Publications
http://editors.cis-india.org
Latest Access to Knowledge (A2K) publications
daily12011-08-20T18:53:10ZIntellectual Property Rights — Open Access for Researchers
http://editors.cis-india.org/a2k/blogs/unesco-nehaa-chaudhari-march-19-2015-communication-and-information-resources-news-and-in-focus-articles-unesco-open-access-curriculum-is-now-online
<b>In the year 2013, Nehaa Chaudhari had worked on a module on Intellectual Property Rights for United Nations Educational, Scientific and Cultural Organization (UNESCO)'s Open Access Curriculum (Curriculum for Researchers) as part of a project for the Commonwealth Educational Media Centre for Asia. UNESCO published the module this year. Nehaa Chaudhari and Varun Baliga were among the Module preparation team. Nehaa Chaudhari was the writer for Units 1, 2 and 3: Understanding Intellectual Property Rights, Copyright and Alternative to a Strict Copyright Regime.</b>
<p style="text-align: justify; ">This publication is available in Open Access under the Attribution - ShareAlike 3.0 IGO (CC-BY-SA 3.0 IGO) license (<a class="external-link" href="http://creativecommons.org/licenses/by-sa/3.0/igo/">http://creativecommons.org/licenses/by-sa/3.0/igo/</a>). By using the content of this publication, the users accept to be bound by the terms of use of the UNESCO Open Access Repository (<a class="external-link" href="http://www.unesco.org/open-access/terms-use-ccbysa-en">http://www.unesco.org/open-access/terms-use-ccbysa-en</a>).</p>
<hr />
<h2 style="text-align: justify; ">Module Introduction</h2>
<p style="text-align: justify; ">Intellectual Property Rights (IPR) are set of rights associated with creations of the human mind. An output of the human mind may be attributed with intellectual property rights. These are like any other property, and the law allows the owner to use the same to economically profit from the intellectual work. Broadly IPR covers laws related to copyrights, patents and trademarks. While laws for these are different in different countries, they follow the international legal instruments. The establishment of the Wold Intellectual Property Organization (WIPO) has established the significance of IPR for the economic growth of nations in the knowledge economy.</p>
<p style="text-align: justify; ">This module has three units, and while the Unit 1 covers the basics of IPR, Unit 2 expands in detail the components of copyright and explains the origins and conventions associated with it. Unit 3 discusses the emergence of liberal licensing of copyrighted work to share human creation in the commons. In the last unit, we discuss the Creative Commons approach to licensing of creative works within the structures of the copyright regime that permits the authors to exercise their rights to share in the way they intend to. Creative Commons provides six different types of licenses, of which the Creative Commons Attribution license is the most widely used in research journals part of the Open Access framework.</p>
<p style="text-align: justify; ">At the end of this module, you are expected to be able to:</p>
<ul>
<li>Understand intellectual property rights and related issues </li>
<li>Explain copyright, authors’ rights, licensing and retention of rights; and</li>
<li>Use the Creative Commons licensing system</li>
</ul>
<h3>Acknowledgements</h3>
<p>Nehaa would like to thank Varun Baliga and Anirudh Sridhar for their research and writing support in Unit 1, and Samantha Cassar for Unit 2.</p>
<ul>
</ul>
<hr />
<p><a href="http://editors.cis-india.org/a2k/blogs/intellectual-property.pdf" class="internal-link">Click to download the PDF containing the Modules</a>. Also read <a class="external-link" href="http://www.unesco.org/new/en/communication-and-information/resources/news-and-in-focus-articles/all-news/news/unescos_open_access_oa_curriculum_is_now_online/#.VQo6Ho58h8e">UNESCO’s Open Access (OA) Curriculum is now online</a></p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/unesco-nehaa-chaudhari-march-19-2015-communication-and-information-resources-news-and-in-focus-articles-unesco-open-access-curriculum-is-now-online'>http://editors.cis-india.org/a2k/blogs/unesco-nehaa-chaudhari-march-19-2015-communication-and-information-resources-news-and-in-focus-articles-unesco-open-access-curriculum-is-now-online</a>
</p>
No publishernehaaFeaturedHomepagePublicationsAccess to Knowledge2015-03-24T01:22:20ZBlog EntryPervasive Technologies: Patent Pools
http://editors.cis-india.org/a2k/blogs/patent-pools
<b>In this research paper, Nehaa Chaudhari gives an analysis of patent pools. She discusses the working of a patent pool, study patent pool in other areas of technology, and patenting in telecom and related technology.</b>
<hr />
<p><b><a href="http://editors.cis-india.org/a2k/blogs/pervasive-technologies-patent-pools.pdf" class="internal-link">Click to download the full research paper here</a></b> (PDF, 475 Kb)</p>
<hr />
<h2>Introduction</h2>
<p style="text-align: justify; ">The network landscape over the past few years has been characterized by several battles of supremacy between two or more rival technologies. <a href="#fn1" name="fr1">[1]</a> These battles have included, <i>inter alia, </i>the constant efforts at besting rivals in the arena of patenting innovations in technology, often as a result characterised by the imposition of high royalties on rivals, for the use of one’s patents. However, having realised that such efforts at besting the other could prove detrimental for all parties concerned in the long run, and stall technological advancements which would in turn translate into lower business revenue, mechanisms were devised to ensure a relatively equitable utilization of patents in the market place. One such mechanism that has been developed is that of patent pools.</p>
<p style="text-align: justify; ">Patent pools have been developed around most areas of high end technology and research and development. Over the course of this paper, the author has confined herself to a study on patent pools in the area of telecommunications, and the issues to be addressed therein. Specifically, the author will be dealing with patent pools around 3G, 4G, LTE, TD-SCDMA and TD-LTE technologies. Within this framework, the author seeks to examine what are patent pools, whether and what kind of patent pools exist, their associated costs, their licensing arrangements and the structure of the payment of royalty, and the feasibility of these patent pools.</p>
<h2 style="text-align: justify; ">Understanding Patent Pools</h2>
<p style="text-align: justify; ">Patent pools are agreements among patent owners through which patent owners combine their patents, waiving their exclusive rights to the patent to enable others, or themselves, to obtain rights to license the pooled patents.<a href="#fn2" name="fr2">[2]</a> Therefore, such pools may be focussed either on cross licensing, that is companies mutually making their patents available to each other, or on out licensing, that is, a group of companies making a collection of patents available to companies that do not or might not have patents of their own to contribute to the pool.<a href="#fn3" name="fr3">[3]</a> Typically, modern patent pools combine patents of various companies and are around inventions that are required to implement an established industry standard, are licensed as a whole (on an <i>all or nothing basis) </i>and not as individual licenses for patents owned by various companies within that pool, and are available to any non member for licensing.<a href="#fn4" name="fr4">[4] </a>Such licensing is done under a standard agreement and royalty rates, on a non discriminatory basis. The exception to this rule is that if certain members have contributed patents to the pool, they may receive more favourable terms, in recognition of their cross licensing relationship to the pool.<a href="#fn5" name="fr5">[5] </a>When viewed from a law and economics perspective, patent pools are seen to be an efficient institutional solution to various problems that arise when companies have complementary intellectual property rights, and these rights are essential to new technologies being used and employed. <a href="#fn6" name="fr6">[6] </a>However, this perspective also warns about the antitrust risks that may arise when competitors or potential competitors are involved in the coordination of their intellectual property. For instance, such pools may be used to allocate markets or otherwise chill competition. <a href="#fn7" name="fr7">[7]</a></p>
<h2 style="text-align: justify; ">The Working of a Patent Pool</h2>
<p style="text-align: justify; ">Generally, a patent pool may be administered in one of two ways- it may either have an administrative entity, or may also just be a system of cross licensing between two firms.<a href="#fn8" name="fr8">[8]</a> In case of the former, the licensing agency may be one of the patent holders, <a href="#fn9" name="fr9">[9]</a> or may be an independent licensing company (e.g. MPEG).<a href="#fn10" name="fr10">[10]</a></p>
<p style="text-align: justify; ">The ownership of patents within the pool is retained by the owners, who then license them to the operator/administrator on a non exclusive basis, with sub licensing rights. This means that the owners are free to continue to license their patents on an individual basis, and the administrator also has the right to further license the patents to any party who is interested in licensing from the patent pool.<a href="#fn11" name="fr11">[11]</a> The responsibility of managing licensing and licenses is vested in the operator/administrator of the patent pool. Licensees are required to report sales and pay royalties to the pool administrator, who in turn would enforce the conditions of the license.<a href="#fn12" name="fr12">[12] </a>The distribution of royalties between the members of the pool is on the basis of a formula which may, or may not be transparent to non member licensees, with the pool operator retaining a management fee.<a href="#fn13" name="fr13">[13] </a>Typically, pool licenses are also structured in a manner so as to render difficult early termination by the licensee. The nature of the contract, once signed by a licensee, is typically binding in nature. Therefore, this would mean that the administrator of the patent pool could sue the licensee for non performance of the contract.<a href="#fn14" name="fr14">[14]</a> However, unless a pool operator is a member of the pool itself, it cannot sue for the infringement of patents. <a href="#fn15" name="fr15">[15]</a> Therefore, in the event that a patented technology were to be utilised without having taken a license, one or more of the individual patent owners would be required to take legal action. The involvement of the pool operator would be limited to being a part of any settlement discussions, if they were to occur, since one of the options for the alleged infringer could be to obtain a license for the patent pool.<a href="#fn16" name="fr16">[16]</a></p>
<h2 style="text-align: justify; ">Drawing Parallels with Other Patent Pools</h2>
<p style="text-align: justify; ">In this section of the paper, the author seeks to study patent pools in other areas of technology in order to better understand the structure and pricing of patent pools.</p>
<p style="text-align: justify; "><b>The ‘3C DVD’ Patent Pool </b><br />Established in 1998, the <i>3C DVD Patent Pool</i> was the brainchild of <i>Philips</i>, <i>Sony</i> and <i>Pioneer</i>, and <i>L.G.</i> was subsequently inducted as a member. <i>Philips</i> acts as a licensing administrator for patents held by all the companies, which are over two hundred in number. These patents include those for the manufacture of the DVD players, and for the manufacture of the DVD disks themselves. <a href="#fn17" name="fr17">[17]</a> The player license per unit royalty was set as 3.5% of the net selling price of each player sold. This was subject to a minimum fee of $7 per unit, which after January 1, 2000 became $5 per unit. The disc license royalty was set as $0.05 per disc sold.<a href="#fn18" name="fr18">[18]</a></p>
<p style="text-align: justify; "><b>The ‘DVD- 6C’ Patent Pool</b><br />Established in June 1999, the members of this pool at the time of its inception were <i>Hitachi</i>, <i>Matsushita</i>, <i>Mitsubishi</i>, <i>Time</i> <i>Warner</i>, <i>Toshiba</i>, and <i>JVC</i>. This pool was also for the DVD-ROM and the DVD- Video formats, with <i>Toshiba </i>acting as the administrator. <a href="#fn19" name="fr19">[19] </a>The royalties were set at $.075 per DVD Disc and 4% of the net sales price of DVD players and DVD decoders, with a minimum royalty of $4.00 per player or decoder, which saw a substantial reduction in 2003.<a href="#fn20" name="fr20">[20]</a> Subsequently, there were various changes that were made to this group, including the inclusion of newer standards, the joining and subsequent departure of IBM and other organizations as a member etc. <i>Hitachi</i> and <i>Panasonic</i> also act as regional agents in certain regions of the world.</p>
<p style="text-align: justify; "><b>The MPEG LA pool<br /></b>The MPEG-2 is a standard for describing the coding of data <i>inter alia, </i>on DVD discs. For MPEG-2, a patent pool has been established, where the administrator is an independent, external organization known as the MPEG Licensing Authority, that set itself the aim to develop a patent pool for this standard.<b> </b> <a href="#fn21" name="fr21">[21]</a> The MPEG LA invited parties that thought they owned patents essential to this standard to join the program, which took off in 1997. At present, the pool has over a hundred patents and thousands of licensees.<a href="#fn22" name="fr22">[22]</a></p>
<h2 style="text-align: justify; ">Patenting in Telecom and Related Technology</h2>
<p style="text-align: justify; ">In this section of the paper, the author examines the working of patenting and patent pools in the telecommunications sector and in areas of related technology.</p>
<p style="text-align: justify; "><b>Early Developments and the Emergence of GSM<br /></b>Patent pools are slowly developing into a key component of the telecommunications and the technological industry. The technology industry has been said to be an <i>ecosystem</i>, wherein there is a complex correlation between those who develop the technology and those who implement it in the creation and development of products.<a href="#fn23" name="fr23">[23]</a> In the telecommunications industry for instance, each handset manufacturer has declared only a small percentage of the various types of intellectual property assets that are necessary to implement a 3G compatible cellular phone. Therefore, the working in such a context is that various companies develop different technologies, and the same is shared by various manufacturers that seek to make use of this technology.<a href="#fn24" name="fr24">[24]</a></p>
<p style="text-align: justify; ">The revival of patenting in the sector of telecommunications, post a period of decline in the decades of the 19540s to the 1980s, is attributed to the advent of the GSM standard for mobile communications in Europe.<a href="#fn25" name="fr25">[25] </a>In 1988, the main European operators invited equipment suppliers and developed a procedure wherein manufacturers would have to give up their intellectual property rights and to provide free world wide licenses for essential patents.<a href="#fn26" name="fr26">[26]</a> After opposition from the manufacturers, the approach was modified to one wherein the operators required the suppliers to sign a declaration agreeing to serve all of the GSM community on fair, reasonable and non discriminatory conditions.<a href="#fn27" name="fr27">[27]</a> In the early 1990s, Motorola by refusing to grant non discriminatory licenses for its substantial portfolio of essential patents and only agreeing to enter into cross license agreements further intensified the debate over IPRs in telecommunications. The company only lifted these restrictions after various countries across the world expressed a preference for this standard. The experience in this standard has demonstrated that it would not be accurate to expect that all parties holding essential patents would be willing to license them to all interested parties.<a href="#fn28" name="fr28">[28]</a> Companies were only willing to relax their licensing conditions once revenue generating opportunities increased.</p>
<p style="text-align: justify; "><b>The 3G3P and the UMTS<br /></b>In July 2000 the 3G Patent Platform Partnership (3G3P) and its 18 partners notified various agreements to the end of establishing a worldwide patent platform. The purpose behind this was disclosed to be that of providing a voluntary and cost effective mechanism to evaluate, verify and license patents that were essential for third generation (3G) mobile communication systems.<a href="#fn29" name="fr29">[29] </a>It was also claimed that the said agreements would have pro competitive effects and that the purpose behind this Platform was the facilitation of access to technology and consequent entry into the markets.<a href="#fn30" name="fr30">[30]</a> On the intellectual property front, the purpose was to reduce cost uncertainties and the delays that were accompaniments of licensing numerous essential patents for complex technologies.</p>
<p style="text-align: justify; ">While it has often been considered to be a patent pool, this arrangement has been said to be only similar to a patent pool.<a href="#fn31" name="fr31">[31]</a> The 3G3P itself has argued that since it was a mere facilitator of transactions between patent holders and licensees, and that membership was open to both licensors and licensees as opposed to only licensors as in the case of patent pools, it would be fallacious to classify the Platform as a patent pool. Further, it has also been argued that licensing by members is not restricted to the Platform and that there was no bundling or real pooling of the patents <i>per</i> <i>se</i> and those licensees have the opportunity to pick and choose between patents with the licensing being carried out on a bilateral basis. Additionally, unlike in a patent pool, there is no single license between the patent holders as a collective and the licensee, and the parties have a choice between the Standard License of the Platform, and a negotiable individual license.<a href="#fn32" name="fr32">[32]</a> A Standard License provides for Standard Royalty Rate, a Maximum Cumulative Royalty Rate and a Cumulative Royalty Rate.<a href="#fn33" name="fr33">[33] </a>Bilateral transactions on the other hand, are negotiated between the parties where the consideration is to be determined on <i>fair and equitable</i> terms.<a href="#fn34" name="fr34">[34]</a> This Platform also provides for a price cap, which, instead of being absolute and set at a pre-determined royalty rate, is a <i>default five percent maximum (not minimum) cumulative royalty rate for potential licensees per product category.</i><a href="#fn35" name="fr35">[35]</a> The royalty rate for each individual patent will differ for each of the licensees and this depends on the patent portfolio under each product category that the licensee has chosen.<a href="#fn36" name="fr36">[36]</a></p>
<p style="text-align: justify; ">The concerns and challenges of the GSM experience were well perceived during the determination of the course of action for UMTS. European actors were especially wary of <i>Qualcomm</i> and expected the firm to demand high license fees, with some even fearing them to be in excess of 10%.<a href="#fn37" name="fr37">[37]</a> Subsequently, various attempts at developing licensing schemes failed, until 2004 and the establishment of the W-CDMA Patent Licensing Programme for UMTS FDD patents.<a href="#fn38" name="fr38">[38] </a>At the outset, seven licensors offered their patents as a bundle to prospective licensors, a number which decreased over time.<a href="#fn39" name="fr39">[39]</a></p>
