Challenging Software and Business Method Patents in India

Readers will recollect that SpicyIP reported on a "computer implemented" business method patent filed by the Center for Good Governance (CGG), a government undertaking based out of Hyderabad. For those that may not have time to click on the link above, here is the abstract of the application:

"A web-based legal case status management system for tracking, updating and retrieving case-related information and method thereof. A single server configured to house a data repository server in communication with a plurality of client systems over a communication network and at least another server configured to house the application required to process information stored in said data repository server and a web-based interface application housed in said data repository server configured to sort case-related information according to specified pre-defined parameters provides a web-based system for tracking, updating and retrieving case-related information"

This post generated some excellent comments, both on the blog as well as privately. Barring a few, everyone else thought that such patents should be challenged under section 3(k) of the Indian Patents Act which prohibits the patenting of software and business methods. I therefore thought this an appropriate time to build up some momentum and mobilise a group that might wish to challenge such patents. Anyone interested?

We know that there are some fabulous civil society groups opposing pharmaceutical patents, such as IMAK and Lawyers Collective. Is there one doing software patents? If not, this may perhaps be the right time to form one or to help an existing NGO take on this additional task by providing inputs. If any of you are interested, please let us know via the "comments" section of the blog or write to me at shamnad@gmail.com.

Hopefully, in the coming years, SpicyIP can provide legal inputs to anyone wishing to rid India of "bad" patent applications such as this and serve as a forum for generating more discussion around this theme.

So what would be the grounds for challenging CGG's applications?

Clearly, the most important ground would be section 3(k) which provides that "no patent can be granted to an application that claims a "mathematical or business method or a computer programme per se or algorithms."

CCG claims a business method, albeit one that is web-based or "computer implemented". But should the mere fact that something is web-based or involves software of some sort change things? Particularly, when software is also not patentable in India and in most cases, the software deployed is fairly routine and the real "contribution" lies in the business method.

A recent UK case (that had been blogged about earlier) sheds some light in this regard.

I enclose the extract from our earlier post:

"The court of appeals endorsed a patent office refusal to grant Australian entrepreneur and solicitor Neal Macrossan a patent for “an automated method of acquiring the documents necessary to incorporate a company. It involves a user sitting at a computer and communicating with a remote server, answering questions”.

The court summarised the invention thus: “The essence of the invention is that by means of posing questions to a user in a number of stages, enough information is gleaned from the user's answers to produce the required documents.

Questions posed in the second and subsequent stages are determined from previous answers provided and the user's answers are stored in a database structure. This process is repeated until the user has provided enough information to allow the documents legally required to create the corporate entity to be generated. A number of document templates are also stored and the data processor is configured to merge at least one of these templates with the user's answers to generate the required legal documents. The documents may then be sent in an electronic form to the user for the user to print out and submit, mailed to the user, or submitted to the appropriate registration authority on behalf of the user”.

The Court set out a four-step test that examiners should use when deciding whether inventions relating to business methods and software are patentable:

i) properly construe the claim ii) identify the actual contribution; iii) ask whether it falls solely within the excluded subject matter; iv) check whether the actual or alleged contribution is actually technical in nature.

Applying this test, the court held that Macrosann’s “contribution” was nothing more than merely implementing (via computer) a job that is otherwise done by a solicitor or company formation agent. i.e. helping a client procure necessary forms and fill them out in order to incorporate a company. "

Neal Macrossan appealed to the House of Lords. The IPKat, a good friend of SpicyIP, recently reported that the House of Lords refused to hear this appeal. Therefore, this is as good as a final ruling on this point of law in the UK--unless of course, the ECJ gets a reference and decides to interpret the law differently.

Applying Macrossan to the present facts, it is evident that CGG's actual contribution is nothing more than a business method i.e. a web-based system for tracking, updating and retrieving case-related information". It bears noting in this regard that Indian courts tend to follow British precedents in IP related cases, not least because most IP legislations in India were drawn from their UK counterparts.

Tahir Amin of IMAK who does some excellent work in challenging "bad" pharma patents, brought another such business method case in India to my notice. A slightly worse situation since in this case, the patent has already been granted to McKinsey. For those interested, here are the details:

Application No. IN/PCT/2002/01358 (now granted Patent No. 201372) for a "Method and Apparatus for Conducting a Business Session".

The corresponding PCT application is WO/2001/084448. The relevant claims are as below:

Claim 1: A method of conducting a bidding session, comprising the steps of : establishing a communications channel between a bidding session server and a web browser residing on a remote terminal ; transmitting bidding session status information from said bidding session server to said web browser via said communications channel; receiving a bid from said web browser via said communications channel; and in response to receiving said bid, transmitting an update of said bidding session status information to at least one web browser residing on at least one remote terminal, wherein said update has not been requested by said at least one web browser.

Claim 17: The method of claim 15, wherein said set of bidding session details comprises one or more of the following: a bidding session sponsor, a bidding session objective, a bidding session format, a bidding session date, a bidding session timer, a product being put to bid, a product specification, a required quantity, a contract duration, a contract delivery requirement, a contract performance penalty, a starting bid, a bidding unit, a minimum bid increment, a start time for bidding, an end time for bidding, a new bid time extension value, whether bid values are hidden, a number of total bidding rounds, a maximum number of bidders and a minimum number of bidders.


Here again, the claim is directed to a "method of conducting a bidding session" i.e a mere business method, albeit implemented via a computer, in much the same way as Macrosann's application and CGG's application.

Since this patent has already been granted, one can challenge this via the post grant opposition mechanism within a year of the grant. The patent grant was published on 2nd Feb, 2007, and any opposition has to be filed by 2nd Feb, 2008. Therefore, any challenge has to be mounted without any further delay.

SpicyIP Comments: Trademark Controversies

This week has an abundance of trademark related comments--a very welcome change for our patent heavy blog....

1. Shwetashree's post on a recent order by the Delhi High Court upholding Colgate's trade dress rights:

Gaurav Miglani, who represents Ajanta (the defendant who had been injuncted by the court) objected to the post on the following lines:

"I was just reading an old news blog of June 5, 07 and and saw 'In teeth of the issue' - Ajanta being restrained from using red and white for toothpowder. I have been representing Ajanta in their entire red and white litigation in Delhi HC along with Ms. Prathiba from Singh &
Singh and we have fought this issue tooth and nail.

Colgate first sued Ajanta for red and white trade dress in 2003. After a long drawn battle on the issue Mudgul J. passed an order restraining Ajanta on the issue of passing-off while refusing Colgate's claim of infringement and the order explicitly stated that no monopoly could be claimed on red and white and that red and white was common to trade in so far as oral care products are concerned.

Both parties appealed from that order. We argued, that once red and white was common to trade, it could not have been a feature to be taken into consideration while comparing the marks in likelihood of confusion analysis, for the purposes of passing off, and thus to this
extent Single judge's order was bad. Colgate appealed against refusal of infringement. While these appeals were pending, matter was referred to Mediation Cell of Delhi HC and Colgate approved a few red and white cartons to be used by Ajanta, during the pendency of suit.
While this arrangement continued, Colgate filed this Toothpowder suit in HC. We saw it listed and appeared. We brought this to the notice of j. Sistani that on one hand they approve this for Toothpaste and on the other hand they sue us for same trade dress in relation to toothpowder, while the issue of red and white is sub-judice. Furious upon the plaintiffs, J. Sistani, disposed off the suit the same day saying Ajanta is permitted to use the same red and white colour scheme for toothpowder as Colgate agreed to in mediation for toothpaste. And

I was amazed to read - 'This order marks a significant victory for Colgate in its battle for protecting the trade dress of its red and white toothpowder packaging in India."

After posting this comment, Gaurav went on to initiate legal action, praying that Colgate be injuncted from falsely claiming a monopoly in the "red and white colour combination", since this was common to the trade . The court passed an order in Gaurav's favour holding in pertinent part that there is "no monopoly in the red and white colour combination".

I'm still trying to get to the bottom of the facts here. From a preliminary reading of the documents in this case, it appears that the initial court order injuncting Ajanta (as reported by Shwetashree) only acknowledged Colgate's rights to a broader trade dress right, of which the "red and white colour combination" was but one component (and this seems to have been the basis for settlement by the parties as well).

