The Mint Is Looking for Legal Correspondents

The Mint, a leading business paper, is looking to hire legal correspondents/analysts. Pay will be commensurate with the best in the industry (and will depend on years of experience etc). So for those of you looking to combine law with journalism, this presents a great opportunity.

If interested, please write to Anil Padmanabhan (anil.p@livemint.com), Deputy Managing Editor, Mint for further details. Also, please pass this on to folks that might be interested.

As many of you are aware, we've often featured Mint articles on this blog. Of the various newspapers today, Mint's IP news reports/analysis (by journalists such as CH Unnikrishnan and Radhieka Pandeya) stand out as being extremely well researched and nuanced. Further, their science and technology reports by Jacob Koshy and Seema Singh are a terrific read. And so are their law reports by Malathi Nayak.

In fact, recently, Malathi Nayak did two outstanding pieces focussing on India's leading IP attorney, Pravin Anand. We'll run a separate feature on this soon.

So for those of you looking to explore this wonderful opportunity to combine legal and journalistic skills with India's leading business paper, you will be in very august company.

The Dual SIM (Ramkumar) Patent Murder: Vikas Partner Arrested

The Hindu reports that Rajamani, one of the partners in Vikas Systems (the collection agency that worked for Ramkumar) was arrested for the gruesome murder of Sankaran Diwakaran:

"One person was arrested on Wednesday in the case pertaining to the murder of a businessman, Sankaran Diwakaran, in K.K.Nagar on May 1. The arrested person, Rajamani, was a partner in the victim’s company.

Business rivalry has been cited as the motive behind the murder.

Sankaran Diwakaran was hacked to death by a group of men who came on motorcycles. The company was founded to market dual SIM technology in mobiles. There were regular conflicts between the victim and Rajamani over profit-sharing, according to a police press release.

Rajamani has been charged with hiring contract killers from Madurai and Dindigul with a motive of killing Sankaran Diwakaran. Special teams have been formed to arrest other accused in the case."

From this latest arrest, it would appear that neither Ramkumar nor his lawyers had anything to do with this dastardly act. In fact, our own investigations reveal as below:

i) Vikas Systems was set up specifically to help Ramkumar exploit his patent.

As an aside, I couldn't help thinking that India needs more agencies of this sort...but ones that would help a legitimate inventor commercialise his/her invention. As many of you appreciate, Lab to Market is the most difficult part of the "innovation" matrix. It would have been terrific if someone had helped Ramkumar to develop a product out of his patent (assuming of course that his patent supported "simultaneous dual SIM communication"). In its revocation petition before the IPAB, Samsung alleges that Ramkumar does not "enable" the patent in any way and that his patent lacks sufficient disclosure. Further, one of our commentators to an earlier blog post had noted that the claims and specification merely describe what is desired to be achieved rather than how it is to be achieved.

ii) Sankaran Diwakaran was the main brain behind Vikas Systems and went around India, convincing several customs authorities to block dual SIM imports.

iii) Apart from Diwakaran and Ramkumar, the other partners in Vikas Systems appear to be Rajamani, Murugesan and James. The arrangement was that Ramkumar being the patentee, would get 60% of the royalties, while the other partners would get 40%.

iv) It appears that Diwakaran was quite unhappy with the fact that Rajamani was not putting in enough work into Vikas' royalty collection efforts. He was therefore planning to call a board meeting seeking to reduce Rajamani's share in the royalties (out of the 40%). This angered Rajamani, who collected some thugs from Madurai and hacked Diwakaran to death in broad daylight in KK Nagar, Chennai.

Design v. Copyright: Need for a Clear and Rational Distinction- I

In an earlier post, Mihir had crisply and clearly brought out the conundra posed by s.15 of the Copyright Act in drawing a distinction between works protectible under the Designs Act and those which may be bestowed with copyright protection, using 2 judgments delivered by the Delhi HC, one by the Division Bench in Rajesh Masrani v. Tahliani Design and the other by a Single Judge in Microfibres v. Giridhar. On the 28th of last month, the Division Bench of the Delhi HC delivered its judgment on the appeal filed in the latter case by Microfibres which is of considerable significance in resolving the dilemma the provision poses.

Before I proceed to discuss the DB’s judgment, I think it proper to briefly discuss the judgment (rather the facts of the case) delivered by the Learned Single Judge. The plaintiff Microfibres filed a suit against the defendants Giridhar and Co. and Ors. for infringement of its copyright in the “artistic works” applied to upholstery fabrics and for attempting to pass off its goods as that of the plaintiff’s.

The plaintiff submitted that what was printed on the upholstery fabrics fell under “unique and original artistic works” which were conceptualized and drawn/printed either by the plaintiff’s employees or the copyright in which was assigned by other persons to the plaintiff. What is borne out from this submission is that the purpose/objective of these “artistic works” is their application to the fabrics. We shall see, as we proceed with the discussion, the role of this factor i.e. objective, in drawing a distinction between “artistic works” as defined in the Copyright Act and “designs” as defined in the Designs Act of 1911 and the Designs Act, 2000 which is currently in force.

It was further submitted by the plaintiff that he had obtained copyright registration in respect of some of these drawings and that violation of copyright was being alleged even in respect of those which did not have a registered copyright, for in the plaintiff’s view, copyright subsisted in them as “artistic works” under s.2(c) of the Copyright Act. In 2002, the plaintiff discovered that the defendant was selling inferior fabric which allegedly used the “artistic work” of the plaintiff thereby infringing the copyright in it besides being guilty of passing off.

To this, the defendant countered that the work of the plaintiff did not merit protection under the Copyright Act in the first place and that if at all a valid claim subsisted, it had to be under the Designs Act, 2000 since the works of the plaintiff were designs relating to textile products. The defendant stated that since the plaintiff had failed to obtain a design registration in respect of the works under the erstwhile Designs Act, 1911 and the current Act of 2000, copyright protection was being sought, which claim, according to the defendant, was untenable in the light of the existing framework of both the Copyright Act and the Designs Act.

The other relevant fact which the defendant pointed out was the design registration obtained in respect of the works by the plaintiff in the US and UK in addition to a letter from the Designs Wing of the Indian Office attesting to the fact that the work was registrable under the Designs Act, 2000. Besides, according to the defendants, in addition to the fact that the works did not qualify as “artistic works”, they had to fall within the definition of a design under the Designs Act, 2000 since they were merely ornamental in nature and appealed to the eye. As to the question what qualifies to fall within the definition of artistic work, the defendant submitted that paintings, drawings and pictures which were not industrially applicable fell under “artistic works” and therefore were excluded from the definition of a design. Also, according to the defendant, since textile fabrics were registrable subject-matter under the Designs Act, it implied that they did not qualify to be categorised as “artistic works”.