<p style="text-align: justify; "><b>The Development of LTE Patent Pools<br /></b>The next stage in the process of innovation in the realm of telecommunications was the development of the Long Term Evolution (LTE) Standard, which while being essential to 4G technology has also seen application in the realm of 3G. Consequently, patent pools or similar structures have been developed in these areas. LTE patents are being viewed as among the most valuable intellectual property resource in the mobile telecommunications industry, with most operators around the world building LTE networks.<a href="#fn40" name="fr40">[40]</a></p>
<p style="text-align: justify; ">As per in a study conducted in 2011, 23% of the patents about this technology were owned by <i>L.G. Electronics</i>, with <i>Qualcomm</i> coming in second with 21%. <i>Motorola Mobility, InterDigital, Nokia</i> and <i>Samsung</i> each owned 9%, China’s <i>ZTE</i> owned about 6%<a href="#fn41" name="fr41">[41]</a> and <i>Nortel</i> owned 4%, which were later sold to a consortium of <i>Apple, EMC, Ericsson, Microsoft, Research in Motion (RIM)</i> and <i>Sony</i>, after <i>Nortel</i> filed for bankruptcy in 2009.<a href="#fn42" name="fr42">[42]</a> <i>Ericsson</i> also independently owns 2% of the patent pool and <i>RIM</i> owns 1%.<a href="#fn43" name="fr43">[43]</a> However, another analysis<a href="#fn44" name="fr44">[44]</a> of IP databases conducted by <i>ZTE</i> in 2011 revealed differing results. As per this analysis, <i>InterDigital </i>was the leader, with its Patent Holdings arm controlling 13% and the Technology arm controlling 11% of LTE essential patents. <i>Qualcomm</i> controlled 13%, <i>Nokia</i> and <i>Samsung</i> 9% each, <i>Ericsson</i> controlled 8%, as did <i>Huawei</i>, <i>ZTE</i> controlled 7%, <i>L.G</i>. controlled 6% and <i>NTT</i> <i>DoCoMo</i> brought up the rear with 5%. The remaining 11% was held by various other firms.<a href="#fn45" name="fr45">[45]</a> It is to be realized that these studies have often come under criticism from different companies, with each of them eager to portray themselves as the market leader.<a href="#fn46" name="fr46">[46]</a> Setting aside criticism driven by corporate egos, the principle of it, that is, the difficulty in assessing and valuing patents cannot be disputed. Valuing patents is far from merely counting the number of patents owned by a company. The complications are especially evident when it comes to determining which of these patents are essential and which of them aren’t. Additionally, the worth of these patents varies depending on the existence or the absence of certain conditions, including transfer restrictions, cross licensing arrangements, ownership and market conditions.<a href="#fn47" name="fr47">[47]</a></p>
<p style="text-align: justify; ">The aforesaid discussion reveals the complexity and the fragmentation of the LTE environment, which further underscored the need to have patent pools in this field. Although the need for a patent pool was realized in 2009-2010, given that the WCDMA patent pool had been met with very limited success,<a href="#fn48" name="fr48">[48]</a> industry watchers were reluctant to be optimistic. This was in part fuelled by the understanding of the attitude of dominant players, wherein they continued to believe that they could derive more monetary, cross licensing and litigation defence value if they did not pool their patents.<a href="#fn49" name="fr49">[49]</a></p>
<p style="text-align: justify; ">The development of LTE patent pools can be traced back to 2009, and the response of <i>Via Licensing</i>¸<i> Sisvel</i> and <i>MPEG LA</i> to a Request for Information on forming such a patent pool by the <i>Next Generation Mobile Network Alliance (NGMN).</i><a href="#fn50" name="fr50">[50]</a> <i>Sisvel’s</i> proposal, which it subsequently made at a public conference in 2010 sought to demonstrate that patent pools could prevent excessive costs from royalty stacking.<a href="#fn51" name="fr51">[51] </a>Among various other examples, <i>Roberto Dini</i>, the founder of <i>Sisvel</i> suggested that if patents were to be licensed individually, for instance, 85 patents for MPEG video at 50 cents apiece would cost $42.50. As opposed to this, the patent pool charged $2.50.<a href="#fn52" name="fr52">[52]</a> In 2011, the <i>NGMN</i> reiterated its recommendation to all stakeholders in the mobile industry that were interested in developing patent pools to hasten their development process to avoid further delays in LTE licensing.<a href="#fn53" name="fr53">[53]</a> The <i>NGMN</i> also went on to state that it would be ideal if all the parties were to agree on a single patent pool that promoted reasonable royalties, offered certainty on the availability of the licenses for patents and created a framework for evaluation of their essentiality, where the value of the patents essential to the pool would be established by the industry.<a href="#fn54" name="fr54">[54]</a> These recommendations were not without their fair share of criticism, both, from industry watchers<a href="#fn55" name="fr55">[55]</a> and from vendors.<a href="#fn56" name="fr56">[56]</a> Notwithstanding these reservations, both, <i>Sisvel</i><a href="#fn57" name="fr57">[57]</a> and <i>Via</i> <i>Licensing</i> have gone on to issue calls for patents for the purposes of creating patent pools in the LTE marketplace.</p>
<p style="text-align: justify; ">The <i>Sisvel </i>LTE Patent Pool materialized in late 2012, wherein licenses were offered under a portfolio of patents essential to LTE.<a href="#fn58" name="fr58">[58]</a> The pool includes patents owned by <i>Cassidian</i>, the <i>China Academy of Telecommunication Technology, the Electronics and Telecommunications Research Institute, France Telecom, TDF</i>, and <i>KPN</i>, in addition to some patents that had been originally filed by <i>Nokia </i>but were acquired by <i>Sisvel </i>in 2011.<a href="#fn59" name="fr59">[59]</a> The pool is also open to other organizations that have patents essential to LTE. At present, the current portfolio of these patents is available under standard terms and conditions. The running royalty rate is 0.99 Euros per device.<a href="#fn60" name="fr60">[60]</a></p>
<p style="text-align: justify; ">Having promised a launch within a few months in June, 2012<a href="#fn61" name="fr61">[61]</a> <i>Via Licensing </i>has also developed its own LTE Patent Pool, with the initial companies in this pool being <i>AT&T, </i><i>Clearwire Corporation, DTVG Licensing, HP, KDDI Corporation, MTT DoCoMo, SK Telecom, Telecom Italia, Telefónica</i> and <i>ZTE.</i><a href="#fn62" name="fr62">[62]</a> Like <i>Sisvel’s</i> Patent Pool, this pool is also open to other organizations that believe they possess essential LTE patents, and they are encouraged to submit the same for evaluation.<a href="#fn63" name="fr63">[63]</a> The patent pool floated by <i>Via</i> leans heavily towards service providers, but some of the big players in the industry including <i>Nokia, Ericsson, Huawei Technologies</i> and <i>Samsung</i> <i>Electronics</i> are conspicuous by their absence.<a href="#fn64" name="fr64">[64]</a> This absence is felt even in <i>Sisvel’s</i> patent pool, with the reasoning being proposed<a href="#fn65" name="fr65">[65]</a> that these key patent holders may prefer private licensing and subsequent litigation over pooled resources in patent pools.<a href="#fn66" name="fr66">[66]</a> Understandably, the launch of the LTE Patent Pools has been met with approval by the <i>NGMN</i><a href="#fn67" name="fr67">[67]</a> but given the nascent stages in which both of these pools find themselves, it would be premature to comment (without first observing for a few months) the likelihood of their success or failure and how they would play out against each other.</p>
<p style="text-align: justify; "><b>The TD-SCDMA and the TD-LTE<br /></b>Reportedly, China has spent several billion dollars on the import of analog and GSM technology,<a href="#fn68" name="fr68">[68]</a> and the country’s mobile communications industry continues to be dominated by foreign players.<a href="#fn69" name="fr69">[69]</a> Therefore, in continuation of a purportedly <i>growing trend</i><a href="#fn70" name="fr70">[70]</a> in the area of telecommunications as well, domestically developed systems are being preferred and developed over standardized technologies that enjoy strong patent protection outside China.<a href="#fn71" name="fr71">[71]</a> Besides the avoidance of paying royalties to foreigners, the idea is also to use China’s strong market presence and have more participants in China’s home grown technology.<a href="#fn72" name="fr72">[72]</a></p>
<p style="text-align: justify; ">Time Divisional- Synchronous Code Division Multiple Access (TD-SCDMA), developed by the <i>China Academy of Telecommunications Technology (CATT)</i>, in collaboration with <i>Datang </i>and<i> Siemens</i><a href="#fn73" name="fr73">[73]</a> is a Chinese indigenously developed 3G technology standard developed by China to reduce its dependence on western standards.<a href="#fn74" name="fr74">[74]</a> Interestingly however, it has been reported that the Chinese hold core patent technology only about 7% whereas most of the rest of it is taken by other foreign organizations.<a href="#fn75" name="fr75">[75]</a> In 2000, an industry consortium, the TD-SCDMA forum was established. The participants were <i>China</i> <i>Mobile, China Telecom, China Unicom, Huawei, Motorola, Nortel, </i>and<i> Siemens</i>, with the objective of developing and supporting this technology. Government support was received in 2002, following which the <i>TD-SCDMA Industry Alliance </i>was founded by well known market players including <i>Datang</i>, <i>SOUTEC</i>, <i>Holley</i>, <i>Huawei</i>, <i>LENOVO, ZTE, CEC</i> and <i>China</i> <i>Putian</i>. There has also been the creation of various joint ventures with international giants such as <i>Alcatel</i>, <i>Ericsson</i>, <i>Nokia</i>, (erstwhile) <i>Nortel</i>, <i>Philips</i>, <i>Samsung</i> and <i>Siemens</i> have also been created.<a href="#fn76" name="fr76">[76]</a></p>
<p style="text-align: justify; ">Information about the existence of patent pools in this technology has been hard to come by. One of the few to write about patent pools in his 2008 paper,<a href="#fn77" name="fr77">[77]</a> <i>Dazheng Wang</i> proposes patent pools as a solution to the problem of commercialization of TD-SCDMA. He suggests that the framework of this patent pool should be on the industry principles of fair, reasonable and non discriminatory licensing terms for essential patents, with the end result being one of increased innovation and competition and an overall increase in market presence. Interestingly, a few articles<a href="#fn78" name="fr78">[78]</a> on blog posts on the internet speak about the existence of patent pools and their apparent misuse<a href="#fn79" name="fr79">[79]</a> as well.</p>
<p style="text-align: justify; ">It is submitted that these inconsistencies regarding the division of patents between various patent holders, where the percentage of patents held by each company have been pegged differently,<a href="#fn80" name="fr80">[80]</a> and about the existence of a patent pool or not raise pressing concerns about the payment of royalties and how licensing works in such a situation. On a very basic level, in order to be able to pay royalties and enter into licensing agreements, the existence of an identified, non disputed patent holder would be the <i>sine qua non, </i>which seems to be missing in the case of patents for TD-SCDMA. This problem is only further compounded by the lack of clarity on the very existence of patent pools. Had there been specified patent pools, the issues of determination of essential patents and the setting of royalties and licensing fees would have been standardized, a situation that cannot be invoked, without dispute, in the present Chinese context.</p>
<p style="text-align: justify; ">It is further submitted that despite China being the world’s largest market for mobile communications, and its progress from a mere importer to a developer of some parts of technology,<a href="#fn81" name="fr81">[81]</a> the Chinese experiment with TD-SCDMA seems to have met with limited success, in comparison to what was envisaged. For instance, while an agency had forecast that the number of TD-SCDMA subscribers in 2010 would be 34 million, by April, 2010 there were only 8 million or (even lower) subscribers.<a href="#fn82" name="fr82">[82]</a> One of the reasons for preferring other standards, for instance, the W-CDMA is the number of handsets compatible with the same and the consequent variety that is available to the consumer. To illustrate, one could look at the figures from June, 2010. At this point of time <i>China Unicom</i> had 94 models for W-CDMA from twenty four manufacturers including nine foreign ones, whereas <i>China Mobile</i> had only twenty eight models that were compatible with TD-SCDMA.<a href="#fn83" name="fr83">[83]</a> Interestingly, if one were to measure popularity in terms of sheer numbers, TD-SCDMA would emerge the winner over W-CDMA by a couple of million subscribers, but if the growth rate were to be considered, W-CDMA would come out on top. While TD-SCDMA grew only by 24%, W-CDMA has grown at 32% monthly since the start of its service is October, 2009.<a href="#fn84" name="fr84">[84]</a></p>
<p style="text-align: justify; ">China’s experiments with creating its home grown telecommunication standards have not stopped with the development of the TD-SCDMA, with the country being on track in the development of the TD-LTE. Reports suggest that although the systems are in ‘trial’ mode officially, the 4G spectrum situation remains uncertain.<a href="#fn85" name="fr85">[85]</a> It is submitted that although this is in the nascent stages as compared to the TD-SCDMA, the concerns expressed earlier about TD-SCDMA and the suggestions made therein for the technology to realise its full potential would be equally applicable in this scenario as well.</p>
<p style="text-align: justify; ">Therefore, in light of this discussion it would not be fallacious to conclude that while the TD-SCDMA, and now more recently the TD-LTE standard might still be in its nascent stages, on a fundamental level it seems to have not fulfilled the objectives with which it was developed, especially given that a sizeable portion of its patents continue to be owned by foreign corporations. In addition to the challenges of attracting subscribers, it would also need to streamline its system of patents, royalties and licensing, if it wants to have a truly global or even national presence. To this end perhaps patent pools structured along the lines of those being developed or in place for other mobile communication technologies might provide a viable solution meriting consideration.</p>
<h2 style="text-align: justify; ">Concluding Observations</h2>
<p style="text-align: justify; ">One of the fundamental concerns that plague most downstream organizations in the mobile communications sector is the prevalence of high licensing fees that need to be paid on essential patents, the cost of which often trickles down to the customers. A study on the licensing arrangements prevalent at the moment<a href="#fn86" name="fr86">[86]</a> reveals that as of the moment, the result of royalty rate caps is that they save money for downstream manufacturers, but this is at the expense of upstream licensors. The most significant savers are the ones downstream with no IP to trade, and vertically integrated companies while losing some revenue, are able to save significantly more in reduced expenses.<a href="#fn87" name="fr87">[87]</a></p>
<p style="text-align: justify; ">Therefore, it comes as no surprise that efforts at limiting aggregate licensing fees have been at the forefront over the past couple of years. It is in this scenario that patent pools have developed, with operators such as <i>Via Licensing</i> and <i>Sisvel</i> even promoting themselves as being able to put together patent pools that would greatly limit licensing fees.<a href="#fn88" name="fr88">[88] </a>However, some owners of intellectual property continue to find bilateral licensing and cross licensing to be more profitable as opposed to patent pools.</p>
<p style="text-align: justify; ">One of the key concerns when it comes to fore when dealing with how patent pools are structured is about the distribution of income received from royalties within the members of the pool, which ties in with the bigger question of classifying patents as essential and non essential. More often than not, patent pools also have to grapple with the problem of members having conflicting interests. For instance, manufacturers have the incentive to cap aggregate royalties of certain essential patents that they would use in manufacturing, in order to reduce their licensing costs. However, these manufacturers could have also brought their own essential patents to the pool, perhaps of a new way of doing things, and would certainly be averse of having caps imposed on these royalties.</p>
<p style="text-align: justify; ">One of the key other considerations that patent pools need to take into account include the royalty rates affixed. In an interview some time ago, the founder of <i>Sisvel</i>, went on to state that while affixing these royalty rates, there could be no discrimination against licensees, since that would be a sure fire way of ensuring the collapse of the patent pool.<a href="#fn89" name="fr89">[89]</a> Additionally, patent pools also need to account for the difference in regulatory mechanism and their execution that exists across jurisdictions. For instance, customs officials in France pay a lot more attention to counterfeit goods than they would to patent infringing products, whereas those in Germany would have a keen eye on the latter.<a href="#fn90" name="fr90">[90]</a></p>
<p style="text-align: justify; ">Various other concerns have also been identified with regard to patent pools over time. One of these is that they could potentially eliminate competition that comes from outside of patent pools.<a href="#fn91" name="fr91">[91]</a></p>
<p style="text-align: justify; ">Additionally, patent pools are not all inclusive, since participation is entirely voluntary. Therefore, patent pools would not even be reasonably expected to cover all essential patents required to make a standardised product. This problem is rendered even more complex as a result of the presence of multiple patent pools around the same technology, as in the case of DVDs and more recently, LTE technology.</p>
<p style="text-align: justify; ">In sum, while portfolio cross licenses and patent pools can be helpful in resolving issues created by patent thickets by reducing transaction costs for licensees, while preserving to a definitive extent financial incentives for inventors to commercialize their existing inventions and undertake new research, the significant shortcomings of these pools also need to be taken into account before they can be heralded as the solution to problems presented by complex patent landscapes. While voluntary patent pools might have proved to be beneficial in some respects, the imposition of patent pools would be a fallacious approach to undertake.</p>
<hr />
<p>[<a href="#fr1" name="fn1">1</a>]. Hui Yan, <i>The 3G Standard Setting Strategy and Indigenous Innovation Policy in China: Is TD-SCDMA a Flagship?, </i>DRUID Working Paper No 07-01, available at http://www2.druid.dk/conferences/viewpaper.php?id=1454&cf=9 (last accessed 07 12 2012)</p>
<p>[<a href="#fr2" name="fn2">2</a>]. Josh Lerner and Jean Tirole, <i>Efficient Patent Pools,</i> 4 Am. Econ. Rev. 691, 691 (2004)</p>
