Patents, Innovation & University Research: A Few Questions about the Indian Narrative – Part I

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We’re pleased to bring you a two-part guest post by Victor Vaibhav Tandon. Victor is an academician turned lawyer. He’s also a registered Patent Agent and holds a Ph.D. in patent law. After teaching as a faculty in a prominent NLU, he joined the IP firm Saikrishna & Associates where he’s part of a team dealing with pharmaceutical and SEP litigations. He continues to teach as a visiting faculty for PGDIPR courses in ILI and ISIL.

Patents, Innovation & University Research: A Few Questions about the Indian Narrative – Part I

Victor Vaibhav Tandon

Over the past few years, in keeping with the National IPR Policy 2016, there has been an increased focus on promotion of IP and IP education in, inter-alia, various educational institutions and universities in India. The thrust of most such activities, especially in institutions/departments/faculties relating to STEM (Science, Technology, Engineering and Mathematics), has been on patents. Given the relationship between scientific research, inventions, patents and eventual commercialization of patented technologies, this is perhaps justified. There has been, generally, a renewed emphasis on patents and their role in innovation and development. Given our dismal record of patent filings, this perhaps is also justified. For example, and a more extensive discussion on the patent filing data will be done in a later section, the total number of patents in force in India till 31^st March 2018, as per the last available Annual Report of Controller General of Patents, Designs and Trade Marks (CGPDTM, 2017-2018), was 56,764 of which a mere 8,830 patents belonged to Indians. Inspite of all the problems patents create and all the jurisprudential dilemmas associated with patent law, this is a sobering statistic. Amongst the several stakeholders and creators of IP (including grass root innovators, start ups, MSMEs and major industries), a brief look at universities and higher education institutions in India can be quite enlightening, as regards the systemic shifts needed to improve innovation and, consequently, the acquisition of patents. Further, one has to understand the role of the patent system itself, it is no magic wand, but like any other area of law, something that is useful and raises quite a few dilemmas.

Patents and the Incentive to Innovate

It is problematic to think that the existence of patents by itself will spur innovation. Interestingly, one of the several justifications for grant of the patent system is the economic rationale of patents as an incentive to innovate. However, equally there are authors who state that role of patents in stimulating innovation is questionable and that “empirical support for any of these innovation theories is mixed, with a number of surveys indicating that outside the drug industry, patents are a less effective means of appropriating market exclusivity than secrecy or lead time” (See Lise Oullette’s “Do Patents Disclose Useful Information” pages 541-42, here). In a similar vein, Jayashree Watal, in her seminal work, had noted that, “there have been many studies that show that patents are not necessarily the most important economic instrument for generating innovation, except in certain industries such as pharmaceuticals or specialized chemicals”. And even in the pharmaceutical sector, patents have been fraught with troubles and difficult questions, as a recent post on this blog has shown.

Further, patents have also been accused of thwarting follow-on or downstream innovation, something labelled as the “tragedy of the anti-commons”. In simplistic terms, a more complex or downstream invention will require negotiating licenses with patentees who hold patents over upstream inventions that might be needed to make the complex/downstream invention. This means that the cost of making the latter will go up and the existing patents will actually constitute a barrier to further innovation. Of course, there are other problems as well with the patent system, including those of abuse of patent rights as well as fears of reducing access to knowledge goods. Be that as it may, the patent system does enable disclosure of technical knowledge and can be a useful tool in raising funds and in the commercialization of inventions. It is also, perhaps, the most suitable system we have as of now and cannot be just wished away. It needs to be understood that the patent system is just one piece in the jigsaw of innovation, and that open-science, collaborative research, optimised research environments and research funding are equally important. With this background, we can now look at some of the patent data concerning India.

The Statistics of Patent Filings and Grants

We look, firstly, at the patent filings and grants in India.

Table 1: Patent Filings and Grants in India

[Source: Annual Reports of the Controller General of Patents, Designs and Trade Marks, CGPDTM, for the years 2013-2014 to 2017-2018 available at http://www.ipindia.nic.in/annual-reports-ipo.htm]

To view these statistics in perspective, a look at patent filings (direct and PCT national phase) in USA, Germany, Japan and China for the years 2017 and 2018 can be useful,

Table 2:  Patent Filings in Selected Countries

[Source: WIPO IP Statistics Data Center. It should be noted that patent eligible inventions and patentability standards across jurisdictions vary, therefore, a lot of inventions eligible in say USA, might not be patent eligible in India. Also, note that all the WIPO data is year wise, such as for 2018 whereas the Indian data was for the ranges, such as for 2016-2017, 2017-2018 etc.]

In the Indian context, even though filings by Indian entities/individuals and grants thereto have constantly increased, they are still quite less as compared to corresponding figures for foreign entities/individuals. Further, prosecuting a patent application in India generally takes number of years, and therefore, the granted patents in a particular year probably resulted from applications filed at least 2-5 years earlier. Moreover, many applications are also rejected by the patent office and, therefore, every filing will not result in a grant. In context of university research in India, which we largely focus on, the IP office data also shows that not one of the vaunted Indian universities like DU, JNU, BHU, Jadavpur University, JMI or AMU featured in the list of top 10 filers/applicants in category of institutes and universities. This has been true for all the five years under consideration (2013-2014 to 2017-2018). And this is in spite of the fact that all these universities have reputed science and/or engineering faculties and departments with a number of doctoral, post-doctoral researchers and STEM academicians engaged in research. Whether the situation has changed in the past two years cannot be said in the absence of data. Interestingly, in the case of DU, even though there has been a surge in the number of IP related seminars in almost all colleges and science faculties, the MHRD IP chair has remained defunct for quite some time. In fairness, it must be understood that the number of filings could be a dangerous criteria of judging the level of research and innovation since, firstly, IP protection might not be sought for most STEM research (for example, when researchers simply go ahead and publish their findings) and secondly, not all filings will result into patents. However, equally there can be no patent grant without a filing..  Hence, as far as the filings go, there is an incredibly huge room for improvement for most Indian universities. Quite distinct from other institutes and universities, IITs (collectively), NITs, IISc, and (in the category of scientific and R&D organisations) CSIR, ICAR, DRDO and ISRO have been quite active in filing patent applications in India.

In view of this, the first question is, what ails Indian universities when it comes to patenting? One answer could be the lack of awareness about patents or IPRs. But the question probably needs to be seen in a larger context- that of research and innovation in India and, specifically, in Indian universities. Will the increased emphasis on acquisition of IP (including patents), alone, spur research and innovation in Indian academia? And, in this context, are we giving enough importance and impetus to university-industry partnerships (which could be a good source of funding and motivation for focused research)?

Another probable reason for lesser filings by most universities could be the cumbersome procedure for obtaining university approval for filing applications. Some universities tend to have IP cells to facilitate IP filings. But the procedures of considering requests from professors and research scholars adopted by these cells often reek of red tapism. Further, sometimes the cells could be defunct as is the case with MHRD IP Chair at DU. Perhaps, looking into some of these areas is important for increasing university innovation as well as patent acquisition by the universities. Part II of this post deals specifically with the Indian research and innovation environment, focusing primarily on university research, and tries to highlight some of the issues that deserve our attention.

Please click here to view Part II of this post.