Tuesday Titbits: Mashelkar, Correa and "Unnatural" Crimes

1. The Eco Times published an editorial of mine today on the Mashelkar vs Correa Controversy. I find it incredulous that Prof Correa himself has now trained his guns at Dr Mashelkar with a rather contrived "binary" proposition.

My first thought was: Prof Correa, it is but natural for an Indian to think "binary". After all, Information Technology (IT), which put us on the world economic map for the first time is all about being "binary"! But jokes apart, anyone reading the TEG's terms of reference in a straightforward, logical manner will fail to see it as anything but "binary". Perhaps this misreading of the terms of reference comes out of intrinsic differences between Argentine English and Indian English?

Unfortunately, I cannot post the ET article on the blog for another 2-3 days. For those of you who wish to read it, it is on page 15 of today's Eco Times (Delhi edition). You can also try and access it online here.. though not in an optimal readable format.

ps: Prashant Reddy wrote a very persuasive piece exposing the flaws of a commentary that attempted to draw a misleading distinction between the terms "limiting" and "excluding". I also address this specious distinction in the ET piece above.

2. Despite my best efforts, I'm unable to find a credible "IP" peg for the Naz Foundation judgment dealing with section 377 of the Indian Penal Code and the criminalisation of homosexuality in India.

So for those of you who want a small break away from the "natural" world of IP to the "unnatural world" of section 377, see this post of mine on LAOT, where I co-blog.

Incidentally, Venkatesan, a journalist with the Frontline and the key force behind LAOT has written a superb piece on the Tirupati Laddu case, which Sumathi referenced earlier.

The “Ardhnarishwar” Drug Model: Whither the Interests of Patients?

Soon after the Ranbaxy Daichi merger was announced, I had written an op-ed in DNA, commenting on the emergence of a likely "Ardhnarishwar" model in the Indian pharma industry. As a follow up to this story, the Mint carried an edit of mine in today's paper, as below:

(image from here)

The End of a Drug Alliance

"The Ranbaxy-Daiichi merger in June 2008 heralded the onset of what one might call an “Ardhanarishwar” model in the Indian drug industry, where innovator companies (creators of new drugs) and generics manufacturers came together in holy matrimony for the first time. The recent past has witnessed more such alliances, with companies such as Shantha Biotech, Dabur Pharma and Wockhardt tying the knot with multinationals, which wished to ramp up their generic capabilities. Most recently, the industry is abuzz about GlaxoSmithKline circling Dr Reddy’s to pick up stake.

The mergers appear a win-win situation for both generics companies and innovators. For one, given the recent push by most governments to reduce healthcare costs, multinational innovators get to partake in an ever lucrative generics pie. As far as Indian companies are concerned, the hope is that such unions will make them more innovative.

However, an oft-ignored consequence of such mergers is the likely impact on patient or public health groups. Ever since 1970, when India resolved to bolster its generic capabilities by denying product patents to pharmaceutical inventions, public-health groups and the generics industry have coalesced in their fight against multinational patentees. Not too surprising, since the regime shift in 1970 was premised on the assumption that creating a vibrant generics industry would also result in a reduction of drug prices and thereby benefit patients.

The recent past is, however, witnessing an increasing schism between the interests of the generics industry, on the one hand, and that of patient groups. The advent of the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the consequent pressure to conduct more research and development to survive in an increasingly competitive world market may have prompted part of this schism. Indeed, even prior to its merger, Ranbaxy was speaking a language familiar to multinationals—it actively supported the grant of patents to incremental inventions in its submissions before the Mashelkar committee.

This schism is even more evident in the debate over price controls. Illustratively, Cipla is routinely targeted by the National Pharmaceutical Pricing Authority for overpricing its drugs in India, indicating that the interests of the generics industry are not always aligned with that of patient groups.

With Indian generics firms now acquiring dual personalities, and speaking the language of patents and innovation, the number of patent oppositions mounted by generics companies against their innovator partners is likely to decrease. Indeed, a cursory examination of patent challenges filed the world over would indicate that one multinational innovator rarely challenges the patent of another.

It bears noting that the Indian patent regime contains what is probably the world’s most potent and comprehensive “opposition” mechanism, where a patent can be challenged for embodying only a trivial, non-meritorious invention.

A recent study by the author, based on publicly available patent opposition decisions, shows that of the 9,719 pharmaceutical applications filed since 2005, only 34 were challenged in an opposition. Of these 34, patient groups were involved in only three challenges, indicating perhaps that they may have relied on generics companies to take on problematic patents in a vast majority of the cases.

Depending on which side of the ideological fence one is on, the recent alliances between originators and generics could be seen as either “holy” or “unholy”. But what is incontrovertible is the fact that patient groups can no longer rely fully on the generics industry to take up cudgels on their behalf. They have to enhance capabilities and challenge more unsavoury patents to fulfil the mandate bestowed upon them by ailing patients."

SpicyIP Tidbit: Role of Science in Policy-Making

More than a week ago, my attention was drawn to this interesting link to a guide on including scientists in innovation policy making, published by UK's National Environmental Research Council (NERC). NERC sees itself as an entity whose purpose is to undertake research in areas which have critical public policy implications.

This objective requires it to not only communciate the results of its research to those in the corridors of power, but also help the governmental and non-governmental machinery make sense of the results in a manner which helps them calibrate their responses to issues and challenges. This, in turn, requires a certain level of policy awareness on the part of a researcher because in most such cases, the trigger for the research is the issue and so the research cannot be open-ended. A practical spin-off is to help the researcher retain his focus using policy issues as “blinkers”, if I may call them so, which, needless to say, keeps research budgets within check.

As for the angle for policy makers, sound scientific evidence to back their proposals is always an add on. More so, if the issue concerns innovation in general or environmental research, which in the past few years has provided us with a lot of food for thought on validity of certain claims made by warring groups and the “evidence” cited to substantiate their respective positions. The long and short of it is that the guide lays emphasis on increased awareness on the part of scientists and policy makers which is possible only by frequent interactions.

