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Joining the Dots in India's Big-Ticket Mobile Phone SEP Litigation
http://editors.cis-india.org/a2k/blogs/rohini-lakshane-and-shweta-mohandas-june-30-2019-joining-the-dots-in-india-s-big-ticket-mobile-phone-sep-litigation
<b>Rohini Lakshané and Shweta Mohandas have published their last update to this paper that chronicles mobile device SEP litigation in India. All developments in the lawsuits filed in the Delhi High Court and complaints made to the CCI that were published in reliable sources till 20 September 2018 are mentioned in this paper. The paper was an output under the Pervasive Technologies project.</b>
<h3 style="text-align: justify; ">Abstract</h3>
<p style="text-align: justify; ">Nearly three years after litigation over patents and designs associated with big-ticket mobile technology started in the US, the first salvo in the patent wars was fired in India. Sweden-based Ericsson, a provider of communications infrastructure and services, sued home-grown budget smartphone manufacturer Micromax in early 2013. Patent litigation in the arena of mobile phone technology has steadily risen since. Lei Jun, the chairman of China's largest smartphone manufacturer Xiaomi once said that facing a patent lawsuit "can be considered a rite of passage for a company that is coming of age". The first part of this paper, "Compilation of lawsuits" is an attempt to chronicle the significant developments in big-ticket lawsuits pertaining to mobile technology patents filed in India. The second part, "Commonalities and differences in the lawsuits" is an attempt to join the dots between the developments that were either remarkably common or notably different. All information presented in this paper has been gathered from publicly available sources and is up-to-date till the time of writing (October 31, 2017). This paper has been published as a part of the Pervasive Technologies project at the Centre for Internet and Society (CIS). Invaluable research assistance was provided by Nayana Dasgupta, Sampada Nayak and Suchisubhra Sarkar (in alphabetical order).</p>
<hr />
<p style="text-align: justify; "><a class="external-link" href="https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID3398717_code2336079.pdf?abstractid=3120364&mirid=1">Click to download the paper</a></p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/rohini-lakshane-and-shweta-mohandas-june-30-2019-joining-the-dots-in-india-s-big-ticket-mobile-phone-sep-litigation'>http://editors.cis-india.org/a2k/blogs/rohini-lakshane-and-shweta-mohandas-june-30-2019-joining-the-dots-in-india-s-big-ticket-mobile-phone-sep-litigation</a>
</p>
No publisherRohini Lakshané and Shweta MohandasPatentsAccess to Knowledge2019-07-06T01:42:35ZBlog EntryComments and Suggestions to the Draft Patent Manual March 2019
http://editors.cis-india.org/a2k/blogs/comments-and-suggestions-to-the-draft-patent-manual-march-2019
<b>A coordinated civil society response to the consultation on the Patent Manual. CIS provided comments on patenting of computer related inventions. </b>
<p style="text-align: justify; "><span>On behalf of the accessibsa project (</span><a href="http://www.accessibsa.org/"><span>www.accessibsa.org</span></a><span>), the </span><span>Médecins Sans Frontières Access Campaign (</span><a href="https://msfaccess.org/"><span>https://msfaccess.org/</span></a><span>) and the Centre for Internet and Society (</span><a href="file:///C:/Users/Achal/Downloads/www.cis-india.org">www.cis-india.org</a><span>) , as well as numerous endorsing organisations and individuals across Indian Civil Society, we are pleased to present our comments, feedback and suggestions on the </span><span>draft Manual of Patent Office Practice and Procedure, Version 3, published on 1 March 2019, to which your office invited comment from all stakeholders.</span></p>
<p style="text-align: justify; ">The Indian Patent Office (IPO) on 1 March 2019, published a draft of the “Manual of Patent Office Practice and Procedure, Version 3.0” (hereafter, the “Manual”). This draft extends upon the previous Manual, Version 01.11, dated 22 March 2011, which is currently the Manual in force.</p>
<p style="text-align: justify; ">At the outset, we should note that the current draft Manual does not differ substantially from the version in force. Aside from a few updations (for instance, noting the Indian Supreme Court decision in the Novartis case of 2013, as regarding Section 3(d) of Indian patent law), the current Manual under consideration is similar in most aspects to the Manual in force. However, given that several provisions in the current Manual in force were insufficient to implement Indian patent law as it was intended even in 2011, as well as the fact that there have been numerous developments in law, scholarship and practice since the time the Manual was last updated in 2011, we urge the IPO to take this opportunity to reflect upon the developments in patent law and practice, as well as the extensive scholarship now available to us.</p>
<p style="text-align: justify; "><span style="text-decoration: underline;">Preamble</span>: Indian patent law was substantially amended in 2005, and we began the process of implementing this law a few years later. Today, in 2019, we have data and evidence from almost 14 years of practice, and we suggest that the IPO fully incorporate all learnings available to us, to bring the full force of Indian patent</p>
<p style="text-align: justify; ">law into effect, as originally intended. The Manual of the Patent Office has the potential to be a comprehensive handbook on implementing patent law for all stakeholders including patent agents, applicants and the courts. The current version, in the manner proposed, is not. Our suggestions, if adopted in entirety, would make this so: furthermore, our suggestions provide a much-needed opportunity to correct course, by understanding and correcting the failures of the system to implement the original and far-sighted provisions in the Indian patent law amendment of 2005.</p>
<p style="text-align: justify; "><span style="text-decoration: underline;">Overarching themes</span>: Several of our suggestions for the current Manual under consideration are systemic, and, as such, require broad and serious attention to completely overhaul.</p>
<p style="text-align: justify; "><b>Structure</b>: The Manual under consideration is badly composed and incomplete. Tabular columns are an inappropriate format for a patent manual. Furthermore and separately, the IPO makes use of several instances of “Guidelines” when examining patents. The IPO currently consults, among others, Guidelines for pharmaceuticals, biotechnology and computer related inventions. These guidelines are randomly categorized, badly deployed, hard to locate and amended haphazardly, without notice or any attention. There is no excuse for the IPO Guidelines to not form a part of the Patent Office Manual, thus giving them stability, and subjecting them to a transparent and participative process, like the rest of the Manual. Lastly, the Guidelines should evolve to covering the examination of Biologics as a distinct category, as we should with other frontier technology, such as Artificial Intelligence and Synthetic Biology.</p>
<p style="text-align: justify; "><b>Coherence</b>: We have three inter-locking layers in the patent system in India: the patents act, the patent rules and the patent manual (which should incorporate the patent examination guidelines). The IPO is currently soliciting suggestions for the draft Patent Office Manual, while it has an ongoing amendment to the Patents (Amendment) Rules, 2018. We expect the final Rules to be published shortly; however, we are also being asked to provide suggestions on the Manual, without any knowledge of what the IPO’s final version of the Rules will look like. (For instance, the Patent Rules have suggested a procedural change in how pre-grant patent oppositions will be conducted in India; however, since the Rules are not final, it is unclear how they integrate with the Manual, and how we can comment on the process, since the status of the Patent Rules remains unclear). Furthermore, the Manual makes no reference to the Rules. As such, the IPO should decide and publish a final version of the Rules, and only then solicit feedback on the Manual (which it could do in the current time by extending the date of feedback on the Manual). Regardless, the IPO must achieve coherence and cohesion between its many layers, including the patents act, the patent rules, and the patent manual. This coherence, if achieved, would allow the Manual to serve as a handbook for all stakeholders involved in the patent system, including serving as a basis for open-book exams for patent agents.</p>
<p style="text-align: justify; "><b>Updation</b>: Patent law and practice are fast evolving fields. The IPO necessarily needs to keep up with the pace of technology, as well as evolving interpretations of existing patent law provisions. For instance, the Indian Supreme judgment in the Novartis case was announced in 2013; however, it has taken over 6 years for this important judgment to formally reflect in the work of the Patent Office Manual, despite being Indian law for these 6 years. The IPO, therefore, needs to update the Manual and the examination guidelines, frequently – at least as frequently as major events in technology and the law require.</p>
<p style="text-align: justify; "><b>Transparency & Accountability</b>: In the current time, stakeholders in the Indian patent system, be they multinational corporations or ordinary members of Indian society, are faced with considerable challenges when attempting to view patent information. Despite the IPO having made information</p>
<p style="text-align: justify; ">available online for some years, the information on Indian patents is needlessly limited, often inaccurate, often incomplete, and frequently unavailable. On occasion, this is due to insufficient disclosure on the part of the applicant, but overwhelmingly, it is because the IPO is not well organized and insufficiently invested in transparency or accountability. For instance, mandating pharmaceutical patent applicants to provide an INN (International non-proprietary name) on all applications where the information is available, would invaluably assist in extending the transparency and utility of the IPO’s functioning with the Indian public. Patent information in India is the right of every Indian citizen to have, and we have made several suggestions by which the IPO can move towards complying with our constitutional right to information.</p>
<p style="text-align: justify; "><span style="text-decoration: underline;">Specific themes:</span> Drawing from law, scholarship and practice over the last 14 years of Indian patent law, we strongly urge the IPO to consider these very specific suggestions on having their work comply with the spirit and letter of Indian patent law.</p>
<p style="text-align: justify; "><b>Focus on Biologics:</b> Biologics are a relatively new category of therapy that have quickly become the world’s most expensive medicines emerging as critical therapies in areas like cancer. 7 out of 10 of the world’s best-selling medicines are biologics, and they will play only an increasingly important part in public health in India. Therefore, identifying, understanding and examining patent applications on biologics is of crucial importance to Indian citizens. The IPO would benefit from identifying biologics as a critical category; providing them their distinct field of invention; as well as developing guidelines and practices for evaluating biologics, along with other frontier technology that emerges.</p>
<p style="text-align: justify; "><b>Expedited examination:</b> Since 2016, expedited examination of patents has been the law. More recently, there are reports that the IPO is considering PPH partnerships with some rich country economies such as Japan. This is unwise, especially since even in the extended examination currently underway, the IPO has faced several challenges. We strongly suggest that the IPO needs to evidence the ability to manage the ordinary processes in place with accuracy and compliance with Indian law, before attempting to expedite the said processes, especially since the non-functioning of the patents side of the Intellectual Property Appellate Board (IPAB) has meant that India has not had a corrective mechanism for any incorrect grants that may have been made at the IPO since May 2016.</p>
<p style="text-align: justify; "><b>Check exceptions to patentability first:</b> The law, as has evolved in the Novartis Case in the Supreme Court, and the Roche vs Cipla case before the Delhi High Court, clearly points towards applying all exceptions to patentability under Sections 3 & 4 of the Indian Patents Act, first, before applying the test of patentability under Section 2 (1)(j). Such a procedure would make the work of the IPO more efficient, as well as fair.</p>
<p style="text-align: justify; "><b>Making anti-evergreening provisions work:</b> The Manual currently does not capture the guidelines explicitly laid out in the Indian Supreme Court’s judgment in the Novartis case. Specific principles relating to how to apply Section 3(d) were laid out in the judgment which have no reflection in the Manual. Like with Section 3(d), applicants also routinely circumvent other anti-evergreening provisions in Indian law, such as Section 3(e) and 3(i). Sometimes, these provisions are circumvented alone; other times, when combined, applicants take advantage of the confusion and adduce evidence on one ground, and then use that as a basis to circumvent the other grounds. To apply anti-evergreening provisions in Indian patent law efficiently and fairly, we suggest an anti-</p>
<p style="text-align: justify; ">evergreening checklist that will facilitate this process, and which we recommend be an official part of the examiner’s report, both within the process and as a reported output.</p>
<p style="text-align: justify; "><b>Computer related inventions:</b> The Manual currently does not adequately regulate Computer Related Inventions (CRIs). We suggest the introduction of a 3-step test to comprehensively regulate the patentability of mathematical methods, business methods, computer programmes and algorithms as laid down in the Indian Patents Act. Furthermore, we suggest ways in which the law can be applied more carefully within the Manual to detect camouflaging of claims, with an intent to confuse the IPO and Indian patent examiners, especially when conjoined to computer technology, by noting that (1) mathematical methods may sometimes be claimed as “technological development”, (2) that business methods must be evaluated as such, regardless of their application through computers, computer programmes, computer networks or other programmable apparatus, and that (3) that the scope of algorithms needs to be extended to any invention where the function claimed to be performed can only be carried out by means of a computer programme.</p>
