Biotechnology in Countries Starting with “I” – Part 7: India

This is a guest post from Susan K Finston, President of Finston Consulting. Do you have a response to Susan’s post? Respond in the comments section below.

Susan Kling FinstonFor the next chapter in this continuing series, let’s turn back to India and the draft National IPR Policy currently under debate in New Delhi. A great deal of digital ink has been spilled on the constitution of the IPR Think Tank that produced the draft Policy, with less attention given to the importance of the detailed recommendations to improve the environment for creation, commercialization and management of IP in India, with particular attention to the IP challenges of Micro-Small & Medium Enterprises or MSMEs.

With regard to the appointments to the IP Think Tank, IPR academics,  NGOs and assorted IP-skeptics are aggrieved by the appointment of actual IP practitioners with experience in corporate affairs, industrial R&D, patent litigation, WIPO and the Courts, preferring that the Centre Government leave IP policy to the PhDs to avoid ‘potential conflict of interest.’ These criticisms are available online here and here.

In the event, the Modi Government chose a broader, gender-diverse range of experts for the IP Think Tank, appointing a venerable former Judge of the Madras high court, Justice Prabha Sridevan as Chairperson, and including two of India’s leading female litigators, Senior Advocate Ms. Pratibha Singh and Advocate Ms Punita Bhargaval. Rounding out the group are Dr. Unnat Pandit of Cadila Pharmaceuticals Ltd., Shri Rajeev Srinivasan, Director, Asian School of Business, Thiruvananthapuram, and Shri Narendra K. Sabharwal, Retired Deputy DG, World Intellectual Property Organization (WIPO) and now Chair of the FICCI-IPR Committee as the final member and Convenor. The Modi Government also provided opportunities for public comment by stakeholders including both before and after the IPR Think Tank’s submission of the draft document, and posted the draft National IPR Policy online.

Apart from persistent ad hominem attacks on IPR Think Tank Members – because only professors can be ‘IP experts’ –  the primary substantive complaint relating the draft IPR Policy is the threadbare assertion that there is no link between IP, innovation and assimilation of novel technologies for creation of economic and social value. This is an issue that also figured prominently in an earlier ill-fated IP Policy Baseline Draft submitted to the Modi Government by Professors Shamnad Basheer and Yogesh Pai.

Before circling back to the linkages between IP protection and enterprise development, it may be helpful to review the origins on the Basheer/Pai Document, where the Modi Government had earlier tasked three Ministry of Human Resource Development (MHRD) IP chairs – Professors Prabuddha Ganguli, Shamnad Basheer and Yogesh Pai – with submitting a draft IP policy. At some point Prabuddha Ganguly, the senior member of the team with perhaps the greatest expertise on the strategic importance of IP for enterprises, left the group. The remaining two like-minded academes Shamnad Basheer and Yogesh Pai apparently did not seek advice from the Government on how to – or even whether to – proceed, and subsequently submitted a beautifully drafted if highly impractical document.
(In full disclosure: I have known Prabuddha Ganguly and Shamnad Basheer for many years. I respect and admire them both. While I do not know Shri Yogesh Pai personally, as he is Shamnad’s close colleague I am sure he is also brilliant.)

The Basheer/Pai draft is a lyrical document, coming close to poetry in parts, with majestic, soaring language, like the following:

“While India will continue to draw on foreign precedent from jurisdictions that have had a longer and more sophisticated history with intellectual property, it will not blindly adopt their norms. Rather it will seek to adapt them to the local conditions in a bid to promote and protect national interest. Much in line with words of wisdom from the father of the nation, Mahatma Gandhi who once said: “I do not want my house to be walled in on all sides and my windows to be stuffed. I want the cultures of all lands to be blown about my house as freely as possible. But I refuse to be blown off my feet by any.’“ (p. 2)

However earnestly felt, the Basheer/Pai document reads like an IP manifesto rather than a national IP policy, lacking specific, detailed policy recommendations needed by Indian Industry for IP administration, adjudication, or training.  Basheer and Pai dispose of IP enforcement issues in the closing paragraph in 4 sentences (and one fragment)(p. 11). While touching on traditional knowledge, the paper makes no recommendations for improving access to IP rights for R&D-intensive MSMEs, despite growing recognition that innovative MSMEs face the greatest challenges in gaining needed IP protection in India.

In the final analysis,  the challenges facing India’s innovative MSMEs may provide the best response to IP-skeptics on the important connection between IP protection and innovation.

Unlike many larger firms, R&D Intensive MSMEs rely to a much greater degree on their innovative capacities and the ability to protect their creations – whether these are copyrighted works, trademarked products or patentable inventions. MSMEs in OECD-member states like Israel and the United States that have a greater ability to protect and commercialize their technologies, have a track record of creating substantial economic and social benefit in the process.

In fact the original third HRD IP Expert, Prabuddha Ganguly, has undertaken critical research in this area in his role as a WIPO consultant.  He has presented compelling data on the importance of IP protection for MSME enterprises at WIPO events around the globe, as in this paper for a 2004 regional WIPO event in Oman.

Beyond any research, my ongoing work as co-founder of emerging Indian biotech Amrita Therapeutics and consulting (transactional) work for innovative MSMEs provides daily reminders of the causal relationship between the ability of MSMEs to protect their creative works, process and/or products through IP protection, and the effective diffusion and assimilation of new technologies for creation of social and economic value.

Comparing the Basheer/Pai manifesto side by side with the Draft National IPR Policy underscores the wisdom of the Modi Government’s reboot, and calls to mind the old saw:  those who can do, those who can’t teach.  However much we may benefit from IP-Skeptics who keep challenging our IP assumptions, it may better for the rest of us if they are not charged with actual policy making in the meantime!

About the author:
President of Finston Consulting LLC since 2005, Susan works with innovative biotechnology and other clients ranging from start-up to Fortune-100, providing support for legal, transactional, policy and “doing business” issues. Susan has extensive background and special expertise relating to intellectual property and knowledge-economy issues in advanced developing countries including India and South Asia, Latin America and the Middle East North Africa (MENA) region. She also works with governments, and NGOs on capacity building and related educational programs through BayhDole25. Together with biotechnology pioneer Ananda Chakrabarty, she also is co-founder of Amrita Therapeutics Ltd., an emerging biopharmaceutical company based in India with cancer peptide drugs entering in vivo research. Previous experience includes 11 years in the U.S Foreign Service with overseas tours in London, Tel Aviv, and Manila and at the Department of State in Washington DC. For more information on latest presentations and publications please visit finstonconsulting.com.


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