<p>[<a href="#fr3" name="fn3">3</a>]. <i>Patent Pools- Some Not So Frequently Answered Questions, </i>available at <a href="http://blog.patentology.com.au/2012/11/patent-pools-some-not-so-frequently.html">http://blog.patentology.com.au/2012/11/patent-pools-some-not-so-frequently.html</a> (last accessed 10 December, 2012)</p>
<p>[<a href="#fr4" name="fn4">4</a>]. <i>Id.</i></p>
<p>[<a href="#fr5" name="fn5">5</a>]. <i>Id.</i></p>
<p>[<a href="#fr6" name="fn6">6</a>]. Philip B. Nelson, <i>Patent Pools: An Economic Assessment of Current Law and Policy, </i>Rutgers Law Journal, Volume 38:539, 559 (2007)</p>
<p>[<a href="#fr7" name="fn7">7</a>].</p>
<p>[<a href="#fr8" name="fn8">8</a>]. Roger B. Andewelt, Analysis of Patent Pools Under the Antitrust Laws, 53 ANTITRUST L.J. 611, 611 (1984).</p>
<p>[<a href="#fr9" name="fn9">9</a>]. Philips has been known to have been the licensing agency for patent pools where it was a member</p>
<p>[<a href="#fr10" name="fn10">10</a>]. <i>Supra </i>note 3</p>
<p>[<a href="#fr11" name="fn11">11</a>]. <i>Supra </i>note 3</p>
<p>[<a href="#fr12" name="fn12">12</a>]. <i>Supra </i>note 3</p>
<p>[<a href="#fr13" name="fn13">13</a>]. <i>Supra </i>note 3</p>
<p>[<a href="#fr14" name="fn14">14</a>]. <i>Supra </i>note 3</p>
<p>[<a href="#fr15" name="fn15">15</a>]. <i>Supra </i>note 3</p>
<p>[<a href="#fr16" name="fn16">16</a>]. <i>Supra </i>note 3</p>
<p>[<a href="#fr17" name="fn17">17</a>]. Rudi Bekkers et. al., <i>Patent Pools and Non Assertion Agreements: Coordination Mechanisms for Multi Party IPR Holders in Standardization</i>, available at <a href="http://www-i4.informatik.rwth-aachen.de/Interest/EASST_Bekkers_Iversen_Blind.pdf">http://www-i4.informatik.rwth-aachen.de/Interest/EASST_Bekkers_Iversen_Blind.pdf</a> 22 (last accessed 09 December, 2012)</p>
<p>[<a href="#fr18" name="fn18">18</a>]. <i>Id.</i></p>
<p>[<a href="#fr19" name="fn19">19</a>]. <i>Id.</i></p>
<p>[<a href="#fr20" name="fn20">20</a>]. <i>Id.</i></p>
<p>[<a href="#fr21" name="fn21">21</a>]. <i>Supra</i> note 17 at 23.</p>
<p>[<a href="#fr22" name="fn22">22</a>]. <i>Supra</i> note 17 at 23.</p>
<p>[<a href="#fr23" name="fn23">23</a>]. Keith Mallinson, <i>Fixing IP Prices with Royalty Rate Caps and Patent Pools, </i>available at <a href="http://ipfinance.blogspot.in/2011/07/fixing-ip-prices-with-royalty-rate-caps.html">http://ipfinance.blogspot.in/2011/07/fixing-ip-prices-with-royalty-rate-caps.html</a> (last accessed 10 December, 2012)</p>
<p>[<a href="#fr24" name="fn24">24</a>]. <i>Id.</i> See Appendix 1 for a graphical representation of declared intellectual property assets in 2009.</p>
<p>[<a href="#fr25" name="fn25">25</a>]. <i>Supra</i> note 17 at 25</p>
<p>[<a href="#fr26" name="fn26">26</a>]. <i>Supra</i> note 17 at 27</p>
<p>[<a href="#fr27" name="fn27">27</a>]. <i>Supra</i> note 17 at 27</p>
<p>[<a href="#fr28" name="fn28">28</a>]. <i>Supra</i> note 17 at 28</p>
<p>[<a href="#fr29" name="fn29">29</a>]. Dessy Choumelova, <i>Competition Law Analysis of Patent Licensing Agreements- the Particular Case of 3G3P, </i>available at <a href="http://ec.europa.eu/competition/publications/cpn/2003_1_41.pdf-">http://ec.europa.eu/competition/publications/cpn/2003_1_41.pdf-</a> 41 (last accessed 10 December, 2012)</p>
<p>[<a href="#fr30" name="fn30">30</a>]. <i>Id.</i></p>
<p>[<a href="#fr31" name="fn31">31</a>]. <i>Id.</i></p>
<p>[<a href="#fr32" name="fn32">32</a>]. <i>Id.</i></p>
<p>[<a href="#fr33" name="fn33">33</a>]. <i>Id </i>at 42.</p>
<p>[<a href="#fr34" name="fn34">34</a>]. <i>Id </i>at 42.</p>
<p>[<a href="#fr35" name="fn35">35</a>]. <i>Id </i>at 42-43.</p>
<p>[<a href="#fr36" name="fn36">36</a>]. <i>Id</i> at 43.</p>
<p>[<a href="#fr37" name="fn37">37</a>]. <i>Supra</i> note 17 at 29.</p>
<p>[<a href="#fr38" name="fn38">38</a>]. <i>Supra</i> note 17 at 39.</p>
<p>[<a href="#fr39" name="fn39">39</a>]. <i>Supra</i> note 17 at 39.</p>
<p>[<a href="#fr40" name="fn40">40</a>]. Elizabeth Woyke,<i> Identifying the Tech Leaders in LTE Wireless Patents, </i>available at <a href="http://www.forbes.com/sites/elizabethwoyke/2011/09/21/identifying-the-tech-leaders-in-lte-wireless-patents/">http://www.forbes.com/sites/elizabethwoyke/2011/09/21/identifying-the-tech-leaders-in-lte-wireless-patents/</a> (last accessed 08 December, 2012)</p>
<p>[<a href="#fr41" name="fn41">41</a>]. <i>Id.</i></p>
<p>[<a href="#fr42" name="fn42">42</a>]. <i>Id.</i></p>
<p>[<a href="#fr43" name="fn43">43</a>]. <i>Id.</i></p>
<p>[<a href="#fr44" name="fn44">44</a>]. Caroline Gabriel, <i>ZTE Claims 7% of LTE Essential Patents, </i>available at <a href="http://www.rethink-wireless.com/2011/01/11/zte-claims-7-lte-essential-patents.htm">http://www.rethink-wireless.com/2011/01/11/zte-claims-7-lte-essential-patents.htm</a> (last accessed 09 December, 2012)</p>
<p>[<a href="#fr45" name="fn45">45</a>]. <i>Id.</i></p>
<p>[<a href="#fr46" name="fn46">46</a>]. <i>Id.</i></p>
<p>[<a href="#fr47" name="fn47">47</a>]. <i>Supra</i> note 40.</p>
<p>[<a href="#fr48" name="fn48">48</a>]. Keith Mallinson, <i>Mallinson: Uncertain Futures in LTE Patent Pool Licensing, </i>available at <a href="http://www.fiercewireless.com/europe/story/mallinson-uncertain-outlook-patent-pool-licensing/2010-08-25">http://www.fiercewireless.com/europe/story/mallinson-uncertain-outlook-patent-pool-licensing/2010-08-25</a> (last accessed 10 December, 2012)</p>
<p>[<a href="#fr49" name="fn49">49</a>]. <i>Id.</i></p>
<p>[<a href="#fr50" name="fn50">50</a>]. <i>Id.</i></p>
<p>[<a href="#fr51" name="fn51">51</a>]. <i>Id.</i></p>
<p>[<a href="#fr52" name="fn52">52</a>]. <i>Id.</i></p>
<p style="text-align: left; ">[<a href="#fr53" name="fn53">53</a>]. <i>NGMN Board Recommendation on LTE Patent Pool, </i>available at <a href="http://4g-portal.com/ngmn-board-recommendation-on-lte-patent-pool">http://4g-portal.com/ngmn-board-recommendation-on-lte-patent-pool</a> (last accessed 10 December, 2012)</p>
<p>[<a href="#fr54" name="fn54">54</a>]. <i>Id.</i></p>
<p>[<a href="#fr55" name="fn55">55</a>]. Caroline Gabriel, <i>NGMN’s Calls for an LTE Patent Pool Will be Futile in the Current IPR Climate</i>, available at <a href="http://www.4gtrends.com/articles/53511/ngmns-calls-for-an-lte-patent-pool-will-be-futile-/">http://www.4gtrends.com/articles/53511/ngmns-calls-for-an-lte-patent-pool-will-be-futile-/</a> (last accessed 11 December, 2012)</p>
<p>[<a href="#fr56" name="fn56">56</a>]. Michelle Donegan, <i>Vendors Balk at LTE Patent Pool Proposal, </i>available at <a href="http://www.lightreading.com/document.asp?doc_id=212362">http://www.lightreading.com/document.asp?doc_id=212362</a> (last accessed 11 December, 2012).</p>
<p>[<a href="#fr57" name="fn57">57</a>]. <i>SISVEL: Patent Pool for 3G Long Term Evolution (LTE), </i>available at <a href="http://www.thefreelibrary.com/SISVEL%3A+Patent+Pool+for+3G+Long+Term+Evolution+(LTE).-a0199544458">http://www.thefreelibrary.com/SISVEL%3A+Patent+Pool+for+3G+Long+Term+Evolution+(LTE).-a0199544458</a> (last accessed 08 December, 2012)</p>
<p>[<a href="#fr58" name="fn58">58</a>]. <i>LTE Patent Pool from Sisvel</i>, available at <a href="http://4g-portal.com/lte-patent-pool-from-sisvel">http://4g-portal.com/lte-patent-pool-from-sisvel</a> (last accessed 09 December, 2012)</p>
<p>[<a href="#fr59" name="fn59">59</a>]. <i>Id.</i></p>
<p>[<a href="#fr60" name="fn60">60</a>]. <i>Id.</i></p>
<p>[<a href="#fr61" name="fn61">61</a>]. Mike Dano, <i>Via Promises LTE Patent Pool Launch Within Months, </i>available at <a href="http://www.fiercewireless.com/story/licensing-promises-lte-patent-pool-launch-within-months/2012-06-15">http://www.fiercewireless.com/story/licensing-promises-lte-patent-pool-launch-within-months/2012-06-15</a> (last accessed 07 December, 2012)</p>
<p>[<a href="#fr62" name="fn62">62</a>]. <i>LTE Patent Pool Available Through Via’s Licensing Program, </i>available at <a href="http://4g-portal.com/lte-patent-pool-available-through-vias-licensing-program">http://4g-portal.com/lte-patent-pool-available-through-vias-licensing-program</a> (last accessed 10 December, 2012).</p>
<p>[<a href="#fr63" name="fn63">63</a>]. <i>Id.</i></p>
<p>[<a href="#fr64" name="fn64">64</a>]. Stephen Lawson, <i>Lte Patent Pool Brings Together Technologies From At&T, Zte, Hp And Others, </i>available at <a href="http://www.computerworld.com/s/article/9232043/LTE_patent_pool_brings_together_technologies_from_AT_amp_T_ZTE_HP_and_others">http://www.computerworld.com/s/article/9232043/LTE_patent_pool_brings_together_technologies_from_AT_amp_T_ZTE_HP_and_others</a> (last accessed 09 December, 2012)</p>
<p>[<a href="#fr65" name="fn65">65</a>]. Peter White, <i>Sisvel LTE Patent Pool Emerges After All- Majors Still Hold Back from Committing, </i>available at <a href="http://www.rethink-wireless.com/2012/11/05/sisvel-lte-patent-pool-emerges-all-majors-hold-committing.htm">http://www.rethink-wireless.com/2012/11/05/sisvel-lte-patent-pool-emerges-all-majors-hold-committing.htm</a> (last accessed 09 December, 2012)</p>
<p>[<a href="#fr66" name="fn66">66</a>]. Shankar Pandiath, <i>Sisvel Launches Patent Pool for 3G Long Term Evolution (LTE), </i>available at <a href="http://next-generation-communications.tmcnet.com/topics/nextgen-voice/articles/314957-sisvel-launches-patent-pool-3g-long-term-evolution.htm">http://next-generation-communications.tmcnet.com/topics/nextgen-voice/articles/314957-sisvel-launches-patent-pool-3g-long-term-evolution.htm</a> (last accessed 09 December, 2012).</p>
<p>[<a href="#fr67" name="fn67">67</a>].<i>NGMN Board Welcomes Launch of LTE Patent Pool, </i>available at <a href="http://4g-portal.com/ngmn-board-welcomes-launch-of-lte-patent-pool">http://4g-portal.com/ngmn-board-welcomes-launch-of-lte-patent-pool</a> (last accessed 09 December, 2012).</p>
<p>[<a href="#fr68" name="fn68">68</a>]. ELSPETH THOMSON AND JON SIGURDSON (EDS.), CHINA’S SCIENCE AND TECHNOLOGY SECTOR AND THE FORCES OF GLOBALIZATION 17 (2008, World Scientific Publishing Company, Singapore).</p>
<p>[<a href="#fr69" name="fn69">69</a>]. Cong Cao, <i>Challenges for Technological Development in China’s Industry, </i>available at <a href="http://chinaperspectives.revues.org/924">http://chinaperspectives.revues.org/924</a> (last accessed 11 December, 2012)</p>
<p>[<a href="#fr70" name="fn70">70</a>]. Peter Zura, <i>China Launches TD-SCDMA Telecom Standard</i>¸ available at <a href="http://271patent.blogspot.in/2006/01/china-launches-td-scdma-telecom.html">http://271patent.blogspot.in/2006/01/china-launches-td-scdma-telecom.html</a> (last accessed 10 December, 2012)</p>
<p>[<a href="#fr71" name="fn71">71</a>]. <i>Id.</i></p>
<p>[<a href="#fr72" name="fn72">72</a>]. <i>Id.</i></p>
<p>[<a href="#fr73" name="fn73">73</a>]. <i>TD-SCDMA (time division synchronous code division multiple access)</i>, available at <a href="http://searchmobilecomputing.techtarget.com/definition/TD-SCDMA">http://searchmobilecomputing.techtarget.com/definition/TD-SCDMA</a> (last accessed 07 December, 2012).</p>
<p>[<a href="#fr74" name="fn74">74</a>]. SHAHD AKHTAR AND PATRICIA ARINTO (EDS.), DIGITAL REVIEW OF ASIA PACIFIC : 2009-2010 8 (2010, Sage Publications, New Delhi).</p>
<p>[<a href="#fr75" name="fn75">75</a>]. <i>Supra </i>note 1 at 2. See Appendix 2 for the breakup of patent holding. However, see details on <i>Infra</i> note 78 for a contradictory view, wherein China claims to own 30% of all TD-SCDMA patents.</p>
<p>[<a href="#fr76" name="fn76">76</a>]. Pierre Vialle, <i>On the relevance of Indigenous Standard Setting Policy: the Case of TD-SCDMA in China, </i>2<sup>nd</sup> International Conference on Economics, Trade and Development, (2012) 36 IPEDR 184-185 (IACSIT Press, Singapore).</p>
<p>[<a href="#fr77" name="fn77">77</a>]. Dazheng Wang, Patent Pool: <i>A Solution to the Problem of TD-SCDMA’s Commercialization</i>, <a href="http://ieeexplore.ieee.org/xpl/login.jsp?tp=&arnumber=5076744&url=http%3A%2F%2Fieeexplore.ieee.org%2Fiel5%2F5076660%2F5076661%2F05076744.pdf%3Farnumber%3D5076744">http://ieeexplore.ieee.org/xpl/login.jsp?tp=&arnumber=5076744&url=http%3A%2F%2Fieeexplore.ieee.org%2Fiel5%2F5076660%2F5076661%2F05076744.pdf%3Farnumber%3D5076744</a> (last accessed 11 December, 2012).</p>
<p>[<a href="#fr78" name="fn78">78</a>]. <i>China Owns 30% of TD-SCDMA Related Patents, </i>available at <a href="http://www.cn-c114.net/582/a310685.html">http://www.cn-c114.net/582/a310685.html</a> (last accessed 11 December, 2012).</p>
<p>[<a href="#fr79" name="fn79">79</a>]. <i>The Legal Regulation on Patent Pool Misuse, </i>available at <a href="http://www.socpaper.com/the-legal-regulation-on-patent-pool-misuse.html">http://www.socpaper.com/the-legal-regulation-on-patent-pool-misuse.html</a> (last accessed 11 December, 2012).</p>
<p>[<a href="#fr80" name="fn80">80</a>]. <i>Supra </i>notes 75 and 78.</p>
<p>[<a href="#fr81" name="fn81">81</a>]. Tomoo Marukawa, <i>Chinese Innovations in Mobile Telecommunications: Third Generation vs. “Guerrilla Handsets”, </i>Paper presented at the IGCC Conference: Chinese Approaches to National Innovation, La Jolla, California, June 28-29, 2010 at 1.</p>
<p>[<a href="#fr82" name="fn82">82</a>]. <i>Id </i>at 8.</p>
<p>[<a href="#fr83" name="fn83">83</a>]. <i>Id </i>at 9.</p>
<p>[<a href="#fr84" name="fn84">84</a>]. <i>Id</i> at 9.</p>
<p>[<a href="#fr85" name="fn85">85</a>]. <i>China to Speed Up TD-LTE Process, </i>available at <a href="http://www.tdscdma-forum.org/en/news/see.asp?id=11998&uptime=2012-11-29">http://www.tdscdma-forum.org/en/news/see.asp?id=11998&uptime=2012-11-29</a> (last accessed 08 December, 2012)</p>
<p>[<a href="#fr86" name="fn86">86</a>]. <i>Supra</i> note 23.</p>
<p>[<a href="#fr87" name="fn87">87</a>]. <i>Id.</i></p>
<p>[<a href="#fr88" name="fn88">88</a>]. <i>Supra</i> note 23.</p>
<p>[<a href="#fr89" name="fn89">89</a>]. <i>Sisvel’s Patent Strategy, </i>available at <a href="http://www.managingip.com/Article/2400452/Sisvels-patent-strategy.html">http://www.managingip.com/Article/2400452/Sisvels-patent-strategy.html</a> (last accessed 12 December, 2012).</p>
<p>[<a href="#fr90" name="fn90">90</a>]. <i>Id.</i></p>
<p>[<a href="#fr91" name="fn91">91</a>]. <i>Supra</i> note 23.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/patent-pools'>http://editors.cis-india.org/a2k/blogs/patent-pools</a>
</p>
No publishernehaaIntellectual Property RightsPublicationsAccess to KnowledgePervasive Technologies2013-07-03T06:57:59ZBlog EntryAnalysis of the Copyright (Amendment) Bill, 2010
http://editors.cis-india.org/a2k/blogs/copyright-bill-analysis
<b>CIS analyses the Copyright (Amendment) Bill, 2010, from a public interest perspective to sift the good from the bad, and importantly to point out what crucial amendments should be considered but have not been so far.</b>
<p>
The full submission that CIS and 21 other civil society organizations made to the Rajya Sabha Standing Committee on HRD (which is studying the Bill) is <a title="Copyright Bill Analysis" class="internal-link" href="http://www.cis-india.org/advocacy/ipr/upload/copyright-bill-submission">available here</a>. Given below is the summary of our submissions:</p>
<h2 class="western">Existing Copyright Act</h2>
<p align="JUSTIFY">The Indian Copyright
Act, 1957 has been designed from the perspective of a developing
country. It has always attempted a balance between various kinds of
interests. It has always sought to ensure that rights of authors of
creative works is carefully promoted alongside the public interest
served by wide availability and usability of that material. For
instance, our Copyright Act has provisions for: </p>
<ul><li>
<p align="JUSTIFY">compulsory and
statutory licensing: recognizing its importance in making works
available, especially making them available at an affordable rate.</p>
</li><li>
<p align="JUSTIFY">cover versions:
recognizing that more players lead to a more vibrant music industry.</p>
</li><li>
<p align="JUSTIFY">widely-worded
right of fair dealing for private use: recognizing that individual
use and large-scale commercial misuse are different.</p>
</li></ul>
<p align="JUSTIFY">These provisions of
our Act <a class="external-link" href="http://a2knetwork.org/watchlist/report/india">have been lauded</a>,<sup><a class="sdfootnoteanc" name="sdfootnote1anc" href="#sdfootnote1sym"></a></sup>
and India has been rated as <a class="external-link" href="http://a2knetwork.org/summary-report-2010">the most balanced copyright system in a
global survey</a><sup><a class="sdfootnoteanc" name="sdfootnote2anc" href="#sdfootnote2sym"></a></sup>
conducted of over 34 countries by <a class="external-link" href="http://www.consumersinternational.org/">Consumers International</a><sup><a class="sdfootnoteanc" name="sdfootnote3anc" href="#sdfootnote3sym"></a></sup>.</p>
<p align="JUSTIFY">The Indian Parliament
has always sought to be responsive to changing technologies by paying
heed to both the democratisation of access as well as the securing of
the interests of copyright holders. This approach needs to be lauded,
and importantly, needs to be maintained.</p>
<p align="JUSTIFY"><br /></p>
<h2 class="western">Proposed Amendments</h2>
<h3 class="western">Some positive amendments</h3>
<ul><li>
<p align="JUSTIFY"><strong>Fair
Dealings, Parallel Importation, Non-commercial Rental</strong>: All works
(including sound recordings and cinematograph films) are now covered
the fair dealings clause (except computer programmes), and a few
other exceptions; parallel importation is now clearly allowed; and
non-commercial rental has become a limitation in some cases.</p>
</li><li>
<p align="JUSTIFY"><strong>Persons with
disabilities</strong>: There is finally an attempt at addressing the
concerns of persons with disabilities. But the provisions are
completely useless the way they are currently worded.</p>
</li><li>
<p align="JUSTIFY"><strong>Public
Libraries</strong>: They can now make electronic copies of works they
own, and some other beneficial changes relating to public libraries.</p>
</li><li>
<p align="JUSTIFY"><strong>Education</strong>:
Some exceptions related to education have been broadened (scope of
works, & scope of use).</p>
</li><li>
<p align="JUSTIFY"><strong>Statutory and
compulsory licensing</strong>: Some new statutory licensing provisions
(including for radio broadcasting) and some streamlining of existing
compulsory licensing provisions.</p>
</li><li>
<p align="JUSTIFY"><strong>Copyright
societies</strong>: These are now responsible to authors and not owners
of works.</p>
</li><li>
<p align="JUSTIFY"><strong>Open
licences</strong>: Free and Open Source Software and Open Content
licensing is now simpler.</p>
</li><li>
<p align="JUSTIFY"><strong>Partial
exemption of online intermediaries</strong>:
Transient and incidental storage of copyrighted works has
been excepted, mostly for the benefit of online intermediaries.</p>
</li><li>
<p align="JUSTIFY"><strong>Performer’s
rights</strong>: The general, and confusing, exclusive right that
performers had to communicate their performance to the public has
been removed, and instead only the exclusive right to communicate
sound/video recordings remains.</p>
</li><li>
<p align="JUSTIFY"><strong>Enforcement</strong>:
Provisions on border measures have been made better, and less prone
to abuse and prevention of legitimate trade.</p>
</li></ul>
<h3 class="western"><br /></h3>
<h3 class="western">Some negative amendments</h3>
<ul><li>
<p align="JUSTIFY"><strong>WCT and WPPT
compliance</strong>: India has not signed either of these two treaties,
which impose TRIPS-plus copyright protection, but without any
corresponding increase in fair dealing / fair use rights.</p>
</li><li>
<p align="JUSTIFY"><strong>Increase in
duration of copyright</strong>: This will significantly reduce the public
domain, which India has been arguing for internationally.</p>
</li><li>
<p align="JUSTIFY"><strong>Technological
Protection Measures</strong>: TPMs, which have been shown to be
anti-consumer in all countries in which they have been introduced,
