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Brief Observations
on new
Intellectual Property
Policy
for
India
(2016)
Ravi Dhar, Ph.D.
(rdhar_in@yahoo.com)
18.05.2016
(Mobile: 987-162-0439)
1RD_IPR Policy 2016

RD_IPR Policy 2016 2
Past Affiliation:
BIRAC-DBT, GoI, India
National Institute of Immunology, (NII),
India
Johns Hopkins University, U.S.A.
LSU, U.S.A.
OTT, Boston University, U.S.A.
OTT, NIH, U.S.A.
University of Delhi, India

RD_IPR Policy 2016
Acknowledgements
PFIPB Policy, Bill no. LXVI of GoI-2008 (www.prsindia.org)
Ravi Dhar & K.S. Kardam (5.6.2013) Patent News & Views – Birac
(www.birac.nic.in>Patenting_in_India)
Importance of Article 3-d of Indian Patent Law.
ndtv.com: Arun Jaitley announces Intellectual Property Rights Policy:
Highlights. May 13, 2016
www.thehindu.com> article8594387 (Cabinet approves National Intellectual
Property Rights Policy. May 14, 2016.
The Hindu: An IP Policy with no innovation. May 17, 2016
The Indian Express: Intellectual Property Rights: Ne Policy may power R&D,
national growth. May 17, 2016
www. Ip-watch.org. May 15, 2016
NIH PubMed
Scientific Community across world
DBT/ NII/ BIRAC
STEM, Hyderabad & Skyquestt, Ahmadabad
Journal Intellectual Property Rights, Vo. 15, pp.19-34, 2010
DELCON Library Services
Dr. M.K. Bhan
Various Websites
OTT, Boston University (Dr. Jerry Keusch & Dr. Ashley Stevens)
OTT, NIH
4

India needs to be “pleasantly rigid
within interpretation of WIPO/WTO
laws” in it’s IPR policy, as it is directly
related to
Human Welfare, Public Health, Food-,
Environmental- & Energy-Security,
apart
from Defense Security
(RD-2016)
5RD_IPR Policy 2016

Ownership or assignment:
Should Patents should be assigned to the
Academic or R&D institution where the
invention or technology was worked?
No assignment of inventions should be allowed
for any foreign organization or individual
inventor/s. However, foreign inventors should
be on the list of inventors, if their contributions
are serious.
(Disclaimer: The ownership issue needs further debate following
introduction of PFIP Bill of 2008, & approval of National Intellectual Rights
Policy, 2016)
6RD_IPR Policy 2016

Background
7RD_IPR Policy 2016

The Protection
&
Utilization of
Public Funded Intellectual
Property-2008
8RD_IPR Policy 2016

Utilization of Public Funded Intellectual
Property Bill-2008 (PFIPB-India), was
formulated to hopefully provide for the
protection and utilization of intellectual
property originating from public-funded
research.
In-spite of the recently approved National
Intellectual Policy Rights Bill by Indian
Government Cabinet in May 2016, there is
scope for further modification of some of the
existing IP rules, and of the technology
management practices, to protect Indian
interest
9RD_IPR Policy 2016

Is PFIP the way forward to
achieve pubic interest goals??
10RD_IPR Policy 2016

The text of original version of PFIP bill may be accessed at (www
PFIPB Policy, Bill no. LXVI of GoI-2008 (www.prsindia.org). The
objectives, that the government has in mind are: (i) to make the
institutions self sufficient by incentivizing commercialization of IP.; (ii)
The Bill seems to penalize the scientists who publicly disclose IP
without a 30 day notice, and institutions that fail to protect IP, if there
is a commercial potential. “It is not clear whether these provisions
create an enabling environment for commercialization or stifle
innovation”. This could also lead the institutions to focus more on
commercial research and ignore basic research which is future of
innovations after next 30-50 years; (iii) The Bill requires the scientist
and the institution to inform the government about an IP and list the
countries in which it wants to retain the title. Given that an IP is
created only after a patent is granted, it is not possible to intimate the
government of the intention to retain the title to the PFIP prior to that
time;

(iv) Two (2) of the Bill’s objectives are to encourage innovation in small
and medium enterprises and to promote collaboration between
government, private enterprises and non-government organizations.
However, provisions to achieve these objectives are not clearly defined in
the original bill. Besides these, the government needs to remove mistrust
between industry and academia for which legal enabling mechanisms
must be designed. Such an effort has been initiated by various
government organizations like DBT, BIRAC,DST, CSIR, ICMR and DRDO;
and (v) The Bill aims to incentivize innovation by sharing at least 30% of
the royalty with the scientist. This mechanism is already followed by
numerous institutions for the last 20 years or so, but the level of
commercialization is very low. Many of the autonomous institutes share a
much higher percentage of royalty than 30% mentioned in the bill.
Government needs to get a study done to understand the reasons for low
productivity, lacunae in the implementation and fair distribution of the
royalty by stake holders including the ones dealing with technology
management.

Important note:
Some of the articles of PFIPB Policy 2008 were too harsh on
Scientific community, because of which the 2008 Bill did not
get universal approval
Scientific pursuits also needs some flexibility to the investigator
It is also not always feasible to wait for publication of important
research interest till you patent &
lose race in publication of quality science to other people from
one’s own, or from a foreign country

•Excessive patenting lead to gridlocks and retards innovation (see
BRCA1 diagnostic kit controversy & it’s reversal as in U.S.A.)
•This bill makes it mandatory as to what is optional at the moment is
already being followed by many autonomous organizations (DBT
institutes follow this)
•“Copyright, trademark, etc., seem to be covered under the definition
of “public funded IP”.
•It will result in a form of double taxation for research, and will
increase the consumer cost of all products based on publicly-funded
research (How???)
•This might result in discouraging fundamental research as well as
discouraging industrial research (already hue and cry by scientists).
•Non-disclosure requirements in the Bill restricts the dissemination of
research within the academic community, and curtails freedom of
openly discuss their research findings.
Exclusive licensing enables restriction on the dissemination of
academic research in the marketplace, and increase in cost of products
based on public-funded research.”

What the GOI Guidelines suggest for Private
Industry as on 19.4.2011: (PG)
“IPR generated through joint research by institution(s) and
industrial concern(s) through joint efforts can be owned
jointly by them as may be mutually agreed to by them,
through a written agreement. The institution and industrial
concern may transfer the technology to a third party for
commercialization on exclusive/non-exclusive basis. The
third party, exclusively licensed to market the innovation in
India, must manufacture the product in India. If that is not
possible, options outside country must be exploited. The
joint owners may share the benefits and earnings arising
out of commercial exploitation of the IPR. The institution
may determine the share of the inventor(s) and other
persons from such actual earnings. Such share(s) shall not
exceed 1/3rd of the actual earnings.”

We need to give time for
implementation & absorption of the recently
approved bill
of May 13, 2016 on
“National Intellectual Property Rights Policy”
to see how it improves
Innovation & productivity in India

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Dr. Ravi Dhar on new Indian Intellectual Property Policy of 2016

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Dr. Ravi Dhar on new Indian Intellectual Property Policy of 2016