Thursday, February 28, 2013

SpicyIP Event: MIP India IP and Innovation Forum


The MIP India IP and Innovation Forum 2013 will be held on March 7th at Le Meridien, New Delhi.   With several notable speakers and topics which are particularly pertinent to IP matters in India currently, the forum looks to be an exciting one. To see the agenda, please click here. Please see below for a note from MIP on the event. 

‘Technical legal advice, reflections on the Indian patent system and insider guidance on monetizing IP come together at next week’s MIP India Forum’

‘‘Companies need to learn that IP is extremely important and without it survival may be impossible.’’ So says Munish Sudan, Senior Manager of IP & Innovation at Tata Steel. Munish, who will be speaking at next week’s MIP India IP and Innovation Forum, will be telling delegates that many corporations in India are not aware of how IP can be a significant asset and a valuable driver of profits. In a pre conference interview for MIP he said ‘There is a lot of interest in India’s growing economy so we need to be fully aware of the other players in order to compete’. Next week Munish will be speaking alongside several of those other key players, each of them revealing their expertise and sharing their experiences. One question which will be tackled is: ‘What does open innovation mean to you?’  Heads of IP from various industries will tackle this question head on and reveal that ‘Open Innovation’ cannot be used as an umbrella term but must be tailored and made to work for your company’s aims and strategy. Thus the vital matter of IP Monetization in India will show itself to be a nuanced issue requiring careful thought and strategic planning made in the specific context of your corporation’s aims and requirements. Heads of IP from corporations such as Emerson, Philips Electronics, Havells India Ltd, Samsung, Infosys, Microsoft and Cognizant will all be contributing their unique perspectives to the discussions.

Of course all of these ambitions are well and good- but if India’s IP system is to keep pace with its economic progress and appetite then processes and infrastructures must be ever improved also. Justice Prabha Sridevan will be delivering a keynote address entitled The life of P.I. (Public Interest) laying the ground for various conversations regarding India’s progress in terms of its patent cases, compulsory licensing and the role of India’s tribunals both within and across its borders. She can of course also be expected to provide a lively and interesting start to the day.

The India IP & Innovation Forum will be held at Le Meridien in New Delhi on March 7th. It is free to in-house counsel, R&D professionals and to academics. To register please click here

Monday, February 25, 2013

National Innovation Foundation: Boosting Frugal Technology


Source
In the recent past, there has been a spurt in grassroots innovation utilising the traditional knowledge bank. Grassroots innovation is ideation and development with only frugal resources at the innovator’s disposal. India has a distinctive expertise in developing and marketing frugal innovations to the world. An outstanding example of frugal innovation would be Dr. Devi Shetty who made cardiac surgeries extremely affordable by applying mass production techniques without compromising on the standard of healthcare. A more endearing term used by us Indians is jugaad innovation.

Most recently, BBC documented the success story of a farmer in rural Haryana who on an average used to lose 30-40% of his produce owing to its perishable nature. To counter this problem he developed a machine to process the produce in his backyard and market it immediately – a cost-effective local solution using frugal resources to solve a local problem. With the help of National Innovation Foundation (NIF) the farmer patented his innovation and now markets it in Africa and Latin America. Such innovations may occur at a farm, in a manufacturing unit, or any such environment with a scope to creatively alter a product or service to increase its efficacy i.e creation of value added technologies. NIF operates across a diverse set- from the farmer to young inventors innovating gadgets for women’s safety. To accelerate such innovations, the Foundation runs a Grassroots to Global program. Facilitating the use of our indigenous knowledge bank i.e. identifying, nurturing, sustaining and scaling up such innovations are NIF’s driving principles. More specifically, it helps innovators get due rewards, in the diffusion of existing technologies through various channels, and providing innovators with risk capital for incubation (Micro Venture Innovation Fund at NIF has provided risk capital for 178 projects). NIF was launched in 2000 with the aim to develop, nurture, and protect emerging innovations at the grassroots level in India. It has assisted in filing more than 555 patents, out of which 39 have been granted in India and four in the USA, which is a commendable figure. Prof. Anil Gupta of IIM-A, a prolific figure in the grassroots innovation field heads the Foundation.

Sunday, February 24, 2013

SpicyIP Weekly Review (February Week 4)

SpicyIP Posts 

 Image from here.
SpicyIP saw a truly ‘global’ week with posts covering deeply Indian issues like Ayurveda and modern drugs, trademarks on Indian Gods, poorly written decisions of the Indian Patent Office to international issues like the Trans Pacific Partnership Agreement and alleged DCMA violations.

The week started off with an informative and comprehensive guest post by Priyanka Pulla on problems that arise in developing modern drugs from Ayurveda (here). The fact that only few modern medicines have emerged from Ayurveda, spurred her into investigating the matter in detail. Her article in Open Magazine (here) as well as the post cites three main reasons for the same. In addition to these reasons, she opines that the USFDA’s long time requirement of herbal drugs undergoing the same tests as synthetic drugs has placed the odds against development of traditional medicines. She then goes on to highlight how and why Indian herbal-drug development has been slow, small and repetitive with not much coming out of research. Thereafter, the post emphasizes on the need to look at Ayurveda as an entire system of medicine that entails lifestyle changes and non-drug interventions. After this, Priyanka discusses a debatable point on whether herbal drugs should be subject to clinical trials despite them having hundreds of years of safety data. She concludes by raising another pertinent problem of lack of communication between Ayurvedic doctors and how they are slowly starting to communicate and form a network which is a step forward for herbal drug development. 

