The dispute over the 'Tiger' trademark continues.............

Last September SpicyIP had reported on how the Wadia Group was preparing to initiate arbitration proceedings against its JV partner - Danone - for the violation of Britannia famous 'Tiger' trademark. Danone and the Wadia group jointly own stake in the Associated Biscuits International Holdings (ABIH). ABIH is a holding company which owns a 51 % stake in Britannia. The Wadia Group had alleged that Danone had gone ahead to register the trademark in around 70 countries without the permission of Britannia. At that time there was some speculation as to whether the Wadia group was using the threat of the lawsuit to negotiate a favourable settlement to end Danone's participation in ABIH and Britannia.
Then in February SpicyIP reported on how legal proceedings were due to start in a weeks time. Now in July there are several media reports that the Wadias maybe looking for an out of court settlement of the dispute by assuring Danone that the doors were still open for talks. Clearly this is one marriage that is not going to end soon.
However there seems to be more to this story than meets the eye. Last year Danone was seeking to enter the Indian market independently but could not do so because Indian law (Press Note 1) forbid foreign companies, who were already present in the market through a JV with an Indian company, from entering the Indian market without the prior permission of their Indian partners. Media reports last year indicated that neither were the Wadia's willing to give their approval for Danone to enter the market independently and nor were they moving fast to dissolve the JV agreement. As a result Danone was getting increasingly frustrated.
However last week there were media reports that the Government was planning to scrap Press Note 1 therefore allowing foreign companies like Danone to enter the Indian market without the approval of the Wadia group. Danone's entry would mean a new competitor in the market thereby cutting into Britannia's profits and at the end of the day this maybe the factor behind Wadia's recent reconciliation moves.
At the end I must add that the reason that I've given behind Wadia's reconciliatory moves is merely speculative and the real reason maybe something else.

Biosimilars, Indian Generic Companies and the Drug Regulators

The Business Standard reports that "Dr Reddy’s Laboratories, the country’s third-biggest drugmaker, will form a joint venture with one of the world’s biggest biotech companies to make biosimilars or generic versions of patented biotech drugs to take on Ranbaxy Laboratories, Reliance Life Sciences, among other Indian companies. Several drugs are expected to come off patent in this segment in the next five years."

While the company is not willing to reveal any details at this point (as to who the partner is and what the terms of the deal are), this is indeed an interesting development. (Now why is one part of me thinking - is this another Ranbaxy-Daichi story in the making?) It is indeed inspiring to see Indian companies take on new challenges and partnering with more experiences partners is certainly a great way to bring the all-important "know-how" into India.

Biosimilars are different from generics in that they are much more complex molecules and have their basis primarily in biotechnology rather than chemistry. It is therefore not surprising that there's hectic activity in countries such as the US and EU for the establishment of special standards for approval of Biosimilars; it is commonly believed that the abbreviated process used for approval of pharmaceutical generics is not appropriate for biosimilars as there are greater (health) risks associated with even the slightest modification in the manufacturing process of biosimilars.

The European Medicines Agency issued "Guidelines on Similar Biological Medicinal Products" way back in 2005. According to these guidelines, "Biological medicinal products are usually more difficult to characterise than chemically derived medicinal products. In addition, there is a spectrum of molecular complexity among the various products (recombinant DNA, blood or plasma-derived, immunologicals, gene and cell-therapy, etc.). Moreover, parameters such as the three-dimensional structure, the amount of acido-basic variants or post-translational modifications such as the glycosylation profile can be significantly altered by changes, which may initially be considered to be ‘minor’ in the manufacturing process. Thus, the safety/efficacy profile of these products is highly dependent on the robustness and the monitoring of quality aspects."

According to the news reports I was able to uncover, even though the US is yet to finalize similar guidelines/laws, biosimilar drugs are "forging ahead" and as of October last year, "Biotech drugs account[ed] for around 10-15% of the current pharmaceutical market, and the sector [was] outperforming the market as a whole in terms of growth."

As a number of patents in the Biologics sector are close to expiring in the near future. Is the Indian drug regulatory authority ready for this new, more challenging form of "generic" drugs?

Read more on Biologics here.
Related EU Directives of interest for researchers: Article 8 of Directive 2001/83; Article 10(4) of Directive 2001/83/EC and Section 4, Part II, Annex I to the said Directive [As amended by Directive 2003/63/EC, OJ L159 (p46) and Directive 2004/27/EC, OJ L136 (p34)]

Grave Diggers, "Immoral" Patents and the NBRA

In a previous post, Prashant highlighted a recent bill proposing the creation of a national biotech regulatory authority (NBRA) and noted:

"The NBRA Bill confers upon the regulator the power to regulate research, manufacture, import and marketing of genetically modified organisms. As of now the entire process relating to the regulation of genetically modified organisms is quite ad-hoc and it is exactly this problem that the NBRA seeks to solve by providing a single window clearance mechanism. "

SpicyIP recently spoke with an expert in this area, Dr Sivaramjani Thambisetti who teaches IP at the London School of Economics (LSE). Her profile can be found here.

Siva was kind enough to share a letter that she had written to the Ministry in this regard, advocating that the "morality" bar to patenting be resuscitated and that the proposed NBRA be permitted to assume an active role on the "patenting" front. For a background to the morality exception in India, I reproduce below portions of an earlier draft of an article that was finally published in the IPQ (a copy of which is available for free download here).

"Rights from its inception in 1911, the Indian Patent regime has always had a ‘morality’ exception. Section 3 (b) of the Patents Act articulates this exception as any invention, ‘the primary or intended use of which would be contrary to law or morality or injurious to public health.’

...there appears to be only one unreported instance of the use of this exception by the Indian Patent Office. The invention in this case related to medicinal powder prepared from skeletal remains of dead bodies dug up within a week of burial. Digging up graves for profit- oriented purposes was seen as highly objectionable by the patent office.

In the light of the above, one may be tempted to relegate the morality exception to something of a non-starter. However, it is important to remember that this exception was dormant in most other regimes and triggered off mainly when confronted with biotechnology applications. In the Indian context, the patent office screened out problematic biotechnology applications using a constricted definition of manufacture, internal guidelines, delayed examination tactics etc. With most of these grounds no longer available, it is quite possible that the patent office may now turn to the morality exception."

Siva's scholarship and teaching focuses on the legal regulation of biotech inventions (specifically in relation to patents)--SpicyIP therefore hopes that the government gives serious consideration to the views of this expert.

The National Biotechnology Regulatory Authority’s Mandate Must Include Powers under S 3(b) of the Indian Patents Act: Expert Submission on Proposed National Biotechnology Regulatory Act

I am a lecturer in law from the London School of Economics . I welcome the setting up of the National Biotechnology Regulatory Authority (NBRA) and the process of consulting with stakeholders. After a careful study of the materials made available to the public, I would like to comment on a particular aspect of the draft NBR Act. My comments are based on my study of European decisions on patentability of genetically modified organisms and other genetically engineered products.

