| Milind Sathe |
Opinion polls in the areas of technology, its perception or any national enactment have far reaching impact not only on the policies for internal administration but also on image of the nation on international platforms. Questions in opinion polls sometimes cover a broad spectrum of issues and logically it is not possible to opt a categorical option or choice such as “yes” or “no”. Normally the choices or options given are Yes/No/Can’t Say.
Response to opinion polls as “yes” or “no” in such cases, leads to wrong conclusions and unrealistic results. There are two main reasons. One is associated with the question and the qualitative aspects covered by question.
When a question is associated with plurality of issues and a dynamic situation, it cannot be answered in totality by expressing opinion over some limited aspects covered by the question.
Number of perspectives covered by the question or the depth of each aspect is so diverse that it is practically impossible to respond conclusively and completely for realistic satisfaction of the query. It means the question should relate to a singular aspect if realistic conclusions are to be drawn from responses to the question.
Second aspect relates to the extent of knowledge that the responder has about the subject matter of the question, his abilities to interpret the question and correlate it to aspect/s covered by question.
Ability of the responder to envision the spectrum covered by question, his insight into all aspects will govern the type of response and thereby the conclusions drawn from such opinion polls. It directly questions the reliability and validity of conclusions. It is impossible for anybody to address the diverse aspects and the entire spectrum covered by the question and to form a singular response in terms of Yes or No that is true and valid for all aspects.
The above two aspects, one which relates to the type of questions and second to the responder jeopardises and frustrates the basic motive of putting the question.
Therefore use of such opinion polls and reference to the conclusions drawn, can mislead the public at large. If it is used in any litigation it may impress the judge in a prejudicial manner. It can create a lot of difficulties in arriving at the truth. It will lead to wastage of taxpayer’s money besides creating difficult situations for the society.
The nation may lose maiden opportunity to establish a useful worthy precedent.
Let us analyse the possibility of responding to an opinion poll which questioned the ability of the Indian Patent enactment, try to understand the type of conclusions that can be drawn from the responses and judge the validity of possible conclusions.
Situation pre TRIPs is marked by absence of product patent which enables establishment of potent and contributing pharma sector that not only helped India but the world at large for supply of affordable medicines.
Post TRIPs, The Patents Act was amended several times to align it to TRIPs and it was done to conform to the deadline of 2005.
The said alignment was done systematically with extreme professionalism, worth imitating it by any least developed country which is supposed to align itself to TRIPs in the next four years. A quick summary of the process of this alignment is as follows:
- First amendment (1999): Exclusive Marketing Rights (EMRs) for post 1995 inventions. It created a facility of temporary monopoly of five years till mail box applications could be processed.
- Second amendment (2002): The Patents Act 1970 was made TRIPS compatible.
- Third amendment 2005:
- Full TRIPS compatbility;
- Internalisation of Doha Declaration;
- The Product Patent Regime came into force from 1.1.2005;
- Section 3 (d) denies patentability to minor improvements;
- Asserted governmental powers in health emergencies;
- Facilitated export of urgently needed drugs to countries which did not have the capability of producing them
With all these amendments, Indian Patent enactment is at par with any patent enactment anywhere in the world. One should always remember that few nations are intelligent enough to design other legal rules and enactments which impact patents and enforcement of patents. They have kept provisions out of patent enactment but these provisions severely impact the ability of the patentee to enforce the patent. These provisions are often present in laws governing competition and other premier documents such as constitution of the country.
Laws governing competition provide for forcible dilution of the patent monopolies in order to achieve objectives of competition laws. Some of such provisions produce the same effect as is produced by compulsory licensing provisions in patent enactment. Constitutional provisions in some countries provide for total neutralisation of patents and allow the State to use the patents without approaching the patentee for permission to use. These provisions are far more severe than compulsory licening (CL) provisions in Indian patent enactment. These nations have used these acidic provisions several times for several issues.
On the other hand, the record of use of CL in India is absolutely negligible. Record of use of provisions in Indian patent enactment related to forcible dilution of patent right are almost nil as compared to the use of similar provisions abroad.
With this input let us try to interpret the responses to this poll query:
Q) Do you think that the Indian patent law nurtures and promotes innovation?