As one can appreciate, there is a difference between rights to a "red and white" colour combination per se and a trade dress right to the entire package, of which the red and white colour combination is one aspect i.e rights to such a combination, clubbed with other features such as the fact that the red colour may not as evenly distributed as the white, and that these colours are separated by a curve and not a straight line (see the excellent image that Shwe used along with her post that highlights this distinctive way of spraying the colours on the toothpowder box).

I first responded to Gaurav's email, noting that "From the little information that I have on this case, I believe Shwe is right, but am happy to be corrected. Perhaps .... we can have a neutral authority like a court tell us as to who is right?"

I then read some of the orders that Gaurav attached and this was my response:


"Thanks very much for your detailed mail. Certainly clarifies a number of issues. I'm still unclear on the following:

Shwe claimed in her post that:

"This order marks a significant victory for Colgate in its battle for protecting the trade dress of its red and white toothpowder packaging in India which enjoys a significant goodwill and reputation in the oral care market but has in recent years been facing quite a threat from look-alike products in the market.

I believe this is the critical paragraph that is contested here. She also linked up to a new item which said pretty much the same thing:

"A remarkably accurate report on the decision appears on moneycontrol.com which read like a breath of fresh air after all the incorrect and trigger-happy reporting I have been writing about over the past few days."

The critical component of Sistani J's order is:

" Learned counsel for the parties have drawn the attention of the Court to
page 8 of I. A. No.6322/2007 on the top of which, the initial get-up/trade dress
of the defendants has been scanned. In the later portion of this page 8, the
present get-up/trade dressing of the product of the defendant has been scanned.
Learned counsel for the defendants submits the initially the defendants were
selling their products in the colour scheme/trade dress/get-up as scanned in the
first half of this page, which is marked ?X? and it is only with a view to avoid
any objection taken by the plaintiff in a connected matter, which had been sent
for mediation, that the colour-scheme was changed to the red, white and yellow
and not with a view to deceive the public at large"

And later:

"Accordingly, the suit of the plaintiff is decreed and after a period of
two months from today, the defendants shall not use the colour-scheme/get-up/
trade dressing in respect of their products as scanned in the later portion of
page 8 of I. A. No.6322/2007 and marked ?Y?"

The latter part of his order appears to be an "injunction" restraining Ajanta from using the initial colour scheme/trade dress after two months. I believe this is different from the latter colour scheme that Ajanta would use after two months, in that Ajanta would also add the colour "yellow"?

If therefore the red and white colour scheme (along with other aspects that contribute to the trade dress of colgate's tooth powder) cannot be used by Ajanta, does this not constitute an order protecting the "trade dress of its red and white toothpowder packaging" as claimed by Shwe. Of course, the order covers the entire trade dress aspect and not merely the red and white colour. And to this extent, you're absolutely right that there is no monopoly on "red and white" per se--but certainly if there is a broader trade dress component (of which red and white are just one aspect--thus for e.g. the red part and the white part are not just sprayed across in equal proportions on the toothpowder box but the red colour appears in a curve on the box), then the judges order prevents you from using such trade dress?

This is an interesting discussion and lets certainly continue to discuss and get to the truth. I will post all of this in the comments section.

Gaurav then responded in pertinent part as below:

"You may be correct in saying that "certainly if there is a broader trade dress component (of which red and white are just one aspect--thus for e.g. the red part and the white part are not just sprayed across in equal proportions on the toothpowder box but the red colour appears in a curve on the box), then the judges order prevents you from using such trade dress" and I had no issues if Colgate reported this limited injunction in the manner it was stated by the judge. But to say that we have been injuncted on a red-and-white trade dress in abstract, and not just on their websites, in newspapers and writing to our bankers, is something we certainly had problems with. For such a consent decree to be advertised by Colgate as a significant victory on red and white issues was something absurd.

I certainly did not intend to point out any mistake in your blog or reporting of Shwe. My only intent was to convey my perspective of this issue, and since I have been handling this red-white controversy for almost 4 years, to bring to you guys the information apart from just what's in the popular media. "


I am continuing to have an exchange with Gaurav in the "comments" section of the post on the blog. I really want to thank him for being the rare IP counsel that is willing to share information and to debate these issues in a public forum. If only we had more folks like him, we'd have much more accurate reporting in IP matters, more constructive debates around issues, and perhaps even cause our judges and IP authorities to think through some of their decisions before handing them down!!

For those interested in further details on this Spicy trademark issue, please keep checking the comments section from time to time.


2. Mrinalini's post on piracy (part II of "living in glass houses.."), wherein she refers to piracy as a "necessary evil".

Lawrence Liang cautions that...

"The word evil has a very long history in western theology and history and should be used with abundant restraint. See for instance Susan Neiman's book, Evil in Modern Thought for the long and problematic history of the word. "

3. Shamnad's Post on Participation by the Public in Policy Making:

Yogi said:

"As far as public participation in IP policy making goes, you cannot really compare it with other scientific disciplines. For this reason, economics and law represent the humanities stream. An understanding of the public choice theory may probably provide some solution. But I am not sure since I am neither a political scientist nor an economist. But as a lawyer, I can undoubtedly say that "Law is codified common sense", which, I believe, the people of India and "sensible" public health groups do possess! Historically, IP has never remained a pure economic or a legal issue. Law is just used as an instrument to foster some other “justifiable” objectives.

Next, the 3(d) issue cannot be left for mere legal and verbal gymnastics. We know it well that there is a blurring line where public participation should end and coherent policy expertise should follow. But dubbing the 3(d) issue as instance of excessive democratization would be wrong in every sense. Is there a final definition for words like "significance" and "efficacy" in legal dictionaries? It’s like the issue of "reasonability" which still haunts the legal world. Well, I really do not intend to say that people unconnected to the issue must have a say. But when we have people who understand the dynamics of the issue, why do we really fret about it all again? May be the pious “public health” objective is just another way to further some other economic objective. One never knows!

Looking from the other side, do you think that this has come as a pure legal issue for Novartis? Is it an issue of "innovation", or rather, a strategic business issue of not allowing competition through Generics? If that be the case, why do we always whine over all this from one angle? I just got to hear Prof. Bhagwati yesterday. Interestingly, he now believes that public health issue has possibly come into the pure trade framework (especially, at the WTO) as it was then possible for some to bring IPRs into WTO framework! I am sure Prof. Bhagwati would now oppose an US-FTA (hypothetical) if it mandated that 3(d) must be withdrawn. He calls them (the FTA’s) as “protectionist measures” and “termites in the free trade system”. My point is that you can’t really be sure as to where you want to stop within the continuum of under protection and over protection. It’s a difficult choice indeed!"


4. Shwe's post on "Sholay" and trademark rights:

law said...

"The story on Nishabd and Sholay were both extremely interesting. Is it possible to find out on what grounds the trademark was granted to the words-"Sholay", "Gabbar", "Gabbar Singh"?

On http://www.patentoffice.nic.in/tmr_new/tm_journal/journal_1355/class24.pdf, there is a trademark granted in 1999 for household linen, etc. Does that also belong to the Sippy family? Because the Times of India on 14th Feb 2006 reported that they have trademarks for the name "Sholay" for a variety of products. Can anyone also give the citation of the ongoing case in Delhi Court-is it possible to find out what contentions were used by the Sippy's advocates?"

.I spoke with the counsel representing Sasha Sippy and I believe the order is not public as yet. Once I lay my hands on this, I will write more on this. In the meantime, Sasha Sippy seems to have captitalised well on this injunciton and has entered into a very lucrative arrangement with Pritish Nandy to share in the profits that come from remaking this classic!!

tidbits

http://news.bbc.co.uk/2/hi/technology/6994957.stm

Patent Databases in India

A new blog on patent information provides the following details on existing patent databases in India.

"Indian patent office provides the bibliographic information freely, but charge for full text. Indian patents can be search in following databases:

Ekaswa- A Database: Patent applications filed in India as published in the issues of the Gazette of India (Part III, Section 2) from January 1995 to December 2004.

