We are happy to bring to our readers a guest post by two esteemed US law professors, Prof. Colleen V. Chien and Prof. Jorge L. Contreras. In this post they emphasize upon the need for data-driven IP policy making in India. We had blogged on this theme earlier here.
“Made in India” Innovation Policy
Prof. Colleen V. Chien and Prof. Jorge L. Contreras
A few weeks ago we were honored to participate in Jindal Global Law School’s Conference on “Innovation for Shared Prosperity”. Much of the conversation was centered on the important topic of how intellectual property (IP) policy can best support manufacturing and entrepreneurship initiatives like the “Startup India” and “Make in India”. In turn, we believe it’s also important to think about how best to foster IP policies that are truly “made in India”. In light of India’s history of implementing certain IP policies because it had to, not because it wanted to, for example recent homegrown commitments to strengthen the patent system by reducing the time to patent are notable.
The record is already replete with examples of indigenous innovation by Indian policymakers. Whether section 3(d), Form 27 patent working disclosures, or the “Middle Path” approach to requiring deposits in standards essential patent disputes – agree or disagree with them, these Indian approaches to innovation policy are themselves innovative.
But one problem that we have observed is that the data available to develop and evaluate Indian IP policies tends to be thin. With respect to patents, for example, it is hard to access patent records, as there are often long delays before patent applications, patent working disclosures and other documents are uploaded to the Indian Patent Office (IPO) web site, notwithstanding statutory requirements and IPO policies. While there have been some published reports of cases and published decisions (Mathur 2007, Ghosh 2012), it is generally hard, as it is in other jurisdictions, to match patent filings to them to court filings, assignment records, citations, prior art and other metrics of interest. This isn’t true just of India but many other countries. But to support world class, data-driven policy making, support for analytical work, combined with data access, is needed. This is particularly important given the demonstrated gap between rules on the books, which may appear harmonized, and rules in practice, which are not.
In developing policy, it is often useful to start with the ultimate policy goal – whether it be further improving the country’s ranking on the Innovation Index or taking a place at the international standard setting table – and then developing data-based metrics to demonstrate progress toward that goal. The assumptions behind conflicting policy positions can then be tested and vetted against actual experience within the Indian setting. It is through these processes that a “made in India” innovation policy will be truly indigenous, reflecting not only political mandates and theories, but the demonstrated experience of India’s technical, business, and legal communities.
Historically, there have been relatively few empirical studies to support data-based policy making. In the non-exhaustive list below, we highlight several studies and reports (some our own) that demonstrate the usefulness and power of empirical data:
- One topic about which there have been an exceptional number of empirical studies is the Indian pharmaceutical sector. Duggan and collaborators (2012, 2014) studied the relationship between drug prices and pharmaceutical patent issuances in India, and Lanjouw and Cockburn (2000) and Nandkumar and Srikanth (2011) explored the relationship between Indian patent issuance and strength and R&D spending. Recently Sampat and Shadlen have found that policies to discourage so-called “secondary” drug patents in India and Brazil have had little direct effect.
- With the initiation by foreign patent holders a few years ago of infringement suits against a variety of domestic Indian and Chinese smartphone manufacturers, many wondered how much of the Indian mobile device patent landscape was already in the hands of foreign companies. Contreras, together with Rohini Lakshané of the Centre for Internet and Society, conducted a study to find out. Their results were telling: of approximately 23,500 total Indian patents and published patent applications in the mobile device sector, only 50, about 0.00% were owned by Indian companies. It is hoped that this eye-opening result will help mobilize Indian firms and policy makers to address the lack of Indian participation in international technology standardization efforts.
- WIPO publishes statistics yearly about India’s relative rank with respect to a number of innovation metrics. While many are aware that India ranked 66th in this year’s Global Innovation Index, up 15 places from 2015 (Switzerland ranked 1st), WIPO’s 2015 IP indicators report contains other findings: that India ranks in the top 15 globally in terms of patent filing activity, that non-residents are using the Indian Patent Office more heavily than are residents (Fig. 2, p. 23) and that recent filings have been dominated by computer technology, organic fine chemistry and pharmaceuticals. Others have relied on WIPO statistics to compare India’s performance with that of China and other BRIC countries.
India is by nature an innovative nation. Its innovative spirit manifests itself both in terms of technology creation as well as policy development. Nevertheless, without robust, reproducible and broadly accessible data, policy decisions will continue to be based on intuition, guesswork and partisan advocacy by those having the most to gain from the system. We encourage the Indian government and academy to continue to devote resources to develop a robust data culture within the Indian intellectual property community and to make the underlying data as widely available as quickly as possible.
Image from here