After this wonderfully researched and written post, Mathews brought to the notice of our readers (here) another extremely interesting issue. His post dealt with the legality of trademark protection for deities in the context of a trademark granted to Attukal Bhagawathy Temple Trust for a picture of its deity and for the title ‘Sabarimala of the Women’. The trademark was granted to the Trust in this case which leads Mathews to raise two pertinent issues challenging the validity of such a trademark. The first is in relation to the Trademark Act, 1999 and second in relation to Article 25 of the Constitution of India. With regard to the first challenge, he convincingly argues that the scheme of the Trademark Act does not contemplate such a trademark. Under Section 2(zb) of the Act, the mark should indicate a connection in the course of trade between the services and the proprietor. Through this argument Mathews establishes that a Trust is not the exclusive proprietor of temple and other religious services as devotees have as much stake in the said activities as the Trust. His second argument is with regard to Freedom of Religion guaranteed under Article 25 of the Constitution. He points out that if the Trust is given the said trademark, it would violate Article 25 as devotees would be precluded from using the picture and title thereby interfering with their fundamental right to profess, practice and propagate their religion. 

Image from here
After this ‘divine intervention’, we saw another absorbing post by Prashant (here) highlighting the consistency with which the Indian Patent Office comes out with poorly written and reasoned judgments. He examines the decision of the Controller in the Sugen v Cipla’s post-grant opposition and points out several junctures at which the Controller has failed to provide necessary authority and has almost as if sworn not to use precedents set by the IPAB to back its conclusions. With regard to Section 8 and non-disclosure of foreign patent-fillings, one of the main grounds of opposition, the Controller merely stated that the patentee has complied with Section 8 requirements as the WIPO website contains all the information and is freely accessible to the Controller. However, this reasoning is not backed by any precedent and is in patent violation of existing precedents which have mandated filling of documents by the patentee regardless of whether the controller or examiner has independent access to such documents (the Tata Chemicals case). Further, on its analysis of obviousness and lack of inventive step, the Controller stretches far and wide by citing European and American judgments and not a single Indian case law despite the standards of obviousness being different in different jurisdictions. With regard to inventive step, the decision disregards the importance of ‘economic significance’ in the definition without backing its reasoning with appropriate judicial authority. Thus, Prashant concludes by expressing his disdain not with this particular Controller but with the IPO in general due to the poor quality of decisions rendered by them. 

By mid-week SpicyIP brought to its readers interesting international developments, with Madhulika examining certain provisions of the Trans Pacific Partnership Agreement (here). The post highlights certain important provisions of this agreement such as – Article 1 which mandates each party to, at minimum, give effect to the chapter; Article 8.2 which requires inventions pertaining to plants, animals, therapeutic, diagnostics and surgical methods of treatment to be patent eligible; Article 8.1 which requires new forms, uses, or methods of using a known product to be patentable even if the invention does not result in enhancement of known efficacy. She speculates that such a provision was incorporated keeping in mind India’s controversial Section 3(d). The post then examines Article 8.10, TRIPS plus provisions included in the US IP Chapter of the TPP, Article 13.1 which deals with injunctions and Article 10 which deals with access to medicine. Madhulika points out that though India is not part of the negotiations, this TPP may well affect India’s interests as it may be coerced into becoming a member if TPP nations start imposing membership as a precondition to bilateral trade agreements. 

After this insightful post, the week ended with Anubha’s tidbit (here) on Dr. Anil Potti’s posts being restored on Retraction Watch. Retraction Watch a website dedicated to publishing academic paper retractions had received a DCMA takedown notice for apparently 10 copied posts. Dr. Potti contacted Retraction Watch and expressed his helplessness and innocence in the alleged copyright violations. Though his posts have been successfully restored, these incidents show the ease with which DCMA procedures can be abused.

International Developments
Image from here

Bowman v Monsanto in the US Supreme Court – how far can patents reach? The US Supreme Court is hearing an interesting case pertaining to a soybean farmer, Bowman, and Monsanto who owns a patent over a particular variety of soybean seeds. As with all living things, seeds grow into plants which in turn produce new seeds. Can Monsanto’s patent extend to these newly and naturally produced seeds? Can it make farmers sign a contract promising that they will not replant any of the soybeans that they harvest? Monsanto clearly thinks so as it wants farmers to buy a fresh batch of seeds every time they plant a crop – and not grow their own. Is planting a seed equal to copying and to what extent can the doctrine of ‘patent exhaustion’ be pushed? 

Boundless challenges book publishers – in another step towards free and accessible content, Boundless a start up that recreates expensive college textbooks using free content from Creative Commons and Open Educational Resources(OER) has fought back against a copyright infringement suit brought against it by three major publishers – Macmillan, Pearson and Cengage. Boundless denies copyright infringement and argues that all the content of its textbooks is in the public domain hence not protected by copyright. They allege that this suit is a tactic employed by publishers to stifle initiatives like theirs. The result of the trial will be huge for OER. 

Twitter’s new Innovator’s Patent Agreement (IPA) seeks to transform typical assignment agreements between engineers and the company. Employees generally sign agreements whereby they agree to sell, assign and transfer all rights, interests and titles in their inventions to the company. This gives the company full control over all patents. Companies use patents as tools to offensively restrict market activity and also as a monetization strategy. All these decisions are out of the control of the original inventors due to the contract signed by them. However, Twitter has claimed that through the IPA though the inventor still assigns his rights to the company, the company also makes some promises in return. These promises include – a promise not to sue anyone unless for a defensive purpose, patents cannot be used offensively without the prior permission of the inventor, patents can only be used as the original inventor intended and inventors are empowered to enforce promises made by the company. This they claim will ensure that patents will be used only as a shield and not as a weapon. 

Ashby Donald and othrs. v. France – Copyright v Freedom of speech and expression – Ashby Donald and the other applicants in the present case were fashion photographers. They took pictures at fashion shows in Paris in 2003 and published the same on a website Viewfinder. They were sued for copyright infringement by fashion houses for publication without prior permission. The Court of Appeal of Paris ordered them to pay fines and awarded damages to the fashion houses. The Supreme Court dismissed the applicants arguments based on Article 10 of the European Convention (freedom of speech and expression) and was of the opinion that the Court of Appeals had justified its reasoning sufficiently. So, the applicants could not rely on the exceptions carved out in French Copyright Law regarding publication of works exclusively for news reporting and information purposes. In the European Court, the challenge with regard to violation of Article 10 of the European Convention was held maintainable. However, on merits the Court found no violation of Article 10. It is interesting to note that conviction for breach of copyright could be considered an interference with Article 10 unless it satisfies the three conditions of – ‘necessary in a democratic society, being prescribed by law and pursuing a legitimate aim’. 