Ekaswa-B Database: Patent applications notified for opposition in the Gazette of lndia (Part III, Section 2) published from January 1995 to December 2004.

Ekaswa-C Database: Patent applications published in official Journal of Patent office (18 month publications) published from January 2005 to Dec 2006.

NIC Patent Information: Provides free on line access to INPADOC-EPIDOS database to the registered users. The INPADOC-EPIDOS database is produced by the European Patent Office (EPO). It is possible to conduct bibliographic searches through this site.

India BigPatents: India BigPatents provides post TRIPS Indian patent applications and issued patents. The database is created by Professor together with Patrick Crosby of XB Labs LLC and bigpatents.com. According to BigPatents official website, the bulk of the data was parsed from the Indian patent journals, beginning with those published in January, 2005, using proprietary algorithms developed by XB Labs.

Patent Office Journal: Provides the bibliographic data published from 2005 onwards."

Competition Bill in India: The nexus with IP

At long last!! After being stuck for some years, the Competition Bill is finally passed by the Lok Sabha (lower house of Parliament in India) . It has yet to clear the Rajya Sabha (upper house) and signed by the President before it becomes law.

SpicyIP carried some interesting posts on the Iphone (thanks to Aysha) where we highlighted some of the possible ways in which the competition authority in India might intervene to correct IP abuses in India.

The Hindu Business Line reports:

"The Competition (Amendment) Bill, 2007, was passed by the Lok Sabha without any debate. The Bill, which seeks to give powers to the Competition Commission of India (CCI), would make it mandatory for the companies to inform the CCI about mergers and acquisitions above a prescribed threshold limit within 30 days. Those failing to do so would be penalised. For non-compliance with the orders of the Commission, the Bill empowers the CCI to impose penalty of up to Rs 25 crore or up to three-year imprisonment or both in cases of continued contravention of its orders if the Chief Metropolitan Magistrate of Delhi deems fit.

The Bill will now be tabled in the Rajya Sabha for approval. The Corporate Affairs Minister, Mr Prem Chand Gupta, said: “the Government has enacted the Competition Act 2002 so that Indian market may be geared to face competition from within the country and outside. The Act provides for establishment of a Commission to prevent practices having adverse effect on competition, to promote and sustain competition in markets, to protect consumers’ interest and to ensure freedom of trade carried on by other participants in markets.”

The CCI could not be made fully functional till date due to filing of a writ petition before the Supreme Court against certain provisions of the Act. The Supreme Court in January 2005 closed the petition leaving it to the Government to make amendments to the Act as appropriate to address the legal issues as had been brought up during the proceedings of the petition. “Keeping in view the developments and the new ideas that have come to the notice of the Government, these amendments have been proposed so that the Act can be implemented in the country,” Mr Gupta said.

The CCI will ultimately replace the Monopolies and Restrictive Trade Practices Commission (MRTPC). The Commission was established way back in 2003. The Bill has a provision for a three-member quasi-judicial body — the Competition Appellate Tribunal — to hear appeals against any direction issued by the Commission. MRTPC will continue to deal with pending cases even two years after the establishment of CCI and will be dissolved thereafter. However, it would not entertain any new cases after the CCI is constituted. Cases pending with MRTPC after two years of setting up of CCI will be transferred to the latter."

If the recent statements of Vinod Dhall, acting Chairman, CCI are anything to go by, the CCI promises to be very active on the IP front. Sample this news item, extracted below:

"MNCs going in for mergers and acquisitions will soon be required to divest some of their patented technologies to a third-party rival if the intellectual property rights (IPRs) of the combined entity undermine fair competition in the market.

While approving big mergers and acquisitions, the competition regulator will ensure the merged entity does not control the entire range of a particular product category through its combined intellectual property wealth. If the merging entities are the only two companies that have proprietary technology for a product category, they may have to agree to divest the knowhow to a third-party rival.

The guidelines on how to balance competition law with IPR, which the Competition Commission of India (CCI) is evolving, aims to protect consumers from the ill effects of big firms gaining further in size and market share. This is particularly true for MNC pharma companies that want to consolidate to resist the storming generics competition.

The move assumes significance as India recently started issuing patents on finished pharmaceutical products. Also, the merger of local arms of global majors would need CCI's blessings. In the 1990s, Swiss pharma giants Ciba-Geigy and Sandoz - which merged to form Novartis AG - had to agree to such a condition to get the Federal Trade Commission's nod for the deal. Novartis has been rumoured to be in talks with its rival at home F Hoffmann La Roche for a possible merger that would result in the largest pharma company in the world. Roche had bagged the first pharmaceutical product patent in India.

CCI will also work with the patents office and the government to ensure rigorous competition principles are followed in the grant of patents and, more importantly, their enforcement. It has identified nine areas where patents are globally abused by owners.

Pooling of competing patents by rival companies through cross-licensing, insisting that any improvement in the patented innovation that a licensee makes should be exclusively granted back to the licenser and condition in the licensing agreement that the licensee will not challenge the validity of the patent are some of the possible abuses that the commission wants to check.

Besides pharma and biotech firms, the move has major implications for telecom companies that often fight in courtrooms over IPR issues. The maker of a leading brand, say a computer operating system, not disclosing how rival companies could make their application software, say for Internet browsing, compatible to the market leader's operating system is another form of abusing IPR rights. Broadening of patent claims to get monopoly for parts of the finished product other than the invention is yet another form of abuse that CCI would target.

Competition authorities find problems not in IPR per se, but the way it is enforced by some owners. If conditions introduced in the exercise of rights go beyond the protection of IPR and result in throttling competition, then it defeats the purpose of IPR, that is, incentivising innovation, CCI member and acting chairman Vinod Dhall told ET. The harmonious enforcement of the two legal systems to complement and strengthen each other's purpose is needed, he said.

IPR laws are meant to encourage innovation, not stifle it. Abusing IPR rights can defeat its very purpose and, therefore, competition principles should be kept in mind while exercising such rights, Mr Dhall said."

From the comments above, it appears that Mr Dhall will be actively looking for guidance from the EU competition commission, perhaps the most active competition authority in the world today. And one can be certain that even as I write this post, he must be savoring a recent decision in Europe that found that Microsoft abused its dominant position by "tying" its window media player to its operating system and by refusing to supply competitor's with inter-operability information. A press release on the Curia website states that:

On 23 March 2004 the European Commission adopted a decision finding that Microsoft had infringed Article 82 of the EC Treaty by abusing its dominant position by engaging in two separate types of conduct. The Commission also imposed a fine of more than EUR 497 million on Microsoft.

The first type of conduct found to constitute an abuse consisted in Microsoft’s refusal to supply its competitors with ‘interoperability information’ and to authorise them to use that information to develop and distribute products competing with its own products on the work group server operating system market, between October 1998 and the date of adoption of the decision. By way of remedy, the Commission required Microsoft to disclose the ‘specifications’ of its client/server and server/server communication protocols to any undertaking wishing to develop and distribute work group server operating systems.

The second type of conduct to which the Commission took exception was the tying of Windows Media Player with the Windows PC operating system. The Commission considered that that practice affected competition on the media player market. By way of remedy, the Commission required Microsoft to offer for sale a version of Windows without Windows Media Player.

Since the abuse of a dominant position is confirmed by the Court, the amount of the fine remains unchanged at EUR 497 million".

What is interesting for me is the court's analysis re: when a refusal to license an IP amounts to an abuse of a dominant position.

"As regards the refusal to supply the interoperability information, the Court recalls that, according to the case-law, although undertakings are, as a rule, free to choose their business partners, in certain circumstances a refusal to supply on the part of a dominant undertaking may constitute an abuse of a dominant position.