The next part of the argument tendered by the defendant with regard to s.15 of the Copyright Act is the crux of the issue here which has for long been a bone in the throat of Courts and we shall see if this is so for good reason. According to the defendant, s.15(2) of the Act went against the plaintiff because the provision envisages the cessation of copyright in a design which is capable of being registered under the Designs Act,1911 but has not been registered and has been manufactured 50 times using an industrial process. Before I continue with the judgment, let’s see what the section says and why is it so contentious.

S. 15(1) of the Copyright Act states with zero ambiguity that copyright shall not subsist in any design which is registered under the Designs Act, 1911 and s.15(2) reads thus:
Copyright in any design, which is capable of being registered under the Designs Act, 1911 (2 of 1911), but which has not been so registered, shall cease as soon as any article to which the design has been applied has been reproduced more than fifty times by an industrial process by the owner of the copyright or, with his licence, by any other person.

Both the sub-sections speak of the 1911 Act and not the 2000 Act, so one might say that the provision is applicable only to those designs which are registered under the 1911 Act or were capable of being registered under it. There doesn’t seem to be anything in the Act which militates against such a plain and literal interpretation of the section. Further, if one were to go by an internal aid of interpretation, the title of this section reads “Special provision regarding copyright in designs registered or capable of being registered under the Designs Act, 1911”. The primary intention of the section appears to be to prevent the owner of a work from enjoying simultaneous copyright protection once the work is registered under the Designs Act of 1911 (this means copyright existed in the work prior to the registration and it must have been categorised as an “artistic work”). Another objective appears to be that the moment the owner of an unregistered work decides to apply the work to an article using an industrial process for 50 times, he brings himself within the objective sought to be achieved by the Designs Act, 1911 which is to encourage creativity and therefore cannot enjoy copyright protection which has a longer term.

If this is so, what is the position of something which is capable of being registered under the 2000 Act, but has not been so registered? In other words, is s.15 of the Copyright Act applicable to those designs capable of being registered under the Designs Act, 2000 but remain unregistered? How long does copyright subsist in such a work, that is, if at all it exists in the first place?

For this, one has to refer to the definition of “design” under the current Act, which is an amended version of the definition as given under the 1911 Act. The definition of a design under the 2000 Act excludes from its purview artistic works as defined under s.2(c) of the Copyright Act. What does this exclusion signify? In simple terms, the exclusion means this- something which is an artistic work under the Copyright Act cannot enjoy design protection under the 2000 Act (please note that this was not the case under the 1911 Act). But what about a work which falls under the definition of a design under the 2000 Act (implicit in this is the conclusion that it is not an artistic work), but has not been registered under the Act? Is it vested with copyright protection by virtue of its creation? No, this is because if it has to enjoy copyright protection, it has to fall within one of the categories under s.13 of the Copyright Act and the only (possible) category is that of “artistic works” (can it fall under any other category?), but if it does fall within such category, the definition of a design itself robs it of design registrability. The end result of all this seemingly tautologous farrago is that the effect of the framework of the Designs Act, 2000 is as follows- something which is capable of being registered under the Act but has not been so registered receives neither design protection nor common law copyright protection, it remains an orphan.

In the next post, I shall discuss in detail the judgment of the lower Court to verify the accuracy of the afore-made conclusions. Further, this logical structure is built on the assumption that if a particular work is presented before a Court, there exists a test by which the work may be objectively slotted as an “artistic work” or as a “design”. What exactly is the test and how objective is the test too will be discussed in the next post.

Delay in Filing a Power of Attorney(POA): Does it Prejudice a Patent Application?

A quick query for our readers in the know:

Although the Indian patents act requires the filing of a power of attorney (POA) along with the patent application, my understanding is that this can be filed at a later stage as well. And attorneys routinely file this later (after date of filing the application). Is this correct?

Do our readers know what the global practice is in this regard? Do the USPTO, EPO, JPO etc require the power of attorney to be filed on the date of filing of the patent application or later? Or are they generally lax about this and do they permit a later filing (or does their statute or other notification etc permit such later filing of the POA).

And does the same position apply with respect to trademark filings as well?

Introducing GIIP: A Leading Indian IP Training Institute

I have the great pleasure of introducing the Global Institute of Intellectual Property (GIIP) to our readers. Many of you are likely to have already heard of this leading IP training institute that has notched up a commendable reputation in the short span of 2 years that its been around.

GIIP, headquartered in New Delhi is the brainchild of the legendary silicon valley entrepreneur and TIE founder, Kailash Joshi. With a recently opened branch in Bangalore and a new collaboration with Delhi's National Law School (headed by Dr Ranbir Singh), this institute is slated to set global standards and help India generate well trained and well qualified IP professionals. It has also struck a deal with the world's leading IP exchange, OceanTomo to offer courses in IP management and valuation.

Importantly, for those of our readers who wish to hone their IP skills and make themselves more employable in the current market, GIIP has begun accepting applications for the coming year, beginning July 2009. If you wish to register for their IP training programs, please click here.

I met Atulya Nath, the vibrant director of this institute recently and was impressed with the infrastructure (great IP library), the curriculum, faculty and most importantly, the vision that he has for GIIP.

SpicyIP Discount on Fees

Luckily for us, he agreed to offer a 10% discount to any SpicyIP reader that wished to register for any of the GIIP programs. To avail of this discount, please mention that you heard of the program through SpicyIP in your application (or please communicate this orally to the GIIP office when you register for any of their programs).

Readers may recollect the rather lively debates on IP education that we've been having on this blog. Given the dearth of good patent professionals in India, GIIP is a very welcome initiative. Indeed, it has already mustered a commendable reputation in India and globally since its inception in 2007.

Placements:

A key advantage of GIIP is its excellent counselling service that helps a student chalk out their future career path. More importantly, GIIP strives to place its students with leading law firms, companies and LPO's. Students of the past batches have been placed with leading law firms and companies such as Anand and Anand, Remfry and Sagar, Ranbaxy, Panacea Biotech, Intellevate, Evalueserve etc.

Courses Offered:

a) A nine month (full time) program, which includes 3 months of Corporate Internship.

Start Date – 29th June 2009. Classes will be held from Monday – Friday (10:00 A.M. – 3:30 P.M.). For complete information, click here.

b) A one year (part time) program.

Start Date – 27th June 2009.

Classes will be held on Saturdays (10:00 A.M. – 5:30 P.M.) and there will be an Industry-Institute Partnership Seminar on 3rd Sunday of each month. For complete information, visit URL - http://www.giipinfo.com/part-time-certificatecourse.aspx

c) Short Term Courses and Corporate Series

Amongst other things, the training programs have the below features:

1) In-depth knowledge in US and Indian IP laws and processes
2) Curriculum has been designed keeping the industry requirements at core. Course material includes books, manuals and training material of Mr. Steve Shear (former US PTO Examiner )
3) Highly Experienced Faculty team, includes Professors, Patent Agents & IP Practitioners from the US , Europe and India
4) Practical, Hands-on training and regular exams, assignments and group discussions
5) Placements with leading KPOs, MNCs, Law Firms and Indian Corporate

Scholarships:

For those of you who are cash strapped for the moment, GIIP provides a variety of services to assist the financing of your education, including educational loans and financial assistance through scholarships, and Corporate sponsorships.

