Dear Sirs/Friend,

Sub: Foreword, October 2005.

The month of October is a month of immense significance as far as India is concerned.October 2 has been observed with great emotion and ferver as the annual occasion  to honour the memory of the great Mahatma, the Father of the Nation. Perhaps his first major mobilisation in the true sense for our independence was when he organised the historic Dandi Narch. To quote from Extracts from “Mahatma” by D G Tendulkar, “On March 2, Gandhi addressed a historic letter to the Vyceroy:

            “Dear Friend – Before embarking on civil disobedience and taking the risk I have dreaded to take all these years, I would fain approach you and find a way out….Whilst, therefore, I hold British rule to be a curse, I do not intend to harm any Englishman ….And why do I regard the British Rule in India as a curse? It has impoverished the dumb millions by a system of progressive exploitation and by a ruinously expensive military and civil administration which the country can never afford.It has reduced us politically to serfdom….to a state bordering on cowardly helplessness….It seems clear  as daylight that responsible British statesmen do not contemplate any alteration in British policy that might adversely affect British commerce with India….And when a serious attempt is being made through a civil form of direct action to unsettle this fact, among many others, even you cannot help appealing to the wealthy landed classes to help you crush that attempt in the name of an order that grinds India to atoms….The terrific pressure of land revenue, which furnishes a large part of the total, must undergo considerable modification in an independent India. The ryot has remained as helpless as ever. He is a mere tenant at will….the whole revenue system has to be so revised as to make the ryot’s good its primary concern…..Even the salt he must use to live is so taxed as to make the burden fall heaviest on him, if only because of the heartless impartiality of its incidence. The tax shows itself more burdensome on the poor man when it is remembered that salt is the one thing he must eat more than the rich both individually and collectively…….The inequities sampled above are maintained in order to carry on a foreign administration, demonstrably the most expensive in the world. Take your own salary. It is over Rs 21,000 per month besides many other indirect additions. The British Prime Minister gets Rs 5,400 per month at the present rate of exchange. You are getting over Rs 700 per day against India’s average income of less than two annas per day. The Prime Miniter gets Rs 180 per day against Great Britain’s average income of Rs 2 per day. Thus you are getting much over five thousand times India’s average income. The British Prime Minister gets only ninety times Brtains’s average income. On bended knees I ask you to ponder over this phenomenon….What is true of the Vyceregal salary is true generally on the whole administration………”.

The Vyceroy’s prompt reply was an expression of regret that Gandhi should be ‘contemplating a course of action which is clearly bound to involve violation of the law and danger to the public’ and which provoked Gandhiji to conclude “On bended knees I asked for bread and I have recived stone instead”…..leading to the plan for the Dandi March from March 12^th onwards.

On March 12 at 6.30 a.m. with the whole world watching on, Gandhi started with seventy-eight followers for the historic march of Dandi…..Dandi was reached on April 5. The 241 mile march came to an end on the twenty-fourth day….Soon after prayers, Gandhi with his followers proceeded for bath in the sea. At 8.30 a.m. he bent down and picked up a lump of natural salt” and thus he broke the salt tax law, which soon electrified the whole nation into massive civil disobedience by the freedom fighters which was met through gruesome suppression by the colonial rulers, and so on.(Source : “Mahatma” D G Tendulkar, Vol 3 ). During our freedom struggle, Mahatmaji had christened the role of self reliance to Charkha, the Spinning Wheel. He said,   "The spinning wheel is itself an exquisite piece of machinery. My head bows in reverence to its unknown inventor". It was a symbolism for self reliance, as he envisaged,  for " industrializing the villages of India"and self respect her teeming millions. The Mahatma used the word ‘invention’ in the literal sense without worrying about its IP validity( though importantly enough  during the years of the Industrial Revolution, machines developed through craftsmanship were treated as patentable inventions); and yet it meant also in another way so much. If the Spinning Wheel was such a symbol for self reliance during the freedom struggle, the belated Indian Patents Act 1970 (basis: Justice Rajagopal Ayyangar Committee Report) became a legal sanction to treat patents and patenting practices as a techno-legal instrument of modernisation in independent India, matching with her contemporary state of political economy, to use the expression from the celebrated  1949 Swan Committee Report of United Kingdom as applied to the basic approach towards her evolving patent regime.