Before a refusal by the holder of an intellectual property right to license a third party to use a product can be characterised as an abuse of a dominant position, three conditions must be satisfied: the refusal must relate to a product or service indispensable to the exercise of an activity on a neighbouring market; the refusal must be of such a kind as to exclude any effective competition on that market; and the refusal must prevent the appearance of a new product for which there is potential consumer demand. Provided that such circumstances are satisfied, the refusal to grant a licence may constitute an abuse of a dominant position unless it is objectively justified. "

Readers familiar with EC competition law will know that the court's findings above related to what is popularly labeled as the "Essential Facilities Doctrine" ---a doctrine designed to deal with the danger that a monopolist in control of a scarce resource will extend its monopoly power vertically from one level of production to another. Interestingly, neither the CFI nor the Commission has ever used the specific term "essential facilities doctrine" in any of their rulings.

An analysis of this doctrine formed part of my MPhil thesis at Oxford, where I discussed an application of this doctrine to gene patents. I had argued that the commission/courts ought to clearly define the contours of this contentious doctrine and step in only when the facility is truly an "essential" one. The abstract is as below. For those interested, the paper may be downloaded from the SSRN website:

"The biopharmaceutical industry is characterized by the 'cumulative innovation' paradigm, wherein the discovery of a gene sequence is only the first step. In order to convert such sequence information into viable products, tests and cures for genetic conditions and diseases, vast amounts of additional time, effort and money have to be spent. It is feared that patents over upstream gene sequences may ‘block' further downstream research and consequently adversely impact drug discovery, as many diseases today are known to have genetic origins.

This 'blocking' or 'restricted access' issue has been the subject of several important papers and a wide array of solutions have been suggested. However prior to finding solutions, we need to revisit a fairly basic question: Is there a blocking or restricted access issue in the first place? A key determinant of this issue often is: How essential is a patented gene? This paper shows that not all gene patents are absolutely essential but that in many cases, viable substitutes do exist. By computing the essentiality of such patents on a case by case basis, one can determine the existence and extent of blocking. This paper uses the essential facilities doctrine under competition/antitrust law to draw out a framework for computing essentiality."

THE PIRACY PARADOX: "FASHIONABLE" IP

Mrinalini's post spurred an interesting discussion on piracy and whether it was a plain "evil", a "necessary evil" or perhaps a "necessary angel". A recent scholarly article by Professors Rausiala and Springman point out to the "angelic" qualities of "piracy" and proves that it may indeed prove more a boon than a bane in certain industries. Interestingly titled the "piracy paradox", the abstract is as below:

The orthodox justification for intellectual property is utilitarian. Advocates for strong IP rights argue that absent such rights copyists will free-ride on the efforts of creators and stifle innovation. This orthodox justification is logically straightforward and well reflected in the law.

Yet a significant empirical anomaly exists: the global fashion industry, which produces a huge variety of creative goods without strong IP protection. Copying is rampant as the orthodox account would predict. Yet innovation and investment remain vibrant. Few commentators have considered the status of fashion design in IP law. Those who have almost uniformly criticize the current legal regime for failing to protect apparel designs.

But the fashion industry itself is surprisingly quiescent about copying. Firms take steps to protect the value of trademarks, but appear to accept appropriation of designs as a fact of life. This diffidence about copying stands in striking contrast to the heated condemnation of piracy and associated legislative and litigation campaigns in other creative industries. Why, when other major content industries have obtained increasingly powerful IP protections for their products, does fashion design remain mostly unprotected - and economically successful? The fashion industry is a puzzle for the orthodox justification for IP rights. This paper explores this puzzle.

We argue that the fashion industry counter-intuitively operates within a low-IP equilibrium in which copying does not deter innovation and may actually promote it. We call this the piracy paradox. This paper offers a model explaining how the fashion industry's piracy paradox works, and how copying functions as an important element of and perhaps even a necessary predicate to the industry's swift cycle of innovation. In so doing, we aim to shed light on the creative dynamics of the apparel industry.

Although published in 2006, the New York Times catches up with this interesting piece of scholarship only now. I reproduce extracts below:

.....copying has remained ubiquitous in the fashion industry. Fashion-forward but low-priced retailers like H & M and Zara have flourished, thanks to their ability to take designs from Milan to the mass market. Private-label designers for major department stores trumpet the fidelity of their imitations. And almost as soon as hot new designs appear on the runway, photographs and drawings of them are on their way to Chinese factories that can produce reasonable facsimiles at a fraction of the cost. Designers' frustration at seeing their ideas mimicked is understandable.

But this is a classic case where the cure may be worse than the disease. There's little evidence that knockoffs are damaging the business. Fashion sales have remained more than healthy-estimates value the global luxury-fashion sector at a hundred and thirty billion dollars- and the high-end firms that so often see their designs copied have become stronger. More striking, a recent paper by the law professors Kal Raustiala and Christopher Sprigman suggests that weak intellectual-property rules, far from hurting the fashion industry, have instead been integral to its success.

The professors call this effect "the piracy paradox." The paradox stems from the basic dilemma that underpins the economics of fashion: for the industry to keep growing, customers must like this year's designs, but they must also become dissatisfied with them, so that they'll buy next year's. Many other consumer businesses face a similar problem, but fashion-unlike, say, the technology industry-can't rely on improvements in power and performance to make old products obsolete. Raustiala and Sprigman argue persuasively that, in fashion, it's copying that serves this function, bringing about what they call "induced obsolescence."

Copying enables designs and styles to move quickly from early adopters to the masses. And since no one cool wants to keep wearing something after everybody else is wearing it, the copying of designs helps fuel the incessant demand for something new. The situation is not necessarily easy on designers, who have to keep coming up with new ideas rather than being able to milk a trend for years. But it means that in the industry as a whole there is more innovation, more competition, and probably more sales than there otherwise would be. And the absence of copyrights and patents also creates a more fertile ground for that innovation, since designers are able to take other people's ideas in new directions. Had the designers who came up with the pinstripe or the stiletto heel been able to bar others from using their creations, there would have been less innovation in fashion, not more."

The IP "negative space" is not just limited to the fashion industry, but extends to other things like magic. In a recent paper by a Yale law student titled "Secrets Revealed: How Magicians Protect Intellectual Property without Law", the author argues that:

"Intellectual property scholars have begun to explore the curious dynamics of IP's negative spaces, areas in which IP law offers scant protection for innovators, but where innovation nevertheless seems to thrive. Such negative spaces pose a puzzle for the traditional theory of IP, which holds that IP law is necessary to create incentives for innovation. This paper presents a study of one such negative space which has so far garnered some curiosity but little sustained attention - the world of performing magicians.

This paper argues that idiosyncratic dynamics among magicians make traditional copyright, patent, and trade secret law ill-suited to protecting magicians' most valuable intellectual property. Yet, the paper further argues that the magic community has developed its own set of unique IP norms which effectively operate in law's absence. The paper details the structure of these informal norms that protect the creation, dissemination, and performance of magic tricks. The paper also discusses broader implications for IP theory, suggesting that a norm-based approach may offer a promising explanation for the puzzling persistence of some of IP's negative spaces."

While I agree with the author's point that "patents" and copyrights may be inadequate to protect magic tricks, I am a little skeptical on the on the "trade secrecy" issue. It seems almost intuitive that "trade secrecy" should definitely help here--else, all magicians would be replicating the wonderful feats of David Copperfield!

The NY Times concludes by noting:

"The fashion industry is not alone in its surprising mixture of weak intellectual-property laws and strong innovation: haute cuisine, furniture design, and magic tricks are all fields where innovators produce new work without being able to copyright it.

This doesn't mean that we can always do without copyrights and patents, and fashion has unique characteristics that limit the damage that copying can do: it's relatively cheap to come up with new designs, there's a culture of novelty, and people are willing to pay more for the right brands. But we should be skeptical of claims that tougher laws are necessarily better laws. Sometimes imitation isn't just the sincerest form of flattery. It's also the most productive. ?"

Certainly something worth thinking about, in all our talk about IP and determining the optimal "tautness" of the IP string in India.

The 'TIGER' of Britannia

The last couple of months have been quite exciting for SpicyIP. From patent disputes (Novartis & Bajaj – TVS) to copyright disputes (Sholay) to trademark disputes (Sholay again) we've experienced the 'holy trinity' of intellectual property laws. This however seems to be only the beginning of an IP conscious India. The latest high profile dispute to go to court is the Britannia – Danone Dispute over Britannia's trademark ‘Tiger'; probably one of the first disputes where the tables have been reversed with a foreign company allegedly infringing an Indian trademark. The dispute has been in and out of the news for the last 6 months with Britannia threatening to and finally launching a trademark infringement suit against Danone, in a Singapore Court after failed settlement talks.