The current plan to establish the NBRA is conceived as an umbrella authority to regulate biosafety and patentability issues are not part of the current draft Act. However, I believe the NBRA must take into account specific ways in which biosafety impacts on patentability in order to develop coherent and measured policy that can feed into judicial and patent office decisions. If the Authority is not given a specific mandate on patentability, I believe it will necessitate an eventual amendment to the NBR Act as patent law decisions develop in India.

The provision of the Indian Patents Act that deals with the ‘morality’ and public safety threshold closely mirrors the European Patent Convention. Thus as per s 3(b) of the Indian Patents Act, inventions whose primary and intended use would be contrary to law, morality and public health are not patentable. Till date there are no significant cases in India on this provision, which according to some commentators is in itself surprising.(Shamnad Basheer ‘Policy-Style Reasoning in the Indian Patent Office IPQ (3) 2005 309-323. Available here).

As jurisprudence develops in this field we may expect an increasing number of legal objections to be raised on the patentability of genetically engineered animals or other biotechnological organisms.

The Indian provision is very similar to Art 53(a) of the European Convention which prohibits the patenting of inventions that are contrary to ‘ordre public’ or ‘morality’. In Europe this is a very controversial provision, with phrases in the provision subject to many contested meanings. Major decisions on this provision have included the Relaxin (gene patenting), Oncomouse (Genetically modified animal) and Stem cell (Enlarged board of appeal decision is awaited) decisions. (T 0315/ 03 Transgenic Animals/HARVARD Available here http://legal.european-
patent-office.org/dg3/pdf/t030315ex1.pdf, Howard Florey/Relaxin [1995] EPOR 541, Patentability of Human Embryonic Stem Cells: Amicus Curiae Submission of the UK. See here)

In these cases, major questions of biosafety were part of the decision, albeit to differing extents. My conclusions on the desirability of extending the NBRA mandate specifically in the context of S 3(b) of the Indian Patents Act follows from gaps that have emerged in European Patent Office decisions (EPO).

In Europe, the approach to the interpretation of the ‘morality’ exclusion takes either of two non-exclusive approaches. First is the ‘patent first’, ‘regulate later’ approach. The reasoning behind this approach is that even if a patent is granted on, for example, a genetically modified organism, it is not a license to use, manufacture and sell this organism. (For a similar comment in the US context see, Margo A Bagley ‘Patent First: Ask Questions Later’ 45 William and Mary Law Review 469).

Regulatory approval must then be obtained and all biosafety preconditions met. The main objections to emerge on this position include the observation that once a patent is granted, it makes regulatory approval more likely.

Further, initial patentability quickly sets up expectations within industry both domestic and foreign, potentially creating further barriers to regulation. The second approach has been for the EPO itself to make a decision on biosafety in order to conclude that such concerns need not be a threat to ‘public ordre’ or morality. The obvious objection to this has been the legitimacy of patent examiners making sophisticated decisions on biosafey, a field outside of their normal expertise.

To sum up, a combination of these two approaches results in the EPO assessing biosafety of the exploitation of an invention under ‘morality’ or ‘public ordre’ of Art 53(a), but by and large there is reliance that post-patent grant efficient regulatory authorities will police this aspect of the use of genetic technologies. The above approach has been criticised by academics as being overly dismissive of what could be developed into a strong legal doctrine that deals in a proactive rather than responsive way to dangerous or unsafe technologies. It must also be recognised that the approach of the EPO is fuelled by a generally expansive approach to patentability that interprets any exclusions in the law narrowly.

Given the history of this legislative provision, what can we expect in India and why should patentability become a matter of concern for the NBRA? The Indian legal context is different. There is increasing awareness and willingness to use the language of the law to develop appropriate patentability standards in keeping with the political, cultural and social climate. If the Indian patent office is called upon to make a decision on GMOs and their biosafety under the morality provision, it could result in contradictory approaches that are not in keeping with the latest information on biosafety.

Further, the Indian Patents Act includes slightly different terminology to the European in that ‘public health’ is included. Public health concerns lend themselves to a wider range of biosafety concerns than ‘public ordre’ or ‘morality’ on their own.

The Patent office must be steered to deal with ‘biosafety’ and its rightful legal relevance under S 3(b) of the Patents Act. Therefore the NBR Act should include a mandate to advise the patent office on exceptional or particularly dangerous genetic technologies, at the time the patent application for such technologies are be considered.

Even in subsequent litigation, any court interested in bringing greater clarity to this provision will have to address the question of biosafety. Here again, there must be a role for the NBRA in order to develop consistent, and legally viable strategies. This is a unique opportunity to complement not only the functions of the Indian Patent Office, but also the newly constituted Intellectual Property Appellate Board (IPAB).

The mandate to advise the Patent Office, IPAB or the Supreme Court could take the form of guidelines within the patent examination manual that constantly review and update a typology of technologies that are safe and do not raise new legal or scientific issues. Unprecedented technologies must be referred by the patent office to the appropriate wing of the NBRA for an opinion. Such referral may take place in rare and exceptional circumstances that are specified.

This model, whereby a regulatory body is involved in the patentability process is followed for example in Brazil where the ministry of health has a say in the patentability of important pharmaceuticals. (See for example K Shadlen, ‘The Politics of Patents and Drugs in Brazil and Mexico: Industrial Bases of Health Activism’ Global Development and Environment Institute
Working Paper 07-05. Available here).

This model of regulation is a viable one, as long as the threshold for intervention is kept high and patent examiners are informed of the circumstances under which they should make a referral to the NBRA. Clear guidelines in this respect should not raise any TRIPS-compliance issues. In the absence of such a mandate, any case on the patentability of genetic engineering technologies dealt with under S 3(b) may be swayed either by excessive scaremongering or by an overly lax approach to biosafety.

On the basis of the above, I recommend that a provision on the following lines be reflected in the NBR Act.

‘The Authority will advise the Patent Office and any judicial bodies including the Intellectual Property Appellate Board, on the biosafety of particular inventions on which a current patent application has been filed or whose validity is contested under S 3(b) of the Indian Patents Act. Such an advisory role will only be exercised in rare and exceptional circumstances when the exploitation of an invention could potentially endanger public health or safety.

I would be happy to participate further in any discussion on this.

Dr S Thambisetty
London, June 16th, 2008.

