2017 Global IP Index

The U.S. Chambers of Commerce has announced the dates for the release of the 2017 Global IP Index. It is slated to be released on February 8th, 2017 at U.S. Chambers of Commerce’s headquarters in Washington D.C. The theme for this year’s release is “The Roots of Innovation”.

The Global IP Index is the one of the most comprehensive evaluation of a country’s intellectual property regime. The 2017 Global IP Index will evaluate the IP framework of 45 countries around the world.

(I’ve extensively covered the Global IP Index. See here, here, here and here).

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.

 

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.

 

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).

PRA
Image Courtesy : Property Rights Alliance 

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.

 

 

 

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.

UACT-bichromie-rvb
Image Courtesy : Union for Affordable Cancer Treatment

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.

Knowledge Ecology International
Image Courtesy : Knowledge Ecology International 

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.

 

Of Lobbying, Lobbyists and the 2016 Special 301 Report

INTRODUCTION

In this post, I’ll highlight the extent of lobbying prevalent at the 2016 Special 301 Report. The Special 301 is largely influenced by five industrial lobby groups, the Pharmaceutical Research and Manufacturers of America (PhRMA), the International Intellectual Property Alliance (IIPA), the United States Chambers of Commerce’s Global Intellectual Property Center (GIPC), the Biotechnology Industry Organization (BIO) and the Business Software Alliance (BSA). With respect to India’s designation, the Alliance for Free Trade With India (AFTI) and the US – India Business Council (USIBC) also exert a significant clout over the Process.

INDIA’s DESIGNATION UNDER THE 2016 SPECIAL 301 : RECOMMENDATION BY TRADE GROUPS 

All the above mentioned trade groups  in the written comments submitted to USTR had recommended India to be placed on the Priority Watch List. Barring IIPA, BSA and the USIBC, the other four trade groups had also called for an Out – Of – Cycle Review (OCR). (I had compiled the recommendations made by the trade groups and had previously blogged about it here).

Thus, it’s no surprise to see India on the Priority Watch List. Though going by the submissions, I was expecting a mandatory OCR. Just to reiterate, in this year’s Report,  the USTR reserves the right to conduct an OCR depending upon either positive or negative developments warranting a review prior to the annual cycle.

 RECOMMENDATIONS ON PATENTS

Patent related comments were submitted by PhRMA, GIPC (and here), BIO, BSA (and here), AFTI (and here) and USIBC.

Reservation on account of following issues had been expressed by all these organizations and have unsurprisingly found habitat in the Report

(a) Impediment to India’s innovation climate on account of serious challenges in securing and enforcing patents particularly for sectors such as bio pharmaceuticals, agricultural chemicals, software and green technology.

(b) Concern over Patent (Amendment) Rules, 2015 providing for expedited review to applicants who either manufacture or commit to manufacture locally (Localization Requirement).

(c) Clarification over  India’s Compulsory Licensing law.

Barring USIBC, the above mentioned organizations had also expressed concern over mounting patent application backlog at the Indian Patent Office. Further, except for BSA, heightened patentability criteria under Section 3(d) of the Indian Patent Act, 1970 was also a concern to all.

Other patent related issues highlighted in the Report such as (a) the need for improvement over patent opposition procedure (b) re – examination of policies imposing significant burden over patent applicants and (c) lack of transparency in formulating the guidelines on Computer Related Inventions were recommended to be included by atleast three out of the seven organizations mentioned above. Thus, signifying the weightage accorded to the recommendations of these organizations. Infact, there is’nt a single issue highlighted in the Report which is not based upon a recommendation of these seven organizations. ( See here on the area wise issues highlighted in the Report).

Lobbying
Image Courtesy : www.thedailyjournalist.com

RECOMMENDATIONS ON COPYRIGHT

Of relevance to copyright and piracy are the comments submitted by IIPA, GIPC, AFTI and USIBC.

High incidence of online piracy underscoring the need for an effective legal framework was expressed by all these organizations. Under reporting of cable subscription was a concern for the IIPA and the USIBC.

