International IP Index 2016 : Some Thoughts and Transcript

INTRODUCTION :

In my previous posts (see here and here), I’ve briefly covered India’s performance in the 4th Annual International IP Index (the Index) .  Just today, I watched the release of the Index and have started reading the unabridged version of the Report.

(The Index has three parts to it, the Executive summary – which summarizes the findings of the Report, the Unabridged Report – which is the primary Index document and the Statistical Annexure  – which is the research methodology and in – depth statistical analysis on the relationship between IP, innovation and economic development.)

Global IP Index
Image Courtesy : Live Mint

In this post, I’ll give a brief account of the release of the Report.

The event commenced with David Hirschmann of the Global Intellectual Property Rights Center giving an introduction to the Index followed by Tom Donohue of the U.S. Chambers of Commerce making a case on the importance of a robust IP regime for a nation’s economic development.

Professor Meir Pugatch, the brain behind the Report gave some insights into it. Laurel J. Vogelsang of Merck and Anissa Brennan of the MPAA gave an industry perspective on the importance of IP and what the Index meant to them.

 Lorenzo Montanari  of the Property Rights Alliance (PRA) concluded the event talking about his work and other ancillary matters.

David Hirschamann’s Opening Remarks :

At the inception of the Index, IP regimes of 11 countries were analyzed. The latest Index analyzed 38 countries – representing 85 % of the world’s GDP. The Report was an emotional response to the prevailing international perception that IP was in U.S.’s interest.

It was an attempt to cut – through that debate by placing hard data on table. Countries were evaluated based upon 30 criteria for enabling fact- based progress.

Tom Donohue’s Bombastic Speech on the Importance of IP :

IP is imperative for alleviating poverty, hunger and other indices of low economic growth.”

Yeah! Though rare but such statements are expected from the head of an organization representing the largest U.S. corporations.

I want to ask this gentleman, had it not been for generic drugs, how possibly could exorbitant patented drug prices aid in poverty alleviation in the under – developed and developing countries? And a stringent IP regime that motivates breeders ( multinational life-science corporations) to produce high – yielding varieties at the cost of small scale farmers enable in curbing hunger?

While I’m not undermining the importance of IP, this sort of pompous rhetoric is overwhelming.

India and Medicines
Image Courtesy : pharmpro.com

Other points made by him stressing upon the importance of IP ( justifying the need for an Index of such a nature) and my rebuttals are :

(a) Without IP protection, ideas would never translate into products :

Are we all not aware that most of the modern age inventions (steam ships, railways and gas lamps) dating back to the Industrial Revolution were not an outcome of the patent system ( for more on this, read here, here and here – Pg. 351).

(b) IP is imperative for a worldwide commitment to growth, innovation and technology and the Index indicated where countries stood on innovation :

If this were true, why are countries such as Algeria, Indonesia, Eucador ranked behind India in the Global Innovation Index 2015 even though they fare better than India in the Index. The relationship between IP and innovation cannot be discounted. However, the premise that IP  was the sole parameter for unleashing the innovative capacity of a nation is misplaced.

This is corroborated by CII’s recommendation to drive innovation in India. IPR is certainly one of the areas where India has room for improvement. At the same time, attention to following would go a long way in untapping it’s innovative capabilities –

(a) Higher education

(b) Industrial innovation

(c) Entrepreneurship

(d) Easing the business environment

(e) Infrastructure development

Professor Meir Pugatch’s Insights into the Report :

Following are noteworthy points –

(a) From next year onwards, IP regimes of 45 economies shall be analysed.

(b) While countries had progressed (particularly the ones in the top most cluster), the BRICS nations were stagnant. He was optimistic about India’s IP regime improving.

(c) Patents (particularly pharma related) were not the only contestable area in the IP sphere. Debates often revolved around patents but there were other areas that required attention. The Index was not merely about a particular area of IP but a summation of all the facets  (patents, copyright, trademarks,  trade secrets and market access).

(d) Statistics indicated a strong relationship between IP and innovation.

(e) The TPP was the most important standard of the 21st Century and it was worthwhile to keep an eye on post – TPP developments.

(f) With the statistics tabled, it was high time for debates on the relationship between IP and economic growth to cease.

To my utter pleasure, question on the interplay between the Index and the Special 301 was raised by someone from the audience. ( This has been on my mind since a while now!). To which Prof. Pugatch’s response was a a difference in origin and source of the two instruments. Though there were many overlaps between the two, the Special 301 was political in nature while the Index  reflected the U.S. corporate sentiment (being the views of the members of the Chambers of Commerce). The Index relied upon the Special 301 as a source and was much wider in scope.