SpicyIP Tidbits: A Soft War for Software Patents

Business aptly seems to drive law; finally, the Murthys and Ramadorais of Bengalooru have spoken up. According to an article in the Financial Express, IT majors Infosys and TCS have reacted strongly to a call made by the open source community, particularly Red Hat India and All India Peoples Sciences Network, for dropping a clause in the draft patent examination manual which according to the latter gives a backdoor entry for software patents. The article states:

"The IT majors made their opposition clear at a meeting in Delhi, called by the government's department of industrial policy & promotion on Thursday. The dispute has been sparked by the draft manual that will guide patent examiners in their interpretation of the Indian Patent (Amendment) Act for software. Section 3(K) of the Act clearly says: "A mathematical or business method or a computer programme per se or algorithms are not patentable."

But the draft examination manual gives scope for patent examiners to grant patents where none is allowed for software under the law. Even the Federation of Indian Chambers of Commerce & Industry (FICCI), representing the software associations and the law firms, arguing that a strong intellectual property regime in India would give the Indian software industry the impetus to evolve into product-related research & development model."

Companies like Infosys want software patents along the entire software value chain from source code to software embedded in hardware; the IP head of Infosys, Pinaki Ghosh, feels that systems as well methods should be patentable. But opposition from Red Hat may give pause to any such possibility. The arguments for and against software patents aside, one doesn’t see how the draft manual or even the manual come into picture when they do not carry the force of law. For more details on the position of Indian law on software patents, here are the earlier posts on the issue in SpicyIP.

SpicyIP Tidbit: Outsourcing patent applications revisited by USPTO

The latest USPTO notice which has several important implications for countries such as India, has interestingly been issued with a view to discourage “solicitations” by a number of law firms and/or service provider companies located in foreign countries with respect to preparation of patent applications to be filed in the U.S. on behalf of registered American patent practitioners.

The notice is essentially a reminder by the USPTO to persons concerned, since in practice there has been some transgression from the rules applicable off late:

• USPTO licensees exporting subject matter abroad, such as a foreign filing license, can do so for the limited purpose of filing of foreign patent applications and with prior clearance from the Bureau of Industry and Security (at the Dept. of Commerce).
• Applicants and registered patent practitioners have also been advised to ensure that any material or technology not specifically submitted to the USPTO as a part of a US Patent Application, not be a part of the subject matter for the filing of a patent application in a foreign country.
• Importantly, it reminds such applicants that no such export of subject matter is permissible where the purpose is the preparation of patent applications to be filed in the U.S.A.

The result: While it seemed like in 2002, the USPTO seemed to encourage the outsourcing of patent examination functions, and even initiated a drive to identify such organizations, they seem to now be more wary and in fact rather strict over what can be outsourced to firms abroad. Most outsourcing firms in developing countries, patent practitioners, and applicants, that handled such a bulk of patent applications, now have to be extremely careful and avoid a violation of any of the rules mentioned in the notice. Especially, since they came in with immediate effect (from July 23^rd, 2008).

Read the full notice issued by the USPTO here.

SpicyIP:Himalaya in Troubled Waters.

Engaged in a Waterloo of sorts, the Tata Groups Mount Everest Mineral Water (MEMW) and Bisleri are wrangling over the usage of the trademark ‘Himalaya’.

As the facts of the case go,

MEMW the registered holder of the Trademark ‘Himalaya’ has obtained an interim injuction from the Delhi High Court restraining Bisleri from using its trademark in its packaging.

In turn Bisleri has approached the IPAB in Chennai seeking a rectification of the Himlayan trademark on the grounds that the word is a descriptive word that indicates the source, origin and quality of the water.

The Application further relies on the Geographical Indications of Goods Act 1999 (G.I), stating that the word ‘Himlaya’ bears a geographical connotation and hence comes under seeks the ambit of the G.I Act. The G.I is a collective right that is conferred on a group or community engaged in the manufacture of the product traditionally originating from a specific region, bearing intrinsic characteristics attributable to the geography of a place.

This case would hinge on the ability of MEMW to demonstrate and prove that Himlaya is a “generic” term that is used on a wide array of products and not necessarily on goods from the Himalayan terrain. Whether they would be able to push this argument remains to be seen

This case is likely to be a ticklish one, the first of its kind in India in that as it calls for a reconciliation between a trademark and a G.I. It would also entail a close examination of the issues that could possibly arise in future whenever there is an interface between a trademark and a G.I

However in consonance with TRIPS(Article 22.3) Agreement, the Indian Act also sets forth the following with respect to the relationship between trademarks and GIs:
“Where a trade mark contains or consists of a geographical indication and has been applied for or registered in good faith under the law relating to trade marks for the time being in force, or where the rights to such trade mark have been acquired through use in good faith either—
(a) before the commencement of this Act; or
(b) before the date of filing the application for registration of such geographical indication under this Act;

nothing contained in this Act shall prejudice the registrability or the validity of the registration of such mark under the law relating to the trade marks for the time being in force, or the right to use such trade mark, on the ground that such trade mark is identical with or similar to such geographical indication.”
However the word Himlaya as it stands today is not a registered G.I. The G.I Act that came in to being only in 2003 is a nascent one with few domestic case laws in this area of IPR. EU judicial cases such as that of Anheuser Bush Inc vs. Budweiser Malt Products Corpn lays down some guiding principles in determining issues such as the above.

Amidst all this brouhaha, other thirst quencher biggies like Vijay Mallyas’ UB have nose dived headlong into the watery fray to capitalize on the Himalayan H20 strategy.

‘Having registered this name as its trademark the liquor major is now planning to unleash its natural mineral water sourced from the Himalayas.
“We intend launching our natural mineral water in the next few months and as long as it is sourced from the Himalayas we will be using the word Himalaya for our brand.
“Kingfisher Himalaya Natural water has already been registered as a brand and we will definitely go ahead and use it as long as the source for the mineral water is rightly mentioned,” said a senior UB group official.’
Well, when elephants fight, the ants set out to party!

SpicyIP Tidbit: The Scrabble squabble, now in court

Image via WikipediaA few days ago, an invite popped into my Facebook account. Not the sort that entices you to explore your darker side by turning vampiric, or that calls you to save the world by growing virtual plants. This one beckoned me towards a new version of that classic divertissement - this time by the folks who own the brand themselves - Scrabble. But I do not write this to tell you of my application collection.

Some of you may know of my fascination for the game and my keen following of the fate of Scrabulous - a Scrabble-lookalike online version launched two years ago by RJ Softwares, run by Rajat and Jayant Agarwala of Kolkata. (see SpicyIP posts here and here).

Earlier this year, after Scrabulous/the Agarwalas reported that they had been sent a legal notice by Scrabble/Hasbro, there was little doubt that closure was imminent, but speculation was rife over what would happen next: would the US toymaker attempt to buyout the Indian website, or would the existing "illegal" game be substituted by an official counterpart?

So last week, it was no surprise to hear that Hasbro had finally launched the "official" casual gaming version of Scrabble, and had also gone ahead and sued the Indians for copyright and trademark infringement, and unfair competitive practices. It has also moved court to remove the Scrabulous game from Facebook, and disable the Scrabulous.com domain name (which supports the game from an independent website, outside of the networking site).