Following issues were recommended by each of the above mentioned organizations :

(a) Replication of the Berne Convention Model on statutory license provisions for copyrighted works.

(b) Establishment of Copyright Board.

(c) Prevention of public broadcasters from facilitating the dissemination of pirated content.

(d) Protection against Technological Protection Measures (TPMs).

Surprisingly, prompt licensing of collecting societies for efficacy reasons and review of statutory damages provisions for copyright piracy were not recommended by any of these organizations.

RECOMMENDATIONS ON TRADE SECRETS AND  TRADEMARKS 

Of relevance to trade secrets are the comments submitted by USIBC, BSA, GIPC and the AFTI.  Difficulty in obtaining remedies and damages for trade secret protection was a concern expressed by all these organizations.

Out of the mentioned organizations, none of the organizations made any trademark specific recommendations. Though, the USIBC expressed a concern over India’s legal system by highlighting the interrelationship between trademark  protection and frivolous criminal cases filed against U.S corporations. Many U.S. corporations and senior executives were taken into local criminal courts by trademark defendants as a pressure tactic.

Trademark specific comments were made by the Trademark Working Group. It exerts minimal clout over the entire Special 301 Process. However, in the trademark sphere its comments have much credibility in the eyes of the USTR. This year, it expressed two concerns over India’s trademark system, (a) Denial to trademark owners effective protection against infringing marks and (b) The failure to alleviate the backlog of long-pending oppositions.

In my next post, I’ll analyse the treatment meted out to comments submitted by public interest organizations in the Report and draw a parallel on the weightage accorded to the recommendations of trade groups vis-a-vis public interest organizations.

 

 

India and the WIPO Broadcasters Treaty : Past Position & Future

Background :

In a previous post, I had made a cursory remark on the WIPO Treaty on the Protection of Broadcasting Organizations (WBT). Since the commencement of the negotiations for the WBT, the Indian delegation has expressed its reservations on some of the key provisions. This is possibly because voice has been expressed that no objective reason for the WBT had been established. However, this is far from true.

Ahead of the 32nd Standing Committee on Copyright and Related Rights (SCCR), scheduled from May 9th to May 13, 2016, I will highlight India’s position in the last two SCCRs. The upcoming SCCR could be decisive for the multilateral norm-setting by WIPO for protection of broadcasting organizations. I’ll highlight that there is a compelling need for India to support the WBT.

Broadcasters

Past Position: 

On a general reading of India’s official statement at the last two SCCRs, it’s clear that India is willing to engage in a dialogue with divergent stakeholders and possibly support the treaty once it’s assured that an equilibrium between the copyright owners, the disseminators and consumers is established.

At the 31st SCCR, December, 2015 :

  • The Indian delegation maintained its prior position of the proposed broadcasting treaty to conform to the  mandate of the 2007 General Assembly : adoption of a signal based approach strictly confined to traditional broadcasting and  cablecasting. Exclusion of webcasters, computer networks, simulcasters or near – live or deferred transmission which it believes were based on different investment models.
  •  Against the inclusion of  post-fixation rights in WBT as it believes that the scope of protection only covered signal protection.
  • Flexible about considering fixation for rebroadcasting and time-shifting purposes.
  • Supportive of limitations and exceptions for private use, for reporting current events, for education and scientific research and ephemeral fixation by broadcasting organizations for using its facilities and for its own broadcasts.

At the 30th SCCR, July, 2015 :

  • Supportive of unauthorized live transmission of signal over computer networks only if the broadcasting organization had rights over the content.
  • Strictly against creation of an extra – layer of rights over content for which broadcasters had a  licence to broadcast only.
  • Against a new “right of authorisation” as the “right to prohibit” covered the situation.
  • Against post- fixation rights and in favour of limitations and exceptions.

 

broadcasting 1
Image Courtesy : Mirex Marketing

Does India Need A Broadcasters Treaty? 

