The Saga of IP Indices : Global Intellectual Property Index

In past, I’ve extensively blogged about the varied IP indices. (See here, here, here and here). Alas, this saga is an endless one.

Latest entrant to the list is the law firm Taylor Wessing’s Global Intellectual Property Index (GIPI). (Not to be confused with GIPC’s International IP Index).  GIPI’s 5th Edition was released on June 14th, 2016. It assess IP regimes of 43 important jurisdictions around the world.

What is the GIPI?

Released in 2008 by Taylor Wessing, the GIPI (the Index) comprehensively assess IP regimes of important jurisdictions around the world. Barring the traditional IP rights (patents, copyright and trademark), it also measures design and data protection regimes of important international jurisdictions.

The Index is the culmination of statistical analysis based on a worldwide survey of international IP owners and users which are weighted against data from objective sources (called the instrumental factors). These instrumental factors are published empirical data on wide ranging indices such as the number of patent and trademark filings, grants, R & D expenditure and the origin of counterfeits seized by customs etc. (For more on the methodology, see here – page number 11, 12 & 90).

Patents and trademarks are gauged on the basis of the following sub – indices, (i) Obtaining (ii) Exploitation (iii) Enforcement (iv) Cost – Effectiveness (v) Attacking. For copyright and design protection all the sub- indices are the same except obtaining.

The criteria for measuring data protection regime is (i) Fairness (ii) Enforcement and (iii) Compliance Cost.

The first Index was released in 2008 followed by the next one in 2009. Commencing 2009 onwards, it has been released every alternate year. The first Index covered the traditional IP rights (patents, copyright and trademark) and spanned 22 jurisdictions. Since then, the ambit of the Index has widened, both in terms of IP rights and jurisdictions. (See here for year wise reports).

 India and the GIPI :

Since the release of the Index in 2008 until 2015, India has been in the lowest tier (either tier 4 or tier 5 depending on the number of countries). For the benefit of readers, I’ve complied India’s year – wise rankings under the Index. Apart from according an overall rank, the Index also compares jurisdictions based on each  IP right.

 Year 2008 2009 2011 2013 2015
Overall Rank  19/22  23/24  24/24  36/36 40/43
Copyright  19/22  22/24  23/24  35/36  37/43
Trademark  20/22  23/24  24/24  35/36  42/43
Patent  19/22  22/24  4/24  35/36  33/43
Design  N/A  20/24  23/24  35/36  36/43
Data Protection  N/A  N/A*  8/24**  1/36  14/43

*Instead of data protection, domain name protection rank was accorded wherein India was ranked 22nd.

**Instead of data protection, personal data rank was accorded. 

 European countries have consistently made their way to the top spot with UK hitting a hat-trick of sorts.  It topped the list in 2008, 2009 and 2013. Germany and Netherlands were ranked first in 2011 and 2015 respectively. While Asia’s two giants , India and China have faced similar fates under the Index. Both have been ranked last twice (China in 2008 and 2009 and India in 2011 and 2013). In 2013, the Index ranked Nigeria to the lowest spot.

In my next post, I’ll contrast India’s ranking under the GIPI and other IP indices.

 

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India’s National IPR Strategy : Panel Discussion

Introduction : 

Last week, the Hudson Institute and the GIPC had co – hosted a half day conference on India’s innovation ecosystem in light of the recently unveiled National IPR Policy (the Policy). (I’ve previously blogged about the event here and here).

This panel discussion was the first of a two part series delving into the Policy and its expected impact on India’s innovation ecosystem. Further, it also explored the affect of the impending regional free trade agreements (FTA’s) on India’s emergence as a leader in global economy.

The second panel discussion will take place on July 7th, 2016 in New Delhi. It will be co – hosted by the Hudson Institute and the AMCHAM.

us-pressure-on-indian-pharmaceutical-lead

Patrick Kilbride of the GIPC delivered the introductory note emphasizing India’s position as a world economic leader. As expected, he stressed upon the rather fallacious co-relationship between IP and innovation.