From an IP perspective, I am sure patent practitioners would agree when one says that this kind of informed communication channel is an absolute must between the inventor, patentee, patent drafter and the litigator if the activity has to be meaningful and yield results. I would say that communication within these individuals who are involved in patenting and defending patents would seem an obvious requirement, what wouldn't seem banal is the need for such a guide book for the judiciary because wherever science comes into play, policy cannot be viewed in isolation.

A few others could do with this guide too...a year ago, I was surprised to read a mail from the member of the editorial board of a journal in which he sounded very sure of himself that the decision taken by certain countries, including India, not to grant patents to computer programmes per se was but a policy decision and that a discussion on the scientific underpinnings of such a decision was irrelevant...I think this guide would come in handy when I try again, with cautious optimism, to explain my point of view to the gentleman...

SpicyIP Events: International Seminar on TK, New Delhi, Nov 13

The Federation of Indian Chamber of Commerce and Industry (FICCI), in cooperation with the World Intellectual Property Organization (WIPO) & the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry of the Government of India, is organizing an International Seminar on Traditional Knowledge at FICCI, New Delhi, on 13 November 2009.

The Seminar will be inaugurated by His Excellency Dr. Francis Gurry, Director General of WIPO, and will be attended by participants from across the world.

This international conference will assist stakeholders in sharing experiences, articulate views and provide meaningful recommendations on the following issues:

• i) The State of Play in the International Protection of Traditional Knowledge (TK) and Traditional Cultural Expressions (TCEs); and
• ii) The Effective Protection of Traditional Knowledge and Cultural Expressions: National and Community Experiences.

For more details about the Conference, including the programme, and the response proforma, please visit the event website: http://www.ficci.com/events-page.asp?evid=20221

SpicyIP Tidbits: The End of 'End User License Agreements'?

In a very recent judgement a U.S. District Court has ruled that the purchase of Autocad software from Autodesk under an End-User Licence Agreement (EULA) was not a licence but a sale. As a result the Court held that that a person who purchased the Autocad software could re-sell the same to another party and that Autodesk could not stop such a sale since it had exhausted it rights under the first sale doctrine. (Image from here)

The facts of the case are simple: Autodesk had initially licensed the Autocad software to an architectural firm by the name CTA Associates. CTA Associates was supposed to have destroyed the software in question when it got an upgrade from Autodesk. CTA however in breach of the licensing agreement sold the software to Timothy Vernor who made a living for himself by trading on E-Bay. Vernor then put up the software on E-Bay in response to which Autocad sent E-bay a take-down notice on the grounds of copyright infringement. Vernor disputed this by stating that he had original packages of the Autocad software. Vernor then succeeded in selling two copies of the software on the website after which he filed for declaratory relief on the grounds that Autodesk had no right to interfere with his business activities since it had exhausted its rights on the software under the first sale doctrine.

While analysing the agreement the Court noted that the label given to the EULA agreement by Autodesk was of no relevance and that the nature of the agreement had to be determined according to its content. Going by previous precedents of the Ninth Circuit the Court held that one of the main factors that distinguished on whether an agreement was a sale or a licence was whether the agreement had a clause requiring a return of the software package to Autodesk after a certain period of time. According to the Court this was the crucial factor in distinguishing between a sale and a licence. Analysing the EULA under which Autodesk was 'licensing' its software the Court held that the EULA did not have any such clause requiring return of the software package and thus the agreement could be termed as a transfer of ownership and not a licensing agreement. In this context the Court made a crucial distinction i.e. while Autodesk was well within its right to licence the terms of the use of the licence it had, for the purpose of the law, sold copies of the software package. Therefore although Autodesk sold the software package it could still enforce restrictions on fair use or reverse engineering or on how many computers the software as such was used. The distinction is therefore between the intangible software and the tangible software packages. Thus even if the person did not have the right to make copies of the software package in his possession he could still transfer ownership of the package as such to another person. A software manufacturer like Autodesk would not have the rights to control the future transfer of the software package since it would have exhausted its rights under the first sale doctrine. The implications of this judgement are massive for the software industry in the U.S.A. since it has opened up a market for second hand software packages.

It remains to be seen how this judgement will hold on appeal especially since the Ninth Circuit has a series of conflicting precedents on this point. The District Court chose the earliest of these conflicting judgements.

In a related development the Patently O has reported that the U.S. Supreme Court has indicated an interest in a case involving parallel imports and exhaustion of rights in an intellectual property rights case that involves the sale and transfer of Omega watches.

The Vernor v. Autodesk judgement is available here.

SpicyIP Tidbit: The Laddu and after

SpicyIP ran a guest post recently on a post-grant analysis of the Tirupati Laddu geographical indication (GI). The post itself received an overwhelming response from readers, most of whom were in agreement with the author's views that the Tirumala Tirupati Devasthanam (TTD), being the sole producer and sole beneficiary of the sale of the product, could not qualify as a legitimate "association", as required under the GI Act.

A Bittersweet Tale

Apologies to those who feel the story's been done to death, but I can't help but draw your attention to an excellent analysis by V Venkatesan , entitled "Bittersweet Status" in the latest issue of Frontline who similarly argues that the TTD may not have met the requirements of establishing that it was an association of producers. I quote some key paragraphs below:

"According to experts, the dual objectives of the registration and protection of G.Is. are to protect the community rights of stakeholders and to prevent the consumer from getting deceived or confused by fakes or substandard products. The TTD’s application satisfies the second objective but not the first. In the prescribed application, the TTD has mentioned only TTD against the column on the list of association of persons/producers/organisation/authority.

...It is tempting to term G.I. as the poor man’s I.P. (intellectual property) in India because most of the stakeholders of G.Is are farmers, artisans and craftsmen belonging to the lower economic strata and, ideally, the benefits of G.I. registrations must trickle down to them. If instead of the TTD a community of skilled cooks in and around Tirupati makes these laddus, and supplies them, after due quality checks, for distribution to pilgrims visiting Tirupati, then the registration as G.I. may be warranted.

