There is no point in hitching our bandwagon to what will soon be an obsolete patent game. We must think through alternative innovation incentives such as prizes and open source formats

The U.S. Chamber of Commerce is at it again, admonishing us for lagging behind on the IP infobahn by refusing to bolster up our patent numbers, and ranking us close to the bottom on their insidious IP index, 43rd out of a total of 45 countries. India is even below Brunei, a nation known more for its rich royalty (not of the IP kind) than innovation/ technology, only because it signed up to the Trans-Pacific Partnership.

And therein lies the biggest problem with the index: it is rife with methodological flaws. It is a fraudulently formalistic method of shaming countries into thinking that they are children of a less creative god, a point made by some of us in previous years where they ranked Togo too above India. And yet the U.S. Chamber of Commerce and its IP wing, the ‘Global Intellectual Property Center’, continue to dole out such rankings with gay abandon.

A seductive logic

What is most striking is that our indigenous innovation gurus have been quick to lap up the seductive logic of these rankings and warn us in dire tones that we need to catch up, or else be left behind. And that if we have to truly ‘Make in India’, we must ramp up our patent numbers.

But should we be ‘making’ IP in India? Or ‘breaking’ it? Our technological proficiency in pharmaceuticals came through the active breaking of multinational IP, yielding a world-class generic industry and affordable medications for our public. But that is an old script, and we need to move on.

The time is ripe for another kind of breaking. For the standard IP script has done its time, one that harks back to a 15th century Venetian model. Barring some tweaks here and there, we’re stuck with largely the same frame. It is a tad bit paradoxical that when IP rights are meant to further innovation, the legal regimes themselves have been shielded from innovative experimentation.

It is time therefore for India to break this ancient IP paradigm, for it rests on the assumption that IP and the technological information that it protects can be treated as real property. Centuries ago, a clever jurist by the name of Hugo Grotius theorised that water could never be appropriated in the same way as land, since it “flowed”. From there we got the notion of the high seas, exclusively appropriable by no single nation but available to all. With information, the flow properties are even greater. And yet our IP regime continues to equate it to land and real property. Read a patent document cover to cover, and you’ll understand why it’s impossible to know even where the “fence” that delimits this alleged property lies.

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Quite apart from the fact that the patent grant itself is at best a lottery: a probabilistic right as some U.S. scholars are wont to label it. Here today, gone tomorrow! Some may say this is peculiar to India, which invalidates patents by the dozen. But if data are anything to go by, we’re not that different from our allegedly more advanced patent comrades, the U.S. and Germany, where the invalidity rate is as high as 50%. There is a reason for this. Patent offices often get it wrong, being resource starved and all that. But more importantly, the fine art of adjudicating the merits of a 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 — as Pfizer found to its dismay in the famed Viagra case, where the Japanese and the Americans held the patent to be valid, but the British invalidated it on the ground that there was a thinly veiled reference to the allegedly inventive path in a science publication authored by a Nobel Prize winner.

The AI challenge

This uncertainty is bound to increase as patent offices get more circumspect about the grant of patents, and like India begin asserting their right to insist on stricter patent standards. But more problematically, the test of cognitive advancement that is central to patent law rests on the notion of the person skilled in that particular art/technology. Would it be obvious to him/her? Now that we’re in the age of artificial intelligence where machines can think as well as humans (well almost), and are inventing by the dozen (since its now possible to code them with creativity, at least of the combinational kind), the skilled person could soon be this artificially intelligent machine. Under its infinitely vast repertoire, almost nothing would count as inventive or non-obvious, given that every potential combination of prior art (which is what most patents are about) is known or at least knowable to these non-sentient sapiens.

In short, patents breed uncertainty of an order that is far more significant than most other legal instruments, and are terribly inefficient even on their own internal economic logic. Little wonder that that some of the finest minds in the technology space such as Elon Musk are now giving up on patents.

Given this scenario, there is no point hitching our bandwagon to what will soon be an obsolete patent game. We must therefore leapfrog and think through alternative innovation incentives such as prizes and open source formats. Much the same way that we did with smartphones, where we avoided the huge costs that might have come with investing significantly in landlines, laptops and the like.

Shamnad Basheer is the Honorary Research Chair Professor of IP Law at Nirma University and the Founder of SpicyIP.