PPL Extortion Takes a Turn for the Worse: Will the Government Please Step in?

It is lamentable that despite our posts documenting the extortionist tactics of PPL and questioning its non transparent mode of functioning, things have only taken a turn for the worse. SpicyIP now has some damning evidence in the form of letters written by PPL to one of its victims, that reek of high handedness, intimidation, arrogance and worst of all, an utter and brazen ignorance of the law.

Clearly this is one organisation which continues to operate under the “legal radar” without sufficient transparency and accountability; but paradoxically attempts to deploy the very instrument of law to serve its exortionist ends.

In our earlier posts, we mounted some serious challenges to PPL’s very authority to collect moneys for public performances, particularly in the context of foreign sound recordings. We’re not suggesting for a moment that copyright law must be ignored or that copyright owners must not be paid a license fee when a right is exploited. However, we simply ask whether PPL is entitled to collect license fees when any sound recording under the sun is played? Has it been authorised to do so by the copyright owner, and more importantly, does it account for such fees and remit it to the concerned copyright owner?

Contrary to what PPL asserts in its various letters that are now available our website, (with names redacted), every member of the public is entitled to know under what authority PPL collects royalties. Unless PPL demonstrates the source of this authority, no one in India need pay them at all!

What makes all of this worse is that PPL is a statutory creation (its genesis can be found in the Indian copyright act) and ought to be subjected to higher norms of transparency and accountability.

We once again exhort the government to please step in and put an end to this brazen illegality. PPL ought to be forced to become more transparent and disclose its various agreements under which it holds rights to collect royalties on behalf of copyright owners.

The PPL letters contain some amusing nuggets. Upon being politely requested to demonstrate its various rights in the music that was sought to be performed, PPL's classic response is:

“Sorry we r not going to disclose terms and conditions of aggrement we have with our members since it is very much company oriented and not a public document.

If you r not satisfied with explanation as forwarded by us from Coyright Law Book released by Govt of India ,I am afraid u need to go to Ministry/Judiciary for knowing fact of Life. Meanwhile event as discussed needs to be stopped unless matter is being cleared by any appropriate authority to both the parties.”

Don't the PPL computers have spell check? More importantly, does one need to gift PPL with a Wren and Martin? And pray, what is the "fact of life"? That PPL is extorting money from poor unsuspecting victims, when it is not legally entitled to do so?

If any of you have faced similar harassment from PPL, please let us know. We'll ensure that you receive pro bono legal representation. We need to fight this collectively and put an end to it... quickly..

Proposed Copyright Amendment Bill

In the recent past, there have been a proposed set of amendments to the Copyright Act, which however, seem to be having a little trouble getting beyond the draft bill stage. While not much progress has occurred after this initial draft bill stage, the proposed amendments themselves are quite noteworthy. Indeed, back in 2006, there appears to be a response by ALF and a group of other NGOs to the HRD ministry with regard to certain proposed amendments. The draft bill as it stands today, was available on the www.copyright.gov.in website till the recent update (posted about in this previous post) of the site. While the site is much improved in most aspects, these proposed amendments strangely seem to have just disappeared off the site now. The Indian Express and the TOI have mentioned that these amendments are finally up for discussion before the ministry, however it does not seem possible to locate an actual copy of this currently. As well intentioned as these provisions may be, it is rather lacking in terms of transparency that these are now not available for the public.

Moving on to the substance of these proposed amendments, the HRD ministry seeks to provide for a more balanced regime in terms of rights distribution among ‘creators’ through this bill. It seeks to ensure that all the ‘creative artists’ involved in a work, such as the singers, lyricists, music directors, film directors, etc receive more appropriate royalty for their work. This comes as a very welcome move for artists, especially singers and directors, who have been calling for a new royalty payment system for a long time now. In fact, the Indian Express reports that these proposed amendments came after a complaint from the likes of Javed Akhtar, Shubha Mudgal and Jagjit Singh among others, to the Prime Minister, regarding the loss of all rights after the standard practice of assigning rights to the producer.

The bill also refers to non-assignable rights such as 'moral rights' and 'the right of integrity'. The right of integrity goes towards ensuring that the reputation of an artist does not get tainted by giving him the right to prevent others from doing something to his work that can damage his reputation and name, thus preventing distortion and mutilation of work. Along similar lines, the amendments also talk about remixes and cover versions of songs. It says that the provisions should not go so far as to prohibit, or through unnecessarily stringent provisions, effectively prohibit / restrict remixes altogether.

In addition, the period of protection of copyrighted work is to be extended from 60 years to 70 years on the condition that the producer shares royalty with the director as well. Another important provision is the removal of all copyright fees which arise from allowing access, through means of conversion of works, to all categories of disabled people.

It is to be seen however, in the final bill (which will hopefully be made available to the public before it is passed), if the balance between protecting a creator’s interest and protecting the public’s interest is maintained, since it should be kept in mind, that broadly speaking, easier access to creative works has generally resulted in more creation.

The Doctrine of Equivalents: An International and Comparative Perspective

The Yale Journal of Law and Technology recently published an article in memory of the late Sir Nicholas Pumfrey, who unfortunately passed away at the fag end of 2007. A gregarious judge who had a stellar reputation for getting to the root of a technology in a patent dispute even before counsels explained it to him, Lord Justice Pumfrey was also acclaimed as one of the "nicest" UK judges.

The IPKat did a short obituary, which elicited some very touching comments from friends of Sir Nicholas who recounted their experiences with him, some going as far back as his days at Oxford, when he came adventurously dressed in a "sports" jacket. The Times did a piece focusing on his "professional" achievements and the Telegraph did an interesting take on his unconventional "personal" side, recounting that he took off on long motorcycle trips to France to take care of his "bees". Little wonder then that his judgments carried a lot of sting for those who found themselves on the wrong side of the law.

The Yale article, authored by an international medley of IP judges, practitioners and academics deals with the doctrine of equivalents, one of the most contentious patent law doctrines. The various authors and their respective chapters are listed alphabetically as below:

1. The US position: Martin J. Adelman (Theodore and James Pedas Family Professor of IP law at George Washington University Law School), Dr. Raj Davé (Partner at Pillsbury Winthrop Shaw Pittman LLP) and Dr. Martin Sulsky (Associate at Pillsbury Winthrop Shaw Pittman LLP).