Experts in I.P. are, therefore, worried that the granting of G.I. status to Tirupati laddus militates against the very spirit of G.I. protection, which is aimed at protecting, preserving and promoting collective community rights as opposed to private monopoly rights. They point out that permitting such registrations can lead to a situation where a community or private enterprise carrying on a monopolistic business can get a G.I. for its product if it can demonstrate that it is the only one manufacturing or producing the product and that this product has unique features..."

In defence of the Laddu

The same article, however, does contain a defence against these allegations:

"Subodh Kumar of the Andhra Pradesh Technology Development and Promotion Centre, who had a major role in drafting the TTD’s application and statement of case before the G.I. Registry, said that Section 2 (k) (iii) of the GIGA defines producer as any person who makes or manufactures the goods, and that under Section 2(n) of the GIGA, any organisation could be the proprietor of the G.I. In other words, according to him, the GIGA protects the G.I. of a single producer, such as the TTD, as well as a community of producers, if there is any."

Meanwhile, TTD itself appears to have been mysteriously silent on this whole issue. I have to admit I am yet to come across a formal statement from the Devasthanam about its registration or a response to the clamour surrounding it. If any readers have a clue, do post a note in the comments section.

The Trendy Laddu?

On a related front, and as though the Frontline article had portended it, regular reader and commentator RS Praveen Raj points us to a news report in the Economic Times that the Pazhani (or Palani) Murugan temple in Tamil Nadu may be contemplating a GI application on similar lines, for its 'Panchamritam' prasadam made from local ingredients (Image from Wikipedia):

The Chairman of the Temple Trust, S Balasubramaniam, is reported to have told ET the following:

"[T]he trust will also consider applying to the Patent office for geographical indication (GI) for panchamirtham, since the final product is a generic one with a unique mixture of Viruppachchi plantains, kandasari sugar from Kangeyam area, dates, honey, sugar candy, cardamom and ghee in proper proportions.

The Viruppachchi plantains grown exclusively in the Palani Hills already has a GI status and Palani temple has a tie-up with the farmers for this important raw material. "The small-sized virupachchi plantain has very little water content and therefore it is highly suitable for preparation of panchamirtham," said Mr Balasubramaniam."

Ah, it's that religion and IP affair again, you say: what a devil of a combination.

If (legal) knowledge is wealth, then you can get it for free now!

The India Business Law Journal is a monthly magazine (published 10 times a year) that specializes in providing detailed and comprehensive analysis of the legal, financial and regulatory scenario challenges that feature prominently in the Indian business world. Among other things, this journal seeks to provide vital intelligence to the subscribers (the present list of subscribers can boast of prominent names such as Allen & Overy; Amarchand Mangaldas; Aon; Ashurst; AT&T; AZB & Partners; Baker & McKenzie; Bank of America; Bennett Coleman & Co; British American Tobacco; Cairn Energy; Caterpillar; Chadbourne & Parke; Cleary Gottlieb; CLP Holdings; Coca-Cola; Davis Polk & Wardwell; Deutsche Bank; DLA Piper; Dorsey & Whitney; Eversheds; FCI Asia; Fladgate; FoxMandal Little; Genpact; Geometric; Gibson Dunn & Crutcher; Hildebrandt; Hogan & Hartson; Honeywell; Jones Day; Jones Lang LaSalle; Kraft Foods; Meiya Power; Milbank Tweed Hadley & McCloy; Nokia; O'Melveny & Myers; Owens Corning; Paypal; Ranbaxy Laboratories; Reed Smith; Research In Motion; Rio Tinto; Schroder Investment Management; Shearman & Sterling; Siemens; Slaughter and May; Sullivan & Cromwell; Symantec; Texas Instruments; Videojet Technologies; White & Case; Yahoo, and many other leading Indian and international businesses, financial institutions and law firms) so as to enable the latter to take advantage of the country’s rapid economic growth and increasing scope provided by it to the cross-border commercial transactions.

The focus areas of the journal include intellectual property law, corporate finance, taxation, dispute resolution, mergers and acquisitions, labour law, FDI regulations and many more disciplines. Its contents involve information on all major sectors including IT, telecoms, infrastructure, biotechnology, finance, power and outsourcing, critical analysis of the underlying legal structure of significant business transactions. Further information about the journal can be obtained from the link available at the Spicy IP Website (here) or from here.

In what ought to be perceived as a laudable move, the journal has decided to offer 200 free annual subscriptions, each worth US$790 to law students (both graduate & post-graduate) at academic institutions in India. To qualify for the said free subscription, one has to be a full-time LLB or LLM student at a recognized academic institution in India. Application form for the said offer (which is being offered on a first-come-first-serve basis) can be obtained from here. The application must be accompanied by a formal letter from the applicant’s academic institution, confirming his status as a current full-time student on an LLB or LLM course. The said letter should also bear the official stamp or seal of the institution concerned.

This move ought to be welcomed by the Indian law students, who are in the best position to truly appreciate the value of quality legal journals being available to facilitate legal research and scholarship (and perhaps also to fill in the necessity of substantiating that n-th number of footnote!). One wonders whether this is the first step that will be followed by other leading law journals too. Perhaps nothing will be able to match the state of euphoria that law students will be in then!

[This post is actually to be attributed to Ms. Prakruthi P. Gowda; I'm merely filling in for her owing to her being unavoidably indisposed otherwise]

The Big Bad Wolf as the friendly next-door neighbor


(A mixture of the Wolf in Little Red Riding Hood, and the Wolf in The Three Little Pigs, he is a friendly misunderstood crossdresser whom the Fairy Godmother unaffectionately refers to as "some gender confused wolf." He appears to still be wearing Lil Red's grandmother's clothes and is apparently on good terms with the three little pigs. In Far Far Away Idol, he sings "Hungry Like the Wolf". In recent "Shrek The Halls," he shows off a sarcastic attitude. Available at http://spanengrish.blogspot.com/2007/12/transgendered-characters-in-children.html)



This post examines Andrew Witty’s proposal to introduce patent pools to fight diseases in underdeveloped/poor countries. The interesting fact about his proposal is that he offers to introduce such pools for ‘neglected’ diseases. However, HIV/AIDS that causes maximum number of deaths in these regions (especially Africa) is not covered, and as per Mr. Witty it doesn’t fall within the ambit of a neglected disease. Really now?