An NYT blog adds that Electronic Arts (EA), the developers for Hasbro who designed the new e-version of the game, had “a brief conversation” with the Scrabulous creators about working together but that ultimately the company decided it wanted to control the game itself and develop it across various technology platforms.

Some issues that are of interest in this saga:
1. Hasbro has notified Facebook under the Digital Millennium Copyright Act, asking the site to take down Scrabulous. The DMCA allows service providers (e.g., Facebook) safe harbour for copyright-infringing third party material, as long as it has not actively sought for such material or profited from it. At present, Facebook seems reluctant to want to remove the Scrabulous application while the matter is still under litigation. The application, by the way, is still online and working. Facebook's continued silence may mean it has to forego this immunity under the DMCA if it fails to respond to Hasbro's notice.

2. Hasbro owns Scrabble rights only within US and Canada. Mattel, which owns the rights for the rest of the world, has not joined the lawsuit. Does this mean that if Scrabulous loses this suit, it may continue to allow IP addresses from outside US and Canada to access its version?

3. The Agarwalas have been mysteriously silent on the lawsuit. Their website continues to display this message: Scrabulous was created by Rajat and Jayant Agarwalla, from Kolkata, India. After not finding a decent online environment to enjoy word games, the brothers decided to create their own website so that users from all over the world could enjoy!
How will they respond to this? Note that, as pointed out in an earlier post, Scrabulous is fairly blatant in acknowledging its similarities with Scrabble: it hyperlinks to the board game’s actual rules on its website; has a similar sounding name; and has a board that is patterned identical to the Scrabble board. Attempts to defend the idea of the game (rules, board, etc.) will be difficult. The brothers perhaps have some rights of authorship to the software design, and can attempt to look into the source code behind Hasbro/EA's official version to claim some due.

On an endnote: If you are not word-inclined, the Independent here lists a handful of other applications for the time-wasters of this world. (May our tribe increase!) Oh, and by the way, I didn't accept the invitation for Scrabble. I still play the Indian version, and if anyone wants to challenge me to a game, they are welcome. And no, I don't cheat.

SpicyIP Tidbit: Trends in Indian patent litigation

A Supreme Court judge, Justice Altamas Kabir at the inauguration of the Judges' Round Table on Intellectual Property Rights Adjudication organised by the Tamil Nadu State Judicial Academy and Federation of Indian Chambers of Commerce and Industry (FICCI) was quoted as saying "Intellectual Property rights is not a new concept, its age old one but still there is not much awareness among advocates and common public". It is indeed refreshing to hear a Supreme Court judge admit that the concept of IPRs is an age old one instead of indulging in the usual rhetoric about the concept being alien to India and one that was forced upon us by imperial western powers and their agents.
Also interesting was the judge's observation that there are over 75 pending patent cases in the Delhi High Court with several more pending in the Bombay and Madras High Courts. It would be interesting to find out how many pending patent cases exist throughout the country especially since in the last one year we've heard reports of patent litigation from the Himachal Pradesh High Court, the Gujarat High Court & also the Karnataka High Court. Its no surprise that the Delhi High Court has the highest number of pending cases since it has historically been the most active IP jurisdiction in the country. However it remains to be seen as to how it will withstand competition from the Madras High Court which seems to be a more patent friendly High Court since it has been quite liberal in granting temporary injunctions. For e.g. in the high profile TVS-Bajaj case the Madras HC granted Bajaj a temporary injunction while the Delhi High Court refused to grant an injunction in the equally high profile Roche-Cipla dispute. The volume of litigation in a particular High Court is directly linked to the litigant's perception of the prevalent attitudes in the High Court and it is common for litigants to go about forum shopping in order to ensure judgments in their favour. To that extent the Madras High Court may emerge as the preferred destination for patent cases.

Geographical Indications in India: Playing the Numbers Game

In yet another instance of gross misreporting, G Srinivasan mis-states in the Hindu Business line that:

“After five years of the enactment of the Geographic Indications of Goods (Registration and Protection) Act that came into effect from September 2003, only nine products have been accorded the Geographical Indicator (GI) status while another two are due to get the status from the Registrar of GIs in India.”

Since the numbers seemed horrendously low and contradicted innumerable earlier reports on this theme, including a government press release here, SpicyIP immediately queried the Dept of Industrial Policy and Promotion (DIPP) at the Ministry of Commerce, the nodal agency in charge of intellectual property in India. It turns out that the number of GI's registered till date in India stands at a whooping 81--a figure that is over 9 times of what was stated in the above report. We’ve attached the complete list here for the convenience of our readers. We are very grateful to Mr TC James for providing us with this information.

82 GI’s in a span of 5 years (the GI registry began working around 2003) sure does look impressive! Particularly, when one considers the fact that the office is effectively staffed by just one Controller (Mr V. Natarajan) and an examiner, Prashant Bhairappanavar. With so many applications pouring in, it is clear that they are working around the clock!

Interestingly, all the registrations so far are from India. Contrast this with the patent regime, where most registrations in India are still by foreigners. Testimony to the fact that GI's are of significant national interest to India, which continues to fight an international battle in Geneva advocating that the special protection for wines and spirits under TRIPS be extended to other forms of GI as well. For the latest on this controversy which has pitted a number of developing countries against the developed bloc, read this report at Intellectual Property Watch (IPW), the leading authority for international IP news.

So what keeps foreigners from registering their GI's in India? Lack of business potential/sales within India? Surely, that can't be the case. Innumerable trademark litigations by the Scotch Whisky Association (SWA) in India will testify to the immense business potential in India. Readers may recollect our earlier post, where we expressed surprise at the fact that the SWA has yet to register its GI in India.

Anyway, for those interested in a critical analysis of the massive GI registration numbers in India, see Latha Jishnu’s incisive piece here (since the original piece at Business Standard is currently inaccessible, I have linked up to "Original Fake", an insightful and refreshingly different commentary on Indian IP and tech law issues by Prashant Iyengar). While mulling on the large GI numbers, Latha pointedly notes:

"In recent months there has been practically a stampede for GI registration in India. Unlike the developed countries which use it primarily for food products (Champagne, of course, and things like Parma Ham), India has extended GI protection to products across the spectrum, from handicrafts to flowers and spices. Thus the Aranmula mirror, along with assorted silks, saris, textiles and embroidery styles, joins soaps, incense, different varieties of jasmines, several strains of rice, tea, betel leaf, pepper and chillies to get the GI tag.

......And perhaps, the GI Registry in Chennai needs to apply more stringent yardsticks. As states get more competitive to include as many of their products in the registry, it appears have become a free-for-all. Does a Coimbatore wet grinder, the ubiquitous stone contraption used in south India to grind grains, qualify for GI?"