Affiliation details:

GIIP has strong ties and collaboration with the following distinguished universities and institutions.

i) University of Washington, CASRIP, USA, to offer dual certification programs in India.

ii) IIT Delhi for conducting training programs on campus. IIT professors also teach at GIIP programs.

iii) William Mitchell College of Law(WMCL), USA for conducting post-graduate IP programs in
India and to attract Indian legal professionals for higher level studies at WMCL LLM program.

iv) Silicon Valley Seminar SVS Inc. for Train The Trainer (TTT) program and exclusive
publication rights for Steve Shear’s (Head, SVS Inc.) books on US Patent and Patent Process.

v) National Law University, Delhi for conducting training programs on campus and have their professors teach at GIIP programs.

Faculty:

GIIP boasts a stellar team consisting of resident faculty, overseas faculty and visiting faculty. Some of the luminaries include:

Steve Shear, (J.D. American University), Program co-Chair & Trainer
Dr. Heinz Goddar, (Ph.D. Munich U.), Senior Advisor & Mentor
Firasat Ali, J.D. (John Marshall Law School, Chicago), Trainer & Mentor
Hitesh S Barot, J.D. (U. of California, Berkeley, Boalt Hall School of Law), Trainer & Mentor
Ravi B. Upasani, Ph.D. (U. of Bombay) , Trainer & Mentor
Robert Lee, J.D. / MBA (law and business) (UC Berkeley), Trainer & Mentor
Manish Kumar, Ph.D. (Jodhpur U.), Associate Professor
Bhavya Mehta, Ph.D. (Delhi U.), Assistant Professor
Bharti Birla, LLB (Delhi U.), B.Pharma (Delhi U.), Assistant Professor
Lakshmi K, Ph. D. (CUSAT), Senior Trainer
Mr. Rajeev Ranjan, ex Joint Secretary, DIPP, Ministry of Commerce
Prof. S.K. Jain, IIT Delhi
Dr. Guriqbal Singh Jaiya, SME Division, WIPO, Geneva
Dominic Keating, Intellectual Property Attaché to India from the US

Management:

a) Dr. Kailash Joshi, Chairman & Mentor, ex-IBM
b) Mr. Jerry Rao, Senior Advisor & Investor, Former Citibanker. Ex-Chairman and CEO Mphasis
c) Prof. Dr. Heinz Goddar, Senior Advisor & Director, European Patent and Trademark Attorney, Partner, Forrester & Boehmert, Germany
d) Dr. V S Ramamurthy, Padma Bhushan, Senior Advisor & Director, ex-Secretary Govt. of India, Department of Science and Technology and Chairman, Board of Governors of IIT Delhi.
e) Mr. Atulya Nath, President & CEO, ex-CEO ASAP Solutions (now part of MindTree Consulting, Pvt. Ltd.)
f) Ms Girija Varma, Senior Advisor, practicing IP & Patents Attorney
g) Mr. Steve Shear, Senior Advisor & Mentor, Former US Patent Examiner

Contact Details:

Global Institute of Intellectual Property
45, FF, Okhla Industrial Estate, Phase III, New Delhi - 110
Phone - (011)-3088 4000, Fax - (011)-3088 4034, Email - info@giipinfo.com

Bombay HC rules on Copyright in Drawings: Part II

The case of Indiana Gratings v. Anand Udyog which was previously reported on the blog was based solely on an article. This post briefly will deal with the nuances of the judgment to elaborate upon the analysis in the preceding post.

- The present drawings were not registrible under the Designs Act. Apart from the West v. Francis, importantly the following highlights of this section of the judgment must be pointed out:

(a) A design that is multiplied/ intended to be multiplied by an industrial process will not be registrible under the Designs Act.

(b) It was reiterated using the precedents of AMP v. Utilux and Interlego v. Tyco that the basis of granting protection under the Designs Act was visual eye appeal.

(c) Therefore, where every feature of a sketch was governed by the functionality of the finished article the same would not fall within the purview of the Designs Act.

- Indiana Gratings held copyright in the drawings: Despite using the idea of the machines in question from a European design, the judges used precedents to explicitly state that this would fall within the accepted idea-expression dichotomy and the expression in the drawings of the Plaintiff would fulfil the requirement of ‘originality’. Therefore the same was copyrightable.

- The reliance on the judgment of LB Plastics has already been mentioned in the previous post dealing with this case. The judgment has been quoted extensively, the essence of which has been reproduced in the previous post.

- With respect to the contention that the 2-d drawings only held copyright and this did not extend to the 3-d finished articles, the judgment is very scattered and hardly any importance is laid on this specific contention. However this is mentioned mostly in conjunction with the specifics of what a copyright entails as specified under Section 14 (c) of the Act and other judgments such as the Popeye case.

In conclusion, the judgment says nothing that hasn’t already been said before. It very clearly relies on precedents to grant the temporary injunction as prayed in the case. As many of our readers have pointed out, there is no mention of the Mattel, Microfibre matters. However, I believe Sai giving us a detailed appraisal of the judgment and I shall leave that portion of the analysis to him.

A Big Thank You

SpicyIP has also found that once I reported that the judgment was unavailable online, several of our extremely helpful readers came forward to aid us. Thanks to our ever resourceful reader (Manu) who took the trouble to scan the judgment and an anonymous commentor who left us with the details for us to find the judgment on the Bombay HC website. I also was redirected to the website IndianIPR, which is an excellent resource for finding IP judgments- such as this one- as I have come to realise. With judgments being made available by this website and reported by SpicyIP, it seems like we have the latest in Indian IP news covered :-P !

Bombay HC rules on the Infringment of Copyright in Drawings

A recent article on Mondaq has reported the judgment of the Bombay High Court in the case of Indiana Gratings Private Limited & Anr v. Anand Udyog Fabricators Private Limited & Ors. While the article provides the following citation -2009 (39) PTC 609 (Bom)- this judgment is as of now unavailable on internet web resources, and so the article will primarily be used as a reference point for the facts and issues. (Any additions or clarifications to this post shall be made by the blogger once the original order is available).

The case revolves, simply, over the existence of copyright in artistic works and the alleged infringement of the same. A European machine imported was found to be unsuitable for Indian conditions and therefore the Plaintiffs herein, incorporated certain improvements and modifications. These changes were initially incorporated in drawings and thus copyright was claimed in such drawings as an artistic work within the meaning of section 2(c)(i) of the Copyright Act. Therefafter, it was alleged that the defendants had stolen the artistic works and reproduced the drawings into a finished products. Being a competitor in the business, the plaintiff’s therefore argued that Anand Udyog was guilty of theft and infringement of copyright existing in the artistic works.