Perspective from the Industry : Laurel J. Vogelsang (Merck) and Anissa Brennan (MPAA)

Apart from talking about the role of IP in their respective industries, they acknowledged the crucial role played by the Index in international IP policy. It was not merely an academic exercise but a tool to engage in a dialogue with foreign governments and partnering institutions.

Anissa Brennan pointed out at the Index’s deficiency to capture every parameter.  Camcording was one of such parameters.

Final Segment : Lorenzo Montanari  of the PRA

After giving a brief introduction about the PRA, he spoke about the International Property Rights Index (2015) and how it differed from the Global IP Index.

The IPRI was derived on the basis of 3 indicators – (a) Legal and Political Environment (b) Physical Property Rights and ( c) Intellectual Property Rights. While Global IP Index was derived upon 19 correlations. 

(See page number 5 of IPRI for the indicators and page number 1 of the Statistical Annexure for the correlations).

IPRI focused on 3 areas ( overall IP protection, copyright and patents) while the Index focused on 6 ( patents, copyright, trademarks, trade secrets & market access, enforcement and ratification to international treaties). The PRA collected data from indirect sources (mostly international organizations such as the IMF, World Bank, OECD and WIPO) while the GIPC relied upon direct sources. 

CONCLUSION :

For any keen follower of international IP policy, the release of the Index is a big event. More than watching the two hour video ( except for Tom Donohue’s portion) , I would recommend everyone to read the Report.

I’ve skimmed through the first 52 pages, which enunciates the methodology and some pertinent trends. In my next post, I’ll bring forth some substantive comments on it.

 

 

India finishes Second Last in the Global IP Index

It’s only today that I’ve started digging my nose into the unabridged version of the Report.  And I start corrected to that there is indeed a cursory mention about the Draft IPR National Policy which is addressed as the National IP Rights Strategy (Page 109 of the Report).

Before going in for publication, the referenced National IP Rights Strategy document (actually the Draft National IPR Policy) was not released and thus finds no place in the Report.

For the benefit of readers, India’s first major effort to develop a coordinated federal plan to improve it’s IP regime was called the the  National Intellectual Property Rights (IPR) Strategy which was unveiled in 2012.

Transcript and commentary on the 4th Edition of the Global IP Index coming soon.

Source: India finishes Second Last in the Global IP Index

Upcoming Events : March – April, 2016

As a soft IP lawyer, I want to highlight two events that have caught my fancy –

(I) Remixes, First Sale, and Statutory Damages: A Presentation of the U.S. Patent & Trademark Office  : 

The Copyright Society of the U.S.A. is organizing this presentation where Shira Perlmutter, Chief Policy Officer and Director for International Affairs at the U.S. Patent and Trademark Office will present the findings and recommendations of the recently published White Paper on Remixes, First Sale, and Statutory Damages by the U.S. Department of Commerce’s Internet Policy Task Force.

CSUSA
This trademark is the exclusive property of the Copyright Society of the U.S.A. Views expressed in this blog post are NOT endorsed by it.

Date : March 22nd, 2016

Venue : The George Washington University Law School Tasher Great Room

Registration Required : Yes

Price : $ 5 for CSUSA members and $ 7 for non-members.

(II) WIPO Conference on the Global Digital Content Market : 

The World Intellectual Property Organization (WIPO) is organizing a Conference on the Global Digital Content Market. The Conference will explore themes such as :

(a) copyright in the digital age

(b) the impact of the digital environment on creators

(c) the role for publishers, producers and distribution platforms

(d) digital markets, access, and participation

Date : April 20 – 22, 2016

Venue: WIPO Headquarters in Geneva, Switzerland

Registration Required: Yes

Price : None

The CSUSA presentation will not be recorded and I’ll be unable to attend it due to a clash. However, the webcast of the WIPO Conference shall be webcasted and I’ll run though the transcript for the benefit of all readers. I’m actually pretty kicked about the WIPO Conference given the impressive credentials of the panelists.

 

Public Hearing : 2016 Special 301 Report

PhRMA wants USTR to ensure free reign to their greed while patients do not have any hope to have access.”

Truth will out. The above statement from UACT’s  testimony to the 2016 Special 301 public hearing held on March 1, 2016 reaffirms that though delayed, truth ultimately prevails.

Patent Kills Patient
Image Courtesy: timesofindia.com

INTRODUCTION :

The public hearing for the 2016 Special 301 was held on March 1, 2016 at  the USTR. As much as I had wanted to, being a weekday I was unable to attend it. As of today, the recording and the transcript of the hearing  has not yet been released by the USTR (Perhaps today being the last day for submission of the supplemental information including written responses. For a timeline of the 2016 Special 301 Process, visit here).

