India is very casual about the patenting. That's why Scots are claiming ownership for chicken tikka masala, Americans for neem and its medicinal value. The patenting authority and the government should take this matter seriously and patent all the important products and knowledge systems of the nation.
P.V. Indiresan writes in Business Line (3 August 2009)
When the US became independent, its first patent was signed by President George Washington himself. In the case of Jawaharlal Nehru, the question did not arise: The country had a patent office for over 35 and was headed by a relatively junior official.
Nehru was a great scholar. During his days in prison, he wrote from memory books such as The Discovery of India and Glimpses of World History without the help of reference books. While his scholarship was vast, it did not occur to him to enquire why India was as poor in technology as it has been.
India lost to Alexander because the Indian prince fought with elephants and not with horses. It lost to Babur because it had no comparable cannon. It lost to the British for similar reasons. India has no history of invention. India did not produce any Archimedes. It tried to preserve tradition rather than enhance it from one generation to another. Thus, we have a history of indifference to invention which has continued virtually to this day. I myself could have taken at least three patents and become richer.
I did not do it because that was not the culture in those days. Twenty years ago, 90 per cent of telephones manufactured in the country were of the indigenous C-DoT technology. Today, thanks to state policy of interference in technology issues, India has practically no indigenous technology in communications. C-DoT is a shadow of what it used to be.
Pharma, an exception
Pharmaceutical engineering has been an exception to this sorry tale. It found that many medicines can be manufactured by processes that were different from what world manufacturers were doing and also do so at a much lower cost. Those were the days in which patent was granted for the process only and not for the product.
Thanks to immense pressure from world manufacturers, currently, a product too can be patented. Hence, Indian manufacturers wait for a patent to expire and then bring out their own competing processes. That is not as good as inventing a new product, but something to make a start. It is profitable but not immensely.
Disputes Follow success
The success of Indian pharmaceutical industries has led to patent disputes. The Indian courts have been fairly objective. In the case between Cipla and Hoffman la Rouche, it ruled in favour of the Indian company because (a) the drug manufactured by the foreign company was different and (b) it had not made a full disclosure to the patent authorities.
It also decided that in case of a dispute, that should be settled first before placing any restraint on the defendant. It also added that the indigenous drug was much cheaper, a factor, which perhaps, is not proper in law.
A similar view was taken against Novartis on the ground the invention was known earlier. Similarly, India has challenged successfully in American courts the use of turmeric and the application of a patent for basmati which would have killed our own age-old basmati industry. However, it has been said that the Indian Law is more restrictive than the Chinese one and hence China attracts far more investment in R&D than does India.
Most patent disputes in India have been in the pharmaceutical industry. There is relatively little innovation in the fields of electronics, mechanical engineering, metallurgy, bio-chemicals and the like. In these fields, even in the case of the world-acclaimed Nano car, India has been mainly a borrower with inventiveness restricted to management practices than invention of new products.
However, for the first time there is a dispute between two engineering firms. The dispute is under trial; hence, we cannot comment on the rights and wrongs of the case. However, we may comment on the manner the dispute has been conducted.
Need for better legislation
In the dispute between Hoffman La Rouche and Cipla, the fight was between the two managements and fought out in the courts. Neither party took the issue to the press and to the general public.
The case of the engineering firms is quite the opposite. One of the companies launched a vicious publicity campaign against the other.
It appears that such tactics are unnecessary. A patent is a matter to be adjudicated on the basis of facts; there is no need to bring in the credibility and the ethics of either party.
In fact, such a move may actually prove counter-productive. On the whole, India does seem to need improved patent laws that will protect genuine inventors better and minimise disputes on trivial grounds. In brief, we may say:
The patent office needs to be strengthened both technologically and legally so that it can screen all proposals more efficiently than at present.
That is the only way genuine inventors will be protected and frivolous objectors silenced.
The Indian firms should learn to make patent proposals purely on facts of innovation and should avoid making claims on prior art. More pertinently, they should not withhold information and mislead the issue.
Many patent applications are liable to be disputed. That is a healthy sign that will ensure that only good ideas are patented. However, it appears best to resolve the issues first between managements and then only in the courts. It would be unfortunate if the matter is taken to the media to make it a scandalous news item.
As a matter of interest, IBM and Cisco had cross-licensing agreements for their patents. They found it was much cheaper than taking the matter to courts. Unfortunately, such agreements are useful only where the number of patents of each side is large.
Training in patent law
It is important that legal personnel too should be trained in patent law and in the economics of competition. In this dispute between the two manufacturers, a local judge has given peculiar relief to the defendant — he can manufacture the disputed technology but may not market it! Which manufacturer will manufacture and accumulate inventory with no guarantee that the product can be sold?
Likewise, in the dispute between two pharmaceutical industries, one of the reasons given in favour of the Indian company was that it was much cheaper. Patent disputes cannot be and should not be settled on the basis of cost.
India is entering the mode of innovation after nearly a thousand years of somnolence. There are practically no courses in our universities on patent law and its practice in India, let alone abroad. Patent attorneys are few and probably not as well trained as their counterparts abroad.
In the coming years, more and more disputes will arise between foreign and Indian companies; some of those cases will be tried abroad. Hence, that relative ignorance will be a handicap.
Above all, patent disputes should be treated as a technical and not as a political issue.
The media should follow and be free to comment on the judicial proceedings but it should not be used to colour the judicial process.
(The author is a former Director, IIT Madras. blfeedback@thehindu.co.in)
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