On a primary level, the Court first dismissed the claim of the Defendants that no copyright subsisted in the drawings and they were only registrible under the Designs Act. Keeping in mind Section 2 (d) of the Designs Act, the court stated that the criteria therein was not satisfied by the drawings or the finished articles, and therefore they did not come within the purview of the Designs Act. More succinctly put, the drawings were not indicative of “finished articles” (notwithstanding the fact that the finished article was also not “appealing to the eye”) and served a “mere functional purpose”- both of which would disqualify the drawing from the purview of the Designs Act, 2000.

In this respect, the Court referred to the case of West vs. Francis, (1822) 5. B & Ald. 743 “whereby it was held that a drawing of an industrial product, which could be multiplied by an industrial process, would not qualify as a design under the Designs Act but a copyright as an artistic work.”

Moving on, the claims of Indiana Gratings were refuted by Anand Udyog on two levels:

(a) Indiana Gratings did not hold copyright in the drawings: Their logic in this respect was that since they had copied the drawings from the European machine, this could not be considered as an ‘original work’ and therefore not a copyright within the meaning of Section 2(d) of the Copyright Act. It was further claimed that the drawings were not “artistic works” within the meaning of the Copyright Act.

In this regard, the Court clearly said that the idea-expression dichotomy would come into play. Thus, even though the original idea of the machines in question was that of the European manufacturers, copyright subsisted in the expression which herein was in the form of the drawings which included the modifications and improvements. Next, with respect to the term “artistic work” under Section 2(c)(i), the Court opined that a drawing in the form of a diagram would qualify as an "artistic work" even if it did not portray any artistic quality to a layman.

(b) Anand Udyog claimed that there was no theft and that the drawings were “commonplace shapes based on principles of engineering mechanics” and therefore there was no theft of the drawings of Indiana Gratings. It was however argued by the Plaintiffs that ndiana Gratings retorted stating that the various drawings taken as a whole for various parts of the machinery would fit into one another and when used together did not show commonplace drawings.

The Court relied on the case of L.B. (Plastics) Limited vs. Swish Products Limited, (1979) RPC 551, where the House of Lords states that where there was a striking similarity of the Plaintiff’s and Defendant’s work with proof of access to such work and no alternative to copying was provided, the same would constitute infringement. A similar judgment in this regard was also passed by the Delhi High Court in the case of Escorts Construction Equipment Ltd. & other vs. Action Construction Equipment Pvt. Ltd. & Anr., AIR 1999 Delhi 73 and was take note of by the Courts.

The dimensions of drawings submitted by the co-defendants was found to be “identical to the drawings of Indiana Gratings', which the Court held to prove beyond doubt that the drawings were copied.” This included specific identifiable marks alongside the copies recovered, the logo, ‘complete name and description of the product along with the legend for the various items in the drawings and a warranty.”

Therefore in this case, taking into account the evidence and the insufficient explanation given as to the origin of the drawings used by Anand Udyog, it was held by the Court that the wrongful use of the drawings of Indiana Gratings would amount to theft.

(c) Lastly, the defendants stated that the copyright of Indiana Gratings existed only in the 2 dimensional form and therefore not in the 3 dimensional finished product.

The Court here held that the use of Indiana Gratings' drawings would infringe the copyright in their drawings or making any 3 Dimensional objects of machine parts amounting to the reproduction of Indiana Gratings' drawings.

Analysis:

This judgment once again rakes up distinction of the subsistence of an artistic work and design. But in every other respect, the judgment is extremely straightforward in that if the theft was proven, the use of the same by the Defendants would amount to infringement. Since the judgement is unavailable at the moment to the blogger, it is unclear whether any case law was relied upon to dismiss the last claim of the Defendants with respect to the reproduction of the 2 dimensional drawing to the 3 dimensional finished article. However, the case of British Leyland v. Armstrong Patents,(1986) FSR 221 in this respect would be a clear case in point and should be relied on to remove all doubts as to the subsistence of copyright in the finished product from its 2 dimensional form.

MS v Linux: Sparks of the Tom Tom Fire stubbornly refuse to die

In course of the last decade, every once in a while Microsoft has been known to have accused Linux of infringing one of its patents or another. Despite the said multiple claims for years that elements of the open-source operating system violate its patents, Microsoft had restricted itself till 2009 to supporting legal action against Linux (for instance, the infamous alleged funneling of money by Microsoft to SCO so as to fuel the latter’s lawsuits against IBM and other Linux-user companies). Simultaneously with such actions, Microsoft has not restricted either its alliances with the said companies, including its partnerships with Novell and Red Hat.

Matters had come to a head, however, when Microsoft filed a suit against the GPS navigation device vendor TomTom International BV in the U.S. District Court in Seattle in February, 2009, alleging that the in-car navigation company's devices violate eight of its patents -- including three that relate to TomTom's implementation of the Linux kernel. Following is the link wherein the text of the complaint can be found:

http://media.techflash.com/documents/tomtomComplaint.pdf

Five of the alleged patent violations related to proprietary software, relating to in-car navigation technologies, while the other three involved file-management techniques, with Microsoft virtuously maintaining all along that open-source software was not the intended focal point of the action. Despite the case having taken an even more interesting turn when TomTom countersued Microsoft and joined the Open Invention Network (OIN), an open-source patent protection group, matters came to rather an abrupt end on March 30, 2009 when the parties surprisingly agreed for a mutual settlement. In return for an undisclosed licensing fee, TomTom has been given leave to use Microsoft's patents.

The matter becomes murkier, however, when one pays attention to a statement from Peter Spours, TomTom's director of IP Strategy and Transactions, who said that the said settlement agreement has been drafted in a way that ensures TomTom's full compliance with its obligations under the General Public License v2, and thus reaffirms its commitment to the open-source community. No explanation was forthcoming, however, as to how exactly can TomTom both use the rights granted under the patent and conform to the GPLv2! As per the claim advanced by the companies, the agreement includes patent coverage for Microsoft's three file management systems patents provided in a manner that is fully compliant with TomTom's obligations under the GPLv2. At the same time, TomTom will remove, within 2 years from its products, the functionality related to two file management system patents (the 'FAT LFN patents') that enables efficient naming, organizing, storing and accessing of file data. During the said period, the agreement provides for coverage directly to TomTom's end customers under the said patents. This may lead to TomTom technically using the Microsoft FAT LFN (File Allocation Table/Long File Name) patents for the next two years, but it won't be actually using the features of those patents, which may imply that TomTom will be replacing the long file name support provided by these patents with a different technology that does not belong to Microsoft.

However, the settlement is far from successful in calming down the much-agitated open-source legal community, with the legal issues involved being still undecided. In effect, this settlement ends one phase of the community's response to Microsoft patent aggression and begins another.It may be interesting to note that a continuing litigation will have subjected Microsoft’s patent claims to a rigorous ‘prior art’ search to which the company may have been unwilling. If that’s the raison d’etre of this settlement, then Microsoft still has many battles to resolve, particularly with OIN having taken the first step towards invalidating Microsoft's patents that were asserted against TomTom with regard to its implementation of the Linux kernel. The said patents have been posted by OIN on its patent defenders website in order to search for relevant prior art that can invalidate Microsoft's patents. If instances of prior art can be unearthed, then the same will undoubtedly be used to defend any future infringement actions of Microsoft against the Linux community.

