SpicyIP Tidbits: GI update

It's been a while since we've updated you on GI-related activities, and there have been several developments over the past few weeks, which I have tried to put together in a enhanced-tidbit-type post. Future GI updates will hopefully be less lengthy, and more timely!

1. GI for Banarasi sarees

Last year, there were reports that UNCTAD intended to support a GI application process for traditional Banarasi silk sarees, which SpicyIP had picked up here. Latest news here and here suggest that the process is nearing completion, with the Banarasi Bunkar Samiti - a collaborative of traditional handloom weavers - along with eight other organisations awaiting clearance for the GI tag for 'Banaras Brocades and Sarees'. The traditional woven silk from eastern Uttar Pradesh faces stiff competition from manufacturers in Bhagalpur (Bihar), Surat and Bangalore, as well as from China.

2. Basmati-APEDA politics: MP vs the rest

The Madhya Pradesh government appears to be miffed at having been ignored by the Agriculture and Processed Food Products Export Development Authority (APEDA) for the registration and protection of IPR related to Basmati rice, including GIs, according to this report. APEDA has apparently only considered Basmati rice grown in Haryana, Punjab and Uttar Pradesh for this purpose. MP's Basmati rice growers are particularly concerned over not being able to export the rice if GI becomes mandatory in the times to come. Things are in cold storage for the moment, but if reports are to be believed, the MP government will resume lobbying once the election-mania subsides.

3. Legal opposition to GIs from J&K?

Pakistan's Daily Times reports that the High Commission of Pakistan in New Delhi has decided to go litigious and block India's attempts to obtain GIs for products originating in Jammu and Kashmir. The concern is that the rights to these products rests in both countries - in Indian-, as well as Pakistan-occupied Kashmir, and no state can claim exclusive ownership. The report adds that "the Rawalpindi Chamber of Commerce and Industry and AJ&K Chamber of Commerce and Industry has authorised the Pakistan High Commission, New Delhi, to file appeals against the registration of Pashmina, Kanni Shawl and Kashmiri Sozan Kari crafts in Indian legal forum." With a USD 20,000 grant in hand from its nation's Export Development Fund, the Pakistan High Commission appears to be gearing up to take it to the mattresses. Get ready for the ringside seat.

4. Post-GI stress for Kullu shawls

In a study that portends a great deal for a GI-hungry nation like India, we are informed that three years since Kullu shawls were granted a GI tag in 2006, benefits are yet to permeate to the original weavers. According to this study, and this report, awareness about the Kullu shawl GI remains abysmal, and fake products remain as prolific as ever, with no perceptible effects on business. This is primarily due to implementation issues, which are detailed as follows:

"The Kullu Shawls Weavers Association (KSWA) was given the responsibility of registering Kullu shawl as a geographical indicator in 2006. Ever since, there has been slow progress in its implementation. The association, which plays a key part in the implementation of the GI, is busy identifying the number of local household and commercial weavers whose shawls could be given a GI mark to protect them from imitations. This process has been slow and taken close to two years mainly because the weaving industry in the valley is highly disorganised. ...The logo, which is a representative of Kullu shawls as a GI, is yet to be finalised and this has been largely due to the miscommunication between the Department of Science and Technology (DST), the KSWA and the Wool Board."

This is an excellent eye-opener for manufacturers and representative groups and whoever else is lobbying for GIs for various products across India. A significant quantum of GIs are awarded to products manufactured by cottage industries, which are intrinsically challenging to monitor. Therefore, any application for such products/industry should consider implementation issues , which among others, includes, (i) consolidating the industry for the purposes of manufacturing under a common tag/brand; (ii) maintaining the tag/brand reputation; and (iii) in some cases even sustaining the industry qua traditional heritage.

5. God's own GI redux

As a tailpiece, and for those among you who haven't already, I invite you to read Dwijen Rangnekar's delightfully written op-ed that appeared in Economic Times recently. Dr Rangnekar, an Assistant Prof. of Law at Warwick University has a particular interest in GIs, and here he analyses the application for the Tirupati laddu (which, along with other items of religious heritage where the sacred and the profane have commingled, has stoked some embers). The article puts several things in perspective, not least the nearly 200-year old history of religious institutions attempting to "invoke the ethic of money-making". Besides the obvious issue of the application potentially "hurting religious sensibilities", and therefore invalidable under law, he also highlights other issues including of the applicant, i.e., Tirumala Tirupati Devasthanam (TTD), being a single entity, and not an 'association of producers' as required under GI law, which may prove problematic in times to come. An engaging and thought-provoking read!

Ramkumar's Lawyer Threatens "Defamation" Action

Pursuant to our last post on the Ramkumar "Dual Sim" patent litigation, I received a very strongly worded letter threatening legal action against me from Ferdinand, a lawyer who represents Ramkumar.

As many of you may be aware by now, Ramkumar's efforts to unduly squeeze moneys out of cell phone importers by misrepresenting the scope of his claims has been denounced extensively on this blog. And naturally this must have irked Ferdinand considerably.

Unfortunately Ferdinand has picked the wrong target. If he thinks that he can quell free speech through aggressive threats of initiating criminal action, he is sadly mistaken. Let it be known to him that our efforts to keep you updated on this case will continue unabated.

Ferdinand states that the comments made in my post were defamatory and has threatened to take action against me, including criminal action. I am extracting his key allegations and responding to them here:

1. Ferdinand questions my rather straightforward interpretation of his client's patent to show that it is extremely limited in scope.

He states: "Your other comments on the Patent and the scope of the same are all juvenile."

My Response: I have to agree with Mr Ferdinand that my interpretation of the patent is indeed "juvenile". For, even a mere "juvenile" will appreciate that the scope of the patent is limited and that both he and his client have taken the court, customs authorities and several innocent cell phone importers for a ride by attempting to monopolise what is legitimately in the public domain.

So let us examine the claim in question. Claim 1 of Ramkumar's patent states:

"A mobile phone is to be incorporated with a provision for a plurality of current SIM cards and/or modified SIM Cards, a plurality of current SIM sockets and/or modified SIM sockets for accepting a plurality of current SIM Cards and/or modified SIM Cards, a plurality of headphone/earphone jacks for accepting a plurality of headphone/earphone plugs and/or a plurality of Bluetooth devices in order to operate simultaneously the said mobile phones in said different communication networks is presented, and a plurality of incoming and/or outgoing calls can be communicated simultaneously with the said respective SIM Cards."

Please note that the "commas" between the various sections of the claim above denote the word "AND". Therefore, it is clear that the patent does not cover all "Dual SIM phones" (as Dual SIM technology itself has been around and is part of the prior art), but only those Dual SIM phones that also provide for more than one headphone/earphone jack, so that two people can be on two calls at the same time via the same handset. However, Ramkumar has claimed that any cell phone that uses dual SIM technology infringes his patent. In other words, he is dishonestly attempting to claim rights over technology that is part of the prior art and clearly outside the scope of his patent.

