Saturday, June 30, 2012

G.I Registry fixes a hearing on the Tirupati Laddu rectification petition for July 16th

The Registrar of the Geographical Indications has finally scheduled a hearing on the rectification petition over the controversial grant of G.I. status to Tirupati Laddu for July 16. Incidentally, Prashant earlier this month criticized the Registry for failing to fix a date for hearing in the rectification proceedings against the grant of G.I status to ‘Tirupati Laddu’ and ‘Darjeeling Tea’ despite repeated reminders by the respective petitioners for more than a year now. 

By way of a quick recap, Mr. R.S. Praveen Raj, an IP enthusiast and scientist at NIIST filed the rectification petition to revoke the G.I. secured by Tirumala Tirupati Devasthanam (TTD) over the famous Tirupati Laddu in 2009. TTD is a trust administering the Venkateshwara temple situated on Tirumala Hills in Andhra Pradesh and it claims that the prasadam is known for its uniqueness in quality, reputation and other characteristics which go in its preparation. The grant of G.I status remains contentious since the beginning with many accusing TTD of commercializing religious faith. The rectification petition was filed following the order of the Madras High Court on June 8, 2010 dismissing a similar petition before it for availability of alternate efficacious remedy under Section 27 of the Geographical Indications of Goods (Registration and Protection) Act, 1999. 

The petition raises certain issues fundamental to the nature of G.I protection. The petition claims the following contraventions under the G.I Act: 

(a) Violation of Section 11(1) read with Rules 32(5) and 32(6)(a)&(f) as GIs are supposed to be collective community rights of protecting a group of producers. In the present case, TTD is the sole producer and beneficiary of the Laddus. 
(b) Violation of Sections 9(a) and (d) as the registration it is likely deceive consumers [Section 9(a)] and is likely to hurt religious susceptibilities of communities in India [Section 9(d)].
(c) Tirupati Laddu does not fit the description of ‘goods’ defined under Section 2(f) for it being a sacred offering not akin to ‘industrial goods’. 

Further, the petition opposes the grant for violation of Article 25 and 26 of the Constitution for appropriation of religious symbol by private entities. Moreover, the petition states that a monopoly on temple offerings does not serve any industrial purpose and that it defeats the spirit of G.I protection. For a detailed overview of some of the issues, please refer to an article published in the NUJS Law Review in 2010 available here.

Monday, June 25, 2012

Off Topic: Course announcement: NUJS Diploma course on Entrepreneurship Administration and Business Law and How it is useful for Law Students


Course announcement: NUJS Diploma course on Entrepreneurship Administration and Business Law and How it is useful for Law Students

Law schools or colleges in India do not really focus on teaching practical skills – they rather try to inculcate skills of research, writing and analysis – which are essential, but do not give you all the lawyerly skills you need to provide services to a client. Consider the following:

You read contract law in class. But can you draft a contract? How about a franchisee agreement or a simple non-disclosure agreement?

You would study intellectual property law, but can you help someone to get their trademark or copyright registered?

Would you like to learn how to incorporate companies and limited liability partnerships, and how to draft a partnership deed or memoranda of association?

A few things to think about: What difference will it make if you learn all these practical aspects of law? Do you want to learn about the business side of law? Do you wonder how all the law you are learning will be useful eventually when you start practicing?

A one of a kind online diploma course developed to address these issues is now being offered by NUJS. The recommended target group includes entrepreneurs, business managers, working professionals and consultants. The course will also be useful for law students of all sorts, irrespective of their year of study. Law students and young lawyers can benefit immensely from the practical skills that will be taught in the course.

For intellectual property law enthusiasts, the course has a module covering practical aspects such as the procedure for registration of trademarks, copyrights, designs, patents, etc. The course will also cover filing and documentation requirements for transfer of various kinds of intellectual property and intellectual property issues for IT entrepreneurs and freelancers.
Imagine learning how to incorporate a company, register a trademark, draft contracts such as employment agreements and non-disclosure agreements, negotiate investments or getting business licenses for your clients – these are not even taught in the best law schools.
However, make sure before you take the course that it falls in your interest area. Read the syllabus and the course website http://startup.nujs.edu carefully.

Diploma course on Entrepreneurship Administration and Business Law | Full details are here.

Some pointers about the course:

·     If you are unsatisfied with how little practical legal skills are taught in your college, this would be of interest to you.
·        Although the duration of the course is one year, the best thing about the course is that it will be taught over an online learning management system (LMS) – which means you can access it and learn at your own convenient time.
·       Qualification threshold (you need to submit your 12th pass certificate) has been kept low so that entrepreneurs can benefit from it – but that also means all law students can join the course.
·         There is no age limit to join the course since there is no minimum or maximum age for starting a business.
·         The assessment will be on the basis of periodic online tests. There will be a viva voce with NUJS faculty at the end, which can be taken online over Skype if you can’t personally visit NUJS.
·         There is no compulsory physical attendance of any sort, as the intention is to make the course accessible fully over the internet, and allow learning at your own pace.
·        The course has been conceptualized and is being marketed by iPleaders, a venture started by two NUJS alumni who quit their law firm jobs to start this course.

