Backdrop
In the international arena today Intellectual Property Rights (IPR) are a focal point of debate. Many developing countries do not recognize the monopoly claims of patents and copyrights asserted by business in developed countries as legitimate. The developed countries, on the other hand, contend that strong protection of intellectual property is essential to provide incentives for future innovations and to ensure the competitive profitability of companies that spend on research. The developing countries generally support very flexible protection on intellectual property. They rightly argue that individual claims on intellectual property are subordinated to more fundamental claims of social well-being. If disputes over intellectual property are to be resolved, change must take place in the following areas:
• The socio-ethical legitimation of the property rules which govern action
• Transformation of management towards a global stakeholder model, and
• The building up of a coherent international public policy process.
In international trade and development circles a quiet but intense battle is on. It is all about intellectual property —a term which generally covers patents, copyrights, trademarks and trade secrets. The heart of the raging debate is whether such items should be protected by governments on a global scale, and if so, to what extent. Nowhere is the divergence of views sharper than between the developed and developing countries. All these factors combine—as Professor. R. A. Mashelkar, Director General, CSIR and Secretary, Dept of Science, Govt. of India, succinctly sums up— to “pose a challenge in setting up the new 21 st century IP agenda, especially for a country like India ”.
So it's no wonder that Netaji Subhas Open University—ever alive to and quick to come to grips with the socio-economic priorities increasingly impinging upon the emerging knowledge society in India—decided that the time was opportune enough to organize a national colloquium on the vital issues of Intellectual Property Rights. The Symposium was entirely sponsored by Ministry of Human Resource Development, Govt of India.
12 th August, 2005
Inaugural Session
In her Welcome Address Professor Surabhi Banerjee, Vice-Chancellor, Netaji Subhas Open University straight away laid bare the crux of the current global debate when she reminded the distinguished audience that the issues involved were of such a pivotal nature that the task of evolving IPR as an important and effective policy instrument demanded the most alert attention and response and brooked no delay. The developing world was at a crossroads and could waste no time in converting the challenges and opportunities confronting them into palpable triumphs, Professor Banerjee asserted. Given her great wealth of expertise and human resources, there was no reason why India should not be able to lead the field, Professor Banerjee declared.
The right note had thus been struck and Professor R. A. Mashelkar, Director General, CSIR and Secretary, Dept. of Science, Govt. of India and an internationally eminent authority on the subject, who delivered the Keynote Address, at once initiated the distinguished audience into the fascinating, challenging and enormously complex world of IPR.
Professor Mashelkar, whom this country owes its new-look, recognizably modern IPR regime naturally stressed the tasks ahead. The development of skills and competence to manage IPR was certainly a basic task. What was no less important, however, was a rapidly developing the country's ability to leverage its IPR clout. To its credit, India continuous evolved its IP laws to keep abreast the developments in the field. Since the issue of patent laws currently attracted global attention raising thorny issues, the country would surely need good patent laws.
The Patent Act 1970 addressed the needs of the day and enabled the drugs and pharmaceuticals industry to get onto its feet. Thanks to this Act, it is one of the most developed amongst the developing countries. But the context invariably decides the content, pointed out Professor Mashelkar. In 2005 the context is different. Therefore, change over to a new IPR regime was a must not only to meet the country's commitments under WTO but also to give a further fillip to industrial development. The third amendment bill that was enacted in March 2005 attempted to do precisely this.
He was confident that though the strategies would have to change with the coming of the new patent regime, Indian drugs and pharmaceutical industry would display enough resilience to take the new challenges in its stride and rise to the occasion as it did in the 70's. It's gratifying to note that this sector which was an importer even of formulations in the 50's ahs now become a net exporter. In his opinion the Indian pharma industry, apart from pursuing novel synthetic routes to known molecules, must pursue basic research for patent-worthy inventions comprising new molecules and forge partnerships with national laboratories in an orchestrated endeavour to surge ahead. The right beginning has been made, declared Professor Mashelkar as the industry has increased its R&D expenditure by about 500% in the last four years with at least 10 companies having embarked on new molecule discovery research. For its part CSIR has designed a unique public-private partnership (PPP) called “New Millennium Technology Leadership Initiative” (NMLTLI). According to him, it is the biggest public-private partnership in post-independent India involving 65 private sector companies and 160 institutions and universities. It has a high emphasis on drugs and pharma R&D partnerships with a string of unique successes to its credit.
However, Professor Mashelkar pointed out in this context that the challenge was not the drug industry alone and that it was for all industries. They must understand the fundamentals of the game of patenting. The knowledge based industries such as IT industry, Bio-technology, Micro-electronics, etc. would have to face new challenges in the new IPR regime, he warned. If India were to become an IT super power, the industry would have to reduce the content of body shopping and move on to innovative IT products needing IP protection.