PROBLEM: PHARMA SECTOR AND PROFIT MARGINS

The pharmaceutical sector, traditionally controlled by companies situated in developed countries has resulted in market power being concentrated and often serving the profit margins of these companies. The point being that the companies have often used their profitability to lobby with the governments and the governments in turn have used their economic and political strength to further the cause of these companies, product patents being one such example.


One could say that given the concentration of power, these companies often behave like the big bad wolf placing profits over patients. It should be noted that developing and underdeveloped countries alone don’t face this problem of expensive medicines. In the European Commission's press release IP/09/1098 dated July 8, 2009, EU's Competition Commissioner, Neelie Kroes stated that, "We must have more competition and less red tape in pharmaceuticals. The sector is too important to the health and finances of Europe's citizens and governments to accept anything less than the best… When it comes to generic entry, every week and month of delay costs money to patients and taxpayers." In a related report it was further stated that, "citizens waited more than seven months after patent expiry for cheaper generic medicines, which resulted in costs of over 20 per cent in terms of extra spending…" Given this background the Commission stated that, "the first antitrust investigations are already under way, and regulatory adjustments are expected to follow dealing with a range of problems in the sector."



ATTITUDES

So there is this problem, the other problem is that the companies producing the branded drugs are more interested in preserving margins as opposed to solving the problem of access to medicines or reducing red tapeism in the pharma sector. It follows from this attitude and the statement of the Commissioner that, the production of cheaper medicines by generic drug manufacturers situated in countries like India and Brazil comes as a severe blow.


More importantly, the reduced margins also provide evidence of the minor but important shift in market power in favour of generic manufacturers. For instance, in present times, in order to receive any support for their claims of intellectual property rights violation, apart from a pure rights based argument, branded drug manufacturers put forth arguments like generic versions aren't the best quality and so on (again as regards quality while such a general statement as such in relation to generic manufacturers is wrong, there have been quality problems with generic versions in the past as often counterfeit drugs are passed off as generic drugs.)


Moreover, similar to Microsoft's efforts to beat the popularity of the FLOSS movement, branded drug manufacturers have stepped up their attempts to ensure access to medicines (their branded drugs), especially in the poor and underdeveloped countries where expensive drugs are simply unaffordable and result is high mortality rates in the absence of other options.



FAIRYTALE ENDING??

Like any fairytale, we now see the entry of the good guy who tries to reform the mojo jojos such that the big bad wolf and red riding hood to serve the sick/ill old grandmother together

The good guy here is Andrew Witty, CEO, GSK. Earlier this year Sumathi had written a post on Mr. Witty's proposal (on behalf of GSK) for promoting and offering to be part of voluntary patent pools to develop treatments for neglected diseases. As stated in the post, this claim was made in an article published by the Guardian. Obviously, the concern shown by Mr. Witty resulted in widespread admiration for a man standing up to flex rules for social welfare. The Guardian dedicated an editorial in his praise. An expert from the editorial reads as follows:

“.. It is thus heartening that pharma giant GlaxoSmithKline has a new boss who grasps that patents are a social construct that must rest upon an ethical foundation. Andrew Witty tells today's Guardian that he will slash drug prices by 75% or more in the poorest countries, and freely share patented knowledge about diseases such as malaria, which the industry has long neglected because so few victims can afford innovative treatments…”


There isn’t a shred of doubt that this step or attempt needs to be acknowledged. However, the question is whether the step is constructive in reality. This aspect will be examined in this post.


WHO defines neglected diseases as follows, “those diseases that affect almost exclusively poor and powerless people living in rural parts of low-income countries.”


Thus, as per this definition the lack of the following points makes a disease ‘neglected’:
Lack of Availability, i.e., availability of drugs in sufficient numbers,
Lack of Accessibility, i.e., those diseases that “affect almost exclusively poor and powerless people living in rural parts of low-income countries.”
Lack of Quality, those diseases that “affect almost exclusively poor and powerless people living in rural parts of low-income countries.”


Further, the WHO website lists AIDS as the leading cause of death in Africa. The details are produced below:
* The African Region has 11% of the world’s population, but an estimated 60% of people with HIV/AIDS.
* HIV/AIDS is the leading cause of death for adults in the Region.
* The number of HIV-positive people on antiretroviral treatment increased eight-fold between December 2003 and December 2005: from 100 000 to 810 000.


Moreover, the drugs for HIV/AIDS, which help cure/treat the disease are way too expensive for the general junta of these countries and are also unavailable. As per statistics, in Africa AntiRetroviral Therapy (ART) is only reaching 23% of those who need it; another 3.6 million people need ART.


Hence, we see that given the statistics, HIV/AIDS would be a neglected disease as per WHO’s standard, i.e., neglected from the point of the victim/patient. Given this scenario, one can legitimately ask, (a) Can Mr. Witty define neglected and (b) how is the voluntary patent pool helping? The answer, regrettably, is that Mr. Witty cannot define neglected from the patient’s perspective and consequently the patent pool does not cover HIV.


Michelle Childs argues against such exclusion and states that, “He [Mr.Witty] is saying there is no need for a patent pool for HIV. Our position is that there is an urgent need for a patent pool for HIV because of the rising prices of new first and second line drugs for patients who develop resistance."


The problem is that given the statistics and WHO’s definition of neglected diseases, Mr. Witty’s claim falls through.


This lacuna is addressed by the efforts of UNITAID, an international drug purchase facility, who attempts to put together patent pool related to AIDS treatments. UnitAid welcomed GSK’s announcement of a patent pool to tackle neglected diseases and place its patents for necessary medicines into a pool.


Also, possibly looking at this step as a building block, Guardian reported that, leading UK and international organizations wrote to GSK urging it to pool its patents on HIV medicines to help save millions of lives in developing countries. As per the report, the letter is from 15 organisations, including the Stop Aids Campaign, Médecins Sans Frontières, Unicef and Christian Aid, calls on GlaxoSmithKline to join a patent pool being put together by Unitaid, which aims to improve access to drugs for HIV/Aids and other diseases in poor countries.