<p style="text-align: justify; ">Finally, while the nature of our comments and suggestions are deep and extensive, we are aware that we have also asked for the system to be evaluated in full, rather than in parts. As such, the Indian Patent ecosystem is large and complex, and the IPO has been engaged with setting the Patent Rules (under finalization), the Patent Office Manual (the subject of our commentary in this communication) as well as the Examining Guidelines (which we recommend move from being arbitrarily categorized and extended to becoming a formal part of the Patent Office Manual).</p>
<p style="text-align: justify; ">In order to comprehensively react to changes to the Indian Patent ecosystem, we require the opportunity to comment comprehensively on a range of inter-linked proposals.</p>
<p style="text-align: justify; ">In this spirit, we hope you will allow us – as civil society – to react, once more, to the Patent Rules (as connected to the Patent Office Manual) as well as each of the Examining Guidelines (old and new, i.e. including those intended such as for biologics), in the interests of fairness and transparency. We look forward to assisting you at every step of this process.</p>
<p style="text-align: justify; ">Thank you for your time. We trust that, as civil society researchers, activists and academics, who have devoted a considerable number of years towards the research of intellectual property, and the protection of public interests and human rights in India, our submission will be considered seriously and acted upon. We remain, of course, at your disposal, should you or your office have any questions – which we will gladly answer.</p>
<p style="text-align: justify; ">Sincerely,</p>
<p style="text-align: justify; ">Achal Prabhala, Feroz Ali, Ramya Sheshadri, Roshan John and Anubha Sinha</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/comments-and-suggestions-to-the-draft-patent-manual-march-2019'>http://editors.cis-india.org/a2k/blogs/comments-and-suggestions-to-the-draft-patent-manual-march-2019</a>
</p>
No publisherAchal Prabhala, Feroz Ali, Ramya Sheshadri, Roshan John and Anubha SinhaPatentsAccess to Knowledge2019-04-05T02:15:07ZBlog EntryCIS' Submission on Statement of Working of Patents
http://editors.cis-india.org/a2k/blogs/cis-submission-on-statement-of-working-of-patents
<b>The Centre for Internet & Society (CIS) made a submission to the Indian Patent Office on the issue of Statement of Working as per Form 27 under the Patents Act, 1970. </b>
<p style="text-align: justify; ">Select stakeholders were invited to the consultation meeting held on April 6, 2018. Anubha Sinha attended it along with a few other public-spirited stakeholders. She made a statement stressing on the requirement of the patent system to serve the welfare-purpose and not create mere non-working/ blocking monopolies; and that the argument of representatives of patentees about non-working of patents being the existing norm, and that they cannot be questioned about this, is absolutely against the central tenets of patent law. <span>All written submissions can be </span><a class="external-link" href="http://www.ipindia.nic.in/newsdetail.htm?402">accessed here</a><span>. </span></p>
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<p style="text-align: justify; "><strong>Centre for Internet and Society - India’s (CIS) submission to the Controller General of Patents, Designs and Trademarks (CGPDTM) pertaining to Stakeholders Meeting regarding issues related to Working of patents under the Patents Act, 1970</strong></p>
<ol>
<li style="text-align: justify; ">As the CGPDTM is aware, the Indian mobile device manufacturing industry is mired in issues related to licensing of standard essential patents (SEPs). Disputes have resulted in imposition of heavy interim royalty rates on Indian manufacturers, payable to foreign SEP holders. Section 146 and Rule 131 of the Patents Act, 1970 mandate patentees to provide information on working of patents, which is crucial for willing licensees to access patent working information in a timely manner. This requirement, that the details of patent working be disclosed by patentees supports several policy goals, firstly, of making the Indian population benefit from commercial use of the invention; secondly, prevents patentees from creating blocking monopolies – from obtaining and maintaining patents for the purpose of blocking others from developing technologies in the vicinity of the patented inventions<a name="_ednref1"></a><span style="text-align: justify; ">; and thirdly, by showing that reasonable requirements of the public are met (or not), directly impacts the implementation of the compulsory licensing scheme of the Patents Act, 1970. </span></li>
<li style="text-align: justify; ">We note that in 2009, 2013 and 2015 the CGPDTM issued public notices calling on patent owners to comply with their obligations to file statements of working on Form 27. Further, on February 12, 2013, the Indian Patent Office (IPO) announced plans to make Form 27 submissions for the year 2012 available to the public via the IPO website. However, these measures have not yielded any significant progress, as patentees and licensees continue to not comply or defectively comply with the statutory requirements.</li>
<li style="text-align: justify; ">CIS’ empirical research on ICT innovations<a name="_ednref2"></a><span style="text-align: justify; "> reveals that there are serious lapses as far as compliance and enforcement of statutory provisions mandating filing of Form 27 are concerned. In the past year, we studied data available from 2009- 2016 for the mobile device sector, and could only identify and access 4,916 valid Forms 27, corresponding to 3,126 mobile device patents, leaving 1,186 Indian patents for which a Form 27 could have been filed, but was not found.</span><a name="_ednref3"></a><span style="text-align: justify; "> For a surprising number of Form 27s (3%) the working status of the relevant patent was not even designated.<br /><br /></span>Even among the Form 27s that had been obtained, almost none contained useful information regarding the working of the subject patents or fully complying with the informational requirements of the Indian Patent Rules. Many patentees simply omitted required descriptive information from their forms without any explanation.<a name="_ednref4"></a><br /><br />Via our research we also gathered complaints raised by patentees and industry observers regarding the structure of the Form 27 requirement itself. For example, patents covering complex, multi-component products that embody dozens of technical standards and thousands of patents may not necessarily be amenable to the individual-level data requested by Form 27.<br /><br />Thus, our findings support the arguments and findings made by the petitioners in the ongoing matter of <em>Shamnad Basheer v. Union of India and Ors.</em><a name="_ednref5"></a></li>
<li style="text-align: justify; ">Regardless, we submit that these technical difficulties should not hinder the critical statutory requirement placed on patent holders to diligently comply with Form 27 compliance. In the context of licensing of SEPs, several stakeholders recently suggested solutions as revealed from the submissions made to the TRAI Consultation on Promoting Local Telecom Manufacturing<a name="_ednref6"></a><span>:<br /><br /></span> Two industry associations, namely Telecom Equipment Manufacturers Association of India (TEMA) and Telecom Equipment & Services Export Promotion Council (TEPC) and a telecommunication enabler Vihan Network Limited recommended that a modified and longer version of Form 27 (Form 27S) may be designed for SEP holders that should apply right at the filing stage. Section 159 of the Patent Act, 1970 empowers the central government to make such modifications to the form, as necessary.<a name="_ednref7"></a><br /><br />Further, Prof. T Ramakrishna (MHRD Chair on Intellectual Property Rights) at NLSIU, specifically recommended that Form 27 may be amended to include a new column, which may require the patent holder to declare if their patent forms a part of any standard and in case of affirmative answer – the name of the Standard Setting Organisation and corresponding standard of which it is a part.<br /><br />We recommend that the form may be amended to make it more comprehensive and suitable for obtaining necessary information. The same information should be made publicly accessible, in order to satisfy the Indian citizen that the patent is being properly worked.</li>
<li style="text-align: justify; ">Further, we would like to draw attention to our findings on deficient technical capabilities of the Indian Patent Office’s online Form 27 repository<a name="_ednref8"></a><span>:<br /></span>Some PDFs of the forms comprise scanned image files without OCR of the text. This makes them inaccessible to the visually impaired, and prevents search and discoverability of their content. This also makes them less usable by preventing copying and selection of text.<br /><br />In some cases, it was difficult to identify which one in the list of documents associated with a patent is Form 27, because of obscure filenames.<br /><br />For example, for Patent Number 262228, Form 27 was named 68.262228.pdf, as found on IPAIRS.<br /><br />For Patent number 260603, the filename for Form 27 was "ipindiaonline.gov.in_epatentfiling_online_frmPreview.asp.pdf" on IPAIRS.<br /><br />Inconsistency in search results found on IPAIRS. Searching for the peripheral documents of the patents, returned the results, "No PDF found" for one full week. The next week, the documents started showing. Some searches returned results for an entirely different patent number.<br /><br />Sometimes, Form 27 found on InPASS was not found on IPAIRS and vice versa.<br /><br />Runtime errors occur due to browser caching. IPAIRS returned either a 404 error or Connection Time Out ("site is taking too long to respond") <a href="http://ipindiaonline.gov.in/patentsearch/search/index.aspx">http://ipindiaonline.gov.in/patentsearch/search/index.aspx</a><span>. In our opinion, it could be redirected to InPASS as it uses the same search engine as InPASS. Further, </span><a href="http://ipindia.nic.in/patsea.htm">http://ipindia.nic.in/patsea.htm</a><span> returned a 404 error.</span></li>
<li style="text-align: justify; ">We are thankful to the Indian Patent Office for the opportunity to make these submissions. It would be our pleasure and privilege to discuss these submissions and recommendations in details at the Stakeholders’ Meeting on 21 March, 2018.</li>
</ol>
<p>On behalf of the Centre for Internet and Society, March 16, 2018<br /><span>Anubha Sinha, </span><a class="mail-link" href="mailto:anubha@cis-india.org">anubha@cis-india.org</a></p>
<p><img src="http://editors.cis-india.org/home-images/copy2_of_Pic1.jpg" alt="Pic 1" class="image-inline" title="Pic 1" /></p>
<p><img src="http://editors.cis-india.org/home-images/copy_of_Pic2.jpg" alt="Pic 2" class="image-inline" title="Pic 2" /></p>
<ol> </ol>
<hr />
<p><a name="_edn1"></a><span> See Trimble, Markela, <em>Patent Working Requirements: Historical and Comparative Perspectives </em>(2016). Available at </span><a href="http://www.law.uci.edu/lawreview/vol6/no3/Trimble.pdf">http://www.law.uci.edu/lawreview/vol6/no3/Trimble.pdf</a></p>
<p><a name="_edn2"></a><span> See Contreras, Jorge L. and Lakshané, Rohini and Lewis, Paxton<em>, Patent Working Requirements and Complex Products</em> (October 1, 2017). NYU Journal of Intellectual Property & Entertainment Law; Available at SSRN: </span><a href="https://ssrn.com/abstract=3004283"><span>https://ssrn.com/abstract=3004283</span></a></p>
<p><a name="_edn3"></a><span> Supra note (ii).</span></p>
<p><a name="_edn4"></a><span> Refer to Appendix for a breakdown of compliance of Form 27 by patent holders in the mobile device sector.</span></p>
<p><a name="_edn5"></a><span> See Shamnad Basheer, <em>Making Patents Work: Of IP Duties and Deficient Disclosures</em>, 7 QUEEN MARY J. INTELL. PROP. 3, 6-17 (2017). </span></p>
<p><span>Also, see </span><a href="https://spicyip.com/shamnad-basheer-v-union-of-india-ors"><span>https://spicyip.com/shamnad-basheer-v-union-of-india-ors</span></a></p>
<p><a name="_edn6"></a><span> See TRAI’s Consultation Paper on Promoting Local Telecom Equipment Manufacturing dated 18.09.2017 and the responses, available here: </span><a href="http://trai.gov.in/consultation-paper-promoting-local-telecom-equipment-manufacturing?page=2"><span>http://trai.gov.in/consultation-paper-promoting-local-telecom-equipment-manufacturing?page=2</span></a></p>
<p><a name="_edn7"></a><span> Section 159 of the Patent Act, 1970 empowers the central government to make rules. Accordingly, the Rule 131 of the Patents Rules, 2003 prescribes Form 27 as the manner in which section 146(2) of the Act is to be implemented.</span></p>
<p><a name="_edn8"></a><span> An email by Rohini Lakshane (CIS) compiling these issues was sent to Dr. K.S. Kardam (Senior Joint Controller of Patents and Designs - Indian Patent Office) on 09.09.2017. </span></p>
<hr />
<p style="text-align: justify; ">Click to download the submission by CIS made on March 16, 2018 <a class="external-link" href="http://cis-india.org/a2k/files/cis-submission-on-patents-act">here</a>.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/cis-submission-on-statement-of-working-of-patents'>http://editors.cis-india.org/a2k/blogs/cis-submission-on-statement-of-working-of-patents</a>
</p>
No publishersinhaPatentsAccess to Knowledge2018-04-21T15:32:00ZBlog EntryCIS' Submission to DIPP and CGPDTM at meeting with IP Stakeholders
http://editors.cis-india.org/a2k/blogs/cis-submissions-to-dipp-and-cgptdm-at-meeting-with-ip-stakeholders
<b>The Office of the Controller General of Patents, Designs and Trademarks held a meeting with IP stakeholders on December 7, 2017, chaired by the Secretary, DIPP, to take suggestions on improving procedures and functioning of the Office. Anubha Sinha attended the meeting and requested the DIPP to improve compliance of uploading Form 27s by patentees and ensure proper enforcement of related provisions within the Indian Patent Act, 1970. Additionally, we sent a detailed submission to the Office, drawing from our recent research. Thanks to Rohini Lakshane and Aman Goyal for their inputs. </b>
<h3 align="center" style="text-align: justify;"><strong>Submission to the Department of Industrial Planning and
Promotion (DIPP) at <a class="external-link" href="http://http://www.ipindia.nic.in/writereaddata/Portal/News/374_1_Meeting_Circular_for_Stakeholders_Meeting_at_Udyog_Bhawan_on_7-12-2017.pdf">Meeting with IP Stakeholders on 07 December, 2017</a></strong></h3>
<p> </p>
<p style="text-align: justify;" class="MsoListParagraphCxSpFirst">1. As the DIPP is aware, the Indian
mobile device manufacturing industry is mired in issues related to licensing of
standard essential patents (SEPs). Disputes have resulted in imposition of
heavy interim royalty rates on Indian manufacturers, payable to foreign SEP
holders. Section 146(2) of the Patent Act, 1970 mandates patentees to provide
information on working of patents, which is crucial for willing licensees to access patent working information in a timely manner.