I now link to the patent specification as granted so that readers can take a look at this patent claim and judge for themselves. Even "juveniles" will appreciate the dishonest nature of Ramkumar's claim that his patent extends to all dual SIM phones. If Roche has been fined Rs 5 lakhs for alleged misrepresentations to the court, one wonders what kind of costs Ramkumar will be finally subjected to when the courts call his bluff!

2. Ferdinand is agitated about insinuations that his firm was involved in collecting moneys from importers.

He begins by quoting from our post which states:

"Apparently, Ramkumar, his partners and his lawyers collected more than ten crores from various importers (particularly the smaller players) threatening them with litigation, if they did not pay up. They also pressurised customs authorities to block all imports of dual SIM phones, barring the phones of those importers that had paid up and obtained "clearance" letters from them"

He then alleges:

"The above passage authored by you is baseless and false. You have stated in no uncertain terms as if Ramkumar's lawyers, viz. myself and my firm, have collected money from various importers, threatening them with litigation. This is an absolutely false statement, which we do believe you know to be false, but still proceeded to publish the same. Neither have I nor anyone from my firm, have ever been in touch with any importer, big or small, let alone threaten them with litigation. Neither have I nor anyone from my firm collected any money whatsoever from any importer. Since you have published such a statement, which you obviously know would bring down the reputation of my firm, could you produce the documents that you have to back up the false allegation you have made?"

My Response: Could I produce the document? Of course I can!

At the end of the post, I refer to an article in a Tamil daily Dinakaran, which when translated to English suggested as below:

"Vikas systems, in which both Ramkumar and Diwakaran (the deceased) were partners, was collecting payments from the importers of dual SIM phones.

It appears that of the moneys collected, Ramkumar and his lawyer, Mr.Ferdinand would get 60%, and Vikas system would get 40%."

Ferdinand was clearly aware of our referral to the Dinakaran piece, as made evident from this statement below:

"For the record let me state very categorically that the report that appeared in Dinakaran‚ is false and I have written to them about the same."

Well, there you have it, Mr Ferdinand. Our basis for the report was the Dinakaran piece. And the right recourse for you would be to write to Dinakaran and convince them of your bonafides in this affair and get them to issue a retraction or clarification. We promise to carry that retraction, if and when it appears. Also, I am more than happy to publish (on this blog) any clarification from your end on the veracity or otherwise of the Dinakaran piece.

Further, given that the cops are now investigating this murky affair, we're all hoping that there will be more clarity on this issue in the months to come. In the interim, I've deleted the initial statement at the start of the blog that you've objected to, but retained the reference to the Dinakaran piece at the end, and I see no reason to remove that.

3. Ferdinand lashes out at the end, questioning my motives in exposing Ramkumar's extortionary tactics:

I quote from his letter: "I understand that you were earlier working for the firm which is currently the Counsel on record for Samsung as well as Micromax and is thus advising them. It also appears from your blog that you are obliged to the firm and its Partners and are in fact still very close to them. I am certain that I do not need the kind of imagination you have to find out who your friends‚ are and what your ulterior motives are. Your posts and your comments on the Judge and the Madras High Court Order are now very much understandable."

My Response: Ferdinand is understandably irked by our exposing of the extortionary tactics deployed by his client to monopolise public domain material and extract money out of cell phone importers. Naturally, when you cannot argue on the substance, you resort to ad hominem attacks. And that is precisely what Ferdinand attempts to do here. He alleges that I am motivated out of a desire to help a law firm that I used to work with before my transition to academia.

Ferdinand forgets that I have, on this very blog, critiqued decisions that went in favour of this very same law firm. A noteable example is the BMS vs Hetero case, where this law firm represented BMS and obtained an injunction from the court, where the court "expected" the Drug Controller to not grant approval. I had then critiqued this purported "drug linkage" sought to be sanctioned by the Court, arguing that it was against the law.

And so it is with Ferdinand's case. He and his client have taken advantage of poorly drafted customs regulations and the relative lack of competence of customs officials to appreciate patent nuances. And I have come out strongly against customs officials deciding this matter without any aid from the courts. But there is a fundamental difference between earlier "linkage" cases that we had spoken out against and Ferdinand's case. In the other cases, the merits (as to whether or not the patent was valid and whether it covered the allegedly infringing product) was arguable.

What was objectionable was the purported "linkage"--i.e. an attempt to enforce a patent right through an authority that was both incompetent and not statutorily authorised to look into such matters. In Ramkumar's case, the matter on merits itself is highly suspect. And it is only a matter of time before courts and other authorities call them on this bluff.

The Impact of Ramkumar's Fraudulent Claims on Small Cell Phone Importers:

One aspect that we've ignored in this whole controversy is the impact that Ramkumar's fraudulent strategy has had on the small scale cell phone importers. Apparently a number of them opted to just pay up and not fight. It will be a travesty of justice if these small scale importers do not get the moneys that they paid up, when Ramkumar is finally called on his bluff.

In future posts, I will try and explore the legalities of obtaining such moneys back. Just so that Ferdinand is prevented from spinning this into a Ramkumar vs MNC (Samsung) saga, I attach some documents relating to a small time importer, Hansum India that was also hit by Ramkumar's false claims. But this importer decided to fight back and refused to pay up. Bravo!

To conclude, let me once again repeat the message that I had outlined right at the start of this post:

If Ferdinand thinks he can quell free speech through aggressive threats of initiating criminal action, he is sadly mistaken. This blog has always taken an "issue" based approach, critiqued ongoing IP cases and exposed flaws in the law wherever they existed. We value our freedom to continue with such reporting and we think it serves a public interest. Consequently we refuse to be intimidated and will staunchly defend our rights in this regard.

SpicyIP Tidbits: The 'IP' in the IPL!

Along with everyone else cashing in on the success of the IPL, IPR firms do not seem far behind. With the objective “to protect IP, make a profit and increase brand valuation”, teams like the Deccan Chargers have opted to create an IP portfolio, including trademarks for team logos, copyright over player uniforms and website layouts. 

The Mint reports that the exponential popularity of the IPL has led team owners to recognise the inherent brand value attached and proactively protect the same. Aside from The Deccan Chargers, the Kolkata Knight Riders seem to have also applied to the Controller General of Patents, Designs and Trademarks for protection of their mark in the fields of financial services, insurance, beauty care products (amongst others) and the Mumbai Indians have filed trademark applications for cosmetics, musical instruments and photographic equipment etc.

Apart from the more traditional protection, with the aggressive promotion in the real world has been coupled with a more defensive approach on the internet. The teams have opted to drive away cyber squatters by pre-empting unauthorized linking of team websites to other sites as well as pre-empting squatters from buying the team domain names.