2. The UK position: Lord Justice Pumfrey (UK Court of Appeals), who unfortunately passed away during the course of this article and Shamnad Basheer (Ministry of HRD Professor in IP Law, National University of Juridical Sciences, Kolkata);

3. The German position: Prof. Dr. Peter Meier-Beck (Judge at the Bundesgerichtshof, Karlsruhe, Germany and a Honorary Professor at the Heinrich-Heine-Universität, Düsseldorf) and Max v. Rospatt (an Attorney at Law and Partner at rospatt osten pross, Düsseldorf, Germany)

4. The Japanese portion: Yukio Nagasawa (former Judge of Tokyo High Court and currently a Professor at the University of Tokyo and a Partner at the Haruki & Tokyo-Marunouchi Law Offices, Tokyo).

The abstract states as below:

"The doctrine of equivalents is arguably one of the most important aspects of patent law. The protection a patent confers is meaningless if its scope is determined to be so narrow that trivial changes to a device bring it out of the bounds of the patent. One of the greatest challenges courts and legislatures therefore face in patent law is to create rules for determining patent scope that maintain the protection a patent is meant to confer while still keeping the patent monopoly within reasonable bounds.

Despite the general unity in patent laws among developed countries, the difficulty of this task has led to different results in different jurisdictions. Many jurisdictions have chosen to determine patent scope under a doctrine of equivalents, while others have maintained the position that adequate scope can be found within the meaning of a patent’s claim. Even jurisdictions which agree that a doctrine of equivalents should apply differ significantly in its application. This Article provides an examination of four patent jurisdictions—the United States, the United Kingdom, Germany and Japan—and their separate answers to the question of patent scope.

This Article does not purport to decide which jurisdiction has the right solution, but merely points out that different solutions can be and have been found for the question of equivalents. Although a traditional case of patent infringement under the doctrine of equivalents may find protection under all four jurisdictions, the laws of these countries start to diverge on questions regarding after-arising technology, the essential elements of a patent claim, and equivalents that clearly fall outside the language of a claim. One cannot answer the question, “Does anybody have it right?” without first considering these issues."

Wanted: Scientific Advisors to Assist Courts

The Indian Patent Office has called for applications for the post of Scientific Advisors to assist Courts in patent infringement suits or any proceeding under the Patents Act (Section 115, Rule 103). Applicants must be:

1. Those with a degree in science, technology, engineering or equivalent
2. With 15 years of practical or research experience and
3. Must hold or have held a “responsible post” in a scientific or technical department of the Central or State government or in any organization.

The last date for receipt of completed applications is November 30, 2009.

SpicyIP thanks Mr.Biju K.Nambiar of Majumdar and Co. for bringing this information to our notice.

The Copyright Office: Kind of Blue

The first phase of the "modernization of the Indian Copyright Office" is on track, with the Office sporting a new blue online avatar. Long long overdue, is all I have to say. The domain name has not changed - copyright.gov.in - but the site is transformed from what it used to be until recently. You can see in this post screengrabs of the Old and New Copyright Office website (Left: Copyright Office Now - note to self: will not make stupid TV channel puns.)

What stands out (and what I'm silently celebrating about) is the introduction of online registration facilities, accessible directly by authors and rights holders. So, it is not just a superficial overhaul - there are some fundamental technical changes as well.

Previously, clicking on the link of "Registration Form" would direct you to a PDF version of the Form IV, which was of little help. Now, you can complete the form online, and follow it up with submitting the documents by hand or by post. They also have a Check List of guidelines that help in completing the Registration Form, making it incredibly simple for individual registrants to file applications themselves. There is also a flowchart indicating the Workflow of the Registry to help users understand the process of registration. It will be great to know how this system actually works out in the months to come - we're confident readers will keep us posted.

There are better things to come: The next phase of the Copyright Office project, which will go live by 31 December 2009, will see all the records being digitized. Users will also have access to an "Online search facility" which will help locate details of copyright registrations for a fee.

And for those of you who have had the pleasure (!) of visiting the Copyright Office in the dingy backlanes of the Curzon Road Barracks in Central Delhi, it's official: the office will soon be shifting to Jeevan Deep Building, Parliament Street. (My own grouses are (1) no more Andhra Bhavan lunches; and well, (2) Parking! - maybe at UNI/Metro station, and walk?)

It was only a few days ago that I was reading about the abysmal state of online affairs of websites of the Government of India. If any of you have recently visited india.gov.in ("The National Portal of India"), you will see what a mess it all is, although one can tell - GoI is trying hard... (Image: Copyright Office Then - RIP)

At any rate, I personally find this site relatively more attractive than the IPO website, which is aesthetically...um...a little wanting. Or maybe I am just partial to the colour blue, and miles davis. What's your take?

Guest Post: The Jamnagar Petrol GI Case

SpicyIP is delighted to bring you a guest post from Latha R Nair, a leading IP practitioner in India. Ms Nair, who has written occasionally for the blog, is a partner with one of India's top IP firms, K&S Partners, based in the Delhi/NCR area. Apart from handling matters relating to protection and enforcement of trademarks and copyrights, she advises clients on TRIPS related issues, protection of geographical indications in India and abroad, domain name disputes and intellectual property aspects of the entertainment industry and the Internet. In particular, she has been advising the Government of India in the protection of various geographical indications including Basmati and Darjeeling. She has also co-authored a seminal work on geographical indications, titled “Geographical Indications – A Search for Identity” published by Lexis Nexis Butterworths India, which is a first work of its kind on the subject. For a detailed profile, do visit an earlier post we have run by Ms Nair.

Today's post is about the dispute around the GI application filed, and recently abandoned, by Reliance Industries Limited (RIL), which Ms Nair sheds some light on for readers here:

THE CURIOUS CASE OF JAMNAGAR PETROL GI

A report in the Mint recently states that Reliance Industries Limited (RIL) has abandoned its applications for registering ‘Jamnagar’ as a geographical indication (GI) for petrol, diesel, LPG etc. The report quotes P H Kurian, Controller of Patents Trademarks and Geographical indications as having stated that the applications were abandoned by the GI Registry for lack of prosecution on the part of RIL, the applicant. It is a relief to know that wisdom has eventually dawned upon RIL. Should we say, it is better late than never?! (Image from here: http://www.mapsofindia.com/maps/gujarat/districts/jamnagar.htm)

A perusal of the statement of case of GI application No. 38 for ‘Jamnagar’ filed by RIL which was advertised in Journal No.12 (download: 1.5 MB) would reveal the various errors in the application that survived acceptance and proceeded unhindered till the stage of advertisement.