The first panel titled, “India in Isolation – The Growth of Multilateral Trade Pacts” discussed the relationship between multilateral trade pacts and Indian trade. The erudite panel was comprised of Leticia Santos of the BSA, Neena Shenai of Medtronic, Arun Venkatraman of the U.S. Department of Commerce (International Trade Administration) and Jeremiah Norris of the Hudson Institute (Center for Science in Public Policy). Ashley Mergen of the GIPC was the moderator.

Of relevance to IP was the second panel titled, “National IPR Policy – The Good, the Bad, and the Ugly”.   To my dismay, the panel was comprised of the usual industry representatives – Amiee Aloi of PhRMA, Kalpana Reddy of the GIPC and Joe Walsh of the 21st Century Fox. Dr. Aparna Pande of the Hudson Institute was the moderator.

I’ll confine myself to the second panel which deliberated upon the positives and negatives of the Policy.

Panel on National IPR Policy : The Good, the Bad and the Ugly

Dr. Aparna Pande opened the session by give a succinct account of India’s economic model with a special reference to it’s developmental needs. This according to her was reflected in the Policy wherein an attempt to strike a balance between the desire for innovation and India’s developmental goals was made.

Each panelist was asked about the good, the bad and the ugly in the Policy.

Amiee Aloi of PhRMA : 

 Aimee Aloi’s soft stance on the Policy which has otherwise received opprobrium from the pharmaceutical sector was rather surprising.

The Good :

  • Recognition of IP protection as an economic tool and its importance to innovation
  • Good slogan
  • Attempt to improve the Indian Patent Office
  • Involvement of both public and private sector in implementation

The Bad :

  • Areas in the pharmaceutical sector which demanded an overhaul.
  • Difficulty in securing and enforcing patents. This was particularly true for seeking patents on improvements over pharmaceuticals (ever- greening).
  • Absence of regulatory test data protection.
  • Ambiguity over whether importation satisfied the working requirement.

The Ugly :

  • Silence on the implementation of the Policy. According to her, there were many broad provisions in the Policy which were subject to interpretation. Implementation of the Policy was the yardstick to measure its success.

These weakness disincentivised investment by U.S. pharmaceutical corporations in India.

Kalpana Reddy of GIPC : 

Rather than pin – pointing at the positives and negatives of the Policy, Kalpana Reddy gave an overall feedback. She appreciated the efforts undertaken by the Indian Government to draft the Policy and it’s willingness to engage with the divergent stakeholders. Patent and trade secret protection was an area of concern. Non – commitment to make legislative changes in the Policy made it’s implementation questionable.

Joe Walsh of 21st Century Fox : 

Joe Walsh spoke at length about the size of India’s media and entertainment (M & E) sector and Fox’s ubiquitous presence in India. Zilch comments were made about the Policy.

However, on the legal and regulatory side, TRAI’s undue interference in the ability of copyright holders to monetize their content was expressed as a detriment to the growth of U.S. M & E industry in India.

Question & Answer Session : 

Two questions were raised. The first question came from Dr. Aparna Pande. Each of the panelists was asked if there was one realistic recommendation they could make to New Delhi, what would it be?

Amiee Aloi’s two fold recommendations were –

  • Usage of the Policy as a tool to implement the statements and comments made by the Indian Government in these past two years. The Policy should not be a missed opportunity.
  • People should be made accountable for the implementation of the Policy.

Kalpana Reddy aligning with Amiee Aloi remarked that the absence of detailing in the Policy raised plethora of questions.  Her other recommendations were –

  • Engagement with the entire stakeholder community in legislative reforms.
  • Room for improvement in the patent law sphere.
  • Adoption of cautious approach as India exercises its flexibility under international law. This was due to potential economic ramifications.
  • Requirement for Governmental intervention as there were possible yellow flash lights in the Policy.

Joe Walsh expressing concern over TRAI’s excessive involvement in the licensing regime, recommended less intervention at the hands of the Government particularly with the rapid technological advancement in the M & E sector. With its evolvement, regulatory minimalism was expected.