are sought to be brought into Indian law.</p>
</li><li>
<p align="JUSTIFY"><strong>Version
recordings</strong>: The amendments make cover version much more
difficult to produce.</p>
</li><li>
<p align="JUSTIFY"><strong>Moral rights</strong>:
Changes have been made to author’s moral rights (and performer’s
moral rights have been introduced) but these have been made without
requisite safeguards.</p>
</li></ul>
<h3 class="western"><br /></h3>
<h3 class="western">Missed opportunities</h3>
<ul><li>
<p align="JUSTIFY"><strong>Government-funded
works</strong>: Taxpayers are still not free to use works that were paid
for by them. This goes against the direction that India has elected
to march towards with the Right to Information Act.</p>
</li><li>
<p align="JUSTIFY"><strong>Copyright
terms</strong>: The duration of all copyrights are above the minimum
required by our international obligations, thus decreasing the
public domain which is crucial for all scientific and cultural
progress.</p>
</li><li>
<p align="JUSTIFY"><strong>Criminal
provisions</strong>: Our law still criminalises individual,
non-commercial copyright infringement.</p>
</li><li>
<p align="JUSTIFY"><strong>Libraries and
archives</strong>: The exceptions for ‘public libraries’ are still
too narrow in what they perceive as ‘public libraries’.</p>
</li><li>
<p align="JUSTIFY"><strong>Educational
exceptions</strong>: The exceptions for education still do not fully
embrace distance and digital education.</p>
</li><li>
<p align="JUSTIFY"><strong>Communication
to the public</strong>: No clear definition is given of what constitute a
‘public’, and no distinction is drawn between commercial and
non-commercial ‘public’ communication.</p>
</li><li>
<p align="JUSTIFY"><strong>Internet
intermediaries</strong>: More protections are required to be granted to
Internet intermediaries to ensure that non-market based
peer-production projects such as Wikipedia, and other forms of
social media and grassroots innovation are not stifled.</p>
</li><li>
<p align="JUSTIFY"><strong>Fair dealing
and fair use</strong>: We would benefit greatly if, apart from the
specific exceptions provided for in the Act, more general guidelines
were also provided as to what do not constitute infringement. This
would not take away from the existing exceptions.</p>
</li></ul>
<p align="JUSTIFY"> </p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/copyright-bill-analysis'>http://editors.cis-india.org/a2k/blogs/copyright-bill-analysis</a>
</p>
No publisherpraneshAccess to KnowledgeConsumer RightsCopyrightFair DealingsPublic AccountabilityIntellectual Property RightsRTIFeaturedBroadcastingPublicationsSubmissionsTechnological Protection Measures2011-09-21T06:01:54ZBlog EntryA Guide to Key IPR Provisions of the Proposed India-European Union Free Trade Agreement
http://editors.cis-india.org/a2k/blogs/a-guide-to-the-proposed-india-european-union-free-trade-agreement
<b>The Centre for Internet and Society presents a guide for policymakers and other stakeholders to the latest draft of the India-European Union Free Trade Agreement, which likely will be concluded by the end of the year and may hold serious ramifications for Indian businesses and consumers. </b>
<div class="visualClear">In its ongoing negotiation for a FTA with the EU, a process that began in 2007 and is expected to end sometime this year, India has won several signicant IP-related concessions. But there remain several IP issues critical to the maintenance of its developing economy, including its robust entrepreneurial environment, that India should contest further before ratifying the treaty. This guide covers the FTA's IP provisions that are within the scope of CIS' policy agenda and on which India has negotiated favorable language, as well as those provisions that it should re-negotiate or oppose.</div>
<div class="visualClear"> </div>
<div class="visualClear">Download the guide <a title="A Guide to the Proposed India-European Union FTA" class="internal-link" href="http://www.cis-india.org/a2k/publications/CIS%20Open%20Data%20Case%20Studies%20Proposal.pdf">here</a>, and please feel free to comment below.</div>
<div class="visualClear"> </div>
<div class="visualClear">You may also download a <a title="India-EU FTA TRIPS Comparison Chart" class="internal-link" href="http://www.cis-india.org/advocacy/ipr/upload/India-EU_FTA_Chart.odt">chart</a> comparing the language proposed by India and the EU respectively with that included in the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).</div>
<div class="visualClear"> </div>
<div class="visualClear">Following is a summary of CIS' findings:</div>
<div class="visualClear"> </div>
<div class="visualClear">
<div class="visualClear">
<ul><li>India has become a de facto leader of developing countries at the WTO, and an India-EU FTA seems likely to provide a model for FTAs between developed and developing states well into the future.</li><li>The EU has proposed articles on reproduction, communication, and broadcasting rights which could seriously undermine India's authority to regulate the use of works under copyright as currently provided for in the Berne Convention, as well as narrowing exceptions and limitations to rights under copyright.</li><li>The EU asserts that copyright includes "copyright in computer programs and in databases," without indicating whether such copyright exceeds that provided for in the Berne Convention. Moreover, by asserting that copyright "includes copyright in computer programs and in databases," the EU has left open the door for the extension of copyright to non-original databases.</li><li>India should explicitly obligate the EU to promote and encourage technology transfer -- an obligation compatible with and derived from TRIPS -- as well as propose a clear definition of technology transfer.</li><li>The EU has demanded India's accession to the WIPO Internet Treaties, the merits of which are currently under debate as India moves towards amending its Copyright Act, as well as several other international treaties that India either does not explicitly enforce or to which it is not a contracting party.</li><li>In general, the EU's provisions would extend terms of protection for material under copyright, within certain constraints, further endangering India's consumer-friendly copyright regime.</li><li>An agreement to establish arrangements between national organizations charged with collecting and distributing royalty payments may obligate such organizations in India collect royalty payments for EU rights holders on the same basis as they do for Indian rights holders, and vice versa in the EU, but more heavily burden India.</li><li>The EU has proposed a series of radical provisions on the enforcement of IPRs that are tailored almost exclusively to serve the interests of rights holders, at the expense of providing safety mechanisms for those accused of infringing or enabling infringers. </li><li>The EU has proposed, under cover of protecting intermediate service providers from liability for infringement by their users, to increase and/or place the burden on such providers of policing user activity.</li></ul>
</div>
</div>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/a-guide-to-the-proposed-india-european-union-free-trade-agreement'>http://editors.cis-india.org/a2k/blogs/a-guide-to-the-proposed-india-european-union-free-trade-agreement</a>
</p>
No publishergloverDevelopmentConsumer RightsCopyrightAccess to KnowledgeDiscussionEconomicsAnalysisTechnological Protection MeasuresIntermediary LiabilityinnovationIntellectual Property RightsPatentsPublications2011-08-30T13:06:03ZBlog EntryThe 2010 Special 301 Report Is More of the Same, Slightly Less Shrill
http://editors.cis-india.org/a2k/blogs/2010-special-301
<b>Pranesh Prakash examines the numerous flaws in the Special 301 from the Indian perspective, to come to the conclusion that the Indian government should openly refuse to acknowledge such a flawed report. He notes that the Consumers International survey, to which CIS contributed the India report, serves as an effective counter to the Special 301 report.</b>
<h1>Special 301 Report: Unbalanced Hypocrisy</h1>
<p>The United States Trade Representative has put yet another edition of the Special 301 report which details the copyright law and policy wrongdoings of the US's trading partners. Jeremy Malcolm of Consumers International notes that the report this year claims to be "well-balanced assessment of intellectual property protection and enforcement ... taking into account diverse factors", but:</p>
<blockquote>
<p>[I]n fact, the report largely continues to be very one-sided. As in previous editions, it lambasts developing countries for failing to meet unrealistically stringent standards of IP protection that exceed their obligations under international law.</p>
</blockquote>
<p>More the report changes, <a href="http://cis-india.org/advocacy/ipr/blog/consumers-international-ip-watch-list-2009">the more it stays the same</a>. <a href="http://www.michaelgeist.ca/content/view/4684/195/">Despite having wider consultations</a> than just the International Intellectual Property Alliance (IIPA, consisting of US-based IP-maximalist lobbyists like the Motion Picture Association of America, Recording Industry Association of America, National Music Publishers Association, Association of American Publishers, and Business Software Alliance) and the Pharmaceutical Research and Manufacturers of America (PhRMA, consisting of US-based pharma multinationals), things haven't really changed much in terms of the shoddiness of the Special 301 report.</p>
<h1>India and the 2010 Special 301 Report</h1>
<p>The Special 301 report for 2010 contains the following assessment of India:</p>
<blockquote>
<p>India will remain on the Priority Watch List in 2010. India continues to make gradual progress on efforts to improve its legislative, administrative, and enforcement infrastructure for IPR. India has made incremental improvements on enforcement, and its IP offices continued to pursue promising modernization efforts. Among other steps, the United States is encouraged by the Indian government’s consideration of possible trademark law amendments that would facilitate India’s accession to the Madrid Protocol. The United States encourages the continuation of efforts to reduce patent application backlogs and streamline patent opposition proceedings. Some industries report improved engagement and commitment from enforcement officials on key enforcement challenges such as optical disc and book piracy. However, concerns remain over India’s inadequate legal framework and ineffective enforcement. Piracy and counterfeiting, including the counterfeiting of medicines, remains widespread and India’s enforcement regime remains ineffective at addressing this problem. Amendments are needed to bring India’s copyright law in line with international standards, including by implementing the provisions of the WIPO Internet Treaties. Additionally, a law designed to address the unauthorized manufacture and distribution of optical discs remains in draft form and should be enacted in the near term. The United States continues to urge India to improve its IPR regime by providing stronger protection for patents. One concern in this regard is a provision in India’s Patent Law that prohibits patents on certain chemical forms absent a showing of increased efficacy. While the full import of this provision remains unclear, it appears to limit the patentability of potentially beneficial innovations, such as temperature-stable forms of a drug or new means of drug delivery. The United States also encourages India to provide protection against unfair commercial use, as well as unauthorized disclosure, of undisclosed test or other data generated to obtain marketing approval for pharmaceutical and agricultural chemical products. The United States encourages India to improve its criminal enforcement regime by providing for expeditious judicial disposition of IPR infringement cases as well as deterrent sentences, and to change the perception that IPR offenses are low priority crimes. The United States urges India to strengthen its IPR regime and will continue to work with India on these issues in the coming year. </p>
</blockquote>
<p>This short dismissal of the Indian IPR regime, and subsequent classification of India as a "Priority Watch List" country reveals the great many problems with the Special 301.</p>
<h2>On Copyrights</h2>
<ol>
<li>
<p>The report notes that there are "concerns over India's inadequate legal framework and ineffective enforcement". However, nowhere does it bother to point out precisely <em>how</em> India's legal framework is inadequate, and how this is negatively affecting authors and creators, consumers, or even the industry groups (MPAA, RIAA, BSA, etc.) that give input to the USTR via the IPAA. Nor does it acknowledge the well-publicised fact that the statistics put out by these bodies have time and again <a href="http://www.cis-india.org/a2k/blog/fallacies-lies-and-video-pirates">proven to be wrong</a>:</p>
</li>
<li>
<p>Apart from this bald allegation which has not backing, there is a bald statement about India needing to bring its copyright law "in line with international standards" including "the WIPO Internet Treaties". The WIPO Internet Treaties given that more than half the countries of the world are not signatories to either of the WIPO Internet Treaties (namely the WIPO Copyright Treaty and the WIPO Performance and Phonograms Treaty), calling them 'international standards' is suspect. That apart, both those treaties are TRIPS-plus treaties (requiring protections greater than the already-high standards of the TRIPS Agreement). India has not signed either of them. It should not be obligated to do so. Indeed, Ruth Okediji, a noted copyright scholar, <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1433848">states</a>:</p>
</li>
</ol>
<blockquote>
<p>Consistent with their predecessors, the WIPO Internet Treaties marginalize collaborative forms of creative engagement with which citizens in the global South have long identified and continue in the tradition of assuming that copyright’s most enduring cannons are culturally neutral. [...] The Treaties do not provide a meaningful basis for a harmonized approach to encourage new creative forms in much the same way the Berne Convention fell short of embracing diversity in patterns and modes of authorial expression.</p>
</blockquote>
<ol>
<li>
<p>Some of the of the 'problems' noted in the report are actually seen as being beneficial by many researchers and scholars such as Lawrence Liang, Achal Prabhala, Perihan Abou Zeid <a href="https://sites.google.com/site/iipenforcement/bibliography">and others</a>, who argue that <a href="http://www.altlawforum.org/intellectual-property/publications/articles-on-the-social-life-of-media-piracy/reconsidering-the-pirate-nation">lax enforcement has enabled access to knowledge and promotion of innovation</a>. In a panel on 'Access to Knowledge' at the Internet Governance Forum, <a href="http://a2knetwork.org/access-knowledge-internet-governance-forum">Lea Shaver, Jeremy Malcolm and others</a> who have been involved in that Access to Knowledge movement noted that lack of strict enforcement played a positive role in many developing countries. However, they also noted, with a fair bit of trepidation, that this was sought to be changed at the international level through treaties such as the Anti-Counterfeiting Treaty Agreement (ACTA).</p>
</li>
<li>
<p>The scope of an optical disc law are quite different from copyright law. The report condemns "unauthorized manufacture and distribution of optical discs", however it does not make it clear that what it is talking about is not just unlicensed copying of films (which is already prohibited under the Copyright Act) but the manufacture and distribution of blank CDs and DVDs as well. The need for such a law is assumed, but never demonstrated. It is onerous for CD and DVD manufacturers (such as the Indian company Moserbaer), and is an overbearing means of attacking piracy.</p>
</li>
<li>
<p>The report calls for "improve[ment] [of India's] criminal enforcement regime" and for "deterrent" sentences and expeditious judicial disposition of IPR infringement cases. While we agree with the last suggestion, the first two are most unacceptable. Increased criminal enforcement of a what is essentially a private monopoly right is undesirable. Copyright infringment on non-commercial scales should not be criminal offences at all. What would deter people from infringing copyright laws are not "deterrent sentences" but more convenient and affordable access to the copyright work being infringed.</p>
</li>
</ol>
<h2>On Patents</h2>
<p>Thankfully, this year the Special 301 report does not criticise the Indian Patent Act for providing for post-grant opposition to patent filings, as it has in previous years. However, it still criticises section 3(d) of the Patent Act which ensures that 'evergreening' of drug patents is not allowed by requiring for new forms of known substances to be patented only if "the enhancement of the known efficacy of [the known] substance" is shown. Thus, the US wishes India to change its domestic law to enable large pharma companies to patent new forms of known substances that aren't even better ("enhancement of the known efficacy"). For instance, "new means of drug delivery" will not, contrary to the assertions of the Special 301 report and the worries of PhRMA, be deemed unpatentable.</p>
<p>The United States has been going through much turmoil over its patent system. Reform of the patent system is currently underway in the US through administrative means, judicial means, as well as legislative means. One of the main reasons for this crumbling of the patent system has been the low bar for patentability (most notably the 'obviousness' test) in the United States and the subsequent over-patenting. An <a href="http://supreme.justia.com/us/447/303/case.html">American judgment</a> even noted that "anything under the sun that is made by man" is patentable subject matter. It is well-nigh impossible to take American concerns regarding our high patent standards seriously, given this context.</p>
<h2>Miscellanea</h2>
<p>The harms of counterfeit medicine, as <a href="http://www.cis-india.org/a2k/blog/fallacies-lies-and-video-pirates">we have noted earlier</a>, are separate issues that are best dealt under health safety regulations and consumer laws, rather than trademark law.</p>
<p>Data exclusivity has been noted to be harmful to the progress of generics, and seeks to extend proprietary rights over government-mandated test data. It is [clear from the TRIPS Agreement][de-trips] that data exclusivity is not mandatory. There are clear rationale against it, and the Indian pharmaceutical industry [is dead-set against it][de-india]. Still, the United States Trade Representative persists in acting as a corporate shill, calling on countries such as India to implement such detrimental laws.</p>
<h2>Conclusion</h2>
<p>Michael Geist, professor at University of Ottowa <a href="http://www.michaelgeist.ca/content/view/4997/125">astutely notes</a>:</p>
<blockquote>
<p>Looking beyond just Canada, the list [of countries condemned by the Special 301 report] is so large, that it is rendered meaningless. According to the report, approximately 4.3 billion people live in countries without effective intellectual property protection. Since the report does not include any African countries outside of North Africa, the U.S. is effectively saying that only a small percentage of the world meet its standard for IP protection. Canada is not outlier, it's in good company with the fastest growing economies in the world (the BRIC countries are there) and European countries like Norway, Italy, and Spain.