Well, it turns out that the "Coimbatore wet grinder" had already been registered as far back as 2006! But Latha's question is an interesting one that merits some investigation. I am given to understand (subject to correction) that apart from this preliminary rejection of the Basmati application, the GI registry has not rejected a single application till date.

However, the Mint recently reported that an application for the mother of all GI's "Basmati" is close to being rejected by the GI Registry in Chennai:

"A seven-member consultative group headed by V. Ravi, the controller general of patents, design and trade marks, recently rejected an application for GI status for the rice variety filed by Karnal, Haryana-based Heritage Foundation in August 2004, citing flaws and lack of relevant data, said an official at the Union ministry of commerce and industry.

Following the consultative group’s decision, the Geographical Indications Registry in Chennai has issued a notice to the Heritage Foundation asking it to show cause why its application should not be rejected. The hearing on the notice will be held before Ravi, who is also the registrar of the Geographical Indications Registry. “There were discrepancies in the application filed by Heritage Foundation,” said the commerce ministry official, who spoke on condition of anonymity because he is not authorized to speak with the media."

I am still unclear on whether or not this rejection was substantive or stemmed from procedural and other formal irregularities. As one can appreciate, it might be relatively easy to beef up the application and cure procedural infirmities. However, if this were a substantive rejection, then India is basically signaling to the world that Basmati is not worthy of GI protection!

From the report, it appears that the applicant hadn't worked hard enough in preparing a fool proof application and that the locus to file the GI application in question might have been an issue. The Mint report states:

"The Heritage Foundation could not provide technical details and scientific data relating to specification of the product, identity and the geographical area where it is grown, the official added. The application was also flawed in terms of representation of basmati growers and farmers on the foundation, as it was represented mostly by mill owners and exporters, the official said."

Perhaps if APEDA had filed it, it might have been more succesful? The Mint report concludes by noting:

"Ahead of a formal announcement rejecting Heritage Foundation’s application, the government has decided to empower the Agricultural and Processed Food Products Export Development Authority (APEDA) to protect farm and horticultural products such as basmati from attempts by other countries or producers to patent them.

The Union government has decided to amend the APEDA Act to enable the agency to register these products for protection using GIs. The amendment has been cleared by the Union cabinet and will be introduced in Parliament soon, the official said."

Notwithstanding our lack of clear answers underlying the negative report by the 7 member committee, this incident suggests that there might be some level of scrutiny being exercised by the registry. But one has to wait and watch and get more figures for a more thorough assessment in this regard.

In this context, I wonder what fate will befall the infamous "Jamnagar" application filed by Reliance Industries Limited (RIL) which is currently under opposition at the GI registry. See this scathing report here in 2006 which notes that this application by Reliance to cover petroleum products is highly tenuous, as the products in question (petroleum) were not characteristically attributable to geography. It notes in particular that "Petroleum products originating from Jamnagar are not inherently superior or unique to those originating in other parts of India or the world, merely because they are from Jamnagar". To back up its claims, it carried a detailed account of an opposition filed by an individual GI consultant, Vinay Jain, against this application noting that:

".... the application does not mention one of the essential ingredients of the GI, i.e., the "Characteristics" of the petroleum products attributable to the given geographical area. The characteristics given by RIL are as per ISO specifications which have no association with geography. Quite significantly, the process of production is not unique to the given geographical area and there is no contribution of the geographical location or any of its constituents and ingredients.

....the name Jamnagar is generic in all respects. Everyone in the region has the right to use the name.... Giving GI status for these products to one applicant alone amounts to giving that applicant exclusive marketing rights for the Jamnagar name, which is not the objective of the law."

SpicyIP will continue to track this contentious application and bring you updates in future.

Apart from assessing the level of scrutiny by the GI office, we need to step back and ask the more important question: what do these numbers really mean? Will communities that own these GI's become wealthy business magnates overnight? Is it enough to just keep drumming up these impressive numbers?

Readers may be aware of CSIR's lofty patent numbers, which never really translated to any significant licensing figures. A Mint Report by Jacob Koshy notes:

"Though a prolific patentee, CSIR doesn’t generate much revenue from its patents. In 2004-05, the latest period for which data is available, CSIR filed 50 patents and generated Rs4 crore in royalties and licensing. However, it also spent Rs 10 crore in filing for the new patents and in maintaining existing ones.

“CSIR had got into a patenting rut. Policymakers believed that a critical mass of small patents would automatically translate into blockbuster patents that would bring in the revenues. That never really happened,” said a CSIR scientist, requesting anonymity."

Which raises an important question in the context of the proposed Bayh Dole bill (a copy of which we recently carried): Given the costs of patenting and maintaining TTO's (tech transfer offices), does the assumption that universities and research institutions would begin raking in the moolah once we incentivise them to file more patents hold good?

Back to our GI topic, the CSIR example demonstrates that the real challenge is to convert impressive GI registration numbers to bigger markets and more money for these communities. Particularly when the international markets for GI products are growing rapidly. I spoke with the owner of Nathmulls, a very reputed tea chain in Darjeeling who claims that the international market for Darjeeling tea is over 5 times of what is currently exported! The various GI communities along with the government has to come together and brainstorm to figure out ways of leveraging their GI's to capture more markets.

At the cost of repetition, it bears noting that the GI "registrations", though impressive, are just a means to an end and not an end in itself. And that we ought to be wary of gloating over increased numbers and cocooning ourselves into believing that this automatically converts to more prosperity for our poor artisans and farmers!

Copyright societies dealt a severe blow by the Delhi High Court

The Delhi High Court has recently passed judgment in the case of M/s Phonographic Performance Ltd. v. M/s Hotel Gold Regency & Othrs (MANU/DE/0942/2008) making life supremely complicated for both copyright owners and copyright societies alike. As most of our readers must already know copyright societies in their capacity as licensees usually institute copyright infringement suits in their names on behalf of all their members who are the actual copyright owners. This judgment however put an end to this practice by holding that as per the scheme of the Copyright Act, 1957, the copyright societies do not have any right to institute a suit for copyright infringement in their name and therefore only a copyright owner or an exclusive licensee can sue for copyright infringement. This basically means that all pending suits filed by copyright societies are likely to be rejected in the Delhi High Court. As a result copyright owners will have to restart litigation in their individual names.

The reasons given in the judgment revolve around a combination of various provisions of the Copyright Act namely Sections 33, 34, 54, 55 & 61. To start of with the judgment upholds the defendant’s contention that as per Section 55 only a copyright owner can institute a suit for infringement of his work. As per Section 54 the definition of copyright owner includes an exclusive licensee. Therefore an exclusive licensee has a right to institute a suit.