Maria Velez of the Pearson raised the second question. She questioned on the benefits that could accrue to digital India owing to regulations and whether its adoption would make India state of the art?

Kalpana Reddy answered that there was no right answer to that question. However, the spate of policy developments and the initiatives on cloud and encryption were a promising road map. To this, Joe Walsh added that the shift of the Copyright Office from the HRD Ministry to DIPP was a flicker of cautionary optimism (See here for the shift of the Indian Copyright Office to the DIPP).

Conclusion :

As the first public discussion on the Policy in Washington D.C., the limited participation from divergent stakeholders (in the second panel, all the panelists were industry representatives) was disheartening. As a result, the discourse was predisposed towards U.S. corporate interest, with scant perspective from not – for- profits, universities, think – tanks and research institutes.

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Panel Discussion On India’s National IPR Strategy

The event will be live – streamed. Those interested can view it by visiting http://www.ustream.tv/channel/hudson-institute on Thursday.

Innovation, IP, Technology & Law

The U.S. Chambers of Commerce’s Global Intellectual Property Center has organized a panel discussion on India’s National IPR Strategy in collaboration with the Hudson Institute.  In the wake of PM Modi’s recent visit to the U.S., the discussion will delve into the merits of the National IPR Policy in unleashing an era of innovative economy and driving global competitiveness.

Pertinent details of the panel discussion are –

Title of the Panel Discussion : India’s National IPR Strategy : A View From Global Innovators

Date : June 30th, 2016

Time : 9. oo a.m. – 10.30 a.m. (EST)

Venue : Hudson Institute, 1201 Pennsylvania Avenue, N.W. Suite 400, Washington D.C.

Registration Details : Interested people can register for free here 

I’m unsure whether the webcast of the panel discussion will be available or not. As soon as I’ve an update on this, I’ll inform the readers. Needless to say, if the…

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Panel Discussion On India’s National IPR Strategy

The U.S. Chambers of Commerce’s Global Intellectual Property Center has organized a panel discussion on India’s National IPR Strategy in collaboration with the Hudson Institute.  In the wake of PM Modi’s recent visit to the U.S., the discussion will delve into the merits of the National IPR Policy in unleashing an era of innovative economy and driving global competitiveness.

Pertinent details of the panel discussion are –

Title of the Panel Discussion : India’s National IPR Strategy : A View From Global Innovators

Date : June 30th, 2016

Time : 9. oo a.m. – 10.30 a.m. (EST)

Venue : Hudson Institute, 1201 Pennsylvania Avenue, N.W. Suite 400, Washington D.C.

Registration Details : Interested people can register for free here 

I’m unsure whether the webcast of the panel discussion will be available or not. As soon as I’ve an update on this, I’ll inform the readers. Needless to say, if the webcast is available, I’ll bring forth my views on it.

 

Posted in Global Politics of IP, IP & Innovation Policy | 2 Comments

KM Gopakumar’s Article : Some Thoughts

The recently unleashed National IPR Policy has garnered much traction from all quarters in the form of op-eds, articles and blog posts.

A piece which has caught my attention is KM Gopakumar’s (Third World Network) article in day before yesterday’s Deccan Herald.

I want to highlight a diminutive error which has made its way to an otherwise informative read. In the context of India’s patent regime, the author opines that the lone complainant against it were the pharmaceutical MNCs. Quoting the relevant excerpt –

Government of India should understand that the demands from pharmaceutical MNCs if implemented would compromise the health security of India as well as millions of people living in other developing countries who are dependent on affordable generic medicines from India. Further, it is only the pharmaceutical MNCs that are complaining against the Indian Patent Act. Other industries like aircraft manufactures such as Boeing went on record to express their satisfaction on Indian Patents Act.

However, this is far from true. In the written submissions made to the USTR for the 2016 Special 301 Report, apart from the representatives of the pharmaceutical MNCs, several other trade groups representing diverse industries had also expressed their dismay over the Indian Patent Act. These are the U.S Chambers of Commerce’s Global Intellectual Property Center (GIPC), the Biotechnology Industry Association (BIO), the Business Software Alliance (BSA), the Alliance for Free Trade With India (AFTI) and the U.S. – India Business Council (USIBC) ( See here for more on this).