Course Fee
Rs. 20,000/- (payable in two six-monthly installments of Rs. 10,000/- each)

Teaching Methodology
The course will be taught online through a combination of study materials and video lectures, delivered on an online platform.  The faculty will comprise of experienced professionals from law firms, government and litigators. The current list of faculty is given below:
·         Sujit KumarJoint Commissioner of Income Tax
·         Umesh SharmaDistrict & Sessions Judge (former Registrar, Rajasthan High Court)
·       Shannon JhunjhunwalaConsultant, ParasKuhad (advised small &medium businesses at a US law firm Akin, Gump Strauss Hauer & Feld LLP)
·         Rohit DasManaging Partner, Rohit Das & Associates
·         Abhinav AshwinSenior Associate,AZB & Partners
·     Suhas BaligaFounder, Policycraft, former Projects Lawyer with Luthra&Luthra Law Offices, Delhi &Trilegal, Mumbai
·         Ramanuj Mukherjee, Founder, iPleaders, former Associate with Trilegal
·         Abhyudaya Agarwal, Founder, iPleaders, former Associate with Trilegal
·         Ushasi KhanAssociate, Capital Markets, M&A and Non-Profits, AZB & Partners


Is it necessary to be present in Kolkata for attendance or exams?
100% of the course content shall be taught online. Depending on enrolments, optional classroom sessions may be undertaken in certain selected cities. Attendance for these will not be compulsory, and recorded videos of the classroom sessions will be uploaded on the online platform.  There will be a viva voce with NUJS faculty at the end of the course, which may be given online if a candidate is not able to travel to Kolkata.

How can I l for the Diploma in Entrepreneurship Administration and Business Law?
The following documents are required to be submitted for enrolment:
1. Registration form (available here).
2. Two passport size photographs
3. A copy of Class XII mark-sheet
4. Cheque/ demand draft/ details of funds transfer transaction for payment of the course fee (as applicable) (account details for payment are available here).

The above mentioned documents must be sent to the following address:
“The Coordinator,
Diploma in Entrepreneurship Administration and Business Laws,
WB National University of Juridical Sciences
Dr. Ambedkar Bhavan,
12 LB Block,
Sector-III, Salt Lake,
Kolkata-700098”

How do I make the payment for the diploma course?
Payment for the course may be made by demand draft, cheque or funds transfer and sent to NUJS on the address mentioned above. Check course website for further details.
For complete details, check the course website here.

Off Topic: Google Policy Fellowship Program: Call for Applications


The Centre for Internet & Society (CIS) is inviting applications for the Google Policy Fellowship program. Google is providing a USD 7,500 stipend to the India Fellow, who will be selected by August 15, 2012.

The Google Policy Fellowship offers successful candidates an opportunity to develop research and debate on the fellowship focus areas, which include Access to Knowledge, Openness in India, Freedom of Expression, Privacy, and Telecom, for a period of about ten weeks starting from August 2012 upto October 2012. CIS will select the India Fellow. Send in your applications for the position by June 27, 2012.

To apply, please send to google.fellowship@cis-india.org, the following materials:
1. Statement of Purpose: A brief write-up outlining about your interest and qualifications for the program including the relevant academic, professional and extracurricular experiences. As part of the write-up, also explain on what you hope to gain from participation in the programme and what research work concerning free expression online you would like to further through this program. (About 1200 words max).
2. Resume
3. Three references

Fellowship Focus Areas
  • Access to Knowledge: Studies looking at access to knowledge issues in India in light of copyright law, consumers law, parallel imports and the interplay between pervasive technologies and intellectual property rights, targeted at policymakers, Members of Parliament, publishers, photographers, filmmakers, etc.
  • Openness in India: Studies with policy recommendations on open access to scholarly literature, free access to law, open content, open standards, free and open source software, aimed at policymakers, policy researchers, academics and the general public. 
  • Freedom of Expression: Studies on policy, regulatory and legislative issues concerning censorship and freedom of speech and expression online, aimed at bloggers, journalists, authors and the general public.
  • Privacy: Studies on privacy issues like data protection and the right to information, limits to privacy in light of the provisions of the constitution, media norms and privacy, banking and financial privacy, workplace privacy, privacy and wire-tapping, e-governance and privacy, medical privacy, consumer privacy, etc., aimed at policymakers and the public.
  • Telecom: Building awareness and capacity on telecommunication policy in India for researchers and academicians, policymakers and regulators, consumer and civil society organisations, education and library institutions and lay persons through the creation of a dedicated web based resource focusing on knowledge dissemination.
Frequently Asked Questions
  • What is the Google Policy Fellowship program?
    The Google Policy Fellowship program offers students interested in Internet and technology related policy issues with an opportunity to spend their summer working on these issues at the Centre for Internet and Society at Bangalore. Students will work for a period of ten weeks starting from July 2012. The research agenda for the program is based on legal and policy frameworks in the region connected to the ground-level perceptions of the fellowship focus areas mentioned above.
  • I am an International student can I apply and participate in the program? Are there any age restrictions on participating?
    Yes. You must be 18 years of age or older by January 1, 2012 to be eligible to participate in Google Policy Fellowship program in 2012.
  • Are there citizenship requirements for the Fellowship?
    For the time being, we are only accepting students eligible to work in India (e.g. Indian citizens, permanent residents of India, and individuals presently holding an Indian student visa. Google cannot provide guidance or assistance on obtaining the necessary documentation to meet the criteria.
  • Who is eligible to participate as a student in Google Policy Fellowship program?
    In order to participate in the program, you must be a student. Google defines a student as an individual enrolled in or accepted into an accredited institution including (but not necessarily limited to) colleges, universities, masters programs, PhD programs and undergraduate programs. Eligibility is based on enrollment in an accredited university by January 1, 2012.
  • I am an International student can I apply and participate in the program?
    In order to participate in the program, you must be a student (see Google's definition of a student above). You must also be eligible to work in India (see section on citizen requirements for fellowship above). Google cannot provide guidance or assistance on obtaining the necessary documentation to meet this criterion.
  • I have been accepted into an accredited post-secondary school program, but have not yet begun attending. Can I still take part in the program?
    As long as you are enrolled in a college or university program as of January 1, 2012, you are eligible to participate in the program.
  • I graduate in the middle of the program. Can I still participate?
    As long as you are enrolled in a college or university program as of January 1, 2012, you are eligible to participate in the program.
Payments, Forms, and Other Administrative Stuff
How do payments work?*
Google will provide a stipend of USD 7,500 equivalent to each Fellow for the summer.
  • Accepted students in good standing with their host organization will receive a USD 2,500 stipend payable shortly after they begin the Fellowship in August 2012.
  • Students who receive passing mid-term evaluations by their host organization will receive a USD 1,500 stipend shortly after the mid-term evaluation in September 2012.
  • Students who receive passing final evaluations by their host organization and who have submitted their final program evaluations will receive a USD 3,500 stipend shortly after final evaluations in October 2012.
Please note: Payments will be made by electronic bank transfer, and are contingent upon satisfactory evaluations by the host organization, completion of all required enrollment and other forms. Fellows are responsible for payment of any taxes associated with their receipt of the Fellowship stipend.
*While the three step payment structure given here corresponds to the one in the United States, disbursement of the amount may be altered as felt necessary.
What documentation is required from students?
Students should be prepared, upon request, to provide Google or the host organization with transcripts from their accredited institution as proof of enrollment or admission status. Transcripts do not need to be official (photo copy of original will be sufficient).
I would like to use the work I did for my Google Policy Fellowship to obtain course credit from my university. Is this acceptable?
Yes. If you need documentation from Google to provide to your school for course credit, you can contact Google. We will not provide documentation until we have received a final evaluation from your mentoring organization.

