Sunday, 3 May 2009

Will There Be an Indian Form of IP Practice?

We often read how the 21st century will be the "Century of Asia". In truth, it is more than I am capable of to imagine how this tectonic shift will ultimately play out. That said, I do often wonder how the face of technology will change with the rise of Asia. One glimmer was suggested in a recent article that appeared in The Economist entitled "Health Care in India: Lessons From a Frugal Innovator" (April 18, 2009). The focus of the article is a description of various ways in which Indian innovators are coming up with novel ways to compete successfully in the medical arena. The impetus for these developments is driven by a combination of poverty, geography, an underfunded public health system, and poor infrastructure, on the one hand, and world-class technology, nascent health insurance, liberalized terms for foreign investment, and entrepreneurial spirit, on the other.

For example, the article described how "beating heart" surgery has proved so successful as an alternative to conventional surgical practices in the West that the purveyor of the method, Wockhardt, an Indian hospital chain, has seen rising medical tourism to its site in Bangalore. Another example are chains of "no-frill" hospitals that appear to succeed in squeezing out of the hospital facilities "nice to have" but ultimately non-essential elements without compromising the provision of core health services. Somewhat ironically, the increasing access to health procedures by more and more Indians enable local doctors to actually hone their skills beyond those of their Western counterparts simply because of the absolute number of surgical procedures performed.

Even if one controls for rhetorical flourish, it cannot be gainsaid that the Indian experiment in carving a distinctive path to 21st century medical innovation is noteworthy. When one considers as well the great anticipation surrounding the Tata Nano car, one gets the sense that the Indian experiment is seeking various ways to reach out to the rising middle class with goods and services that cannot be provided by the more affluent West.

The question that comes to mind is whether the Indian experience in innovation will also result in a distinctive IP practice to support this innovation. In theory, technology should more or less be culturally neutral, and in a sense, that is probably true. It is for that reason that the exploitation of technology can leapfrog countries and continents. On the other hand, I wonder whether the ways that we do IP in the West are so tied up with the manner in which we do innovation and technology that we IP practitioners become captive of the very system that we are supposed to be serving. If so, it is not only Western technology that faces a significant challenge by the rise of Asia, but the legal and quasi-legal constructs that ballast Western innovation.

There is at least one whiff in the article that supports my rumination. Reference is made to Paul Yock, head of the bio-design laboratory at Stanford University. Yock expresses the concern that medical technology innovation has focused solely on need, while effectively turning a blind eye to cost. Hence the gaze towards India. As the article observes, Dr. Yock "believes that India's combination of poverty and outstanding medical and engineering talents will produce a world-class medical devices industry." If so, what is there to say that this Indian type of innovation will not spill over into the way that patents and other IP are conceived and drafted, and the manner in which the technology is diffused and protected. It is certainly food for thought.

Is this the portent of a distinctive Indian IP?

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