To begin with, the applications filed by RIL were contrary to Section 11 (1) of the Geographical Indications of Goods (Registration & Protection) Act, 1999 [ ‘the GI Act’] which states as follows:

“Any association of persons or producers or any organization or authority established by or under any law for the time being in force representing the interest of the producers of the concerned goods, who are desirous of registering a geographical indication in relation to such goods shall apply in writing to the Registrar in such form and in such manner and accompanied by such fees as may be prescribed for the registration of the geographical indication.”

One of the puzzling questions in the Jamnagar applications was, who were these producers whose collective interest RIL was representing through these applications. For example, in the statement of case, against the column “List of association of persons/ Producers”, RIL had entered, “to be provided on request”. However, under the column, “Description of Goods”, RIL stated that it was the largest producer of petrol and that the Jamnagar manufacturing complex was the largest industrial project set up “at a cost of 142.5 billion” (presumably INR)! Did the mighty RIL really need to get a GI registration to boost the sales of its petrol and LPG?

Further, under the column, “Specification” RIL has listed the ISO standards met by its petrol, fuel, LPG and diesel. Under Section 11(2) of the GI Act, an application is to contain a statement as to how the GI serves to designate the goods as originating from the concerned region in respect of specific quality, reputation or other characteristics of which are due exclusively or essentially to the geographical environment with its inherent natural and human factors. Once again, under the column “Uniqueness”, the mention of the compliance with the ISO standards reappears. When one could have thought that this petrol could save all the energy problems of our planet, there is no mention of any unique properties possessed by the goods in the application by RIL except the compliance with ISO standards!

The legal innovation and creativity in the application did not end there. Under the column “Proof of origin [Historical records]” RIL states as follows:

“In 1991, the Government of India allowed the investments from the private sector, in this field. Heavy investment has been made in the less favoured remote area which has resulted in the improvement of local rural area and paved way for the retention of the rural population in this area and it helps in the rural development. The applicant in a record time of 15 days after the historic heavy cyclonic hit on 8th June 1998 repaired the extensive damage and brought back the normalcy”

While RIL certainly deserves more than a pat on the back for the heroic deeds of repairing the damage to the plant (which is, by the way, the private property of RIL) in a fortnight, one fails to see the historical records that are hidden in the said paragraph!

Mercifully, the advertisements in the GI journal led to two oppositions filed by two different opponents. One shudders to imagine how the world IP community would have viewed the Indian GI protection process, if these remained unopposed and proceeded to registration!

From the perspective of an IP practitioner, the fact that these applications were filed by a private entity to further its commercial monopolistic interests raises several concerns for the direction of the GI protection process in India, which is still in the nascent stages. Are we game to register anything that has a geographical name as a GI? At least, the minimum standards stipulated under the GI Act should not be overlooked by all concerned. While augmenting numbers may not be a bad thing, we must not lose sight of the broad objects of protecting a GI, namely, preserving the collective community interests of the producers and protecting consumers from deception. An objective and dispassionate soul searching is warranted to see if we are on the right track while filing applications in respect of anything that sounds like a geographical name to be protected as a GI. Failure to appreciate this could eventually harm and dilute the process of protection of GIs in India leaving the stake holders of the innumerable genuine GI products without an access to realize the economic potential in these products.

[The author is a partner with the Gurgaon based IP law firm K&S Partners. The views are personal.]

Call for Submissions from the Indian Journal of International Economic Law

A call for submissions from the Indian Journal of International Economic Law (IJIEL) which may be of interest to some of our readers.

"We, the editorial board of the Indian Journal of International Economic Law (IJIEL), 2009-10, produced by students of the National Law School of India University (NLSIU), Bangalore are proud to invite submissions for the third issue of the journal from academicians, scholars and graduate students on topics relating to International Economic Law.

IJIEL is an annual journal that is managed, edited and produced by students of the National Law School of India University (NLSIU), Bangalore – India’s premier law school. This refereed journal focuses on the recognition of the staggering impact of WTO and international trade and commerce particularly in developing countries. That is not to say, however, that we restrict ourselves to WTO law and international trade law. Our mandate extends to all academic scholarship relevant to International Economic Law, including international finance and taxation, cross-border regulatory reform in light of the credit crisis, questions concerning the linkages between trade, human rights and the environment, international competition law, economic aspects of IP rights and TRIPS, etc.

We are particularly interested in law and economics analyses of the all the subject areas within our mandate. We pride ourselves on being one of the few legal journals which focuses on these issues from a developing country perspective.

The first two issue have been a tremendous success in terms of the breadth and quality of the submissions that we have received and been privileged to publish. We have been fortunate to receive the enthusiastic support of stalwarts in the field of International Economic Law. Professor Jagdish Bhagwati has written the foreword for our first issue. The foreword for our second issue has been written by Mr. Arvind Subramaniam from the Peterson Institute. Professor Andrew T. Guzman, Professor Yuji Iwasawa and Ms. Jayashree Watal are members of the journal's editorial board. Recently, we have also received the patronage of the WTO Chair established in NLSIU by the Ministry of Commerce of the Government of India.

Our circulation policy has targeted leading international law firms such as Allen&Overy, Clifford Chance, Linklaters and Norton Rose, legal practioners, universities, academic research centres and government bodies in India and abroad, providing us with enormous academic and geographical reach. We are also in the process of negotiating a tie up with the Social Science Research Network (SSRN) to enable us to further extend our circulation.

Submission Guidelines

i) All submissions are to be made via e-mail as .doc documents (Microsoft Word 2003 or 2007) by January 31st, 2010.

ii) We follow the Harvard Blue Book – A Uniform System of Citation (18th edn.) style of referencing and request authors to comply with the same.

iii) For full length articles the word limit is 10,000-12,000 words, though we appreciate brevity. The word limit for graduate and doctoral theses by currently enrolled postgraduate students is 7000-8000 words, and the articles should take the form of case reviews, legislative analyses, short comments or short articles.

iv) We do not accept submissions from undergraduate students. A new Law in Focus section has been introduced where practitioners are invited to briefly describe and opine on recent legislations/ ground breaking cases which have been landmark changes in their respective jurisdictions. The word limit for such entries is 3000-5000 words.

v) We wish to minimize usage of paper and therefore accept only electronic submissions.

vi) All submissions may be e-mailed to the following address: ijiel@nls.ac.in

We look forward with eager anticipation to receiving your submissions.

