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.

 

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.

 

 

 

The End of the Battle – Apple v. FBI?

The legal battle between Apple and the Government may finally be over (or not quite). Last evening, the Department of Justice filed for a Motion to Vacate the Order compelling Apple’s assistance in unlocking San Bernardino’s shooter’s iPhone before the United States District Court for the Central District of California.The Government was able to hack into the iPhone and and hence no longer required Apple’s assistance. (See here and here for more on this case).

For Apple Case
Image Courtesy : Mashable

 

The Government’s decision to withdraw the case seems somewhat unprecedented to me raising some pertinent questions –

(i) How did the Government manage to break into the iPhone? (There have been some theories to this end propounded by the forensic expert Jonathan Zdziarski.)

(ii) Will the method be divulged to Apple or to the public for that matter? (Communication of the method atleast to Apple would seem plausible.)

(iii) Why were alternative technologies not explored before filing for the Motion to Compel Apple’s assistance? ( Perhaps the existence of these methods were already known to the FBI. However, the Government wanted this to be a test- case for intruding into user’s privacy.)

(iv) Did the Government succumb to mounting anti – public opinion?  ( I would say so since Apple had the backing of the largest Silicon Valley tech giants and the civil society groups. Further, even the public at large disfavored the Government’s demand of asking Apple to create a backdoor to an iPhone’s security features.)

In light of the recent terrorist attacks in Brussels, the conundrum of striking the right balance between compelling national security needs and user’s privacy has only widened. The closure of the Apple v. FBI battle is the starting point of a larger debate – to what extent can corporations keep their user’s expectations of privacy at bay with a view to aid law enforcement agencies in the event of a national security threat?

( Just the ripe time to read Professor Daniel J. Solove’s book, ” Nothing to Hide : The False Tradeoff Between Privacy and Security“.)

Apple v. FBI : Follow – Up

In my previous post, I had briefly covered the on – going dispute between Apple and FBI on the latter’s ability to  compel Apple to unlock an iPhone. Just today, I reviewed all the Motions filed before the Court till date.

For Apple v. FBI
Image Courtesy : www.techcrunch.com

I’ve summarized the time line of the case along with the pertinent arguments raised by both the parties. I’ve focused particularly on the First Amendment aspect of the case, with a view to determine it’s relevance to broadcasters. ( Considering that my next professional role is at the Asia Pacific Broadcasting Union as it’s Legal Officer. Barring Kuala Lumpur’s muggy weather, given it’s strategic location, I’m looking forward to lead a truly Asian way of living!).

Also, it is rumoured that an Israeli based firm named Cellebrite was aiding the FBI to unlock the phone.

The War On Privacy : Apple v. FBI

Many of you may be wondering about my divergence from IP to privacy law. However, keeping upto the name of the blog, I could not have kept mum when one of the largest tech – giants has been embroiled in a major legal controversy touching upon user privacy.

The legal controversy in question is none other than the widely reported Apple v. FBI. This case arose in the aftermath of the San Bernardino’s terrorist attacks.  The issue revolved around whether the FBI could compel Apple Inc. to write a new software to unlock Syed Rizwan Farook’s (the shooter) iPhone. ( For more on the case, read here, here and here)

A hearing was scheduled for today before the United States District Court for the Central District of California. However, yesterday, the FBI filed for a  Motion to Vacate the Hearing. This was on the ground that through an outside party, they had found a way to access Farook’s iPhone. The method if found successful would eliminate the need for Apple’s assistance. The FBI has proposed filing for a status report to the Court by April 5th, 2016.

I’ve been speculating about this, ” outside – party” and it’s legal mandate to propose an alternative method for unlocking the phone. Any useful insights will be much appreciated.

Traditional Knowledge Digital Library : The Tale of Inflated Claims?

Much has been written about the efficacy of the Traditional Knowledge Digital Library (TKDL) in protecting India’s TK against biopiracy. ( See here, here and here). Infact, my LL.M. research also focused on the broader issue of biopiracy.

