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| Dwijen Rangnekar: Bayh-Dole in India: Not a great idea |
| Dwijen Rangnekar / Feb 28, 2010, 00:22 IST |
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In recent times, the making of intellectual property law in India has been ironically tarnished by claims of plagiarism. Now under scrutiny is the Protection and Utilisation of Public Funded Intellectual Property Bill, 2008. This genius of an idea is a (modified) copy of the Bayh-Dole Act in the US, which suggests a desperate deficit of originality. The Bill’s primary objective is to allow for the protection and utilisation of intellectual property originating from publicly-funded research.
In the public debate on the Bill there are concerns over the robustness of ‘copying’ laws from a different context and time. The legal fraternity has scrutinised particular provisions of the Bill and noted deficiencies and superfluous elements. No doubt, there are advocates for this Bill as well. In entering this debate, I aim to prise it open for a wider consideration of the changes that confront the ‘Republic of Science’. In this respect, a serious lacuna in the public debate is disturbing: the rhetorical attention to the Bayh-Dole Act and the modest empirical analysis.
The antecedents of the Bayh-Dole Act are located in the 1940s debates on the purpose of university research. Even while publicly-funded research occasionally sought patents, it was only in the 1960s that a trend emerged. Thus, at the cusp of the technological marvels of biotechnology and information technology in the 1970s, the habit of patents for publicly-funded research was embedded. For that matter, the Bayh-Dole Bill was drafted by university administrators in technology-transfer offices.
What then about the impacts of the Bayh-Dole Act? It is here that rhetoric abounds. For example, The Economist Technology Quarterly (December 2002) heralded this as “the most inspired piece of legislation to be enacted in America over the past half-century ... [which] helped reverse America’s precipitous slide into industrial irrelevance”. Strong words, indeed. A cursory look at the data shows patents granted to universities increased, that universities also earned seductively large licencing income, and that the private sector invested in universities as well — and much more. For example, annual patent grants to universities increased from 264 in 1979 to 2,463 in 1997. Concomitantly, licencing income increased to $698 million in 1997.
However, if we linger on the data, do we get a different picture? Consider the very simple question that even a high-school economist would probe: was there any change in the rate of growth, revealing a break in 1980? For example, ‘patents per dollar of R&D expenditures’ have been increasing since the 1950s, but reveal no sharp break in 1980. Now, probe a deeper question that is glossed over by The Economist Technology Quarterly: how much of the change can be attributed to the Bayh-Dole Act? As economic historian David Mowery and colleagues argue in ‘Ivory Tower and Industrial Innovation: University-Industry Technology Transfer Before and After the Bayh-Dole Act’, the legislation must be located with a general strengthening of intellectual property rights systems in the US and the emergent technological revolutions that were taking place. It is biotechnology which accounts for most of the patents and licencing incomes. The significance of this new technological opportunity is borne out by university-level daa.
Columbia University entered the patenting arena after the passage of the Bayh-Dole Act. Its gross income from licensing increased from $0.5 mn in 1985 to $31mn in 1995 — and the share of biomedical science in this increased from 81 per cent to 91 per cent. This tendency for patenting and licencing to be concentrated is widely reflected across universities. More telling is the general tendency for a very small share of patents to account for a substantial share of licence income. Thus, a mere 5 per cent of patents tend to account for over 80 per cent in most cases.
There are many more lessons to be drawn from a considered evaluation of the Bayh-Dole Act. It is worrisome that the introduction of intellectual property in the ‘Republic of Science’ will generate perverse incentives that will direct R&D in particular technological directions. It is not only an issue whether certain areas of basic research might be neglected, but that less commercially lucrative areas will be avoided. Here, consider the provisions in clause 10 which require the constitution of an ‘Intellectual Property Management Committee’ that will perform market surveys, create an intellectual property management fund, and identify intellectual property having commercial potential.
Further, take the general ethic of the university, the ‘Republic of Science’, with its customs and conventions of disclosure, debate and exchange of information. Wouldn’t the introduction of intellectual property compromise this ethic? The new Czars of the ‘Intellectual Property Management Committee’ will become the gate-keepers. And here, clause 6 is instructive: “The recipient shall not publically disclose, publish or exhibit the public funded intellectual property till an application for the protection of the same in the designated countries is made”.
At the heart of these concerns is the very premise of what it means to have research conducted in public institutions and funded by public sources. The legislative overture being introduced might also generate other perverse outcomes. For instance, the competition for commercially viable avenues of research will see universities competing with the private sector. This could ‘crowd out’ the private sector. Further, publicly funded and conducted research has a series of wider ramifications. It generates technological and economic opportunities that the private sector can pursue. These spillovers are useful in maintaining incentives for private investments in R&D — as only firms with absorptive capacity can use publicly available science. Consequently, the privatisation of the public will diminish investments in R&D in the private sector — and dynamically lead to a reduction in the range of technology-providers.
These are only some of the grave possibilities that the Bill can herald. It is incumbent on our legislators to ponder deeply, and with serious and reasoned deliberation. It is not a genius of an idea to copy legislation developed in another time or place. At a minimum, a law concerning intellectual property must be original in its idea and conception.
The author is with the University of Warwick
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