Thanking You,

Devina Deshpande, Convenor, IJIEL, 2009-10
Abhimanyu George Jain, Chief Editor, IJIEL, 2009-10

[on behalf of the Student Editorial Board of IJIEL, 2009-10: Archit Dhir, Bhavya Mohan, Divya Shenoy, K. Aishwarya, Surbhi Kuwelkar, Surya Kiran Banerjee and Vrinda Bhandari]

Indian Journal of International Economic Law (IJIEL)
National Law School of India University (NLSIU)
Nagarbhavi, Bangalore – 560240
ijiel@nls.ac.in

Turning TRIPS on its Head: Developing Countries and WTO Cross Retaliation

Prashant carried a very interesting post on Brazil's latest WTO authorisation to cross retaliate against the US. Cross retaliation refers to the right to retaliate against another sector/agreement under the WTO, such as TRIPS.

Unfortunately, Brazil's authorisation to cross retaliate is a "qualified" one. And Brazil cannot resort to this unless the losses caused to it by the WTO inconsistent subsidies (maintained by the US) exceed a certain threshold. Brazil claims that the losses caused by the US amounted to USD 800 million alone last year and therefore exceed the threshold laid down by the panel.

By way of background, although Brazil claimed that the losses caused to it by the US' illegal subsidies to its cotton farmers amounted to USD 2.5 billion, the panel clipped this amount significantly by reducing it to USD 295 million (approximately). The panel therefore held that Brazil could easily recover this money from traditional retaliation (by imposing tariffs etc on US imports) and did not need to cross retaliate by hitting out at IPR's belonging to US companies. However, the panel also held that in case the amounts exceeded a certain threshold in a certain year, then Brazil could cross retaliate to recover these additional losses.

Prashant also went on to discuss an interesting case, where an Antiguan company brazenly violated US copyrights and attempted to take refuge in the WTO cross retaliation authorisation granted to Antigua in 2008. However, since Antigua hasn't yet operationalised this right to cross retaliate (through domestic legislation), Antigua immediately clarified that Zookz.com was not authorised by the Antiguan govt and that it was infringing US IP at its own risk.

It is here that one ought to appreciate that developing countries such as Antigua need to immediately enact domestic laws permitting the suspension of foreign intellectual property rights upon receiving a "cross retaliation" authorisation from the WTO. Absent such local legislation, a cross retaliation authorisation from the WTO is pretty meaningless; and any threats to cross retaliate will not be taken seriously by the scofflaw state.

I have an article that attempts to spell out a model "tiered" law on cross retaliation. This article will soon be published in the Law and Development Review. For those interested, a draft is available on SSRN. I've advocated in this paper, as also in this shorter editorial in the Mint that developing country leaders such as India and Brazil (that also happen to be very successful WTO litigants) should take immediate steps to implement such a law. Such a law would go a long way towards redressing some of the inequities inherent in the WTO framework.

Brazil appears to have already implemented such a cross retaliation law in its domestic regime. Will India follow suit?

WTO rules in favour of Brazil, allows for cross retaliation against U.S. IPRs

The WTO Arbitration Panel in the Brazil-U.S. trade dispute, regarding the U.S. Government subsidies for cotton, ruled last week that Brazil could retaliate against the U.S.A to the tune of $ 300 million dollars.

This particular trade dispute has been running since the year 2002 and was decided in favour of Brazil in the year 2004. Thereafter the U.S.A. unsucessfully appealed the decision of the WTO Panel to the Appellate Authority. After winning before the Appellate Authority Brazil moved to commence the arbitration that would ultimately decide the scope of relief or damages that could be granted to Brazil for the injury sufferred by the cotton subsidies.

• A more detailed history of the case can be viewed here along with all of the decisions.

The particular significance of the decision is that it allows Brazil to retaliate by suspending the intellectual property rights of entities from the U.S.A. This means that Brazil can technically break pharmaceutical patents, waive copyrights and other equivalent intellectual property rights and instead allow its own generic industries to start churning out the same products without having to licence the same from the actual IP owners.

The Brazilians are not going forward immediately to execute the decision in their favour. Instead they first intend to initiate talks with the USTR and get the U.S.A. to change their laws through diplomacy rather than confrontation.

This is not the first time the WTO panel has granted such relief. A few months ago Shamnad had blogged about the decision of the Panel in the U.S.-Antigua case over here. The signifiance of the IP suspension model is that the earlier model which required imposition of tariffs on all imports from the U.S.A. would have ended up affecting the Brazilian economy and not the U.S. economy since imports now became much more expensive for the Brazilians.

The efficacy of the IP suspension model however has been questioned by some since both of the earlier Panel decisions in the Equador case and the Antigua case have not been enforced, partly due to political pressure. The IP Watchdog recently reported that a company based out of Antigua recently started a website – zookz.com – which provided unlimited music and movies for a token price. The Antiguan government however objected to this company's activities and also proceeded to make it clear that it has never authorized the company to setup such a website. The company in turn moved a local Court to force the Government of Antigua to enforce the WTO decision.

The question therefore is how many developing countries have the political courage to enforce such decisions.

Patent Office rejected Tenofovir: Celebrating Opporunity for Generic Manufacturers?

Tenofovir Disoproxil Fumarate (TDF) is a drug highly recommended by the World Health Organisation (WHO) for the treatment of HIV/AIDS. Till date, the medicine has been mostly marketed by Indian pharmaceutical companies through a voluntary licence scheme negotiated with the California-based Gilead Sciences few years back. Before the product patent regime had been introduced in India in 2005, the country allowed local generic manufacturers to sell cheap versions of Aids drug cocktails, known as antiretrovirals. According to an article penned by Randeep Ramesh in The Guardian (available here), exports by Indian companies had helped to cut the price of antiretroviral treatment from $15,000 per patient per year in the 1990s to as low as $200, thereby resulting into Indian companies providing almost 2/3 of the world's cheap Aids therapies. Already having a global patent on Tenofovir till 2018, Gilead had sought to obtain a patent in India sometime back. This move (discussions on which can be found in this blog here, and on anti-competitive practices involved here) had been immediately met with large-scale opposition and ire from activist groups and associations such as The Indian Network for People Living with HIV and the Delhi Network of Positive People, who were quick to file pre-grant oppositions against said application (RTI Applications had been filed in this context, regarding which one can know the details from here). According to campaigners, since AIDS patients develop a resistance to "first-line" drugs, there will be no scope for a reduction in prices of second-generation medicines like Gilead’s Viread, which are several times more expensive than older treatments, without the Indian generic drugs. Officials from Gilead had been known to have issued a veiled threat (see here) that unless the patent is granted, the aforementioned licensing scheme with the Indian companies might cease to continue. Apropos, in last April, India's health minister Anbumani Ramadoss, had issued a statement in reference to a dispute with Novartis, that New Delhi could be forced to overrule patents and issue licenses for firms to produce vital drugs if deemed in the public interest. In developed countries, Tenofovir costs $5,718 per patient per year, while Cipla has been marketing a generic version called Tenvir, at a cost of $700 per person per year in India and expects to make it available in Africa eventually at an even lower price.