Host Organizations
What is Google's relationship with the Centre for Internet and Society?
Google provides the funding and administrative support for individual fellows directly. Google and the Centre for Internet and Society are not partners or affiliates. The Centre for Internet and Society does not represent the views or opinions of Google and cannot bind Google legally.

Important Dates
What is the program timeline?
June 27, 2012
Student Application Deadline. Applications must be received by midnight.
July 18, 2012
Student applicants are notified of the status of their applications.
August 2012
Students begin their fellowship with the host organization (start date to be determined by students and the host organization); Google issues initial student stipends.
September 2012
Mid-term evaluations; Google issues mid-term stipends.
October 2012
Final evaluations; Google issues final stipends.




Friday, June 22, 2012

Dealing with the cost of cancer treatment in India: Are patents the problem?

Image from here
Over the last several months, I’ve spent some time visiting some dear family friends who are undergoing treatment at a cancer hospital. This was the first time that I witnessed the disease and its treatment first-hand. Apart from putting life and the law in a new perspective, my occasional visits to the cancer hospital also served the purpose of researching the costs of cancer treatment in India, the manner in which Indians deal with the cost and the impact of patents on the overall cost of medical treatment. I thought it would be interesting to share some of the information/trends that I could identify/collect during my visits. 

A. Let’s start off with two case studies (What I remember from the conversations): 

(i) Male Patient, 65 years, diagnosed with lung cancer with metastasis to the brain i.e. the cancer had spread to the brain at the time of diagnosis. Just the cost of diagnostics for this patient i.e. CT Scans, PET Scans, MRIs for the brain, FNAC, biopsy and other diagnostics came up to almost Rs. 1,00,000 (Rs. 1. Lakh). Post the diagnosis, the oncologist prescribed the following treatment: 6 cycles of chemotherapy + radiation for about 27-28 days. Each chemotherapy session, consisting of only generic medicines, cost up to Rs. 57,000 (approx.) plus there was the supportive medicine which is necessary for chemotherapy patients who usually suffer from an extremely low count of white blood cells as a result of the chemo drugs. In order to boost the WBC count, the oncologist had prescribed a dose of generic medicine (Peg-Grafeel) manufactured by Dr. Reddy, which was priced at around Rs. 8,800 (approx.) per dose. Therefore, each cycle of chemotherapy along with supporting medicine and diagnostics used to cost approximately Rs. 65,800. Six cycles would cost Rs. 3,94,800. The radiation therapy comes in different ‘packages’ depending on the side-effects. Together, the two cycles of radiation for this particular patient cost approximately Rs. 2,47,000. Therefore the total cost of the first battle with cancer was thus in the neighbourhood of approximately Rs. 6,41,800. 

