Gray Area

India's Bayh-Dole legislation - a conspiracy theory?


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An article by Latha Jishnu in the Business Standard in India in mid 2008 provides a succinct account of the secretive progress of a piece of Bayh-Dole legislation in India. It sounds rather similar to our experience in South Africa. The Indian Act has subsequently been submitted to Parliament. The Bill was apparently being passed around the various ministries without much transparency when the text of the Bill was published on SpicyIP, an Oxford-based blog. Similar secrecy seems to have been reflected in the South African, process. Although the original draft of the SA Bill was published for comment and the universities' criticisms of what many considered an unworkable system were noted, it was very difficult to lay hands on subsequent drafts. People I know trying to track the final draft only saw it after the Act was passed, although it appears from personal accounts that industry players were probably consulted in a workshop (in India there appears to have been a workshop for the chambers of commerce and industry).

Jishnu's article concludes:

Technology transfers can and do happen through many channels, and the diverse methods now in use would be restricted by the new law, says Abrol. Nistads is one of the one of the 38 institutes grouped under the Council of Scientific and Industrial Research (CSIR) whose chief, Samir Brahmachari, has been advocating the open source system (reported several times in this column) of collaborative, incentive-based research.
What we need is some informed debate on what is India's best interest at this particular stage instead of going for a wholesale import of an American system that could prove ineffectual. Otherwise, we could be headed for a nuclear deal in our science establishment — corrosive, divisive and ultimately ineffective.
A series of SpicyIP blogs goes into the Indian legislation in some detail. It sounds much like what we are facing:
The Indian bill, much like its US equivalent is premised on the assumption that intellectual property rights are the best way to drive innovation. The more IP, the better for innovation. There is plenty of literature that casts strong doubt on this lopsided view.
Additionally, we’re seeing some great alternatives to the IP model emerging. Indeed, even as we speak, international scholars and activists are debating the merits of incentivising innovation through a variety of alternative means including “prizes”, “advance purchase contracts” etc. Closer home, Dr Samir K Brahmachari, Director General of CSIR, India’s premier R&D body, has been advocating an open source model in drug discovery. This is not to suggest that intellectual property rights (IPR’s) are bad in any way, but only to caution that IPR’s are but one way of incentivising innovation. Given that we are dealing with innovation and creativity, we must be open to trying out some of these alternatives i.e. we need to innovate within our innovation regimes!

Particular stress is placed on the damaging effect that this legislation could have on access to medicines in India, given the above.

Like our South African legislation, the draft Indian Bill also takes away the discretion of researchers and universities to make their own decisions on how best to make their research work for the public good. Both the decision to patent or a decision to use open approaches are subject to decision by a government office.

The Indian Acr aims to generate revenue through its provisions; however, SpicyIP argues, 'In fact, the cost of operating a technology transfer office (TTO) often exceeds the money made from technology licensing. CSIR bears out this point well. While it generated approximately US$1 million in licensing revenues in 2004–2005, it spent more than twice that amount on filing patents.'

What is different in India is that there has been a strong activist movement, with a number of individuals and organisations tracking the progress of the Bill, unearthing copies of successive drafts, providing links to commentaries and analysis on Bayh-Dole in other countries  and generating debate. Useful for those who want to explore this issue in more depth.

But this particular budding conspiracy theorist, down on the southern tip of Africa, is asking why the secretive processes in both countries? And why does this legislation seem unstoppable? Is this a big-industry driven initiative and if, so given Obama's view on scientific research development in last week's speech, is this Reagon-style legislation what the US still wants?(1) And what of our new pro-poor government? What will our new Cabinet make of what they have been landed with?  Watch this space!


(1) It is to be noted that Professor Arti Rai, one of the authors of a very good article critical of  Bayh Dole's relevance to developing countries is one of Obama's IP advisors.

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The point about expense is well taken. Given that the South African legislation appears to require that any potential invention needs to be protected in any regime anywhere is the world, the implication is that patents must be reigtered everywhere in the world. That is indeed VERY expensive, as you say.



It is entirely probable that, like the biodiversity legislation which has had the unforeseen consequence of making it VERY easy to be a criminal - and potentially costing people many, many thousands to register things which should be free - the consequences are entirely unintended. In other words, the people drafting the legislation simply didn't THINK.