This requirement, that the details of patent working be disclosed by patentees
supports the goal of making unworked patents available for compulsory licensing
in India, both to promote economic development and public access to patented
products. Penalties for failing to furnish such information (via Form 27) are
steep, potentially resulting in fines or imprisonment.</p>
<p style="text-align: justify;" class="MsoListParagraphCxSpMiddle">2. We note that in 2009, 2013 and 2015
the Controller issued public notices calling on patent owners to comply with
their obligations to file statements of working on Form 27. Further, on
February 12, 2013, the Indian Patent Office (IPO) announced plans to make Form
27 submissions for the year 2012 available to the public via the IPO website.</p>
<p style="text-align: justify;" class="MsoListParagraphCxSpMiddle">3. We commend the efforts of the IPO, however,
our empirical research on ICT innovations<a name="_ednref1" href="#_edn1"><span class="MsoEndnoteReference"><span class="MsoEndnoteReference">[i]</span></span></a> as well as by Prof. Shamnad
Basheer (on ICT and pharmaceutical sector)<a name="_ednref2" href="#_edn2"><span class="MsoEndnoteReference"><span class="MsoEndnoteReference">[ii]</span></span></a> reveals that there are serious
lapses as far as compliance and enforcement of statutory provisions mandating
filing of Form 27 are concerned.</p>
<p style="text-align: justify;" class="MsoListParagraphCxSpLast">4. In the past year, we studied data
available from 2009- 2016 for the mobile device sector, and could only identify
and access 4,916 valid Forms 27, corresponding to 3,126 mobile device patents,
leaving 1,186 Indian patents for which a
Form 27 could have been filed, but was not found.<a name="_ednref3" href="#_edn3"><span class="MsoEndnoteReference"><span class="MsoEndnoteReference">[iii]</span></span></a> For a surprising number of Form 27s (3%) the
working status of the relevant patent was not designated.</p>
<p style="text-align: justify;">Even among the Form 27s that had been
obtained, almost none contained useful information regarding the working of the
subject patents or fully complying with the informational requirements of the
Indian Patent Rules. Many patentees simply omitted required descriptive
information from their forms without any explanation.<a name="_ednref4" href="#_edn4"><span class="MsoEndnoteReference"><span class="MsoEndnoteReference">[iv]</span></span></a></p>
<p style="text-align: justify;">Via our research we also gathered
complaints raised by patentees and industry observers regarding the structure
of the Form 27 requirement itself. For example, patents covering complex,
multi-component products that embody dozens of technical standards and
thousands of patents may not necessarily be amenable to the individual-level
data requested by Form 27.</p>
<p style="text-align: justify;" class="MsoListParagraphCxSpFirst">5. Regardless, we submit that these
technical difficulties should not hinder the critical statutory requirement
placed on patent holders to diligently comply with Form 27 compliance. In the
context of licensing of SEPs, several stakeholders recently suggested solutions
as revealed from our study of the submissions made to the TRAI Consultation on
Promoting Local Telecom Manufacturing<a name="_ednref5" href="#_edn5"><span class="MsoEndnoteReference"><span class="MsoEndnoteReference">[v]</span></span></a>:</p>
<ul><li>Two
industry associations, namely Telecom Equipment Manufacturers Association of
India (TEMA) and Telecom Equipment & Services Export Promotion Council (TEPC) and a telecommunication
enabler Vihan Network Limited recommended that a modified and longer version of Form 27 (Form 27S) may be designed for SEP
holders that should apply right at the filing stage. Section 159 of the
Patent Act, 1970 empowers the central government to make such modifications to the form, as necessary.<a name="_ednref6" href="#_edn6"><span class="MsoEndnoteReference"><span class="MsoEndnoteReference">[vi]</span></span></a></li><li>Further,
Prof. T Ramakrishna (MHRD Chair on Intellectual Property Rights) at NLSIU, specifically
recommended that Form 27 may be amended
to include a new column, which may require the patent holder to declare
if their patent forms a part of any standard and in case of affirmative answer
– the name of the Standard Setting Organisation and corresponding standard of
which it is a part.</li></ul>
<p style="text-align: justify;" class="MsoListParagraphCxSpMiddle"> 6. Further, we would like to draw
attention to how our study was limited by the technical capabilities of the
Indian Patent Office’s online Form 27 repository, such as<a name="_ednref7" href="#_edn7"><span class="MsoEndnoteReference"><span class="MsoEndnoteReference">[vii]</span></span></a>:</p>
<ul><li>IPAIRS
returned either a 404 error or Connection Time Out ("site is taking too
long to respond") <a href="http://ipindiaonline.gov.in/patentsearch/search/index.aspx">http://ipindiaonline.gov.in/patentsearch/search/index.aspx</a>. In our opinion, it could be
redirected to InPASS as it uses the same search engine as InPASS. Further, <a href="http://ipindia.nic.in/patsea.htm">http://ipindia.nic.in/patsea.htm</a> returned a 404 error.</li><li>Some
PDFs of the forms comprise scanned image files without OCR of the text. This
makes them inaccessible to the visually impaired, and prevents search and
discoverability of their content. This also makes them less usable by
preventing copying and selection of text.</li><li>In some cases, it was difficult to identify
which one in the list of documents associated with a patent is Form 27, because
of obscure filenames.</li></ul>
<ul>
<ul><li>
<p>For
example, for Patent Number 262228, Form 27 was named 68.262228.pdf, as found on
IPAIRS.</p>
</li><li>
<p>For
Patent number 260603, the filename for Form 27 was "ipindiaonline.gov.in_epatentfiling_online_frmPreview.asp.pdf"
on IPAIRS.</p>
</li></ul>
</ul>
<ul><li>Inconsistency in search results found on
IPAIRS. Searching for the peripheral documents of the patents, returned the
results, "No PDF found" for one full week. The next week, the
documents started showing. Some searches returned results for an entirely
different patent number.</li><li>Sometimes,
Form 27 found on InPASS was not found on IPAIRS and vice versa.</li><li>Runtime
errors occur due to browser caching.</li></ul>
<p style="text-align: justify;" class="MsoListParagraphCxSpLast">7. We are thankful to DIPP for the
opportunity to make these submissions. It would be our pleasure and privilege
to discuss these submissions and recommendations in details with the DIPP. We
also offer our assistance on other matters aimed at developing a suitable
policy framework for SEPs and FRAND in India, and, working towards sustained
innovation, manufacture and availability of mobile technologies in India.<br /></p>
<p style="text-align: justify;" class="MsoListParagraphCxSpLast"></p>
<p align="center" style="text-align: center;"><strong>Annexure</strong></p>
<p align="center" style="text-align: center;">Complete Data of CIS’
Study<a name="_ednref1" href="#_edn1"><span class="MsoEndnoteReference"><span class="MsoEndnoteReference">[i]</span></span></a></p>
<p align="center" style="text-align: center;"><img src="http://editors.cis-india.org/Screenshot47.png/image_preview" alt="Data" class="image-inline image-inline" title="Data" /> </p>
<p align="left" style="text-align: center;"><img src="http://editors.cis-india.org/copy_of_Screenshot46.png/image_preview" alt="Data2" class="image-inline" title="Data2" /></p>
<p align="center" style="text-align: center;"> </p>
<p> </p>
<div><br />
<hr align="left" size="1" width="33%" />
<div id="edn1">
<p class="MsoEndnoteText"><a name="_edn1" href="#_ednref1"><span class="MsoEndnoteReference"><span class="MsoEndnoteReference">[i]</span></span></a> See Contreras, Jorge L. and Lakshané,
Rohini and Lewis, Paxton<em>, Patent Working
Requirements and Complex Products</em> (October 1, 2017). NYU Journal of
Intellectual Property & Entertainment Law; Available at SSRN: <a href="https://ssrn.com/abstract=3004283" target="_blank">https://ssrn.com/abstract=3004283</a></p>
</div>
<div id="edn2">
<p class="MsoEndnoteText"><a name="_edn2" href="#_ednref2"><span class="MsoEndnoteReference"><span class="MsoEndnoteReference">[ii]</span></span></a> See Shamnad Basheer, <em>Making
Patents Work: Of IP Duties and Deficient Disclosures</em>, 7 QUEEN MARY J.
INTELL. PROP. 3, 16-17 (2017).</p>
</div>
<div id="edn3">
<p class="MsoEndnoteText"><a name="_edn3" href="#_ednref3"><span class="MsoEndnoteReference"><span class="MsoEndnoteReference">[iii]</span></span></a> Supra note 1.</p>
</div>
<div id="edn4">
<p class="MsoEndnoteText"><a name="_edn4" href="#_ednref4"><span class="MsoEndnoteReference"><span class="MsoEndnoteReference">[iv]</span></span></a> Refer to Appendix for a breakdown of
compliance of Form 27 by patent holders in the mobile device sector.</p>
</div>
<div id="edn5">
<p class="MsoEndnoteText"><a name="_edn5" href="#_ednref5"><span class="MsoEndnoteReference"><span class="MsoEndnoteReference">[v]</span></span></a> See TRAI’s Consultation Paper on
Promoting Local Telecom Equipment Manufacturing dated 18.09.2017 and the
responses, available here: <a href="http://trai.gov.in/consultation-paper-promoting-local-telecom-equipment-manufacturing?page=2">http://trai.gov.in/consultation-paper-promoting-local-telecom-equipment-manufacturing?page=2</a></p>
</div>
<div id="edn6">
<p class="MsoEndnoteText"><a name="_edn6" href="#_ednref6"><span class="MsoEndnoteReference"><span class="MsoEndnoteReference">[vi]</span></span></a> Section 159 of the Patent Act, 1970
empowers the central government to make rules. Accordingly, the Rule 131 of the
Patents Rules, 2003 prescribes Form 27 as the manner in which section 146(2) of
the Act is to be implemented.</p>
</div>
<div id="edn7">
<p class="MsoEndnoteText"><a name="_edn7" href="#_ednref7"><span class="MsoEndnoteReference"><span class="MsoEndnoteReference">[vii]</span></span></a> An email by Rohini Lakshane (CIS)
compiling these issues was sent to Dr. K.S. Kardam (Senior Joint Controller of
Patents and Designs - Indian Patent Office) on 09.09.2017.</p>
<p class="MsoEndnoteText"><br />[viii] See Contreras, Jorge L. and Lakshané,
Rohini and Lewis, Paxton<em>, Patent Working
Requirements and Complex Products</em> (October 1, 2017). NYU Journal of
Intellectual Property & Entertainment Law; Available at SSRN: <a href="https://ssrn.com/abstract=3004283" target="_blank">https://ssrn.com/abstract=3004283</a></p>
</div>
</div>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/cis-submissions-to-dipp-and-cgptdm-at-meeting-with-ip-stakeholders'>http://editors.cis-india.org/a2k/blogs/cis-submissions-to-dipp-and-cgptdm-at-meeting-with-ip-stakeholders</a>
</p>
No publishersinhaDIPPPatentsAccess to KnowledgePervasive Technologies2017-12-13T14:31:54ZBlog EntryPatent Working Requirements and Complex Products: An Empirical Assessment of India's Form 27 Practice and Compliance
http://editors.cis-india.org/a2k/blogs/patent-working-requirements-and-complex-products-an-empirical-assessment-of-indias-form-27-practice-and-compliance
<b>India requires every patentee to file an annual statement, also known as “Form 27”, describing the working of each of its issued Indian patents. If a patent is not locally worked within three years of its issuance, any person may request a compulsory license, and if the patent is not adequately worked within two years of the grant of such a compulsory license, it may be revoked. The research paper on Form 27 practices and compliance by patentees authored by Prof Jorge L. Contreras, University of Utah, and Rohini Lakshané, Centre for Internet and Society has been accepted for publication in the NYU Journal of Intellectual Property and Entertainment Law.</b>
<p>The research paper by Prof Jorge L. Contreras, University of Utah, and Rohini Lakshané, Centre for Internet and Society was <a class="external-link" href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3004283">published on SSRN</a> on July 17, 2017. The paper has been accepted for publication in the NYU Journal of Intellectual Property and Entertainment Law.</p>
<hr />
<p>The potency of India’s patent working requirement was demonstrated by the 2012 issuance of a compulsory license for Bayer’s patented drug Nexavar. In order to provide the public with information about patent working, India requires every patentee to file an annual statement on “Form 27” describing the working of each of its issued Indian patents.</p>
<p style="text-align: justify; ">We conducted the first comprehensive and systematic study of all Forms 27 filed with respect to a key industry sector: mobile devices. We obtained from public online records 4,916 valid Forms 27, corresponding to 3,126 mobile device patents. These represented only 20.1% of all Forms 27 that should have been filed and corresponded to only 72.5% of all mobile device patents for which Forms 27 should have been filed. Forms 27 were missing for almost all patentees, and even among Forms 27 that were obtained, almost none contained useful information regarding the working of the subject patents or fully complying with the informational requirements of the Indian Patent Rules. Patentees adopted drastically different positions regarding the definition of patent working, while several significant patentees claimed that they or their patent portfolios were simply too large to enable the reporting of required information. Many patentees simply omitted required descriptive information from their Forms without explanation.</p>
<p style="text-align: justify; ">The Indian government has made little or no effort to monitor or police compliance with Form 27 filings, undoubtedly leading to significant non-compliance. However, some of the complaints raised by patentees and industry observers may have merit. Namely, that patents covering complex, multi-component products that embody dozens of technical standards and thousands of patents are not necessarily amenable to the individual-level data requested by Form 27. We hope that this study will contribute to the ongoing conversation in India regarding the most appropriate means for collecting and disseminating information regarding the working of patents.</p>
<p style="text-align: justify; "><b><a class="external-link" href="http://cis-india.org/a2k/files/patent-working-requirements-and-complex-products">Download the Paper</a></b></p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/patent-working-requirements-and-complex-products-an-empirical-assessment-of-indias-form-27-practice-and-compliance'>http://editors.cis-india.org/a2k/blogs/patent-working-requirements-and-complex-products-an-empirical-assessment-of-indias-form-27-practice-and-compliance</a>
</p>
No publisherrohiniPatentsAccess to KnowledgePervasive Technologies2017-10-13T04:32:49ZBlog EntryIndian Patent Office updates Guidelines for Examination of Computer Related Inventions, yet again
http://editors.cis-india.org/a2k/blogs/indian-patent-office-issues-updated-guidelines-for-computer-related-inventions-yet-again
<b>By discarding a test brought into force last year, the updated Guidelines take no concrete position to help clarify the ambiguity around patentability of software inventions in India.</b>
<p></p>
<p></p>
<p>The Office of the Controller General of Patents, Designs and
Trademarks (CGPDTM) issued new <a href="http://www.ipindia.nic.in/writereaddata/Portal/Images/pdf/Revised__Guidelines_for_Examination_of_Computer-related_Inventions_CRI__.pdf">Guidelines
on Examination of Computer Related Inventions (CRIs</a>) on 30<sup>th</sup> June,
making it easier to obtain a software patent in India (as compared to standards set in the 2016 Guidelines).</p>
<h2>New Changes</h2>
<p>The most important change is <a href="https://cis-india.org/a2k/blogs/the-new-guidelines-for-computer-related-inventions-are-a-big-win-for-foss-in-india">removal
of a test notified in 2016</a> which made CRIs patent eligible provided there
was a novel hardware component in the patent application. Accordingly, references
in the guidelines which aided interpretation of the 2016 test have been
deleted. Additionally, the new guidelines exclude the layout of integrated
circuits as patentable subject matter in CRIs.</p>
<p>The CGPDTM has refrained from prescribing a new test to
determine patentability of CRIs.</p>
<p>In the absence of specific guidance, it is likely that examiners will heavily rely on section 3(k) of the Patents Act, 1970, the Manual of Patent Practice and Procedure, and the views expressed by the <a class="external-link" href="http://164.100.47.5/webcom/MoreInfo/PatentReport.pdf">Joint Parliamentary Committee</a> in respect of "per se":</p>
<p> <em> "In the new proposed clause (k) the words ''per se" have been
inserted. This change has been proposed because sometimes the computer
programme may include certain other things, <strong>ancillary thereto or developed thereon.</strong> The intention here is not to reject them for grant of patent if they are inventions. However, the <strong>computer programmes as such</strong> are not intended to be granted patent. This amendment has been proposed to clarify the purpose." </em></p>
<h2>Policymaking re Guidelines on Examination
of CRIs</h2>
<p>After years of deliberation, the Indian Patent Office <a class="external-link" href="https://cis-india.org/a2k/blogs/comments-on-the-guidelines-for-examination-of-computer-related-inventions-cris">first proposed
a test in 2015</a> which was met with disapproval as it lowered the bar for
patentability of CRIs. After a stakeholder consultation, the IPO revised the test
in 2016, raising the bar of patent eligibility of CRIs, which was favorable to the
growth of small and medium enterprises in the Indian IT industry. The present 2017
guidelines are a result of streamlining stakeholder consultations conducted in
response to the 2016 guidelines as per a <a href="http://www.ipindia.nic.in/writereaddata/Portal/Images/pdf/Office_Order_No_36_of_2017_for_Revised__Guidelines_for_Examination_of_CRIs.pdf">circular</a>
by the IPO.</p>
<p>In the following table, I list the substantive changes made
in the new guidelines (in comparison to the 2016 Guidelines) and make some
preliminary remarks:</p>
<p></p>
<p></p>
<table class="grid">
<tbody>
<tr>
<td><strong>Type of Change</strong></td>
<td><strong>Change</strong></td>
<td><strong>Remarks</strong></td>
</tr>
<tr>
<td>Inserted in 2.1, <strong>Legal Provisions relating to CRIs</strong>
and
Deleted in 4.1, <strong>Novelty</strong></td>
<td>Section 2 (1)(l) defines “new invention” in The Indian Patents Act,
1970 as follows:
"New invention" means any invention or technology which has
not been anticipated by publication in any document or used in the country or elsewhere in the world before the date
of filing of patent application with complete specification, i.e. the subject
matter has not fallen in public domain or that it does not form part of the
state of the art</td>
<td><br /></td>
</tr>
<tr>
<td><br /><br />Added in 2.2, <strong>List of explicit exclusions from patentability under
section 3 for CRIs</strong></td>
<td>Section 3(o) topography of integrated circuits</td>
<td>Contemplates layout of integrated circuits as subject matter relating
to CRIs</td>
</tr>
<tr>
<td>Parts deleted in 4.3, <strong>Industrial Applicability</strong></td>
<td><br /><br />Industry herein is to be understood broadly having any useful and
practical activity while excluding intellectual or aesthetic activity.