Considerable opinion on the failure of the proponents of  the WBT to elucidate its need has been voiced. Though, I’m of the view that the rai·son d’ê·tre for the WBT is firmly established.

Section 40 A (1) of the Indian Copyright Act, 1957 affords protection to foreign broadcasters against signal piracy in India. However, this reciprocity was unavailable to Indian broadcasters in most foreign countries. Hence, in the absence of an international legal framework, Indian broadcasters do not have a standing to sue under domestic legislation of a country where their signal is  pirated. This calls for harmonization of legal protection afforded to broadcasters across all jurisdictions. The WBT is a step in that direction.

 An opinion has been voiced that there was no need for the WBT as the Indian Copyright Act, 1957 had the same protection measures for broadcasting organizations as envisaged by the WBT. However, this is far from true. Neither does the Indian Copyright Act, 1957 protect pre – broadcast signal nor does it clearly spell out the ownership of Broadcast Reproduction Right. Hence, the WBT was imperative to fill the existing lacuna in domestic legislation

Studies have indicated that given the wide availability of pirated Indian movie content on the Internet, its demand was rampant. Majority of the probable consumers of these pirated movies were million of consumers residing abroad. Hence, there is a high probability of popular Bollywood movies being transmitted on new media platforms. If the WBT extends protection to illegal transmission over internet, it would go a long way in preventing loss of revenue to Bollywood on account of signal piracy.  Losses on account of music and movie piracy are massive, with industry reports valuing it to approximately $4 billion per year. Further, India has the highest rates of video piracy in the world, underscoring the need for an effective international legal framework for protection of broadcasting organizations.

The WBT has found considerable support amongst Indian Broadcasters. Even then, the Indian delegation had not resonated the views of its own industry in the past SCCRs.

Inclusion of limitations and exceptions in the WBT has been expressed by the Indian delegation. However, it has faced stiff opposition from the majority particularly the European Union. A via media to solve this deadlock can be adopted. Provision for Exceptions and Limitations based on the industry or culture of the Member States or as provided by their national legislation may prove to a fruitful strategy. Same position has been adopted in several other international treaties. Example : Article 16 of the WIPO Performances and Phonograms Treaty.

Conclusion and Way Forward :

The last WIPO General Assembly ended in a political stalemate over several issues, with national delegations of various countries not supporting the WBT due to divergence of views. The WBT is perhaps the only IP treaty till  date which is bereft of the classic North – South differences. Hence, these divergence of views is preposterous.

Signal piracy not only impedes the growth of Indian broadcasting industry severely but even causes substantial loss of revenue to Bollywood. Given this and the critical stage of negotiations, India should wholeheartedly support the WBT at the upcoming SCCR , which will be decisive for determining its fate. ” It’s Now or Never!“.

 

 

 

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

Annually, the United States of America releases two IP indicators of countries which falls short of its standards of IP protection. First being the International IP Index (the Index) by the Global Intellectual Property Center (GIPC) around February of each year. Followed by the paper tiger instrument called the Special 301 Report by the Office of the United States Trade Representative (USTR) around the last week of April. (For more on the Index, see here and on the Special 301, see here).

 In this post, I want to highlight the close nexus between these two indices with a special reference to this year’s Index and the Special 301 Report.

The Differences : 

The Index was devised as a road map for countries to formulate IP related policies that would enable them to reach their full innovative and economic capabilities. While, the Special 301 Report assess the IP regimes of U.S’s trading partners which act as trade barriers for its corporations. Thus, while the former is an economic parameter, the latter is a political one (even though toothless – being violative of the WTO Dispute Settlement Process. Read more on this here).

The Index is an academic exercise aimed at studying the benefits accruing to a nation’s economy on account of a robust IP regime. On the other hand, the Special 301 surveys IP policies of nations to determine losses to its corporations. With slight restraint, I’m tempted to say that the Index is merely persuasive in value, while the latter is a coercive “paper tiger” instrument ( the legality of the Special 301 Process being questionable. Read more on this here).