With matches becoming more exciting, these concerns are definitely well founded. It certainly looks like it has become the Intellectual Property League!

Generics now face trouble in Africa

Indian generic drugs are facing a lot of trouble world over. Besides the many 'in-transit' EU seizures, and the high percentage of generic pharmaceuticals seizures by the US customs (which will be covered in a subsequent post), African countries are now looking towards new 'anti-counterfeit' legislation which are believed to have been due to the persuasion of European based multinational pharmaceutical companies. And as can be guessed, suggestions of persuasion by MNCs imply a maximalist IPR enforcement attitude. One of the first ones to have come into existence is the Anti-Counterfeit Act, passed by Kenya in Decemeber 2008. The problematic part of the legislation is that it recognises intellectual property rights of pharmaceutical products registered in any part of the world and not just in the country of export or import. This means that the intellectual property rights of a pharmaceutical product which is patented in any other country can be enforced in a sale of the generic version of that drug by India to Kenya.

Currently this legislation has been enacted by Kenya, however Indian officials fear that this will also influence other African countries of export such as Uganda, Peru and Ghana. The legislation claims that copies or generic versions of all products having protection in Kenya or anywhere else will be considered 'counterfeit'. The aim of this legislation is in line with developed countries efforts at the WIPO to implement a regime which would recognise a patent registered in one country, world-wide. India is also likely to ask Kenya to review this legislation in order to protect its exports. The Financial Express also points out the timing at which this is coming. By the year 2012, the global pharmaceutical market will see approximately $123 billion worth of products lose their patents. Given that the expiry time line for drug patents differs across countries, it’s really problematic that the Kenyan legislation protects the intellectual property rights of drugs that are registered even outside Kenya. This gives good reason to believe that the Kenyan legislation has been influenced by vested interests.

The legislation also lacks a differentiation between the definitions of spurious goods and counterfeit goods. While one implies a sub-standard product - a public health issue, and the other merely refers to alleged IPR violations and do not necessarily compromise on quality of the product and this is not reflected in the legislation. According to the East African Community Customs Union, this definition does not distinguish between mechanical details of intellectual property rights (IPRs), such as trademarks, copyright, patents and data protection from quality control issues related to medicines, which basically revolve around formulation. The Kenyan definition of what a counterfeit medicine is, as contained in the law, also differs from that of the World health Organisation (WHO), they say.

As per the Economic Times, India along with Brazil will be lodging a complaint with the WTO alleging that that the EU based MNCs are persuading African nations to enact these anti-counterfeit laws. D.G Shah, secretary-general of the Indian Pharmaceutical Alliance (IPA) has said that these multinations pharmaceuticals, not being able to compete with the cheaper and efficacious medicines produced by India, are now resorting to underhanded tactics.
Kenya’s Anti-Counterfeit Act will sound the death knell of India’s pharmaceutical exports to African countries as others may follow suit,” he said. Altogether, African countries account for 14 per cent of India’s $8-billion pharmaceutical exports. Aside from the growth in exports of Indian drugs to Africa which will be affected by this legislation, Africa's access to drugs at affordable prices will also be affected.

Recently, on 24th April, India's Commerce Secretary Mr. G.K.Pillai called for an extraordinary meeting of Ambassadors of all African countries and addressed them regarding this new development. Centad (Centre for Trade and Development), has made available a brief summary of Mr. Pillai's speech. Mr. Pillai drew attention to the maximalist approach to enforcing IPRs that multinational pharmaceuticals backed by developed countries such as USA were taking. Their efforts in subtly circumventing the minimum standards clause in TRIPS by pushing for a more TRIPS-plus regime in regional agreements were also noted. “Having failed at the WIPO, they are attempting to succeed through the backdoor by strategically detaining our drugs at ports and convincing African countries to bring in such legislations,” Mr Pillai said. Noting the seriousness of the diseases which the countries needed to fight, he laid down the potential scenario where only branded and patent-protected medicines were allowed and generics were not, thus creating an oligopoly for the MNCs involved and raising costs by a huge margin for the affected.

At the meeting, he also brought up the issue of a conflict with the Doha declaration of 2001. According to this, members may grant compulsory licenses for exporting medicines to countries that lack manufacturing facilities. He emphasized that this provision would be rendered meaningless if African nations enacted laws that restricted legitimate trade in generic medicines. The Secretary also pointed out that the Doha Declaration stated that the TRIPS Agreement can and should be interpreted and implemented in a manner supportive of WTO members right to protect public health and, in particular, to promote access to medicines for all.

William New on WIPO Nominees

William New, Editor in Chief of IPWatch, the most authentic and reputed source for any news/ analysis of international IP developments has a great piece on prospective names for top level WIPO posts. For those of you interested, IPWatch offers free subcription for readers from developing countries.

In a previous post, we announced the filling in of one such post by NN Prasad (who was recently appointed as the Chef De Cabinet to the WIPO DG, Dr Francis Gurry). Hal Wegner's email list also has some good updates on the prospects of Jim Pooley as one of the potential Deputy Director Generals.

WIPO Buzzing With Possible Names For Top Cabinet Posts
By William New

Behind the day-to-day policy and technical work at the World Intellectual Property Organization, member governments’ lobbying of new Director General Francis Gurry to obtain top positions for national officials at WIPO has been intensive in recent weeks and is near conclusion, according to sources. Among the pack of possible names is a recent former director of the US Patent and Trademark Office, according to sources.

[Editor's update: NN Prasad, Joint Secretary at India's Department of Industrial Policy and Promotion, Ministry of Commerce, has been chosen as the Chef de Cabinet (chief of staff) to the WIPO director general, according to Indian sources. This was first reported in the SpicyIP blog.]

Any government may put forward a name, and upwards of nearly 20 candidates’ names are said to have been in consideration for four posts of deputy director general - who are second only to Gurry - or three assistant director general spots. Positions are usually for six years, though there is a precedent for splitting them into two three-year terms in order to resolve political conflicts.

This time, the full terms for DDGs and ADGs may only be 5 years, a source said, as Gurry will already be one year into his six-year appointment when they come on board due to unusual circumstances at WIPO last year.

There are four deputy director general positions to be filled. Under the pre-existing WIPO structure these included: patents, Arbitration and Mediation Centre, and global IP issues (left open by Gurry, of Australia), copyright and enforcement (Michael Keplinger, United States), administrative matters (Philippe Petit of France, who is completing his term despite illness), and economic development (Narendra Sabharwal of India).

It was noted the last time, in 2006, that three out of four of the DDG positions came from a single regional group - Group B of developed countries (Australia, France, United States). There were some calls for better representation of the membership (IPW, WIPO, 1 June 2006). It should be noted that WIPO also has not yet named a chief economist or top official for global issues.

Gurry and Petit had been recommended by previous Director General Kamil Idris, who left one year early in 2008 after a lack of confidence among members arising from doubts about his employment record. Keplinger served three years after replacing another American, Rita Hayes, in 2006. Sabharwal completed the second half of the term started by Geoffrey Yu of Singapore, as pre-arranged.