Before going into the dispute it is necessary to first explain the status of the relationship between Britannia – a company held almost equally by the Wadia Group and Danone – a French Food giant. Danone is currently trying to enter the Indian market on its own and was on the verge of parting ways with Britannia. Under the current agreement with Britannia, Danone cannot market any new products in the Indian market without the prior permission of Britannia. There have been persistent new reports that the Wadia-Danone marriage has been on the rocks for some time and the current suit may just be the final blow.

Coming to the facts, first launched in 1997, Britannia’s ‘Tiger’ biscuits are undoubtedly one of the most popular biscuit brands across India especially amongst drowsy, sleep deprived students attending those boring morning classes in law school. Nothing else in the market (except for Parle-G perhaps) pumps your body with so much glucose, for just Rs.4! Given the thumping success of the ‘Tiger’ brand Britannia obviously sought to tap the export market as well. So when Britannia decided to export ‘Tiger’ biscuits the first thing they did, as any proud owner of a reputable trademark would do, was to register their trademark in the foreign markets. Imagine their shock when they found out that their business partners – Danone – had usurped their ‘Tiger’ trademark in 40 countries as reported by BS!

If what Britannia is saying is true, that is, Danone indeed used the ‘Tiger’ trademark without first entering into a licensing agreement with Britannia, then Britannia would have quite a strong case against Danone only if it can prove that the ‘Tiger’ trademark has some market or reputation in those countries where it is claiming infringement. Danone is yet to comment on the issue and I'm sure there must be some finer nuances to the dispute which have not been yet been reported in the mainstream media. However there were news reports in April suggesting that Danone was going to return the trademark to Britannia. Considering the matter has reached litigation, with Britannia announcing the suit against Danone at their AGM, the point to be examined is the chances of Britannia winning the case.

Prima facie, as of the facts reported to date, it seems that Britannia is going to win this case hands down in the Singapore Court. Overseas trademark reputations are recognized by most jurisdictions. For example in India it was the 1996 case of N.R. Dongre v. Whirlpool where the Supreme Court held that trans-border reputation could be the basis for claiming ownership over a trademark. In that case Whirlpool was able to prove that its trademark was popular in India, although it was not registered or sold, because of the fact that it was advertised in several international magazines which had a circulation in the target consumer group in India.

In the current case apart from the trademark issue there is also a copyright issue. The ET quoted the MD of Britannia as saying :

Danone's actions amount to a breach of trust. The brand's IPR include recipe, package design, pnuemonics, colour schemes and brand positioning. The copyright resides in the IPR and that has been violated.

What remains to be seen is whether the Wadia Group is using this as a hard-nosed negotiating tactic to ensure that its business partner – Danone – sells its stake in Britannia to the Wadia Group at a favourable price or whether it is doing so to actually recover its trademark.

Indian Pharmaceutical Lifecycle Management - an oxymoron?

India's section 3(d) poses some interesting problems for innovator companies seeking to get the best return on investment in India (read 'longest period of monopoly'). Is that the end of the story for Lifecycle Management in India, though?

First up - for those who think that "Lifecycle Management" is a dirty word (phrase), consider (a) the number of 'innovators' with generic subsidiaries, or who have entered authorised generic deals, and (b) the enormous and successful new chemical entity programs by India's leading pharmaceutical companies, and realise that the days of pure 'generics' and pure 'innovators' are gone. I know from personal conversations that these companies are thinking long and hard about "Lifecycle Management".

There's been a great deal said already about India's section 3(d). Shamnad Basheer of this blog is and, has for a long time been one of the leading commentators on 3(d) and the consequent legal and policy ramifications. (See for example, here, here and here, amongst many more.)

[For those who don't know what I'm talking about, 3(d) seriously limits the follow - on patents which can be obtained by pharmaceutical companies in India and thus substantially affects traditional methods of extending the monopoly period. 3(d) basically raises the bar on what is patentable in India as an invention. Note, however, that the US Supreme Court seemed to make similar points about mere 'innovations' in their recent KSR v Teleflex decision - see my recent blog post about this.]

Setting aside for a minute whether monopoly periods should be extended (in my view it really depends on the circumstances) - does 3(d) end the Lifecycle Management game in India altogether?

No - clearly not.

There are many tools and techniques which can be brought to bear to optimise the return on investment for a particular drug.

Ok, amongst the many, what are some of things you can do that are 3(d) proof?

The most attractive, of course, is to keep on inventing (not innovating) and filing patents. Yes, as patents expire, the generic companies will be free to copy the earlier, (no longer patented) versions of the drug. But, if you really have come up with something new and useful - then people will be happy to pay a premium - right?

Another is to keep quiet.

That's right - file patents according to the normal principles, but wait as long as you can before telling the world. The idea here is to delay for as long as you can the time at which other people start working on your drug and filing their own patents.

Sounds bizarre?

Have a look at the results of a recent pilot study I undertook briefly described in my recent article about the effect of early-filed non-innovator patents on monopoly periods. (There's data in some slides which accompanies the article, and as always, there are some disclaimers that go along with the data. However, I think you can see the point I'm making.)

What do you think? Should Lifecycle Management be 'allowed'? What other 3(d) proof techniques have you noticed?

Peer to Patent Project: Democratising Patent Review

Calling for a ‘Vox Populi’ on the review of Patent applications, a pilot project , the ‘Peer to Patent Project' has been launched by Beth Noveck of the New York Law School Institute of Information Law and Policy.

Structured on the lines of a deliberative internet based model that encourages community participation in the review of patent applications, it paves the way for a paradigm shift from the traditional process of patent application review and grant.

Excerpts from the article in the Economist, ‘A Patent Improvement’

The scheme, known as “Peer to Patent”:Community Patent Review, was created by Beth Simone Noveck, a professor at New York Law School. It applies an unusual form of peer review to a process which traditionally involves only a patent applicant and an examiner. Anybody who is interested may comment on a patent application via the internet. The scheme was launched as a one-year pilot programme in America on June 15th.

On registration (that’s free of cost) the reviewer can post comments via the net on the patent app, prior art submission, rate claims; submit prior art samples, rate peer reviews and so on.

The number of applications has soared in recent years, but patent offices have been unable to keep up—resulting in huge backlogs and lengthy delays. Standards have slipped and in America the number of lawsuits over contested patents has shot up. In an attempt to fix these problems, the United States Patent and Trademark Office (US PTO), Britain's Intellectual Property Office (IPO) and the European Patent Office are evaluating a radical change: opening the process up to internet-based collaboration.

‘The Community Patent Project stems from a core belief in Democratic values’ says Noveck. This project aims to encourage better governance of the patent system through collaborative action between the stakeholders and active community engagement.At a time when the cleavage between Science and Policy, gets wider, garnering public opinion through an arrangement such as this could well act a conduit to bridge the gap.

Companies such as GE , Motorola, Intel, Microsoft, HP have posted their patent claims on the project website inviting peers reviews and public opinion in what could also be viewed as an extension of the corporate-social contract and discharge of a corporate social responsibility that companies are increasingly looking to further.

Tuning in to the Indian context…… a flip back to Shmnads post on Spicyip post, 'Big Patents Arrive in India' Database,

‘We also need to advocate for greater transparency in patent office decision making, which would inter-alia, involve making patent decisions available to the public. During the 80’s and early 90’s, some of these decisions were made public and proved tremendously useful for a paper I did whilst assessing the role that “policy” played in patent office decisions. Unfortunately, with the retiring of then Controller General, Mr Shanti Kumar, this practice was discontinued. It would be great if this were resumed. After all, more critical public review of these decisions can only lead to a more robust patent system.’

Prof Bhaven and his team are also discussing the feasibility and desirability of implementing a "peer review" system for Indian patent applications (modeled on the Community Patent Initiative) with stakeholders, policymakers, academics, and potential funders.'