While in the current case the plaintiff himself had stated that it was not an exclusive licensee the Delhi High Court has interpreted the law to hold that a copyright society can never be an exclusive licensee because of the proviso to Section 33(1) which states that “an owner of copyright shall, in his individual capacity, continue to have the right to grant licenses in respect of his own works consistent with his obligation as a member of the registered copyright society”. In my opinion this is a wrong interpretation of Section 31 since there is nothing barring the copyright owner from surrendering all his rights to a copyright society and making the copyright society an exclusive licensee (as defined in Section 2(j)) if in case this is required by the copyright society. After all it is his right and if he wants to make a copyright society the exclusive licensee the Court cannot bar him from doing so.

Further the Delhi High Court held that from a bare reading of Section 34 it was obvious that the legislature had vested the copyright societies with only rights of administration that included the right to issue licenses and collect royalties and distribute the earnings amongst owners. The Court held that if in case there were disputes regarding the violation of these licenses issued by the society then in that case the copyright society would have the right to sue in its name since it was a contractual dispute and not a case of copyright infringement. Ultimately the Court ended up rejecting the plaint in this suit.

This judgment is definitely going to have quite an impact on the operation of copyright societies and we can expect to see several more rounds of litigation on this point.

Hunting the Pirates: The Guruji and BharatStudent amongst others to be caught in recent T-Series Rampage

An Indian music giant is out to hunt pirates. And how! Instituting copyright infringement proceedings against YouTube & Yahoo! for copyright infringement was only the beginning of the T-Series in court. As reported by the Economic Times, the company has also confirmed to notices issued to websites, including MSN, MySpace, Guruji.com and Bharatstudent.com. [Read Spicy posts on the Youtube and T-Series case here and here. Read also, Sumathi's post on the rumoured out of court settlement, which T-Series has denied in the same ET article].

The offence: (In the words of their Vice President- Digital Content, Mr. Neeraj Kalyan) "Facilitating" or "providing" a platform for users to upload copyrighted content without any form of payment makes these websites equally guilty of copyright theft.

The whole controversy is especially interesting since the company claims that being the copyright owner, the Indian Copyright will be applicable, and that the Digital Millenium Copyright Act will not provide MNCs (here namely, Google owned YouTube and Yahoo!) protection. [Long ago, Duncan had posted on a possible Indian DMCA as well as responded to a comment on the sections similar to the same in the Indian Copyright Act: Section 79 as well as the shortcomings as against the DMCA.]

Other infringers such as Guruji.com and Bharatstudent.com, offer "meta data—listing and tagging of songs" and even the uploading of videos in case of the latter site, instead of a mere link display related to the search term. The allegations have obviously been strongly refuted that claim to be doing nothing outside the purview of the what a search engine usually performs, and claim to not host any such infringing content.

While the outcome is something that we will closely follow, referring to an old post of my own as well as Swaraj's recent post, it is good to see the music industry finally waking up to take stock of their rights.

SpicyIP: And the Minister has his say on Keralas'IPR Policy

At the inaugural of the Two-day National Seminar on "Intellectual Property Rights" jointly organized by Kerala State Council for Science, Technology & Environment, Patent Office Chennai and National Institute of Intellectual Property Management, Nagpur, the Law Minister Mr. M. Vijay Kumar declared that the State is going ahead with making a legislation for "Traditional Knowledge Protection" as committed in the "IPR Policy of Kerala".

Keralas’ so called ‘IPR policy’ has come under much flak for stepping on the Centres' mandate and suzerainty to legislate on issues pertaining to IPR.
We at SpicyIP ran several posts elucidating on the constitutional conundrum this may cause and suggested a way out of this. While the spirit and intent to protect TK is definitely laudable, the definitional hurdle is likely to detract form the purpose. Readers and the policy makers alike may recall Shamnads’ post wherein he had suggested that the Policy be recast and christened as the TK policy. Simple measures that could go a long way towards achieving the end.

However the Kerala Government continues to stick to its IPR stance, pronouncing that in the absence of a National IPR policy and the distressing exigency of misappropriation of its TK assets, it is compelled to take the matter in to its hands. As they say, a little attention does no one any harm and the State is getting more than its fair share of attention and limelight. The political underpinnings to this whole issue cannot be ignored however noble the cause.

The Minister whilst addressing this forum used this opportunity to defend the States position on this

“Many people are asking us on why the state government repeatedly refers to its policy as an "Intellectual Property Rights Policy, while it seems to be more of a “traditional knowledge policy'. The State is very much concerned about protecting its rich traditional wealth, comprising of Traditional Knowledge practices, tribal medicines. Ayurveda practices and biodiversity, which attribute to and form the basis of livelihoods of many Traditional Knowledge practitioners. In the absence of any legal property rights Traditional Knowledge may be appropriated by private businesses. Codification of Traditional Knowledge into Digital Libraries is not a complete solution to misappropriation. Kerala IPR Policy proposes to create Intellectual Property Rights on Traditional Knowledge and so we wanted to call it IPR Policy".

W agree with you Honorable Sir that the TKDL is but one of the many initiatives aimed at protecting to TK.Nonetheless this argument still does not validate the use of the terminology IPR. ABS (Access and Benefit sharing) PIC (prior informed consent) provisions all of them are key constituents of any TK initiative. These are contractual obligations entered into between the TK stakeholders. Applying the same logic, I am left to speculate whether the State would venture forth to call the legislation the Law of Contracts should the situation arise.

A cautious caveat to the statements, he further added

The IPR Policy is neither a legal document nor a position paper giving an exhaustive statement of the position of the Government of Kerala on basic IPR issues. It's simply the government's approach once certain selected issues of practical importance for Kerala in the context of new IPR regime. The legislation will have to come out of it, but only after a careful consideration of the State Government's constitutional powers in the matter. The legislation planned by Kerala State does not intend to interfere with any of the provisions of Patent Act at all, it being
a Union Subject.

Anyways as the old Chinese proverb goes,’ it’is alright to sharpen the axe before cutting the tree. It is commendable that the State has been a trend setter for the TK process and the other States could look towards Kerala for inspiration to implement a similar exercise.

Bouquets and brickbats where due- The conceptual constructs of the policy is both systematic and holistic. It not only adheres to policy requirements but is also setting up an umbrella mechanism to oversee IPR administration in the State. Perhaps the most laudable initiative to introduce IPR education in the School syllabus. Creativity in the cradle and awareness of rights when young goes the maxim!

That said however recasting and improvisations seem imminent.

Promoting IP Protection: DIT scheme for SMEs and Technology Start Ups

In a previous post, we raised the issue of whether India needs a Bayh Dole Act (at this stage). We also briefly looked at the current "environment" in India with regards patenting (as of 2003, India had only around 10,000 patents in force). The question we raised therefore was: shouldnt India first focus on creating an environment where institutions and individuals actually consider it a priority to protect their IP? I set out therefore to look at the various "incentives" that the government is offering to promote or create a culture to create and protect intellectual property.