The assistant directors general (ADGs) completing their terms this year are from China (Wang Binying), Nigeria (Geoffrey Onyeama), and Uruguay (Ernesto Rubio). All three appear to be seeking to continue or elevate their positions in WIPO, according to sources.

Rubio has served two terms. Wang Binying was given a newly created position in 2006, giving China its highest post in WIPO since joining in 1980. Onyeama was named in 2005 to fill a post vacated by Tanzanian Khamis Suedi, who resigned after being investigated for financial concerns related to an earlier renovation of a WIPO office building.

Gurry, who took office last October, is expected any day now to send his recommendations to the 83-member Coordination Committee, the member state executive body. The committee will then meet in June to decide on his recommendations and pass them on to the September assemblies for final approval of the full 184 members. The new officials would take office by the end of the year.

Gurry reportedly has been choosing from among about 17 names of senior officials, several already employed within WIPO, whose names have been put forward by their governments. There is a loose emphasis on geographic representation in the selection process.

A Crowded Stage

Countries of origin of possible candidates may include, according to sources: Argentina, Barbados, Cameroon, China, Croatia, Germany, Ghana, Japan, Macedonia, Nigeria, Philippines, Russia, United States, and Uruguay.

Note that many of these names could not be confirmed by press time, and this list may be non-exhaustive.

The United States is said to be considering putting forward Q. Todd Dickinson as the US candidate for deputy director general. He was formerly undersecretary of Commerce and director of the US Patent and Trademark Office in President Clinton’s second term.

The US was said to have been considering more than one possible candidate, such as Matthew Bryan, director of the Patent Cooperation Treaty (PCT) legal division sector of the PCT and Patents, Arbitration and Mediation Centre, and Global Intellectual Property Issues.

Other US names said to be in consideration include: Richard Wilder, associate general counsel for IP policy at Microsoft, a former director of the WIPO Global IP Issues Division; Jon Santamauro, an attorney at Sidley Austin who was the lead US delegate on IP issues in Geneva; and Jim Pooley, a partner at Morrison and Foerster law firm who is also said to be a candidate for USPTO director.

[Editor's update: US industry sources say Pooley has been selected for backing by the US government for the DDG patent role, which signals he was not chosen for the USPTO director position. This has yet to be confirmed with official sources.]

From the Latin American and Caribbean region, a potential nominee is Barbados Ambassador Trevor Clarke, chair of the WIPO Committee on Development and Intellectual Property. Ernesto Rubio, head of trademarks at WIPO, is another possible candidate from the Latin America and the Caribbean region, sources said. A third potential Latin American candidate is Marcelo di Pietro Peralta of Argentina, who is a senior advisor in the Office of the Director General at WIPO.

From Africa, there at least three, sources said, all from within WIPO: Onyeama of Nigeria, a current ADG; Edward Kwakwa of Ghana, who is WIPO general counsel; and Herman Ntchatcho of Cameroon, senior director of the technical assistance and capacity building bureau for Africa.

The names appear to include a few who competed with Gurry in last year’s election for director general. According to a source this may include Yoshiyuki Takagi of Japan, executive director of the WIPO Global IP Infrastructure Department and Boris Simonov of Russia, director general of the Federal Service for Intellectual Property, Patents and Trademarks (Rospatent).

Gurry’s closest competitor in last year’s election, Jose Graça Aranha of Brazil (who lost by one vote), has moved out of the WIPO headquarters in Geneva to head the WIPO Latin America office based in Rio de Janeiro.

Joining Japan and the United States from the non-geographic Group B of developed countries is Germany, which has put forward former WIPO official Johannes Wichard.

From Asia, the Philippines has put forward a candidate for deputy director general, Adrian Cristobal, director general of the WIPO office in the Philippines with the rank of undersecretary. Indonesia was considering a potential candidate but has decided against it, sources said.

China, its own regional group at WIPO, may be seeking to extend Wang Binying, a source said.

WIPO also has regional groups representing central and eastern Europe. The Eastern European group is headed by Russia. Two countries from the Central European and Baltic States group are said to be putting forth candidates: Georgi Avramchev, the Ambassador of Macedonia to the United Nations and World Trade Organization, and Zeljko Topić, director of the IP office of Croatia.

The central European group sees itself as more western European-leaning in IP and is trying to move faster than some of its eastern neighbours to adopt European-style IP policies, Avramchev told Intellectual Property Watch. Currently, the group has only one representative in senior WIPO management, Michel Svantner of the Slovak Republic, according to a regional source. Bojan Pretnar of Slovenia, who was a candidate in the WIPO director general election last year, was expected to retire this year.

The 17-member central European group consists of: Albania, Bosnia-Herzegovina, Bulgaria, Croatia, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Macedonia, Moldova, Montenegro, Poland, Romania, Serbia, Slovak Republic and Slovenia.

Summary of existing officials completing terms:

Philippe Petit (DDG) - general affairs and administration sector
Francis Gurry (DDG) - Patent Cooperation Treaty, arbitration and mediation centre and global intellectual property issues
Narendra Sabharwal (DDG) - economic development sector
Michael Keplinger (DDG) - copyright and related rights

Ernesto Rubio (ADG) - sector of trademarks, industrial designs and geographical indications
Geoffrey Onyeama (ADG) - coordination office for external relations and industry relations
Wang Binying (ADG) - office of administrative support services, security matters and general assembly affairs.

Patent Database Petition: Techgoss Articles

Thanks to all of you, we now have about 230 signatures on our petition requesting the publishing of more patent information. For those of you that still haven't signed, we still have another 2 days left before we submit this petition.

I also want to thank techgoss.com for highlighting this petition on their blog in two punchy pieces, authored by Bala Shah. I enclose an extract below:

"The Indian Patent Office, like its counterparts in the world, has been set up to serve the public. Essentially, this involves in striving for an honest balance between the clever people/business who invent new ideas/machines to make our lives better and the general public (like you and me) which pays to use these goods and services.

That is the theory. In reality, every Indian Government is hampered by lack of funds and sometimes thuggish interference by its political masters.

One of India’s most credible and popular legal blogs SpicyIP is actively campaigning to ‘engage’ the Indian Patent Office to serve the best interests of the Indian public. One of the elements of their petition is promote open source. Any such public activism for the larger good of the masses should be encouraged and supported in every way."

We couldn't have put it better. Thank you very much for that wonderful encapsulation of what we are trying to achieve, Bala. Like you, we remain hopeful that in some years, the Indian patent office will earn the distinction of publishing the most amount of patent information anywhere in the world.

Ramkumar "Dual Sim" Case: Micromax Obtains a Declaratory Judgment

Close on the heels of what might turn out to be India's first "patent" murder, SpicyIP just learnt that Micromax has obtained an interim declaratory order against Ramkumar in a high profile patent infringement matter.