Interestingly, as per reports by the Guardian and Local Tech Wire, this letter was sent to Mr. Witty post his claims that enough was being done by GSK to address the problem of HIV/AIDS in developing countries and that it wasn’t a neglected disease. He also stated that he did not know enough about UnitAid and had only read about them in the papers. [It was after this statement that the letter was sent to him by UnitAid asking him to join the patent pool. However, by saying that Aids is not a neglected disease methinks that he has already rejected the idea of joining this pool.]


Thus, we see that the sheen is already wearing off Mr.Witty's proposal of the voluntary patent pool to help fight diseases at an affordable cost in poorer countries. To be fair, he had said this at the very beginning, that the proposal will not cover AIDS/HIV. However, given the statistics one fails to understand how his reasoning would work. If 60% of the population is dying of a disease, their treatment is neglected and shouldn’t that be the focus of patent pools aiming to solve health problems in developing countries. So, the problem is, I fail to understand how, for Mr Witty, malaria is a neglected disease and AIDS isn’t!!


Then again not everyone can define ‘neglected’.

SpicyIP Nashery: The Revenge of the Trademark Lawyer

The world is made up two sorts of people - the gifted versifiers, and the rhythmically and metrically challenged. Much as I would like to have been otherwise, I most definitely fall into the latter. I do, however, know a most talented comic poet, who also happens to be one of the brightest young IP lawyers in town.

Shefali Sewak, who graduated from Lady Shri Ram College, and the Faculty of Law, New Delhi, has practised as an IP attorney at the Delhi High Court and the Trademarks Registry for the past five years. She recently decided to take a mid-career break, and has joined the LL.M in IP programme at the Franklin Pierce Law Centre.

While acclimatising her tropical sensibilities to a wintry autumn in New Hampshire, she also found time to compose the absolutely delightful verse below, which I hope you will all enjoy, just as I did. This piece will touch a chord especially with those trademark folks who have had to live in the shadow of those higher mortals, the patent practitioners of this world.

I must point out that Shefali, in addition to having won some well-fought injunction matters, has a treasure trove of comic verse up her sleeve, which she shares with people but rarely. I certainly hope she publishes a compilation of her poetry some day soon!

(The photo, in case you're wondering, is that of Ogden Nash, whose literary heritage, I am pleased to inform you, remains very much alive).

The Revenge of the Trademark Lawyer
by Shefali Sewak

O, Soft IP! O, Soft IP! How palpably disparaged are thee.
It mocks with insufferable slurs, that patent bourgeoisie.
I object to Hard IP’s insolent ‘softening’ of my worthy profession,
And protest with staid gravity to its’ self-declared accession.

For what is feeble and puny, I ask without compunction,
About getting millions in damages with an extravagant trademark injunction?
And if I claimed as mine, words that were in fact Chisum’s,
Which patent, I wonder, would cease my bootlegging and plagiarism?

No amount of specifying claims, or for that matter, claiming specifications,
I fear would accomplish much in preserving a geographical indication.
So unless a patent can prevent Indian cider being labelled as ‘champagne’,
From the veneration of patents, I think the world could safely refrain.

Bill Gates, I speculate, at ‘Hard’ IP, has likely scoffed.
For when it came time to christen his brainchild, don’t you know, he went with Microsoft?
So if you’re not dabbling in patents, don’t worry, your trade isn’t ‘soft’.
There’s a new term for what you’re doing. It’s called ‘IP Aloft’.*

*Note: I don't hold a patent on ‘IP Aloft’. I do, however, hold the copyright. Ha!

SpicyIP Events: WIPO Forum on Creativity and Inventions, New Delhi, Nov 11-13

The World Intellectual Property Organization (WIPO) is organizing an Inter-regional Forum on “Creativity and Inventions – A Better Future for Humanity in the 21st Century”, in cooperation with the Department of Industrial Policy and Promotion (DIPP), Government of India, and the Federation of Indian Chambers of Commerce and Industry (FICCI) at Crowne Plaza Hotel, New Delhi, from 11th to 13th of November 2009.

The conference seeks to bring stakeholders together to share experiences, articulate views, and provide meaningful insights into various issues, including

• The Evolving Global Economy and its Impact on IP
• The Role of IP in Promoting, Generating and Accessing New Technologies
• The Innovation Paradigm: Effective National IP and Innovation Eco-systems
• The Creativity Challenge: Sustained Generation of and Access to Knowledge
• Dynamic Use of IP for Business Competitiveness
• Building Respect for IP

The Conference will be addressed by His Excellency Dr. Francis Gurry, Director General, WIPO.

The Conference will be attended by representatives from Bangladesh, Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Pakistan, the Philippines, Singapore, Sri Lanka, Thailand, and Vietnam, among others. It will also be attended by representatives from the Government of India, the Association of Southeast Nations (ASEAN) Secretariat, the ASEAN Working Group on Intellectual Cooperation (AWGIPC), as well as others from Japan, Republic of Korea, Cambodia, Philippines and Thailand.

Further details about the Conference, the programme copy, response proforma, and related material may be accessed here.

ICANN renders 'domain tasting' unpalatable

The Hindu recently carried an extremely interesting article by T. Ramachandran on how ICANN has made the practice of 'domain tasting' unpalatable for those who were abusing it. As most of you may know 'domain tasting' refers to the practice of whereby a person or company registering a domain name is allowed an 'Additional Grace Period' (AGP) during which he can judge the traffic towards the domain name. If the person is not satisfied with the domain name he can return the domain name to ICANN and get a full refund of the registration fee. One of the other reasons for having a five-day AGP was also to allow a person to correct a spelling mistake that may have crept into the registered domain name. It must be remembered that registering domain names was not always as cheap as it is today. In the good old days it could cost almost $35 dollars to register a domain name.

However, as always, the additional 'grace' period had to be disgracefully abused. The modus-operandi used to be as follows:

Companies/persons would register those domain names which spelt similar to popular domain names, popular misspellings or generic names. Advertisements would be placed on these websites through programs such as Google's Ad-Sense program and in the five day 'grace' period people visiting the website through the domain name would end up clicking on the advertisements thereby generating revenue for the domain owner. Once the 5 days grace period lapsed the domain would be returned for a full refund thereby generating a tidy little profit for the domain taster.