For a country, that’s based its mantra march on‘We the people’ (sans the hamay banana hai beat- the popular rhetoric of the politico) a project modeled on similar lines that seeks to engage the public in the patent review process and possibly in further policy formulation , could be well worth a try. A relevant reminisce, would be that of the durbar system practiced by the Mughals that worked effectively in mobilizing public participation and seeking opinion on matters of public importance. Bearing constructs of a patent durbar albeit a virtual one, the Community Patent Project may be good experiment in attempting to involve the public asking for a voice vote of sorts on IP issues of national interest as well as on innovations that could impact the public at large .(look up our recent blog 'Public Participation in IP Policy Making' on this for more)

Price Controls in India: Emerging Dichotomy between Consumers Groups and Domestic Industry

The ET reports on the recent opposition of the pharmaceutical industry to price controls:

"Pharma industry on Wednesday opposed a move to tighten controls on drug pricing at a meeting of a Group of Ministers, even as Chemicals Minister Ram Vilas Paswan maintained his stand for expanding the list of essential medicines to be regulated. "My ministry is in favour of strengthening National Pharmaceutical Pricing Authority (NPPA) so that prices of essential medicines remain under check," Paswan reporters after the GoM meeting here.

The GoM, headed by Agriculture Minsiter Sharad Pawar for looking into the National Pharmaceutical Policy, held its second meeting where representatives of the industry and consumer organisations made their presentations. Ranbaxy Chairman and Managing Director Malvinder Mohan Singh was among those who briefed GoM about the industry's stand.

"Drugs are already cheaper in India compared to neighbouring countries. Even if we were to reduce prices of these drugs then how would you ensure that these drugs are made available," Singh said, adding there was no machinery to ensure essential medicines reached consumers in remote areas. He said though Indian pharmaceutical industry accounts for 14 per cent of the global sales volume, its only one per cent in terms of value. Consumer Voice, VHAI and CUTS, which represented consumer organisations in the meeting, favoured a single authority addressing all issues related to the pharma sector, including price monitoring."

I am really curious to find out what the exact position of consumer associations are in this regard. Historically, in issues of patent policy, generic manufacturers and consumer associations were on the same wavelength (by and large). Both opposed product patents--and their interests were captured by Ayyangar who went on to write his report recommending the abolishment of product patents for pharmaceutical patents in India--and his report in turn became the basis of the 1970 patent act in India. Since then, with the introduction of TRIPS and even later (well into the early 2000's), the positions of both these stakeholders have remained the same.

But, given the fact that Ranbaxy, Dr Reddys, Lupin etc have begun doing more R&D and filing more patents, there is a rapidly emerging dichotomy between the positions of these two stakeholders. Illustratively, during the Mashelkar Committee Report days, the Affordable Medicines Treatment Campaign (AMTC) submitted a paper supporting the introduction of a clause that would have restricted patentability to only new chemical entities (NCE’s)--in other words, it advocated a total ban on any kind of incremental pharmaceutical patenting. Contrast this with Ranbaxy which supported incremental patents in its submission to the Committee.

Price controls are also an excellent example of this emerging dichotomy--where the position of Ranbaxy and Dr Reddys tally more with the MNC's (Pfizer, Novartis etc) , than with consumer associations.

It will be interesting to see how this dichotomy pans out. If any of you have further information on what the position of consumer associations are in this regard, I'd appreciate hearing about it.

SpicyIP Tidbits

1. Minister gets Innovative, announces Indian Innovation Act:

CNN-IBN reports that Kapil Sibal, the Minister of Science and Technology is promoting an Indian Innovation Act. I quote:

"In an effort to increase research investment, the Science and Technology Ministry has announced the Indian Innovation Act. It has asked FICCI to prepare a draft for the act by December this year.

The aim of the legislation would be not just to increase research investment, but also strengthen education opportunities in science, technology, engineering, and mathematics and finally develop an innovation infrastructure. Science and Technology Minister Kapil Sibal said the draft act will be put up for debate in the public domain.

"We need an Indian Innovation Act which is India-specific, which deals with the challenges in India to make an innovative society," he stated. Basically, this act should talk about how we should change our education policy to make our students more innovative and about how we can weaken bureaucratic control over research and development and scientific institutions," he added."

Note the fact that "the draft act will be put up for debate in the public domain. " In the light of our previous post on public participation in policy making, it'll be interesting to see the kind of responses that this draft gets and the level of public participation that it will engender.

As a minister, Kapil Sibal has been very energetic on the IP front and one wishes that the IP portfolio was with him and not with the commerce ministry. In the short time since he took office, he has made great strides in helping place Indian science and technology on the global map--particularly in biotechnology. Interestingly, he was the first-ever Indian Minister to visit the Indian station at Antarctica, as a result of which, a third Indian station is being established there.

He is also the key force behind a proposed legislation that seeks to encourage university-industry technology transfer in India--something akin to a Bayh Dole like legislation. One wonders whether the Bayh Dole effort will now be subsumed under the Indian Innovation Act agenda.

Also, as some of you know, the Knowledge Commission of India headed by Dr Sam Pitroda is looking into similar issues (enhancing India's innovation potential) and recently came up with an "innovation survey" on India. It begins by stating:

"While literature on Innovation has been growing in recent times, the NKC survey on Innovation is perhaps the first detailed and in-depth quantitative and qualitative survey on Innovation in India (as defined more broadly than R&D) using firm level aggregate statistical data on a nationwide scale, with a sample that includes the top industry leaders as well as a large number of small and medium enterprises (SMEs), and across varied industrial profiles, ranging from manufacturing and services to diversified businesses.

It is expected that the survey will provide feedback and information on current Innovation trends to firms as well as generate necessary catalyzing effects for business Innovation to take place in India on an even larger scale, thus ensuring sustained Innovation led economic growth in the coming years."

The need for these two initiatives to co-ordinate with each other (and complement each others' efforts) cannot be stressed enough--lest we end up with duplication and waste of tax payer money.

Spicy quote from Sibal: In a meeting with US Secretary of State, Condoleeza Rice, the Minister is said to have famously remarked:

“A very long time ago, in 1492 Christopher Columbus started on his journey to discover India and landed in the Americas. And unfortunately, since 1492 to the beginning of the new millennium, the United States wasn’t able to discover what India was all about. I think that it does credit to the two countries that at the beginning of this millennium, this process of discovery has begun”.

2. Novartis challenge to be heard by the High Court in October:

The Economic Times reports that:

The Madras High Court will hear on October 8, Novartis' objection to the appointment of S Chandrasekaran, former Controller General of the Indian Patent Office, to consider its appeal against the rejection of patent for its anti-cancer drug Glivec.

The Swiss drug major had filed a petition last month with the Madras HC, arguing that Mr Chandrasekaran had himself refused the patent for Glivec in the first place. “We expect the opportunity to explain our case clearly to an objective board. Because the current technical member of the appellate board was responsible for the original rejection of the Glivec patent, and was a party in the patent appeal in the High Court, we believe he cannot act as an impartial member of the Appellate Board,” said a Novartis spokesperson.

In a similar case in May, the Delhi HC held that Mr Chandrasekaran could not hear an appeal by Belgium’s Magotteaux International against a patent decision, as it was under his tenure that the patent application had been rejected. If the Madras HC rules in favour of the Swiss drug major, the Intellectual Property Appellate Board (IPAB) will need to appoint a new person to hear Novartis’ appeal. Only a person with over five years’ experience working with the patent office, or a patent attorney with at least 10 years’ experience, may qualify. The appeal may also be heard by the two other members of the board, the IPAB chairman and the Trade Mark member. Also last month, the Madras HC had held a patent law section challenged by Novartis, upholding India’s position that incremental innovation that does not lead to substantial improvement in drug efficacy cannot be patented.

With the court holding section 3(d) of the amended patent law valid, chances that the IPAB will revert its decision seem slim, say legal experts. The Madras Patent Office rejected Novartis’ patent application for Glivec in January 2006, stating that the Basel, Switzerland-based drug maker’s innovation did not meet the requirements of the section. Glivec is patented worldwide. However, the invention of Glivec’s base compound, Imatinib mesylate, was patented in 1993, and is therefore not eligible for a patent in India, which joined WTO only in 1995. Novartis is seeking patent protection for a crystalline form of Imatinib mesylate, which was patented in 1997.