In other words, the embarrassment is not Canadian law. Rather, the embarrassment falls on the U.S. for promoting this bullying exercise and on the Canadian copyright lobby groups who seemingly welcome the chance to criticize their own country. </p>
</blockquote>
<p>His comments apply equally well for India as well.</p>
<h1>IIPA's Recommendation for the Special 301 Report</h1>
<p>Thankfully, this year <a href="http://www.iipa.com/rbc/2010/2010SPEC301INDIA.pdf">IIPA's recommendations</a> have not been directly copied into the Special 301 report. (They couldn't be incorporated, as seen below.) For instance, the IIPA report notes:</p>
<blockquote>
<p>The industry is also concerned about moves by the government to consider mandating the use of open source software and software of only domestic origin. Though such policies have not yet been implemented, IIPA and BSA urge that this area be carefully monitored.</p>
</blockquote>
<p>Breaking that into two bit:</p>
<h2>Open Source</h2>
<p>Firstly, it is curious to see industry object to legal non-pirated software. Secondly, many of BSA's members (if not most) use open source software, and a great many of them also produce open source software. <a href="http://hp.sourceforge.net/">HP</a> and <a href="http://www-03.ibm.com/linux/ossstds/">IBM</a> have been huge supporters of open source software. Even <a href="http://www.microsoft.com/opensource/">Microsoft has an open source software division</a>. [Intel][intel], <a href="http://www.sap.com/usa/about/newsroom/press.epx?pressid=11410">SAP</a>, <a href="http://www.cisco.com/web/about/doing_business/open_source/index.html">Cisco</a>, <a href="http://linux.dell.com/projects.shtml">Dell</a>, <a href="http://www.sybase.com/developer/opensource">Sybase</a>, <a href="http://www.entrust.com/news/index.php?s=43&item=702">Entrust</a>, <a href="http://about.intuit.com/about_intuit/press_room/press_release/articles/2009/IntuitPartnerPlatformAddsOpenSourceCommunity.html">Intuit</a>, <a href="http://www.synopsys.com/community/interoperability/pages/libertylibmodel.aspx">Synopsys</a>, <a href="http://www.apple.com/opensource/">Apple</a>, <a href="http://www.theregister.co.uk/2005/04/22/jbuilder_eclipse/">Borland</a>, <a href="http://w2.cadence.com/webforms/squeak/">Cadence</a>, <a href="http://usa.autodesk.com/adsk/servlet/item?siteID=123112&id=6153839">Autodesk</a>, and <a href="http://news.cnet.com/8301-13505_3-9967593-16.html">Siemens</a> are all members of BSA which support open source software / produce at least some open source software. And <em>all</em> BSA members rely on open source software (as part of their core products, their web-server, their content management system, etc.) to a lesser or greater extent. BSA's left hand doesn't seem to know what its right hand -- its members -- are doing. Indeed, the IIPA does not seem to realise that the United States' government itself uses [open source software], and has been urged to <a href="http://news.bbc.co.uk/2/hi/7841486.stm">look at FOSS very seriously</a> and is doing so, especially under CIO Vivek Kundra. And that may well be the reason why the USTR could not include this cautionary message in the Special 301 report.</p>
<h2>Domestic Software</h2>
<p>As <a href="http://arstechnica.com/tech-policy/news/2010/04/indias-copyright-proposals-are-un-american-and-thats-bad.ars">this insightful article by Nate Anderson in Ars Technica</a> notes:</p>
<blockquote>
<p>Open source is bad enough, but a "buy Indian" law? That would be <a href="http://www.canadainternational.gc.ca/sell2usgov-vendreaugouvusa/procurement-marches/buyamerica.aspx?lang=eng">an outrage</a> and surely something the US government would not itself engage in <a href="http://www.canadainternational.gc.ca/sell2usgov-vendreaugouvusa/procurement-marches/ARRA.aspx?lang=eng">as recently as last year</a>. Err, right?</p>
</blockquote>
<p>Furthermore, the IIPA submission do not provide any reference for their claim that "domestic origin" software is being thought of being made a mandatory requirement in governmental software procurement.<br />
</p>
<h2>WCT, WPPT, Camcording, and Statutory Damages</h2>
<p>The IIPA submission also wish that India would:</p>
<ol>
<li>Adopt a system of statutory damages in civil cases; allow compensation to be awarded in criminal cases;</li>
<li>Adopt an optical disc law;</li>
<li>Enact Copyright Law amendments consistent with the WCT and WPPT;</li>
<li>Adopt an anti-camcording criminal provision.</li>
</ol>
<p>Quick counters:</p>
<ol>
<li>Statutory damages (that is, an amount based on statute rather than actual loss) would result in ridiculousness such as the $1.92 million damages that the jury (based on the statutory damages) slapped on Jammie Thomas. The judge in that case <a href="http://arstechnica.com/tech-policy/news/2010/01/judge-slashes-monstrous-jammie-thomas-p2p-award-by-35x.ars">called the damage award</a> "monstrous and shocking" and said that veered into "the realm of gross injustice."</li>
<li>The reasons against an optical disc law are given above. Quick recap: it is a) unnecessary and b) harmful.</li>
<li>India has not signed the WCT and the WPPT. Indian law satisfies all our international obligations. Thus enacting amendments consistent with the WCT and the WPPT is not required.</li>
<li>Camcording of a film is in any case a violation of the Copyright Act, 1957, and one would be hard-pressed to find a single theatre that allows for / does not prohibit camcorders. Given this, the reason for an additional law is, quite frankly, puzzling. At any rate, IIPA in its submission does not go into such nuances.</li>
</ol>
<h2>Further conclusions</h2>
<p><a href="http://spicyipindia.blogspot.com/2010/05/us-special-301-report-and-not-so.html">Shamnad Basheer</a>, an IP professor at NUJS, offer the following as a response:</p>
<blockquote>
<p>"Dear USA,</p>
<p>India encourages you to mind your own business. We respect your sovereignty to frame IP laws according to your national priorities and suggest that you show us the same courtesy. If your grouse is that we haven't complied with TRIPS, please feel free to take us to the WTO dispute panel. Our guess is that panel members familiar with the English language will ultimately inform you that section 3(d) is perfectly compatible with TRIPS. And that Article 39.3 does not mandate pharmaceutical data exclusivity, as you suggest!
More importantly, at that point, we might even think of hauling you up before the very same body for rampant violations, including your refusal to grant TRIPS mandated copyright protection to our record companies, despite a WTO ruling (Irish music case) against you.</p>
<p>Yours sincerely,</p>
<p>India."</p>
</blockquote>
<p>Basheer's suggestion seems to be in line with that Michael Geist who believes that other countries should join Canada and Israel in openly refusing to acknowledge the validity of the Special 301 Reports because they lack ['reliable and objective analysis'][geist-reliable]. And that thought serves as a good coda.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/2010-special-301'>http://editors.cis-india.org/a2k/blogs/2010-special-301</a>
</p>
No publisherpraneshDevelopmentConsumer RightsAccess to KnowledgeCopyrightPiracyAccess to MedicineIntellectual Property RightsData ProtectionFLOSSTechnological Protection MeasuresPublications2011-10-03T05:37:27ZBlog EntryTechnological Protection Measures in the Copyright (Amendment) Bill, 2010
http://editors.cis-india.org/a2k/blogs/tpm-copyright-amendment
<b>In this post Pranesh Prakash conducts a legal exegesis of section 65A of the Copyright (Amendment) Bill, 2010, which deals with the stuff that enables 'Digital Rights/Restrictions Management', i.e., Technological Protection Measures. He notes that while the provision avoids some mistakes of the American law, it still poses grave problems to consumers, and that there are many uncertainties in it still.</b>
<p><a href="http://www.wipo.int/enforcement/en/faq/technological/faq03.html">Technological Protection Measures</a> are sought to be introduced in India via the Copyright (Amendment) Bill, 2010. This should be quite alarming for consumers for reasons that will be explained in a separate blog post on TPMs that will follow shortly.</p>
<p>In this post, I will restrict myself to a legal exegesis of section 65A of the Bill, which talks of "protection of technological measures". (Section 65B, which talks of Right Management Information will, similarly, be tackled in a later blog post.)</p>
<p>First off, this provision is quite unnecessary. There has been no public demand in India for TPMs to be introduced, and the pressure has come mostly from the United States in the form of the annual "Special 301" report prepared by the United States Trade Representative with input coming (often copied verbatim) from the International Intellectual Property Alliance. India is not a signatory to the WIPO Copyright Treaty (WCT) which requires technological protection measures be safeguarded by law. That provision, interestingly, was pushed for by the United States in 1996 when even it did not give legal sanctity to TPMs via its copyright law (which was amended in 2000 by citing the need to comply with the WCT).</p>
<p>TPMs have been roundly criticised, have been shown to be harmful for consumers, creators, and publishers, and there is also evidence that TPMs do not really decrease copyright infringement (but instead, quite perversely through unintended consequences, end up increasing it). Why then would India wish to introduce it?</p>
<p>Leaving that question aside for now, what does the proposed law itself say?</p>
<blockquote>
<p>65A. Protection of Technological Measures </p>
<p> (1) Any person who circumvents an effective technological measure applied for the purpose of protecting any of the rights conferred by this Act, with the intention of infringing such rights, shall be punishable with imprisonment which may extend to two years and shall also be liable to fine.</p>
<p> (2) Nothing in sub-section (1) shall prevent any person from:</p>
<p> (a) doing anything referred to therein for a purpose not expressly prohibited by this Act:</p>
<p> Provided that any person facilitating circumvention by another person of a technological measure for such a purpose shall maintain a complete record of such other person including his name, address and all relevant particulars necessary to identify him and the purpose for which he has been facilitated; or</p>
<p> (b) doing anything necessary to conduct encryption research using a lawfully obtained encrypted copy; or</p>
<p> (c) conducting any lawful investigation; or</p>
<p> (d) doing anything necessary for the purpose of testing the security of a computer system or a computer network with the authorisation of its owner; or</p>
<p> (e) operator; or [<em>sic</em>]</p>
<p> (f) doing anything necessary to circumvent technological measures intended for identification or surveillance of a user; or</p>
<p> (g) taking measures necessary in the interest of national security.</p>
</blockquote>
<h1>Implications: The Good Part</h1>
<p>This provision clearly takes care of two of the major problems with the way TPMs have been implemented by the Digital Millennium Copyright Act (DMCA) in the United States:</p>
<ul>
<li>
<p>In s.65A(1) it aligns the protection offered by TPMs to that offered by copyright law itself (since it has to be "applied for the purpose of protecting any of the rights conferred by this Act"). Thus, presumably, TPMs could not be used to restrict <em>access</em>, only to restrict copying, communication to the public, and that gamut of rights.</p>
</li>
<li>
<p>In s.65A(1) and 65A(2) it aligns the exceptions granted by copyright law with the exceptions to the TPM provision. Section 65A(1) states that the act of circumvention has to be done "with the intention of infringing ... rights", and s.52(1) clearly states that those exceptions cannot be regarded as infringement of copyright. And s.65A(2)(a) states that circumventing for "a purpose not expressly prohibited by this Act" will be allowed.</p>
</li>
</ul>
<p>A third important difference from the DMCA is that</p>
<ul>
<li>It does not criminalise the manufacture and distribution of circumvention tools (including code, devices, etc.). (More on this below.)</li>
</ul>
<h1>Implications: The Bad Part</h1>
<p>This provision, despite the seeming fair-handed manner in which it has been drafted, still fails to maintain the balance that copyright seeks to promote:</p>
<ul>
<li>
<p>TPM-placers (presumably, just copyright holders, because of point 1. above) have been given the ability to restrict the activities of consumers, but they have not been given any corresponding duties. Thus, copyright holders do not have to do anything to ensure that the Film & Telivision Institute of India professor who wishes to use a video clip from a Blu-Ray disc can actually do so. Or that the blind student who wishes to circumvent TPMs because she has no other way of making it work with her screen reader is actually enabled to take advantage of the leeway the law seeks to provide her through s.52(1)(a) (s.52(1)(zb) is another matter!). Thus, while there are many such exceptions that the law allows for, the technological locks themselves prevent the use of those exceptions. Another way of putting that would be to say:</p>
</li>
<li>
<p>The Bill presumes that every one has access to all circumvention technology. This is simply not true. In fact, Spanish law (in <a href="http://noticias.juridicas.com/base_datos/Admin/rdleg1-1996.l3t5.html">Article 161 of their law</a>) expressly requires that copyright holders facilitate access to works protected by TPM to beneficiaries of limitations of copyright. Thus, copyright holders who employ TPMs should be required to:</p>
<ul>
<li>tell their customers how they can be contacted if the customer wishes to circumvent the TPM for a legitimate purpose</li>
<li>upon being contacted, aid their customer in making use of their rights / the exceptions and limitations in copyright law</li>
</ul>
</li>
<li>
<p>How seriously can you take a Bill that has been introduced in Parliament that includes a provision that states: "Nothing in sub-section (1) shall prevent any person from operator; or" (as s.65A(2)(e), read in its entirety, does)?</p>
</li>
</ul>
<h1>Uncertainties</h1>
<p>As mentioned above, the provisions are not all that clear regarding manufacture and distribution of circumvention tools. Thus, the proviso to s.65A(2)(a) deserves a closer reading. What is clear is that there are no penalties mentioned for manufacture or dissemination of TPMs, and that only those who <em>circumvent</em> are penalised in 65A(1), and not those who produce the circumvention devices. However:</p>
<h2>On "shall maintain" and penalties</h2>
<p>In the proviso to s.65B(2)(a), there is an imperative ("shall maintain") requiring "any person facilitating circumvention" to keep records. It
is unclear what the implications of not maintaining such records are.</p>
<p>The obvious one is that the exemption contained in s.65(1)(a) will not apply if one were facilitated without the facilitator keeping records. Thus, under this interpretation, there is no independent legal (albeit penalty-less) obligation on facilitators. This interpretation runs into
the problem that if this was the intention, then the drafters would have written "Provided that any person facilitating circumvention ... for
such a purpose <em>maintain</em>/<em>maintained</em> a complete record ...". Instead, <em>shall maintain</em> is used, and an independent legal obligation seems,
thus, to be implied. But can a proviso create an independent legal obligation? And is there any way a penalty could <em>possibly</em> be attached
to violation of this proviso despite it not coming within 65A(1)?</p>
<h2>On "facilitating" and remoteness</h2>
<p>The next question is who all can be said to "facilitate", and how remote can the connection be? Is the coder who broke the circumvention a
facilitator? The distributor/trafficker? The website which provided you the software? Or is it (as is more likely) a more direct "the friend who sat at your computer and installed the circumvention software" / "the technician who unlocked your DVD player for you while installing it in your house"?</p>
<p>While such a record-keeping requirement is observable by people those who very directly help you (the last two examples above), it would be more difficult to do so the further up you get on the chain of remoteness. Importantly, such record-keeping is absolutely not possible in decentralized distribution models (such as those employed by most free/open source software), and could seriously harm fair and legitimate circumvention.</p>
<h1>More uncertainties</h1>
<p>It is slightly unclear which exception the bypassing of Sony's dangerous "Rootkit" copy protection technology would fall under if I wish to get rid of it simply because it makes my computer vulnerable to malicious attacks (and not to exercise one of the exceptions under s.52(1)). Will such circumvention come under s.65A(2)(a)? Because it does not quite fall under any of the others, including s.65(2)(b) or (f).</p>
<h2>On "purpose" as a criterion in 65A(2)(a)</h2>
<p>A last point, which is somewhat of an aside is that 65A(2)(a) states:</p>
<blockquote>
<p>Nothing in sub-section (1) shall prevent any person from doing anything referred to therein for a purpose not expressly prohibited by this Act.</p>
</blockquote>
<p>There's something curious about the wording, since the Copyright Act generally does not prohibit any acts based on purposes (i.e., the prohibitions by ss.14 r/w s.51 are not based on <em>why</em> someone reproduces, etc., but on the act of reproduction). In fact, it <em>allows</em> acts based on purposes
(via s.52(1)). The correct way of reading 65A(2)(a) might then be:</p>
<blockquote>
<p>Nothing in sub-section (1) shall prevent any person from doing anything referred to therein for a purpose expressly allowed by this Act.</p>
</blockquote>
<p>But that might make it slightly redundant as s.65A(1) covers that by having the requirement of the circumvention being done "with the intention of infringing such right" (since the s.52(1) exceptions are clearly stated as not being infringements of the rights granted under the Act).</p>
<h1>Conclusion</h1>
<p>It would be interesting to note how leading copyright lawyers understand this provision, and we will be tracking such opinions. But it is clear that TPMs, as a private, non-human enforcement of copyright law, are harmful and that we should not introduce them in India. And we should be especially wary of doing so without introducing additional safeguards, such as duties on copyright holder to aid access to TPM'ed works for legitimate purposes, and remove burdensome record-keeping provisions.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/tpm-copyright-amendment'>http://editors.cis-india.org/a2k/blogs/tpm-copyright-amendment</a>
</p>
No publisherpraneshAccess to KnowledgeCopyrightIntellectual Property RightsFLOSSTechnological Protection MeasuresPublications2012-05-17T16:51:38ZBlog EntryArguments Against Software Patents in India
http://editors.cis-india.org/a2k/blogs/arguments-against-software-patents
<b>CIS believes that software patents are harmful for the software industry and for consumers. In this post, Pranesh Prakash looks at the philosophical, legal and practical reasons for holding such a position in India. This is a slightly modified version of a presentation made by Pranesh Prakash at the iTechLaw conference in Bangalore on February 5, 2010, as part of a panel discussing software patents in India, the United States, and the European Union.</b>
<p>This blog post is based on a presentation made at the <a href="http://www.itechlaw-india.com/">iTechLaw conference</a> held on February 5, 2010. The audience consisted of lawyers from various corporations and corporate law firms. As is their wont, most lawyers when dealing with software patents get straight to an analysis of law governing the patenting of computer programmes in India and elsewhere, and seeing whether any loopholes exist and can be exploited to patent software. It was refreshing to see at least some lawyers actually going into questions of the need for patents to cover computer programs. In my presentation, I made a multi-pronged case against software patents: (1) philosophical justification against software patents based on the nature of software; (2) legal case against software patents; (3) practical reasons against software patents.</p>
<h2>Preamble</h2>
