The Bayh-Dole Act has been a part of USA legislation since 1980. Though the act is more than 30 years old, it is still debatable. Yet, it has been adopted by many other countries. India is not an exception; the bill is already proposed and waiting for approval in the Parliament. The proposed legislation is known as “The Indian Protection and Utilization of Public Funded Intellectual Property Bill of 2008” (hereinafter the “Bill”.)
It is well understood that IPR (intellectual property rights) is a major tool for commercialization of technology. The Bill aims to create awareness of the importance of IPR and value the research done by public sector. It is thought to promote technology from universities and Government-funded research institutes by bridging between public and private sectors for the benefit of the people as well as scientists who serve the public sector. Additionally, the Bill makes compulsory that inventors must be paid a minimum of 30% royalties which is generated by the licensing of the technology resulting from publicly-funded research.
Nonetheless, technology transfer managers in India view the Bill with great skepticism. From the manager’s perspective, there are many aspects of the Bill that were not realized or were ignored by framers of the legislation, and that will have unexpected results. Here are some concerns of technology transfer managers.
• The scope and reach of the Bill may cause traditional fundamental and basic research of the universities to shift to commercial or market oriented research only.
• There is concern that the original Bayh-Dole Act has never successfully used the safeguards to allow for public access in the case that a publicly funded innovation was not made available on reasonable terms. Instead of fixing this problem, the Indian Bayh-Dole Bill currently includes even fewer safeguards aimed at preserving public access.
• The Act only promotes the IP licensing route for making research results available to the public and ignores other accepted ways of transferring knowledge to the public such as papers, teaching, open source models, mentoring graduate students, and more.
• The proposed legislation, which is an Indian adaptation of a 30-year old Act, has been amended 52 times this year only in response to public outcry. Even so, the Bill does not promote other routes other than IP licensing for commercialization, such as public-private partnerships, spinoffs, partnership with incubation companies and more, for commercialization of technology.
• The research results from government organizations or government-funded research will not reach the public because scientists are unable to convert their work into products. Even so, the Bill now places measurable obligations on the researchers for commercialization of their work.
• In India, most of the research carried out in government or government-funded organizations fail to address industry needs or requirements. As an example, the Council of Scientific and Industrial Research (CSIR), the top government agency for patent filings, has filed more than 1000 patents, of which approximately 100 technologies have been successfully commercialized. This proves that government organizations do not clearly understand the industry and societal requirements. Indian industry is based upon success in marketing; industry does not have confidence in publicly-funded research.
• An additional major problem with the legislation is that in some of the premier research institutes of India the researchers can commercialize their research but patent ownership is retained by the government. In such cases, if a dispute arises on patent ownership then there is no concrete law to protect the rights of researchers. The proposed Bill says that inventors have to make attempts to commercialize the research in 90 days after former disclosure of invention. If they fail to do so, the IP rights will be transferred to the government.
• The Bill will provide plenty of opportunity to create money for some scientists who are in touch with industry. The technology transfer organization can play a very crucial role in suggesting proper commercialization techniques for these scientists to commercialize their products. Whereas, in case of most institutes in India, it will be difficult to achieve “break even” after considering patent costs.
• The Act provides the possibility to make some scientists wealthy. However, giving money as a reward to some scientists to commercialize their work may lead to divert an institution’s efforts to a pathway that leads only to research work for IP commercialization, as researchers may lose their interest in working on any projects that serve to advance basic science and knowledge.
• Many Indian Intellectual Property and Technology Managers feel that “The Indian Protection and Utilization of Public Funded Intellectual Property Bill of 2008” will benefit the corporate sector rather than the public.
Private firms would be the major beneficiary of this Bill as they will be able to obtain public research technologies at a very low price. Government scientists will also sell their technologies at a very low price and with less terms and conditions.