From whatever is available in public domain , I’ve built up a picture of the public hearing. I’ve highlighted some pertinent points which have an influence in determining India’s designation under the Report. (For more on Special 301, see my posts here , here and here)

THE HEARING :

Traditionally, the public hearing commences with foreign governments designated as Watch List (WL) countries pleading to the USTR to get off the list.

Governments of Bulgaria, Czech Republic and Ukraine had ten minutes each to testify.  Not being designated as WL, Government of India  did not testify.

For the second session, sixteen non- governmental organizations testified. Just to reiterate from my previous post, out of these sixteen organizations, testimonies of the following are particularly noteworthy – (These organizations in their written submissions had recommended India to be designated as a Priority Watch List country.)

(i) Alliance for Free Trade With India (AFTI)

(ii) The Software Alliance (BSA)

(iii) International Intellectual Property Alliance (IIPA)

(iv) Pharmaceutical Research and Manufacturers of America (PhRMA)

(v) U.S. Chambers of Commerce’s Global Intellectual Property Center (GIPC)

(vi) U.S. – India Business Council (USIBC)

Testimonies of the Internet Association, the Intellectual Property Owner’s Association, the Program on Information Justice and Intellectual Property  and the Trademark Working Group is of relevance considering that they cited objections to India’s IPR framework in their written submissions.

Knowledge Ecology International, Public Citizen and Union for Affordable Cancer Treatment had filed for notice to intent to testify. They’ve traditionally been supporters of India’s pharmaceutical patent regime.

TESTIMONY :

Only information pertaining to testimonies of AFTI, KEI, Internet Association, UACT and USIBC is available. I’ve tried summarizing their arguments (the portion focusing on India) –

(i) AFTI – Not to my surprise, it testified that India should be placed on PWL with a rigorous Out- Of- Cycle Review.  Considering it’s members (or rather cosy coterie), it played the usual rhetoric of –  (a) Weakness in India’s copyright system (b) Use of compulsory licenses and (c) Additional patentability criteria.

(ii) KEI –  Jamie Love testified on PhRMA’s, BIO’s and GIPC’s written submissions to the USTR which lashed out at India’s pharmaceutical patent regime. His defensive statement goes well with the proponents of access to affordable healthcare –

A number of the submissions supported by the pharmaceutical industry have targeted India. India is important both because it is a large country with more than a billion persons, and because it is frequently looked to as a supplier of affordable generic products in other countries.

KEI is working on compulsory licensing cases in several countries, and like others will look toward India to play a role in providing a supply of products.

He also made a cursory remark on sourcing prostrate cancer drug Xtamdi’s generic from India.

(iii) Internet Association – Ellen Schrantz testified for the inclusion of following three points in the 2016 Special 301 Report

(a) Support Balance in Copyright :  Limitations and Exceptions

( Support for fair use and other exceptions)

(b) Ancillary Copyright Laws : Issuance of warning to States that had enacted or were about to enact ancillary copyright laws.

(c) Domain Name Registrars : Distant  intermediaries not to  be reassigned IP enforcement responsibilities.

Though Schrantz’s did not testify, Internet Association in it’s written submission has made an objection to India’s copyright regime. It relates to the absence of a clear safe harbor framework for online intermediaries.

(iv) U.S. – India Business Council (USIBC) –  As per Buruc Kilic‘s tweet, USIBC in it’s testimony proposed for the introduction of patent linkage in India.

(v) Union for Affordable Cancer Treatment (UACT) – Last to testify, it came out strongly against PhRMA’s misrepresentation of the WTO rules on the issuance of compulsory licenses during national emergencies ( As evidenced by the opening quotation of this blog post.)

It also lauded Indian Supreme Court’s rejection of of the Bayer appeal of the Nexavar compulsory license.

CONCLUSION : 

To the best of my knowledge, this is all that is available in the public domain for now. If any one of you attended the public hearing or happen to be in possession of it’s transcript, please feel free to share.

Once the recording is released by the USTR, I’ll run through the entire testimony on ISGLP’s IPR blog.

 

 

 

 

 

 

 

 

Written Submissions : 2016 Special 301 Report

USTR logo
This trademark is the exclusive property of the Office of the United States Trade Representative, including all titles, interests and proprietary rights that may arise under it. USTR DOES NOT endorse the views of this blog post.

With the public hearing for the 2016 Special 301 Report going on at the USTR, I want to bring forth some pertinent statistics pertaining to the written submissions. These statistics have been deduced by me based on the written comments made as of February 19, 2016. To view the entire docket of the written comments made, visit here.

For a timeline of the 2016 Special Report, visit here. ( For more on the Special 301 Report, visit my post here and here. I also have a working Op-Ed in progress which I will share with the readers once it is published.)