Is "Science" Essential for Creating Patent Lawyers: Some "General" Thoughts

In an earlier post, I discussed a Supreme Court case filed against the grant of BCI (Bar Council of India) permission to IIT-Kharagpur's Rajiv Gandhi School of IP (RGSOIPL) and noted that:

"Given the sheer dearth of skilled patent lawyers in this country, I am very partial to the idea of a specialised IP law school. Particularly since the premier legal institutes in the form of the National law schools do not focus on science at all, a discipline that is absolutely essential for churning out decent patent lawyers.

....I don't necessarily see a problem with a specialised "IP" focus in an entry level LLB course, provided other foundational legal courses such as contracts, torts, criminal law, constitutional law etc are also taught."

This post generated a number of insightful comments, some of which touched on the broad issue: how critical is a formal science degree for entry into the coveted club of patent attorneys? I began by replying to the myriad comments and then realised that (as is wont with most of our ilk in the legal profession), verbal diarhoea took over and my thoughts ran into a good 2 pages or so.

So rather than burdening the comments section, I thought it fit to post my thoughts here. I am still thinking through these issues and have quickly penned down what are best rough ideas. May I therefore invite all of you with an interest in this theme to pitch in with your thoughts and perspectives on this challenging issue?

Freedom of Academic Instituitions To Design Curricula

The key issue in this legal dispute is about the freedom of institutions to devise their own courses and entry requirements (within the broad bounds of the Bar Council [BCI] norms). There is a difference between this institutional freedom and a legal requirement (mandated by the BCI or some other institution) that only those students with science degrees can practice patent law. The Supreme Court petition is really concerned with the former and not the latter.

However, the latter is an issue that is closely connected with the former issue and deserves some discussion: How important is a "technical background" (science/engineering) for producing good patent attorneys?

Some of you have suggested that a good keen mind is more important than formal education. While I broadly sympathesise with this line of thought, this argument can be stretched to an extreme to suggest that we don't need any formal qualifications for lawyers at all i.e no need for an LLB degree and anyone should be permitted to argue in court! The problem with such an argument is that we then have an unregulated pool of people who are vested with the responsibility of legal cases (on behalf of clients) and are also meant to be "officers of the court" helping it dispense justice.

Therefore, some level of regulation might not be out of place. If that is our baseline, we then ask the next question: how do we regulate entry to this profession and what kind of courses should people interested in joining the profession learn? Should we just have a five year law degree or a 3 year law degree (taking only candidates with a first degree) or should we just have a bar exam (anyone who passes this is entitled to practice law) or a combination of the above.

The same framework (and questions as above) can be extended to patent attorneys who are but a subset of the overall category of the legal profession.

This profession differs from other legal areas in that it requires a proficiency in both "technology" (science/engineering) and law. What is the harm then of permitting an institution such as the IIT to insist that its intensive law course (with a special focus on IP) is open only to science graduates? Provided of course, that the special focus on IP does not come at the cost of teaching students other foundational legal courses such as contracts, torts, constitutional law etc.

And again, it bears reiteration that one must make a distinction between a bar council requirement that only a science or engn graduate can practice patent law (which is not the case here) to a case where an institution (of its own volition) mandates such a requirement for entry into its course. If patent law requires a substantial dose of both science/technology and the law, I see no harm in the IIT insisting that only science/technology graduates join its program, so that it need not waste time inculcating the philosophy of science/technology, whilst teaching patent law to these students.

Of course, this debate must be careful to appreciate that the patent profession itself is not a monolithic structure but lends itself to further divisions:

1. Patent drafters/prosecutors
2. Patent litigators
3. Patent academics/researchers
4. Patent paralegals

Patent Drafters

For patent drafters and prosecutors, science is an absolute must. And I think it is with good reason that Indian law does not permit one to be a patent attorney, unless one has a science/technology degree and one passes an exam that tests one on science fundamentals. As to whether this exam is an optimal one for testing candidates on science/technology proficiency is another issue and I leave it to those of you who are more familiar with this exam to give us your thoughts on this.

(ps: As many of you know, this requirement of a science degree and an exam came in only in 2003 or so--and I may perhaps have been one of the last people to have qualified as a patent attorney without having a science degree.)

But this category leaves me with two uncomfortable questions. If someone has a basic degree in chemistry, is that person qualified to draft a patent covering a telecommunication technology? Should we then have separate exams for all these fields and each patent attorney is to be identified with his/her specific field of expertise. From a policy perspective, this kind of further classification seems unduly cumbersome.

Perhaps we ought to resign ourselves to the fact that perfection here in unattainable and we ought not to make the "perfect" the enemy of the good. In other words, lets have "science" qualification as a must for making the cut for a patent attorney (who drafts and prosecutes) but lets not further categorise them and tie them down to their specific areas of technological expertise.

The second uncomfortable question is this: Given that a patent is a techno-legal document, should not patent attorneys (who draft and prosecute) have some formal training in the law as well?

Patent Litigators

As for the other categories outlined above, I'm not sure if I would go to the extent of insisting on a formal science degree as an entry level requirement. After all litigators deal with so many different areas of law and have to argue before judges who may not be trained in science and patent law. And some of the best patent litigators the world over have no formal science background. Take the case of Judge Randall Rader of the US CAFC, one of the finest patent judges the US has ever known--he is an English major.

More importantly perhaps, patent litigation may involve other areas of law as well. And to insist that the "patent part" be split from the rest of the litigation and argued separately by a science qualified person may be plain absurd.

Patent Academics/Researchers

If the case for exempting patent litigators from the requirement of a science degree is a good one, then that the case for exempting researchers and academics is an even better one. Anyone with an interest in the area (but no formal training) ought to be able to write and research on this subject. And there should be no fetters on academic freedom of this sort. We find that some of the best patent literature came from economists (think Fritz Machlups 1960 report) and even from geographers (think Graham Dutfield).

Patent Paralegals

The last category, "patent paralegals" ought not to have any specific formal entry requirement, since most of the work they do is normally overseen (and signed off) by qualified lawyers/patent attorneys. A large part of our LPO segment comprises of folks who may be broadly termed as "patent paralegals".

These are very rough ideas--and I look forward to a discussion.

An IP Policy for the Aam Admi: Is the new UPA Government up for the challenge?

It’s been two weeks since the Indian electorate, defying all poll predictions, voted the Congress led UPA Government back into power (minus the comrades from the Left parties). The resounding victory of the UPA Government is widely seen as the vindication of the UPA’s aam-admi (common man) policies such as the NREGA and the agricultural loan waiver.