The GIPC as an affiliate of the U.S. Chambers of Commerce  represents the business interests of more than three million corporations spanning all sectors. BIO’s membership base is not strictly confined to pharmaceutical corporations but encompasses four different sections within its ambit (healthcare, food and agriculture, industry and emerging companies). The BSA represents the world’s largest software developers.

The AFTI with its mandate to cement the U.S. – India commercial relationship comprises of various trade groups ranging from pharmaceuticals (PhRMA) to motion pictures (MPAA). And same holds true for the USIBC which represents 350 U.S. corporations having a blue print in India.

Hence, rendering KM Gopakumar’s assertion on the primary complainant against the India Patent Act somewhat preposterous.

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A Third IP Index : International Property Rights Index

In past, I’ve blogged about IP Indices. (See herehere and here). However, most conversations about IP Indices revolve around the GIPC’s International IP Index and USTR’s Special 301. Often, an index which misses attention is the International Property Rights Index (IPRI). Its all comprehensive nature, not merely confined to intellectual property being the plausible reason.

What is the IPRI? 

Unveiled in 2007 by the Property Rights Alliance, the IPRI (the Index) is the sole international index indicating the worldwide status of property rights. It studies the correlations between the protection afforded by a nation to property rights and economic prosperity. It’s based upon three components –

(i) The Legal and Political Environment (LP)

(ii) The Physical Property Rights (PPR) and

(iii) The Intellectual Property Rights (IPR)

Countries are graded on a scale of 0 to 10, with 10 being the highest and 0 being the lowest for a nation’s property rights system. Same interpretation is applicable to the three components.  (For more on the methodology, see here – page 9 onwards).

IPRI and Intellectual Property : 

Not delving into LP and PPR (being outside the scope of this blog post), the IPR component of the Index evaluates the protection granted by a nation to intellectual property.

 The Index not only measures the overall protection afforded by a nation to IP. But also, assess protection granted to its two major forms – patents and copyright (Barring the years 2007 and 2008 where an assessment on trademark rights had also been undertaken).

Patent protection is gauged from a de jure perspective while a de facto approach is applied for determining copyright piracy.

  • Patent Protection :

Since the inception of the Index till its most recent version (apart from the 2014 IPRI since it’s unavailable in public domain), the criteria and source for evaluating a country’s patent laws has remained static. The source being the 2005 Ginarte-Park Patent Protection and the criteria being –

(i) Coverage

(ii) Membership to international treaties

(iii) Restrictions on patent rights

(iv) Enforcement and duration of protection

  • Copyright Piracy : 

From 2007 until 2009, the source for determining a country’s piracy level was the 2006, the 2007 and the 2008 Special 301 Report respectively.

Commencing from 2010 till 2013,  reliance on IIPA’s submission to the USTR for that year’s Special 301 Report was the source. Additionally, for the years 2012 and 2013, BSA’s and IDC’s  8th and 9th Annual Global Software Piracy Study were also respective sources.

 For the most recent version (the 9th Edition, 2015), BSA’s Global Software Survey titled, “The Compliance Gap” served as the source.

For the years 2007 until 2009, piracy levels of four distinct industries – (i) Business Software (ii) Records & Music (iii) Motion Pictures and (iv) Entertainment Software have been included. From 2010 onwards, piracy levels of only business software and records & music industry were included.

India, IP and the IPRI :

Except for the first year, countries have been ranked on each of the components (the legal and political environment, the physical property rights and intellectual property rights). I’ve compiled India’s overall and IPR rank since the inception of the Index until 2015. Just to reiterate,the 2014 IPRI is not available in public domain.

 

Year Overall Score Overall Rank Number of Countries Evaluated IPR Score IPR Rank
2007 5.2 33 70 4.4 N/A
2008 6.2 40 115 5.2 47
2009 5.6 46 115 5.1 49
2010 5.5 53 125 5.3 50
2011 5.6 55 129 5.5 51
2012 5.4 62 130 5.4 55
2013 5.5 58 131 5.6 56
2015 5.2 62 129 5.3 52

As evident from the above Table, India’s overall and IPR score falls in the mid- range. Thus, signifying an “average” property rights regime vis -a`- vis other nations.