<p>Through these arguments, it is sought to be shown that patentability of software is not some arcane, technical question of law, but is a real issue that affect the continued production of new software and the everyday life of the coder/hacker/software programmer/engineer as well as consumers of software (which is, I may remind you, everywhere from your pacemaker to your phone). A preamble to the arguments would note that the main question to ask is: <strong>why should we allow for patenting of software</strong>? Answering this question will lead us to ask: <strong>who benefits from patenting of software</strong>. The conclusion that I come to is that patenting of software helps three categories of people: (1) those large software corporations that already have a large number of software patents; (2) those corporations that do not create software, but only trade in patents / sue on the basis of patents ("patent trolls"); (3) patent lawyers. How they don't help small and medium enterprises nor society at large (since they deter, rather than further invention) will be borne out by the rest of these arguments, especially the section on practical reasons against software patents.</p>
<h2>What are Patents?</h2>
<p>Patents are a twenty-year monopoly granted by the State on any invention. An invention has to have at least four characteristics: (0) patentable subject matter; (1) novelty (it has to be new); (2) inventive step / non-obviousness (even if new, it should not be obvious); (3) application to industry. A monopoly over that invention, thus means that if person X has invented something, then I may not use the core parts of that invention ("the essential claims") in my own invention. This prohibition applies even if I have come upon my invention without having known about X's invention. (Thus, independent creation is not a defence to patent infringement. This distinguishes it, for instance, from copyright law in which two people who created the same work independently of each other can both assert copyright.) Patents cover non-abstract ideas/functionality while copyright covers specific expressions of ideas. To clarify: imagine I make a drawing of a particular machine and describe the procedure of making it. Under patent law, no one else can make that particular machine, while under copyright law, no one can copy that drawing.</p>
<h2>Philosophical Justification Against Software Patents</h2>
<p>Even without going into the case against patents <em>per se</em> (lack of independent creation as a defence; lack of 'harm' as a criterion leading to internalization of all positive externalities; lack of effective disclosure and publication; etc.), which has been done much more ably by others like <a href="http://www.researchoninnovation.org/">Bessen & Meurer</a> (especially in their book <a href="http://researchoninnovation.org/dopatentswork/">Patent Failure</a>) and <a href="http://www.againstmonopoly.org/">Boldrin & Levine</a> (in their book <a href="http://levine.sscnet.ucla.edu/general/intellectual/againstnew.htm">Against Intellectual Monopoly</a>, the full text of which is available online).</p>
<p>But there is one essentially philosophical argument against software as subject matter of a patent. Software/computer programs ("instructions for a computer"), as any software engineer would tell you, are merely <a href="http://en.wikipedia.org/wiki/Algorithm">algorithms</a> ("an effective method for solving a problem using a finite sequence of instructions") that are meant to be understood by a computer or a human who knows how to read that code.</p>
<p>Algorithms are not patentable subject matter, as they are mere expressions of abstract ideas, and not inventions in themselves. Computer programs, similarly, are abstract ideas. They only stop being abstract ideas when embodied in a machine or a process in which it is the machine/process that is the essential claim and not the software. That machine or process being patented would not grant protection to the software itself, but to the whole machine or process. Thus the abstract part of that machine/process (i.e., the computer program) could be used in any other machine/process, as it it is not the subject matter of the patent. Importantly, just because software is required to operate some machine would then not mean that the machine itself is not patentable, just that the software cannot be patented in guise of patenting a machine.</p>
<h2>Legal Case Against Software Patents</h2>
<p>In India, section 3(k) of the Patent Act reads:</p>
<blockquote class="webkit-indent-blockquote">
<p>(3) The following are not inventions within the meaning of this Act: (k) a mathematical or business method or computer programme (<em>sic</em>) <em>per se</em> or algorithms.</p>
</blockquote>
<p>As one can see, computer programs are place in the same category as "mathematical methods", "algorithms", and "business methods", hence giving legal validity to the idea propounded in the previous section that computer programs are a kind of algorithms (just as algorithms are a kind of mathematical method).</p>
<p>Be that as it may, the best legal minds in India have had to work hard at understanding what exactly "computer programme <em>per se</em>" means. They have cited U.S. case law, U.K. case law, E.U. precedents, and sought to arrive at an understanding of how <em>per se</em> should be understood. While understanding what <em>per se</em> means might be a difficult job, it is much easier to see what it does <em>not</em> mean. For that, we can look at the 2004 Patent Ordinance that Parliament rejected in 2005. In that ordinance, sections 3(k) and (ka) read as follows:</p>
<blockquote class="webkit-indent-blockquote">
<p>(3) The following are not inventions within the meaning of this Act: (k) a computer programme <em>per se</em> other than its technical application to industry or a combination with hardware; (ka) a mathematical method or a business method or algorithms.</p>
</blockquote>
<p>Thus, it is clear that the interpretation that "computer programme <em>per se</em>" excludes "a computer programme that has technical application to industry" and "a computer programme in combination with hardware" is wrong. By rejecting the 2004 Ordinance wording, Parliament has clearly shown that "technical application to industry" and "combination with hardware" do not make a computer programme patentable subject matter.</p>
<p>Indeed, what exactly is "technical application to industry"? <a href="http://wordnetweb.princeton.edu/perl/webwn?s=technical">"Technical"</a> has various definitions, and a perusal through those definitions would show that barely any computer program can be said not to relate to a technique, not involve "specialized knowledge of applied arts and sciences" (it is code, after all; not everyone can write good algorithms), or not relate to "a practical subject that is organized according to scientific principles" or is "technological". Similarly, all software is, <a href="http://wordnetweb.princeton.edu/perl/webwn?s=software">by definition</a>, meant to be used in combination with hardware. Thus, it being used in combination with hardware must not, as argued above, give rise to patentability of otherwise unpatentable subject matter category.</p>
<p>In 2008, the Patent Office published a new 'Draft Manual Of Patent Practice And Procedure' in which it sought to allow patenting of certain method claims for software inventions (while earlier the Patent Office objected to method claims, allowing only device claims with hardware components). This Draft Manual was withdrawn from circulation, with Shri N.N. Prasad (then Joint Secretary of DIPP, the department administering the Patent Office) noting that the parts of the Manual on sections 3(d) and 3(k) had generated a lot of controversy, and were <em>ultra vires</em> the scope of the Manual (which could not override the Patent Act). He promised that those parts would be dropped and the Manual would be re-written. A revised draft of the Manual has not yet been released. Thus the interpretation provided in the Draft Manual (which was based heavily on the interpretation of the U.K. courts) cannot not be relied upon as a basis for arguments in favour of the patentability of software in India.</p>
<p>In October 2008, CIS helped organize a <a href="http://editors.cis-india.org/advocacy/openness/blog/the-national-public-meeting-on-software-patents">National Public Meeting on Software Patents</a> in which Indian academics, industry, scientists, and FOSS enthusiasts all came to the conclusion that software patents are harmful for <a href="http://editors.cis-india.org/openness/software-patents/software-patenting-will-harm-industry-consumer">both the industry as well as consumers</a>.</p>
<h2>Practical Reasons Against Software Patents</h2>
<p>This is going to be an attempt at distilling and simplifying some of the main practical arguments against patenting of software.</p>
<p>There are traditionally <a href="http://www.patenthawk.com/blog/2005/04/patent_economics_part_4_incent.html">four incentives that the patent system caters to</a>: (1) incentive to invent; (2) incentive to disclose; (3) incentive to commercialize; and (4) incentive to invent substitutes. Apart from the last, patenting of software does not really aid any of them.</p>
<ol>
<li>
<h3>Patent Landmines / Submarine Patents / Patent Gridlocks / No Exception for Independent Creation</h3>
<p>Given that computer programs are algorithms, having monopolies over such abstract ideas is detrimental to innovation. Just the metaphors say a lot about software patents: landmines (they cannot be seen/predicted); submarines (they surface out of the blue); gridlocks (because there are so many software patents around the same area of computing, they prevent further innovation in that area, since no program can be written without violating one patent or the other).</p>
<p>Imagine the madness that would have ensued had patents been granted when computer programming was in its infancy. Imagine different methods of sorting (quick sort, bubble sort) that are part of Computer Science 101 had been patented. While those particular instances aren't, similar algorithms, such as data compression algorithms (including the infamous <a href="http://en.wikipedia.org/wiki/LZW">LZW compression method</a>), have been granted patents. Most importantly, even if one codes certain functionality into software independently of the patent holder, that is still violative of the patent. Computer programs being granted patents makes it extremely difficult to create other computer programs that are based on the same abstract ideas. Thus incentives # (1) and (3) are not fulfilled, and indeed, they are harmed. There is no incentive to invent, as one would always be violating one patent or the other. Given that, there is no incentive to commercialize what one has invented, because of fear of patent infringement suits.</p>
<p>An apt illustration of this is the current difficulty of choosing a royalty-free video format for HTML 5, as it shows, in practical terms, how difficult it is to create a video format without violating one patent or the other. While the PNG image format was created to side-step the patent over the LZW compression method used in the GIF image format, bringing Ogg Theora or Dirac (both patent-free video format) to surpass the levels of H.264/MPEG-4 AVC or VC-1 will be very difficult without infringing dozens if not hundreds of software patents. Chris DiBona of Google, while talking about <a href="http://www.mail-archive.com/whatwg@lists.whatwg.org/msg15476.html">improving Ogg Theora</a> as part of its inclusion in HTML 5 specifications said, "Here’s the challenge: Can Theora move forward without infringing on the other video compression patents?" Just <a href="http://74.125.153.132/search?q=cache:jRnXmHcZCMsJ:www.mpegla.com/Lists/MPEG%2520LA%2520News%2520List/Attachments/140/n_03-11-17_avc.html+http://www.mpegla.com/news/n_03-11-17_avc.html&cd=2&hl=en&ct=clnk&gl=in">the number of companies and organization that hold patents over H.264</a> is astounding, and includes: Columbia University, Electronics and Telecommunications Research Institute of Korea (ETRI), France Télécom, Fujitsu, LG Electronics, Matsushita, Mitsubishi, Microsoft, Motorola, Nokia, Philips, Robert Bosch GmbH, Samsung, Sharp, Sony, Toshiba, and Victor Company of Japan (JVC). As is the amount of royalties to be paid ("[t]he maximum royalty for these rights payable by an Enterprise (company and greater than 50% owned subsidiaries) is $3.5 million per year in 2005-2006, $4.25 million per year in 2007-08 and $5 million per year in 2009-10"; with royalty per unit of a decoder-encoder costing upto USD 0.20.)</p>
<p>Indeed, even the most diligent companies cannot guard themselves against software patents. FFII estimates that a very simple online shopping website <a href="http://webshop.ffii.org">would violate twenty different patents at the very least</a>. Microsoft recently lost a case against i4i when i4i surfaced with a patent covering custom XML as implemented in MS Office 2003 and MS Office 2007. As a result Microsoft had to ship patches to its millions of customers, to disable the functionality and bypass that patent. The manufacturers of BlackBerry, the Canadian company Research in Motion, had to shell out <a href="http://en.wikipedia.org/wiki/NTP,_Inc.#RIM_patent_infringement_litigation">USD 617 million as settlement</a> to NTP over wireless push e-mail, as it was otherwise faced with the possibility of the court shutting down the BlackBerry service in the U.S. This happened despite there being a well-known method of doing so pre-dating the NTP patents. NTP has also filed cases against AT&T, Sprint Nextel, T-Mobile, Verizon Wireless, and Palm Inc. <a href="http://copyfight.corante.com/archives/2005/12/15/rimntp_mud_splashes_microsoft.php">Microsoft was also hit by Visto Corporation</a> over those same NTP patents, which had been licensed to Visto (a startup).</p>
<ul><li>
<h4>Don't These Cases Show How Software Patents Help Small Companies?</h4>
<p>The astute reader might be tempted to ask: are not all of these examples of small companies getting their dues from larger companies? Doesn't all of this show that software patents actually help small and medium enterprises (SMEs)? The answer to that is: no. To see why, we need to note the common thread binding i4i, NTP, and Visto. None of them were, at the time of their lawsuits, actually creating new software, and NTP was an out-and-out "non-practising entity"/"patent holding company" AKA, patent troll. i4i was in the process of closing shop, and Visto had just started up. None of these were actually practising the patent. None of these were producing any other software. Thus, none of these companies had anything to lose by going after big companies. In other words, the likes of Microsoft, RIM, Verizon, AT&T, etc., could not file counter-suits of patent infringement, which is normally what happens when SMEs try to assert patent rights against larger corporations. For every patent that the large corporation violates of the smaller corporation, the smaler corporation would be violating at least ten of the larger corporation's. Software patents are more helpful for software companies as a tool for cross-licensing rather than as a way of earning royalties. Even this does not work as a strategy against patent trolls.</p>
</li></ul>
<p>Thus, the assertion that was made at the beginning is borne out: software patents help only patent trolls, large corporations that already have large software patent portfolios, and the lawyers who draft these patents and later argue them out in court.</p>
</li><li>
<h3>Term of Patents</h3>
<p>Twenty years of monopoly rights is outright ludicrous in an industry where the rate of turnover of technology is much faster -- anywhere between two years and five months.</p>
</li>
<li>
<h3>Software Industry Progressed Greatly Without Patents</h3>
<p>In India, software patents have never been asserted in courts (even though many have been <a href="http://editors.cis-india.org/advocacy/openness/blog/the-national-public-meeting-on-software-patents">illegally granted</a>), yet the software industry in India is growing in leaps and bounds. Similarly, most of the big (American) giants of the software industry today grew to their stature by using copyright to "protect" their software, and not patents.</p>
</li>
<li>
<h3>Copyright Exists for Software</h3>
<p>As noted above, the code/expression of any software is internationally protected by copyright law. There is no reason to protect the ideas/functionality of that software as well.</p>
</li>
<li>
<h3>Insufficient Disclosure</h3>
<p>When ordinary computer programmers cannot understand what a particular software patent covers (which is the overwhelming case), then the patent is of no use. One of the main incentives of the patent system is to encourage gifted inventors to share their genius with the world. It is not about gifted inventors paying equally gifted lawyers to obfuscate their inventions into gobbledygook so that other gifted inventors can at best hazard a guess as to precisely what is and is not covered by that patent. Thus, this incentive (#2) is not fulfilled by the current system of patents either -- not unless there is a major overhaul of the system. This ties in with the impossibility of ensuring that one is not violating a software patent. If a reasonably smart software developer (who are often working as individuals, and as part of SMEs) cannot quickly ascertain whether one is violating patents, then there is a huge disincentive against developing software in that area at all.</p>
</li>
<li>
<h3>Software Patents Work Against Free/Libre/Open Source Software</h3>
<p>Software patents hinder the development of software and FOSS licences, as the licensee is not allowed to restrict the rights of the sub-licensees over and above the restrictions that the licensee has to observe. Thus, all patent clearances obtained by the licensee must be passed on to the sub-licensees. Thus, patented software, though most countries around the world do not recognize them, are generally not included in the default builds of many FOSS operating systems. This inhabits the general adoption of FOSS, since many of the software patents, even though not enforceable in India, are paid heed to by the software that Indians download, and the MP3 and DivX formats are not enabled by default in standard installations of a Linux OS such as Ubuntu.</p>
</li></ol>
<h2>Conclusion</h2>
<p>Currently, the U.S. patent system is being reviewed at the administrative level, the legislative level, as well as the judicial level. At the judicial level, the question of business method patents (and, by extension, software patents) is before the Supreme Court of the United States of America in the form of <a href="http://en.wikipedia.org/wiki/Bilski_v._Kappos"><em>Bilski v. Kappos</em></a>. Judge Mayer of the Court of Appeals for the Federal Circuit (CAFC, which heard <em>In re Bilksi</em>) noted that "the patent system has run amok". The Free Software Foundation submitted a most extensive <a href="http://endsoftpatents.org/amicus-bilski-2009"><em>amicus curiae</em> brief</a> to the U.S. Supreme Court, filled with brilliant analysis of software patents and arguments against the patentability of software that is well worth a read.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/arguments-against-software-patents'>http://editors.cis-india.org/a2k/blogs/arguments-against-software-patents</a>
</p>
No publisherpraneshOpen StandardsAccess to KnowledgeSoftware PatentsIntellectual Property RightsPublicationsPatents2012-03-13T10:43:12ZBlog EntryArguments Against the PUPFIP Bill
http://editors.cis-india.org/a2k/publications/pupfip/why-no-pupfip
<b>The Protection and Utilisation of Public Funded Intellectual Property Bill (PUPFIP Bill) is a new legislation being considered by Parliament, which was introduced in the 2008 winter session of the Rajya Sabha. It is modelled on the American Bayh-Dole Act (University and Small Business Patent Procedures Act) of 1980. On this page, we explore some of the reasons that the bill is unnecessary, and how it will be harmful if passed.</b>
<h2>Summary</h2>
<h2 style="text-align: justify;"><a title="How is the legislation unnecessary?" href="#how-is-the-legislation">How is the legislation
unnecessary?</a></h2>
<ol><li><a title="1) The Indian government
does not have vast reserves of underutilized patents, as the U.S. did
in 1980." href="#1-the-indian-government">The Indian government does not have vast reserves of underutilized patents, as the U.S. did in 1980.</a></li><li><a title="2) Technology transfer is very important, but pushing IPRs aggressively is not the best way of ensuring technology transfer." href="#2-technology-transfer-is">Technology transfer is very important, but pushing IPRs aggressively is not the best way of ensuring technology transfer.</a></li></ol>
<p align="justify"> </p>
<h2 style="text-align: justify;"><a title="How is the legislation
harmful?" href="#how-is-the-legislation-1">How is the legislation
harmful?</a></h2>
<ol><li><a title="1) It's very foundation
is flawed and unproven: excessive patenting lead to gridlocks and
retard innovation." href="#1-it-s-very">Excessive patenting lead to
gridlocks and retards innovation.