Since PM Manmohan Singh’s government has proposed a 100 day action plan for various ministries it is but obvious that we must chip in and propose a revised IP policy which extends the concept of intellectual property to stimulate innovation amongst even the aam admi be it the grass-root innovator or various knowledge rich, resource poor indigenous communities around the country. As you may remember Shamnad in one of his earlier posts urged the creation of more informal IP norms to extend the benefits of IP to even the informal economy. There is no better time to push for such a policy especially since the aam admi is back on the agenda.

The two legislations that I had in mind for this purpose are Firstly a Utility Model Protection System and Secondly a sui generis system for protection of traditional knowledge.

A Utility Model Protection System: One of the drawbacks of the current Patents Act in India is the fact that it lays down a very time-consuming, expensive process to secure patent protection. Additionally the standard of inventiveness under this Statute is considerably higher than the level of innovation that is likely to be demonstrated by a grass-root innovator. Therefore in all likelihood it will be quite difficult for a grass root innovator to secure patent protection for his invention under the patent system. This is to the detriment of only the grass-root innovator but also the economy as a whole.

As demonstrated by the National Innovation Foundation and the Honey Bee Foundation there is immense potential for grass-root innovation in India. In fact the Honey Bee Foundation has an exhaustive directory of grass root innovations in India. As evidenced by the vast amount of literature published on its website there is a desperate need for a Utility Model Protection System in India.

The chief advantages of a Utility Model Protection System (aka Petty Patent System) is that it will be cheaper and easier to get protection under such a system since there will no exhaustive examination of the claimed invention. An exhaustive examination of the invention will take place only if infringement has taken place. Additionally the threshold for protection under this system will be significantly lower. Obviously even the term of protection under such a system will be significantly lower. As a sum of all these advantages the grass root innovator will be in a better position to secure protection for his Intellectual Property. For more on utility model protection system please download this excellent and exhaustive paper on the topic by Dr. Kardam, Assistant Controller of Patents, India Patent Office.

A sui generis TK legislation: From what little I’ve heard a sui generis Traditional Knowledge legislation was drafted and doing the rounds somewhere in India but never saw the light of day. There seems to be a very romanticized notion of traditional knowledge i.e. something which existed in the yesteryears which does not have to be protected. However even Traditional Knowledge needs to be constantly replenished. There is no denying that there is scope for furthering innovation and creativity even in the field of traditional knowledge. In order to replenish the existing traditional knowledge it is necessary to provide the holders of such knowledge with property rights so as to give them an incentive to innovate further. Currently under the Patents Act traditional knowledge is not patentable. One way of getting around this is to have a legislation which focuses on the protection of only traditional knowledge. Several other countries have framed sui generis legislations for protections of traditional knowledge system and these can be viewed on the website of WIPO.

The Biological Diversity Act attempts to provide some kind of incentive to communities which have held traditional knowledge of their environment. This legislation however goes about it the wrong way. It has absolutely no requirement of Prior Informed Consent i.e. the community holding the knowledge has no right to oppose commercialization and utilization of their knowledge. Instead it is the National Biological Authority which decides the terms of commercialization. To an extent this amounts to nationalization of the traditional knowledge held by these communities. It is indeed quite surprising that such a legislation was passed at a time when the rest of the economy was being liberated from the shackles of government control. Regardless to say there is definitely a requirement to empower the holders of traditional knowledge and give them a greater say in controlling the terms on which their knowledge maybe disseminated.

Hopefully the Government of India will consider an IP policy for the aam admi.

WIPO copyright treaty for blind kept on hold

There were a few anxious faces in WIPO, Geneva (and elsewhere) yesterday, as a US-Canada-EU lobby tried to block a copyright treaty proposal protecting the rights of people with disabilities to access digital material. Discussions were left hanging, though, and will continue in the next edition of the Standing Commitee on Copyright and Related Rights (SCCR), tentatively scheduled for Nov 30-Dec 4 2009. The Treaty, which can be accessed here, was introducted by the World Blind Union, and tabled by Brazil, Ecuador and Paraguay.

Jamie Love of Knowledge Ecology International was tracking the discussions live, and blogged for Huffington Post, detailing the contents of the treaty:
"The treaty seeks to allow the cross-border import and export of digital copies of books and other copyrighted works in formats that are accessible to persons who are blind, visually impaired, dyslexic or have other reading disabilities, using special devices that present text as refreshable braille, computer generated text to speech, or large type. These works, which are expensive to make, are typically created under national exceptions to copyright law that are specifically written to benefit persons with disabilities."

The impetus for such a treaty comes lies in the limited number of accessible works for such disabled persons, compared to the tomes available to "sighted" persons. This is compounded by the limited access to texts in non-English languages. The opposition from the US and others is purportedly because of internal lobbying from publishers whose agenda is to expand rights for copyright owners.

However, this debate is not particularly new, and indeed has its origins in a 1982 WIPO and UNESCO Working Group on Access by the Visually and Auditory Handicapped to Material Reproducing Works Produced by Copyright. As Jamie Love tells us in the KEI blog, "the debate in 1982 was similar in many respects to the debate today, with attention to issues such as remuneration or non-remunerative exceptions, whether or not exceptions should be avoided in favor of private negotiations with copyright owners, and how to prevent the accessible works being used by members of the general public." The parties were near identical on either side of the table. The main difference lay in the present focus on the cross-border transport of works, which was absent in 1982.

Although India does not seem to have been an active participant on this occasion, the timing of this discussion is nevertheless appropriate, for it coincides with the launch of www.readable.in - the world's largest user-generated library of books accessible by the visually-impaired. (There's a screen-grab on the left). The web-resource is a joint initiative of the Centre for Internet and Society and Inclusive Planet, whom you can read more about here. It may be an unrelated link in the sense that the digital material presently available is all out of copyright, and the website has a clear take-down policy here. But it doesn't deny the fact that this is an amazing and much-needed initiative, and promises a lot. If mainstream publishers are enterprising enough, they would actually consider sponsoring uploads. Some of you may find that a tad too fanciful.

I know I sound really old when I say this, but I still remember the days when, as college volunteers, students spent time at neighbourhood schools for the visually impaired or at university, to read out or even record (on analog tapes) entire books (fiction/reference) for students to access. I'm sure this student volunteer support system won't die out immediately in some parts of the world, but it's great to see digital technology and inclusiveness make a rare appearance on the same page.

IP management in Indian agricultural research

The public-funded agricultural research system in India is gradually trying to supplement its "soft" defence against misuse of IP (e.g., through placing assets in the public domain through disclosure) with more aggressive IP protection strategy, in keeping with evolving national and international policy. But IP management in agricultural research in the country continues to be challenged by constraints of scale, human resource, and awareness, among other things. This directly impacts the system's ability to strategically leverage its traditional advantage of being a region rich in agri-biodiversity.

