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TRIPS 'COMPLIANCE', AMENDED PATENTS ACT AND NEED FOR NEW R&D POLICIES FOR
DEVELOPING COUNTRIES SUCH AS INDIA.

A.D.Damodaran Ph D(Leeds),
Ex-Director,CSIR Regional Research Laboratory,Trivandrum,
E mail : add@asianetindia.com
URL : www.patentmatics.com

1. In his celebrated lecture on "Science and Problems of Development" delivered before the International Council of Scientific Unions on January 7,1966 ( Cf : patentmatics.com, August,2002), late Dr Homi Bhabha wrote :

          "It is interesting to note that practically all the ancient civilisations of the world-Persia, Egypt, India and China - were in countries which are today underdeveloped. This is not surprising, since most of the countries of the world are still in this category. Western Europe is in fact a small area of the globe which outstripped the rest, essentially from the time of the Industrial Revolution, because of its development of modern science and the enhanced ability this gave it to utilise the forces of nature and to thus achieve a much higher material standard of life for its people. She was followed, and indeed to some extent overtaken, in industrial development by the United States, and more recently the category of the industrially developed countries has been joined by the Soviet Union, Japan and a few others. A major part of the world however still remains underdeveloped by these standards. What the developed countries have and the underdeveloped lack is modern science and an economy based on modern technology. The problem of developing the underdeveloped countries is therefore the problem of establishing modern science in them and transforming their economy to one based on modern science and technology. An important question which we must consider is whether it is possible to transform the economy of a country to one based on modern technology developed elsewhere without at the same time establishing modern science in the country as a live and vital force. If the answer to this important question is in the negative, and I believe our experience will show that it is so, then the problem of establishing science as a live and vital force in society is an inseparable part of the problem of transforming an industrially underdeveloped to a developed country."

His "Growing Science" model, elaborated therein, formed the basis for the successful implementation of India's atomic energy program. One of the crucial components of the Model was also the administrative/legal freedom, which the DAE/GOI retained to itself, to treat nuclear materials and systems as covered by the Indian Atomic Energy Act,1962, NON-PATENTABLE. In other words, the DAE R&D community did not have to be constrained by patent rights assigned to their owners, most of whom being well reputed and renowned agencies/companies abroad - importantly enough, the first patent for nuclear reactor was granted to Enrico Fermi and Leo Szilard themselves in 1944 ! By a very carefully chosen strategy of import, indigenisation and innovation, DAE could assimilate the advanced technologies and steadily establish the present levels of self reliance in the Indian nuclear programs.

2. Thanks to the provisions for special powers of the GOI under the Indian Patents Act, 1970, to utilize patents for "its own use", other strategic departments like ISRO and DRDO (satellites and launch vehicle and aerospace systems are again heavily patented fields) also did not have to be similarly constrained. This in turn enabled those Departments to achieve great successes in their programs, whether they be launch vehicles and satellites or missiles and air-crafts like LCA. In a similar way, the Ministry of Agriculture and ICAR also could make the country proud through the celebrated Green Revolution, since plants were non-patentable all through ( and also as per provisions of the 1970 Act)  and there were no restrictions for inter-national transfer of bio-resources. The Green Revolution was made possible through the establishment of S&T through the Agricultural Universities modeled on the US land-grant universities, initial import of large quantities of  the new hybrid seeds from Brazil under PL 480 program and also continuous import of  such and differing varieties for  development of new varieties suiting to our conditions and tastes. In all the four mission programs one can thus clearly see the basics of the "growing science" model, though with area-specific variations in implementation strategies. If there was a well planned scientific-technological-industrial strategy around CSIR and at least chosen public sector units, say chemicals, base metals and microelectronics, those sectors would by now have been in similar position rather than all of them uniformly continuing to be dependent totally on repeated import even for modernization. Suffice to say, the 1970 Act gave enormous freedom and opportunity to our country to indigenize and innovate the useful S&T available elsewhere to our advantage; and in the nuclear, aerospace and agricultural sectors (for which alone there were well thought out strategies), the country achieved great levels of native expertise. Short of any such clear cut industrial policy ( taking the term 'industrial policy' as defined by MITI) for the civilian sectors, civil industrial R&D continues to be only a peripheral activity in our country

3. After the passage of relevant 'TRIPS compliant' legislations by the houses of parliament, India has now entered The New IPR Regime, bringing in a materially very different situation. Major changes are the following:

  1. Even though nuclear R&D continues to attract patent protection, there are serious issues related to dual use materials and systems.
  2. Special powers of GOI for even "its own use" have been made significantly restrictive  by making them subject to legalistic scrutiny case by case except under specifically defined conditions of national emergency.
  3. New plant varieties are given IP protection through Breeders' Rights. With modified micro organisms also patentable, implementation of the Gene Revolution (described by Norman Borlaug as  an essential continuation of the Green Revolution) will have to be governed by relevant IP dictated clauses.
  4. Choice of new R&D programs 'of possible industrial use' will necessarily have     to become consistent with detailed and quantitative IPR audit, be they a new process, product, electronics systems or software.


In substance, the New Regime will allow us per force to use only our own IP protected inventions for our "industrial use", others available only through due processes of IP sanction including licensing - the strategy of indigenisation being totally IP inadmissible.Even if the special powers of the government could me made available in exceptional cases, the general civilian sector R&D will not be able to attract any such concessions.

4. Even a cursory review of the world patents literature will reveal how wide and vast has the technology gap become between advanced countries on the one hand and even countries such as India, China, Brazil, etc. on the other, leave alone the still less developed ones, be they in the fields of catalysts and materials, biotechnology and GMCs, drugs and specialty chemicals or electronics, control instrumentation and software. Obviously, to repeat and summarize, our R&D programs ( specifically those of  'possible industrial use') will from now onwards necessarily have to be re-oriented to make them fully IP compliant.With only IP- audited indigenisation being  now permitted, the New Regime will demand greater degrees of innovation and invention in  R&D , requiring also substantially new investment and HR policies. The question is: are we, be they the government funding agencies, research institutions and the corporate units, aware of the full implications and are we ready yet for such a quick and fundamental re-orientation ?

 

 
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