Image from here.
(ii) Female patient, 60 years diagnosed with breast cancer confined to only one breast, with a previous history of breast cancer in the other breast. This time around the cancer was diagnosed as HER positive, a particular kind of cancer that can be treated quite effectively with Herceptin, a drug manufactured/marketed by Genetech/Roche and which has attained the reputation of a ‘wonder-drug’ in the field of cancer not only for its targeted action against cancer cells but also the lack of side-effects associated with conventional chemotherapy – namely lack of hair loss! Thanks to the invention of Herceptin, doctors predict that in the due course of events, HER+ breast cancer will witness a near cent percent success rate. That was the good news. The bad news is that Herceptin is probably one of the most expensive drugs in the world, costing approximately Rs. 1,10,000 for a vial of 440 mgs. Depending on the weight of the patient, the normal course prescribed is around 17-19 doses spread over a period of one year. Cumulatively that comes to around Rs.18,00,000-Rs.20,00,000 per patient. The first six doses of Herceptin are usually given in tandem with conventional chemotherapy – the TCH treatment – the conventional chemotherapy done with generic medicines is approximately Rs. 22,000. The six cycles of chemotherapy plus the peg-grafeel comes up to Rs. 1,80,000. Plus depending on the hospital that is treating you, there may be the added ‘chemotherapy charges’ which is levied by the hospital at rates ranging between 8% to 12% of the total cost of the pharmacy bill. When being treated with Herceptin, that 12% can add more than Rs. 10,000 to your bill. I think it is an unfair practice but then again who are you going to complain to? Added to the cost of chemotherapy is radiation, which can range between Rs. 150,000 to Rs. 275,000 depending on the package. Cumulatively therefore, the cost of the treatment can cost approximately Rs. 20,00,000 to Rs. 22,00,000. 

B. The Analysis: The reflex reaction of most people to the above figures will involve first cursing cancer, then cursing god & karma, followed by cursing the pharmaceutical companies and lastly the government. The ‘glass-is-half-full’ types are more likely to thank god, the doctors, the pharmaceutical companies etc. for helping them in fighting the disease and who knows, even winning against it. Moving on to some of the interesting trends/analysis that I could identify: 

(i) Patents & Biologics: Unlike the other anti-cancer drugs, such as Tarceva & Nexavar, which have recently been in the news for patent battles, Herceptin, to the best of my knowledge is not yet patented in India. You would think that without a patent and a promise of a huge margin even for a generic version, Indian pharmaceutical companies would be lining up to mass-produce Herceptin. Do you know how many generic versions of Herceptin are available in the market? None! Cipla has promised to come out with a generic version in a few years but what’s been holding back Indian companies for the last two decades. Given that the European patents on Herceptin are set to expire sometime around 2015, it would mean that the technology has been in the market for around 17-18 years. 

Herceptin, like Pegasus an earlier drug that we discussed on this blog, are both biologics, a class of drugs distinct from the conventional chemistry based drugs. Therefore despite Indian companies technically having the opportunity to manufacture both Herceptin and Pegasus (under CL provisions) not a single company has forayed into the field. I’m not sure whether this is happening because of a lack of a transparent regulatory structure for bio-similars or because of a lack of technical expertise in Indian companies. Companies like Dr. Reddy’s do manufacture some biologics like Reditux and peg-grafeel, so clearly, there is some expertise in the field but not enough to manufacture a more complicated drug like Herceptin. 

Image from here.
What makes the matter even more interesting is the fact, that unlike Tarceva and Nexavar [both of which are patented and infringed (by Natco, Cipla) in India] Herceptin is a drug approved by the National Institute of Clinical Excellence (NICE) for purchase by the National Health Service (NHS) in the United Kingdom (U.K.). Any drug approved by NICE is worth its weight in gold and is indicative of the therapeutic potential of the drug vis-à-vis the cost of the drug. The estimated revenues of Roche from worldwide sales of Herceptin are in the neighbourhood of $ 3.4 billion dollars. 

(ii) ‘Per capita’ income: India’s per capita income for the last financial year was reportedly at around Rs. 50,000 per year (subject to certain riders). I’m not sure at how the government calculates the income of the ‘middle class’ but for the sake of this post let’s presume that it is 10 times the per-capita income at around Rs. 500,000. As I discussed above, the treatment of the male patient with lung cancer, even with generic medicines, came up to Rs. 6,41,800. Therefore, forget the poor citizen, even a middle class citizen of this country is unlikely to be able to fund his cancer treatment, even with generic medicines, just out of his pocket. The most certain retort to this argument would be that even developed countries are able to pay for expensive cancer treatment only through private insurance or public funded health programs. 

(iii) Insurance policies: In the last few years there has no doubt been an explosion in the health insurance market. The problem however, as I understand, is the near abysmal knowledge amongst Indians about the cost of modern medical treatment. Sample this – I just did a random survey, amongst people I met, on the insurance coverage that they had taken and the highest insurance coverage that I got was Rs. 4,00,000 and the lowest – Rs. 1,00,000. Even the maximum insurance coverage of Rs. 4,00,000, would not be able to meet the cancer costs of the first patient discussed in the beginning of this post. All the people that I spoke to were actually upper middle class and they had the financial capacity to subscribe for higher insurance premiums but didn’t do so because they simply had no idea of the cost of any potential treatment, not just cancer treatment. Apparently the insurance salesmen themselves had no clue. 

Therefore I’m very curious to know as to why exactly ‘big-pharma’ is under the impression that increasing insurance coverage and rising incomes in India make it a lucrative market for even patented drugs. From what I understand insurance coverage in India, in terms of value, is pathetic. At the very least pharmaceutical companies, be it generic of innovator, should seriously start educating insurance companies on the actual cost of treatment because as things stand now the insurance sector doesn’t seem to have a clue on actual costs. Ultimately it is pharma companies which have the most to benefit from such increased coverage. 