These, and other issues, have been brought to light in an fascinating case study on the Intellectual Property Management Regime in the Indian National Agricultural Research Systems, authored by Dr Kalpana Sastry of the National Academy of Agricultural Research Management (NAARM). This study forms part of a compilation of four such cases on the Institutionalisation of IP Management in Agricultural Research Institutions in Developing Countries brought out by the Central Advisory Service on Intellectual Property (CAS-IP). (Dr Sastry, some of you may recall, is also the Course Director of the PG Diploma on IP and Technology Management in Agriculture, which was profiled some time ago on the blog.)

The paper (which you can read/download here) looks at four countries (India, Tanzania, Nigeria and Kenya), but for this post, I draw your attention to the issues raised in the India study, the stated purpose of which is to "understand and explore modalities to improve the effectiveness of the IP management and technology transfer guidelines in agriculture based public sector institutions in India".

The study itself focuses on the Indian Council of Agricultural Research (ICAR) system, for reasons of its being the nodal agency for agri-research in India. Since 2006, ICAR has been operating with a three-tier decentralised IP management structure, which is applicable to all the organisations that form part of the National Agricultural Research System (NARS) (see image). Through a micro-study of two institutes within this structure, the study brings out characteristics, challenges and opportunities that are present for successfully managing a potentially rich portfolio.

Two key IP management practices in ICAR emerge:

• Plant variety registration and protection has been prioritised for extant varieties of notified crops (subject to meeting conditions of notification) under the Protection of Plant Varieties and Farmers' Rights Act.
• ICAR guidelines also encourage institutes to deposit samples/resoures at the National Bureaus for Genetic resources, including Plants, Animals, Fish and Microorganisms, primarily for reasons of public interest.

Clearly, the research system is still coming to terms with utilising mainstream IPRs. This is something that will dominate discussion in the months to come with resumed activity on the Protection and Utilisation of Public Funded IP Bill, and tangible results have a while to present themselves.

Of more interest is the issues that need attention and intervention, identified through detailed questionnaires set for the institutions under scrutiny. This list is culled from the case study itself, and some of these are generic and/or well-established, but readers are welcome to highlight other distinctive issues in agri-IP-management that may be of relevance here:

• Lack of awareness, knowledge and training among scientists. One responding institute said that only *two* scientists had ever attended awareness programmes at ICAR!
  
• Speedier processes for registering extant varieties, considering that this is a policy priority for ICAR.
• Streamlining systems to test for Distinctiveness, Uniformity and Stability (DUS) for registering plant varieties, and subsequent filing procedures. At present, responsibility/accountability issues have led to duplicate filings, which eat up time and other resources.
• Building, and learning how to build, stronger IP portfolios.
• Exhaustively inventorise, audit and value IP, which is made available through a transparent information system.
• Assessing freedom to operate.
• Systematise agreements with external collaborators and sponsoring agencies.
  

There remains some cloud over fundamental questions surrounding IP protection - of how the public sector as a major holder of IP in agriculture would affect access to resources, and other key public interest matters. Again, this demonstrates the problem of lack of engagement and discussion with scientists and participants in the system, something that has been highlighted time and again by those tracking scientific research in India.

Although there is the immense caveat that this case study comes from within the ICAR system itself, it does serve as an insight into the workings of this giant elephant that is Indian agricultural research, which could come from nowhere else but from within. More than anything else, it offers an opportunity for policymakers in ICAR to "listen" to its own people, and initiate immediate reforms in its internal IP management to minimise subsequent criticism from the outside.

"Quinn" Poll for Leading Patent Blog: Please Vote

For those interested, Gene Quinn of IP Watchdog is conducting a poll of the top patent blogs.

He has listed 50 leading patent law blogs and is calling for readers to indicate their favourites. SpicyIP is grateful for making this shortlist.

Gene's survey comprises two key questions:
i) Which is your favourite blog (only one selection can be made here)
ii) Which blogs do you regularly read (multiple selections can be made here)

Voting continues till 30 June and the results are expected at the start of July.

If you think us deserving enough of your vote, would you please take a moment and click here? Thank you for your time.

"Bullet" Kurian Unleashes More Reforms To Indian Patent and Trademark Office

"Bullet" Kurian, the swift high energy Controller General of the Indian Patent and Trademark Office, has struck again. And this time with a good 5-6 policy measures aimed at streamlining the functioning of India's patent and trademark administration and making it more transparent and efficient. Some of the prominent ones are listed below:

1. Specialised Work Allocation

An oft cited problem with the Indian patent office is the fact that patent applications are often allocated arbitrarily to examiners, without regard to their specific qualifications . In other words, an examiner with a background in IT is often confronted with a biotechnology patent application.
Kurian seeks to tackle this issue through an order dated April 29, 2009 which reads in pertinent part as below:

"At present there is no uniform practice of allotment of patent applications for examination at the Patent Office..... The existing practice of attaching examiners to a particular controller is not on scientific basis, with the result that the controllers/examiners are getting patent applications outside their field of expertise for examination...."

In order to rationalise the allotment of patent applications and to further improve the quality of examination, the order goes to divide examiners and controllers into 4 subject specific groups:

i) Chemistry and Allied Sciences

ii) Biotechnology and Microbiology

iii) Mechanical and Allied Subjects

iv) Electrical, Electronic and Allied Subjects

Each group will have a group leader, who is responsible for co-ordinating the process of ensuring that applications that fall within his/her respective group is allotted to examiners within that group.

Complementing the above order are two further orders:

2. Conformity to the Indian Patent Classification (IPC)

An order dated May 20, 2009 calls for strict compliance with the International Patent Classification (IPC) in the classification and screening of Indian patent applications.

3. Transfers

Several orders transferring officials between the four branches of the Indian patent and trademark office (IPTO) have been issued. CH Unni covers this in a Mint article. These transfers are interalia meant to further the objective of the specialised work allocation agenda outlined above. Illustratively, if Chennai has an excess of biotech examiners, and Delhi a deficit, then examiners are transferred from Chennai to Delhi. All these orders are available on the Patent Office website.

4. Calling for More Professionalism by Patent and Trademark Attorneys

In a rather bold move, PH Kurian has lambasted attorneys who submit shoddy applications noting as below:

"During the past four months of my experience as CGPDTM, it has come to my notice that a majority of the patent and trade marks applications are not complying with the legal formalities. It is a matter of shame for me that the patent/trade marks agents who have passed the examination and qualified themselves to be agent are continuously making such mistakes in the applications thereby creating lot of constraints on IP administration system in sending notices to comply with simple legal formalities, whereas you as a qualified /registered agent is expected to be well aware of the legal formalities.

I personally appeal to you to be diligent while prosecuting the patent/trade mark application. Your care and caution will go a long way in making the system efficient to serve you and your client in a better fashion."

5. Identity Cards to Curb Corruption

In yet another bold move, Kurian passed an order restricting entry to the IPTO. Henceforth only authorised agents with valid ID cards (issued by the IPTO) will be permitted to enter the IPTO offices. One might hazard a guess that this move to regulate entry and exit into this office is interalia with a view to quelling corruption and other cosy relationships that have a greater propensity for taking root in an unrestricted environment.

