Involve Public in Examining Patent Applications

Suman Sahai

A remarkably simple and innovative exercise has been launched in the US in order to cope with the overload of patent applications. Given the growing emphasis on knowledge creation and knowledge ownership as key underpinnings of the global economy, the world is moving towards sequestering knowledge rather than sharing it. The expected outcome of this trend is a spurt in patent applications in all the major patent offices of the world. India too registers a sharp increase over an admittedly small base. An overload of patent applications leads to delays and inadequate scrutiny of the application, leading to incorrect patent grants and subsequent litigation.

The US Patent and Trademark Office (USPTO) has started a novel experiment at the initiative of Beth Noveck of the New York Law School to tackle problems of overload. The project called ‘Peer to Patent’ seeks to open up the patent examination process to the public. It has begun a pilot project to post patent applications on a designated website and invite public comments on the merits of the patent.

The crux of patent examination is to search for ‘prior art’. This means to examine whether the claims made in the application have already been patented before or whether they are known in the public domain. By involving hundreds of reviewers and tapping their knowledge and expertise, the examination for prior art becomes much faster and more comprehensive. The hope is that an expanded screening exercise of this kind, will lead to fewer patents that are granted incorrectly and reduced litigation over patent grants.

For the US, an obvious case where a ‘Peer to Patent’ approach would have been useful, is the case of the turmeric patent. The grant of the patent on turmeric derived properties by the USPTO, became the subject of litigation between India and the US. The Haldi Patent

was successfully challenged by the Indian government but at some cost to the public exchequer. Perhaps if this patent application had been subjected to scrutiny on a public review website like Peer to Patent, an opposition would have surfaced during the patent review process and the patent would never have been granted. This would have certainly saved India a lot of money.

Indian patent offices would do well to emulate the US initiative. They are more overstretched than most patent offices partly because India has had a history of knowledge creation in the public domain so patenting is new business. The ‘patent everything in sight’ culture is only beginning now. Our patent offices are notoriously short of trained manpower to deal with the sudden increase in applications arising out of new legislation like the amended Patent Act and the Act on Geographical Indications.

Regardless of the merits of the patent-at-all-costs approach that is being promoted in Indian research institutions, we need to be equipped to deal with the surge in patent applications. Instead of the expensive and time consuming process of routing applications through patent examiners, a first round evaluation through the public review process will identify the cases that do not qualify on grounds of novelty, distinctness and utility. These are the essential benchmarks of patentability. After this filtering, only those patent-worthy applications need go up for critical examinations.

The public review process is welcome from another perspective. It introduces an open source approach as a contrast to secret government procedures, secrecy being the hallmark of the Indian government’s performance in all sectors. Opening up the patent sector will also help to demystify the still new patent culture in this country and get more people involved in discussing its merits or otherwise. It will also help to introduce greater vigilance with respect to old problems like biopiracy and the misappropriation of indigenous knowledge. One impediment could come up though. For this process to succeed, the patent applicants must be willing to go along with the process.

So far, in the US it is only software and hardware applicants that are willing partners in this novel exercise. It remains to be seen whether the biotechnology patent applicants, largely the Life Science corporations are as enthusiastic. These corporations have been notoriously reluctant to share any information, even with government agencies, unless absolutely necessary. India should quickly begin discussions to set up a similar system in the patent offices here. Any fears that the public scrutiny can lead to frivolous interference should be dealt by vetting the registered users and ensuring that oppositions to the proposed patent claims are accompanied by well researched and properly backed up evidence. Since the patent application is put on a publicly accessed website, there should be no fear of misuse by competing interests since such would be quickly detected by the same examination process.

BIOFUEL POLICY : Who Benefits?

Suman Sahai

India certainly needs to rationalise its energy use and reduce its consumption of petroleum-based fuels. The answer lies not in compromising food security and joining the biofuel bandwagon, but in time tested strategies like increasing efficient public transport, and reducing private cars.

The Indian government has finalised a National Policy for Biofuels on September 11, 2008. The high profile given to this policy can be judged by the nature of the implementation committees that have been set up. There is a National Biofuel Coordination Committee chaired by the Prime Minister himself and a Biofuel Steering Committee under the chairmanship of the cabinet secretary. The earlier draft biofuel policy had proposed to start with a blending proportion of 5 per cent (5 per cent biofuel with 95 per cent petroleum) by 2012, 10 per cent by 2017 and over 10per cent after 2017. The final policy is far more ambitious, aiming for a blending ratio of 20 per cent by 2017. This means a huge jump in the amount of biofuels/ agrofuels that will be required in the next eight to nine years.Where will it come from? And considering our fuel consumption is increasing by over 7 per cent annually, does it mean the acreage under agro fuels will keep increasing too?

The Indian biofuel/agro fuel policy comes at a time when international agencies and experts have identified the main cause of the global food crisis to be the biofuel policies of the US as well as the EU. Warning signals about the consequences of the US led biofuel fad on food and feed availability are being sent out by the FAO. Reports prepared by the World Bank, the World Food Organization and the OECD predict that the current trend will take land out of food production and increase the price of agriculture commodities.

The report anticipates that this will lead to a rise in food prices over the next ten years. While higher food prices will be profitable for food exporting countries and large farmers, they will threaten the economies of food importing countries, the livelihoods of their farmers as well as the food available to the urban poor in these countries.

Realising the impact of the biofuel policy on global food supplies, the EU is contemplating a revision of its biofuel/agrofuel targets. Yet India, with all its food security concerns, is going full steam ahead with even bigger targets of agrofuels. And at the same time it continues its plans to import wheat! Does this make sense? Allow land to be used to grow agrofuels like biodiesel and become dependent on imported food grains to meet our food targets?