The ambit of the Special 301 is much wider than the Index. This year, the USTR analysed IP regimes of 73 trading partners while the GIPC mapped the IP environment of 38 economies of the world. However, with respect to subject matter, the Index has a wider reach. It’s based upon 30 indicators spanning six categories – patents, copyrights, trademarks, trade secrets, enforcement, and international treaties. Further, not only does the Index measure the IP strength of a nation but also gauges the benefits accruing from those strengths.

Featured Image -- 2611

The Nexus or the Cosy Camaraderie : 

The objections raised by both these indices this year with respect to India bear close semblance.  A plausible reason could be that the  Index uses the Special 301 as a source for arriving at its findings and vice – versa.

Further, at the release of this year’s Index,  Professor Meir Pugatch (the brain behind the Index) was questioned  on the interplay between the two indices. To which, he replied that though there were many overlaps between the two, the Index reflected the overall sentiment of its members (basically  the U.S. corporate interest) while the Special 301 took into account diverse stakeholders.

This raises an eye – brow, for the prevalent extent of lobbying by U.S. trade groups is no secret. Professor Peter Drahos’s articulation on the Special 301 in his treatise the Information Feudalism is noteworthy. According to him, the Special 301 was  “a public law devoted to the service of private corporate interests.” (Page Number 89).

This is corroborated by the statistics compiled by the American University’s Program on Information Justice and Intellectual Property. According to it, in the 2008 Special 301 Report, 86% of the nations singled out by the IIPA and 75% of the nations singled out by PhRMA were in that year’s Report.

Key Area Similarities Between the 4th Edition of the International IP Index and the 2016 Special 301 Report :

  • Non – conformance of patentability criteria to international standards.
  • Absence of regulatory data protection and patent term restoration.
  • Unfair and arbitrary policy on issuance of compulsory licenses.
  • Not a contracting party to major international treaties such as the WIPO Internet Treaties, the Singapore Treaty on the Law of Trademarks and the Patent Law Treaty.

Global IP Index

Differences : Concerns Expressed in the Special 301 but not in the International IP Index

  • Proposed amendments to patent rules incentivizing localized manufacturing.
  • With respect to the pharmaceutical industry, lack of protection against unfair commercial usage.
  • Lack of effective notification system for marketing approval for generics.

Differences : Concerns Expressed in the International IP Index but not in the Special 301

  •  Copyright related issues – (i) Term of protection (ii) Legal measures providing exclusive rights for preventing infringement of copyrights and related rights (iii) Scope of limitations and exceptions (iv) Absence of a Digital Rights Management Legislation (v) Absence of implementation of policies requiring proprietary software used on government ICT systems to be licensed software.
  •  Trademark related issues – (i) Term of protection and renewal period (ii) Non – discrimination and non-restriction on the use of brands in packaging of different products (iii) Ability of trademark owners to protect their trademarks (iv) Legal measures for redressal for  unauthorized usage of trademarks (v) Availability of frameworks for promoting action against  online sale of counterfeit goods.

GIPC’s Submission to the USTR for the 2016 Special 301 replicates the issues raised by it in the Index. Though distinctive in their nature, India related findings of both the indices are very similar particularly in the patent sphere. Thus, indicative of the partisan nexus between them. Professor Drahos elucidating this cosy camaraderie as –

By the early 1990’s the USTR, the intellectual property lobby and the companies for which they worked had a closeness borne of participation in a common crusade.

This makes me ponder whether stakeholders barring the lobbyists (public interest organizations, academic institutions and foreign governments) have a real say in the Special 301 Process? I think not.

 

.

 

2016 Special 301 : Thoughts on the Public Hearing

Today, I finally got the chance to review the testimonies made to the USTR for the 2016 Special 301. ( See here, here, here  here, here,and here on 2016 Special 301. On a side note, I’m still grappling with USTR’s unusual delay in uploading its transcript and video. As per  Mr. Mehta, they should’ve been uploaded to USTR’s website within a fortnight).