 

 

 

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India and the WIPO Broadcasters Treaty : Past Position & Future

Going by India’s opening statement  on behalf of the Asia – Pacific Group, it seemed supportive of a balanced WBT. However, I’m not in a position to comment on the ensuing negotiations during the informal sessions.

The webcast of the 32nd SCCR is available here. The eight hour long negotiations on the WBT continued until the morning of Wednesday, 11th May’16 (first seven webcasts from the top).  I’ve jotted down some rough notes based on the webcast of the negotiations on the Revised Consolidated Text on Definitions, Object of Protection and Rights to be Granted.

Source: India and the WIPO Broadcasters Treaty : Past Position & Future

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Public Interest Organizations and the 2016 Special 301 : An Indian Perspective

INTRODUCTION :

As promised, in this post I’ll highlight the treatment meted out to the comments and testimonies of the public interest organizations in the Report (only general and India specific comments). The public interest organizations which submitted written comments to the USTR were –

(a) The Union for Affordable Cancer Treatment (UACT)

(b) Knowledge Ecology International (KEI)

(c) Program on Information Justice and Intellectual Property (PJIIP) of the American University Washington College of Law

(d) Public Citizen

(e) Misin Salud, Karisma Foundation and the Ifarma Foundation (Colombian Civil Society Organizations).

Barring the Colombian Civil Society Organizations, these organizations had also testified before the USTR. ( See here for the details on the public hearing)

UACT’s Written Submission and Testimony : 

Recognizing India’s importance for its efficient supply of affordable generic drugs, the UACT severely objected to PhRMA’s misrepresentation of the WTO rules on issuance of compulsory license (CL) during national emergency. As expected, the Report took a dig at India’s CL law even though in recent times only one CL was issued. A rather oddity considering its repeated emphasis upon U.S.’s commitment to the Doha Declaration on the TRIPS Agreement and Public Health.

Further, a request for conducting a period impact assessment study on the implications of the IPR policies endorsed by it (through the Special 301) on patients and their families was made. It specifically called for statistics illuminating the number of cancer deaths due to  lack of affordable generic drugs which were otherwise accessible via compulsory license  had it not been for USTR’s pressure. The Report is silent on the status of this request.  

KEI’s Testimony :

Highlighting India’s strategic importance in the access to affordable medicare debate, it called for a a policy coherence between human rights and innovation. Paradoxically, on one hand, the Report affirms U.S.’s commitment to the Doha Declaration and on the other takes a dig at policies facilitating accessibility to affordable medicines.

Some excerpts highlighting this paradox are –

The United States also recognizes the role of IPR protection in the development of new medicines, while being mindful of the effect of IPR protection on price.

The United States is firmly of the view that international obligations such as those in the TRIPS Agreement have sufficient flexibility to allow trading partners to address the serious public health problems that they may face. Consistent with this view, the United States respects its trading partners’ rights to grant compulsory licenses in a manner consistent with the provisions of the TRIPS Agreement and the Doha Declaration on the TRIPS Agreement and Public Health, and encourages its trading partners to consider ways to address their public health challenges while also maintaining IPR systems that promote innovation.

On India’s CL law –

While emphasizing our continued commitment to the Doha Declaration on the TRIPS Agreement and Public Health, (see Intellectual Property and Health), the United States also continues to monitor India’s application of its compulsory licensing law. The United States requests clarity from the Government of India regarding the compulsory license decision-making process, as it affects U.S. stakeholders…..Although the government has issued only one compulsory license under Section 84 of India’s Patents Act and recently rejected another Section 84 petition, India has made clear in other policy statements that it views compulsory licensing as an important tool of industrial policy for green technologies, with the potential to be applied more regularly across economic sectors

Similar paradox is visible in its assessment of Section 3(d) of the Indian Patent Act, 1970.