Germany facing YouTube problems – according to OpenDataCity more than 60% of the top 1,000 YouTube videos are unavailable in Germany because Google finds it legally and financially risky to allow the same as it assumes music rights might be owned by GEMA (Germany’s primary performing rights organization).The disputes between GEMA and Google are ongoing and pertains mainly to rights represented by GEMA and to the royalty fee structure demanded by GEMA. Talks between both the parties have ‘broken off’ and GEMA has taken the dispute to the Arbitration Board of the German Patent and Trademark Office.

Saturday, February 23, 2013

SpicyIP Tidbit: Retraction Watch posts restored


As hoped, Retraction Watch posts regarding Dr. Anil Potti have been restored. Retraction Watch is a website solely dedicated to publishing academic paper retractions in the scientific-medical research community. Dr. Anil Potti had nineteen retractions which were duly reported by Retraction Watch. We covered the incident about an Indian plagiarizing website [Newsbulet.in] reporting against Retraction Watch for copyright violations here. Retraction Watch received a DMCA takedown notice on account of apparently ten ‘copied’ posts. The issue evoked strong responses from free speech activists and the scientific fraternity alike.

While Retraction Watch sent a reply to the DMCA notices and awaited restoration of their original works, another website Nanopolitan has received takedown notices for posts on Dr. Anil Potti. Now, Nanopolitan has replied to the notice and is waiting for restoration of that post [Nanopolitan claims that the post only had links to blogs about Potti]. 

Further, earlier this week Dr. Anil Potti contacted Retraction Watch and expressed innocence regarding his suspected involvement in these malicious copyright violation claims. He also informed Retraction Watch about the termination of his association with an 'online reputation management agency’ a year ago, which was initiated in the first place by a “well-wisher”. He said that the person behind the DMCA takedown notices may be :
“ someone who has an agenda and just wants to keep my name in the limelight, or some “well wisher” who thinks he/she is helping me by doing this…”

While the "well-wisher" acting in support of Dr. Potti is untraceable, such incidents highlight the ease by which the DMCA procedure can be abused, which are increasingly on the rise.

Wednesday, February 20, 2013

Revisiting the Trans Pacific partnership agreement


Last week’s State of the Union address highlighted important aspects of President Obama’s second term agenda. President Obama identified Trans Pacific Partnership(TPP) agreement as a top trade priority and reaffirmed his commitment to conclude negotiations on the Trans Pacific Partnership agreement. To quote, “To boost American exports, support American jobs, and level the playing field in the growing markets of Asia, we intend to complete negotiations on a Trans-Pacific Partnership.”

Image from here

In an earlier article Swaraj had elucidated five major areas of concern in the TPP. The Trans Pacific partnership agreement started out as a four nation agreement between Brunei, Chile, New Zealand, and Singapore and gradually expanded to include Australia, Peru, Vietnam, United States,  Malaysia, Mexico and Canada. Japan was expected to join TPP negotiations, however as reported here, Japan may consider dropping support for TPP.If the ongoing negotiations between the member nations are successful, then the TPP would encompass USD 21 trillion in economic activity.



Some intellectual property provisions as detailed in leaked draft US IP chapter of TPP agreement can be found here and here. Readers may remember that Swaraj had posted a detailed analysis of the various provisions of TPP, which can be accessed here and here. I have only analyzed the provisions which were not discussed earlier.

Article 1 of TPP requires that “Each Party shall, at a minimum, give effect to this Chapter.”

Article 8.2 of TPP requires that patents for inventions pertaining to plants and animals should be made patent eligible. The TPP agreement also requires that therapeutic, diagnostic and surgical methods for treatment of humans and animals should be eligible for patent protection.

In addition TPP article 8.1 requires that new forms, uses, or methods of using a known product; may satisfy the criteria for patentability, even if such invention does not result in the enhancement of the known efficacy of that product. I believe this provision was incorporated keeping in mind India’s controversial Section 3(d).

It should be noted that Article 8.10 of TPP states that “disclosure of a claimed invention shall be considered to be sufficiently clear and complete if it provides information that allows the invention to be made and used by a person skilled in the art, without undue experimentation, as of the filing date.” However this provision does not expressly mandate disclosure of best mode, thus leaving open the possibility that an inventor may withhold the best mode for himself and subsequently patent the best mode as a distinct invention altogether.

Other TRIPS plus provisions included in the text of US IP chapter of TPP include:

  • Patent linkage provisions, thus allowing presumption of validity of patent (article 9.5) 
  • Elimination pre-grant opposition of patents (article 8.7) 
  • Patent term extensions and /or adjustments: Extension of patent terms beyond 20 years to compensate for delays in regulatory approval and/or delays on the part of patent office [Articles 8.6(b) and article 8.6(c)] 
  • Data exclusivity provisions: Five-year data exclusivity for a new chemical entity (never registered before) and three years data exclusivity provisions for new indications of pharmaceutical drugs whenever new clinical trial data is submitted [Articles 9.2(b) and 9.2(c)] 

Furthermore, Article 13.1 expressly mandates expedited grant of preliminary injunctions and specifies a time period of ten days to execute such requests barring exceptional cases.

Although Article 10 of TPP agreement states that, “In recognition of the commitment to access to medicines that are supplied in accordance DOHA declaration this Chapter does not and should not prevent the effective utilization of the TRIPS/health” , the TRIPS plus provisions and directive text of TPP and might hinder effective implementation of DOHA declaration.