By way of background, Micromax, a dual SIM cell phone importer filed a declaratory suit for non infringement before a court in Gurgaon (a satellite town close to New Delhi) asking that the court declare that Micromax's imports of dual SIM phones do not infringe Ramkumar's patent, since they are outside the scope of the claims in his patent.

I will bring you more details once I have a copy of this judgment. The interim court order apparently declares that Micromax does not infringe Ramkumar's patent.

Recall our earlier post, where we assessed the patent and opined as below:

"....the patent does not cover all "Dual SIM phones" (as Dual SIM technology itself has been around and is part of the prior art), but only those Dual SIM phones that also provide for more than one headphone/earphone jack, so that two people can be on two calls at the same time via the same handset. However, most of the goods seized by customs (consisting of both Samsung's products and a number of other imports belonging to several Indian importers) appear to be generic Dual SIM phones with just one headphone/earphone jack. In other words, the patentee is attempting to claim rights over technology that is part of the prior art and clearly outside the scope of his patent."

This ruling by the Gurgaon court will certainly impact other ongoing litigations, most noteably the Madras High Court proceedings.

Given Ramkumar's extortionary tactics and blatant mispresentation of the scope of his claims, one wonders what consequences are likely to befall him after a court calls his bluff and finds against him. Will he have to return all these monies collected? It would appear that a good legal arugment can be made that he ought to return all these monies wrongly collected.

On another note, we are given to believe that hearings between the various parties involved in this saga have been going on before customs authorities in the various metros, including Chennai, Mumbai and Delhi. I'm not sure if any of these authorities have issued any written decisions in this regard and would be happy to hear from any of our readers in the know. Apparently, the Chennai customs authorities appear to now suspect Ramkumar's case, as they are no longer blocking any dual SIM cell phone imports.

Further, on a related note, we are given to understand that the Samsung writ petition challenging the constitiutonality of the customs rules had not been refiled in the Delhi High Court. Now that Samsung appears to be getting a favourable response from the customs authorities, they may be hesitant in taking on such authorities in a writ petition.

Lastly, as we continue to explore the legalities of this case, the "murky" murder side of this case continues to be investigated. A friend of mine sent me a rough gist of a news item that appeared in a Tamil daily, Dinakaran (caveat: the translation and encapsulation of the gist may not be entirely accurate):

"Vikas systems, in which both Ramkumar and Diwakaran (the deceased) were partners, was collecting payments from the importers of dual SIM phones.

It appears that of the moneys collected, Ramkumar and his lawyer, Mr.Ferdinand would get 60%, and Vikas system would get 40%.

After Ramkumar and his lawyer had procured the Madras High Court order, they did not need the help of Vikas systems or Diwakaran anymore. And therefore refused to share the 40% with him. This might have been the basis of a dispute between the parties."

NN Prasad appointed as Chief of Staff to WIPO DG

In a momentous development for India, NN Prasad, Joint Secretary at the DIPP (Department of Industrial Policy and Promotion, Ministry of Commerce) has been selected as the Chef De Cabinet to the Director General of WIPO, Dr Francis Gurry. This is a very high profile appointment, as the post of Chef De Cabinet is akin to the Principal Secretary to the Prime Minister of India.

As many of you may be aware, NN Prasad has been instrumental in changing the face of Indian IP administration. And more importantly, in increasing the influence that India has on the international IP arena. Under his stewardship, India has carved out a nice for itself as a balancer of sorts at international negotiations involving the developed and the developing world. Illustratively, India hosted a development agenda meeting in 2006, where Prasad played a key role in getting the two sides to agree on common themes. Naturally, this is all very close to the middle path approach that this blog has been advocating for a while now.

Prasad’s legacy at the DIPP has been nothing short of exemplary. He was one of the first bureaucrats to take an active interest in the administration of the Indian patent office. He openly supported principles of public participation and transparency and was again one of the first government servants to hold public consultations on the draft Patent Manual. We had blogged about one such event in Kolkata.

Prasad has defended the interests of India and of developing countries as a whole at several international fora. Illustratively, he conveyed his deep displeasure at the recent inclusion of India in the coveted "priority watch list" by the US.

Also, see here for a recent update of the generic drug seizures at European ports, where Prasad has indicated an imminent TRIPS complaint by India. And here, for his passionate statements about the need to protect traditional knowledge through an international framework.

It's no wonder then that Prasad was named as one of the fifty most influential IP thoughtleaders by MIP.

With this plum posting at WIPO, India is likely to become even more influential on the global IP stage. Particularly since there are already 3 other Indians with high level postings at WIPO:

1. Narendra Sabharwal, Deputy Director General,
2. Pusphpendra Rai, IP and Economic Development Division
3. Guriqbal Singh Jaiyya, Director, SME Division

We wish Mr Prasad the very best of luck and are certain that he will make a significant contribution to the current course of global IP. Further, for those of us that remain optimistic about the Development Agenda, the appointment of this brilliant IAS officer from India lends much support to the cause.

On a related note, a "development agenda" book under the stewardship of Jeremy DeBeer, a leading Canadian IP academic, has just been published. This book deals with concrete strategies to take the development agenda forward. I have a chapter with an Italian economist ,where we've categorised India and several other countries as "technologically proficient developing countries" (TPDCs). Our core thesis in this paper is that supporters of the Development Agenda need to explicitly recognise and leverage this TPDC distinction to make the agenda much more effective.

Introducing IndianIPR.com: The Most Affordable IP Database

I chanced upon an IP Database, "IndianIPR.com" and wrote to its founder, Manpreet Singh Sood to find out more.

Upon being given access, I browsed it and found it to be an excellent resource for those of us looking for easy access to tailored India IP Information.

In particular, it contains:

i) Reported IP judgments
ii) All acts of Parliament, rules, forms, circulars and notifications pertaining to Indian IP.

Importantly, the search engine is efficient and comprehensive and throws up results very swiftly. The database is also updated regularly, and the Roche vs Cipla appellate decision found mention immediately after the decision was posted on the Delhi High Court website.

For those interested in accessing its offerings, please click here.

Costs:

IndianIPR.com is a paid site and the annual fee for subscription is Rs 1500. However, for students, NGO’s and students and other non-profits, it is only Rs 750, making it one of the most affordable legal databases anywhere in the world.

Apart from its online database offering, IndianIPR.com also sells CD's containing IP judgments. These CD's are priced at Rs 6000 and are annually updated at a cost of Rs 2000.

Demo Database:

For those of you who wish to try this resource out before subscribing to it, a demo database is provided. Please read the following instructions for accessing the demo database.

Please note that since this is a demo database, it hosts only a few judgments.

Happy browsing!