Claims relating to “Method of playing games” and “computer
programming languages” are not considered to be industrially applicable. A
method for effecting introductions with a view to making friends is not
industrially applicable even though it could be carried out by a commercial
enterprise.
The determination of industrial applicability in case of CRIs is very
crucial since applications relating to CRIs may contain only abstract
theories, lacking in industrial application.</td>
<td>Only an explanation of industrial applicability in the general
context of patent law remains.</td>
</tr>
<tr>
<td>Deleted in 4.4, <strong>Sufficiency of Disclosure </strong>(strikethrough indicates
deleted part)</td>
<td><br /><br />4.4.1 Fully and particularly (What):
1. If the patent application
relates to apparatus/system/device i.e hardware based inventions, each and
every feature of the invention shall be described with suitable illustrative
drawings. <s>If these system/device/apparatus claims are worded in such a way
that they merely and only comprise of a memory which stores instructions to
execute the previously claimed method and a processor to execute these
instructions, then this set of claims claiming a system/device /apparatus may
be deemed as conventional and may not fulfil the eligibility criteria of
patentability. </s>
If, however, the invention relates to ‘method’, the necessary
sequence of steps should clearly be described so as to distinguish the
invention from the prior art with the help of the flowcharts and other
information required to perform the invention together with their modes/means
of implementation.
[…]</td>
<td>Loosened the disclosure requirement</td>
</tr>
<tr>
<td>Deleted in 4.4, <strong>Sufficiency of Disclosure</strong> (strikethrough indicates
deleted part)</td>
<td><br />4.4.4 Form and substance:
[…]
Even when the issue is related to hardware/software relation, <s>(e.g.,
when the claims recite ‘processor is programmed to… or ‘apparatus comprising
a processor and configured / programmed to…..)</s> the expression of the
functionality as a ‘method’, is judged on its substance. It is well established that, in
patentability cases, the focus should be on the underlying substance of the
invention, not the particular form in which it is claimed. The Patents Act
clearly excludes computer programmes per se and the exclusion should not be
allowed to be avoided merely by camouflaging the substance of the claim by
wording <s>(e.g. different subroutines are performed in different physical
locations such as processors will not suffice).</s></td>
<td>Removed illustrations</td>
</tr>
<tr>
<td>Replaced in 4.4, <strong>Sufficiency of Disclosure</strong> (strikethrough indicates
deleted part)</td>
<td><br /><br />4.4.5 Means Plus Function:
<p>Further, if the specification supports <s>implementation</s>
of the invention solely by the computer program then in that case means plus
function claims shall be rejected as these means are nothing but computer
programme per se.</p>
<p>Where no structural features of those means are disclosed in
the specification and specification supports <s>implementation</s> of the
invention solely by the software then in that case means in the “means plus
function” claims are nothing but software.</p>
</td>
<td> Replaced both struck out words by<em> performing the invention</em><br /></td>
</tr>
<tr>
<td><br /><br />Added in 4.5, <strong>Determination of excluded subject matter relating to
CRIs</strong></td>
<td><br />[…] Hence, along with determining the merit of invention as envisaged
under Sections 2(1) (j), (ja) and (ac), the examiner should also determine
whether or not they are patentable inventions under Section 3 of the Act.</td>
<td><br /></td>
</tr>
<tr>
<td><br />Parts deleted in 4.5.1. <strong>Claims directed as “Mathematical Method”</strong>:</td>
<td><br />[…]
Some examples which will attract exclusion:
acts of mental skill. e.g. A
method of calculation, formulation of equations, finding square roots, cube
roots and all other methods directly involving mathematical methods like
solving advanced equations of mathematics.
merely manipulates abstract
idea or solves a purely mathematical problem without specifying a practical
application.</td>
<td><br /></td>
</tr>
<tr>
<td>Added in in 4.5.1. <strong>Claims directed as “Mathematical Method”</strong> (emphasis
supplied)</td>
<td><br /><br />4.5.1. Claims directed as “Mathematical Method”:
Mathematical methods are a particular example of the principle that
purely abstract or intellectual methods are not patentable. Mathematical
methods like method of calculation, formulation of equations, finding square
roots, cube roots and all other similar acts of mental skill are therefore,
not patentable. <strong><u>Similarly mere
manipulations of abstract idea or solving purely mathematical
problem/equations without specifying a practical application also attract the
exclusion under this category.</u></strong>
<strong> </strong>
However, mere presence of a mathematical formula in a claim, to
clearly specify the scope of protection being sought in an invention, may not
necessarily render it to be a “mathematical method” claim. <strong><u>Also, such exclusions may not apply to
inventions that include mathematical formulae and resulting in systems for
encoding, reducing noise in communications/ electrical/electronic systems or
encrypting/ decrypting electronic communications</u></strong><u>.</u></td>
<td>Illustrations added to show that CRIs that include mathematical
formulae and result in systems for encoding, reducing noise in
communications/ electrical/electronic systems or encrypting/ decrypting
electronic communications, will not be ineligible merely by virtue of
presence of mathematical formulae. They will not necessarily construe a claim
on mathematical method.</td>
</tr>
<tr>
<td><br /><br />Part deleted in 4.5.4, <strong>Claims directed as “Computer Programme per se”</strong></td>
<td>The computer programme per se is excluded from patentability under
section 3(k) apart from mathematical or business method and algorithm</td>
<td><br /></td>
</tr>
<tr>
<td><br /><br />Inserted in 4.5, <strong>Determination of excluded subject matter relating to
CRIs </strong>(emphasis supplied)</td>
<td>4.5.8. Topography of integrated circuits
The above criterion is to be judged as per the procedures as laid out
in chapter 08.03.05.14 of the Manual</td>
<td>Contemplates layout of integrated circuits as subject matter relating
to CRIs</td>
</tr>
<tr>
<td>Parts deleted in 5, <strong>Tests/Indicators to determine Patentability of
CRIs</strong></td>
<td><br /><br />5. Tests/Indicators to
determine Patentability of CRIs:
Examiners may rely on the following three stage test in examining CRI
applications:
(1) Properly construe the
claim and identify the actual contribution;
(2) If the contribution
lies only in mathematical method, business method or algorithm, deny the
claim;
(3) If the contribution lies
in the field of computer programme, check whether it is claimed in
conjunction with a novel hardware and proceed to other steps to determine
patentability with respect to the invention. The computer programme in itself
is never patentable. If the contribution lies solely in the computer
programme, deny the claim. If the contribution lies in both the computer
programme as well as hardware, proceed to other steps of patentability.</td>
<td>Implication is that this test is no longer in force for examination
of patentability of CRIs</td>
</tr>
<tr>
<td><br /><br />Deleted 6, <strong>Illustrative examples of Claims which are not patentable</strong></td>
<td><em>Refer to 2016 Guidelines</em></td>
<td><br /></td>
</tr>
</tbody>
</table>
<p> Note: This post has been updated to reflect the change in point 4.4.5, which was previously missed by the author.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/indian-patent-office-issues-updated-guidelines-for-computer-related-inventions-yet-again'>http://editors.cis-india.org/a2k/blogs/indian-patent-office-issues-updated-guidelines-for-computer-related-inventions-yet-again</a>
</p>
No publishersinhaIndian Patents Act Section 3(k)PatentsAccess to KnowledgeSoftware Patents2017-07-05T07:42:44ZBlog EntryWorkshop on Innovation, Economic Development and IP in India and China
http://editors.cis-india.org/a2k/news/workshop-on-innovation-economic-development-and-ip-in-india-and-china
<b>Anubha Sinha and Rohini Lakshané presented at the SMU-JINDAL-RENMIN Workshop on “Innovation, Economic Development, and IP in India and China,” co-organised by the Singapore Management University, O.P. Jindal Global University, and Renmin University of China, in Delhi during September 27-28, 2016. Amitabh Kant, Chief Executive Officer, NITI Aayog, delivered the inaugural address at the workshop.</b>
<p> </p>
<p>Workshop Brochure: <a href="http://editors.cis-india.org/a2k/blogs/invitation-workshop-innovation-economic-development-and-ip-in-india-and-china" class="internal-link">Download</a> (PDF)</p>
<hr />
<h4>Anubha Sinha - "Investigating Limits to Innovation and Peer Production in India's Mobile Apps Economy"</h4>
<p>Slides: <a href="http://editors.cis-india.org/a2k/blogs/investigating-limits-to-innovation-and-peer-production-in-indias-mobile-apps-economy" class="internal-link">Download</a> (PDF)</p>
<p><iframe frameborder="0" height="420" marginheight="0" marginwidth="0" scrolling="no" src="http://www.slideshare.net/slideshow/embed_code/key/hBZDkyN9kkgCfM" width="510"> </iframe></p>
<p> </p>
<h4>Rohini Lakshané - "Exploring Open Hardware in Mass Produced Mobile Phones"</h4>
<p>Slides: <a href="http://editors.cis-india.org/a2k/blogs/exploring-open-hardware-in-mass-produced-mobile-phones" class="internal-link">Download</a> (PDF)</p>
<p><iframe frameborder="0" height="420" marginheight="0" marginwidth="0" scrolling="no" src="http://www.slideshare.net/slideshow/embed_code/key/N8TpwEtUAb4hRH" width="510"> </iframe></p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/news/workshop-on-innovation-economic-development-and-ip-in-india-and-china'>http://editors.cis-india.org/a2k/news/workshop-on-innovation-economic-development-and-ip-in-india-and-china</a>
</p>
No publisherAnubha Sinha and Rohini LakshanéPeer ProductionAccess to KnowledgeIntellectual Property RightsOpen HardwareOpen InnovationMobile AppsPatents2016-10-09T04:41:38ZNews Item“Made in India” Innovation Policy
http://editors.cis-india.org/a2k/news/spicy-ip-september-19-2016-prof-colleen-v-chien-and-prof-jorge-l-contreras-made-in-india-innovation-policy
<b>In this post they emphasize upon the need for data-driven IP policy making in India.</b>
<p style="text-align: justify; ">This blog post written by Prof Collen Chien and Prof Contreras, and published this week (September 19, 2016) on <a class="external-link" href="http://spicyip.com/2016/09/made-in-india-innovation-policy.html">SpicyIP</a> mentions CIS' patent landscaping study.</p>
<hr style="text-align: justify; " />
<p style="text-align: justify; ">A few weeks ago we were honored to participate in <a href="http://www.jgu.edu.in/jirico/attachments/Agenda.pdf">Jindal Global Law School’s Conference on “Innovation for Shared Prosperity</a>”. Much of the conversation was centered on the important topic of how intellectual property (IP) policy can best support manufacturing and entrepreneurship initiatives like the “Startup India” and “Make in India”. In turn, we believe it’s also important to think about how best to foster IP policies that are truly “made in India”. In light of India’s history of implementing certain IP policies because it <i>had </i>to, not because it <i>wanted </i>to, for example recent <a href="http://gip-india.in/new-patents-amendment-rules-2016-india/">homegrown commitments</a> to strengthen the patent system by reducing the time to patent are notable.</p>
<p style="text-align: justify; ">The record is already replete with examples of indigenous innovation by Indian policymakers. Whether <a href="http://www.managingip.com/Article/3261987/India-The-implications-for-patent-owners-of-section-3d.html">section 3(d)</a>, <a href="http://ipindia.nic.in/ipr/patent/manual/HTML%20AND%20PDF/Manual%20of%20Patent%20Office%20Practice%20and%20Procedure%20-%20html/Forms/Form-27.pdf">Form 27 patent working disclosures</a>, or the “Middle Path” approach to requiring deposits in standards essential patent disputes – agree or disagree with them, these Indian approaches to innovation policy are<b> <i>themselves</i> </b>innovative.</p>
<p style="text-align: justify; ">But one problem that we have observed is that the data available to develop and evaluate Indian IP policies tends to be thin. With respect to patents, for example, it is hard to access patent records, as there are often long delays before patent applications, patent working disclosures and other documents are uploaded to the Indian Patent Office (IPO) web site, notwithstanding statutory requirements and IPO policies. While there have been some published reports of cases and published decisions (<a href="http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=995994">Mathur 2007</a>, <a href="http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2176263">Ghosh 2012</a>), it is generally hard, as it is in other jurisdictions, to match patent filings to them to court filings, assignment records, citations, prior art and other metrics of interest. This isn’t true just of India but many other countries. But to support world class, data-driven policy making, support for analytical work, combined with data access, is needed. This is particularly important given the demonstrated gap between <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2745435">rules on the books, which may appear harmonized, and rules in practic</a><span style="text-decoration: underline;">e</span>, which are not.</p>
<p style="text-align: justify; ">In developing policy, it is often useful to start with the ultimate policy goal – whether it be <a href="http://economictimes.indiatimes.com/news/economy/indicators/a-look-at-indias-15-place-jump-in-global-innovation-index/articleshow/53852329.cms">further improving the country’s ranking on the Innovation Index </a>or taking a place at the international standard setting table – and then developing data-based metrics to demonstrate progress toward that goal. The assumptions behind conflicting policy positions can then be tested and vetted against actual experience within the Indian setting. It is through these processes that a “made in India” innovation policy will be truly indigenous, reflecting not only political mandates and theories, but the demonstrated experience of India’s technical, business, and legal communities.</p>
<p style="text-align: justify; ">Historically, there have been relatively few empirical studies to support data-based policy making. In the non-exhaustive list below, we highlight several studies and reports (some our own) that demonstrate the usefulness and power of empirical data:</p>
<ul style="text-align: justify; ">
<li>One topic about which there have been an exceptional number of empirical studies is the Indian pharmaceutical sector. Duggan and collaborators (<a href="http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2054361">2012</a>, <a href="http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2505854">2014</a>) studied the relationship between drug prices and pharmaceutical patent issuances in India, and <a href="http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=214635">Lanjouw and Cockburn (2000)</a> and <a href="http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=1885246">Nandkumar and Srikanth (2011)</a> explored the relationship between Indian patent issuance and strength and R&D spending. Recently <a href="http://link.springer.com/article/10.1007/s12116-015-9181-7">Sampat and Shadlen</a> have found that policies to discourage so-called “secondary” drug patents in India and Brazil have had little direct effect.</li>
</ul>
<ul style="text-align: justify; ">