Why should we bother? It is highly likely that TPP will affect other countries apart from those currently involved in negotiations. Countries that are not parties may be coerced into becoming members by imposing TPP agreement as a precondition for other bilateral trade agreements .Alternatively countries that are not members may be evaluated against TPP standards in the annual Special 301 process administered by the USTR.

The next round of negotiations i.e. the sixteenth round is scheduled to be held In Singapore from March 4th -13th and will play a major role in determining the pace and direction for future negotiations.


Tuesday, February 19, 2013

The Sugen v. Cipla post-grant opposition: The lost art of legal writing in the Patent Office

As Madhulika earlier blogged, the Patent Office after a circus of appeals filed by Sugen, once again revoked Sugen’s patent no. 2092951 on the grounds that it would be obvious, to a person skilled in the art, in light of the prior art produced by the opponent. Be that as it may, I would like to comment on the manner in which the opinion was written by the Controller and the deference or lack thereof to the precedents of higher judicial forums like the IPAB or the High Courts. The decision itself can be accessed over here.

(i) Section 8 – Non-disclosure of foreign patent filings: One of the main grounds of opposition raised by Cipla was the violation the requirements of Section 8 by Sugen since the latter had not filed all the corresponding foreign patent documents with the Indian Patent Office. Cipla produced a long list of documents which had not been submitted to the Patent Office under Section 8 of the Patent Act and the Patentee argued against this proposition by relying on an interpretation of various precedents of the IPAB and the High Courts. 

The Controller ultimately disposes this issue in favour of the patentee in merely 5 lines which I reproduce as follows “I opine that the objection of the opponent that patentee have not complied with the requirement of Section 8 is not agreeable. I observe that the patentee has fulfilled its duty to furnish all the information’s required u/s 8. The details cited by the opponent are from the WIPO website and espacenet which is freely available to the controller and examiner. Therefore the ground of section 8 is not maintainable.” 

The first problem with this conclusion is that the Controller does not cite any authority or precedent to back up his/her conclusion. The only difference between creative writing and legal writing is that the latter requires to be backed by authority not personal opinions or imagination. When both sides have discussed precedents on Section 8, the Controller has no choice but to provide reasons on why those precedents are either relevant or not. In this case, there were several relevant precedents like the Chemtura decision, the Tata Chemicals decision. Yet, the Controller simply ignores all precedents. 

The second problem with this conclusion is the fact that the Controller came to the wrong conclusion with regard to Section 8. The IPAB decision in the Tata Chemicals case was quite clear on the fact that whether or not the examiner had independent access to the document was irrelevant since the test under Section 8 was whether or not the patentee had filed the document with the patent office. The Controller has no option but to follow the precedents of the IPAB, which is a superior judicial forum. 

(ii) American, European or Indian law? 

In the final analysis, on obviousness and lack of inventive step, the Controller cites three authorities: (i) A European judgment (ii) an American judgment and a (iii) P. Narayana on Patent Law. Once again, why is there no reference to the recent precedents of the IPAB? The Indian Patent Office is not bound by European or American case law but it is bound by the decisions of the IPAB. At the most European and American case-law can only have persuasive value on the Indian Patent Office. More importantly, should the Patent Office actually be citing American and European case law indiscriminately, when the concepts of obviousness are different in both jurisdictions? 

Also please note that the Controller does not cite a single precedent of either the IPAB or any other Indian forum. How can this be? After 6 years of hearing patent cases, the IPAB surely has provided the patent office with at least a few good precedents on the point. 

Why does the Controller have this ‘devil-may-care’ attitude about the precedents laid down by the IPAB? 

(iii) Inventive step and the apparent irrelevance of ‘commercial success’: In a decision, where the Controller revoked a patent for the lack of an inventive step, one would actually expected the Controller to make reference to the definition of ‘inventive step’ in Section 2(1)(j) of the Patents Act, 1970. I take the liberty of reproducing the provision as following “"inventive step" means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art”. 

Please note the use of the phrase “economic significance” as a standalone ground to establish the inventive step in an invention. Yet, the Controller, without even referring to the wording of Section 2(1)(j) comes to the conclusion that “I observe that when as the instant claims are clearly obvious to a skilled artisan, so, the commercial success of the instant product (Sunitinib) as submitted by the patentee cannot be considered as an evidence of a patentable invention.” The Controller does cite Narayan on Patent Law to establish this point but an excerpt from Narayan is of no relevance unless it is backed by judicial precedent. 

Conclusion: Controllers need basic training in legal writing 

This is not the first time that we have pointed out to the extremely poor quality of decisions coming from the Patent Office. Shamnad and Rajiv have made similar points on this blog over here. The problem thus is not with this particular Controller but the entire IPO. These officers, performing quasi-judicial need specific workshops or classes in legal writing. As I had mentioned in one of my earlier posts, “Legal writing and reasoning are not the toughest of skills to acquire but they are still skills that are required to be taught and learnt.” The Controller General should seriously think of organizing some kind of training for his officers with either a University or a Judicial Academy to ensure we have orders that are better reasoned.

Legality of trademark protection for deities in the context of Attukal deity trademark




We reported that the Attukal Bhagawathy Temple Trust (“Trust”) in Kerala had secured trademark protection for the picture of its deity (Trademark No. 1420800) and the title ‘Sabarimala of Women’ (Trademark No. 1420799) under Class 42 – a residuary clause (for temple Services, social services, welfare services and cultural activities). The Division Bench of the Kerala High Court initiated suo moto case against the aforesaid registrations in early 2009 based on a petition faxed by Mr. Praveen Raj. The matter is still pending before the High Court.[For 'The Hindu' report, see here.] 

In this post, I shall address the issue of legality of such trademarks. As a positivist, I shall resist myself venturing into the unchartered territory of morality. I shall argue that the grant of such trademarks a) are not envisaged by the Trademarks Act, 1999 and b) violate Article 25 of the Constitution of India.