 

Image - US - India IPR Relations

 

In my previous post, I had analysed submissions made by various trade groups and not – for- profit organizations, on India’s IPR regime. Out of those, following testified at the public hearing – (please note that only submissions pertaining to India have been highlighted)

(A) Alliance for Free Trade With India (ATFI) :

Brian Pomper, Executive Director expressed concerns over India’s leaked Draft National IPR Policy, primarily on two grounds – (a) Onerous local manufacturing requirements and (b) Failure to ensure regulatory data protection.

He opined that India had not made substantive and measurable improvements in its IPR regime. And hence, at a minimum, an Out – of – Cycle review was warranted.

Question raised by Christine Peterson of the USTR : How would he characterize the initiatives taken in the past 12 months by the Modi Government? 

According to him, there were some positive developments. However, due to the broad sweep of its member companies, more was expected. Data exclusivity was a major area of concern.

Question raised by Jean Bonilla of the U.S. Department of State : What were his views on the Make in India initiative? 

It was a general policy matter, which every country was free to decide. However, provision in the Draft National IPR Policy to give expedited review to patent applications filed by entities that committed to manufacturing in India was partial treatment. 

(B)  Business Software Alliance (BSA)

Leticia Lewis, Director for Policy opined that revised guidelines on the patentability of computer-related inventions issued by the Indian Patent Office was extremely troubling. It was violative of TRIPS as it prevented many software-enabled innovations from receiving patent protection in India.  

(C) Intellectual Property Owners Association (IPO)

Mark  Lauroesch, Executive Director expressed concern over  India’s requirement on the existence of a  contractual relationship between the patent owner and the would-be misappropriator for bringing a misappropriation action. 

Question raised by Michael Smith of the USPTO :How did the introduction of utility model protection (such as that proposed by India’s Draft National IPR Policy) increase litigation? (This was based on IPO’s written submission made to the USTR. The relevant excerpt from their submission is, “There is also a recommendation to add utility model protection to support the informal segment of India’s economy. Although there might be some benefits, this might also lead to increased litigation and uncertainty for innovators operating in India, as has been the case with a similar system in China. ” – Pg. 14).

He answered that with utility models, no examination was required. Because of this more questionable IP rights were formulated. and perhaps asserted. This lead to an increase in litigation.

(D) Knowledge Ecology International (KEI)

James Love, Director of KEI testified that based on his review of the submissions, many were focused on India. Couple of the submissions stated that India had agreed not to issue compulsory licenses by signing an agreement. If the U.S. Government was in  possession of the agreement, it should be made public. They would definitely like to see it. 

Question raised by Stevan Mitchell of the U.S. Department of Commerce : Based on ATFI’s submission there was inadequate protection for trade secrets in India. As the Subcommittee would analyse the adequacy and effectiveness of India’s trade secret laws, were there any principles or considerations  that he suggested should be kept in mind?

He hoped that the USTR would not have an overly broad view of what constituted trade secret and that it would’nt discourage governments from mandating transparency.

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

Chris Moore, Deputy Vice President for International Policy at PhRMA expressed that restrictive patentability criteria (u/s 3 (d) of the Indian Patent Act, 1970) prevented introduction of new dosage forms and combinations that could promote adherence and lower overall health care costs by innovators and generics. Weak patent enforcement posed a serious problem. After additional duties and assessments, effective tariffs on medicines in India was as high as 20 %.  All of this mandated India to be placed on Priority Watch List with an Out – Of- Cycle review.

Question raised by Maureen Pettis of the U.S. Department of Labour : What was the economic impact of restrictive patentability criteria on U.S.  pharmaceutical industry? 

He answered that the economic impact was difficult to quantify.

(F) Public Citizen  

Burcu Kilic, Public Citizen’s Global  Access to Medicines Program came out in support of India’s patentability criteria. She opined that S. 3(d) of Indian Patent Act, 1970 was structured as a subject matter eligibility threshold and not as a  patentability test. Thus, was TRIPS compliant and should not be cited in the the Special 301 (on India’s TRIP’s -compliant interpretation of patentability criteria).