A pre-grant opposition essentially allows one to oppose patent applications filed by an applicant and a decision on the patent is given after the Patent Controller's office hears arguments from different stakeholders. The Patent Office in Chennai had earlier rejected Novartis' patent on cancer drug Glivec after opposition from cancer-patient organisations, among others. The major legal ground of opposition to the patent application in this case was the argument that TDF is created by the addition of a salt (fumaric acid) to an existing compound (tenofovir disoproxil) and should not therefore be granted a patent.

In this context, publications pre-dating Gilead’s application for TDF had been cited by the opposition, which teach that fumaric acid is a suitable pharmaceutically acceptable salt to use for phosphonate nucleotide analogues and their esters, like TD, in order to achieve better bioavailability and stability. Several science journals have also been indicated to direct how to go about salt selection for basic drugs for optimisation purposes and which specifically mention fumaric acid.

Furthermore, it was also argued that provisions such as Section 3(d) of the Patents Act, 1970, which states that patents should not be granted for known substances (including the salts of the known substance) that do not show improved efficacy, should block Gilead’s application. As it had been simply claiming the salt of TD and the specification filed fails to show any therapeutic efficacy, the application failed to overcome this hurdle. In the light of the Glivec decision in particular, increased/better bioavailability should not equate to efficacy. In addition to the aforesaid arguments, the Alternative Law Forum, which had been representing the Opposition, also brought attention to several procedural flaws in Gilead’s application and misrepresentations in the patent specification regarding the claimed advantages of the invention, in particular as to why the fumaric acid salt performs better than other salts. According to the counsel of the Opposition, the fact that Gilead only demonstrates a comparison against only one other salt, citrate (which would obviously have been known not to work alongside a soluble drug like TD) showed a manipulation of evidence to obtain a patent.

The Patent Office has tended to agree to the aforesaid arguments, when it refused the grant of patent to Gilead in the beginning of this month. However, since Gilead had made several patent applications on the same medicine (for different claims), the generic companies will have to wait for the patent office’s decisions on other pleas before they can launch the product. According to industry sources, Gilead is likely to appeal against the patent office decision.

On an interesting note, this has perhaps been the first time that a foreign advocacy group has been seen working together with Indian NGOs to oppose a medicine patent application in the country. Brazilian AIDS advocacy group Brazilian Interdisciplinary AIDS Association (ABIA) and a local NGO, Centre for Residential Care and Rehabilitation (SAHARA), while filing pre-grant oppositions, had said that a patent in India would have a direct impact on the ability of Brazil to produce and access affordable generic versions of the drug. In 2008, the Brazilian government had declared Tenofovir to be of ‘public interest’ in treating people living with HIV (See here).

On June 30, 2009 the Brazilian Patent Office (INPI) had also issued a final refusal of Gilead's patent application no. PI 9801145-4 for TDF, although Gilead had already filed divisional application no. PI9816239-0 on March 31, 2009, which is still pending. Brazil’s interest in this matter thus seems to be pretty obvious, since the country will not be able to procure generic versions from India if Tenofovir gets a patent in India. On the other hand, if the patent is rejected, Indian generic companies would be able to supply Tenofovir to Brazil and other middle-income countries. This would also mean Brazil could purchase affordable generic versions of Tenofovir from multiple producers competing against each other.

Syngenta Misleads Indian Court on "Data Exclusivity" and Article 39.3 of TRIPS

In a very interesting matter concerning the protection of regulatory data, Syngenta, a Swiss MNC argued before Justice Ravindra Bhat of the Delhi High Court that Article 39.3 of TRIPS mandates data exclusivity.

This is sheer nonsense! Anyone with a fair understanding of Article 39.3 of TRIPS and its negotiating history would appreciate that it does not mandate "data exclusivity". But first the facts of Syngenta India Ltd vs Union of India (W.P. (C) 8123/2008 ):

Facts:

Syngenta procured registration for its insecticide that was allegedly useful in tackling the bollworm problem plaguing Indian cotton. Jaishree comes along for a "me too" registration and submits essentially "bio-efficacy" data (asking the government to rely on data already submitted by Syngenta).

Syngenta objects to this and takes the matter finally to court, stating that government rules provide for data exclusivity and the government cannot rely on Syngenta's data to approve Jaishree's generic version of the insecticide in question. The matter is a very technical and complex one and really turned on the fact that at the time that Syngenta procured registration for its insecticide, the 'data exclusivity" rules by the government were not in force. In any case, since Syngenta had "provisional registration" prior to final registration, its supposed data exclusivity period is 3 years from the date of the provisional registration--and this period had lapsed when Jaishree's generic version came up for registration.

Back to Syngenta's outlandish claim that Article 39.3 mandates data exclusivity:

Article 39.3 of TRIPS

The Article states as below:

"Members, when requiring, as a condition of approving the marketing of pharmaceutical or of agricultural chemical products which utilize new chemical entities, the submission of undisclosed test or other data, the origination of which involves a considerable effort, shall protect such data against unfair commercial use."

In other words, the mandate above is that regulatory data be protected against "unfair commercial use". This does not however mean that the regulatory data submitted by an innovator cannot be relied upon by the government to approve a generic. It could mean (as I have argued) that the government may use it to approve a generic version, but the generic manufacturer in question has to pay a certain sum of money to the innovator (a "compulsory licensing" scheme of sorts). It could also mean, as others have argued, that the data ought to be only protected against disclosure and fraudulent procurement by another third party.

A close look at the negotiating history of TRIPS would reveal why Syngenta's argument that Art 39.3 mandates data exclusivity is inherently flawed. An earlier draft of Article 39.3 (the "Brussels draft") had clear "data exclusivity" language ( "the data shall not be relied upon for a reasonable time..") which was knocked off in the subsequent TRIPS text. And this clearly demonstrates that the TRIPS negotiators did not wish to impose a "data exclusivity" obligation, but wished to have a more flexible obligation. For more details of this negotiating history etc, see here.