WHERE DO WE GO? CHENNAI LIVE 104.8 FM ASKS THE MADRAS HIGH COURT

The name of the case is:

Indian Performing Rights Society Ltd. & Ors. v. Branch Manager, Muthoot Finance Private Limited,

Chennai & Ors, [2009 INDLAW MAD 697].

 This case was filed before the Madras High Court by the Plaintiff Copyright Society against the Respondent Radio Channel, the former seeking to restrain the Respondent and it’s agents from communicating to the public, any musical and literary works of the members of the Plaintiff’s Society in the form of a broadcast on their private FM Radio Stations.

In an earlier hearing the Hon’ble High Court granted an ad interim injunction in favour of the Plaintiff Society, the same was being challenged by the Respondents. In its final decision the Madras High Court disposed off the application of the Respondent Radio Station and also gave the final verdict in favour of the Plaintiff Copyright Society.

The Plaintiff is a Co-operative Society registered under S.33 of the Copyright Act, 1957. In lieu of its status as a registered society, it is permitted to carry on business in musical and literary works. The working is as follows: members of the Plaintiff Society compromise of authors, composers and publishers of Indian musical and literary works. All the members have assigned their public performing rights in respect of their musical work to the Plaintiff society. Thus, the Plaintiff’s license the work on behalf of the owners, who are entitled to receive royalty as and when the sound recording is communicated to the members of the public.

The Respondents are engaged in the business of broadcasting private FM Radio Station in the city of Chennai in the name of Chennai Live 104.8 FM. The Plaintiff society alleged that the Respondents had begun unauthorized broadcasting of recorded songs (qualifying as musical and literary works) on their FM Radio Stations, in respect of which the members of the Plaintiff Society owned copyright. The Respondents cannot use or exploit the copyright of the members without duly obtaining licence from the Plaintiff and paying the necessary licence fee/royalty for such use and exploitation. Moreover, unless the Respondents are restrained from broadcasting any of the music and literary works of the members of the Plaintiff in the form of broadcast, the Plaintiff would suffer loss, harm and injury.

The Respondent argued that it had received licenses for the allegedly infringing broadcasts from the Phonographic Performance Limited (PPL). Therefore it was allowed to broadcast the works without obtaining license from IPRS.

Thus, the main question in the case was whether the Plaintiff has established a prima facie case that the respondent radio channel has got no right to broadcast the songs through its FM Station with the agreement of assignment it has entered into with Phonographic Performance Limited (PPL) without obtaining separate licence from Indian Performance Rights Limited (IPRS).

The Plaintiff argued that literary and musical works constitute a separate category of work, distinguished from sound recordings and that these different categories of works don’t merge.  The Court agreed with the Plaintiff and stated that, “It is pertinent to note that the legislature, in its wisdom, has classified sound recording as a separate class of work from that of literary and musical work. The copyright in a sound recording shall not affect the separate copyright in any work in respect of which a sound recording is made as per section 13(4) of the Act. The separate classification of literary and musical work as contemplated under section 13(1) has been emphasised under section 13(4) of the Act.”

The next contention was regarding whether the broadcast of songs on FM amounted to public performance of the works. The Respondents argued that the Applicant’s only had the right over performances of the copyrighted works [meaning they could only issue licenses with respect to performer’s rights] and not broadcast of the works as such, as the same did not amount to a performance under the realm of performers rights. The Plaintiff Society disagreed and stated that, “in the case of literary or musical works, copyright means an exclusive right to perform the above work in public or to communicate it to the public. ‘Communication to public’ is defined under s.2(ff) of the Act and means making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display. Therefore, performing literary or musical work in public does not only mean a musical performance in a public place. Broadcasting of the songs involves communication of the music to the public which is heard and enjoyed by them.” The Court agreed with the submission of the Plaintiff Counsel.

Post proving that there was separate copyright for musical and literary works and that broadcasting the works amounted to communication to public, the most important question came up, i.e., respondent radio channel has got no right to broadcast the songs through its FM Station with the agreement of assignment it has entered into with Phonographic Performance Limited (PPL) without obtaining separate licence from Indian Performance Rights Limited (IPRS).

Addressing this question the court held that, “the Government of India had registered two separate Societies one for carrying on the business of issuing or granting licence in respect of literary and musical work viz., IPRS and another one in respect of sound recording work viz., PPL. Thus, unless the Respondent Radio Channel obtains licence for broadcasting literary and musical work of the members of the Plaintiff Society, they have no right to broadcast the songs of the members of the Plaintiff Society. Under such circumstances, if the Respondent Radio Channel continues to broadcast the songs of the members of the Plaintiff Society without getting licence from it, the interest of the Plaintiff and its members would be in jeopardy.”

On this basis the Court concluded that the ad interim injunction already granted by this court was made absolute and the application made by the Respondents was dismissed. 

Parallel Imports and Exhaustion: A Different Framework for Copyrights?

Justice Ravindra Bhat of the Delhi High Court has – through several important judgments – helped advance the understanding of intellectual property law in the country. While his judgments need not necessarily be seen as the only correct point of view, they at least have helped stimulate debate on several important issues. On this blog itself, his decisions have been the subject of much discussion, as evidenced in posts linked here. His recent judgment in CS(OS) No. 1692/2006, Warner Bros. v. V.G. Santosh, is another instance of a well-reasoned judgment which may well give rise to great debate. The case deals with parallel imports and the doctrine of international exhaustion of rights, and Justice Bhat held that the principle is not applicable to cinematographic works. But before going on to examine the learned Judge’s reasoning; a brief look at the facts of the case…

Facts:

The Plaintiffs carried on the business of film production. The films in which they claimed copyright were first published in the United States. Under the International Copyright Order, 1991 read with the Copyright Act, 1991, the plaintiffs therefore claimed copyright in the films even in India. The Defendant was a “movie club / video library” based in India; in the business of hiring out DVDs of popular and critically acclaimed films on rent to Indian customers. The Plaintiffs had not released some of their films in India, but the films had been released in the United States in DVD format. The DVDs were coded according to specific geographic zones. The Defendant legally bought these DVDs in the United States, and imported them into India. They then made available the particular DVDs (which had been legally bought by them) to their Indian customers.

The Plaintiffs alleged that these acts of import and hiring out amounted to an infringement of their copyright. The Defendant stated that the DVDs were bought legally – there was no copy of those particular DVDs. That being the case, it was contended that no infringing copy had been made. Further, relying on the “first-sale doctrine”, the Defendant argued that once a DVD has been legally sold to them by the Plaintiffs, the plaintiffs’ rights in that particular DVD were exhausted. Accordingly, the Plaintiffs could not exercise control over the particular DVDs after the first sale had been completed.

The question then arose before Justice Bhat as to whether the defendants actions of importing the DVDs, as also the giving on rent of the DVDs, amounted to infringement of copyright.

