Ideas for innovators

It has been lately observed that some of the so called innovators knowingly or unknowingly have tried to claim credit for products whose concepts have already been patented. This practice should be strictly discouraged as it is unethical, amounting to infringement of patents and stymies creativity.
Leaving aside the unscrupulous elements who deliberately take this path, the remaining innovators constitute mostly of those who are not aware of the concept of patents and this is not surprising, considering the fact that the level of IP awareness is still low in India. These people should be made to realize the fact that mere absence of a product in the market does not imply that the idea had not been conceived before or the “proof-of-concept” did not exist before. The reason for absence of the product could have been that at that time, the market was not ready for such a product or the manufacturing (technical / cost) of the product did not allow commercialization to be a profitable exercise.
So while the innovators cannot claim for novelty in their ideas, they should be given due credit for converting these ideas into products which can be made available at an affordable price. In fact, that is what innovation is all about and is the need of the hour as many good ideas die in the “Valley-of-Death” while being taken from lab to market.

The government, while providing financial or technical support for commercialization of patents, should also introduce schemes to encourage innovators develop products on the basis of concepts picked up from expired patents or patents which have not been filed in India as this would give one the “Freedom-to-Operate” without the fear of patent infringement in India but of course, with due acknowledgement.

Process patent in healthcare

In India, one cannot patent any process for prophylactic [therapeutic / diagnostic] treatment of human being. This law not only promotes healthy competition among the players in the healthcare industry, it pushes down the cost of healthcare, in the process making it affordable for the masses.
While this law is intended to protect the interests of the masses in general, one needs to look at it from the perspective of the organizations involved in the development of such processes.
There exists lot of government funded institutions where considerable amount of effort, money and time is being spent in the research and development of such processes but the patents for the same have to be filed abroad as these processes are not patentable in India. This implies that anybody in India can pick up that idea and practice it as he / she has the “Freedom-to-Operate” in India. Operating on similar lines, even an Indian subsidiary of a multinational can also create an entry barrier to the local players through its strong market standing and technical strength. So, in order to reap the benefits of a foreign patent, one should enforce it.
It is true that litigation is not only a risky but an expensive and long drawn affair. Hence, only when the stakes are high and the organizations have a strong defense and finance to sustain such activities, do they challenge patent infringements. Seen from that perspective, the government funded research institutions are better placed compared to individual inventors and if they do not assert their rights over their intellectual property, then filing of foreign patents becomes a futile exercise.
Since the government funded research institutions have lot of foreign patents, the government should setup a dedicated body to act as a watchdog for the enforcement of such patents. This will allow the government to capitalize on the foreign patents by forcing the infringers to negotiate for license / sale of the patents. After all, it is an investment of the tax payer’s money made by the government and the government should ensure that they get proper return on investment.

"Earnest Money" in commercialization of IP

It has been often observed that the departments handling the Intellectual Property (IP) of research institutes do not have adequate manpower / expertise to commercialize the IP. Consequently, they either post the details of the IP on the web or engage consultancy firms to market them. While the former is an open ended exercise with no guarantee of the IP being picked up, the latter also becomes a half-hearted exercise as the consultancy firms do not get paid for the ground-work done till there is a successful transaction. While the consultancy firms argue that they need to be paid for the expenses incurred irrespective of a successful transaction, the research institutes counter that argument by stating that there is no foolproof method to check the claims for the money spent by the consultancy firms for undertaking this exercise. Ultimately, it is the research institute which suffers as with passing days, the value as well as the life of the IP keeps going down.
A business model is proposed where the research institute stands to benefit from the IP till its actual commercialization takes place. Whenever a consultancy firm is engaged for the commercialization activity, it should be asked to deposit a fixed amount of money in lump-sum to the research institute which will be held for the period allocated to the consultancy firm to evaluate / commercialize the IP. During that period, the deposited money could be invested by the research institute in any instrument which will give returns in a very short period. Once the allocated period is over, the research institute may return the principal amount (initial deposit) back to the consultancy firm irrespective of whether it has been able to successfully commercialize the assigned IP.
This process would not only help the research institute in capitalizing on the exclusivity period given to the consultancy firm, it would also ensure that the non-committed consultancy firms get filtered out who would otherwise waste the exclusivity given, indirectly devaluing the IP.

Capitalizing on Institutional IP

Significant amount of funding is spent for the research work taken up in the universities and technologies developed are patented with the intention of getting revenue through licensing or sale of related Intellectual Property (IP).

But it has been observed that the academia has not been able to capitalize on the generated IP. The reason quoted quite often for this failure is that there exists a disconnect between the academia and industry, leading to filing of patents for technologies which have no real commercial value but has been done with the intention of justifying the expenditures or just improving the inventor’s credentials. The other reason could be that the academia is not well equipped to properly valuate the generated IP and market it as a package to attract buyers / licensees.

Though the latter reason sounds more plausible, there is another important reason which seems to have been overlooked and that is lack of enforcement of IP rights. Generation of revenue from patents is done by following a “Carrot & Stick” policy. In case of former, it is assumed that the patents would be of interest to various parties and hence revenue would be generated by sale / licensing of the IP to the interested parties. This aspect is already being addressed.

But in case of latter, it is basically identifying potential infringers of the patents and bringing them to the negotiating table for suitable payments depending on the extent of exploitation of the patent. While the academia puts up the details of their IP on the web in order to draw the attention of potential buyers / licensees, in the process, it inadvertently exposes the ideas to outside world where it is very much possible that unscrupulous elements may as well opt to copy the ideas and use them for their own business purpose without giving due acknowledgement to the inventors in the form of payment / license fee. It is this aspect which academia seems to have ignored, probably due to lack of time or suitable official machinery.

If the academia becomes pro-active in asserting their IP rights, it is envisaged that the generated IP would give more returns on investment.