Much water has flown since down the Ganges.The latest edition of Random House Dictionary defines invention  as “a new , useful process, machine, improvement etc. that did not exist previously and is recognised as the product of some unique intuition or genius, as distinguished from ordinary mechanical skill or craftsmanship” by quoting contemporary US Patent Law. WTO/TRIPS has by and large used such a definition to qualify a patentable product/process “ if it has novelty, inventiveness and industrial application” and as part of her professed obligations, the GOI has ‘harmonised’ its patent law in 2005 to make it TRIPS compliant, having allegedly gone for even a TRIPS-plus allegiance!  And yet amazingly enough, though not perhaps unexpectedly, it has created more problems than solutions for an Indian inventor.In an excellent article “Inventiveness: a new condition for patentability”, the TIFAC/IPR Bulletin  ( Jan – March 2005) summarises the major issues very cogently. To quote, “The USA took almost 160 years of active experience of granting patents to include ‘inventive step’ in the statute as one of the conditions for patentability…9so also) vast experience of case laws, discussions and debates on the subject…In the Indian context we have very little experience of judicial interventions …to successfully implement the Indian Patent Act in regard to inventiveness of an invention”. To quote from the article of Praveen Raj, a former Examinor of Patents himself, “some of the amendments brought in the act are meaningless and quite confusing in respect of its technical implications. For example the definition of ‘inventive step’ describing it, as “a feature of the invention involving technical advance as compared to the existing knowledge or having economic significance or both that makes the invention not obvious to a person skilled in the art”, leaves lot of scope for its interpretation differently by different people. In this context, it is worth mentioning here that the Patent Examiner who evaluates the invention would not be in a position to judge its ‘economic significance’. Also the words ‘technical advance’, ‘economic significance’, ‘efficacy’, ‘entity’ etc. used in the present legislation causes lot of confusion since these words are not found else where in any other patent statute in the world. Similarly the impact of new definitions such as “new invention” and “pharmaceutical substance” will be felt only later when patent attorneys and patent examiners start extracting meanings out of them. While the definition of ‘new invention’ is redundant with respect to the definition of ‘invention’ in Section 2(1)(j) and Section 13, the definition of ‘pharmaceutical substance’ makes no sense as it is not referred else where in the Act.  Also it is to be blamed that the present legislation reverted back the amendments made to section 3(k) by the ordinance, which clarified that, only the technical application of the software or its combination with hardware is patentable. Now the statute in its present form leaves lot of scope for the interpretation of what is computer program ‘Per Se’. It is to be noted further that the provision added in section 3(d) to prevent “Ever greening” of patents related to pharmaceutical substances, has created more confusion as to its implication”.  With the Apellate Board also yet to be in a postion, one can only ‘thank heavens’ for settlement of issues like the scope of ‘technical advancement over the existing knowledge or an economic advantage or both’ apart fom ‘non-obviousness’ to experts skilled in the art and so on within any meaningful time period. More and more items will be infected by the “Glivec Syndrome”, in turn caught up within the legal procedures renowned for its “exquisitely vague” meanings. The article by Ekbal along with two of those reproduced from British Medical Journal elaborate systematically the genuine concerns of the public and the public men on the “patents versus patients” problem. Here again the Glivec Syndrome will hurt the poor the most, not those for whom ‘India Shines”.

Another fall-out of the 2005 Act is the popular debates through the media whether  in India softwares are patentable or not under the New IP Regime. Be rest assured that they can, subject to ceratain qualifications. No wonder that a company such as Microsoft has steadily increased its patent applications in India from one in 1998 to 14 in 2002 and 306 in 2004 in areas such as data management, network, web related, graphics and images, interface, encrypton including authentification and security, wireless, architecture, speech recognition and database. More details are available in IPR Bulletin April 2005. So also a case study of an US patent granted to Aerospace Corporation on “Removing space orbital debris” which could be meant as a future guide for scientists-engineers of ISRO, many of whom still possibly believing that their activities are still IP protected !

