovery, invention and creativity, is still a primitive art in most of these countries. Modern scientific knowledge and technological skills are very costly whether one likes it or not. Just look at any modern biotech lab or a company and their investment levels. By a current reckoning, it takes $300 to 500 million of annual investment to run a world class biotech R&D facility. One cannot think of any indigenous agri-business company in India that is capable of investing that kind of money to be a competitive biotech company in the developing world. That kind of investment has to be recouped. On an average, it takes 10 years to bring a GMO market place in the regulated world of technology. With such cut throat competition, there is hardly anytime to make all kinds of profits as it is alleged. For sure they all make profits and they will perish if they do not. No one should grudge a healthy profit making, but no one should be allowed unscrupulous profiteering.

What is not being understood about IPR in the biotechnology sector is that mere knowledge for the sake of knowledge is not enough. It is like a library full of books in which there is so much information and knowledge, but creativity involves converting that knowledge into wealth and fuel the engine of the economy by providing solutions to problems, goods and services that people would want to pay. IPR is one of those instruments to facilitate such an economic growth in the present day world of knowledge economy. To underscore this point, one might look at the present day Russia which possesses sophisticated science and technology, infrastructure and technically trained workforce, but none of which has been of any use as that knowledge has not been converted into wealth which takes creativity, ingenuity, and market based incentive. India with its traditional indigenous knowledge is very much in that same situation. As much as one can sympathize with those who want equity in benefit sharing for access to knowledge and resources, most of the people crying hoarse about piracy of intellectual property are those who don't have any. Otherwise they would be busy protecting it. That is precisely what atleast some grassroot organizations such as Srishti of Ahmedabad are doing by recording TK (traditional knowledge) and IK (indigenous knowledge) and seek modern scientific validity and technological viability so that such a knowledge can be commercialized and everyone who has contributed to the process benefit equitably. Let us hope that one day many of those IK and TK turn out to be blockbuster products and services for which there will be a profitable market to benefit some of the poor communities and tribes from where they emanated. If one wants to help the people who created IK and TK, the best way is to give them modern day patent protection and see that whoever uses it pays for it.
What India needs is a method by which you convert that knowledge into to a serviceable technology which is where the “invention” plays a part. Modern biotechnology is responsible for discovering hitherto unknown and unheard of genes and thereby qualifying to be an “invention” and all the attendant methodologies needed to convert that invention into a commercial technology. No modern day inventor should be granted monopolistic IPR on a proven TK or IK and mechanism must be in place to ensure benefit sharing. But, to completely deny patent protection for ingenious applications of the knowledge of natural (life) sciences in the area of modern biotechnology will only add to the widening technology gap of between the North and the South. Indian biotech industry is poised to take off and there a huge economic potential to be tapped, and the proposed Indian patent law amendment will give it a great boost for investment in the industry which in turn will create jobs and economic growth.

IPR is just like Physical Property Rights (PPR). If you want to enhance your PPR which is held so dearly in all societies and cultures, then you must invest in IPR. IPR is a powerful tool to fight poverty of nations if used fairly and equitably. In this era of knowledge-based economy, it is time all societies start respecting IPR of everyone. Only then economic emancipation is possible. Patent you must, otherwise be prepared to perish. After all arguments, debates and discussions, poverty can be tackled not with slogans, emotions and debates, but by pragmatic policies that create wealth. What matters is economic growth that can lift everyone. If a present day society or culture does not learn to respect IPR, it will be condemned to eternal poverty

Dr. Shanthu Shantharam is the Convener of a biotechnology affairs consulting firm, Biologistics International in Maryland, USA.