But before IP could be protected, IP worth protection must be generated, said Professor Mashelkar. Our Institutions, National Laboratories and Industrial R&D Laboratories would have to gear up to achieve strong innovation base through a balanced system of recognition and rewards which was the need of the hour. The country would have to invest liberally to enhance the skills and knowledge base of scientists in understanding, interpreting and analyzing the technological and business information contained in IP documents and in drafting of IP documents for which the services of high class national and foreign consultants and attorneys would have to be harnessed. Man power planning for IP protection needed priority, said Professor Mashelkar. IPR must be made a compulsory subject matter in the law courses in the Universities of the country. Engineering and technology graduates in the country must have adequate idea about IPR because they would have to fight out the future battles in the global knowledge market in the none too distant future. Another challenge lay ahead of Indian academic institutions. The University of California, for instance, which garners around 400-500 U.S. patents has become a hub of Bio-Tech enterprises which have created billions of dollars of market capitalization, and provided jobs for 80% of its life science graduates. Yet quality hasn't suffered. They seemed to have understood well the respective roles of Saraswati and Lakshmi and also found a route from Saraswati to Lakshmi. Out academic institutions have so far failed to do this, lamented Professor Mashelkar.
There would be other actors in the play, too, Professor Mashelkar said. Our law courts needed more exposure while coming to terms with new developments in IPR field. Delayed judgment often proved fatal to the patentee. Special areas of concern to India included the reach traditional knowledge base in traditional medicine (TM). The grant of patents on non-original inventions (particularly those linked to TM) has been causing a great concern to the developing world. CSIR led the battle by challenging US patents in US law courts and winning landmark judgments. To mitigate this problem steps have been taken to create a Traditional Knowledge Digital Library (TKDL) by CSIR in partnerships with Dept. of Ayurveda, Yoga, Unani, Siddha and Homeopathy. TKDL would also lead to a Traditional Knowledge Resource Classification (TKRC). Eventually, Professor Mashelkar hoped, the creation of TKDL in the developing world would serve a bigger purpose in providing and enhancing indigenous innovation capacity, creating a knowledge pool and act as a bridge between the traditional and modern knowledge systems.
Professor Sudhendu Mondal, Director, National Library, Kolkata, who spoke next, cogently summed up the history of IPR development in India in the last century highlighting the convergence and complimentarity of the apparently conflicting priorities of the developed and developing countries.
Delivering the Inaugural Address, Sri Gopalkrishna Gandhi, the Governor of West Bengal and Chancellor, Netaji Subhas Open University added a valuable new perspective to the IPR debate when he reminded the audience that even at the height of the freedom struggle the greatest Indians of the age and fore most among them Gandhiji were certainly aware of these issues and how they affected the nation's interests. Independent India has come a long way since then, but the knowledge society emerging now couldn't afford to forget that its roots lay in the trials and tribulations of the colonial era.
Technical Sessions
The two technical sessions that followed offered fare no less rich and varied. The first session dealt with “Changing Scenario of IPR Regime in the Internet Age”. Professor Sudip Choudhury of Indian Institute of Management, Kolkata offered fresh insights into the IPR debate. Professor Indra Nath Choudhury, Academic Director, INGCA drew attention to some disturbing implications of the complexities of the emerging internet age in which copy-rights and freedom of expression tend to be enmeshed. Shi Biswajit Chatterjee, Dean, Faculty of Arts, Jadavpur University , Kolkata, who chaired the session, ably summed up the proceedings.
The second session in the afternoon was devoted to International Law and IPR. The speakers who went into various aspects of international copyright and patent laws included Mr. N. R. Seth, Controller of Patents and Designs, Patent Office, Kolkata and Dr. Samaresh Chakraborty, Senior Patent Attorney, D. P. Ahuja & Co. Mr. Subharthi Dey, Chairman and Managing Director, Dey's Medical given arresting overview of the pharma industry finding its bearings in the current complicated situation. “Implications of the Patent Regime 2005”—the cardinal theme of Mr. Dey's presentation—concentrated on some thought-provoking issues like Challenge of Co-Marketing, Government Intervention: To move the implementation date from 1995 to 2005, Price fixation with possible provision for certain Royalty to the Innovator, Compulsory Licensing, etc. His presentation was based on the statistical data of Indian Pharmaceutical industry. He also stressed upon the new patent strategies needed to be introduced at this stage—his vision says that Short term & Long term strategies based on Risks and rewards are to be introduced, Long Term Issues should be analyzed for procrastination of decision.