<li>With the initiation by foreign patent holders a few years ago of infringement suits against a variety of domestic Indian and Chinese smartphone manufacturers, many wondered how much of the Indian mobile device patent landscape was already in the hands of foreign companies. <a href="https://faculty.utah.edu/u0989706-JORGE_L_CONTRERAS/biography/index.hml">Contreras</a>, together with <a href="http://cis-india.org/about/people/our-team#rohini">Rohini Lakshané</a> of the <a href="http://cis-india.org">Centre for Internet and Society</a>, <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2756486">conducted a study</a> to find out. Their results were telling: of approximately 23,500 total Indian patents and published patent applications in the mobile device sector, only 50, about 0.00% were owned by Indian companies. It is hoped that this eye-opening result will help mobilize Indian firms and policy makers to address the lack of Indian participation in international technology standardization efforts.</li>
</ul>
<ul style="text-align: justify; ">
<li>WIPO publishes statistics yearly about India’s relative rank with respect to a number of innovation metrics. While many are aware that India ranked 66th in this year’s <a href="http://www.wipo.int/econ_stat/en/economics/gii/">Global Innovation Index</a>, up 15 places from 2015 (Switzerland ranked 1st), WIPO’s <a href="http://www.wipo.int/edocs/pubdocs/en/wipo_pub_941_2015.pdf">2015 IP indicators report </a>contains other findings: that India ranks in the top 15 globally in terms of patent filing activity, that non-residents are using the Indian Patent Office more heavily than are residents (Fig. 2, p. 23) and that recent filings have been dominated by computer technology, organic fine chemistry and pharmaceuticals. Others have relied on WIPO statistics <a href="https://factly.in/india-way-behind-china-in-international-patents/">to compare </a>India’s performance with that of China and other BRIC countries.</li>
</ul>
<p style="text-align: justify; ">India is by nature an innovative nation. Its innovative spirit manifests itself both in terms of technology creation as well as policy development. Nevertheless, without robust, reproducible and broadly accessible data, policy decisions will continue to be based on intuition, guesswork and partisan advocacy by those having the most to gain from the system. We encourage the Indian government and academy to continue to devote resources to develop a robust data culture within the Indian intellectual property community and to make the underlying data as widely available as quickly as possible.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/news/spicy-ip-september-19-2016-prof-colleen-v-chien-and-prof-jorge-l-contreras-made-in-india-innovation-policy'>http://editors.cis-india.org/a2k/news/spicy-ip-september-19-2016-prof-colleen-v-chien-and-prof-jorge-l-contreras-made-in-india-innovation-policy</a>
</p>
No publisherpraskrishnaPatentsAccess to Knowledge2016-09-22T01:15:40ZNews ItemMethodology: Statements of Working (Form 27) of Indian Mobile Device Patents
http://editors.cis-india.org/a2k/blogs/methodology-statements-of-working-form-27-of-indian-mobile-device-patents
<b>In India, if a patent is not locally worked within three years of its issuance, any person may request a compulsory license, and if the patent is not adequately worked within two years of the grant of such a compulsory license, it may be revoked. In order to provide the public with information about patent working, India requires every patentee to file an annual statement on “Form 27” describing the working of each of its issued Indian patents. We conducted the first comprehensive and systematic study of all Forms 27 filed with respect to mobile devices. We tried to empirically establish the extent to which patentees and licensees comply with the statutory requirement to declare information about the working of their patents.
Research assistance was provided by interns Anna Liz Thomas and Nayana Dasgupta.</b>
<p style="text-align: justify; ">The research paper on patent landscape, <a class="external-link" href="https://www.vanderbilt.edu/jotl/wp-content/uploads/sites/78/6.-Contreras-Web.pdf">Patents and Mobile Devices in India: An Empirical Survey</a>, [PDF] was published in the Vanderbilt Journal of Transnational Law (2017).</p>
<p style="text-align: justify; ">The research paper on "Patent Working Requirements and Complex Products: An Empirical Assessment of India's Form 27 Practice and Compliance" has been published <a class="external-link" href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3004283">here</a> (July 2017).</p>
<p style="text-align: justify; ">The dataset of all the Form 27 studied for this paper has been published <a class="external-link" href="https://cis-india.org/a2k/blogs/dataset-for-patent-working-requirements-and-complex-products-an-empirical-assessment-of-indias-form-27-practice-and-compliance">here</a>.</p>
<hr />
<p><b>Research Questions</b></p>
<ol>
<li>How many annual Form 27 submissions have been made to the Indian Patent Office for 4,419 granted patents identified in the landscape of mobile device patents in India?</li>
<li>How many patents have no corresponding Form 27 filed yet?</li>
<li>How many Form 27 submissions from those found are defective?</li>
<li>Is there an identifiable pattern in the defects and discrepancies?</li>
<li>Is there any discernible trend in filing of Form 27 over time and with respect to patent owners?</li>
</ol>
<hr />
<p style="text-align: justify; ">The objective of this paper is to quantitatively determine the extent to which patentees and licensees comply with the statutory requirement to declare information about the working of their patents according to Section 146(2) of the Patents Act, 1970 read with Rule 131 of the Patent Rules, 2003.</p>
<p style="text-align: justify; "><i>Section 146(2): Without prejudice to the provisions of sub-section (1), every patentee and every licensee (whether exclusive or otherwise) shall furnish in such manner and form and at such intervals (not being less than six months) as may be prescribed statements as to the extent to which the patented invention has been worked on a commercial scale in India.</i></p>
<p style="text-align: justify; "><i>Rule 131: Form and manner in which statements required under section 146(2) to be furnished </i></p>
<ol>
<li style="text-align: justify; "><i>The statements shall be furnished by every patentee and every licensee under sub-section (2) of section 146 in Form 27 which shall be duly verified by the patentee or the licensee or his authorised agent.</i></li>
<li><i>The statements referred to in sub-rule (1) shall be furnished in respect of every calendar year within three months of the end of each year.</i></li>
<li><i>The Controller may publish the information received by him under sub-section (1) or sub-section (2) of section 146.</i></li>
</ol>
<h2 style="text-align: justify; ">Object</h2>
<p style="text-align: justify; ">The research object is Form 27 submissions made annually to the Indian Patent Office for the 4,419 granted patents.</p>
<p style="text-align: justify; ">4,052 of these patents were identified in the landscape (“the patent landscape”) developed by the Centre for Internet and Society as a part of ongoing research on patents pertaining to sub-USD-100 mobile devices sold in India. The dataset of the patent landscape can be <a class="external-link" href="http://cis-india.org/a2k/blogs/dataset-patent-landscape-of-mobile-device-technologies-in-india">accessed here</a>. Another 367 patents pertaining to mobile technology identified during the landscaping exercise but excluded from it, were added to the initial set of 4,052 patents.</p>
<p style="text-align: justify; ">A blank copy of Form 27 is <a class="external-link" href="http://ipindia.nic.in/ipr/patent/manual/HTML%20AND%20PDF/Manual%20of%20Patent%20Office%20Practice%20and%20Procedure%20-%20html/Forms/Form-27.pdf">available here</a>. The <i>pro forma</i> is defined as per Schedule II of Patent Rules, 2003.</p>
<h2 style="text-align: justify; ">Research Methods</h2>
<p>[Corresponding research questions</p>
<ol>
<li>How many annual Form 27 submissions have been made to the Indian Patent Office for 4,419 granted patents identified in the landscape of mobile device patents in India?</li>
<li>How many patents have no corresponding Form 27 filed yet?</li>
<li>How many Form 27 submissions from those found are defective?]</li>
</ol>
<h3>Outsourcing the searching of the submitted copies of Form 27 to a contractor</h3>
<p style="text-align: justify; ">Owing to the repetitive nature of the process for collecting the forms, as well the large scale of the project, the task of searching was outsourced to a contractor. Price quotations were invited from five data entry operators and two firms of patent attorneys. On the basis of the quotation, deliverable time, scope and nature of the results delivered, and quality assurance, the contract was awarded to one firm. The firm offered the best price for a commensurate deliverable time and assured quality of results.</p>
<h3 style="text-align: justify; ">Form 27 retrieval online</h3>
<p>Form 27 were searched from IPAIRS (Indian Patent Information Retrieval System) and InPASS (Indian Patent Advanced Search System) public databases of the Indian Patent Office.</p>
<p>InPASS has two features: Application Status and E-Register. We checked both features, in case forms not found through one could be located through the other. We indeed found that, sometimes, the forms not available on E-register could be found through the Application Status table, and vice versa.</p>
<h3>Case 1: Accessing form 27 using Application Status tab on INPASS</h3>
<ol>
<li>A search portal is located at ipindiaservices.gov.in/publicsearch.<br /><br /></li>
<p style="text-align: center; "><img src="http://editors.cis-india.org/home-images/Pass.png" alt="Pass" class="image-inline" title="Pass" /></p>
<li>Enter the patent number in the “Patent Number” search field without the kind codes (IN) and click on “Search”. E.g., for patent number IN263932B, enter ‘263932’ in the “Patent Number” field.</li>
<li>Once the queried patent is displayed, select the “Application Status” tab to access the list of documents that were filed for the requested patent.<br /><br /></li>
<p style="text-align: center; "><img src="http://editors.cis-india.org/home-images/copy_of_Pass.png" alt="Pass" class="image-inline" title="Pass" /></p>
<li>In the Application Status tab, scroll down to the bottom to view “Application Status table”. Click on the “View Documents” button to access the list of the documents filed for the queried patent. A pop-up window opens with the results.<br /><br /></li>
<p style="text-align: center; "><img src="http://editors.cis-india.org/home-images/copy2_of_Pass.png" alt="Pass" class="image-inline" title="Pass" /></p>
<li style="text-align: justify; ">In the window, a list of hyperlinks to various documents is displayed. Sometimes Form 27/ working statement is explicitly named so. At other times, it may have a different title. Once you click on the form 27 link, a PDF file opens in a new tab. There may be more than one Form 27 in the list of documents as Form 27 is an annual submission.</li>
</ol>
<h3>Case 2: No record of Form 27 found (Application status tab)</h3>
<p style="text-align: justify; ">If the form is not present on InPASS, that is, if it has not been uploaded to the website, or if it has not been submitted to the Indian Patent Office (IPO), then it will not be displayed in the list of documents described in Case 1, step 5. Such instances have been logged as “No record found”.</p>
<h3 style="text-align: justify; ">Case 3: Accessing form 27 using E-Register tab on INPASS</h3>
<ol>
<li style="text-align: justify; ">At <a class="external-link" href="http://ipindiaservices.gov.in/publicsearch">http://ipindiaservices.gov.in/publicsearch</a>, a patent search portal is displayed. Enter the patent number by following the same steps as described in Case 1 until the queried patent is displayed. Select the “E-register” tab to access the e-register data corresponding to the queried patent.</li>
<p style="text-align: center; "><img src="http://editors.cis-india.org/home-images/copy3_of_Pass.png" alt="Pass" class="image-inline" title="Pass" /></p>
<li style="text-align: justify; ">In the “E-register” tab, scroll to the bottom to view the “Information u/s 146” table. The “Information u/s 146” table includes a list of Form 27 filed for the queried patent. As visible in the screenshot below, on clicking the “261762_2015” hyperlink, Form 27 for the queried patent opens. There could be multiple form 27s corresponding to different years.</li>
</ol>
<p style="text-align: center; "><img src="http://editors.cis-india.org/home-images/copy4_of_Pass.png" alt="Pass" class="image-inline" title="Pass" /></p>
<h3>Case 4: No record of Form 27 found (E-register)</h3>
<p style="text-align: justify; ">If the form is not present in the E-register, that is, if it has not been uploaded to the website or if it has not been submitted to the IPO, then the E-Register tab displays “Eregister Not Available”.</p>
<p style="text-align: center; "><img src="http://editors.cis-india.org/home-images/copy5_of_Pass.png" alt="Pass" class="image-inline" title="Pass" /></p>
<h3>Case 5: Searching on IPAIRS</h3>
<p style="text-align: justify; ">Both InPASS and IPAIRS fetch forms from the same URL. However, we observed that one search engine sometimes displays the forms when the other doesn’t. The IPAIRS search engine was used when Form 27 was not found on InPASS.</p>
<ol>
<li style="text-align: justify; ">IPAIRS patent search homepage: http://ipindiaonline.gov.in/patentsearch/search/index.aspx On the home page, in the Application Status tab, enter the full patent application number and CAPTCHA.</li>
<li style="text-align: justify; ">A window containing information pertaining to the patent application opens. At the bottom of the window, there is a “View Documents” button.</li>
<p style="text-align: center; "><img src="http://editors.cis-india.org/home-images/copy6_of_Pass.png" alt="Pass" class="image-inline" title="Pass" /></p>
<li>On clicking on “View Documents”, a new window with list of hyperlinked documents opens as described in Case 1, Step 5.<br /><img src="http://editors.cis-india.org/home-images/copy7_of_Pass.png" alt="Pass" class="image-inline" title="Pass" /></li>
</ol>
<p> </p>
<p>The URL for the new window displayed via “View Documents” on IPAIRS is the same as the URL displayed via “View Documents” in the “Application Status” tab on InPASS. For example, for patent number 263932, the URL for this window is the same on IPAIRS and InPASS: http://ipindiaonline.gov.in/patentsearch/GrantedSearch/viewdoc.aspx?id=Bx6eZ7YQLgsl3yH1LqKHjg==&loc=wDBSZCsAt7zoiVrqcFJsRw==</p>
<h3>Form 27 retrieval via Right To Information (RTI) requests</h3>
<p>CIS filed two requests under the RTI Act, 2005 with the Office of the Controller General of Patents, Designs, and Trade Marks in Mumbai.</p>
<ul>
<li>CIS' RTI application to the Indian Patent Office in Mumbai, March 2016 [<a class="external-link" href="https://cis-india.org/a2k/blogs/rti-app-2016.pdf/at_download/file">PDF]</a>. The IPO's reply, April 2016 [<a class="external-link" href="https://cis-india.org/a2k/blogs/rti-reply-2016.pdf/at_download/file">PDF</a>].</li>
</ul>
<p>(View text: <a class="external-link" href="https://cis-india.org/a2k/blogs/rti-request-to-indian-patents-office-for-form-27-statement-of-working-of-patents-march-2016">https://cis-india.org/a2k/blogs/rti-request-to-indian-patents-office-for-form-27-statement-of-working-of-patents-march-2016</a>)</p>
<ul>
</ul>
<ul>
</ul>
<ul>
</ul>
<ul>
<li>CIS' RTI application to the IPO in Mumbai, June 2015 [<a class="external-link" href="https://cis-india.org/a2k/blogs/rti-app-2015.pdf/at_download/file">PDF</a>]. The IPO's reply, June 2015 [<a class="external-link" href="https://cis-india.org/a2k/blogs/rti-reply-2015.pdf/at_download/file">PDF</a>].</li>