Reddy Committee

More worryingly perhaps, the petition also argued that the Reddy Committee Report mandated "data exclusivity". Here is how Justice Bhat captures the mistaken contentions of Syngenta:

"The petitioner argues that .... a Statutory Authority (in this case the Committee) cannot rely on the data submitted by the Originator for approving the second and subsequent applications for the same insecticide. This protection and data exclusivity, however, would be for a limited period and not in perpetuity. The petitioner also alludes to a “Reddy Committee” report, dated 31.05.2007 that endorses TRIPS’ recommendations concluding that the Act and the Rules should be amended.... "

While Syngenta is right in stating that the Reddy Committee opined that Indian law does not comply with Article 39.3, they are wrong in assuming that the Reddy Committee recommended "data exclusivity" as the only way to comply with Article 39.3. Preventing data from "unfair commercial use" is not the same thing as preventing "reliance" on the data (which is essentially what data exclusivity is all about).

Far from endorsing a "data exclusivity" mandate under Article 39.3, the Reddy Committee Report clearly mentions that such exclusivity is not needed for pharmaceutical data at the moment. However, they propose amendments to the Drugs and Cosmetics Act to ensure that no data wrongfully leaks out of the Drug Controller's office and falls into the hand of competitors. These proposals are yet to be implemented in India. Round 2 of amendments to the Drugs and Cosmetics Act, setting up the Central Drug Authority (CDA) and dealing with clinical trial regulation etc is on the anvil; and one expects that some of the Reddy recommendations would be implemented through these amendments. (ps: the first set of amendments to the DCA deals with "spurious drugs" and came into force recently).

Interestingly although the Reddy Committee does not recommend "data exclusivity" for pharmaceuticals (at least for the time being), they do so for agro-chemicals and traditional medicines. And since the Syngenta case is really about the approval of an originator pesticide (and its generic version), Syngenta is correct in their view that the Reddy committee recommends data exclusivity at least for agro-chemicals. However, the Reddy committee does not do this out of a fear of the Article 39.3 mandate. Rather, they are of the view that there is broad industry consensus in favour of exclusivity in so far as agro-chemicals were concerned.

Data Exclusivity Through Government Rules

What is even more interesting in this case is that without an amendment to the Insecticides Act, the government introduces data exclusivity through a mere "rule". Justice Bhat takes them to task noting that this is an 'essential legislative function" that cannot be subsumed within rule making powers of the government. However, since the vires of these rules was not directly challenged in the litigation, he did not dwell further on this aspect.

However, in keeping with his reputation as a "costly" judge, he imposed a cost of Rs 3.75 lakhs on Sygenta (75,000 per hearing) to be paid to Jaishree, the generic manfacturer for bringing a "speculative" action and inviting "the court to make a policy declaration, which could not have been made under any circumstances." Also the pendency of the court proceedings delayed the entry of Jaishree into the market and this had to be compensated.

Its interesting that the last few months have seen two similar cases by patentees who attempt to delay generic entry by bringing highly untenable legal claims. The first was the Bayer vs Cipla matter, where Bayer attempted to introduce a patent drug linkage mechanism through the backdoor. And now this agrochemical case involving Syngenta.

But perhaps, it is even more interesting that Justice Ravindra Bhat, the presiding judge in both these cases is clearly not amused by these attempts to use courts to create legislative policy through the backdoor and expresses his displeasure by imposing costs!

On August 11, 2009, a Division Bench of the Delhi High Court upheld Justice Bhat's order, but it watered down the costs imposed on Syngenta to about Rs 1 lakh.

ps: Thanks to Prashant for bringing this interesting case to my attention.

NUJS Conference on Indian "Bayh Dole": Please Register Soon

As announced earlier, we have a full day conference on the proposed Indian "Bayh Dole" bill on the 12th of September. The final schedule is listed on the SpicyIP website.

I want to thank Indrajeet Sarcar and Ashish Alexander, two brilliant "designer" students of NUJS for giving us such fabulous art work.

Registration is free--and so is the lunch (challenging the prevailing economic assumption that "there ain't no such thing as a free lunch"). But if you wish to attend, please try and register before the 7th of September by emailing Prakruthi Gowda at prakruthipgowda[at]gmail.com. Just so that we have some idea of the numbers and can place the appropriate orders for beverages and lunch.

Since the last program, we've added a number of interesting panelists at the last session, which promises to be fun.

From Ashes to Dust – War at the Nets…

THE FACTS

Earlier this year (in April), the English High Court found Bestnet Europe, a British company manufacturing mosquito nets and its executives liable for breach of confidence for having misused Vestergaard Frandsen’s (a Danish company) trade secrets.

For more background information, Vestergaard Frandsen is a developer of leading products to prevent the spread of such diseases as malaria, diarrhoea and HIV. The company’s home page reads as follows:
“…an international company specializing in complex emergency response and disease control products…. Our products are designed to prevent waterborne, vector-borne and neglected tropical diseases. We have turned our commitment into action by innovating technological breakthroughs for the most vulnerable people on earth, with our PermaNet®, LifeStraw®, ZeroFly® and CarePack™ products. These products have the potential to revolutionize health management as we know it, fighting preventable diseases and saving lives…”

Irrespective of the veracity of these claims, what is important is that Vestergaard
 Frandsen’s trade secrets concern complex and highly effective technology 
which form the basis of their business.

A trade secret can be defined as information having commercial value, which is not in the public domain, and for which reasonable steps have been taken to maintain its secrecy. The most concise definition of a trade secret has been given by Megarry VC in Thomas Marshall Ltd v. Guinle wherein the Court identified four factors that are to be considered: (i) the owner must believe that the release of the information would be injurious to him or of advantage to rivals or others; (ii) the owner must believe that the information is confidential or secret, that is, not already in the public domain; (iii) the owner's belief must be reasonable; and (iv) the information must be judged in the light of the usage and practice of the particular industry or trade concerned. The formula for Coca-Cola and the Hyderabad fish cure for asthma are well-known examples of trade secrets.

(For greater discussion on the law relating to trade secrets refer to V. Pai et al., “Legal Protection of Trade Secrets”, available at http://www.ebc-india.com/lawyer/articles/2004v1a3.htm;
R. Chaudhary et al., “Can your firm keep its secrets?” available at http://www.managingip.com/Article.aspx?ArticleID=1969118)

In the present case trade secrets basically consist of test results and information about the best chemical mixes to be used in their products.

