The Great Indian Reluctance to Patent

The patent system has historically been portrayed by its proponents as neutral and devoid of any moral or ethical values. However, over the years, the arguably neutral patent system has increasingly moral and ethical issues.

The idea behind introducing monopoly rights through the patent system was to encourage the inventor to disclose his invention to the public without fear of unlawful copying by competitors. These rights protected the inventor’s interests while at the same time encouraged the society to learn about the invention and find scope for technological improvement.

The issue of monopoly and morality arose first in the case of Darcy v Allen (1599), widely known as the “Case of Monopolies”. This case established that the grant of exclusive rights to produce any article was improper. If a person intended to seek monopoly, then he had an obligation to comply with conditions imposed by the society in exchange for the grant of monopoly. It was evident that the patent system couldn’t remain immune to moral standards as it operated within a culture that had certain community values, and shared economic and social interests.

India’s culture clash with monopoly

While patents brought with them the power of monopoly, it has found quite some cultural resistance in the Indian social set up. For millenniums now, India has been enveloped in a culture that considers monopoly as unethical.

jagadish_chandra_bose_1926

Sir Jagadish Chandra Bose demonstrating the ‘nervous system’ of plants at the Sorbonne in Paris in 1926. Source: Wikipedia

Take for instance the case of Sir Jagadish Chandra Bose. A multifaceted personality, he invented the first wireless detection device, discovered millimetre length electromagnetic waves and was a pioneer in the biophysics. In fact, IEEE has named him as one of the fathers of radio science technology. However, Bose was reluctant to the concept of patenting.

To seek any personal advantage from his inventions was unthinkable for Bose. He made public one of his great inventions “The Coherer” in a Friday evening discourse at the Royal Institution, London and said: “No secret was at any time made as to its construction, so that it has been open to all the world to adopt it for practical and possibly moneymaking purposes.” One of his American friends, Sara Bull persuaded Bose to file one patent application for his “Detector for electrical disturbances”. The application was filed on 30 September 1901 and granted on 29 March 1904 (US patent No. 755,840). However, Bose refused to accept his rights and allowed the patent to lapse.

In recent times, Indian values have been very publicly troubled with the idea of patenting life forms. The Indian Patent Law, which is greatly influenced by indigenous ideas, has repeatedly questioned the moral righteousness of patenting biotechnological products. Changing the basic nature of life forms by genetic engineering has been seen in India as trying to “Play God”. Much to the displeasure of the Indian Patent Office, the Indian judiciary interpreted patenting a process of creating living organism compatible with Indian Patent Law in the judgement for Domminaco A. G. Vs Controller of Patent Designs & Others. However, this only allowed for patenting of a process resulting in the production of a living matter, and not the living matter itself.

India has repeatedly faced global backlash for its weak patent laws. It has earned international reputation (a bad reputation in the circles of pharma giants and a good reputation among social Non-Governmental Organizations such as Doctors without Borders). The recent landmark case of Novartis v. Union of India was nothing less than a manifestation of India’s refusal to allow pharmaceutical companies to extend their profits by making slight ever-greening changes to existing inventions.

India is dubbed as the “pharmacy of the poor” and has a sprawling industry of generic drugs. Indian generics play an important role in fighting the AIDS epidemic in Africa. More than 80 per cent of AIDS patients treated by humanitarian organizations receive their medication from India. As the expenditure by the Indian government in Healthcare remains negligible, India has been compensating by using the TRIPS guideline of “Compulsory Licensing”. This doesn’t require a patent owner’s consent for obtaining a license; and has hence been invoked by India a number of times to provide cheap generic drugs to its civilians.

Changing times for India’s patent laws

However, changing times have forced India to change its stance gradually. Since India became a party of the WTO in 1995, the country has made a series of changes to its patent laws in order to suit minimum IPR international standards of TRIPS in the form of Amendments in 1999, 2002 and 2005. Despite the changes, the general public is still alarmingly ignorant about patents. Data from WIPO shows that out of 214,500 applications filed in 2014, only 1,394 were filed by Indian companies. The situation is even more dismal in the Indian Patent Office where Foreign Companies are among top patent filers leaving Indian companies far behind. Another not-too-favorable outcome of India’s stand on patents is vast immigration of Indian innovators. Many major Indian innovators and start-ups have moved their base from India to abroad for better value of their inventions.

For India, protecting an inventor’s rights has been considered as second to general public welfare. But in view of recent developments, it has become crucial for IP policy-shapers in India to work progressively in order to keep the brightest innovations within the country. India has to understand that social welfare and protecting rights of inventors are compatible and one need not be done at the cost of other.

India is an attractive destination for global giants. But with an IP system which is too reluctant to address the value of IP assets, both Indian and foreign minds will look elsewhere and the ambitious Indian dream of “Make in India” will remain far-fetched.

(Featured image source: https://upload.wikimedia.org/wikipedia/commons/5/5a/Fly-Angel.jpg)

Vipan Bavoria
Vipan Bavoria

Vipan trains the eagle’s eye when conducting patentability tests and invalidity searches. She enjoys the challenge of connecting the dots and making intelligible knowledge out of sparse data. Her intrinsic interests in reading contemporary fiction, classics, history, philosophy and psychology exercise her mind towards hidden IP aspects.


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