</ul>
<p>(View text: <a class="external-link" href="https://cis-india.org/a2k/blogs/rti-request-to-indian-patents-office-for-form-27-statement-of-working-of-patents-2015">https://cis-india.org/a2k/blogs/rti-request-to-indian-patents-office-for-form-27-statement-of-working-of-patents-2015</a>)</p>
<ul>
</ul>
<p style="text-align: justify; ">InPASS and IPAIRS yielded Form 27 for 1,999 patents out of 4,419. For Form 27 pertaining to 61 of the remaining patents, CIS made a request in March 2016 under the Right to Information Act (2005) to the office of the Indian Patent Office located in Mumbai.</p>
<p style="text-align: justify; "><b>How the 61 patents were chosen<br /></b>37 of the 50 companies in the patent landscape owned granted patents. We took one patent from each of the 37 companies. [See <a class="external-link" href="http://cis-india.org/a2k/blogs/fifty-companies.pdf">Annexure 4</a> (PDF)of Methodology: Patent landscaping in the Indian mobile device market] The remaining were <a class="external-link" href="http://cis-india.org/a2k/blogs/compilation-of-mobile-phone-patent-litigation-cases-in-india">patents litigated in India</a>, as well as patents transferred from one of the companies in the landscape to another.</p>
<p style="text-align: justify; "><b>IPO’s reply to the March 2016 RTI application <br /></b>The IPO replied in April 2016 that it could provide CIS with forms for eleven of the requested patents. As for the rest of the forms, the IPO stated, “As thousand [sic] of Form-27 are filed in this office, it is very difficult to segregate Form-27 for the patent numbers enlisted in your RTI application as it needs diversion of huge official/ staff manpower and it will affect day to day [sic] work of this office.”</p>
<h3 style="text-align: justify; ">Repeating the Form 27 search online</h3>
<p style="text-align: justify; ">A few days after CIS received the reply from the IPO, Form 27 pertaining to patents in the landscape started appearing on InPASS and IPAIRS E-register portal. CIS’ contractor repeated the search for forms for all 4,419 patents as some forms filed in 2016 and 2015 were found. Forms for additional 1,003 patents were found, taking the number of patents with at least one corresponding form to 3,002.</p>
<p style="text-align: justify; ">Of the 1,417 patents for which forms were not found, 481 are either expired or there is no log corresponding to them in the E-Register.</p>
<h3 style="text-align: justify; ">Schema for the results</h3>
<p style="text-align: justify; ">Information from the Form 27 was logged into a spreadsheet with the following heads:<br />Serial Number -- Assignee -- Patent Number -- Status -- Application Date -- Grant Date -- Title -- Application Number -- Form 27 presence -- Multiple Forms -- Number of years -- Year -- If Worked -- Working/ Non-working Status -- Working/ Non-working Information -- Licensing Status -- Licensing Information -- Comments.</p>
<h3 style="text-align: justify; ">Detailed legend and process of logging the results</h3>
<p style="text-align: justify; "><b>Assignee</b>: Name of the company that owns the patent. <a class="external-link" href="http://cis-india.org/a2k/blogs/fifty-companies.pdf">Annexure 4</a> [PDF] lists 50 companies studied for the patent landscape. 37 of those companies owned patents in India. Thus, the assignee could be one of 37 companies among the 50 in Annexure 4. Where two assignees are mentioned, the patent was transferred from the second assignee to the first on account of sale of the patent, company merger, etc. For example, "Huawei|NEC" indicates that a patent that belonged to NEC was transferred to Huawei.</p>
<p style="text-align: justify; "><b>Form 27 presence: </b>Whether or not Form 27 was found. Entries in this column are either “Yes” or “No”. If case Form 27 was not found, the subsequent columns are unpopulated.</p>
<p style="text-align: justify; "><b>Multiple Forms: </b>If more than one Form 27 was found, the number of years for which it was found. In some cases, more than one form was found for the same patent for the same year. We have considered these instances as a single form for the same year and noted the defect in the “Comments” column.</p>
<p style="text-align: justify; "><b>Year</b>: The year for which the form was filed. This information was found in #2 of the pro forma of Form 27. In the case of patents with Form 27 filed for more than one year, the entries for different years have been logged into consecutive rows.</p>
<p style="text-align: justify; "><b>If Worked:</b> This information was found in 3(i) of the pro forma. Depending on whether the text of Form 27 states that the patent was “worked” or “not worked”, results have been logged as either “Yes” or “No”. In instances where it is not explicitly stated whether the patent has been worked or not, or where 3(i) is blank, the results are logged as “Not disclosed” with a description of the defect in the “Comments” column.</p>
<p style="text-align: justify; "><b>Working/ Non-working status: </b> Corresponds to 3(i)a in the case of patents stated as “worked” and to 3(i)b in the case of those stated as “not worked”. The results have been marked as:</p>
<ul>
<li>Description is generic (future use)</li>
<li>Description is generic (present use)</li>
<li>Description is specific</li>
<li>No description</li>
</ul>
<p style="text-align: justify; "><b>Description is generic (future use)</b>: No specific information been provided as required by 3(i)a or 3(i)b. The description indicates that in the future the patentee might “work” or license the patent or do both. E.g: “May be worked in the future depending on the market demand and when technology is mature.”</p>
<p>Or</p>
<p style="text-align: justify; ">“We are still assessing the commercial and technological aspects of working of this patent in India and negotiating marketing and distribution of patented product with related parties.”</p>
<p>Or</p>
<p>“Technical developments [sic] are still continuing” or “Negotiations and technical developments [sic] are still continuing”.</p>
<p style="text-align: justify; "><b>Description is generic (present use): </b>No specific information been provided as required by 3(i)a or 3(i)b. The description indicates that the patentee may be “working” the patent. E.g:, “DUE TO THE NATURE OF THE INVENTION, IT IS NOT POSSIBLE TO DETERMINE ACCURATELY WHETHER THE PATENTED INVENTION HAS BEEN WORKED IN INDIA OR NOT. Improvements in the invention are continuing to be made. The Patentee is actively looking for licensees and customers to commercialise the invention in the Indian environment.”</p>
<p>Or</p>
<p style="text-align: justify; ">“... This patent is among a large number of patents in the patentee’s complex portfolio which may cover the products services and embedded technologies provided by the patentee or its licensee(s) in India. This patent might worked [sic] in India in some of the patentee(s) existing or future products, services and embedded technologies. Given the extremely Iarge number of patents that may apply to any given product or service of the patentee, it is very difficult to Identify and accurately update which of those patents would apply to the numerous products, services and embedded technologies.”</p>
<p><b>Description is specific: </b>Specific information has been provided as required in 3(i)a or 3(i)b.</p>
<p>E.g, “Quantum of the patented product-303520 and value of the patented product in INR-2790524299”.</p>
<p><b>No description:</b> 3(i)a and 3(i)b are blank.</p>
<p style="text-align: justify; "><b>Working/non-working information:</b> Contains the full text of the descriptions mentioned in “Working/non-working status” column. These have been reproduced verbatim from Form 27 filings.</p>
<p style="text-align: justify; "><b>Licensing status: </b>States whether or not the patent has been licensed as per 3(ii) of the pro forma for Form 27. Results are logged as “Yes” (licensed), “No” (no-licensed), “Cross-licensed” and “Not disclosed”.</p>
<p style="text-align: justify; ">“Not disclosed” indicates that the response to 3(ii) is either blank or there is an explicit statement that licensing information would not be disclosed on Form 27. E.g: “As all the licenses are confidential in nature, the details pertaining to the same are not being disclosed herein and may be provided to the Patent Office as and when the same is specifically directed by the Patent Office under sealed cover so that such details are not laid open in public domain.”</p>
<p><b>Licensing information: </b>Contains the full text of the response reproduced verbatim from 3(ii). (Blank fields when there is no text in 3(ii))</p>
<p>For patents marked as licensed, this column contains the names and addresses of licensees and/ or sub-licensees.</p>
<p style="text-align: justify; ">For patents marked as not-licensed, this column is either blank or contains statements such as, “Information Not readily available; efforts will be made to collect and submit further information, if asked for.”, “None”, “No licensees”.</p>
<p style="text-align: justify; ">For patents marked as “cross-licensed”, the patentee states that it has a cross-licensing agreement with its licensees. E.g: “There is a cross license agreement between <company name> and at least one licensee, giving mutual rights to produce despite monopoly afforded by patents that are hold by any of the companies. There is no information available on whether the technology of said patent is included products sold by such licensee. As all the licenses are confidential in nature, the details pertaining to the same shall be provided under specific directions from the Patent Office.”</p>
<p><b>Comments: </b>Contains information about defects and notable observations from the Form 27 submissions.</p>
<h2>Validation of results</h2>
<p>Validation of the results was done via deduplication first and then random sampling of 10% of the results.</p>
<h2>Analysis of results</h2>
<p style="text-align: justify; ">[Corresponding research questions:<br />4. Is there an identifiable pattern in the defects and discrepancies?<br />5. Is there any discernible trend in filing of Form 27 over time and with respect to patent owners?]<br /><br />The results logged into the spreadsheet were analysed to find a pattern in the defects in the submissions. Visualisations will be created, if necessary.</p>
<h2 style="text-align: justify; ">Prior Art</h2>
<ol>
<li style="text-align: justify; ">Extraordinary writ petition in the matter of a public interest litigation, filed in the High Court of Delhi, Shamnad Basheer vs Union of India and others, C.M. No. 5590 of 2015 <a href="http://spicyip.com/wp-content/uploads/2015/05/FORM-27-WP-1R-copy.pdf">http://spicyip.com/wp-content/uploads/2015/05/FORM-27-WP-1R-copy.pdf</a> <br /><br />The petitioner(s) “sought to investigate the commercial working of certain patented inventions in India, particularly in relation to three key areas”. One of these areas include telecommunications technology. Para 53 to 58 of the writ elucidate on the petitioners’ observations and findings on “High technology patents and trolls”, while para 59 and 60 refer to the linkage between patents and products. Annexure P-8 of this petition contains copies of Form 27 filed by Ericsson in India. Annexure P-11 contains a “summary of findings of Form 27 investigations conducted by the petitioner”. Annexure P-4 (II. Telecommunications Sector) contains a list of 58 patents pertaining to the telecommunications domain in India. 21 of these are coincide with the patent landscape mentioned in “Research Object”.</li>
<li style="text-align: justify; ">Basheer had published a report in 2011 based on the findings of his RTI investigation of Form 27 pertaining to pharmaceutical patents in India. The report titled “RTI Applications and “Working” of Foreign Drugs in India?” is available at: <a href="http://www.spicyip.com/docs/Workingpatents.doc">http://www.spicyip.com/docs/Workingpatents.doc</a> The report sheds light on lack of filing, incomplete filing and violation of patent working norms by pharmaceutical companies. He states having encountered difficulties during the RTI process: <i>The RTI process was a very arduous one, with the patent office refusing information or claiming missing files in some cases. We had to resort to the appellate procedure in almost all cases. And in one case concerning the drugs Tarceva and Sutent, both the CPIO (Delhi office) and the appellate authority refused to provide information. We had to then take the matter up directly with Controller General PH Kurian who immediately ordered that the information be provided. Upon his instructions, the information was provided within 24 hours. However, we received this information only on the 4<sup>th</sup> of April 2011, more than 6 months since we began the RTI process! (Source:</i> Drug Firms and Patent "Working": Extent of Compliance with Form 27 <a href="http://spicyip.com/2011/04/drug-firms-and-patent-working-extent-of.html">http://spicyip.com/2011/04/drug-firms-and-patent-working-extent-of.html</a></li>
</ol>
<h2 style="text-align: justify; ">Limitations</h2>
<ol>
<li style="text-align: justify; ">If Form 27 is not found on InPASS or INPAIRS, it is not possible to determine if the form has not been submitted to the IPO or it has been submitted but the IPO has not uploaded it. There is no publicly available database or log where such information is available.</li>
<li style="text-align: justify; ">Technical issues with the IPAIRS website hampered the speed of searching for and downloading Form 27. At the time of trial run in May 2015, the website was not available for nearly a week. Technical issues also lead to conflicting search results on IPAIRS and INPASS at times. For example, the form may be available via one search engine but not via another, even though they are fetched the files from the same database. Runtime errors occur due to browser caching. </li>
<br /></ol>
<p><b>Edited, September 10, 2017: </b>To add -- URLs of the research paper on Form 27 published in July 2017, and of the dataset containing raw data, which was published and licensed CC-BY-SA 4.0.</p>
<ol> </ol>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/methodology-statements-of-working-form-27-of-indian-mobile-device-patents'>http://editors.cis-india.org/a2k/blogs/methodology-statements-of-working-form-27-of-indian-mobile-device-patents</a>
</p>
No publisherrohiniIntellectual Property RightsPatentsAccess to KnowledgePervasive Technologies2017-09-10T15:19:51ZBlog EntryTweak the Make in India Recipe
http://editors.cis-india.org/a2k/blogs/business-today-rohini-lakshane-june-3-2016-tweak-the-make-in-india-recipe
<b>As an erstwhile journalist covering electronics technologies and IT a few years ago, I was privy to a litany of manufacturers' woes and their causes: Tangled tax laws and regulations, red tape, corruption, licence raj, unreliable infrastructure such as power and roads, and lack of skilled labour.</b>
<p>The article was <a class="external-link" href="http://www.businesstoday.in/magazine/features/tweak-the-make-in-india-recipe/story/233130.html">published by Business Today</a> on June 3, 2016.</p>
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<p style="text-align: justify; ">Unlike China, which raked in profits by keeping margins low and volumes high, every entity in the supply and distribution chain in India wanted a 30 per cent cut. India, they said, was no country for manufacturers. The only real electronics manufacturing was that of low-end or low-precision products. Where the products were of higher quality, they were merely assembled in India, often with the intent of circumventing taxes and of employing cheap labour.</p>