At the outset, I agree that trademarks have been granted to companies for marks involving Gods and Goddesses. The instant case, however, is different. In the instant case, trademark protection is granted to a religious trust for services which are carried out pursuant to religious beliefs or carried out in the name of the Goddess.

Before addressing the issue at length, I shall briefly introduce the Attukal Bhagawathy Temple. The Attukal Bhagavathy Temple in Thiruvananthapuram, one of the ancient temples of South India, is popularly described as the ‘Sabarimala of the Women’. According to the official website of the Trust, the Goddess in the temple of Attukal is worshipped as the supreme mother, creator of all living beings, the mighty preserver and the destroyer. The temple is renowned for the annual Attukal Pongala festival. The festival is scheduled to be held on 26th February this year.

Violate Trademarks Act, 1999 (“TM Act”)

TM Act is “an Act to amend and consolidate the law relating to trade marks, to provide for registration and better protection of trade marks for goods and services and for the prevention of the use of fraudulent marks.” A trademark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others. Further, it indicates the connection in the course of trade between the goods or services and some person having the right as proprietor/permitted user, as the case may be (Section 2(zb) of TM Act). A service means service of any description which is made available to potential users. The registration gives the registered proprietor of the trademark the exclusive right to the use of the trademark in relation to the goods or services in respect of which the trademark is registered (Section 28(1) of TM Act).

As stated earlier, the Trust obtained trademark registration for the picture of the deity and the title ‘Sabarimala of Women’. According to Section 2(zb) of the TM Act, the mark should indicate connection in the course of trade between the services and the proprietor. The expression “proprietor” is not defined under the TM Act. As per the canons of interpretation, it is permissible to peruse the dictionary meaning of the term in the absence of any definition thereof in the relevant statutes. A “proprietor” is one who owns something or one who has the exclusive right or title to something. As stated earlier, the Trust obtained registration for temple services, social services, welfare services and cultural activities. Is considering a Trust as the proprietor of temple services, social services, welfare services and cultural activities a legally feasible proposition? In other words, can a Trust be considered as one which has exclusive right or title over the said services? Legally speaking, it cannot be. The Supreme Court in Ratilal Panachand Gandhi v. State of Bombay (AIR 1954 SC 388) held that “religious practices or performances of acts in pursuance of religious belief are as much a part of religion as faith or belief in particular doctrines.” A Trust cannot claim exclusive title over temple services, social services, welfare services and cultural activities carried out pursuant to the religious faith. The devotees have as much stake as the Trust has in the said services. Therefore, the Trust is not a proprietor of the said services and therefore, cannot claim exclusive right over the picture of the deity and the title for the said services.

Moreover, the Division Bench of the Delhi High Court, in Bhole Baba Milk Food Industries Ltd. v. Parul Food Specialities (P) Ltd, agreed with the Single Bench judgment that the name of a deity, which is in the public domain, cannot be monopolized. [We blogged on the judgments here and here.] Following the rationale, the picture of the deity and the title 'Sabarimala of Women' cannot be granted trademark protection especially when the Goddess is worshipped as the supreme mother and creator of all living beings!! The picture of the deity and the related title are very much in public domain. I shall make my argument clearer with an example. There are various denominations within Christianity – Catholics, Protestants, Orthodox etc. It defies trademark law principles if say, Catholic Church claims exclusive right over the picture of Jesus Christ for church services, social services, welfare services and cultural activities. The followers of Catholic Church have as much stake as the Catholic Church has. So do other Churches and their followers. So do the non-Christians as Jesus was sent to redeem the entire humanity!! Undoubtedly, Jesus Christ falls in the public domain and therefore, his picture cannot be granted trademark protection. Same is the case with trademark registrations obtained by the Trust. Further, it can be argued that the grant of such trademarks hurts the religious susceptibilities of a class or section of the citizens of India (which is one of the absolute grounds for refusal of registration under Section 9 of TM Act) as it involves objectifying religious symbols and titles. 

Violate Constitution of India

Article 25 of the Constitution grants “freedom of conscience and free profession, practice and propagation of religion”. As stated earlier, religious practices or performances of acts in pursuance of religious belief is as much a part of religion as faith or belief in particular doctrines. When registered, the State bestows the registered proprietor of the trademark with the exclusive right to the use of the trademark in relation to the goods or services in respect of which the trademark is registered.

Perceived in the extant context, a disciple of Attukal Devi enjoys the same right as that of the Trust for initiating inter alia social services, welfare services and cultural activities carrying the deity’s name, picture and the related title. In the light of grant of trademark protection, the Trust enjoys the exclusive right to use the deity’s picture and the title for the aforesaid activities. In other words, the devotees can be precluded from using the picture of the deity and the related title in the said services initiated by them. This vitiates Article 25 of the Constitution and is, therefore, unconstitutional.


Monday, February 18, 2013

Guest Post: The complex problem of developing modern drugs from Ayurveda

Today, we have for our readers, a guest post by Priyanka Pulla, a freelance journalist, on the difficulties in developing modern drugs from Ayurveda. A couple of weeks ago, Priyanka had written this excellent piece, titled “Ayurveda: Hoax or Science?” which featured as the cover story on Open magazine. After reading the story, I invited Priyanka to write us a guest post on the Ayurvedic drug industry and she has indulged us with the following post on the issues faced in developing modern drugs from Ayurveda.