STATISTICS:

Total Written comments received : 75 (Including notices of intent to testify and duplicate submissions)

Written comments serving as source of information for designating countries : 66

Notices of intent to testify and repetitions:

Watch List

Number of organizations recommending India to be designated as a Priority Watch List Country (PWL) : 11

 (It is pertinent to note that none of the trade groups have recommended India to be either designated as a Priority Foreign Country or as a Watch List Country. I’ve compiled a list of organizations that demand India to be designated as PWL alongwith their substantive areas of concern. Whether they recommended for heightened scrutiny by way of an Out- of-Cycle Review has also been included. The file is available here.)

Number of organizations that made no recommendation for countries to be designated but made adverse comments on India’s IPR framework : 5

These include-

(i) The Internet Association

(ii) The Intellectual Property Owner’s Association

(iii) Croplife America

(iv) The Trademark Working Group

(v)  Program on Information Justice and Intellectual Property

Number of organizations that did not designate any country : 5  

These are inclusive of organizations that expressed their dismay over the Special 301 Process being partisan and serving U.S. trade interests. These include –

(i) The Generic Pharmaceutical Association of America 

(ii) International Generic and Biosimilar Medicines Association (IGBA) 

(iii) Alibaba Group 

(iv) Knowledge Ecology International – Submitted notice of intent to testify on the usage of compulsory licenses including cancer drug patents in India.

(v) Public Citizen – Defended India’s patent regime as complying with WTO standards.

Number of organizations that designated other countries except India : 8  

These include –

(i) U.S. Dairy Export Council & National Milk Producers Federation

(ii) REACT

(iii) Bridgestone Americas, Inc 

(iv) Footwear Distributors and Retailers of America (FDRA) 

(v) American Apparel and Footwear Association (AAFA) 

(vi) Computer & Communications Industry Association (CCIA)

(vii) Advanced Access Content System Licensing Administration

(viii) The Sports Coalition 

Number of Indian organizations that submitted their written comments: 3

They defended India’s IP regime and include –

(iii) The Federation of Indian Chambers of Commerce and Industry (FICCI) 

(iv) Indian Pharmaceutical Alliance (IPA) 

(v) Confederation of Indian Industries (CII)  

Medicines Should Not be a Luxury
This image is the exclusive property of Medecins Sans Frontiers (MSF) as part of it’s “The Access Campaign.”  MSF DOES NOT endorse the views of this blog post.

Number of Corporations that made India specific comments but did not designate : 3

(i) Boeing – Was overall in favor of India’s existent IP regime. Unlike many corporations, Boeing does not view India IP’s regime as a trade barrier for itself.

(iii) Honeywell International Inc. – Lauded India’s IP regime and did not view it as an impediment for itself to conduct business in India.

(ii) General Electric Company – Expressed some concerns over India’s IP regime. These include –

(a) Backlog in patent and trademark offices.

(b) Absence of protection for trade secrets.

Number  of comments made by Governments and organizations of various nations except India : 22

These include –

(i)  Government of Bulgaria

(ii) Arabian Anti-Piracy Alliance

(iii) Government of Ecuador

(iv) Embassy of Ukraine to the USA, Intent to Testify

(v) HBO Latin America Group 

(vi) Ministry of Industry and Trade of the Czech Republic

 (vii) Embassy of Indonesia

(viii) Taipei Economic and Cultural Representative Office in the U. S.

(ix) Registro de la Propiedad Intelectual ( Ministry of Guatemala)

(x) Swiss Federal Institute of Intellectual Property IPI / State Secretariat for Economic Affairs SECO

(xi) Ministerio De Economia Y Competitividad

(xii) Panama Ministry of Trade and Industries

(xiii) Ministry of Economic Development and Trade of Ukraine

 (xiv )Bedreddine Radi

(xv) Comments of the Government of the Philippines

(xvi) Department of Special Investigation under Ministry of Justice

(xvii) Office of Commercial Affairs, Royal Thai Embassy

(xviii) Misin Salud, Fundacin Karisma y Fundacin Ifarma

(xix)  Government of the Republic of Costa Rica

(xx) Apex – Brasil 

(xxi) Canadian Patent Utility Coalition

(xxii) Federation of Industries of the State of So Paulo, National Confederation of Industry and Brazil Industries Coalition 

Number of Notice of Intent to Testify : 3 (excluding Knowledge Ecology International)

These include –

(i) Union for Affordable Cancer Treatment (UACT) 

(ii) The Computing Technology Industry Association (CompTIA)

(iii) Embassy of Czech Republic in D.C.

A noteworthy aspect is the absence of Government of India to submit a notice of intent to testify at the public hearing. I’ll be covering the public hearing at ISGLP’s blog as soon as the details are in public domain. (the hearing is expected to continue until March 4th, 2016). Watch out for this space!