<p style="text-align: justify; ">Walking around the IT and Electronics pavilion at the Make in India Week in Mumbai early this year, I could see that not much has changed. As if symbolic of the scenario, there was one Indian company. The rest were MNCs based in Taiwan, China, Sweden, Japan, the US, and Germany. The push for indigenous manufacturing is nevertheless apparent from the flurry of proposed incentives, large infrastructural investments, and facilities made available to manufacturers and new entrepreneurs by the government. The Make in India mix, however, needs more than subsidies, tax waivers, reimbursement of duties, or monetary grants.</p>
<p style="text-align: justify; ">A pet peeve of brand owners and manufacturers with large patent portfolios operating in India is that research and development (R&D) in the country largely happens only in public research institutions and universities. Indian firms don't invest in R&D and subsequently fill patents. A patenting landscaping exercise conducted by us at the Centre for Internet and Society last year showed that all Indian patents, nearly 4,000 in number, pertaining to mobile technologies are owned by non-Indian companies. Out of approximately 19,500 patent applications, a meagre 18 were filed by Indian companies.</p>
<p style="text-align: justify; ">India's premier educational institutions also apply for far less patents within the country and abroad than their foreign counterparts. For example, the National Academy of Inventors has published a list of "Top 100 worldwide universities granted US utility patents in 2013" and another in 2014. One Indian school features on these lists - the Indian Institute of Science (IISc) - with 21 patents in 2013. Within India, the IITs and IISc file up to 200 applications every year; MIT files nearly 4,000 in the US. Several large MNCs run R&D facilities in India, hiring some of the best talent in the country. The patents for their work are first registered to these companies abroad, contributing to royalty outflows. One way to correct the famine of locally owned intellectual property is for the government to urge top Indian companies and academic institutions to push the envelope in terms of R&D and patenting. A promising development is that the Indian government has pledged start-up funds. So have companies such as Qualcomm, which has committed $150 million to a strategic venture fund in India.</p>
<p style="text-align: justify; ">Another gripe is that the manufacturing units in India are in reality assembly lines that only put together imported parts and components and generally make copied products. While the government has provided sops to encourage actual manufacturing to truly reduce dependence on 'screwdriver technologies', it needs to incentivise foreign corporations operating in India to transfer their technology to Indian entities, instead of only assembling here using automated or human labour. Moreover, India-manufactured products are infamously substandard. These products need to pass quality checks if India aspires for an export market and leverage in asking for transfer of technology.</p>
<p style="text-align: justify; ">To benefit from the transfer of technology, the workforce needs to learn to use it and assimilate it in its work life. Despite the intake of students in engineering schools in India being more than that in the US and China put together, a major chunk of newly graduated engineers in India is unemployable. The repairmen at Nehru Place's electronics market learn the ropes through an informal education system comprising their friends, peers and employers in small-time garage shops. Rookie engineers who secure the holy grail of college placement are trained from scratch by their employers, such as Infosys with its plush training campus located in Mysore. In either case, the employer is saddled with training new recruits. There is little in terms of professional excellence that institutions of formal education seem to impart. Prime Minister Modi believes that Indias human power would be among its largest exports by 2030, but monikers such as "coding coolies" only point to low valuation of its services. Unless quality vocational education produces professionals in different rungs of the manufacturing ecosystem - from technicians to production personnel to designers to ideators - manufacturing in the country will stay deprived of the benefits of the newest technologies.</p>
<p style="text-align: justify; ">Next would come developing indigenous technologies (governed by technical standards and otherwise) in order to reduce dependence on technologies owned by foreign rights holders. India's remote sensing capabilities are among the best in the world. Like GPS developed by the US and GLONASS by Russia, NAVIC is Indias own satellite navigation system. Where GPS in India becomes spotty or inaccurate, NAVIC is likely to be much more reliable and accurate. Mobile handsets sold in India are not equipped yet with the receivers needed to work with NAVIC. When they are, it will be a fillip for both manufacturing and location-based services in the country. There is also a need for diffusion of these technologies. India's public research organisations produce several potentially life-changing inventions, which unfortunately, almost never reach mass implementation.</p>
<p style="text-align: justify; ">With the emergence of new technologies comes a greater need for access to patenting. A patent is a monopoly granted to its owner for 20 years in return for publicly disclosing an invention. Without the ability to enforce it, such a monopoly is not of much use. Patenting is also expensive and time-consuming, especially for an individual innovator without the backing of an employer that has the wherewithal for it. Many opt for filing patents via large companies while retaining their names as the inventors. The company thus owns the patent. Small manufacturers without the resources to apply for a patent prefer to zealously guard their inventions. Instead of risking their unpatented inventions being stolen, they limit their use to their own establishments, and sometimes take the inventions with them to the grave.</p>
<p style="text-align: justify; ">Make in India was unveiled at a time when manufacturing worldwide was starting to experience the ongoing slump. China, so difficult to beat at its own game, has been facing the heat. There is a tiny window of opportunity for India, which may be akin to the guns made by Indian Ordnance Factories (IoF). These guns - exorbitantly priced and of low build quality - are notorious for backfiring. In the truly Indian spirit of jugaad, they are taken to gunsmiths by their buyers for big and small tweaks that would prevent unfortunate endings. Like the IoF guns, the Make in India recipe needs its own set of tweaks.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/business-today-rohini-lakshane-june-3-2016-tweak-the-make-in-india-recipe'>http://editors.cis-india.org/a2k/blogs/business-today-rohini-lakshane-june-3-2016-tweak-the-make-in-india-recipe</a>
</p>
No publisherrohiniPatentsAccess to Knowledge2016-06-04T04:02:01ZBlog EntryComments on Department of Industrial Policy and Promotion Discussion Paper on Standard Essential Patents and their Availability on Frand Terms
http://editors.cis-india.org/a2k/blogs/comments-on-department-of-industrial-policy-and-promotion-discussion-paper-on-standard-essential-patents-and-their-availability-on-frand-terms
<b>The Centre for Internet & Society gave its comments to the Department of Industrial Policy and Promotion. The comments were prepared by Anubha Sinha, Nehaa Chaudhari and Rohini Lakshané.</b>
<p><strong><a href="http://editors.cis-india.org/a2k/blogs/dipp-comments.pdf" class="external-link">Download the PDF </a></strong><strong>To access other submissions to the DIPP Discussion Paper on SEP and FRAND, please <a class="external-link" href="http://cis-india.org/a2k/blogs/responses-to-the-dipps-discussion-paper-on-seps-and-their-availability-on-frand-terms">click here</a></strong><strong><br /></strong></p>
<hr />
<p style="text-align: justify; "><strong>Authors <a name="_ftnref1"></a> </strong></p>
<div style="text-align: justify; "></div>
<p style="text-align: justify; "><strong>I. PRELIMINARY</strong></p>
<p style="text-align: justify; "><strong>1. </strong> This submission presents comments by the Centre for Internet and Society, India ("<strong>CIS</strong>") on the <i>Discussion Paper on Standard Essential Patents and their Availability on FRAND Terms</i> (dated 01 March, 2016), released by the Department of Industrial Policy and Promotion ("<strong>the</strong> <strong>DIPP</strong>"), Ministry of Commerce and Industry, Government of India (" <strong>the discussion paper/ discussion paper</strong>").</p>
<p style="text-align: justify; "><strong>2. </strong> CIS commends the DIPP for its efforts at seeking inputs from various stakeholders on this important and timely issue. CIS is thankful for the opportunity to put forth its views.</p>
<p style="text-align: justify; "><strong>3. </strong> This submission is divided into three main parts. The <i>first </i>part, 'Preliminary', introduces the document; the <i>second</i> part, 'About CIS', is an overview of the organization; and, the <i>third </i>part, 'Submissions on the Issues', answers the questions raised in the discussion paper. A list of annexures and their URLs is included at the end of the document.</p>
<p style="text-align: justify; "><strong>II. ABOUT CIS</strong></p>
<p style="text-align: justify; "><strong>4. </strong> CIS is a non-profit organisation <a name="_ftnref2"></a> that undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives. The areas of focus include digital accessibility for persons with diverse abilities, access to knowledge, intellectual property rights, openness (including open data, free and open source software, open standards, open access, open educational resources, and open video), internet governance, telecommunication reform, freedom of speech and expression, intermediary liability, digital privacy, and cyber-security.</p>
<p style="text-align: justify; "><strong>5. </strong> CIS values the fundamental principles of justice, equality, freedom and economic development. This submission is consistent with CIS' commitment to these values, the safeguarding of general public interest and the protection of India's national interest at the international level. Accordingly, the comments in this submission aim to further these principles. In addition, the comments are in line with the aims of the Make in India<a name="_ftnref3"></a> and Digital India <a name="_ftnref4"></a> initiatives of the Government of India.</p>
<p style="text-align: justify; "><strong>III. SUBMISSION ON THE ISSUES FOR RESOLUTION</strong></p>
<p style="text-align: justify; "><strong>6. </strong> The following sections provide CIS' views and recommendations on the issues enumerated in section 11 of the discussion paper:</p>
<p style="text-align: justify; "><strong> a) <i> Whether the existing provisions in the various IPR-related legislations, especially the Patents Act, 1970 and antitrust legislations, are adequate to address the issues related to SEPs and their availability on FRAND terms? If not, then can these issues </i> <i>be addressed through appropriate amendments to such IPR-related legislations? If so, what changes should be affected?</i> </strong></p>
<p style="text-align: justify; "><strong>A.1. </strong> The issues related to Standard Essential Patents ("<strong>SEPs</strong>") and their licensing on a fair, reasonable and non-discriminatory ("<strong>FRAND</strong>") basis lie at the intersection of intellectual property ("<strong>IP</strong>") law and competition law <a name="_ftnref5"></a>. As such, in India, the Patents Act, 1970 ("<strong>the Patents Act</strong>") and, the Competition Act, 2002 ("<strong>the Competition Act</strong>") are the relevant legislations to be studied. These have been recently discussed, most recently, by Justice Bakhru in his comprehensive order in<i>Telefonaktiebolaget LM Ericsson (Publ)</i> v. <i>Competition Commission of India and Another.</i> <a name="_ftnref6"></a></p>
<p style="text-align: justify; "><strong>A.2. </strong> It is our submission that at the moment, amendments to the Patents Act and the Competition Act may not be preferred. As Justice Bakhru has noted in the aforesaid decision,<a name="_ftnref7"></a> there is no conflict between the remedies in the Patents Act and in the Competition Act, and, the pursuit of rights and remedies under one of these legislations does not bar a party from pursuing rights and remedies in the other. Further, under both legislations, there are scenarios for the respective authorities - the Controller General of Patents, Designs and Trademarks ("<strong>the Controller</strong>") and the Competition Commission of India (" <strong>the CCI</strong>") for the Patents Act and for the Competition Act respectively - to seek inputs from each other.</p>
<p style="text-align: justify; "><strong>A.3. </strong> We also note that the CCI is a fairly nascent regulator; one whose jurisdiction is not yet a settled matter of law. While the judgment in the Ericsson-CCI case<a name="_ftnref8"></a> is indeed a good beginning, we do not believe that the matter has been conclusively decided. Accordingly, given the complex legal questions involved, over not just the interpretation of the Patents Act and the Competition Act, but also constitutional issues around the jurisdiction of regulators and the power of judicial review of the courts,<a name="_ftnref9"></a> we believe that it would be prudent to examine the ruling of the courts on these issues in some detail, before considering amendments.</p>
<p style="text-align: justify; "><strong>A.4. </strong> In addition, we are of the opinion that our IP law, and, our competition law, fully honor our international commitments, including the requirements under the TRIPS Agreement.<a name="_ftnref10"></a> As such, we would urge the Government of India to not enter into free trade agreements including, <i>inter alia,</i> the Regional Comprehensive Economic Partnership,<a name="_ftnref11"></a> that threaten our use of TRIPS flexibilities, and, impose 'TRIPS-plus' obligations.</p>
<p style="text-align: justify; "><strong>A.5. </strong> We also urge the Government of India to adopt a balanced National IPR Policy, and, a National Competition Policy, both of which has been in abeyance for a considerable amount of time. We believe that these policies are crucial to realize the objectives of the Make in India and Digital India initiatives. At the same time, we submit that these policies be balanced, taking into account the interests of all stakeholders, developed through an extensive consultative process, and, suitably modified based on feedback.</p>
<p style="text-align: justify; "><strong> <i> b) What should be the IPR policy of Indian Standard Setting Organizations in developing Standards for Telecommunication sector and other sectors in India where Standard Essential Patents are used? </i> </strong></p>
<p style="text-align: justify; "><strong>B.1.</strong> The discussion paper identifies four Standard Setting Organizations ("<strong>SSOs</strong>") in India, namely, the Telecom Standards Development Society of India ("<strong>TSDSI</strong>"), the Telecommunication Engineering Center ("<strong>TEC</strong>"), the Bureau of Indian Standards (" <strong>BIS</strong>"), the Global ICT Standardization Forum for India ("<strong>GISFI</strong>"), and, the Development Organization of Standards for Telecommunications in India ("<strong>DOSTI</strong>"). Comments on each of their policies have been made in the following paragraphs.</p>