Response “Yes”
It means The Patents Act of India encourages invention to the same extent to which any other Patent enactment that is conformity with TRIPs would encourage. This response presumes that respondent has understood harmony of Indian enactment with TRIPs and is well aware of TRIPs, flexibilities provided by it. It also indicates that respondent supports sovereign actions which are in conformity with law of the land. It also means that respondent acknowledges appropriateness and utility of the TRIPs compliant patent enactment with the national scene which is marked by inherent differences in structure of the economy, industry, consumption patterns and demographic needs of the nation as compared with the developed world. It also means that the respondent supports sovereign expression as is supported by laws of developed world. Most important is the intellectual approval to CL provisions.
Response “No”
It is interesting to analyse this response. If we presume that the response is due to some repugnant provisions in the Indian enactment, then which can be these provisions? When the law is in conformity with TRIPs, it doesn’t have provision that contradicts it. Had that been the case, we would have been isolated way back. It did not happen.
Although reports like 301 blame India for poor IPR structure, it is common sense to understand the selfish motive behind such blame game.
If we consider FDI to be indicator of required quality and level of patent enactment then our law has that inherent quality. Had there been a real fault in IPR frame in India, India would not have been favourite destination for significant flow of FDIs. There are many nations which have succumbed to international pressures, formulated obnoxious patent provisions contradicting national priorities and yet have failed to attract FDIs.
Still if the response is “No”, and if the responder is aware of the FDI flows, then what can be the motive for the negative response?
Is the negative response a careless response? Is it a white collared style to blame anything that is of Indian origin? If that is the reason, it should be done away with immediately. It creates wrong impression more about the responder than about India and its enactment.
If it is due to presence of CL provisions in Indian enactment, then responder needs to know more about prevailing provisions in other nations. 28USC1498 provides for use of patents by State without the permission of patentee. Indian CL provisions require a prior effort by CL applicant for licensing. Section 66 of Indian enactment is not the same as 28USC1498. Section 66 is more predictable and clearer than 28USC1498. CL provisions of Indian enactment are also predictable and clear. Above all these are TRIPs compliant.
In spite of this if the response is “No”, should one conclude that responder wants to have an enactment that is incapable of taking care of India, its needs and public interest? Should one conclude that responder wants to have legal provisions that contradict TRIPs? Should one conclude that “NO” is a motivated response engineered to defame India and its laws?
Response “Can’t say”
It seems to be the genuine and transparent response. May be the responder has some doubt but not sure about interpretation of some sections or is not sure if they conform to TRIPs or may be he is not able to extrapolate the impact of some provisions on innovation. May be he is aware that though constitution of some nations refer grant of exclusive rights to authors and inventors for limited times to promote the progress of science and useful arts, he is also aware of use of an invention described in and covered by a patent by the State without license of the owner or without the lawful right to use or manufacture the same.
At the same time he is confused by loud lopsided propagation by alleged IPR experts and IPR professionals criticising Indian enactment. Presence of more restrictive provisions in laws of developed world and their frequent use by them that constricts patentee might have confused responder and he is not able to decide why Indian patent enactment should be blamed at all. But then why few people, some of them Indian by birth say so?
So possibly the response “Can’t say” indicates the open mind and scope to understand the utility, appropriateness of Indian enactment.
Can this be said about the response “No”? Let the readers decide it.
Possibly in knowledge economy while opining on any national enactment, it is necessary to verify if national enactment conforms to any international agreement to which the nation is signatory and if the national enactment has fully exploited the flexibilities provided under the said agreement.
If the flexibilities are exploited fully, then the national enactment is good. If flexibilities are not exploited then national enactment is bad as non use of flexibilities is detrimental to free and fearless sovereign expression on international platforms. It amounts either to inadequate understanding of the international agreement or a great scope for better leadership at the apex level in the nation concerned.
Globalisation should be interpreted not as a freeway for foreign entities to invade domestic markets and rupture national economy but a means to strengthen national economy by successfully retaining control over domestic markets and expanding into foreign markets by fully exploiting the international agreements.
Any national enactment that ensures these objectives can never be labelled as “not nurturing and not promoting innovation. !!!!
*Views expressed in this article are personal