Today morning, The Hindu carried a well-articulated article by Shamnad entitled ‘Time to break in India.’ If you were to read the piece in isolation, you would be convinced about the futility of the patent system, and would probably take up arms against it. Shamnad’s conviction and ability to convince is of the highest order, but with due respect, we disagree with him. We do not disagree because of business interests, personal biases, or misplaced beliefs; we disagree because his analysis simply does not make sense.
The first line of the article states:
“Inefficient: Patents breed uncertainty of an order that is far more significant than most other legal instruments.”
We wonder which other legal instruments that promote inventive activity he refers to. We are certain that there is no other legal instrument that addresses progress of science and technology like the patent system. If there is another instrument, and it works well, we would be happy to embrace it.
Are we still harping on the 15th century Venetian model? At the cost of sounding nit-picky, we don’t think so. If we were to generalize and compare frameworks, we are probably following the same model of incentive system implemented in 10th century BC for gathering food. Having said that, we agree with Shamnad that legal regimes are shielded from invention and innovation.
With due respect to the great man, Hugo Grotius, and his arguments, we fail to understand how his theories are relevant here. If we were to draw parallels with elements of nature, ideas are more like air than water. They can and will flow in all directions if they are let out. But, how will they be let out if there is no incentive to do so. Water and air will find their way against all odds, some times at the cost of destruction to human life, but will ideas do so on their own volition? We think ideas need nudging.
The fact that one cannot understand a patent document or its limits as argued by Shamnad simply means that one cannot grasp the maturity and progress of science/technology like the inventor himself. We do not mean that all patents are good, and that all patents are clear. Some times, broad patents get through, words can be twisted to mean many things, and ambiguity is propagated by attorneys. But, that simply means that we must make the grant and validation system more efficient. That cannot be the basis for killing the system.
At another point, Shamnad states, “patent rests on the highly subjective test of whether or not an alleged invention is cognitively superior to what existed before (“prior art”), leading to highly differential results across the world on the very same patent application …” He then goes on to cite the example of Pfizer’s viagra patent. Subjectivity is an inherent element of every law, and not just patent law. Differences in adjudication is common across laws as decisions are made by humans, each one of whom may apply the same law to the same set of facts and arrive at different conclusions based on a multitude of factors. How does this make the patent system obsolete?
Shamnad has dedicated a paragraph to AI and how it makes the patent system redundant. Unfortunately, we fail to understand what AI has got to do with assessing inventiveness. AI is progressing fast, so what? We will see more and more of AI patents in the future. Is Shamnad implying that every invention must be compared with prior art put together by an advanced AI system, or that inventions are filed based on AI work? Whatever it might be, both patent office and inventors have access to AI, and the playing field is even on that count.
We agree that open source, commons, price controls, etc., must be embraced. But, we do not think that it must be done by excluding or eliminating the patent system. What we need is a balanced, strategic integration of different systems to achieve progress of science and technology, and through it, human good.
Before we close, we agree with Shamnad that USCC’s IP rankings are not just misconceived, but also misplaced and biased. We were in fact initially fascinated, and later worried about the pace at which people started talking about it as if it was the word of God. At a conference at NLSIU yesterday, we heard people talking about how we must improve our rank, rather than question the seductive logic as Shamnad puts it. It is definitely time to set aside USCC’s concerns, which are singularly arbitrary and biased, and get on with it.
Note: The opinions expressed herein are that of the author, Dr. Kalyan C. Kankanala, in his capacity as a Professor and Scholar.
Reference to the original article published by The Hindu, here.