The problem with domain tasting, apart from the ethical angle, is that it deprives genuine users the use of the domain, as very often once a domain is dropped by one taster it is picked up by another taster who will then circulate it to another taster. Since the entire process is carried out by automated bots it costs the taster hardly anything. The dead-weight loss for society however is higher.

In order to combat the practice of 'domain tasting' ICANN came up with the following solutions: 1. They first decided to stop refunding the transaction fee of $ 0.20 if more than a certain number of domain names were returned by the same company. 2. Consequently ICANN increased the penalty to the cost of registering the domain name. Both these measures combined have resulted in the domain name returns decreasing by almost 99.7%.

This is an interesting model of how internet governance and how ICANN has managed to successfully adapt itself to face a new problem. In other news I'm glad to note that the Government of the United States has finally granted ICANN some measure of independence.

Read the story of ICANN's independence over here.
Read the Wikipedia entry on domain tasting here.
Read the ICANN press release on domain tasting here.
Read the Hindu story on domain tasting here.

Notes from a GI Seminar

This post emerges from the National Seminar on Geographical Indications held in New Delhi recently which I had the opportunity to attend in part. That 'part' extended only to the first day, but shed some interesting light on the evolution of GI protection in India. (Details of the event, organised by the Centre for WTO Studies, IIFT, can be found here). For the benefit of readers, I highlight below three issues that emerged in discussion that day which I found of particular interest myself. Perhaps you will too. And we can throw open the debate online.

Educating GI beneficiaries

A team of researchers working on the Baluchari GI were concerned that oftentimes the weavers or the artisans - who were the direct creators of the product in question - rarely got the opportunity to speak or voice their concerns. (This had emerged in interview sessions with crafterspersons and traders in the business). Instead, intermediaries - e.g., manufacturers, traders, and exporters - invariably hijacked situations to their advantage, silencing the artisans and taking the limelight and the benefit away.

This could be due to differences in education, relative social status, or other sociological reasons, but it raised a more fundamental and immediate need of educating the potential beneficiaries of GI protection. It is evident that without any understanding of the concept of a GI, or the advantages and benefits of a GI, it seems futile to blindly pursue registration. The question remains - whose duty is it to do so? I speculate below. (Image from here)

The applicants for a GI registration are an association of persons, which necessitates the presence of an organised entity of some kind managing the operations of the artisan-producers. Is it the responsibility of the association to ensure that the artisans understand the nuances of a GI? I am not too sure of the answer, for it may remain in the interests of the association (of managers) to keep the artisans in the dark, since a better-informed artisan population may potentially eat into the benefits they hope to derive from such registration. On the other hand, an informed artisan population may be inspired to innovate and improve in existing products with the knowledge that their creations will fetch a premium in the market. Do you have any other suggestions? Or are you comfortable with the status quo?

I would like to point out that this is an issue that will surely gain importance in the coming years, as and when the number of GIs granted increases. Introspection will be necessary at some point, once the mad rush of granting GIs decelerates, and the administration attempts to examine if this form of protection is serving the purpose it was intended to, at least in India. I had raised concerns about the purpose of GI protection here and here, citing the examples of Kangra tea and Kullu shawls.

The Chinese Threat

Researchers studying the brass metalworks of Moradabad had empirical evidence showing that the artisans/metalworkers were the least informed about GIs. The team also hit another raw nerve - the Chinese threat to Indian goods, and particularly to the traditional arts and crafts in India.

Several concerns went back and forth between members of the audience, essentially reiterating that the Indian manufacturing sector had been hugely hit by the import of Chinese goods in the market, which were, among other things, inauthentic and of cheaper materials and price. Someone did have the sense to refer to the vagaries of the market, and of simple things like demand and supply, but the emotional tug of 'swadeshi", and so on, overwhelmingly swept the audience. There did not seem to be a satisfactory answer to troubles Oriental, and it was left at that.

The Case of Inter-State GIs

The problem of cross-border GIs has been done and dusted. Well, not quite, perhaps, but it is certainly an issue that everyone is aware of: Kutchi embroidery, Basmati Rice, Pashmina work, Madhubani painting, Kantha embroidery - these are all cases where India's IP interests collide with those of neighbourhood countries. These disputes (potential, if not already extant) are combined with that peculiar legislative limitation of necessitating the protection of a GI within your national boundaries before seeking protection in any other jurisdiction. But that was a delicate subject left for another day.

Instead, the debate - appropriately - turned within, when attention was drawn to the participation of the states in GI protection. Highlighting this peculiar form of passive infighting was the case of Bidriware, which comes from the region of Bidar that straddles the states of Karnataka and Andhra Pradesh. (Image from here). Aysha Shaukat, who was with SpicyIP until recently, was closely engaged in this research project, and had also highlighted this issue on the blog some months ago.

An enterprising state Handicrafts Development Corporation in Karnataka helped the artisans within their side of the border gain protection. But this came at the cost of a loss of identity for metalworkers in Andhra Pradesh, who could not acquire similar institutional support from their own state administration. Surely it is hypocrisy to expect an international solution to emerge in matters as grave as Basmati if we are unable to resolve near-identical issues within. Some food for thought.

Indian innovation: Prof. Anil Kumar Gupta on the Cross Pollination of innovation and its promotion

Recently, Sumathi pointed the SpicyIP team to this article in the Wall Street Journal about Prof. Anil Kumar Gupta and I grabbed the chance to post about him before anyone else could. I first heard about Prof. Gupta last year, when as a member of the Editorial Board for a Journal published by my University, we began to look for diverse influences in the sphere of Intellectual Property to be on our Advisory Panel.

Prof. Anil Kumar Gupta in my mind, is exactly that sort of person. Having read about his work, it absolutely amazes me to see grassroot innovation being supported in a large scale manner.