Before the English High Court, Vestergaard
 Frandsen alleged breach of confidence and misappropriation of its trade secrets by its former employees, Torben Holm Larsen and Trine Sig. Interestingly, the two former employees seem to have a history of committing such breach and undertaking illegal actions. In 2004, after they left Vestergaard Frandsen, they formed their first company, Intection A/S in Denmark. This company was injuncted by
 the Danish Courts (on grounds of breach of confidence). They later moved to the UK as Bestnet, together with another partner, Ole Skovmand.

As mentioned earlier, the judge held in favour of Vestergaard Frandsen and found Bestnet and its executives guilty of misappropriation, misuse of trade secrets and breach of confidence. In terms of costs, the Court ordered Bestnet to pay Vestergaard Frandsen’s
legal costs which are in the region of £4.5 million. Further, Bestnet must
 pay an additional sum of £1.5 million to Vestergaard Frandsen as an interim payment. Final damages payable by Bestnet are still to be determined.


THE INDIAN CASE

This case is of interest to us as there is a similar case involving Vestergaard Frandsen being heard in the Delhi High Court. A report gives us the following information:

“…In May 2007 Vestergaard Frandsen obtained a preliminary injunction 
from the High Court in Delhi, prohibiting the defendants from manufacturing
 or marketing NetProtect until further orders. In October 2008 Vestergaard Frandsen also obtained a further preliminary injunction from the High Court
 in Delhi restraining the manufacture, offer for sale, sale, distribution, advertising, marketing, export and/or import of long lasting insecticidal
 mosquito nets using its confidential information including but not limited
 to such nets sold under the brand name IconLife….”

I wasn’t successful in tracing these orders of the Delhi High Court. However, I did come across the decision of Justice Mukul Mudgal and Justice Valmiki J. Mehta on an interim application involving the same parties, concerning the following question:
“The issue which requires to be addressed is, where two parties are claiming exclusive ownership rights in a product and its confidential/proprietary information along with related copyright material, then in such a case whether one party is entitled to seek production of documents with respect to the product of the other party…. The related issue is if the production of the documents is to be allowed, then, what precautions are to be observed to protect the rights of the party against whom production of documents is ordered.”

The plaintiffs in this case, Vestergaard
 Frandsen, contended that the defendants, i.e., the erstwhile employees of the plaintiff mentioned earlier in the post, M/s Bestnet Europe Ltd. and their other concerns, had illegally taken away the confidential information and trade secrets, proprietary data, etc of the plaintiffs with respect to its products and were now carrying out the operations of manufacture and sale of the disputed products in India.

It is pertinent to note that the application for discovery and production of documents was originally made by the plaintiffs, Vestergaard 
Frandsen, and was allowed by a Single Judge of the Delhi High Court. The defendants appealed against the order of the Single Judge and the matter at hand was heard was an appeal before the two judge bench.


THE DECISION

On appeal, the Delhi High Court concluded that the parameters based on which discovery and production of documents will be ordered are:
(i) The documents sought to be discovered and produced have to be relevant to the matter in controversy viz matters in question.
(ii) The documents have to be in the possession and power of the person against whom discovery and production is sought.
(iii) Discovery and production of the documents which are sought for are necessary at that stage of the suit;
(iv) The discovery and production is necessary for fairly disposing of the suit or for saving costs.
(v) The discovery and production may be general or limited to certain classes of documents as the Court in its discretion deems fit and the production will only be ordered if the Court considers it just.

It should be noted that the points of relevance of documents and judicial discretion become extremely significant when one is dealing with trade secrets. If documents relating to trade secrets are produced before court and are made accessible to a third party without due cause and caution, it could essentially end the business of the company which relies on these trade secrets as the secrets would become open knowledge. The Hon’ble High Court paid heed to this fact and stated that, “the power to order production of documents is coupled with discretion to examine the expediency, justness and the relevancy of the documents to the matter in question. These are relevant considerations, which the Court shall have to advert to and weigh…”

At the same time one has to acknowledge the fact that trade secrets per se cannot be legally protected, as they are secrets; what will be enforceable are the consequential effects of breach of trust or legal contracts. Thus, the protection is negative as opposed to being preemptive in nature. For instance, if an employee has left to join a competitor and there is evidence to show that trade secrets have been revealed, then the aggrieved party can apply for an injunction against the ex-employee and the competitor, preventing them or stopping them from using the confidential information. Hence, the crux isn’t the maintenance of secrecy so much as the need for proper remedy once the secrecy is breached.

Coming back to the case at hand, based on this need to maintain confidentiality of secret documents and the delicacy of the matter at hand the Court modified the order made by the Single Judge for production of documents and ordered that steps must be taken to ensure that the confidential information so released remains confidential.


THE RELEVANCE

Given the global spread of this litigation, this case is probably going to be one of the most important cases concerning trade secret law in India. Interestingly, as our readers would be aware, India does not have any legal regime dedicated to protection of trade secrets, in spite of the fact that Article 39 of the TRIPs mandates the same.

Legal protection of trade and business secrets in India is derived from many diverse sources of law such as contract law, tort law, and laws governing employee/employer relations and fiduciary obligations amongst others. The normal practice is to depend on the employment contract, which elaborates on the nature of the proprietary material and its ownership. Moreover, it imposes an obligation on the employee to maintain confidence and stipulates heavy damages in case of any breach. An example of use of an employment agreement to enforce confidentiality is the decision of the Supreme Court in Niranjan Shankar Golikari v. Century Spg. & Mfg. Co., Ltd.

The problem is that these modes of protection are not necessarily ideal or effective. In fact, it is this amorphous nature of trade secrets law often presents a challenge to protection of trade secrets. Moreover, India also being a signatory to the TRIPS is under an obligation to amend its laws or create a new law in order to safeguard the trade secrets of various businesses. (See M. Nair, “India: Protection of Trade Secrets”, available at )

Most importantly, the absence of a specific legal regime defining the concept of trade secrets, clarifying related rights and corresponding illegal actions creates scope for bad decisions. This has been seen in the cases of American Express Bank Ltd. v. Priya Puri, Diljeet Titus v. Alfred A. Adebare and Ors. and Ms. Seema Ahluwalia Jhingan and Ors. v. Titus and Co. and Ors. These cases have been discussed on SpicyIP by Shwetasree Majumdar.

Thus, the issue is whether the hit or miss approach to trade secret law will continue or will the legislature move in to put in place a more comprehensive legal regime.