THE COMPLEX PROBLEM OF DEVELOPING MODERN DRUGS FROM AYURVEDA 

By, Priyanka Pulla 

In My Feb 2013 article in Open Magazine (read the complete story here), I researched why so few modern drugs had emerged from Ayurveda. For the many claims and research into Ayurvedic medicines that we come across, only a handful of modern drugs such as Reserpine have emerged from Ayurvedic leads. Reserpine, though, is a single molecule isolated from an Ayurvedic herb called Sarpagandha. Herbs in their natural form, such as Sarpagandha, Ashwagandha and Brahmi extracts, have no acceptance in modern medicine at all. They cannot be prescribed by modern-medicine practitioners as a cure for any disease, and can only be sold as dietary supplements. This means modern medicine does not accept the claims of Ayurveda. Why is this so? My article cited three reasons: 

Image from here
It is very tough to develop modern drugs from herbs. Herbs are complex mixtures of compounds and most modern drugs are single, pure compounds. Secondly, the quality of herbs varies from place to place and season to season. Finding the herb with the right potency is itself a major challenge. Then, one has to find the molecule in the herb that is causing the desired effect (in Sarpagandha, it was Reserpine). This is also a big challenge. 

The odds have been stacked against traditional medicine because modern medicine took time to wrap its head around the mechanism of action of herbs. For a long time, the USFDA (United States Food and Drug Administration) required herbal drugs to undergo the same tests that synthetic drugs undergo to enter the markets. This means the active ingredient had to be identified for a herbal medicine to become a modern drug. This is difficult because many Ayurvedic drugs contain multiple active ingredients, and which one really works is often not established for years. Also, herbal mixtures vary from batch to batch during production---this presents a problem. How do you ensure that each patient receives a drug of the same potency and efficacy? Today, the USFDA has created new guidelines for herbal medicines. They need to provide lesser safety data, given their long history of safe use, and they need not establish the active ingredient. All this helps herbal drugs immensely. 

In my story, I used the USFDA as a proxy for the modern medical stance. This is arguable, because countries such as Canada take a more lenient view of herbs, and yet, the FDA’s stance is fairly widespread. A number of Indian scientists I spoke to, such as Ram Vishwakarma of IIIM, talk of FDA requirements as a good standard to follow. They think Ayurvedic drugs should make an attempt to adhere to them. India, in comparison, has been too lenient towards the herbal-drug sector, not requiring any clinical trials for it. So, I couldn’t obviously use the Indian regulatory stance as a proxy for scientific acceptance. 

India itself hasn’t done much to encourage herbal-drug development. Firstly, there are very few regulations for this sector, and Ayurvedic drugs don’t need to provide much scientific validation. Secondly, given the high failure rate in drug development, bodies such as India’s Department of Ayush ought to have encouraged extremely large-scale clinical trials and testing, as China has. 

Instead, our herbal-drug development initiatives have been small and beset with duplication. Too many institutions are repeating the same work—the Department of Science and Technology, the Department of Biotechnology and so forth. This is partly why there are so many studies out there on Ayurveda, but put together---these don’t add up as conclusive proof of efficacy of the drug. The way to develop a drug is to pick up a single herb that shows activity and take it through the entire 10-15-year cycle of drug development. Instead people are doing disconnected research, which is widespread, but doesn’t help in validating Ayurvedic medicine. 

Image from here
According to Chittaranjan Andrade, who heads the department of psychopharmacology at Bangalore’s National Institute of Mental Health and Neurosciences, the only thing that matters at the end of the day is clinical trials. He says many herbal drugs seem to be very active in animal studies, but fail in humans. Andrade, who himself has carried out clinical trials on herbs with claimed central nervous system (CNS )effects, such as Ashwagandha, Brahmi and Shankhapushpi (which are prescribed for indications such as anxiety and poor memory), says no definitive clinical trial exists for any of these herbs. 

Plus, some of the research out there is very unscientific. I had contacted the CCRAS, which is India’s apex body to promote Ayurveda, asking if the many trials published on their website, claiming miracle cures, were indeed placebo-controlled trials. Nobody responded. Later, many scientists told me off the record that those trials were of very poor quality. If this is the state of India’s apex Ayurveda-promoting body, how can we hope for better from the private sector? 

CAN NON-DRUG INTERVENTIONS BE TESTED THROUGH PLACEBO-CONTROLLED CLINICAL TRIALS? 

Having said all this---there were a few other points beyond the scope of the Open story that I’d like to bring up in this blog post. The Open story mainly discusses the subject of drugs, but Ayurveda is an entire system of medicine that entails lifestyle changes and non-drug interventions such as Panchakarma---a set of practices including purgation, massages, sweating, enemas etc. 

One thing some of the scientists I spoke to wanted me to highlight was that Ayurveda should not be looked as a source of drugs alone. “Ayurveda is not just a ‘drug bank’…it has some very interesting concepts totally foreign to modern science,” says Venil Sumantran, adjunct professor in the department of Biotechnology at IIT Madras. These scientists say Ayurveda must be looked at for its method of diagnoses, its etiology, the way it views illnesses as holistic, and concepts such as the Tridosha classification. 

This is an area that is as poorly researched as Ayurvedic drugs. Moreover, the gold-standard of clinical research---the double blinded, randomized, placebo-controlled clinical trial---probably doesn’t apply here. After all, how do you control a trial on Panchakarma for placebo? The patient knows exactly what treatment she is receiving, so you cannot ‘blind’ the trial either. 

Further, Ayurvedic herbs are often administered along with such interventions. So the next question is---is it right to test Ayurvedic herbs in isolation? 

The answer is yes. After all, Ayurvedic herbs do make specific claims about curing diseases, don’t they? If a herb claims to reduce anxiety in a patient, it should work in isolation, minus the lifestyle changes accompanying it. If it doesn’t, it must not be sold over-the counter, in isolation, which many Ayurvedic herbs are. 

Secondly, we need to know if modern medicine has already created drugs better than these herbs. That needs to be tested, given how long it has been since the ancient Ayurvedic texts were written. 

A sentence from a 1994 research paper by ethnobotanists Paul Alan Wilcox and Michael Balick about traditional medicine systems puts this in perspective. As ethnobotanists, Wilcock and Balick travel around the world, staying with ancient tribes and exploring their systems of medicine in an attempt to develop modern drugs from them. Talking about their investigations into herbs used by Samoan healers, Wilcox and Balick say, “We should note, however, that few of the compounds exhibiting activity in laboratory tests will become new drugs. Some will turn out identical to, or less potent than existing agents; others will prove too toxic for commercial use.” 