The interview in the Wall Street Journal is an insight into the work that Prof. Gupta and his teams at the National Innovation Foundation and the Honey Bee Network do. They hope to promote and "cross pollinate grassroot entrepreneurship" and that effort has resulted in 120,000 inventions/ innovations thus far.

The interview touches upon various interesting issues that Prof. Gupta and his team have obviously had to encounter. Whether it be the need to credit research, the concept of "technology commons" or even homogenization vis-a-vis globalization, the interview gives the reader a lot of food for thought.

My interest in the article apart from truly understanding how the cross-pollination of innovation works, lay in Prof. Gupta's experiences with the Indian Government and Indian companies and their complete lack of interest/ indifference in using indigenous innovations.

Prof. Gupta narrates various instances of a prestigious Automobile Company, Ministries of the Government and even NGOs all of whom have either ignored and/or failed to respond to and/or shown no initiative to change their ways to adopt grassroot innovations. This would lead us to believe that either they were averse to change or did not trust inexpensive indigenously developed inventions in their industries.

This actually would tie into an article Shamnad had sent me a month or so ago. Low cost laptops manufactured by an Indian were licensed to be sold in Malaysia and Brazil, all because (as the inventor put it), "Indians have a record of not trusting Indian Technologies."

Shamnad in the same context, had also mentioned a saying in Malayalam "Mutthate mullake vassanai illai" (The jasmine at home has no smell).

I think in this background, it is necessary for us to take a step back and acknowledge that Indians are wary of using Indian technology and domestic goods, worrying as to their "quality" or efficacy when compared to internationally produced goods or inventions. However, with the effort of people like Prof. Gupta, his foundation and network of Honey Bees(!) maybe we will not be so cynical and, sooner rather than later, recognise the true potential of the flowers that grow in our garden.

Montblanc's 'Gandhi pen' lands in court

"I have no copyright in my portraits but I am unable to give the consent you require."

Thus wrote Mahatma Gandhi in May 1931, in response to manufacturer who wanted to use his portrait in roofing tiles. Nearly four score years on, an international luxury brand wants to do precisely what Gandhi expressly bid against - use his portrait in the manufacture of prohibitively expensive, limited edition pens.

But it's been a noisy launch, and perhaps very unexpected and discomforting for a brand accustomed to the more understated corridors of marketing... As it has turned out, within days of announcing the launch of Montblanc's limited edition pens commemorating the 140th birth anniversary of MK Gandhi, the German premium pen maker has been issued a notice by the Kerala High Court on a writ petition seeking a ban on the marketing and sale of these pens. (Image from here)

The Petition

The petition has sought relief on grounds that the manufacture of these pens is wrong, illegal and liable to be prohibited under Indian law. The petition was filed by Dijo Kappen, managing trustee of the Centre for Consumer Education at Pala in Kottayam, Kerala.

Specifically, the petition draws attention to Section 3 of the Emblems and Names (Prevention of Improper Use) Act, 1950 (download link), under which

"no person shall, except in such cases and under such conditions as may be prescribed by the Central Government, use , or continue to use, for the purpose of any trade, business or calling or profession, or in the title of any patent, or in any trademark or design, any name or emblem specified in the Schedule or any colourable imitation thereof without the previous permission of the Central government"

Further, Entry 9A of the Schedule to the Act lists “the name or pictorial representation of Mahatma Gandhi” as an item that categorically cannot be used for the purpose of any trade, business or profession under the provisions of the Act. (Image from here)

The petition argues that "Mahatma Gandhi is considered as the epitome of simplicity"... and "Making him the symbol of a 14 lakh pen is nothing but an attempt to degrade everything that Gandhiji symbolised, and to mock a nation of middle class and individuals below the poverty line who look up to him and who he tried to liberate."

Gandhi viruddh Gandhi

According to this BBC report, "Gandhi's great-grandson Tushar Gandhi has endorsed the idea. His charitable foundation has already received a donation of $145,000 from Montblanc and will receive between $200 and $1,000 for each pen sold." Tushar Gandhi is reported to have announced at the pen launch that “It’s a pen which Gandhiji always associated with, it was his greatest tool. Also the donation is for an Indian Trust,which is for the good of the Society.”

The petition counters that the Rs 70-lakh donation received by the Kolhapur-based charitable trust, and Tushar Gandhi's subsequent comment is nothing but a "mischievous statement intended to give an impression that the Mahatma used Mont Blanc pens."

Tushar Gandhi seems to the only man standing in the Gandhi family in his endorsement of the brand. In an overnight response to the launch, the Mahatma's governor-grandson, Gopalkrishna Gandhi, has written a moving piece of his grandfather's relationship with the pen and the act of writing. Here, he recalls the story of the tile manufacturer quoted at the top of this note, as also other anecdotes which clearly suggest that Gandhi himself would have objected to the use of his portrait in this manner, were he alive today.

Montblanc taken by surprise?

Meanwhile, Montblanc executives appear to be flummoxed: In an interview with the BBC,the company's chief executive Lutz Bethge stated that the pen was intended to honour Gandhi, and he "wouldn't have thought that people would have reacted negatively".

For those wondering what on earth this story is referring to, on September 29, Montblanc released limited series of luxury pens priced at about Rs 14 lakh each, called "Mahatma Gandhi Limited Edition 241" and "Mahatma Gandhi Limited Edition 3000" in India. The pens, handmade in gold and silver, are engraved with Gandhi's portrait on the nib. Only 241 such pens are expected to be released in the market, with the number 241 signifying the miles walked by Gandhi from Sabarmati to Dandi in March-April 1930, in protest against salt taxes.

Applying for Patents does pay: Wockhardt wins Kudos from the Indian Government

Wockhardt Limited, a renowned Indian pharmaceutical and biotechnology company (logo image taken from here) that has its base in Mumbai, has recently earned quite a significant accolade from the Government of India for the large number of patents it has filed for and been granted in course of the past few years. It was on September 24, 2009 that the Union Government had made its decision known of awarding to the company the prestigious title of the 'Pharmaceutical Company with the maximum number of Patent filings and grants from India'; the award was subsequently presented to the company at a function held in Hyderabad on September 25, 2009 by Mr Anand Sharma, Minister for Commerce & Industry.