The Court’s reasoning:

Justice Bhat began by noting that whether or not the principle of exhaustion of rights applies, is a matter dependant on the particular statute before the Court. Among the points raised by the Defendant was that the Explanation to, Section 14 of the Copyright Act states, “For the purposes of this Section, a copy which had been sold once shall be deemed to be a copy already in circulation”. On this basis, it was urged that the doctrine of first sale applies in India, and there was no case of infringement.

However, as Justice Bhat noted Section 14(d) of the Act stated that in respect of cinematographic works, “copyright” would mean the doing or authorizing the doing of the following:

i. Making a copy of the film

ii. Selling or giving on hire or offer for sale or hire any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions

iii. Communicating the film to the public

Thus, the content of copyright in case of cinematographic works is different from that in the case of literary works, dramatic works etc. The phrase “copy in circulation” was found in describing the copyright vis-à-vis literary, musical and dramatic works. It found no application in cinematographic works. On a plain reading of Section 14, the phrase was used to limit the copyright in the case of literary, musical and dramatic works only. In defining copyright vis-à-vis cinematographic works, the phrase was not used at all. Thus, Justice Bhat noted that while the exhaustion principle would perhaps be applicable to literary, musical and dramatic works; that would not mean that the principle also applied to cinematographic works.

Under Section 14(1)(d), in the case of cinematographic works, the right is “regardless of whether such copy has been sold or given on hire on earlier occasion”. This is in express contrast to the position regarding literary works. Hence, the nature of the bundle of rights which make up the copyright is different in the two cases; and the wording of the statute did not leave any room for the principle to be applied to cinematographic works. As the Judge put is, “…Parliament having intervened in one category of copyrights to grant a limited kind of exhaustion and consciously chosen not to extend it to others, sleight of judicial reasoning cannot extend its application…” Furthermore, on the question of parallel imports of cinematographic works, the Proviso to Section 51(b)(iv) states that importation for private use of the importer is not deemed to be an infringement. The very fact that this proviso was inserted into the statute would indicate that importation for commercial, non-private use would be tantamount to infringement.

On the face of it, therefore, a plain reading of the statute indicated that the Defendant’s arguments could not succeed. In order to get over this hurdle, the Defendant raised two ingenious pleas. They contended that as a matter of interpretation, there should be no disconnect between various intellectual property laws, and Courts should try to move towards a uniform interpretation and application of such laws. Section 30 of the Trademarks Act, 1999, and Section 107-A of the Patents Act, 1970, permit certain types of use and importation analoguous to that in the present case (see here for the previous discussions on ‘parallel imports’). It was therefore argued that the same should be extended over copyright so as to ensure uniformity between the different laws. Justice Bhat however turned the argument over, and said that if a specific provision allowed such use and import under the Trademarks Act and Patents Act, the absence of the provision in the Copyrights Act is a sure indication that the legislative intent was to not have the same treatment in this respect for copyrights. The other argument raised was that unless the interpretation put forth by the Defendant was accepted, the Copyright Act would be ultra vires the freedom to carry out trade under Article 19 of the Constitution. The Court rejected this argument as well. It was stated, “There is no public interest in insisting that such copies should be permitted, on the ground that the cinematographic films are not made available in the country. If that is the position, the defendant is always free to negotiate the terms of a license, in such of the films as are not available, for the purpose of their publication or performance in India…”

Accordingly, the Court came to the conclusion that the defendant’s actions would amount to infringement of copyright.

A few questions:

The decision itself is rather lengthy, but contains a detailed discussion of the principle of exhaustion of rights, as well as parallel importation. However, was the Court a bit too ‘literal’? Would accepting the defendant’s arguments really have been a case of “sleight of judicial reasoning”, or would it perhaps have been a legitimate exercise of interpretation? Should cases of this kind be decided – as a matter of policy – simply on the question of interpretation of the transaction as to whether a ‘sale’ has really taken place? Once a ‘sale’ takes place, ownership in the particular copy passes. Once admittedly the transaction is a ‘sale’, would it be possible to hold that all rights of the plaintiff in that copy are exhausted; not as a matter of interpretation of statute, but as a matter of the contract between the parties? I look forward to what our readers have to say on these issues…

Do Patents Kill? A Strange Twist in the Ramkumar vs Samsung Saga

Do Patents Kill?

This question, often posed in the context of pharmaceuticals may have found its answer in a case involving an electronics patent.

A number of papers report that a death in Chennai could be connected with the ongoing Ramkumar vs Samsung (and others) patent litigation, a litigation that we have been tracking on this blog.

The last update we carried was that of a ridiculously cryptic ex parte injunction by the Madras High Court on the 13th of March. Apparently, at the date of last hearing (29th of April), the judge ordered that his ridiculous ex parte interim order against several cell phone manufacturers continue. The matter will now be heard on June 9th.

In the meantime, CH Unnikrishnan of the Mint carried two news items documenting two further developments on this case:

i) Samsung filed a petition at the IPAB, asking that Ramkumar's patent be revoked, since it does not meet with patentability criteria.

ii) Ramkumar shot off a letter to the excise authorities asking that Samsungs' manufacturing license be suspended. An excise authority to enforce patents? Indian bureaucrats (IAS cadre) are generally for their ability to master several trades; but isn't this a bit too much? First it was the Drug Controller.... then the Customs Authorities. And now the Excise Department!

One wonders where overzealous patentees like Ramkumar will turn to next -perhaps the Election Commission? After all, if Samsung is guilty of patent infringement, how can its India MD be permitted to vote in these elections?

Anyway, back to the rather horrifying death and it potential link to the patent dispute:

The Deccan Chronicle Reports:

"The daring murder of business executive Divakaran Sankaran from Kotturpuram in full public view has probably unveiled an ugly patent war between the proprietors of Vikas Technologies and importers of mobile phones with dual SIM cards into India over a dual SIM card patent that has been issued to Chennai-based engineer Somasundaram Ramkumar, who is also one of the partners of the firm.

In an interview to financial daily, Financial Chronicle, on March 15, Madurai-based inventor Somasundaram Ramkumar said he was receiving threatening calls from importers of mobile phones with dual SIM cards. “I have been receiving threatening calls from importers after we decided to fight for our patent rights. But I am not afraid,” he had said.

Mr Ramkumar had applied for a patent for plurality of SIM cards in a single mobile handset as well as plurality of Bluetooth devices in headphone and earphone jacks. He had applied for a patent in 2002 and received it (Indian patent certificate No. 214388) last year.

Since several international mobile phone companies like Samsung Electronics, Spice Mobile, etc., import thousands of dual SIM mobile phones into India, Mr Ramkumar and his company filed a petition in the Madras high court claiming that the companies were using his patented technology without paying him royalties.

On April 29, the Madras HC extended its interim order delivered on March 23, restraining mobile phone manufacturers Samsung, Mirc Electronics and Spice Mobile as well as several retailers from manufacturing and selling multiple SIM-holding mobile phones.