Continuing the Series on Challenges of the New IPR Regime, the October issue deals with a very recent group of engineered materials called Metamaterials. To an enginner,matamaterials can be defined as artificially structured nanocomposites with exceptional properties that are not encountered in nature i.e. normal amterials.By appropriately designing and fabricating the conventional materials in combination,the desired functioanlities and properties can be induced which  are not present for the constituent materials.Unprecednted properties can be created by tailoring the shape,size,composition and even the designed defects by placing the naophases in the predetermined spatial order. Revolutionary new properties can be induced in metmaterials through innovative fabrications leading to complex 3D structures,device developments and holistic characterizations. New physical phenomena can be explored through lattice tuning, symmetry reduction and real-time recomfiguration.Diffraction-free imaging using artifical magnetism at high frequencies (gegahertz to terahertz or optical),left-handedness leading to negative refraction,artifical plasma,tunable band gaps, nonlinear conductivity etc are some of the properties of matamaterials, to cite.Although metamaterials can be  unravelled in every branch of amterials science,they have not been recognized as a generic group meriting special attnetion.Applications such as nanolithography, magnetic resonance imaging,integrated optical devices, microwave nanoantennae are imminent examples to the civil utilties.However,most of the applications are of
relevance to military such as radar camouflaging, spying devices including imaging and pattern recognition.For example with negative refraction, you can see the backside of your body while looking forward.Multilayer structures and superlattices, magnetic and optical quantum dots,photonic band gap materials,periodically altered dielctric and magnetic materials,materials with negative electric permittivity and negative magnetic permeability etc are in this group of metamaterials. In India it is totally new among the R&D community. All the same it is not surprising that those in advanced countries have already identified specific end uses and even celebrated universities like the Penn State have filed PCT applications with India also as a destination. In other words, Indian funding agencies and R&D personnel must carefully IPR audit the research program prior to entering the area, if its results should be of ‘possible industrial use’. This is going to be the true challenge for Indian R&D under the new IP regime.

For completion sake, the October Issue is re-producing three more articles from EPW on the issues connected with the Indo-US Agreement on civilian nuclear technology and also the report from The Hindu on successful commisioning of the country’s first 540Mwe reactor at Tarapur.. The  reactor Atomic Power began commercial operation from September 12, according to S.K. Jain, Chairman and Managing Director, Nuclear Power Corporation of India Limited (NPCIL). It is India's largest nuclear power reactor with a capacity of 540 MWe. The unit had reached criticality on March 6 and was connected to the western grid on June 4. It is a Pressurised Heavy Water Reactor (PHWR), which uses natural uranium as fuel, and heavy water as both moderator and coolant. V.C. Agrawal, Project Director,said the start of the TAPS-3's commercial operation signalled that the power generated by the unit would be sold to the State Electricity Boards of Maharashtra, Gujarat, Madhya Pradesh, Chattisgarh and Goa, and the Union Territory of Daman and Diu. Maharashtra would be the major beneficiary. The tariff was Rs.2.65 a unit, Mr. Agrawal said. According to Mr. Jain, TAPS-4 incorporated advanced concepts in nuclear engineering and the state-of-the-art technology and equipment. The NPCIL, a public sector undertaking, designed and constructed it. To add another feather in its cap, the reactor at Kakrapar Atomic Power Station (KAPS-1), Gujarat, completed one year of uninterrupted operation on Friday (September 16), continuously supplying electricity to the grid from September 16, 2004. "This is a new record for Indian reactors," said Mr. S.N. Ahmad, executive director (corporate services), Nuclear Power Corporation of India Limited (NPCIL), which built the KAPS. This showed that the Indian nuclear power plants were now capable of operating continuously between two mandatory shutdowns (for maintenance), he said in a press-release. KAPS has consistently been among the top performing plants internationally when judged against performance indicators evolved by the World Association of Nuclear Operators (WANO).