According to press releases available here, Wockhardt has been granted till date 70 patents, 15 from the Indian Patent office and 55 from the American and European Patent offices. Mr. Habil Khorakiwala, who is the chairman of the company, was quite expectedly proud of it having achieved this much-coveted recognition and termed the award as “a recognition of Wockhardt’s robust, resilient and uncompromising intellectual pursuit in discovering new ways and methods of medical innovation.” He further added that the said award in effect recognises the efforts of over 500 scientists working in the Wockhardt Research and Development centres involved in the research of Biotechnology, New Drug Discovery, New Technology in Pharmaceutical and Medicinal chemistry.

Wockhardt has always been perceived in the industry as a technology-driven global pharmaceutical and biotechnology major with an innovative multi-disciplinary research and development programme. It has 5 research centres and 14 manufacturing plants spread through various countries and continents, which have always taken pride in their strict compliance to the international regulatory standards prescribed by the US FDA, MHRA and other global regulatory bodies. The dedicated Global IP team of Wockhardt has demonstrated a high calibre of R&D and intellectual prowess throughout the world, which in turn has allowed the company to have a global footprint including the USA, UK, Ireland and France with a multi-ethnic workforce from 14 different nationalities.

This news is certainly being welcomes by the company that has recently posted a net loss of Rs. 190 crore for the second quarter ended June 30, 2009, as compared to a net profit of Rs. 103.6 crore for the corresponding quarter of 2008, due to exceptional items like interest, exchange rate fluctuation and mark-to market (MTM) losses. If nothing else, it ought to work wonders for the reputation of the company and incentivize other pharmaceutical and biotechnology majors to concentrate on applying for patents and securing the same, which can certainly have significant implications for the industry in general.

Print Impairment and Copyrights

There have recently been discussions by the CIS (The Center for Internet and Society) over some important issues relating to the intercourse of copyright protection and accessibility of content. Bringing up important points about the lack of access that certain categories of people have to printed material, they seek to approach the government for appropriate amendments to the present copyright laws. They have broadly defined 'print impaired’ people as those who cannot access standard printed material due not only visual impairment which composes the largest part of this group, but also other reasons such as dyslexia, paralysis, and other learning and physically challenged people. (In connection to this, readers may recall the post by Sumathi on the WIPO Treaty for the Blind being kept on hold earlier this year)

According to the WHO, there are about 314 million visually impaired people in the world, and about 70 million of these are in India (and one should keep in mind that these are just the documented statistics). Totally, there are about 400 million people in the world who suffer from some sort of print impairment. The primary problem that these people are facing is the lack of material which is suitable for their consumption. According to CIS, only 0.5% of the books in India are available in one or more alternative formats.The exclusion of easy availability of such material is effectively leading to a 3 stage process of marginalization of these people from society due to the artificial dependencies created, powerlessness as a result of this and these two together are resulting in the limiting of their capability expansion which could’ve occurred in the presence of the accessible material.

Currently, though the technology exists to transpose books into alternative formats such as braille or audio-books, which provide easier access for the print impaired, copyright laws are proving a hindrance to publishers, as this would technically constitute an infringement. The process to seek approval is a long and tedious one, which creates unnecessary barriers to access to information. As Rahul Cherian of CIS points out, there are also no national policies or action plans to ensure that these people have methods of accessing publications. He also points out in his article here that while there is no specific exception mentioned in the Copyright Act,

"Indian courts have routinely upheld the rights of persons with disability and the Supreme Court has specifically recognized that the “right to life” as enshrined in Article 21 of the Constitution includes right to dignity including basic necessities such as reading and writing[1] The right to education has also been recognised as a fundamental right. For print impaired persons to enjoy their fundamental rights, it is essential that they have access to material, including but not limited to educational material, in accessible formats. In this context it can be argued that the fundamental rights of Print Impaired Persons are being infringed because the Copyright Act, 1957, does not provide exceptions and limitations for the benefit of Print Impaired Persons."

Further more, India has already signed and ratified the UN Convention on Rights of Persons with Disabilities wherein ensuring accessibility is one of the principle guiding points. The Bombay HC, in Ranjit Kumar Rajak Vs State Bank of India, has also read in provisions from this convention, stating it as law. You can see a further analysis of the legal framework in Rahul Cherian's article here.

A welcome initiative that CIS has taken in this regard is the Right to Read Campaign. Together with their endeavor of raising awareness of this pressing issue of lack of accessibility of material, they are also preparing a white paper giving suggestions and advice to the government as to what kind of changes should be made to the Copyright Act. As mentioned in a previous post, the required changes have been considered for the Amendment Act, but this is just hearsay and there is no specific information available as to the current proceedings of this. The campaign also is pushing for the Indian government to support the World Blind Union which is promoting the Treaty for the Blind at the WIPO.

Another great initiative which they have taken is in the form of an online platform which they have just launched. Seeking to be part of the solution as well, the site aims to provide a platform where print impaired people can upload and share their collections with other print impaired people, subject to the end user terms. The idea behind this is that since there is so much difficulty in making alternative materials available, the ones that have been made available should be made more easily available for sharing purposes. Earlier branded as Readable.in , the site is now www.BookBole.com . In the short time period that this site has been up, they have already had visitors from 54 different countries and uploads have been made in 34 different languages. In fact, there have also been requests from other countries requesting if the service could be launched in a local language.

This effort by CIS is indeed applauded by our Spicy IP team. You can also support this cause on their campaign site at http://www.righttoread.in

SpicyIP Jobs: Fabulous Opportunity for Patent Attorneys

Position Title: Patent Attorney

Firm Profile: One of India’s leading law firms

Location: Delhi

Roles and Responsibilities:

1. Preparing, filing and prosecuting patent applications

2. Dealing with Patent Oppositions

3. Preparing written opinions on issues of patentability

4. Conducting patent searches, patent landscaping, analysis etc

Required Qualification:

1 - 2 years experience with patent drafting and prosecution

Salary:

Commensurate with the best in the industry

Contact:

If interested, please drop an email with your CV to spicyipjob@gmail.com