</a></li><li><a title="2) The legislation makes
mandatory that which is optional now, and is anyway being followed in
many institutions." href="#2-the-legislation-makes">The legislation
makes mandatory that which is optional now, and is anyway being
followed in many institutions.</a></li><li><a title="3) Copyright, trademark,
etc., seem to be covered under the definition of public funded
IP." href="#3-copyright-trademark-etc">Copyright,
trademark, etc., seem to be covered under the definition of “public
funded IP”.</a></li><li><a title="4) It will result in
a form of double taxation for research, and will increase the consumer cost of
all products based on publicly-funded..." href="#4-it-will-result">It will result in
a form of double taxation for research, and will increase the consumer cost of
all products based on publicly-funded research.</a></li><li><a title="5) It could have
unintended consequences of varied kinds, including discouraging
fundamental research as well as discouraging industrial..." href="#5-it-could-have">It could have
unintended consequences of varied kinds, including discouraging
fundamental research as well as discouraging industrial research.</a></li><li><a title="6) Non-disclosure
requirements in the Bill restricts the dissemination of research within the academic community, and curtails freedom of..." href="#6-non-disclosure-requirements">Non-disclosure
requirements in the Bill restricts the dissemination of research within the academic community, and curtails freedom of speech.</a></li><li><a title="7) Exclusive licensing enables restriction on the dissemination of
academic research in the marketplace, and increase in cost of products..." href="#7-exclusive-licensing-enables">Exclusive
licensing enables restriction on the dissemination of academic research in the marketplace, and increase in cost of products based on public-funded research.</a><br /></li></ol>
<p align="justify"> </p>
<h2 align="justify"><a title="Additional Resources" href="#additional-resources">Additional resources</a></h2>
<ul><li><a title="On the PUPFIP Bill" href="#on-the-pupfip-bill">On the PUPFIP Bill</a></li><li><a title="On Bayh-Dole" href="#on-bayh-dole">On Bayh-Dole</a></li></ul>
<h2 align="justify"><br /></h2>
<h2 align="justify">Arguments<br /></h2>
<h2 align="justify"><a name="how-is-the-legislation"></a>How is the legislation unnecessary?<br /></h2>
<h3 align="justify"><a name="1-the-indian-government"></a>1) The Indian government
does not have vast reserves of underutilized patents, as the U.S. did
in 1980.</h3>
<p align="justify">The idea behind the
Bayh-Dole Act was that the research funded by the government (and
owned, in the US, by the government) was being underutilized. In 1980, over 28,000 unlicensed patents lay with the U.S. government.[1] The Act shifted the title of such works
from the government to the University or small business that
conducted the research, thus allowing them to take out patents on the
research outputs. In India, under present laws, the researcher(s)
own the rights over their research whether they be government-funded
or not. Usually, due to employment contracts, the research
institutes already have the right to patent their inventions. Thus,
currently, there is no need for an enabling legislation in this
regard, as there was in the U.S. </p>
<p align="justify">In fact, currently, the Council of
Scientific and Industrial Research (CSIR) has over 5173 patents
(counting both those in force and those under dispute), while only
222 patents are licensed (with 68 of them being under dispute).
Thus, even with the IP being in the institute's hands, there is a
"problem" situation similar to that which necessitated
Bayh-Dole in the U.S. Thus, quite contrary to the aims of the Act,
further patenting will only lead to a situation of even more
underutilized patents.</p>
<p align="justify"> </p>
<h3 style="text-align: justify;"><a name="2-technology-transfer-is"></a>2) Technology transfer is very important, but pushing IPRs aggressively is not the best way of ensuring technology transfer.</h3>
<p align="justify">At a recent seminar held at NUJS Kolkata on
the PUPFIP Bill, it was revealed that while IIT-Kharagpur’s
TTO-equivalent (called the Sponsored Research & Industrial
Consultancy division - SRIC) currently handles over Rs.300 crores
through 850 projects, only around Rs. 5-15 crores (exact figures
weren't available) are currently made through its patent
portfolio.[2] Thus patents don't seem, on the face of things, to be the
best way of ensuring technology transfer. Indeed, the oft-cited 28,0000 unlicensed patents held by the U.S. government were composed primarily of patents for which industry had refused to take exclusive licences.[3]</p>
<p align="justify">Many contend that one of the most important functions of a patent is to get inventors to disclose their inventions rather than keep them as secrets. This reason for awarding a patent is invalidated if stronger protection is granted to trade secrets (no term limit, for instance) than for patents. Secondly, this reason for granting patents is not valid in case of government-funded research in academia and research
institutes. The culture of publication and the economy of reputation
are sufficient to ensure disclosure. Even without these intrinsic factors, there grant requirements can necessitate publication. If mere publication is believed to be insufficient, then the government would do well to ask for technology dissemination plans before grants are made. At any rate, monopoly rights in the form of patents are
thoroughly unnecessary.</p>
<p align="justify"> </p>
<h2 style="text-align: justify;"><a name="how-is-the-legislation-1"></a>How is the legislation
harmful?</h2>
<h3 align="justify"><a name="1-it-s-very"></a>1) Excessive patenting lead to gridlocks and
retard innovation.</h3>
<p align="justify">It sees protection of IPR
as the sole means of encouraging innovation and driving research to
the doorstep of consumers. The trend around the world is that of
exploring alternative forms of spurring innovation. Even in India,
CSIR has gone for an innovative "<a class="external-link" href="http://www.osdd.net/">Open Source Drug Discovery</a>"
project, which has proven very successful so far. Furthermore, recent literature shows that excessive
patenting is harming research and innovation by creating gridlocks.[4] If platform technologies and basic research (such as SNP) gets mired in patents, then the transaction costs increase (not only in terms of money, but more importantly in administrative terms). This ends up in research clearances getting blocked, and thus retards innovation. It must be remembered that intellectual property is not only an output, but also an input. The more aggressively the outputs are guarded and prevented from being shared, the more the inputs will be affected. The study of patent thickets and gridlocks has reached such a stage that the U.S. law has been changed to reflect this. Firstly, the Bayh-Dole Act was amended in 2000 to state that the objectives of the Bayh-Dole Act were to be carried out "without unduly encumbering future research and discovery". Now, the courts (in the <em>Bilski</em> case) have increased the standard of obviousness in patent law (which means that less patents will be granted). Furthermore, the U.S.P.T.O. and the U.S. Senate are currently considering means of overhauling the U.S. patent system, which many fear is close to breaking down due to over-patenting. All these are signs that the footsteps we are seeking to follow are themselves turning back.</p>
<p align="justify"> </p>
<h3 align="justify"><a name="2-the-legislation-makes"></a>2) The legislation makes
mandatory that which is optional now, and is anyway being followed in
many institutions.</h3>
<p align="justify">While the CSIR labs
pursue patents aggressively, they also run the OSSD project. The latter
might not be permissible if the Act is passed as it stands.
Furthermore, this would increase the number of underutilized patents,
which is a problem faced currently by CSIR, which has had an
aggressive patent policy since the 1990s. Unlicensed patents constitute around 93% of CSIR's total patent portfolio. (In contrast, MIT averages
around 50% licensing of patents.) If aggressive patenting is made mandatory, it adds substantially to administrative costs of all institutes which receive any grants from the government. These institutes might not be large enough to merit a dedicated team of professionals to handle</p>
<p align="justify"> </p>
<h3 align="justify"><a name="3-copyright-trademark-etc"></a>3) Copyright, trademark,
etc., seem to be covered under the definition of "public funded
IP".</h3>
<p align="justify">This leads to a ridiculous need to attempt to commercialise
all government-funded research literature (and the government funds
science research, social sciences, arts, etc.). Furthermore, while the definition of "public funded IP" includes copyrights, trademarks, etc., yet the substantive provisions seem to only include those forms of IP which have to be registered compulsorily (copyright and trademark don't -- copyright comes into existence when an original work is expressed in a medium, and trademark can come into existence by use). Importantly, seeking to commercialise all copyrighted works of research would hamper
the movement for open access to scholarly literature. The inititative towards open access to scholarly literature is something that National Knowledge Commission has recommended, and is a move that would result in increased dissemination of public-funded research, which seems to be an aim of the PUPFIP Bill as well.</p>
<p align="justify"> </p>
<h3 align="justify"><a name="4-it-will-result"></a>4) It will result in
a form of double taxation for research, and will increase the consumer cost of
all products based on publicly-funded research.</h3>
<p align="justify">This bill would increase the
consumer cost of all products based on publicly-funded research,
because of the additional burden of patent royalties. </p>
<p align="justify">Public funds research -> Institute patents research -> Pharma MNC gets exclusive license over research -> Drug reaches market.</p>
<p align="justify">Assuming an exclusive licence: Cost of the drug = cost of manufacturing, storage, etc. + <em>mark-up (monopolistic) cost</em> + <em>cost of licence</em>.</p>
<p align="justify">Thus, in
effect, the public has to pay twice for the research: it pays once to enable the
scientist to conduct the research, and once again in the form of royalties to have that research brought to the marketplace. </p>
<p align="justify"> </p>
<h3 align="justify"><a name="5-it-could-have"></a>5) It could have
unintended consequences of varied kinds, including discouraging
fundamental research as well as discouraging industrial research.</h3>
<p align="justify">The former could happen since
institutions and individual scientists have a financial incentive to
<a class="external-link" href="http://www.researchoninnovation.org/tiip/archive/2003_5b.htm">shift their focus away from fundamental research</a>; the latter,
conversely, because the filings and bureaucracy involved <a class="external-link" href="http://www.spicyip.com/docs/ppt-premnath-pdf.pdf">could drive
scientists away from reporting or even engaging in industrial
research</a> [pdf]. Faculty and researcher involvement in the business of
licensing is a sub-optimal usage of their talents, and there are
scientists who would rather stay away from business (as is shown by
the intake of former industry-researchers into government-funded labs
such as those of CSIR).</p>
<p align="justify"> </p>
<h3 align="justify"><a name="6-non-disclosure-requirements"></a>6) Non-disclosure
requirements in the Bill restricts the dissemination of research within the academic community, and curtails freedom of speech.<br /></h3>
<p align="justify">This will bring about a shift in science and research which is always done upon others' work. This is why in the U.S., the National Institute of Health (N.I.H.) has sought to ensure (without any legal authority) that it only finances that research that on single nucleotide polymorphism (S.N.P.) which is not patented, and is shared freely amongst scholars. Since this requirement of the N.I.H.'s does not have any legal backing (since it is contradictory to the Bayh-Dole Act), institutions are free to get the grant from N.I.H. and then go ahead and patent their inventions.</p>
<p align="justify"> </p>
<h3 align="justify"><a name="7-exclusive-licensing-enables"></a>7) Exclusive licensing enables restriction on the dissemination of
academic research in the marketplace, and increase in cost of products
based on public-funded research.</h3>
<p>The bill allows for both assignment of licences as well as exclusive licences. Both of these enable monopolistic pricing to be undertaken by the licensee/assignee. There are not even any mechanisms in the Act to ensure, for instance, that a public call is made to ascertain that no parties are willing to consider a non-exclusive licence. Patents are generally said to grant a monopoly right because of the opportunity to recover costs of research and development. When the research is being done by public-funded money, there is no justification for monopoly rights on that research, since there are no excessive costs to recover.</p>
<p> </p>
<p align="justify">Footnotes:</p>
<p align="justify">[1] See <a class="external-link" href="http://www.plosbiology.org/article/info:doi/10.1371/journal.pbio.0060262">So et al.</a> and <a class="external-link" href="http://opensource.mit.edu/papers/Thursby.pdf">Thursby and Thursby</a>, quoted in the <a class="external-link" href="http://knowledgecommission.gov.in/downloads/recommendations/LegislationPM.pdf">National Knowledge Commission's letter to the Prime Minister</a>.</p>
<p align="justify">[2] See Prof. Vivekanandans' presentation "<a class="external-link" href="http://www.spicyip.com/docs/ppt-vivek.pdf">Patenting and Technology Transfer-the IIT Khargpur Experience</a>"</p>
<p align="justify">[3] See <a class="external-link" href="http://www.plosbiology.org/article/info:doi/10.1371/journal.pbio.0060262">Anthony So et al., <em>Is Bayh-Dole Good for Developing Countries</em>, 6 PLoS Biol e262 (2008)</a></p>
[4] See <a class="external-link" href="http://www.sciencemag.org/cgi/content/full/280/5364/698">Michael A. Heller & Rebecca S. Eisenberg, Can Patents Deter Innovation? The Anticommons in Biomedical Research, 280 Science 698 (1998)</a>
<p> </p>
<p align="justify"> </p>
<h2 style="text-align: justify;"><a name="additional-resources"></a>Additional Resources</h2>
<h3><a name="on-the-pupfip-bill"></a>On the PUPFIP Bill</h3>
<ul><li>February 5, 2004: <a class="external-link" href="http://www.expresspharmaonline.com/20040205/happenings05.shtml">NIPER holds parallel session of Indian Science Congress (Express Pharma)</a> <br /></li><li>October 27, 2006: <a class="external-link" href="http://bayhdole25.org/node/40">Susan
Finston, India to Propose New Technology Transfer Legislation