Many experts say that this Indian Bill was drafted by considering the US Bayh Dole Act without considering the differences between Indian and US research capabilities and practices. For these reasons, this “copycat” Bill will fail to deliver any results similar to those of the Bayh-Dole Act. In India, most of the value and economical contribution achieved by research of government institutes and universities come not from patents, but through knowledge dissemination, publications, trainings, seminars and conferences. Will the Act now terminate these methods of disseminating information to the public?
In India research institutes are divided under the Indian Council of Medical Research (ICMR), Indian Council of Agriculture Research (ICAR), Council of Scientific and Industrial Research (CSIR), Department of Bio-technology (DBT) and Defense Research and Development Organization (DRDO). ICAR has more than 200 research institutes. However, in India plants and seeds are not patentable. The Bill solely addresses patentable inventions, hence there would not be much agriculture research IP to commercialize as most agriculture technologies fall under non-patentable subject matter.
The major lacuna of this Bill is that it is not taking into account rural agriculture inventions. There are many NGO’s doing well in rural inventions in India, these inventions and technologies are going to help 60% of the population of India. There is no encouragement or incentive to inventors who are working in this informal sector. This Bill is more likely to simply be a topic of conversation between the agricultural research institutes.
In addition, every technology requires at list two or three patent to carry out the working of the technology. Small and medium scale industries will find it difficult to bargain with individual inventors to acquiring parts of technology, and hence only large corporations can afford to acquire full licenses. Thus, big market players will have monopolistic positions in the future as a result of the Bill, especially in the pharmaceutical and biotechnology industries. India is lacking in venture capital required for patents, technology development and other factors needed for commercialization, thus giving big market players an even greater monopolistic position.
A key aspect of licensing of university inventions under the Bill is the possible grant of exclusive licenses to industries, with the help of technology transfer managers as intermediaries. Though the proposed Act will help in commercialization of the technologies which are generated by publicly funded research, it does not mean that currently technology transfer is absent in universities.
This upcoming Bill will create very scary patent thickets. Nonetheless, the legislation will give strong support to the universities and scientists who serve the public sector for the protection and evaluation of their intellectual properties. Therefore, the proposed legislation will create various opportunities for employment as well as accelerate the technology commercialization process. On the positive side, one could say that the corporate sector will acquire more and more new technologies while government institutes will receive more funds for research, and the public will then have more choices in market, with new technology and products.
It is well understood that IPR (intellectual property rights) is a major tool for commercialization of technology. The Bill aims to create awareness of the importance of IPR and value the research done by public sector. It is thought to promote technology from universities and Government-funded research institutes by bridging between public and private sectors for the benefit of the people as well as scientists who serve the public sector. Additionally, the Bill makes compulsory that inventors must be paid a minimum of 30% royalties which is generated by the licensing of the technology resulting from publicly-funded research.
Nonetheless, technology transfer managers in India view the Bill with great skepticism. From the manager’s perspective, there are many aspects of the Bill that were not realized or were ignored by framers of the legislation, and that will have unexpected results. Here are some concerns of technology transfer managers.
• The scope and reach of the Bill may cause traditional fundamental and basic research of the universities to shift to commercial or market oriented research only.
• There is concern that the original Bayh-Dole Act has never successfully used the safeguards to allow for public access in the case that a publicly funded innovation was not made available on reasonable terms. Instead of fixing this problem, the Indian Bayh-Dole Bill currently includes even fewer safeguards aimed at preserving public access.
• The Act only promotes the IP licensing route for making research results available to the public and ignores other accepted ways of transferring knowledge to the public such as papers, teaching, open source models, mentoring graduate students, and more.
• The proposed legislation, which is an Indian adaptation of a 30-year old Act, has been amended 52 times this year only in response to public outcry. Even so, the Bill does not promote other routes other than IP licensing for commercialization, such as public-private partnerships, spinoffs, partnership with incubation companies and more, for commercialization of technology.
• The research results from government organizations or government-funded research will not reach the public because scientists are unable to convert their work into products. Even so, the Bill now places measurable obligations on the researchers for commercialization of their work.