(iv) Differential pricing: One of the problems with new medicines introduced by big-pharma in the Indian market is that they are usually sold at the same cost through the world market. Therefore if the drug is sold at $40,000 dollars in the U.S., that same drug will be sold at the same price in the Indian market despite the huge difference in per-capita incomes in both countries. In the last few years several big-pharma companies have started a differential pricing scheme for the Indian market because it is quite clear that Indians simply cannot afford to pay the same rates as in developed markets. The only price-cuts I’ve heard of in the cancer segment are by Glaxo-Smith-Kline. Apparently the price-cuts were as steep as 70% when compared to the prices in the U.S. One such interesting product is Tykerb. For a year of treatment in India Tykerb costs Rs. 6,00,000. Contrast this to the cost in the U.K. which in 2009 was at 25,000 pounds. As noted by GSK in one of its investor documents, the price reduction of Tykerb in India literally doubled the sales of the product. Roche has promised to slash the cost of Herceptin in the next two years. 

What I found more interesting however was the competition between Herceptin & Tykerb. Like Herceptin, even Tykerb targets the HER mutation in breast cancer patients and although it not reported to be as effective as Herceptin, it does seem to have a decent success rate. Now although Herceptin is known to be more effective than Tykerb, when offered a choice by oncologists breast cancer patients with Stage I cancer (which is painless) will opt for Tykerb simply because of the huge price differential. After all it is Rs. 600,000 v. Rs. 18,00,000 for Herceptin. I’m not even sure whether Tykerb has received clinical approval for Stage I treatment but I’ve heard that it is being offered for even Stage I breast cancer patients. 

As far as I know, GSK has a patent for Tykerb in India and the patent has not yet been infringed by any of the generic companies which have otherwise busted every other patent for cancer drugs. As far as the reported news goes Cipla has only filed a post-grant opposition against the Tykerb patent. So are price-cuts the solution to competition from generic pharmaceuticals? 

(v) Government spending on cancer treatment: So far, most of this discussion has revolved around the middle class. What then happens to the poor? Honestly and I’m ashamed to say this – I just don’t know. I have heard of a story of poor patients being given excellent and more importantly free cancer treatment at one of the leading government hospitals in Chennai. I however have no idea of the remaining government hospitals. I’m guessing a lot of other government hospitals do offer cancer treatment. Apart from these hospitals and charitable organizations, I don’t think poor cancer patients have any other option for treatment in India. Some State Governments do offer insurance coverage even to the poor but it is unlikely that so schemes will suffice for cancer treatment. Unfortunately, the Central Government does not seem to have any strategy to deal with the rising cases of cancer treatment. At least for TB and HIV, the central government has some kind of public funded programs in place such as NACO etc. Cancer unfortunately has simply dropped off the map. Once again, it is the pharmaceutical company which should take the initiative to lobby with the Central Government for creating a public funded program to assist in the treatment of cancer. In terms of profits, these companies are sitting on a virtual goldmine. 

(vi) Price-Control: India’s experiment with price-control for drugs has been largely ineffectual either due to poorly drafted laws or due to poor implementation. Moreover patented drugs are not covered under the present price-control regime. In its 58th Report, the Parliamentary Standing Committee on Health and Family Welfare had this to say on price-control for patented medicines: 

The Committee notes that as of now there is no mechanism in place to regulate the prices of new patented drugs which are imported in the country and sold at supernormal profits, whereas prices of the same medicines are considerably lower in other countries. The Committee does not accept the submission made by the Secretary (Pharmaceuticals) that there is no price control of a patented drug for open market. The Committee would like to observe that India as a sovereign country has every right to decide the prices of a drugs which are sold in the open market. The Committee therefore recommends to evolve an effective mechanism to control prices of imported patented drugs being sold in Indian Market.

It would be interesting to see the government experiment with price-control on patented drugs. In many ways, such price-control measures will automatically resolve the ‘differential pricing’ dilemma being faced by innovator pharmaceutical companies. However given India’s history with price-control, I wouldn’t bet on this option. 

Conclusion: I’m aware that this post may seem to be a bit random but I thought it would be interesting to start a conversation on the more practical aspects of dealing with the cost of treating cancer. In 2010 alone, India lost a total of 556,400 citizens to cancer. A detailed study published in the Lancet, available over here, documents trends and patterns in these deaths. Later studies have estimated that by 2030, cancer cases will rise by 70% in India. Even in its peak years, the deaths from AIDS/HIV at 400,000 citizens were substantially lower than the present number of cancer deaths. In 2009 after years of sustained intervention the HIV/AIDS mortality figure dropped to 172,000. Thanks to the activism surrounding AIDS/HIV, the government at least created the National Aids Control Organization (NACO) to co-ordinate a response to the epidemic. Although the program does face its challenges, it has helped in curtailing the spread of the HIV virus. Unfortunately, there seems to be little in the way of a co-ordinated government strategy to deal with the issue of cancer treatment. There has been some talk of universal health coverage for all Indians but that plan is still only on paper. Regardless of universal health coverage, cancer is a disease very distinct from other diseases and it needs a separate solution. More often than not the healthcare debate gets completely hijacked by the issue pharma patents. It is time we begin to focus on the main issues at hand.

Thursday, June 21, 2012

SpicyIP Tidbit: Madras HC clarifies extent of URL blocking

In an update to the seemingly random mass censoring of video and torrent sites about a month ago, an ISP consortium approached the Madras High Court for a clarification as to the extent of the Ashok Kumar interim injunction. According to MediaNama, who have a copy of the order issued on June 15th, 2012, the Madras HC clarified that only specific URLs containing the allegedly infringing content are to be hit by this injunction and not entire websites. This is certainly a very welcome clarification considering the amount of legal content that became inaccessible as a result of entire websites being blocked.