Just when I was thinking of refining my paper (in order to get it published), I stumbled upon an article on WIPO’s website while researching on the current status of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). In the article, Dr. V.K. Gupta, the brain behind TKDL explains the role of the database in thwarting biopiracy attempts by MNCs. .

traditional knowledge
Image Courtesy : The Lifeintelect Blog

A cursory look at the document and I was appalled by it’s vagueness, blatant lies and hyperbole. In this post, I’ll highlight the relevant excerpts from the document which caught my attention –

The TKDL expert group estimated that, annually, some 2,000 patents relating to Indian medicinal systems were being erroneously granted by patent offices around the world.

I would expect a document submitted to the WIPO to be backed by references. Following questions come to my mind –

Q.  What is the constitution of this TKDL expert group?

Q. In which year was the study conducted?

Q. Is the Report in public domain? ( I could not find it)

Q. What is the ambit of the expression, ” patent offices around the world“?  Does it include only the major patent offices ( to which TKDL is available on a non – disclosure basis) or does it have a wider scope?

( As of date, TKDL is available to the USPTO, the EPO, the JPO, IP Australia, CIPO, the GPO, UKPTO and CGPDTM-India on a non-disclosure basis.)

In one case the applicant modified the claims submitted and, in 33 other cases, the applicants themselves withdrew their four to five-year-old applications upon presentation of TKDL evidence – a tacit admission of biopiracy by the applicants themselves.

How can withdrawal of a patent application be inferred as a tacit admission of biopiracy is beyond my comprehension? I’m not discounting that prior art as documented in TKDL may have put the applicants in a spot. However, labelling it as ” tacit admission of biopiracy” without divulging the details is exaggeration to say the least.

The best is yet to come,

India is the only country in the world to have set up an institutional mechanism – the TKDL – to protect its TK. The TKDL enables prompt and almost cost-free cancellation or withdrawal of patent applications relating to India’s TK.

Perhaps Dr. VK Gupta at the time of penning this down was ignorant about the existence of the China Traditional Chinese Medicine Patents Database which dates back to June 17, 2002.

I’ve written to Dr. Archana Sharma, Head of CSIR – TKDL Unit for a clarification on some of these points.  As soon as I hear from her (if at all! ), I’ll bring forth her response to the questions raised.

Public Hearing (Update) : 2016 Special 301 Report

Many of you may be wondering about my deafening silence on the 2016 Special 301 Report, which I’ve otherwise been aggressively pursuing. (For more on the Special 301, see my posts here, here, here and here). Unfortunately, even after a fortnight,  the transcript and the video of the public hearing has not yet been released. This is somewhat strange considering that the video for  the 2015 Special 301’s public hearing was uploaded within 9 days of the hearing.  Hopefully, by this week, we should see it’s release.

Post hearing comments were submitted by the American University Washington College of Law , the Footwear Distributors and Retailers of America, the Trademark Working Group, the Computer and Communications Industry Association, the Union for Affordable Cancer Treatment, the Internet Association, the Global Intellectual Property Center. Organizations which submitted India related comments were – 

(I) The Trademark Working Group : It brought to the Committee’s notice, the increased costs incurred by a U.S. company to the tune of $ 3,515 as Attorney’s Fees in India due to an absence of multi – Class applications for trademark registrations.

(II) The Union for Affordable Cancer Treatment (UACT) : It countered PhRMA’s demand of  India being placed on the Priority Watch List due to it’s unpredictability of issuing compulsory licenses on essential life­- saving cancer drugs.

(III) The Global Intellectual Property Center (GIPC) : It highlighted the issuance of final Guidelines for Examination of Computer Related Inventions ( “CRI”) by the Government of India. According to GIPC, this denial of patents to all computer related inventions was contrary to prevailing international norms.

Needless to say, I’ll bring forth my views on the public hearing after it’s release.