• In India, most of the research carried out in government or government-funded organizations fail to address industry needs or requirements. As an example, the Council of Scientific and Industrial Research (CSIR), the top government agency for patent filings, has filed more than 1000 patents, of which approximately 100 technologies have been successfully commercialized. This proves that government organizations do not clearly understand the industry and societal requirements. Indian industry is based upon success in marketing; industry does not have confidence in publicly-funded research.
• An additional major problem with the legislation is that in some of the premier research institutes of India the researchers can commercialize their research but patent ownership is retained by the government. In such cases, if a dispute arises on patent ownership then there is no concrete law to protect the rights of researchers. The proposed Bill says that inventors have to make attempts to commercialize the research in 90 days after former disclosure of invention. If they fail to do so, the IP rights will be transferred to the government.
• The Bill will provide plenty of opportunity to create money for some scientists who are in touch with industry. The technology transfer organization can play a very crucial role in suggesting proper commercialization techniques for these scientists to commercialize their products. Whereas, in case of most institutes in India, it will be difficult to achieve “break even” after considering patent costs.
• The Act provides the possibility to make some scientists wealthy. However, giving money as a reward to some scientists to commercialize their work may lead to divert an institution’s efforts to a pathway that leads only to research work for IP commercialization, as researchers may lose their interest in working on any projects that serve to advance basic science and knowledge.
• Many Indian Intellectual Property and Technology Managers feel that “The Indian Protection and Utilization of Public Funded Intellectual Property Bill of 2008” will benefit the corporate sector rather than the public.
Private firms would be the major beneficiary of this Bill as they will be able to obtain public research technologies at a very low price. Government scientists will also sell their technologies at a very low price and with less terms and conditions.
Many experts say that this Indian Bill was drafted by considering the US Bayh Dole Act without considering the differences between Indian and US research capabilities and practices. For these reasons, this “copycat” Bill will fail to deliver any results similar to those of the Bayh-Dole Act. In India, most of the value and economical contribution achieved by research of government institutes and universities come not from patents, but through knowledge dissemination, publications, trainings, seminars and conferences. Will the Act now terminate these methods of disseminating information to the public?
In India research institutes are divided under the Indian Council of Medical Research (ICMR), Indian Council of Agriculture Research (ICAR), Council of Scientific and Industrial Research (CSIR), Department of Bio-technology (DBT) and Defense Research and Development Organization (DRDO). ICAR has more than 200 research institutes. However, in India plants and seeds are not patentable. The Bill solely addresses patentable inventions, hence there would not be much agriculture research IP to commercialize as most agriculture technologies fall under non-patentable subject matter.
The major lacuna of this Bill is that it is not taking into account rural agriculture inventions. There are many NGO’s doing well in rural inventions in India, these inventions and technologies are going to help 60% of the population of India. There is no encouragement or incentive to inventors who are working in this informal sector. This Bill is more likely to simply be a topic of conversation between the agricultural research institutes.
In addition, every technology requires at list two or three patent to carry out the working of the technology. Small and medium scale industries will find it difficult to bargain with individual inventors to acquiring parts of technology, and hence only large corporations can afford to acquire full licenses. Thus, big market players will have monopolistic positions in the future as a result of the Bill, especially in the pharmaceutical and biotechnology industries. India is lacking in venture capital required for patents, technology development and other factors needed for commercialization, thus giving big market players an even greater monopolistic position.
A key aspect of licensing of university inventions under the Bill is the possible grant of exclusive licenses to industries, with the help of technology transfer managers as intermediaries. Though the proposed Act will help in commercialization of the technologies which are generated by publicly funded research, it does not mean that currently technology transfer is absent in universities.
This upcoming Bill will create very scary patent thickets. Nonetheless, the legislation will give strong support to the universities and scientists who serve the public sector for the protection and evaluation of their intellectual properties. Therefore, the proposed legislation will create various opportunities for employment as well as accelerate the technology commercialization process. On the positive side, one could say that the corporate sector will acquire more and more new technologies while government institutes will receive more funds for research, and the public will then have more choices in market, with new technology and products.
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