This is really the key. The herbs described in Ayurveda may be potent---no one is denying that. But are they as potent as modern drugs used for the same indications? At the dosage levels they are potent enough, are they non-toxic? 

The argument that all natural herbs have no side-effects is incorrect. Look at Veregen, for example, the first herbal treatment approved as a drug by the USFDA. It contains an extract of green tea, and like any other modern-drug, could have undesirable side effects such as redness, swelling, sores or blisters, burning, itching, pain (from the firm’s website). St John's Wort reduces the effects of several drugs, while compounding the effects of certain antidepressants such as SSRIs. Therefore, it is important to study the herb’s interactions with modern drugs too. 

SHOULD HERBAL DRUGS BE SUBJECT TO DIFFERENT CLINICAL-TRIAL REQUIREMENTS? 

There is another viewpoint among proponents of Ayurveda that I must highlight. This came from Dr Ashok Vaidya, who heads research at the Indian Council of Medical Research’s Centre for Reverse Pharmacology. He believes Ayurvedic herbs should not need to go through clinical trials the way modern medicines do. Why should an Ayurvedic drug firm have to spend $1bn going through the entire clinical-trial cycle when the safety of the drug is already proven, he asks? 

He may have a point there. 

After all, the FDA did publish guidelines for herbal drugs only in 2004, which made it easier to develop herbal medicines. Before this, not a single herbal medicine had been approved as a modern drug. The FDA did eventually realize that many of these medicines come with hundreds of years of safety data and so, maybe the process of herbal drug development could indeed be simplified further. Vaidya says certain clinical-trial phases relating to safety can be skipped. Clearly, Vaidya’s views are debatable at this point, and unless a regulatory body takes the call, journalists like me can’t really tell. 

OIL AND WATER 

Finally, another big problem with herbal-drug development is that, by and large, modern-medicine practitioners and Ayurvedic doctors don’t really talk to each other. This was the impression I received from several scientists. Some of the research personnel at IIIM Jammu spoke about how the Golden Triangle project failed because Ayurvedic doctors and scientists couldn’t reach common ground on the quality of herbal preparations to be tested. 

This problem was also highlighted by Dr Bhushan Patwardhan, who headed several of India’s herbal-drug development programs under the National Millennium India Technology Leadership Initiative or NMITLI (see Open story). Even though no drug has emerged from this program, Patwardhan calls NMITLI a success because, for the first time, Ayurvedic doctors and modern scientists began talking with each other. According to him “Projects such as NMITLI should not be looked at from the product point of view. Its (NMITLI’s) most important deliverable was people. It was a great human-resource effort where scientists from the two sectors began talking to, working with and respecting each other. Earlier, they were like oil and water. NMITLI broke this wall; this was its most important achievement.” 

SpicyIP Weekly Review- ( February Week 3)


SpicyIP posts:

The week started with some good news brought to our notice by Sai Vinod, indicative of the government’s inclination to seriously consider the compulsory licensing route for cancer treatment drugs. The Patent Office issued a public notice on February 12, 2013 directing all patentees and license holders to submit Form 27 applications for each calendar year by end of March for the previous year, failure of which would make the patentee liable to a fine of up to 10 lakh rupees. For the uninitiated, Form 27 seeks the information, which enables the controller to grant a compulsory license vide s. 84 of the Patents Act. Sai also stressed on the need to re-examine the "efficacy" of the current format of the Form 27 statement.


Madhulika Vishwanathan wrote an insightful post on how India stands to gain in terms of increased domestic patent filings by becoming a part of the Patent Prosecution Highway Program. The patent prosecution highway (PPH) is a kind of bidirectional work sharing agreement between two patent offices which allows examiners of one patent office to reuse search and examination results already conducted by another patent office. She mentioned several advantages of initiating a PPH program - accelerated examination and higher allowance rate (more than 90 percent of cases are allowed; only 50% of non-PPH cases are allowed) among several others. PPH participation also offers applicants the advantage of decreased prosecution costs owing to the substantial reduction in the number of office actions. She also briefly discussed the USPTO PPH model and also drew our attention to certain drawbacks which need to be addressed if India embarks on the Patent Prosecution Highway. 


Shamnad Basheer spotlighted the invalidation of a pharmaceutical patent covering Baraclude (Entecavir), a leading anti-viral drug for Hepatitis B patients in the US. The drug brought in more than a billion dollars a year to its patentee- BMS . The invalidation may have some serious repercussions on the ongoing Indian case ( BMS v. Ranbaxy in the Delhi HC), which deals with a patent on the same drug (the the US patent covers the basic Entecavir compound, the Indian patent only covers an alleged dosage "improvement"). He discussed the interesting aspects of the US decision. Broadly speaking, the drug was invalidated because even though the drug was based on a new compound, the said compound was not patentable, since it was obtained by modifying a known natural substance in a "stock in trade" manner. He also noted that the fate of the patent in India remains highly vulnerable owing to its ‘improved dosage’ claim in the light of the ‘therapeutic efficacy’ test.


We then had L.Gopika discussing a recent decision on copyright licensing- Dorling Kindersly v. Sanguine Technical Publishers. Sanguine breached a licensing agreement with Pearson Education (DK is a part of Pearson PLC), which required them to co-brand books for a certain period. After some time Sanguine backed out of the agreement, and it was also discovered by Pearson that titles listed under their agreement with Sanguine was being published by another publishing house, namely, Reed Elsevier India Private Limited. Books already published by Pearson were also being published subsequently by Elsevier. Pearson promptly filed a petition before the Delhi HC to restrain from breach and had the common books published by Elsevier sealed. Elsevier filed a review petition to overturn the sealing order. The Delhi HC rejected the review petition. For an analysis of the contentions and the ruling, click here.