Public Citizen’s Testimony : 

Burcu Kilic of the Public Citizen opined on the ambit of the Report. She remarked that the Special 301 should solely address IP. Ancillary public policies such as pharmaceutical reimbursement, pricing or procurement should be outside its purview. However, the Report mentions them extensively as a market access barrier. (See pages 23 and 44)

As per her testimony, criticism of a country’s IP policies should be accompanied by a clearly articulated criteria. This has found favor in the Report atleast with respect to India. Issues highlighted are akin to objections rather than criticisms.

Public Citizen

Image Courtesy : Public Citizen 

A statement on Section 3(d) and India’s CL law duly complying with TRIPS was made. She viewed that any reference to Section 3(d) in the Report must be considered in its full context if it is to provide any  informative value.  Unfortunately, the Report’s reference to Section 3(d) is bereft of any contextual analysis and can  be best described as tendentious. 

On the coherence between TRIPS flexibilities and Section 3(d), the USPTO questioned whether under any situation a new form, a new formulation or a new structure could be patentable subject matter. She indicated that the real problem was the seeking of second rate patents. To my dismay, this problem finds no place in the Report

A question on Public Citizen’s position on ancillary public policies such as pharmaceutical pricing and reimbursement policies was raised by the Department of Health and Human Services. She exhorted that those policies did not suffice as IP. Their primary concern being drug pricing, which is extensively mentioned in the Report as a market access barrier. 

PJIIP’s Written Submission and Testimony :

Underscoring the importance of  limitations and exceptions, it advocated for the benefits emanating from a liberal construction of the fair use exception. However, this has not found place in the Report.

Inapplicability of India’s fair dealing provision to sound recordings and cinematographic films was also expressed as an area of concern. Objections on Indian Performance Rights Society’s  unclear jurisdiction, rights and limitations was also raised. Neither of these have been mentioned in the Report. USTR refrained from commenting on the fair dealing provision. This could be due to its hesitation to subvert the mandate of the Special 301.(For more on this, see my post here). 

PJIIP (Final)

Image Courtesy : PIJIP

Responding to USTR’s question (on listing countries identified by it in the Report), it called upon the discretionary areas of the Report to highlight the positive developments on limitations and exceptions as well. Discretionary areas of the Report are, “Positive Developments” and “Best IPR Practices“. Neither of these sections have accommodated this request. 

CONCLUSION :

In past, there’ve been reports on the public interest organizations being subjected to an onerous burden of proof vis – a- vis trade groups (see here, here and here). However, this year, a parity atleast at that front has been maintained. Both categories of organizations were asked almost the same number of questions (between 2-3), with the USTR even commending PIJIP for its work. Even the difficulty level of the questions raised was the same.

Despite this, the meek deference given to the recommendations of the public interest organizations in the Report is an unfortunate missed opportunity.

 

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Tale of True IP Indices or Cosy Camaraderie : The Special 301 and the International IP Index Nexus

GIPC’s Perspective on the Difference Between the Special 301 and the International IP Index 

The Global Intellectual Property Center (GIPC) in its submission to the USTR for the 2015 Special 301 differentiated between the Special 301 and the International IP Index as –

The GIPC Index is not intended to be an industry Special 301 Report and, as such, not all countries included in the GIPC Index are included in the Chamber’s Special 301 submission. The GIPC Index is also not meant to be a comprehensive guide to all factors that make up a robust intellectual property protection and enforcement system. Rather, the GIPC Index serves as a discretionary policy tool to those countries wishing to evaluate the strengths and deficiencies in their intellectual property environments.

Tale of True IP Indices or Cosy Camaraderie : The Special 301 & the International IP Index Nexus

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India’s National IPR Policy Released

Only those who own monopoly love monopoly, balancing is required on public health.” remarked Finance Minister Arun Jaitley while unveiling the long awaited National IPR Policy.

The press release can be read here  and the Policy is available here. I’m yet to go through it and will thus reserve my comments for the time being.

My previous posts on the Draft National IPR Policy can be read here, here and here.

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