6. Soliciting Officers on Deputation

In a very important move, Kurian is now soliciting qualified officers and academics to come on deputation to the IPTO from other government departments, public sector undertakings and even from Universities. As one will appreciate, this will add more manpower and expertise to an office that is crunched for resources. Importantly, it is a terrific opportunity for government folks and even academics to experience the workings of an institution that is growing in global importance (and efficiency) each day. For those interested in taking up these positions, apply soon.

Given past allegations of corruption and inefficiency, these measures will go a long way towards correcting some of the institutional infirmities that unfortunately crept into the workings of the Indian Patent and Trademark Office (IPTO). More importantly, one hopes that these bold measures to increase transparency and efficiency continue unabated long enough to help this office attain the best international standards. And to convert it to a govt agency that others (both in India and abroad) consider worth emulating.

Susbscription to SpicyIP Posts

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"IP" Centric Law Degree by IIT-K Threatened

As some of you may be aware, a generous bequest by US billionaire Vinod Gupta helped kickstart the Rajiv Gandhi School of Intellectual Property law (RGSOIPL), India's first specialised law school, focusing on intellectual property law (IP). This school, which is based out of IIT-Kharagpur has been operational since 2006 and has strong ties to the George Washington University law school, one of the top IP law schools from the US.

Although this law school does not only teach IP, but a string of other legal courses normally taught at the other law schools, it restricts admissions to candidates with a first degree in science. In pertinent part, the IIT-K website notes: "The School presently has one programme: Six-Semester, Three-Year Full-Time residential LL.B. Programme leading to the Degree of Bachelor of Law with specialization in Intellectual Property Rights, at par with the LL.B. Degree requirements of the Bar Council of India."

Just as this novel experiment in specialised legal education produced its first set of law graduates this year, it has been hit with a legal challenge. Express Buzz reports:

"The Supreme Court has issued notices to the Bar Council of India, Indian Institute of Technology, Kharagpur and to the Secretary, Ministry of Human Resource Development on a writ petition questioning the propriety and correctness of the Bar Council of India in giving permission to IIT, Kharagpur to start a course in LLB in Intellectual Property Rights. A Bench comprising Chief Justice K G Balakrishnan, Justice P Sathasivam and Justice Deepak Verma directed issuance of notice after briefly hearing advocate Sanjay Parekh.

The petition filed by M Chandrasekhar, an advocate of the apex court, pointed out that the eligibility for joining an LLB course is a graduation in any discipline, that is BA, B. Com, BSc etc. The petitioner pointed out that LLB is an entry-level professional course in law wherein a candidate is taught basic principles of law in a number of subjects. If any candidate desires to specialise, he can opt for LLM course in a subject of his choice like Constitutional Law and Contracts. But, for the first time, the general character of the LLB course is sought to be changed by IIT Kharagpur by starting a specialised course in Intellectual Property Rights and that too restricting admission only to BE, B Tech, MBBS, M Pharma, MSc, MBA with Science/Engineering background, the petitioner averred."

Towards Specialised Law Schools?

Given the sheer dearth of skilled patent lawyers in this country, I am very partial to the idea of a specialised IP law school. Particularly since the premier legal institutes in the form of the National law schools do not focus on science at all, a discipline that is absolutely essential for churning out decent patent lawyers. The National Law University (NLU), Jodhpur does offer a B.Sc. LLB, but I am not entirely sure if the level of the science taught as part of the BSc is adequate. The head of the IP Division of a big Indian pharma company once confided to me that these candidates were of no use to them, as the science taught was fairly elementary.

NUJS offers a very curious BA/BSC LLB degree, but there is no science taught at all. Dr Madhav Menon, the founding director of this law school may have intended for this law school to provide a science option as well, but this never really kicked off. The nomenclature seems more of a historic relic now.

Anyway, back to the dispute at hand and legal challenge mounted against the grant of approval to RGSOIPL's 3 year LLB course. I don't necessarily see a problem with a specialised "IP" focus in an entry level LLB course, provided other foundational legal courses such as contracts, torts, criminal law, constitutional law etc are also taught. I'll try and bring you a more detailed note on the specific legal issues once I lay my hands on the petition. In the meantime, let me try and highlight some of the broader issues raised by this recent controversy:

i) To what extent do law schools comply with the Bar Council of India (BCI) norms?

ii) Should the BCI (in its current form) be permitted to regulate legal education at all? Does it have the institutional competence to do so?

Compliance With Bar Council Rules?

To answer the first question, a couple of months back, I checked the Bar Council of India (BCI) requirements applicable to the five year integrated law degrees (BA LLB, BSc LLB etc) and found that none of the law schools were likely to comply with the fairly onerous requirements spelt out by the BCI. In particular, given that these schools accord rather step motherly treatment to the BA component (having a mere 5-6 courses of history, economics and political science), they are likely to fall foul of the BCI mandate that the BA or BSc syllabus "has to be comparable to the syllabus prescribed by leading Universities in India in three year bachelor degree program in BA, B.Sc, B.Com, BBA etc taking into account the standard prescribed by the UGC/AICTE and any other respective authority for any stream of education".

The BCI norms appear to require a good 14-20 courses to cover the "BA" component--which is way beyond the current 5-6 course offerings in this regard by the law schools.

Institutional Competence of the BCI?

As for the second question, most academics abhor the thought of having legal education in India solely dictated by the BCI, most of whose decision makers are practitioners with no real insights into legal education policy. And this sentiment has been echoed by the National Knowledge Commission as well, which recommended that course curriculum etc be designed by a new standing committee on legal education under a proposed Independent Regulatory Authority for Higher Education.

Arun's paper titled "The Waning of a Magnificent Obsession: An Abridged Story of the History of Legal Educational Reform in India" (which I referred to in an earlier post on Law and Other Things) has some fascinating insights into this issue. He discusses the Gajendragadkar Committee Report of 1964 in this regard and notes:

"The Committee had noted the distinction made under the Advocates Act, 1961 according to which, theoretical or scientific legal education would be in charge of the Faculties of Law working under the different Universities in India and the practical or technical legal education would be in charge of the State Bar Councils. To remedy the situation, the Committee had recommended that the Bar Councils and the Universities should act in concert and agree upon evolving suitable criteria for both theoretical and practical forms of education. However, the Committee felt that a more substantive and long term solution to the problem would be the creation of a statutory body called the Council of Legal Education which could be given supervisory control over all aspects – theoretical, practical and incidental – of legal education in the country. The Gajendragadkar Committee was of the opinion that the Council should be constituted on a high-power basis and be composed of judges, law teachers, members of the Bar, and representatives of industry or other fields which would have an interest in law.

The Committee did not elaborate on the details of the constitution of the Council or on its powers, but felt that the constitution of such a Council by Parliament would facilitate the progress of legal education along healthy lines. Similar suggestions have, over the years, been made by several persons who have had some experience with policy making in the field of legal education, and recent fiascos like the V.Sudeer case only serve to heighten the urgency of the requirement of such a unified authority."