(Bayh-Dole 25)</a></li><li><span id="__citationid396739" class="citation">January 16, 2007: <a class="external-link" href="http://knowledgecommission.gov.in/downloads/recommendations/LegislationPM.pdf">National Knowledge Commision's Letter to Indian Prime Minister (National Knowledge Commission)</a> </span></li><li>April 15, 2007: <a class="external-link" href="http://www.downtoearth.org.in/full6.asp?foldername=20070415&filename=news&sid=23&page=2&sec_id=50">Archita Bhatta, Proposed IPR law raises concern (Down to Earth)</a></li><li>May 31, 2007: <a class="external-link" href="http://www.pib.nic.in/release/release.asp?relid=28342">Science & Technology needs to be core of the economic development says Kapil Sibal (<span class="Apple-style-span"></span></a><a class="external-link" href="http://www.pib.nic.in/release/release.asp?relid=28342">PIB Press Release)</a></li><li>November 13, 2007: <a class="external-link" href="http://www.pib.nic.in/release/rel_print_page.asp?relid=32628">Government Accords Approval to National Biotechnology Development Strategy (PIB Press Release)</a></li><li>February 1, 2008: <a class="external-link" href="http://www.sciencemag.org/cgi/content/summary/319/5863/556a">Yudhijit Bhattacharjee, Indian Government Hopes Bill Will Stimulate Innovation (Science)</a> </li><li>February 19, 2008: Shamnad Basheer, Exporting Bayh Dole to India: Whither Transparency? <a class="external-link" href="http://spicyipindia.blogspot.com/2008/02/exporting-bayh-dole-to-india-whither.html">(Part 1)</a> <a class="external-link" href="http://spicyipindia.blogspot.com/2008/02/exporting-bayh-dole-to-india-whither_21.html">(Part 2)</a> (SpicyIP)<br /></li><li>March 17, 2008: <a class="external-link" href="http://www.business-standard.com/india/storypage.php?autono=317122">Kalpana Pathak, Varsities may soon own patent rights (Business Standard)</a> <br /></li><li>March 17, 2008: <a class="external-link" href="http://www.thehindubusinessline.com/2008/03/17/stories/2008031751080100.htm">P.T. Jyothi Datta, Public-funded research may pay dividends for scientists (Business Line)</a></li><li>March 17, 2008: <a class="external-link" href="http://www.iam-magazine.com/blog/Detail.aspx?g=c2472b7c-0f57-4e16-b1ea-389c44c3b4a6">Joff Wild, India considers Bayh-Dole style legislation (IAM Magazine)</a><br /></li><li>April 30, 2008: <a class="external-link" href="http://www.pharmabiz.com/article/detnews.asp?articleid=44083&sectionid=46">M.K. Unnikrishnan and Pradeepti Nayak, Lessons from Bayh Dole Act and its relevance to India (PharmaBiz)</a></li><li>July 2008: <a class="external-link" href="http://ssrn.com/abstract=1265343">Sean M. O'Connor, Historical Context of U.S. Bayh-Dole Act: Implications for Indian Government Funded Research Patent Policy (STEM Newsletter)</a><br /></li><li>July 7, 2008: Shamnad Basheer, <a class="external-link" href="http://spicyipindia.blogspot.com/2008/07/mysterious-indian-bayh-dole-bill.html">Mysterious Indian "Bayh Dole" Bill: SpicyIP Procures a Copy (SpicyIP)</a></li><li>July 09, 2008: <a class="external-link" href="http://www.business-standard.com/india/storypage.php?autono=328187">Latha Jishnu, Does India need a Bayh-Dole Act? (Business Standard)</a><br /></li><li>September 2008: <a class="external-link" href="http://nopr.niscair.res.in/handle/123456789/2036">V.C. Vivekanandan, Transplanting Bayh-Dole Act- Issues at Stake Authors (13 Journal of Intell. Prop. 480)</a></li><li>September 18, 2008: <a class="external-link" href="http://www.scidev.net/en/opinions/indian-patent-bill-let-s-not-be-too-hasty.html">Shamnad Basheer, Indian Patent Bill: Let's not be too hasty (SciDev.net)</a></li><li>October 28, 2008: <a class="external-link" href="http://www.plosbiology.org/article/info:doi/10.1371/journal.pbio.0060262">Anthony So et al., <em>Is Bayh-Dole Good for Developing Countries</em>, 6 PLoS Biol e262 (2008)</a></li><li>October 31, 2008: <a class="external-link" href="http://pib.nic.in/release/release.asp?relid=44316">Cabinet gives approval for Protection and Utilization of Public Funded Intellectual Property Bill, 2008 (</a><a class="external-link" href="http://pib.nic.in/release/release.asp?relid=44316">PIB Press Release)</a></li><li>November 2008: <a class="external-link" href="http://www.essentialmedicine.org/wordpress/wp-content/uploads/2008/11/uaem-white-paper-on-indian-bd-act.pdf">Annette Lin et al., The Bayh-Dole Act and Promoting the Transfer of Technology of Publicly Funded-Research (UAEM White Paper on the Proposed Indian Bayh-Dole Analogue)</a> <br /></li><li>November 1, 2008: <a class="external-link" href="http://www.livemint.com/2008/10/11002336/2008/11/01001052/Not-in-public-interest.html?d=2">Editorial: Not in Public Interest (Mint)</a><br /></li><li>November 12, 2008: <a class="external-link" href="http://www.genomeweb.com/biotechtransferweek/india-mulls-bill-modeled-bayh-dole-critics-claim-it-may-stifle-innovation">Ben Butkus, As India Mulls Bill Modeled on Bayh-Dole, Critics Claim It May Stifle Innovation (Biotech Transfer Weekly)</a> <br /></li><li>December 16, 2008: <a class="external-link" href="http://mail.sarai.net/pipermail/commons-law/2008-December/002973.html">Pranesh Prakash, Indian "Bayh Dole" Bill before Parliament (Commons Law)</a></li><li>January 23, 2009: <a class="external-link" href="http://www.scidev.net/en/editorials/time-to-rethink-intellectual-property-laws-.html">Editorial: Time to Rethink Intellectual Property Laws (SciDev.net)</a><br /></li><li>March 12, 2009: <a class="external-link" href="http://www.thehindu.com/seta/2009/03/12/stories/2009031250021400.htm">Feroz Ali Khader, Does Patenting Research Change the Culture of Science? (The Hindu)</a><br /></li><li>April 24, 2009: <a class="external-link" href="http://www.indianexpress.com/story-print/450560/">Sunil Abraham & Pranesh Prakash, Does India Need Its Own Bayh-Dole? (Indian Express)</a></li><li>September 21, 2009: <a class="external-link" href="http://www.livemint.com/2009/09/20235448/Proposed-patent-Bill-is-flawed.html?h=A1">C.H. Unnikrishnan, Proposed Patent Bill Is Flawed, Say Experts (Mint)</a></li><li>September 23, 2009: <a class="external-link" href="http://www.livemint.com/Articles/PrintArticle.aspx?artid=F92B5F6A-A789-11DE-A362-000B5DABF613">Editorial: An Idea That's A Patent Misfit (Mint)</a><br /></li><li>October 2009: <a class="external-link" href="http://ictsd.org/downloads/2009/11/sampat-policy-brief-5.pdf">Bhaven N. Sampat, The Bayh-Dole Model in Developing Countries: Reflections on the Indian Bill on Publicly Funded Intellectual Property (UNCTAD - ICTSD Policy Brief No. 5)</a><br /></li><li>January 2010: <a class="external-link" href="http://www.icrier.org/publication/WorkingPaper244.pdf">Amit Shovon Ray & Sabyasachi Saha, Patenting Public-Funded Research for Technology Transfer: A Conceptual-Empirical Synthesis of US Evidence and Lessons for India (ICRIER Working Paper No. 244)</a></li><li>January 2010: <a class="external-link" href="http://nopr.niscair.res.in/bitstream/123456789/7196/1/JIPR%2015%281%29%2019-34.pdf">Mrinalini Kochupillai, <em>The Protection and Utilization of Public Funded Intellectual Property Bill, 2008: A Critique in the Light of India's Innovation Environment</em>, 15 J. Intell. Prop. Rights 19 (2010)</a><br /></li><li>January 16, 2010: <a class="external-link" href="http://www.financialexpress.com/printer/news/567807/">Amit Shovon Ray & Sabyasachi Saha, Intellectual Bottlenecks (Financial Express)</a><br /></li><li>January 21, 2010: <a class="external-link" href="http://www.business-standard.com/india/news/latha-jishnu-perilsthe-us-model/383179/">Latha Jishnu, Perils of the US Model (Business Standard)</a></li><li>January 22, 2010: <a class="external-link" href="http://timesofindia.indiatimes.com/india/Scientists-fume-over-new-patent-bill/articleshow/5486588.cms">Rema Nagarajan, Scientists Fume Over New Patent Bill (Times of India)</a></li><li>January 26, 2010: <a class="external-link" href="http://www.livemint.com/2010/01/26202909/The-problem-with-patents.html">Shamnad Basheer, The Problem with Patents (Mint)</a><br /></li><li>February 5, 2010: <a class="external-link" href="http://www.thehindubusinessline.com/2010/02/05/stories/2010020550960900.htm">Shalini Butani, Public Research May Become More Private (Business Line)</a></li><li>February 8, 2010: <a class="external-link" href="http://www.livemint.com/2010/02/07225403/Scientists-want-changes-in-inn.html">Anika Gupta, Scientists Want Changes in Innovation Bill (Mint)</a></li><li>February 9, 2010: <a class="external-link" href="http://www.livemint.com/Articles/PrintArticle.aspx?artid=AD533A7C-15A2-11DF-A92D-000B5DABF636">C.H. Unnikrishnan, Parliament Panel Wants Govt Review on Innovation Bill (Mint)</a><br /></li><li>February 15, 2010: <a class="external-link" href="http://www.downtoearth.org.in/full6.asp?foldername=20100215&filename=croc&sec_id=10&sid=2">Leena Menghaney, A Bad Example from the U.S. (Down to Earth)</a></li><li>February 19, 2010: <a class="external-link" href="http://www.indianexpress.com/story-print/581701/">Pranesh Prakash, A Patent Conundrum (Indian Express)</a><br /></li><li><a class="external-link" href="http://spicyipindia.blogspot.com/search/label/Bayh%20Dole">SpicyIP coverage by tag 'Bayh Dole'</a></li><li><a class="external-link" href="http://spicyip.com/ip-resources">Presentations from NUJS, Kolkata conference on the PUPFIP Bill</a><br /></li></ul>
<p> </p>
<h3><a name="on-bayh-dole"></a>On Bayh-Dole</h3>
<strong>Newspapers and Magazines</strong>
<ul><li><a class="external-link" href="http://www.nybooks.com/articles/17244">Marcia Angell, The Truth About the Drug Companies, New York Review of Books, July 15, 2004</a><br /></li><li><a class="external-link" href="http://money.cnn.com/magazines/fortune/fortune_archive/2005/09/19/8272884/index.htm">Clifton Leaf, The Law of Unintended Consequences, Fortune Magazine, Sept. 19, 2005</a></li><li><a class="external-link" href="http://www.economist.com/science/PrinterFriendly.cfm?story_id=5327661">The Bayh-Dole act's 25th birthday, The Economist, Dec. 20, 2005</a><br /></li><li><a class="external-link" href="http://www.nytimes.com/2008/09/07/technology/07unbox.html?_r=1&pagewanted=print">Janet Rae-Dupree, When Academia Puts Profit Ahead of Wonder, N.Y. Times, Sept. 7, 2008</a><br /></li></ul>
<p> </p>
<strong>Academic Journals</strong>
<ul><li><a class="external-link" href="http://www.btlj.org/data/articles/20_02_02.pdf">Amy Kapczynski et al., Addressing Global Health Inequities: An Open Licensing Approach for University Innovation, 20 Berkeley Tech. L.J. 1031 (2005) </a><br /></li><li><a class="external-link" href="http://www.plosbiology.org/article/info:doi/10.1371/journal.pbio.0060262">Anthony So et al., <em>Is Bayh-Dole Good for Developing Countries</em>, 6 PLoS Biol. e262 (2008)</a><br /></li><li><a class="external-link" href="http://www.law.duke.edu/shell/cite.pl?66+Law+&+Contemp.+Probs.+289+%28WinterSpring+2003%29">Arti K. Rai & Rebecca S. Eisenberg, <em>Bayh-Dole Reform and the Progress of Biomedicine</em>, 66 Law & Contemp. Probs. 289 (2003)</a></li><li>David C. Mowery & Arvids A. Aiedonis, <em>Numbers, Quality, and Entry: How Has the Bayh-Dole Act Affected U.S. University Patenting and Licensing?</em>, 1 Innovation Pol'y Econ. 187 (2000)</li><li>David C. Mowery, et al., <em>Learning to Patent: Institutional Experience, Learning, and the Characteristics of U.S. University Patents After the Bayh-Dole Act, 1981-1992</em>, 48 Mgmt. Sci. 73 (2002)</li><li>Donald Kennedy, <em>Editorial: Enclosing the Research Commons</em>, 294 Science 2249 (2001)</li><li>F.M. Scherer, <em>The Political Economy of Patent Policy Reform in the United States</em>, 7 Colorado J. Telecomm. High Tech. L. 167 (2009)</li><li>Henry Steck, <em>Corporatization of the University: Seeking Conceptual Clarity</em>, 585 Annals of Am. Acad. Pol. & Soc. Sci. 66 (2003)</li><li>Jason Owen-Smith, <em>Trends and Transitions in the Institutional Environment for Public and Private Science</em>, 49 Higher Educ. 91 (2005)</li><li>Jerry G. Thursby & Marie C. Thursby, <em>University Licensing and the Bayh-Dole Act</em>, 301 Science 1052 (2003)</li><li>Jerry G. Thursby & Marie C. Thursby, <em>Who is Selling the Ivory Tower? Sources of Growth in University Licensing</em>, 48 Mgmt. Sci. 90 (2002)</li><li>Josh Lerner,<em> Review of 'Ivory Tower'</em>, 43 J. Econ. Litt. 510 (2005)</li><li>Joshua B. Powers,<em> R&D Funding Source and University Technology Transfer: What is Stimulating Universities to Be More Entrepreneurial?</em>, 45 Research in Higher Educ. 1 (2004)</li><li>Lita Nelsen, <em>The Rise of Intellectual Property Protection in the American University</em>, 279 Science 1460 (1998)</li><li>Marcia Angell & Arnold S. Relman, <em>Patents, Profits & American Medicine: Conflicts of Interest in the Testing & Marketing of New Drugs</em>, 131 Daedalus 102 (2002)</li><li>Maria Jelenik, <em>Review: Two Books on Technology Transfer</em>, 50 Admin. Sci. Q. 131 (2005) (Review of '<em>Ivory Tower</em>')</li><li><a class="external-link" href="http://www.sciencemag.org/cgi/content/full/280/5364/698">Michael
A. Heller & Rebecca S. Eisenberg, Can Patents Deter Innovation? The
Anticommons in Biomedical Research, 280 Science 698 (1998)</a></li><li>Rebecca Henderson, et al., <em>Universities as a Source of Commercia Technology: A Detailed Analsis of University Patenting, 1965-1988</em>, 80 Rev. Econ. Statistics 119 (1998)</li><li>Rebecca S. Eisenberg, <em>Public Research and Private Development: Patents and Technology Transfer in Government-Sponsorded Research</em>, 82 Virginia L. Rev. 1663 (1996)</li><li>Rebecca S. Eisenberg & Richard R. Nelson, <em>Public vs. Proprietary Science: A Fruitful Tension?</em>, 131 Daedalus 89 (2002)</li><li>Richard Jensen & Marie Thursby,<em> Proofs and Prototypes for Sale: The Licensing of University Inventions</em>, 91 Am. Econ. Rev. 240 (2001)</li><li>Roberto Mazzoleni & Richard R. Nelson, <em>Economic Theories about the Benefits and Costs of Patents</em>, 32 J. Econ. Issues 1031 (1998)</li><li>Thomas A. Massaro,<em> Innovation, Technology Transfer, and Patent Policy: The University Contribution</em>, 82 Virginia L. Rev. 1729 (1996)</li><li>Walter W. Powell & Jason Owen-Smith, <em>Universities and the Market for Intellectual Property in the Life Sciences</em>, 17 J. Pol'y Analysis Mgmt. 253 (1998)</li><li>William M. Sage, <em>Funding Fairness: Public Investment, Proprietary Rights and Access to Health Care Technology</em>, 82 Virginia L. Rev. 1737 (1996)</li><li>Zach W. Hall & Christopher Scott, <em>University-Industry Partnership</em>, 291 Science 553 (2001)</li></ul>
<p> </p>
<strong>Resources</strong>
<ul><li><a class="external-link" href="http://www.researchoninnovation.org/tiip/archive/issue2003_5.htm">TIIP Newsletter: Patents and University Technology Transfer (2003) </a></li><li><a class="external-link" href="http://www.bayhdole25.org">Bay-Dole 25</a></li></ul>
<p> </p>
<p> </p>
<img src="file:///C:/Users/REBECCA/AppData/Local/Temp/moz-screenshot.png" alt="" />
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/publications/pupfip/why-no-pupfip'>http://editors.cis-india.org/a2k/publications/pupfip/why-no-pupfip</a>
</p>
No publisherpraneshBayh-DoleAccess to KnowledgeAccess to MedicineIntellectual Property RightsPUPFIPPatentsPublications2011-09-12T11:03:09ZPageA Guide to the Proposed India-European Union FTA
http://editors.cis-india.org/a2k/publications/CIS%20Open%20Data%20Case%20Studies%20Proposal.pdf
<b></b>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/publications/CIS%20Open%20Data%20Case%20Studies%20Proposal.pdf'>http://editors.cis-india.org/a2k/publications/CIS%20Open%20Data%20Case%20Studies%20Proposal.pdf</a>
</p>
No publishergloverPublicationsAccess to Knowledge2011-08-22T13:22:50ZFile