Further, she also came out in support of India’s stance on issuance of compulsory license for a cancer medicine.  She said that issuance of CL complied with India’s patent law ,  which was narrower than TRIPS permissible limits. 

Question raised by Mary Critharis of the USPTO : Public Citizen in its written submission had remarked with respect to India that countries should be given the flexibility to determine patentability standards. On this, she asked whether there were any situations in which a new form, a new formulation or a new structure could be given patent protection? Or did it believe that there should be a policy barring all such innovations.

Burcu Kilic answered that Indian patent law afforded due protection to new inventions. S.3 (d) of the Patent Act, 1970 was formulated as a test to determine whether the subject matter was a new invention. And if the subject matter was new use, it was subjected to the patentability by the Indian Patent Office. However, there was a major problem with these so – called inventions. They were mostly second-rate patents ( implying thereby that they were not new inventions).

(G) GLOBAL INTELLECTUAL PROPERTY CENTER

Patrick Kilbride, Executive Director for International IP remarked that he expected Indian Government  to instill legal certainty in the marketplace. Threat of issuance of compulsory license and patentability of computer-related inventions were major areas of concern. 

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

Mukesh Aghi, President of USIBC remarked that important developments related to India’s IP regime had taken place in the last  12 months. Some  of them were (a) Frequent interaction between U.S. and Indian Government (b) Improved transparency and frequent dialogue with the industry. (c) Denial of compulsory licenses (d) Capacity building.

Following are some pertinent recommendations made by him – (a) Consultation with industry  on the guidelines for the examination of patent application for computer-related inventions.(b) Consolidation of  enforcement of the Copyright Act and related international convention (c) Issuing guidelines for interpretation of s. 3(d) of Patents Act, 1970.

Question raised by Won Chang of the U.S. Department of the Treasury : How was Make in India related to IP? Would it lead to  intellectual property reforms?

Mukesh Aghi answered that for Make in India to be successful, a world class IP policy was imperative.

Question raised by Stevan Mitchell of the U.S. Department of Commerce : Did USIBC have a chance to review ATFI’s submissions (considering that both were Indian centric trade organizations)? And how were USIBC’s views different from ATFI’s?

He had not reviewed ATFI’s submissions but based on statistics its member companies were assured by the IP policy commitment made by the Indian Government.

CONCLUSION : 

To my delectation (though it may be short lived), the testimonies by pro – industry trade groups were not as acerbic vis- a-vis India’s IPR regime. And as usual, Jamie’s outright testimony by tabling statistics tickled my funny bone.

As I neared the last testimony, the buoyancy of my mood turned into dejection. For, it came to my knowledge only today that Manon Ress of the Union for Affordable Cancer Treatment, an organization whose work I support in heart and spirit was a cancer patient since 2010 (May force be her to fight out the disease). In her testimony, she welcomed Indian Supreme Court’s rejection of the Bayer appeal on Nexavar’s compulsory license. 

What needs to be seen is whether the release of the National IPR Policy coincides with the 2016 Special 301 Report. The National IPR Policy is up for Cabinet’s consideration while the 2016 Special 301 Report would be released somewhere around April 30, 2016.

Even if the National IPR Policy is unveiled before the release of 2016 Special 301, it would not have any effect on India’s status. However, if the Policy appeals to U.S. trade organizations, its status could potentially be upgraded in the 2017 Special 301.

 

 

 

 

 

 

 

 

 

 

 

 

 

The Tale of Endless Numbered Days and Some Thoughts : 2016 Special 301 Report

The wait is finally over! The transcript and the video of the 2016 Special 301 public hearing is now available.  With deluge of professional commitments,  I’ll be able to bring my thoughts on it only after April 15th. Hence, kindly bear with it. ( For previous posts on the Special 301, see here, here, here here and here).