The vocal ‘biofuel lobby’, argues that bio-energy crops to produce agrofuels would only be grown on degraded or wasteland, not fertile land. This is pure mythology. There is no such thing as wasteland in India.

The village community uses all land for some purpose. Uncultivated land is used as grazing pastures on which the livestock depends for fodder. It is also the source of medicinal plants on which the rural community depends for its health and veterinary care needs.

The basic issue here is that of land, which is finite. We need to be very clear that land that can support food crops should not be diverted to producing biofuels. A piece of

land that would support a Jatropha plant, which is required to produce large amounts of oil, would have to have soil nutrients, would need fertilizers and sufficient amounts of water. Experts now concede that satisfactory plantations of Jatropha cannot be raised without at least three applications of water. So, if the so-called “wasteland” is capable of supporting Jatropha cultivation, it will support the cultivation of food crops, which should be the country’s primary goal.

There is an ethical dimension to the biofuel story as well, a question of equity. On the one hand are the poor whose right it is to have access to adequate food. The nation’s primary responsibility is to do its utmost to produce the maximum amount of food it can, to end endemic hunger and poverty. It is irresponsible and unethical to divert land that can produce food for the poor, to produce fuel for those who can afford to drive cars. So essentially, the agrofuel policy plans to sacrifice land that should produce food and fodder for the poor, and use it to grow biodiesel crops that will power the automobiles of the rich.

The global rush to switch from oil to energy derived from plants is being led by the rich countries who want to see energy plants grown extensively for fuel as a way to reduce their own climate changing emissions. The United Nations urges governments to beware the human and environmental consequences of the agrofuel trend, some of which could be irreversible. They warn that taking the current the agrofuel route will lead to deforestation, push small farmers off the land, and lead to serious food shortages and increased poverty. As the FAO estimates, biofuel production based on agricultural commodities increased more than threefold from 2000 to 2007. India should review its biofuel policy and examine our natural advantages to see what kinds of strategies are viable for producing supplementary energy.

India certainly needs to rationalise its energy use and reduce its consumption of petroleum-based fuels. The answer lies not in compromising food security and joining the biofuel bandwagon, but in time tested strategies like increasing efficient public transport, and reducing private cars. There is no harm in some petrol rationing till better discipline leads to reduced fuel use. This will give time for public transport and new technologies to be introduced. What has the government been doing so far on this front?

Why has the Department of Non Conventional Energy failed to make any breakthroughs in solar energy? Elsewhere in the world, experiments are ongoing on alternative fuels from algae, from human and animal wastes and from other carbon sources. What is India’s investment in such research? Is the only way to minimise petroleum import bills by snatching the food options of the poor, so that we can claim credits at the next international conference on climate change?

MAIN FEATURES OF BIOFUEL POLICY

• An indicative target of 20 per cent by 2017 for the blending of biofuels –bioethanol and bio-diesel has been proposed.

• Bio-diesel production will be taken up from non-edible oil seeds in waste / degraded / marginal lands.

• The focus would be on indigenous production of bio-diesel feedstock and import of Free Fatty Acid (FFA) based such as oil, palm, etc., would not be permitted.

• Bio-diesel plantations on community / government / forest wastelands would be encouraged while plantation in fertile irrigated lands would not be encouraged.

• Minimum Support Price (MSP) with the provision of periodic revision for bio-diesel oil seeds would be announced to provide fair price to the growers. The details about the MSP mechanism, enshrined in the National Biofuel Policy, would be worked out carefully subsequently and considered by the Biofuel Steering Committee.

• Minimum Purchase Price (MPP) for the purchase of bio-ethanol by the Oil Marketing Companies (OMCs) would be based on the actual cost of production and import price of bio-ethanol. In case of biodiesel, the MPP should be linked to the prevailing retail diesel price.

• The National Biofuel Policy envisages that biofuels, namely, biodiesel and bio-ethanol may be brought under the ambit of “Declared Goods” by the Government to ensure unrestricted movement of biofuels within and outside the States. It is also stated in the Policy that no taxes and duties should be levied on bio-diesel.

BIOFUELS - A THREAT TO BIODIVERSITY AND ENVIRONMENT?

Biofuels have been widely publicised as a way to reduce greenhouse gas emissions. But researchers from University of Washington shows that some of the most popular current biofuel stocks might have exactly the opposite impacts than intended. The study highlights relative impacts of major biofuel sources like corn, grasses, fast-growing trees and oil crops on the environment in terms of water and fertilszer use and other criteria to calculate the environmental footprint of each crop. The study was published in the June issue of the journal Conservation Biology.

The study looked at factors such as the energy needed to produce a renewable fuel source

compared with how much energy is produced, the impact on soil fertility and effects on food supply when fuels based on crops such as corn and soybeans are mixed with fossil fuels. Based on those factors, the authors determined that cornbased ethanol is the worst alternatives.

The authors argue that because such large amounts of energy are required to grow corn and convert it to ethanol, the net energy gain of the resulting fuel is modest. On the other hand using a crop such as switchgrass, common forage for cattle, would require much less energy to produce the fuel, and using algae would require even less.

For example, farmers who plant only corn because it is suddenly profitable, and don't rotate with crops such as soybeans, are likely to greatly deplete their soil, which could limit crop growth and promote soil erosion. According to a study from the European Environment Agency, increased demand for fuel crops could have serious damaging impacts on wildlife, water and soils as more of Europe's agricultural land is handed over to biofuel production.