I haven't seen the order so I won't comment further, but I think it is rather interesting that the ISPs approached the Court for this. Perhaps it was the drop in bandwidth usage (and hence purchase) of customers, or perhaps it was the protests and negative media attention that came on the ISPs. In any case, this is definitely more equitable and sensible than blocking entire websites. I'm told that the blocked sites have started becoming accessible once again. 

Wednesday, June 20, 2012

Stepping Down From SpicyIP

For reasons that are both personal and professional, I will be stepping down from the leadership of SpicyIP, effective today. I will write a longer post about future arrangements soon.

I want to take this opportunity to thank you all for the wonderful support and encouragement through all these years. I've learnt a lot from my interactions with you and I do hope that you will support SpicyIP in its continued fight for transparency and more informed IP policy making in this country. 

Tea Board ‘regrets’ earlier RTI reply; discloses legal expenses on registering and defending its Intellectual Property

Continuing from my earlier post on how the Tea Board & APEDA were making an absolute mockery of the Right to Information Act, 2005, I’m glad to report that the Tea Board has overruled its earlier decision and agreed to disclose its expenses. 

The Appellate Officer for implementation of the RTI Act, 2005 agreed with my argument that legal expenses of the Board could not be considered confidential and ordered the Central Public Information Officer (CPIO) to immediately disclose the information that I had requested in my application. This officer's reply can be accessed over here

In his reply, (which can be accessed over here) the CPIO expressed ‘regret’ for his earlier reply, which he termed as ‘an error in judgement’. The CPIO then proceed to give me the legal expenses incurred by the Board on the ‘Darjeeling Tea’ G.I. but also other marks such as ‘Assam Orthodox’, ‘Nilgiri Orthodox’, ‘Dooars-Terai’ and ‘India-Tea’. The total legal expenses incurred by the Tea Board in securing these registrations and defending the marks, according to the reply was a sum of Rs. 4,33,56,008 only. Although the Tea Board claims that all of this money was spent on KnS Partners, I doubt whether the entire amount was towards the professional fees of KnS. It is likely that a significant portion of this expenditure was made to foreign law firms representing the Tea Board in jurisdictions like the E.U. etc. My initial RTI application had in fact asked for the break-up between the professional fees towards the Indian law firms and the foreign law firms. Given the Tea Board’s reply, I’m guessing that they do not have the break-up themselves. 

I find it interesting and a little troubling that the Tea Board has incurred such a significant expenditure on legal services without so much as floating a tender, as stated in their earlier RTI reply, available over here. And let me clarify that it is not my case that KnS Partners is not competent or is over-charging in the present cases regarding ‘Darjeeling Tea’ etc. My only point is limited to the fact that public authorities like the Tea Board are not giving all law firms a level playing field in bidding for government contracts. 

This is exactly where the Public Procurement Bill, 2012 kicks in to level the playing field for all law firms by forcing all public authorities to follow, as far as possible, a process of open tenders for the procurement of any goods or services. Of course, there is still the possibility of public authorities inserting stringent pre-qualification criteria which blocks out the smaller firms but even such criteria should bear reasonable nexus to the object of the tender. 

Apart from authorities like the Tea Board and APEDA, other government bodies that IP law firms should look out for are organizations like CSIR, DRDO etc. I’m yet to receive a reply from APEDA to my appeal against the initial denial of information regarding the legal expenses on securing and defending T.M. & G.I. rights in ‘basmati’.

Tuesday, June 19, 2012

Courting Legal Talent by Offering Litigation Fellowships

In a rather provocative post around two years ago on LAOT, I bemoaned the fact that a disproportionately large number of National Law University (NLU) graduates opt for "corporate" careers (defined largely as jobs involving a significant dose of corporate transactional lawyering in some form, either in law firms, companies (in house) or even in LPO's). And that very few think laterally outside of this "corporate" career box, despite the fact that a law degree (and one from an alleged "island of excellence") is pliable in so many different and diverse career directions. In fact, it is very difficult even for our top tier IP firms to attract the best NLU talent, given the sheer inability to match the dazzling 6 figure salaries offered to freshers by corporate law firms (an issue we'll keep for later). 

I'm currently co-authoring a paper that touches on this theme; the statistics we've collected so far (over the last 2-3 years) reveal that the number of students opting for the corporate sector are as high as 70-75%. While some of the recruits have a genuine feel for this kind of a job and take to it like a fish takes to water, others succumb to the herd mentality (the prestige that comes with working for a top tier firm, the desire to walk in the footsteps of their esteemed seniors etc). And yet others are financially constrained, necessitating them to take up this kind of a job to pay off hefty bank loans (given that the NLU's now charge a significantly high tuition of Rs 2 lakhs and upwards a year).

In fact, our interviews reveal a whole host of systemic issues at play driving this career choice, not least significant of which is the absolute lack of career counselling at any of the law schools. Further, the recruitment numbers by themselves may be insufficient in coming to conclusions on the latitude of career choices , as there is considerable attrition in and out of the law firms. Many graduates do around 2-4 years in a law firm and then go on to explore a host of other career options such as litigation, academia, research and policy advocacy, government service (after taking the civil services exam), working with international organisations (World Bank, UNICEF etc), NGO's (health/environmental activism etc), legal journalism and the like...in fact, some have been courageous enough to drop their legal sheen and follow their hearts' lateral bidding by whipping up culinary delights in downtown London, kickstarting sports management consultancies or even lighting up the ramp (and now the kitchen) with their elegant frames....