SpicyIP has already said enough about Chandrasekharan in previous posts!!

Living in Glass Houses... (Cont.)

I have been getting a number of comments and suggestions from all around on the last piracy post – this is really inspiring, and very informative! As promised, here’s a summary of all the comments and suggestions received so far for the benefit of all our readers… please keep them coming!

Price cuts and Per feature Pricing

Ravi suggests that software companies can help themselves a great deal by allowing customers to choose the features that they want and pay on a per feature basis (rather than for the entire package). He gives the example of Windows XP and says “unless one reads computer magazines or is a geek one cannot know all the features. There lies the mistake of software companies. They try to sell software with lots of capabilities to ordinary mortals with ordinary requirements…. Similarly music companies think that [the consumers] will be interested in the album where as [they] may be interested in a single track.” He summarizes his comment by suggesting that the industry do some more research into what it is that the customers really want.

I think the idea of unbundling the functions and maybe having charges based on the number of functions the user wants is an excellent and very practical idea. What also occurred to me was the prices of the software itself – (I cant make as strong an argument for music though) if consumers have the option of buying the original for Rs. 1000 and a pirated copy for Rs. 200, many of the consumers would choose the original. However, if the original is priced 20 times higher than the pirated copy, as is usually the case, the option of buying the original does not even occur the middle income user. The profits lost in the form of price cuts would, I believe, be more than compensated by the increased sales.

Extending this reasoning a bit further, it is necessary to note that the purchasing power (in dollar terms) of an average (middle class) buyer in developing countries is much lower than the purchasing power of an average buyer in developed countries. It is therefore not entirely surprising that the instances of piracy are much higher in developing countries than in the developed countries.

The impact that the prices of copyrighted goods have on the buyers in various countries differs according to this purchasing power. In a very interesting article (a little dated, but insightful nevertheless), Lawrence Liang & Achal Prabhala argue that “if consumers in the USA had to pay the same proportion of their income towards these books, as their counterparts in South Africa and India, the results would be ludicrous: $1027.50 for Mandela’s Long Walk to Freedom and $941.20 for the Oxford English Dictionary. It is instructive then, that the prospect of paying $440.50 for Roy’s God of Small Things in the USA is evidently alarming: whereas, paying $6.60 for the book in India (which in Indian terms is exactly the same value as $440.50 in the USA, by this logic) is not treated with similar alarm.” There’s a lot to think about here!

Banning Cracks and Mounting Software

Ajay Chandru suggests that mounting software and “cracks” for software available on the Internet should be banned. This suggestion is close to the law under the US Digital Copyright Millennium Act that proscribes the circumvention of technological measures to prevent unauthorized use of copyrighted materials. This law has been criticized by a few as being over broad. One of the issues that might arise in such cases is whether there are substantial non-infringing uses of the alleged “cracks” and “mounting software.”

Piracy supporting profits?

By far the most interesting point of view that has emerged so far in the discussions under the Piracy posts (and also found its way into our Spicy Comments compilation for the week) is by Sunil who is of the view that piracy is in fact responsible for high profits. For this reason, the industry actually encourages piracy and does not want to completely eradicate it. What made this comment even more interesting was Shamnad’s example. He said: “When SAP entered India, it wanted to ensure that there were no pirated copies of its software at all. And a highly aggressive campaign right at the start ensured that it achieved this result within a year of entering. However, much to its surprise, the market for its software wasn't picking. The hard lesson learnt: had they permitted some piracy or turned a blind eye, cheaper copies at training institutes etc would have increased familiarity with software and helped with its uptake.” For an example of how serious SAP was see this news report from 1999

Lawrence adds to the “spice” by suggesting that the piracy debate is multifaceted; it should not be viewed from the lens of profits and losses alone. According to him, a great deal of cultural diversity has been brought in by media piracy. In fact, in the article by Liang and Prabhala discussed above, the very same argument is made:
“Instead of seeing the copyright industries and the informal economy as two airtight categories, observations on the ground inform us that there is seepage, and the relationship is complex and mutually dependent, with the informal economy sometimes serving as a means to go where the traditional economy cannot. In other words, it is not just the consumer in the South who needs the informal economy: it is sometimes, also, the artist and the copyright industry. Peter Manuel recounts, in this interview with an executive from a maverick start-up music company in India, that piracy could also be a deliberate distribution and publicity strategy (Manuel 2001, 76):
…I tell you that back then, the big Ghazal singers would come to us and ask us to market pirate versions of their own cassettes, for their own publicity, since HMV wasn't really able to keep up with the demand…”

In other words, the high price to be paid (literally!) for avoiding piracy may itself be the cause for weak enforceability of the laws that ban piracy and the low enthusiasm amongst the public to support anti-piracy campaigns.

At a national level, there is an interest in bringing affordable education to a population that cannot afford to pay the price of books required to get a professional degree. While the government subsidizes education in a large number of professional colleges such as AIIMS and IIT, absent piracy, the books necessary to successfully obtain a degree from these institutions would be unaffordable. Are there any known instances of the government subsidizing such books for students in professional colleges?

This brings me back to the original questions – (1) do we as individuals want to contribute to the fight against piracy? If yes, (2) what are the practical ways in which we can do this? I should however modify these questions in the light of the rather engaging discussions and comments of our readers: Given the suggestion that in certain ways, piracy seems to have become a “necessary evil,” what steps can be taken to minimize its “evils,” and yet ensure that its “necessary” (good) effects on culture, economics and education are retained?

SpicyIP Events

1. National Seminar on Patents on 23rd September,2007.

Thanks to Malavika Kumar, an outstanding student at ILS, Pune for bringing this to our attention. This workshop is organised by the Indian Institute of e Business Management(IIeBM)in association with GMGC and Times Group and will include discussions on a wide variety of India IP themes, including the Novartis Case, Software Patenting and E-filing of Patents

Prominent speakers include Dr. Raghunath Mashelkar (Former Director General of CISR,India) and Dr. S. Chandrashekaran (Former Controller General Patents Designs & Trademarks,Present Technical Member,IPAB,Chennai).

Venue:IIeBM Auditorium, Wakad,Pune.
Registration Details:
Fee:-
Students -Rs.500
Professional-1000
website: iprseminar@iiebm.com

E-mail of Seminar Director:
ganeshwto@yahoo.com

2. Symposium on Current Issues in Intellectual Property and Public Health (Sept 19, 2007)

WIPO is a hosting a Symposium on Current Issues in Intellectual Property and Public Health

"The second in a series of public symposia on the life sciences and intellectual property will be held on Wednesday, September 19, 2007, at the World Intellectual Property Organization (WIPO), and will address current issues in intellectual property and public health, an area that has sparked international debate and attention in recent years.

The Life Sciences Symposium on Current Issues in Intellectual Property and Public Health aims at providing a general overview of the array of health-related intellectual property issues currently under discussion in international policy processes. A panel of representatives from WIPO’s member states, theWorld Health Organization (WHO), the World Trade Organization (WTO), civil society and industry will give their perspectives on contemporary issues and outline their current priorities in this field. The half-day overview of current issues will provide a snapshot of current debates and policy processes, hear a range of perspectives on current issues, and help clarify the linkages and distinctions between them. WIPO’s Symposia on Life Sciences and IP Policy are intended to identify and clarify the intellectual property dimension in the life sciences.

They are addressed to a wide range of stakeholders, including international policymakers, government agencies, legislators, delegates, civil society and the private sector. The symposia offer a forum for exchanging information and experiences concerning the use and impact of the intellectual property system in life sciences and do not seek to influence or assess discussions in other fora. The program and information on the full series of the WIPO Life Sciences Symposia is available at http://www.wipo.int/patentscope/en/lifesciences/. The event is open to the general public and is not be subject to a fee. Anyone interested in attending the meeting is requested to complete the on-line registration form. "

3. WIPO & Partners Launch 7th Session of LLM in Intellectual Property

The World Intellectual Property Organization (WIPO) on September 3, 2007, launched the seventh session of the Master of Laws (LLM) in Intellectual Property, a joint post-graduate program in intellectual property (IP) offered by the WIPO Worldwide Academy, the University of Turin and the International Labour Organisation, International Training Center (ILO-ITC), at the ILO-ITC in Turin, Italy. Thirty three students from around the world are participating in the 2007/2008 program.