According to Mr. Ahmad, KAPS-1 was adjudged the best performing Pressurised Heavy Water Reactor (PHWR) in the world for October 2001-September 2002. These two together obviously mark another truly golden letter days in the history of Indian nuclear energy program, highlighting once again that India does need, technichnologically speaking, from hereafter only raw material uranium for her expanding nuclear power program , nothing else. In other words, any negotiations vide the Indo US Agreement should be based ONLY on equal basis and not as a clientale partner to any one. More of it again later.

THE World Bank Quarterly Update on China (August 2005) has some interesting facts that throw light on China's experience in pursuing rapid economic growth while ensuring social upliftment, especially in the rural areas. The report mentions that in spite of the slowdown on the domestic front, China's GDP grew 9.5 per cent in the first half of 2005, is expected to log 9 per cent for the full year and achieve 8 per cent growth in 2006. The external sector, which recorded a growth rate of 33 per cent during the same period, is expected to push exports and foreign exchange reserves to $1,000 billion each next year. The report also notes that the fast pace of growth in foreign trade is in spite of the expected slowdown in world trade from 12 per cent in 2005 to 4 per cent in 2006. On the domestic front, investments, which were the target of belt-tightening measures that included dear money policy, remained robust and grew 25.4 per cent in nominal terms in the first half of the year, while inflation remained low, at 1.8 per cent in July 2005 against 5 per cent in August 2004. Analysing how China marries high investments with low inflation, the report concludes that the surge in investments led to high capacity creation and increased supply of manufactured goods, which resulted in a supply-push deflation kind of situation. Along with increased capacities, higher investment led to increase in labour productivity (per capita capital stock) sufficient to neutralise the adverse impact of the rise in oil prices to a considerable extent. The World Bank report has identified China's industry sector as a propeller and notes that the share of industry grew from 50 per cent to 59 per cent of GDP in the first six months of this year. Within industry, the manufacturing sector, on the back of cost advantage and entrepreneurial drive, has played a prominent role by foraying into areas not restricted to standardised electronics, textiles and apparel products, and so on, but has also got into specialised products for China's emerging markets.This outward-oriented manufacturing sector-led growth has made China one of the largest globally integrated economies, as is evident from the fact that trade in goods and services jointly account for about 75 per cent of the country's GDP, against 25-30 per cent for India, Japan, Brazil and the US.

Whatever are being presented as IP issues through patentmatics would be relevant only as and when the industry/agriculture production sector takes over as the propellor of economic growth; and as long as this crucial element is ignored by our planners and be satisfied with increased FII-cum-service led “globalised growth”, TRIPS-dictated IP issues would not cause them much of an impediment. And that would also be a very great tragedy for the future of the nation. Here again, Mahatma’s words of caution to the effect that the doors of our country must always be kept open to receive fresh air, but not to be blown out, is very valid as always, even today. If this is the situation within, the much trumpeted ‘export growth’ also speaks volumes on content. Thus the latest figures on Disaggregated trade data compiled by the Directorate General of Commercial Intelligence and Statistics (DGCI&S), Kolkata, show that gems and jewellery with a weight of 16.15 per cent in total exports grew by 23.52 per cent at $3445.23 million during April to June 2005 against $2789.31 million in the corresponding first quarter of fiscal 2004.Engineering goods exports (19.22 per cent weight) put up the best show by clocking a growth of 38 per cent at $4098.34 million, against $2973.96 million. Chemicals and related products (15.25 per cent) exports were up by 15.76 per cent at $3251.39 million ($2808.78 million). Here again, naturally, IP related issues are largely inconsequential. In other words, there is truly no globalisation in terms of technological-industrial growth in favour of the nation at large, even after a nearly decade-and-half long “liberalised”policy regime !

Last but not the least is an article on Dr Modadugu Vijay Gupta, the 66 years old World Food Prize Winner  2005 is reproduced from Indian Express “Don’t just Research, Use It”. Extremely valuable Thought of the Month for October indeed.

Kindly keep sending your contributions through articles and suggestions.

Yours sincerely,

A D Damodaran.