13 th August, 2005
Inaugural Session
Welcoming the distinguished guests to the second day's session Professor Surabhi Banerjee, Vice-Chancellor, NSOU underscored the appositeness of the seminar being held in collaboration with MHRD, Govt. of India. She thanked both Professor Satyasadhan Chakraborty, Minister, Dept. of Higher Education, Govt. of West Bengal and Dr. Suryakanta Mishra, Minister, Dept. of Health and Family Welfare, Panchayat and Rural Development, Govt. of West Bengal for giving the University so generously of their valuable time and energy. Professor Chakraborty always remained an unfailing source of inspiration to the University, recalled Professor Banerjee, who also expressed gratefulness on behalf of the University to Professor Chakraborty and Dr. Mishra. Dr. Mishra also rose to the occasion in the past and helped the University in every way that mattered, Professor Banerjee says. Their association with this State Open University has naturally been an eventful one as the University has rapidly become the fulcrum of a myriad academic enterprises and activities— emerging in the process as a people's University in the true sense of the term as well as a major player in the ODL arena. A glimpse of its exponential growth and singular catalytic role in the field as a mega University coming into its own is to be seen in the fact that NSOU has, in hardly little over 3 years, increased its intake of students from 3000 to well over 65000 expanded the Study Centre network from 12 to 142 and now offers a varied and copious academic platter of more than 60 Courses of all kinds. No wonder that NSOU has entered into collaborative agreements with premier national institutes in diverse fields and forged links as well with foreign universities and international academic organizations of global eminence, observed Professor Banerjee. She added that it was entirely in the fitness of things and inevitable, too, that an institution of NSOU's stature and wide social outreach should, sooner than later, act as a forum for evolving a consensus on such crucial matters as Intellectual Property Rights. The audience had the good fortune of hearing Professor Mashelkar, the father of the modern Indian IPR movement, speak the day before. Dr. Mishra, an expert on the subject, would speak now and Professor Banerjee hoped that the audience would surely benefit from his learned discourse.
Dr. Suryakanta Mishra offered a powerful critique of the current IPR debates. The developed countries or the so called first world was in a commanding position and sought to impose, quite blatantly, quite brazenly, through WTO and other arrangements, an IPR regime of its own choosing on the developing world which naturally found itself at a disadvantage and at the receiving end. Therefore, a developing country like India could ill-afford to lower its guard. While increasing globalization and the movement towards Knowledge Society were inevitable, India , in order to hold their own and negotiate the transition from a developing to a major industrial country, must prioritize her tasks and forge IPR as an important policy instrument. The need of the hour was not to accept uncritically everything emanating from the West and develop an IPR agenda chiefly based on the country's felt needs, resources and wealth of knowledge and expertise both conventional and modern. Dr. Mishra next proceeded to demolish certain popular myths. Contrary to glib claims—Dr. Mishra asserted—more and new R&D has simply not happened, no new life-saving drugs have been developed, though lifestyle drugs like Viagra have proliferated. India 's share of the global pharma market remains a miniscule 0.8% while the USA commands a whopping 33% of the same.
Professor Satyasadhan Chakraborty, Minister, Dept. of Higher Education, Govt. of West Bengal, who spoke next, had a word of praise for NSOU's path-breaking efforts to take quality education straight to the people even outside the structured conventional system through the Open and Distance mode by harnessing latest educational technology such as EDUSAT. This was how NSOU strove to translate the vision underlying the concept of Open Education into a tangible reality. Organizing National Symposiums of this kind and offering a forum for evolving consensus on vital issues naturally formed the an integral part of spreading education and creating awareness which could not be achieved without education in the first place. Hence the relevance of a symposium on IPR could not be underestimated. While accelerating globalization and knowledge based society were the shape of things to come, the country would do well to examine these trends very carefully and evolve her own programme of industrialization based on a suitable IPR regime because there was enough evidence the world over for apprehension widely shared by the developing countries that globalization of the Western kind often concealed designs to perpetuate Western domination. Yet for all her backwardness, India was now well placed to use the most powerful weapon of knowledge to her advantage and emerge eventually as a major Knowledge Society.
Technical Sessions
The two technical sessions on “IPR and the Developing Nations” and “IPR and International World Order” threw new insights into those areas of IPR research. Speakers of the first technical session in the afternoon include Dr. Amitava Chakraborty, Asst. Controller of Patents and Designs, Dr. S. K. Mitra, Asst. Controller of Patents and Designs, Patent Office, Kolkata, Mr. Barun Das, Divisional Head-Legal and Company Secretary, Exide Industries Limited. Dr. Chakraborty shared his valuable ideas on “Amendment of Indian Patents Act in View of TRIPS and Other International Treaties and Developments”. In this connection he reviewed the evolution of patent-related acts, their provisions and basic principles with utmost precision. His statement delineates with the nitty-gritty of Indian Patent Act. Dr. S. K. Mitra elaborated on “Role of Pharmaceutical Industry in New IPR Regime”. He established his views with detailed statistical data. His suggestions about patenting include the following points—benefit of Patent System should be shared, resource through Organized R&D Activities has to be utilized, the global market should be captured judiciously and we should earn profit through protected market. Justice Aniruddha Bose, Calcutta High Court, who chaired the session, precisely summarized the proceedings of the session.
The last technical session of the two-day national symposium was graced by Professor Sekhar Ghosh, Burdwan University , Burdwan. The session was chaired by Mr. Anjan Sen, IPR Attorney, who concluded the session summarizing the outcome of the entire session with this pertinent remark—“ Intellectual Property emerges from creation of inventions of human beings with their intellectual capacity. It includes all rights resulting from intellectual activity in the fields of literary, artistic, design, scientific, industrial and commercial fields.”