At the opening ceremony, the Dean of the WIPO Worldwide Academy, Mr. Mpazi Sinjela, welcomed the participants and outlined the activities of WIPO in human resources development in particular. He challenged the students with a theme of this year’s session as “the Power of Imagination” - a power that converts ideas into reality. Professor Marco Ricolfi, Program Chairman and Professor of the University of Turin, also welcomed the participants and outlined the objectives of the program, which include providing the skills required to play a leading role in intellectual property practice and teaching. His Excellency Ambassador Luigi Guidobono Cavalchini, President of the Advisory Group of the Masters Program of the ILO-ITC, also attended the opening ceremony. First launched in 2000, the annual program seeks to train trainers of intellectual property in order to bolster the protection of intellectual property rights in both developed and developing countries.

Every year, WIPO awards 20 scholarships to students from developing countries to participate in the program. Since its establishment in 2000, this joint Masters program has trained over 190 students from more than 140 countries. The LLM program with the University of Turin comprises three phases: distance learning, a residential phase and the writing of a thesis. During the residential phase at the ILO-ITC in Turin, the Masters program is taught by world-renowned faculty drawn from universities around the world. This phase also includes a one-week study visit to WIPO headquarters (from November 19 to 23, 2007) during which students follow a lecture program and have an opportunity to meet WIPO experts. Upon successful completion of the three phases, students will be awarded with a Master of Laws in Intellectual Property degree.

The launch of the seventh session of the Masters program reflects the commitment of both the WIPO Academy and the University of Turin to excellence in the teaching of intellectual property. For more information about the Masters program please visit the WIPO Worldwide Academy website: http://www.wipo.int/academy/en/ or the University of Turin web link: www.turin-ip.com. or the Media Relations and Public Affairs Section at WIPO:
Tel.: +4122-3388161 or +4122-3389547
Fax: +4122-3388280



4. The Second International Conference on Legal, Security and Privacy Issues in IT Law (LSPI)

Date: December 5-7, 2007
Place: Beijing, China

The International Association of IT Lawyers (IAITL), the National Culture Trade Research Base of China, Communication University of China and the Tsinghua University Internet Behavior Research Institute invite you to participate in the Pre-Olympics Conference on legal, security and privacy issues in information technology law. The Conference is an opportunity for government officials, academics, practitioners and consultants to exchange ideas and discuss emerging issues in IT law and the emerging technological environment. (A list of potential topics, as well as other particulars about the conference, can be found on conference website, http://www.lspi.net .) In addition to paper presentations, panel discussions involving senior government officials will address future regulatory policies. Following the conference, written conclusions from these panel discussions will be submitted as policy recommendations to both Chinese and EU governments. The Conference committee invites the submission of papers from the academic community, as well as from practitioners and industry participants, for presentation at the conference.

Two general categories are expected: * Academic, peer reviewed papers. These papers will be peer reviewed by members of the program committee and other independent reviewers. Accepted papers will be published under a non-exclusive copyright agreement in the edited conference proceedings with ISBN, and will also be published in leading international journals. * Abstracts and Working Papers. Abstracts and working papers may also be submitted as the basis for presentations at the conference, without the peer review and publication process. This category also covers corporate papers, best practices, new technologies, policy issues etc. Such papers will generally not be included in the published conference proceedings. Complete academic papers require a 150 word abstract and five keywords. There is a maximum page limit for all submissions of 12 pages (single-spaced, Times Roman, 10 point). All photos, tables and figures must be in jpg format. No footnotes are allowed! Papers must be submitted in the correct template, which may be downloaded from the website. All information enabling the identification of authors must be removed from submissions undergoing academic peer review. Please send in a separate attachment in a word document, the following information: Title, Affiliation and Author's Name. Send submissions by electronic mail in a Word document to: submit@lspi.net or sylvia.kierkegaard@lspi.net For further information contact: Dr. Sylvia Kierkegaard: sylvia.kierkegaard@lspi.net ; contact@lspi.net Weiguang Wu: lawwwg@mail.tsinghua.edu.cn Professor Edward A. Morse: morse@creighton.edu Important
Dates: Submission Deadline for Full Research Papers: October 27, 2007 Submission Deadline for Abstract Presentations: November 20, 2007 Notification of Acceptance: October 30, 2007 For papers submitted before the deadline, authors will be notified 7 days after submission Final Camera-Ready (Proceedings) Version and Registration: November 10, 2007 4.

5. Intellectual Property in the Fashion Industry

The IPKat, a brilliant resource for all matters pertaining to IP in Europe reports that:

Intellectual Property in the Fashion Industry (Grange City Hotel, London, 20 September 2007).

This is a second-time-round event, following the success of last year's, and its cast includes the following speakers: * John Sykes (Lupton Fawcett) gives a no-nonsense appraisal of the basic legal provisions, their advantages and their limitations; * Helen Newman (Olswang) looks at the role played by trade marks in protecting the identity of fashion designers and their labels; * LK Shields' Deirdre Kilroy, who comes all the way from Dublin to tell us about the strains and the symbioses that characterise the relationship between the fashion houses and the big retail chains. For the brochure, booking arrangements and all details of this conference click here. Intellectual Property Litigation and Dispute Resolution: the latest law, procedure and good practice (Hatton Conference Centre, London, 8 October 2007). Speakers include * Andrew Mills (Freeth Cartwright), who looks at the issues surrounding class actions and the collective enforcement of IP rights; * McDermott Will & Emery partner Larry Cohen looks at some of the nuts-and-bolts developments in the machinery of justice in respect of IP litigation; * Tony Willoughby (Rouse Legal) asks - and answers - some hard questions concerning domain name disputes. 



6. IISD Conference

From September 17 to 28, the International Institute for Sustainable
Development (IISD) is hosting an e-conference to engage researchers,
practitioners and policy analysts in an open discussion on the
intersections between Internet governance and sustainable development.
Your participation will help advance the debate.

Please visit the following url for full details,
http://www.iisd.org/infosoc/gov/igsd/, or read on for a brief summary.

We would be grateful if you could share this announcement with
colleagues who may be interested in participating.

Sustainable development efforts cannot be conceived without global
communications and knowledge exchange: therefore, the outcomes of the
Internet governance debate will affect our ability to manage the social,
environmental and economic factors of sustainable development. Beyond
this fundamental link, numerous and diverse issue areas exist where the
Internet governance and sustainable development policy communities could
discover mutual challenges and learn from each others approaches to
confronting them, setting the stage for future cooperation. Over the
past year, in collaboration with partners and stakeholders, the
International Institute for Sustainable Development (IISD) proposed to
focus on five areas in which further exploration of potential links
between these two communities could be anchored:
- governance processes;
- economic barriers to development;
- the capacity of developing countries to participate in international
governance;
- access to local knowledge as a critical input to decision-making; and
- indicators for development.

By commissioning a pair of exploratory papers on each of these topics,
IISD aimed to expand the links between these two communities of
researchers and practitioners who have spent over three decades working
in relative isolation from one another, creating gaps in vocabulary and
culture. Each of these papers defines the issue area; describes its
relevant governance structures and processes; identifies the main issues
currently being debated; articulates actual and potential links between
ICTs/Internet governance and sustainable development; and proposes areas
for further study.

The purpose of this e-conference is to give participants an opportunity
to share their thoughts, comments, or questions regarding the content
presented in these paper pairs. You are encouraged join this
e-conference to engage other participant in a discussion of common
positions, mutual challenges and differences, and how lessons from one
side might inform progress on the other, in the context of each issue
area.

Copies of the papers can be downloaded at
http://www.iisd.org/infosoc/gov/igsd/, and an email containing links to
the papers will be sent when you confirm your subscription.