The daylight murder of one of the senior partners of the firm that is fighting the case along with Mr Ramkumar within two days after the HC extended its interim order is being probed in all angles, including a fight over the inventor’s patent rights, the police said."

Express Buzz Reports:

"In a suspected case of business rivalry, a 60-year-old CEO of a patent rights company was hacked to death by a three-member gang on motorcycles in broad daylight at K K Nagar on Friday.

Sankar, the CEO of Vikas Systems, a company that monitors the import of ‘double SIM card inserting technology’, was coming out of the house of the company’s lawyer, Durai Manikumar, along with two others, at 11.30 am when the gang struck, V Sethu, Assistant Commissioner of Police, Ashok Nagar, said.

Vikas Systems was started by Ram Kumar of Madurai, a scientist who invented the double SIM card inserting technology in 2002. The firm holds the patent rights for the technology. The company has filed cases against manufacturing companies that have brought in the technology illegally and has got court orders in its favour. It was in connection with one such case that Sankar had gone to Manikumar’s house."

The Times of India interestingly suggests that the deceased had a shady past:

"Divakaran was running several businesses in various names, including shoe exports. He was caught by CBI once for sending goods abroad without disclosing proper facts. The goods were seized by the directorate of revenue officials who transferred the case to CBI," a senior police officer said. When TOI tried to contact CBI officials for their response, they refused to comment."

The insinuation in almost all these news reports is that cell phone manufacturers/importers (who are pitted against Ramkumar in the aforesaid patent disputes) may have been responsible for this murder. Only time (and loads of further investigation into this murky business) will reveal the truth!

Beware Mumbaikars: The Slumlord's Act could detain you for a year for simply buying a pirated DVD

The ToI in a detailed report a few weeks ago reported that President Patil had given her assent to an amendment to the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act (hereinafter the "Slumlord Act"). As per the ToI report this amendment to the Slumlord Act makes it a criminal offence not only to sell pirated DVDs/CDs but also to buy such pirated DVDs/CDs!

As outrageous as it may seem to most of us the fact of the matter is that a similar provision already exists under the Copyright Act, 1957. As per Section 63B the knowing use of "an infringing copy of a computer program shall be punishable with imprisonment for a term which shall not be less than seven days but which may extend to three years and with a fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees." The proviso to the section however states that in case the computer programme is not used for gain or in the course of trade or business then in that case the court may not impose any sentence of imprisonment.

The first question that needs to be examined is whether a pirated movie DVD will be covered under this provision? As per the definition of "computer" and "computer program" in Section 2 of the Copyright Act, 1957, I think it is possible to include a movie DVD within the definition of a computer programme. As defined by the Act a 'computer programme':

"means a set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result"

I'm no techie but I think a DVD should be covered under this definition especially when read along with the definition of computer which includes any electronic or similar device having information processing capabilities. However this is one topic that is open to debate. The criminal procedure governing such a criminal offence is the normal Code of Criminal Procedure which will provide for the right to bail.

The second question that have to ask ourselves is why exactly has the Maharashtra Government gone over-board to include the offence of buying pirated DVDs in such a draconian legislation? As per this Indian Express article the Slumlords Act is one of those dangerous legislation that are preferred by the cops in the absence of TADA. Some of the 'cop friendly' (and not 'civil liberties') friendly features of this legislation are the provisions regarding to preventive detention for a period of 12 months without possibility of bail. For its part 'Preventive detention' is one of those unfortunate relics from the days of the British Raj, which was unfortunately blessed even by the founders of our Constitution in their infinite wisdom. Under Preventive Detention Statutes there is usually no provision for bail and instead the Government is required to set up advisory boards to review the grounds of detention every three weeks. While High Courts do have the powers to intervene and set aside some of the orders which are violative of fundamental rights, the problems with such legislations is that the process itself is the punishment i.e. regardless of a final convinction the person is pretty much condemned once he is charged under the statute because of the cumbersome process that tilts in the favour of the state. More often than not these laws are abused by police forces around the country.

It is still possible to justify the existence of such legislations to curb certain crimes like drug peddling, terror activities and by a ridiculous stretch of imagination to even persons selling pirated DVDs. However it is absolutely ridiculous to equate a drug peddler to a person buying a pirated DVD. I have not been able to find a copy of the legislation online but if the ToI report is to be believed a person buying a pirated DVD can now be charged under this legislation and be held without bail. If (and this is the operative word) the ToI report is true then in that case the State of Maharashtra has lost all sense of proportionality with respect to its criminal justice system.

Does the State of Mahrashtra have the legislative competence to enact such a law?

As most of you may know India has a federal setup with the Central and State Government sharing powers. The scheme for sharing of powers is laid down in the Seventh Schedule to the Constitution of India. This Schedule has 3 lists: The Union List with respect to which only the Parliament can legislation, The State List with respect to which only the State Government can legislate and the Concurrent List with respect to which both the State and Central Government can legislate. However if in case there is already a Central Legislation in place then in that case the State Government can still legislate on the subject provided that it receives Presidential assent for the same. Now as per the ToI report President Patil has given her assent to this bill and hence I'm guessing that it was introduced under the Concurrent List.

The problem over here is that the law related to copyright and other intellectual property is a subject of the Union List which means that only Parliament is competent to pass such a legislation in regards pirated DVDs. The State may try to argue that the pith and substance of the legislation is actually in regards 'law and order' which falls under the State List but I think that will be quite a weak argument.

I am presuming that the President would have signed the Bill only on the advice of the Attorney General Milon Banerjee. However given the fact that the Attorney General has lost all of his credibility in the legal fraternity because of his actions devaluing the Constitutional Position of the Attorney General, (read about this here, here, here) I would not be surprised if the President has in fact got half-baked advice from the AG's office while assenting to the Bill.

Please Sign Patent Petition: It Hardly Takes a Minute!

We want to thank many of our readers for supporting the transparency cause and signing our petition requesting for the publishing of more "patent" information.

As you will appreciate, the publishing of more patent information will make the patent prosecution process more transparent and the patent office more accountable.

Thus far, we have around 100 signatures. Given that we have a regular subscription list of over 1500 members (representing patent attorneys, inhouse counsels, NGO's, students, government folks and other members of the public interested in the IP system), it is a pity that we have only 100 signatures.

If you support the cause (and given that you are regular subscribers of a blog whose main motto is transparency, I'm guessing you do), please click here to sign. It hardly takes a minute of your time! And please do this soon, since we plan to submit this petition to the government next week.

In order to make this petition more impactful, would you please also add your designation and institutional affiliation in brackets after your name (since there is no specific column for these details in the i-petitions format)?

For those interested, the longer version of the petition is available here.

Please also pass this around as widely as possible so that we get a good diversity of signatures and can put more pressure on the government to release this critical information that will help make India's patent system more transparent and accountable.