And all of this brings me to what I think to be an excellent initiative designed to solve one of the key systemic issues plaguing us, namely the sheer mismatch between law graduates that desire the thrill of the court and those that end up actually experiencing it (for want of godfathers, money and the like).

The Lawyers’ Welfare Awards
In order to recognize and promote young talent in the field of litigation at the Supreme Court, the Supreme Court Lawyers Welfare Trust (SCLWT) has instituted 2 annuals fellowships, known as the Lawyers Welfare Awards.


Eligibility
 
The SCLWT invites applications from candidates who satisfy the following requirements:
i) Lawyers enrolled with any State Bar Council in India;
ii) Having completed a minimum of 2 years, and a maximum of 6 years practice in the courts of India;
iii) Such practice will not include non-litigation practice with law firms/individuals, judicial clerkships and teaching assignments;  
The candidates must be prepared to commit themselves to a minimum period of 2 years’ practice at the Supreme Court of India;

The Fellowship

Each selected Fellow is entitled to the following:
i) A monthly stipend of Rs.25,000 over a period of 3 years practice in the Supreme Court;
ii) A one-time subscription to SCCOnline® which will be registered in the name of the candidate.

Requirements

Interested applicants may e-mail the following documents in Microsoft Word format to the Trust at scwelfaretrust@gmail.com on or before 15th August 2012
i) A copy of the candidate’s latest CV  
ii) A 1000 word essay on the best case in which the candidate has been involved. Relevant documents relating to the case be annexed.

Process of Selection

A panel of Trustees will shortlist 15 candidates among the Applicants for the final round of interviews.
The final interviews will be held by the Chairperson of the Trust and a few other Trustees in the first week of September 2012. The two selected candidates will be awarded the LWA fellowship, which will be with effect from 1.10.2012 to 30.9.2015.

Kudos to all those involved in setting this up, namely: 
Justice J.S. Verma, Former Chief Justice of India (Chairperson)
Justice Mukul Mudgal, Former Chief Justice, Punjab & Haryana High Court (Trustee)
M.N.Krishnamani, Senior Advocate (Trustee)
V.K.Tankha, Senior Advocate, (Trustee)  
Mamata Kachwaha, Advocate, (Trustee)  
Sadhana Ramachandran, Advocate, (Trustee) 
Gopal Sankaranarayan, Advocate, (Trustee)  
Raghenth Basant , Advocate, (Trustee)

ps: image from here

Monday, June 18, 2012

IPAB pulls up Patent Office for improper decisions

In a recent decision, the Intellectual Property Appellate Board ("IPAB") has criticized the Patent Office for a shoddy decision where the Controller had copy-pasted excerpts from two distinct publications; In one instance even the font, and spacing was the same as used in the original publication.  The original case can be seen here for application number 2254/DELNP/2005.

Quotable Quote: "This is not how an order shall be passed by the Patent Office.  The Controller has the duty to examine the claims and test them for patentability." 

The issues that this case raises are not new.  Prashant, in a previous post had emphasized on sharpening the legal skills of our Controllers. Shamnad, too, in multiple posts has discussed this same issue.  And, my take on this is on similar lines of Shamnad and Prashant.  In one of my previous posts, I had discussed that, "[T]hose cases where the Controller is just agreeing to formal objections raised during the FER by Examiners, should be considered by the Examiners only.  There is no value addition by Controllers spending time on those cases."  

This fact that Controllers write decisions where mere formal objections are adjudged,  highlights two possible problems. One that Controllers are overworked, and second, Examiners too, are overworked!  The reason that Examiners are overworked is because of the pending pipeline of applications.  The reason that Controllers are overworked is because of they have to give decisions for every case where formal objections are there.  

This system may discourage Examiners (Controllers giving decisions for formal objection cases).  Issues that are raised before examiners, and require a mere cursory check to ensure compliance with the FER, should be dealt with the Examiner who issued the FER and not the Controller.  A form or template like the one used in almost every other major patent office (USPTO, EPO, KIPO, CIPO) should also be used.  See one my previous posts on having the usefulness of a template.

Another fallout of this particular way of dealing with formal objections, is that Examiners know that all the work in the particular case has already been done, but the credit of dealing with the case goes to the Controller.  My personal opinion is that whatever may be the reason behind it, the implications on the morale of the Examiners has not been on the table at all.

Sunday, June 17, 2012

The glory of being a copyright lawyer, by the name of Ameet Datta

Mr. Ameet Dutta
Around two weeks ago, on the 30th of May, 2012 I witnessed an incredible sight at the auditorium on the ISKCON premises at Juhu, Mumbai. An auditorium filled with the leading lights of the musical community from Bollywood, led by Javed Akhtar, Gulzar, Vishal Bhaaradwaj, Anandji, Shreya Ghosal, Shan, Prasoon Joshi etc. were on their feet to deliver a thundering, heartfelt ovation for a copyright lawyer who had advised Javed Akhtar through the entire process of lobbying for the revolutionary amendments to India’s copyright law, which were passed unanimously by both houses of Parliament. The lawyer’s name was Ameet Datta. 