Further, Prashant reported that the public records pertaining to the G.I. Registry have now been made available on the website of the G.I. Registry – a very welcome development in the GI arena. Until the website was launched, finding information regarding GIs used to be a troublesome exercise without any guarantee as to the veracity of that information, as noted by Prashant in his post.
Now all information seekers can rejoice! The website is rather well designed and functional. Check it out!


Madhulika reported that the Patent Office revoked Pfizer’s patent on Sunitib- an exorbitantly priced drug. The patent grant has been challenged several times, and has a chequered history, which has been briefly covered in the post. The Controller opined that “I observe that when as the instant claims are clearly obvious to a skilled artisan, so, the commercial success of the instant product (Sunitinib) as submitted by the patentee cannot be considered as an evidence of a patentable invention.” This is delightful news for cancer patients in India! 


Next, Aprajita Lath brought to our notice a development that has put plans to eradicate diseases such as malaria, TB and AIDS in slight jeopardy. The post relates to Global Fund's multi-billion plan to eradicate these diseases.  In a 2011 letter to Hillary Clinton, United States Senator Orrin Hatch opposed the Fund’s pro generic drugs procurement policy. This was a rather contradictory stand taken by him, as he was also a co-sponsor to the United States Hatch-Waxman Act of 1984 which encouraged generic drugs. Another significant development is the Ambassador Mark Dybul, a former US Global AIDS Coordinator, becoming the new head of the organization. Dybul was known for his role in creating the US-based President’s Emergency Program for AIDS Relief (PEPFAR). Also, Christopher Game was appointed as the new Procurement Officer in 2011. This change has come amid speculations that Mr. Hatch and a drug maker Abbot [ Both are against procurement of generic drugs] had lobbied for his appointment. In a time when ‘totally drug restraint’ tuberculosis is spreading in South Africa and USA’s dominant role in the Global Fund, it remains to be seen as to how the Fund will respond to the TB crisis in South Africa and to its procurement and IPR policy.

At SpicyIP, we’ve always actively written and championed for rights of the disabled. L.Gopika reported here, that 20 disability rights groups wrote to the Ministers of Culture, HRD and Social Welfare requesting the Government to take action in removing the barriers People with Disabilities face in accessing public library facilities and collections. This was in furtherance of the 2012 amendment to the Copyright Act which enables libraries to convert their collections into formats accessible to PWDs free of cost. A long list of suggestions for improvement has also been provided by the 20 disability rights groups. She also linked to the comprehensive checklist prepared by International Federation of Library Associations and Institutions, for additional information to our readers. 



The publication of unfavourable pieces on review of IIPM as an institution received considerable attention when it filed a suit against Penguin( the publisher of an essay which criticises IIPM), and Google India.
In this post, Shouvik brings to our attention the latest development on this dispute. In a sweeping order by the DoT in compliance with a directive issued by a Court in Gwalior, the DoT ordered blocking of 78 URLs. The URLs include plain spoof publishing websites such as FakingNews and Unreal Times and reputed journalistic publications such as TOI, Indian Express, Careers 360, The Caravan, etc. These even include the UGC website, which had earlier published a notice confirming the unrecognized status of IIPM. While Arindam Chaudhuri told Firstpost in an interview that while he’s no objection to satiric comments made in the democratic spirit, he’s still glad that “defamatory links with malicious interests have been ordered to be removed.” This is the first time a judicial order has censored the internet in such a blanket manner! Several questions have been raised such as whether the Court has the legal authority to censor official government websites to whether the order is flawed from lack of fair hearing opportunities given to parties affected.

Interviews in the IP arena:

Apothecurry, a leading Indian blog on the Indian Pharmaceutical industry presented an interview [in three parts] with Yusuf Hamied. Yusuf Hamied is the Chairman of Cipla and, is also known as the Grand Old Man of the Indian Pharmaceuticals Industry. While Cipla was the first company to provide HIV drugs to developing countries at affordable prices in 2000, since then several companies have joined the competition in generic drugs market. He expressed his dissatisfaction on the global tendering process of generic drugs, and how it is extremely dangerous to for companies. He also discussed how voluntary licensing is more preferable to compulsory licensing. His organisation has grown exponentially in terms of revenue and manpower; he spoke about the challenges faced and also on Cipla's overhaul of its export strategy.



International Developments:

The BMS-Teva patent invalidation was reported widely in the international media (here), with Shamnad's prompt coverage on the same at SpicyIP. The invalidation is significant, because apart from the loss of a billion dollars caused to BMS, it is also the first time when a US court has invalidated a patent obtained on a drug developed via lead optimisation, in other words a modification of an older molecule. BMS plans to appeal.

On 15th February, President Obama in a Google+ hangout lashed out at patent trolls. He said that patent litigation in America still had a long way to go. American IP is still grappling with problems like patent trolling, piracy and a constant pressing need to keep up with advancements in technology. You can watch the hangout here.

Meanwhile, Apple lost a trademark dispute over 'iPhone' in Brazil. The Brazil's Institute of Industrial Property ruled that a company Gradiente, who had registered the mark in Brazil in 2000 way before Apple had launched iPhone on 2007, also enjoys the right to the mark, and Apple cannot claim exclusive rights to the mark.

We know how Facebook's like button has become the ultimate gauge of a company's presence on social media. Now, the like button has become embroiled in a patent infringement suit.  Van Der Meer, a Dutch programmer had developed a social webpage diary called Surfbook and patented the same in 1998. He passed away in 2004 and now the patent holder[Rembrandt Social Media] has claimed that the diary had a function to log third party content into the diary- very similar to the like button, thereby infringing their patent.




Event Alert 



Pharma IPR 2013: We are pleased to announce the 2nd Annual Pharma IPR 2013 conference taking place from 10th - 12th April, 2013 in Mumbai, India.

You may register here.