Having worked with a few start up companies, I have often heard complaints regarding costs associated with patent filing (particularly in relation to prosecution of patents outside India). I was therefore pleased to see the details of the DIT scheme (which Aysha had mentioned in here tidbits section last year) that aims to support international patent protection by refunding upto 50% of the expenses incurred in filing a patent - and in case you are wondering, YES, it does include lawyers' fees.

Called the SIP-EIP (Support International Patent Protection in Electronics and IT), the scheme will reimburse the costs incurred by SMEs and Technology Start-Up units in filing international patent applications (in the field of Electronics & ICT) for their indigenous inventions. The highlights are as follows:

1) The funds are given as a grant - i.e., no refunds expected.
2) The DIT does not expect any share in license fees or other benefits
3) Applicants are free to hire any lawyers (no list of lawyers from which they are expected to choose)
4) 50% of all expenses, including lawyers fees, is reimbursed by the DIT. However, this “50%” must not exceed Rs. 15 Lakhs (this is approximately $37,000 - it might not seem to be a lot from an international perspective, but it is a good start!)
5) Applicants are not required to provide a whole lot of details regarding the technology/invention in order to benefit from the scheme. (This is viewed as a plus - companies are often wary of disclosing their technology to government agencies as there is a fear that the same may be "stolen" or misused) However, a search report and a breif explanation of the commercial viability of the invention must be provided.
6) Funds are not given to Universities or government institutions, but to start up companies or SMEs. (I thought this was a very good way of ensuring that the entities that might actually bring the technology to the market, get the funds needed to protect the IP rights in the technology)
7) The Start-up/SME need not be an ICT company, it can be a biotech company or any other company. The only requirement is that the invention sought to be protected relate to the broad area of Electronics/IT. Thus, Biotech companies that are involved with bioinformatics R&D, can also avail of this scheme.

The details of the scheme are available here. According to sources within the DIT, the scheme, which was started sometime in November last year, has not attracted as many applicants as one might expect. I do encourage our audience, which I hope also consists of start-ups and SMEs to make use of the scheme. At the same time, I also invite our readers’ comments on this and similar schemes: how they can be made more attractive and practical?

NPP may finally come into being.

The long pending National Pharmaceutical Policy, 2006 (NPP) seems like it may finally see the light of day some time in September this year according to Sharad Pawar. Sharad Pawar, the head of the 7 ministers that formed the Group of Ministers (GoM) that was constituted to rethink the policy after it was announced earlier in 2007, announced that it was in its final stages and would be ready within 2-3 months.


The NPP was first proposed as far back as 2002 but ever since, has been shelved due to various reasons. Important parts of the policy are aimed at introduction of health insurance scheme for the poor families, Special Access Programme for anti-cancer, anti-HIV drugs in the form of public-private-partnership programme. Also, MRP to include all taxes as is the case for other packaged goods. Also to look at feasibility of revival of Pharma PSUs so as to ensure adequate availability of essential medicines at affordable prices. Aimed at ensuring the affordability of essential medicines among other things, the Policy has been the subject of a constant tussle between the various stakeholders involved. The main bone of contention has been the issue of which medicines should fall under price control and which should not.


Pharmaceutical companies are pushing for the price control rules to be relaxed, claiming that the reduced profits would affect the market negatively as it would lead to a decreased overall output of essential medicines. Rather than the prices of drugs, the pharmaceutical lobby claims that it was a failure in the delivery mechanism which has led to the failure in providing affordable drugs.


The other side of the debate is led by the Minister of Chemicals and Fertilisers, Mr Ram Vilas Paswan. Accusing the industry of excessive lobbying and misleading even other ministers, Mr Paswan said that the Government would not be influenced by such propaganda. Mr Paswan is pushing for bringing 354 medicines under price control whereas the pharma industry is just not ready to accept such stringent control. They insist that this kind of a move is retrograde and anti-liberalisation.


However, it must be pointed out that some sort of price control is in fact required in India, especially considering the lack of any health insurance in the masses. Even in the developed countries’ ‘free market’ economies there are price control measures. And the pharmaceutical companies are relying on market forces to decide prices. The problem with this is that medicines commodities which the end consumer does not decide what to buy. It’s a need based commodity – the patient needs a medicine prescribed and buys that medicine.


Another problem is that medicines are required to alleviate suffering caused in patients and hence drugs are more than just a consumer commodity. In almost all developed (market-economy) countries except USA, all issues relating to drugs, including prices, are subject to regulation by the government.


Instead of a price control mechanism, the pharmaceutical industry is asking for the formation of a monitoring system which would only examine drastic and unreasonable price hikes.
Recently, the policy has been forwarded to the law ministry to ensure that it is in complete compliance with the Supreme Court directive of 2003 which specifically mentioned the words ‘price’ and ‘control’. As of last check, it hasn’t been returned by the law ministry yet.


This declaration by Sharad Pawar has indeed come as a welcome relief as it has come at a time when many thought that the formation of the GoM was merely yet another delay tactic by the government. Now it only remains to be seen what is turned out when it does come out later this year.

Spicy IP Tidbit: Hollywood strikes back… the wrong way

After hearing of scores of instances of Hollywood movies / soundtracks being copied in Bollywood, here comes a rare instance of a Hollywood movie lifting a part of it’s soundtrack from Bollywood.

A Hollywood Sci-Fi Cloverfield has used Pankhida Oh Pankhida, a Gujarati garba originally penned by Vijaya Herma about 25 years ago, as part of its soundtrack. For the purposes of the film, Lekha Ratnakumar had created his own version of the song and was credited with it in the film. As a result of this, in a press meet Khyati Herma, daughter of Vijaya Herma, and Ranjith Herma, husband of Vijaya Herma threatened to drag Lekha Ratnakumar and the producers of Cloverfield to court for copyright infringement. According to Khyati Herma, the copyright of the song belongs to ‘Studio Siddharth’. The garba was recorded for the first time by Hemant Chauhan and later used in two movies produced by Herma.

Denying any claims of copyright infringement, Ratnakumar went on to tell the TOI : "I have used just 'Pankhida O pankhida' while the rest, including the music, is my version."

Herma and his legal advisor have decided to proceed against the producer of Cloverfield in USA while also filing a case against Lekha Ratankumar in India for pirating the song and selling it to the Hollywood producer.

Without going into the merits of this case specifically, considering the bludgeoning piracy and counterfeiting industry with relation to Bollywood it is indeed nice to know that filmmakers are becoming more aware of their rights. Although this is not the first time that an Indian has sued an American filmmaker (A few years ago Bappi Lahiri successfully sued producers of Truthfully Speaking which contains the Truth Hurts song Addictive because it had Lata Mangeshkar’s song Thoda Resham Lagta Hai in the background), the cases have been few and far between. For that matter, even the much more popular occurrence of copying that goes on within Bollywood goes relatively unchecked either due to ignorance of rights or of fear of upsetting the bigwigs in the industry. (See Kruttika’s post ‘The Music Industry looks to the IP scene for better protection.’ and Yasha’s post on the Krazzy tune)

Getting back to the present case, Spicy IP will keep you updated as and when the case progresses.