Just moments before the ovation, Akhtar in his inimitable style explained to the packed auditorium how he had engaged Ameet to advise him on the lobbying for the amendments and how Ameet had insisted on working pro bono for Akhtar. While praising Ameet’s work on the amendments to the skies, Akhtar informed the audience (‘lost in translation’ disclaimer applies) – “Despite working pro bono, Ameet worked for me like I owned him.” 

The reason I described the thundering ovation as simply incredible was because I’ve never in my life seen a lawyer, especially a copyright lawyer, being a ‘rockstar’ on a stage that was already host to the genius of people like Gulzar and Akhtar. In this country, IP lawyers are usually in the news for the wrong reasons be it pharmaceutical patents or the blocking of websites after ‘John Doe’ orders. Therefore to witness an event where artists, who are the keepers of a nation’s conscience, give a standing ovation to a copyright lawyer is simply quite stunning. 

While any lawyer would have agreed to advise Akthar & Co. pro bono especially in such a high-profile case, I must explain the stakes for Ameet. For most of the last decade, Ameet has been representing IPRS & PPL both of which are controlled by the music companies which have a lot to lose because of the new amendments. That they continued to retain him as a counsel before the Delhi High Court and the Copyright Board, despite knowing of his work with Akthar speaks volumes of his stature in the world of Indian copyright law. It remains to be seen whether the music companies retain him as a counsel post the notification of the amendments but rest assured that financially speaking, Ameet would have been much better off representing only the music companies who have pockets which are way deeper than any music composer in India. The fact that he chose to risk losing out on some extremely lucrative clients in the process, speaks greatly of his dedication to the cause of justice and good music. 
Image from here.

Irrespective of the money and the fame, I’m sure these amendments have earned Ameet enough good karma to last him and his family for several generations. Hopefully, some of it should filter down to the larger community of IP lawyers. (We need the good karma, especially after this website-blocking episode!) 

Before I end, I would like to share the following words which were inscribed on a plaque gifted by singers, lyricists & composers to Ameet Datta. These words say it all.  

(A short video of the event is also accessible over here.)

Awarded to 

Shri Ameet Datta 

On 30/05/2012 

We, the Composers, Authors and Performers shall forever be indebted to you for the invaluable contribution made by you towards securing the much deprived justice and rights denied to us for generations by selflessly spearheading the amendments to the Copyright Act. 

You will go down in the annals of music as a messiah of creators & artistes in India. 

We thank you sincerely. 

MCAI 
Music Composers' Association of India 

SAI 
Singers' Association of India 

FWA 
Film Writers' Association of India

Tuesday, June 12, 2012

New patent prevents textbook sharing (in US)

Anti-piracy device from the good old days
While silly patents are nothing new, now and then, there are certain patents that seem to cross certain lines. A new patent granted by the USPTO to economist Joseph Vogel, professor at University of Puerto Rico-Ria Piedras, will restrict textbook sharing amongst students in the guise of attempting to cut down on piracy.  The patent is designed to prevent unauthorized access to copyrighted academic texts is provided in which trademark licenses, discussion boards, and grade content are integrated into a Web-based system.” 
Vogel's solution to 'textbook piracy' is simple. As described in TF, "As part of a course, students will have to participate in a web-based discussion board, an activity which counts towards their final grade. To gain access to the board students need a special code, which they get by buying the associated textbook. Students who don’t pay can’t participate in the course and therefore get a lower grade." 

According to the filing“The system implements a process by which any enrolled student who has not purchased the textbook will be denied access to a discussion board of an official site (‘Site’) of the system controlled by the patent holder,”
“Thus, a student who does not legally purchase the text will be unable to participate in the discussion board and therefore will forfeit that portion of the grade associated with it. It is likely that most students do not want to forfeit that portion of their grade and therefore will legally purchase the text.”

What happened to the first sale doctrine? For students that buy second hand text books will have to separately buy the code in order to access the protected sections. What about students who share textbooks? What about students who use books from the library? Vogel also complains that other professors are being too lax and leave textbooks in the library for students to copy pages from. But what about fair use? 

I'm not too sure how many universities / professors will encourage such a system, since most people in academia like to encourage students and not place restrictions to learning (especially given the current financial ecosystem), but then again, Vogel is a professor too, so there very well might be more who will go ahead with this. 

Having spent the greater part of the last 3 years looking into (legal) academia, I'm willing to go so far as to say that there are a considerable amount of 'required' course books which are simply unnecessary, unused, or have information which can easily be put together by searching online references. On top of this, its not very common for the regularly appearing 'new' editions of books to have proportional 'new' information as compared to the much cheaper older editions. Removing these, there still are a considerable amount of great textbooks, no doubt, but it seems unethical to force students into each buying a copy of even these books if they don't otherwise need/want to, by resting part of their grade on their ability and/or willingness to buy a textbook.  

For once, I am thankful that, at least in the legal education sector (which is the only one that I have first hand knowledge of), even India's top law schools aren't comfortable with online forums for their students such as those that are common in USA and UK - for it means that even if such patents are granted here, it will pretty much be meaningless. 

P.S. While some professors are filing patents for gaining more control over knowledge, others like Prof Amy Kapcyznski and Gaelle Krikorian are publishing (for free, digitally) great works such as "Access to Knowledge in the Age of Intellectual Property" - a work I'd recommend Prof Vogel reads. 
Hat tip to Danish Sheikh of ALF.