WIPO Rules in Tata’s Favour on Cyber-squatting

In a decision delivered on the 25th of last month, WIPO ruled in favour of Tata sons requiring Gurgaon-based travel portal MakeMyTrip to transfer the domain oktatabyebye.com to Tata.

On behalf of Tata, it was submitted that ‘TATA’ is a well-known and registered trademark and service mark over which Tata, being the registered proprietor had statutory rights as well as common law rights by virtue of a long and continuous use. Therefore, there was scope for confusion in the minds of relevant group of consumers (by the way, who are they?). It was also argued that the use of the word ‘tata’ in the first part of the domain name could lead to consumers assuming it to be a site maintained by them. More importantly, it was alleged that MakyMyTrip did not establish “any demonstrable preparation to use the disputed domain name in connection with a bona fide offering of goods or services” when it already had a site makemytrip.com in connection with its business.

On behalf of MakeMyTrip, the defendant, it was argued that the reason behind the creation of the site oktatabyebye.com was different from that of its parent site which justified the presence of the impugned domain. It contended that while the parent site was an online travel portal rendering travel consultancy services, the impugned site was meant to be a community portal for travellers to share their experiences and give first-hand travel advice to other wanderlusts.

It further submitted that the word ‘tata’ had been used in a colloquial sense which is to bid adieu and this was clear from the way it had been placed between the words ‘ok’ and ‘bye bye’. A relevant submission by the defendant was that the word ‘tata’ could be found on practically every truck on an Indian highway and this was used in a generic sense.

Surprisingly, the WIPO panel did not concur with this argument and said the use of the word in a generic sense did not take away anything from the allegation of confusion on grounds of being identical/similar with Tata’s trademark and service mark. The discussion on the merits of the issue in question is also very crisp in the decision. According to the panel, the use of other generic terms such as ok and byebye were immaterial and did not help to support the defendant’s case; but one doesn’t understand why the issue of the generic nature of the word ‘tata’ or its generic use was not given due attention because unless this question has been answered, the presence of other generic terms is but secondary.

The panel also went on to observe that the defendant was making commercial gain out of the disputed domain name by putting link of its site makemytrip.com on the impugned site with the intention of “fishing” new customers by cashing on the popularity of the TATA mark. First, I am not sure how was it wrong for the defendant to maintain another site, which though related to its field of business, served a different purpose; and secondly, MakeMyTrip is not running a charity after all and every decision that it takes as a prudent business entity would naturally and justifiably be directed towards furthering its interests, but this would have been germane if and when the core issue had been addressed satisfactorily, which was not the case.

If a particular portal opens another site in a bid to increase its ‘soft power’ and thereby augment its overall reach and popularity, how is it wrong? Given that the defendant in this case is not a non-entity in so far as its field of business is concerned, shouldn’t it have been given the benefit of due consideration of the merits of its case before imputing malafide motives to it?

Out of curiosity, I ran a search for sites which use the word ‘tata’ in one way or the other and I came across oktata.com and prakashindiantata.com; one would like to hear the panel’s views on these two sites. And here’s a question- if I were to run a site called ‘ihateapple.com’, where I am probably referring to the fruit, would I be guilty of infringing the rights in the domain ‘apple.com’? This is not to simplify or trivialise the issue, but to understand the ratio of the panel’s decision.

We would like to hear the opinion of our readers on the decision.

Intellectual Property Rights and Competition Law: Friends or Foes?

In several previous posts, we have debated on aspects of the interaction of IP with competition law. These issues are all the more important in Indian intellectual property now, with the coming into force of several provisions of the Competition Act, 2002. The possibility of tensions between IP and competition law seems to have been present in the mind of the legislature, when it made some IP-specific exceptions in Section 3(5) of the Act. Among the important questions which are likely to arise are (i) the treatment of exclusivity agreements and (ii) the likelihood of the (ab)use of intellectual property being categorized as an abuse of dominant position.

A more general question might arise first – are competition law and intellectual property rights necessarily at odds with each other? In “IP and Antitrust” (2007 loose-leaf supplement), Professors Hovenkamp, Janis and Lemley analyse this question. Their analysis, primarily based on US case-law, might be of some interest to our readers, and this post will briefly describe their argument. The next couple of posts in this series will then turn specifically to the Indian Act, and its possible interpretations.

So, then, is IP really in a tussle with competition law? Is the analysis in US v. Westinghouse 648 F.2d 642 (9th Circuit, 1981) that “one body of law creates and protects monopoly power while the other seeks to proscribe it” really true? Or is that statement too simplistic? Professors Hovenkamp, Janis and Lemley argue in favour of the latter. They claim:

“… intellectual property rights do not ipso facto confer monopoly power. While they do permit product differentiation, and sometimes give the owner power over price, there is a vast difference between an exclusive right and the sort of economic monopoly that is the concern of anti-trust law…”

This is an important point – arguing that intellectual property creates a “monopoly” does not automatically mean that it creates the kind of monopoly which competition law is supposed to tackle. As pointed out by the authors:

“… the vast majority of patented products and processes are commercial failures. And even where a patented (or particularly a copyrighted or trademarked) product is successful in the marketplace, it normally competes for the attention of consumers with many other products, some themselves protected by intellectual property rights. To choose just one example, virtually all mystery novels are copyrighted, yet no one could seriously claim that any one mystery novel held a monopoly in a relevant economic market…”

Furthermore (the argument runs), the goal of competition law is not to prohibit monopoly. Instead, the goal is to prohibit anti-competitive conduct – a company that achieves a monopoly without entering into anti-competitive conduct will not violate the principles of competition law at all. In sum, the argument is that there is no tension in the goals being sought by intellectual property rights and competition law (there might however be some tension in the means through which the goals are sought to be achieved). The goals in both cases are the same – “wealth maximization”.

What do our readers think about the supposed conflict between IP and competition law? Further, does IP – as it is structured today – really lead to wealth maximization? The argument that there is no conflict between the two seems to depend on this alleged fact of wealth maximization, which in turn depends on the alleged nexus between IP and the promotion of innovation. This might take us back to the “does-IP-promote-innovation” question, about which we had blogged here, here and here. Indeed, legal scholarship has advocated the restructuring of IP to actually promote the goals of innovation and scholarship. Professor Balganesh’s Harvard Law Review article is perhaps the latest reformulation, where he advocates a different approach to copyright protection to actually promote creativity. But, that is perhaps the subject-matter for another post…