Crafting the National IP Policy: Will the Tiger learn from the Dragon?

Remember the last time you were in the electronics shop and decided to buy the cheaper Chinese rip off instead? Well IP and business journals across the globe have been reporting for the last month or so about the revamped Chinese IP policy that hopes to forget the days of pirated goods in the hidden pages of Chinese history. The effort to enforce Intellectual Property laws in a far more efficient and manner better aligned to international (especially American laws) is the highlight of the policy.

In an article last month in the Wall Street Journal, suggestively titled "No more Chinese knock-offs", Mr. Wang Qishan (the Chinese Vice Premier) has stated that the enforcement of Intellectual Property has always been an extremely important goal in his country and that the same will be stregthened by the alignment with the United States laws very soon.

This new development has already started making waves, with China increasingly being regarded as the next IP destination by market experts. An article in IP Watch has accurately outlined what the changed IP Policy means for Chinese Politics and business. Reproduced below is the article for our readers:

"China’s New National IP Rights Strategy Puts IP On Its Political Agenda

By Jia Hepeng for Intellectual Property Watch
BEIJING - With a newly revealed national strategy on intellectual property rights, China has vowed to place intellectual property in the centre of its political agenda.

The outline of the national IP strategy was enacted on 5 June by the State Council, China’s cabinet. It will be followed by more than 20 strategic tasks to be implemented by different government ministries, ranging from amending existing laws to enhancing the juridical powers of the government departments related to IP enforcement.

The long-term goal, the document states, is to develop China into “a nation with an internationally top level of creating, using, protecting and managing IPRs by 2020.”

In the short run, according to the strategy, the number of patents owned by Chinese citizens should become among the highest in the world, and the weight of industries whose essential underlying IP rights belong to China should increase dramatically as part of the national economy in the coming five years.

Although China has been recorded as the world’s top three nations in terms of patent filings, most of its invention patents - the most important among all patents as they cover true innovations - are owned by foreign companies operating in the country.

Statistics of the State Intellectual Property Office (SIPO) show that in 2007, among the 67,948 invention patents issued by the office, 53 percent were filed by foreign individuals or companies.

In order to reach the goal in creating and managing IP rights, the national strategy vows to revise laws on patent, trademarks and copyrights in a timely fashion.

SIPO officials say that the amended patent law will be submitted to the legislature for approval within this year. Revisions of the law of trademarks and the law of copyrights are ongoing.

According to SIPO head Tian Lipu, the previous patent laws are focused on protection, but new legal amendments will stress how to effectively use patents, how to share benefits from them and how to avoid patent abuses, though concrete articles are still unavailable.

Sun Guorui, an intellectual property law professor at Beijing-based Beihang University, said compared with concrete IPR laws, the national strategy will mobilise various government departments and research organisations to advance IPR governance in the country.

“In a big country like China, the most effective policy is to mobilise hierarchic officials from the top leaders, and the strategy plays this role,” he said.

For example, he explained, when Ministry of Science and Technology (MOST) leaders are making policies for giving awards and promotions to top researchers, the number of patents produced by researchers could become one of the indicators to evaluate their scientific outputs instead of simply the high impact papers.

Sun added that by calling for intensifying of juridical and administrative protection of IP rights, the strategy also hints at an increase of the power of IP enforcement agencies such as SIPO and increase the number of IP sections at various courts. So far, only courts in metropolises like Beijing and Shanghai have specialised IP sections.

This was echoed by a leading researcher at the Chinese Academy of Strategic Research on S&T Development, a think tank of MOST, who refused to be identified.

“Despite various IPR laws, some scientists still think filing patents are irrelevant to them and simply ignore this, but if IP issues become an integral part of science policies, they would pay importance,” said the researcher, who added that if the strategy is effectively implemented, the research policies could become more operable in terms of patent filing and management.

Lewis Ho, China representative of the Shanghai branch of the British law firm Simmons & Simmons, welcomes the strategy as a way to boost IPR law enforcement.

According to Ho, the review of the World Trade Organisation (WTO) for China’s five-year WTO membership performance in 2007 confirmed that China has made progress in its legislative efforts in promoting IPR, but blamed law enforcement for being far from satisfactory.

“Enacting a law cannot ensure effective enforcement, so I think the newly revealed strategy could improve this aspect by pushing the government agencies to take actions,” Ho said.

But he cautioned, “The effect of the strategy will rely on concrete measures by the different Chinese ministries and departments in their follow-up moves.” "

What effects could this have on India? Losing opportunities in the face of a better structured national policy. Apart from having an excellent IP regime for the future, the implementation of such a policy at a national level is bound to create new business and research oriented opportunities for China. The strategy as and when decided would also create a definitive structure in terms of how the policy will function, creating a solid foundation for a long standing protection and enforcement mechanisms.

In India, a problem that has plagued us all is the lack of any sort of structure in the manner the IP regimen functions. The handling of numerous aspects of an Intellectual Property law being even more innumerable Departments and Ministries (Commerce, Science & Technology, Chemincals, Health, and even the HRD Ministry?!) certainly does not seem an attractive option when compared to the proposed Chinese Policy. One of our readers, Mr. Yogesh A. Pai, in a comment to a post by Shamnad had accurately pointed out that the need of the hour is "a more fundamental/original thinking on various issues concerning IP within these ministries to arrive at better strategies." Another astute observation is that "bad policy perspectives may also largely occur due to lack of adequate policy co-ordination." In his reply to this comment, Shamnad had agreed that the what was urgently required was a national IP Policy. Perhaps as he points out in the reply, the embarrassing situation created by the Mashelkar-Saha fiasco at the Substantive Patent Law Treaty meet at Casablanca will be avoided in the future- especially if such a policy clearly outlines the rights conferred on authorities and prevents them from taking any action that may be without "mandate" so to speak.

With China now evolving a national IP Policy all on its own, maybe the Indian officials should sit up and take a leaf out of the Chinese book. There are several areas of policy making that have been neglected and most often, those that require urgent attention. The law in India as regards Intellectual Property is not all judge made or found in the statute books. A large chunk requires constant updation with International policies- with constant quality review and delegation of duties necessarily required at the moment. Perhaps, as Shamand suggested as a reply to Mr. Pai's comment, there can be a public intiative to at least start discussions around the policy.

Maybe this will infact help India maintain its edge, rather than regain it in the long run. Most appropriately, a proverb is handy. A stitch in time, saves nine.