<p style="text-align: justify; "><strong>B.2.</strong> The BIS does not have an intellectual property rights ("<strong>IPR</strong>") policy of its own. The BIS Act, 2016 <a name="_ftnref12"></a> does not include one either. As the discussion paper notes, the BIS refers to the IPR policies of the relevant international SSO in the context of technology implemented in India, that is the same or equivalent to the ones developed or maintained by the respective SSOs.We recommend that BIS adopt an IPR policy at the earliest, factoring in India specific requirements differences: a large and exponentially growing mobile device market makes it possible for manufacturers, patent owners and implementers alike to achieve financial gains even with a low margin ("<strong>India specific requirements</strong>"). In addition, our comments on the IPR policy of the TSDSI in paragraph <strong>B.4.</strong> of this submission (below), may also be considered for the content of the BIS' future policy on IPR.</p>
<p style="text-align: justify; "><strong>B.3</strong> . According to the discussion paper, the TEC considers the IPR policies of the International Telecommunication Union. We recommend that like the BIS, the TEC also adopt its own IPR policy, factoring in the India specific requirements detailed above. In addition, our comments on the IPR policy of the TSDSI in paragraph <strong>B.4.</strong> of this submission (below), may also be considered for the content of the BIS' future policy on IPR.</p>
<p style="text-align: justify; "><strong>B.4. </strong> The TSDSI, a relatively new standards body, has defined an IPR policy <a name="_ftnref13"></a>. In respect of this policy, the following observations are presented. <i>First, </i>this policy notes that IPR owners should be adequately and fairly rewarded.<i>Second, </i>it requires members to disclose essential IPRs in a "timely fashion." <a name="_ftnref14"></a> <i>Third, </i>as per its policy, the TSDSI can request the owner of an essential IPR to undertake, within three months, to license it irrevocably on FRAND terms. <a name="_ftnref15"></a> At the same time, the policy also states that the (aforesaid) ask may be subject to the condition that licensees agree to reciprocate. <a name="_ftnref16"></a> Should such an undertaking not be forthcoming, the TSDSI may suspend work on the standard or technical specification in question, or, adopt another course of action. <a name="_ftnref17"></a> <i>Fourth, </i>the policy identifies two scenarios for the non availability of licences prior to publication, <a name="_ftnref18"></a> based on the existence, or, the lack thereof, of alternative technologies. In the event of a lack of alternative technology, the policy requires a member to disclose in writing its reasons for not licensing its patents. Following this, it is submitted that there is no clarity on the concrete steps that the TSDSI would adopt in case the efforts to convince a member to license their essential IPRs, fail. The policy only states that "the TSDSI shall take further action as deemed fit."<a name="_ftnref19"></a> The same is also true where the IPR owner is not a member of the TSDSI. <a name="_ftnref20"></a> <i>Fifth, </i>the policy also envisages a scenario of non-availability post publication. <a name="_ftnref21"></a> The procedure for dealing with this is akin to the one detailed above, with the TSDSI asking for a written explanation, considering further action, including the possible withdrawal of the standard or technical specification in question. <i>Sixth, </i>it is observed that the policy does not require a commitment from its members to refrain from seeking injunctive relief. <i>Seventh, </i>it is accordingly recommended that the policy be suitably modified (a) to include India specific requirements discussed above; (b) to require a commitment from its members, that they refrain from seeking injunctive relief; (c) to delete the condition where FRAND negotiations may be subject to a condition of reciprocity; (d) to identify in detail the procedure to be followed in case of patent 'hold-ups' and patent 'hold-outs'; (e) to identify in detail the procedure to be followed in case of refusal to license by TSDSI members, and, non-members, both; and, (f) to include a detailed process on the declassification of a standard or technical specification.</p>
<p style="text-align: justify; "><strong>B.5. </strong> The IPR policy of GISFI<a name="_ftnref22"></a>, is substantially similar to the IPR policy of the TSDSI, discussed in paragraph <strong>B.4.</strong> of this submission (above). <i>Inter alia, </i> GISFI's IPR policy also does not indicate the specific steps to be taken in case an IPR owner refuses to license essential IPRs for which no alternative technology is available. This is true in the cases both, where the refusal is by a member, and, by a non-member. <a name="_ftnref23"></a>Our recommendations on the IPR policy of the TSDSI in paragraph <strong>B.4.</strong> of this submission (above), may also be considered for the GISFI's IPR policy.</p>
<p style="text-align: justify; "><strong>B.6. </strong> According to the discussion paper, the IPR policy of the DOSTI resembles that of the GIFSI. It is submitted that these policies are similar in the context of refusal to license by a member or non-member, and, like the TSDSI and the GISFI, the DOSTI also requires the patent holder to license its IPR irrevocably on FRAND terms. Accordingly, we reiterate our comments on the IPR policy of the TSDSI in paragraph <strong>B.4.</strong> of this submission (above). The aforesaid recommendations may also be considered to be relevant for the DOSTI's IPR policy.</p>
<p style="text-align: justify; "><strong>B.7.</strong> We are also of the opinion that it would be useful for Indian SSOs to consider recommending the use of royalty-free licenses for IPRs. Illustratively, the World Wide Web Consortium ("<strong>W3C</strong>") <a name="_ftnref24"></a> and the Open Mobile Alliance ("<strong>OMA</strong>") <a name="_ftnref25"></a> encourage royalty-free licensing.</p>
<p style="text-align: justify; "><strong> <i> c) Whether there is a need for prescribing guidelines on working and operation of Standard Setting Organizations by Government of India? If so, what all areas of working of SSOs should they cover? </i> </strong></p>
<p style="text-align: justify; "><strong>C.1. </strong> In our opinion, in a milieu where instances of SEP litigation are becoming increasingly complex, and, there is a tangible threat of the abuse of the FRAND process, it might be useful for the Government of India to make suggestions on the working of Indian SSOs.</p>
<p style="text-align: justify; "><strong>C.2. </strong> It is suggested that the Government of India develop Model Guidelines that may be adopted by Indian SSOs, taking into account India specific requirements, including the ones detailed in paragraph <strong>B.2.</strong> of this submission (above). We believe that this measure will also enable the fulfilment of the objectives of the Make in India and Digital India initiatives.</p>
<p style="text-align: justify; "><strong>C.3. </strong> We recommend that various stakeholders, including IP holders, potential licensees and users of IP, civil society organizations, academics, and, government bodies, including the the Indian Patent Office ("<strong>IPO</strong>"), the Department of Telecommunications, the DIPP, TRAI, and, the CCI be consulted in the creation of these Model Guidelines.</p>
<p style="text-align: justify; "><strong>C.4.</strong> In our opinion, the Model Guidelines may cover (a) the composition of the SSO; (b) the process of admitting members; (c) the process of the determination of a standard or technical specification; (d) the process of declassification of a standard or technical specification; (e) the IPR Policy; (f) resolution of disputes; (g) applicable law.</p>
<p style="text-align: justify; "><strong> <i> d) Whether there is a need for prescribing guidelines on setting or fixing the royalties in respect of Standard Essential Patents and defining FRAND terms by Government of India? If not, which would be appropriate authority to issue the guidelines and what could be the possible FRAND terms? </i> </strong></p>
<p style="text-align: justify; "><strong>D.1. </strong> In light of the inadequacies in the IPR policies (discussed above) of various SSOs in India, as well the the spate of ongoing patent infringement lawsuits around mobile technologies, we recommend that the Government of India intervene in the setting of royalties and FRAND terms.</p>
<p style="text-align: justify; "><strong>D.2. </strong> We propose that the Government of India initiate the formation of a patent pool of critical mobile technologies and apply a compulsory license with a five per cent royalty<a name="_ftnref26"></a>. Further details of this proposal have been enumerated in answer to question 'f' of the discussion paper (below).</p>
<p style="text-align: justify; "><strong>D.3.</strong> Our motivations for this proposal are many-fold.<i> </i>In our opinion, it is near-impossible for potential licensees to avoid inadvertent patent infringement. As a part of our ongoing research on technical standards applicable to mobile phones sold in India, we have found nearly 300 standards so far <a name="_ftnref27"></a>. It is submitted that carrying out patent searches for all the standards would be extremely expensive for potential licensees. Further, even if such searches were to be carried out, different patent owners, SSOs and potential licensees disagree on valuation, essentiality, enforceability, validity, and coverage of patents. In addition, some patent owners are non-practising entities ("<strong>NPEs</strong>") and may not be members of SSOs. The patents held by them are not likely to be disclosed. More importantly, home-grown manufacturers that have no patents to leverage and may be new entrants in the market would be especially disadvantaged by such a scenario. Budget phone manufacturers, standing to incur losses either as a result of heavy licensing fees, or, potential litigation, may close down. Alternatively, they may pass on their losses to consumers, driving the now-affordable phones out of their financial reach. With the objectives of Make in India and Digital India in sight, it is essential that Indian consumers continue to have access to devices within their purchasing power.</p>
<p style="text-align: justify; "><strong> <i> e) On what basis should the royalty rates in SEPs be decided? Should it be based on Smallest Saleable Patent Practicing Component (SSPPC), or on the net price of the Downstream Product, or some other criterion? </i> </strong></p>
<p style="text-align: justify; "><strong>E.1. </strong> It is our submission that royalty rates for SEPs should be based on the smallest saleable patent practising component ("<strong>SSPPC</strong>"). Most modern telecommunication and IT devices are complex with numerous technologies working in tandem. Different studies indicate that the number of patents in the US applicable to smartphones is between 200,000 and 250,000. <a name="_ftnref28"></a> A comprehensive patent landscape of mobile device technologies conducted by CIS reveals that nearly 4,000 patents are applicable to mobile phones sold in India. <a name="_ftnref29"></a> It is thus extremely difficult to quantify the exact extent of interaction and interdependence between technologies in any device, in such a way that the exact contribution of the patented technology to the entire device can be determined.</p>
<p style="text-align: justify; "><strong>E.2. </strong> The net cost of the device is almost always several times that of the chipset that implements the patented technology. Armstrong et al <a name="_ftnref30"></a> have found that the cost of a 4G baseband chip costs up to $20 including royalties in a hypothetical $400 phone sold in the US. One of the litigating parties in the ongoing patent infringement lawsuits in India has stated that one of the reasons for preferring to leverage its patents as downstream as possible in the value chain is that it will earn the company more royalties <a name="_ftnref31"></a>. In instances where patent exhaustion occurs much earlier in the value chain, such as in the case of the company's cross-licenses with Qualcomm (another company that owns patents to chip technologies), the company does not try to obtain royalties from the selling prices of devices for the cross-licensed technologies. It is submitted that such market practices could be detrimental to the government's objectives such as providing a mobile handset to every Indian by 2020 as a part of the Digital India programme <a name="_ftnref32"></a>. It is also worth noting in this context that the mobile device is the first and only medium of access to the Internet and telecom services for a large number of Indians, and, consequently, the only gateway to access to knowledge, information and critical services, including banking. <a name="_ftnref33"></a></p>
<p style="text-align: justify; "><strong>E.3. </strong> The discussion paper notes that J. Gregory Sidak, having studied the proceedings before the Delhi High Court, approved of the manner in which the court determined royalties.<a name="_ftnref34"></a> In his paper, Sidak(2015)<a name="_ftnref35"></a> notes that in determining royalties, the court relied, <i>inter alia, </i>on the decision of <i>CSIRO</i> v.<i>Cisco</i> ("<strong>the CSIRO case</strong>"), a 2015 decision of the US Court of Appeals for the Federal Circuit. 2015. <a name="_ftnref36"></a> We humbly disagree with the opinion of the Delhi High Court on the manner of determining royalties, and, with Sidak's approval of the same.</p>
<p style="text-align: justify; "><strong>E.4.</strong> It is our submission that the CSIRO case <a name="_ftnref37"></a> relied on a previous judgment, which we disagree with. The decision, a 2014 district court judgment, analogises the determination of royalties on SEPs to the determination of royalties on a copyrighted book. The court notes, "[b]asing a royalty solely on chip price is like valuing a copyrighted book based only on the costs of the binding, paper, and ink needed to actually produce the physical product. While such a calculation captures the cost of the physical product, it provides no indication of its actual value." In our opinion, this analogy is flawed. While a book is a distinct product as a whole, a mobile phone is a sum-total of its parts. If at all, a mobile phone could be compared with a book with several authors, as multiple technologies belonging to several patent holders are implemented in it. This judgement bases valuation for one set of technologies on the whole device, thus awarding compensation to the licensor even for those technologies implemented in the device that are not related to the licensed technologies. In our opinion, charging royalty on the net selling price of a device for one technology or one set of technologies is thus more like a referral scheme and less like actual compensation for the value added. Accordingly, royalties must be charged on the SSPPC principle.</p>
<p style="text-align: justify; "><strong> <i> f) Whether total payment of royalty in case of various SEPs used in one product should be capped? If so, then should this limit be fixed by Government of India or some other statutory body or left to be decided among the parties? </i> </strong></p>
<p style="text-align: justify; "><strong>F.1. </strong> CIS has proposed a compulsory licensing fee of five per cent on a patent pool of critical mobile technologies. The rationale for this figure is the royalty cap imposed by India in the early 1990s.</p>
<p style="text-align: justify; "><strong>F.2.</strong> As part of regulating foreign technology agreements, the (former) Department of Industrial Development (later merged with the DIPP) capped royalty rates in the early 1990s. Payment of royalties was capped at either a lump sum payment of $2 million, or, 5 percent on the royalty rates charged for domestic sale, and, 8 percent for export of goods pertaining to "high priority industries". <a name="_ftnref38"></a> Royalties higher than 5 percent or 8 percent, as the case may be, required securing approval from the government.</p>
<p style="text-align: justify; "><strong>F.3.</strong> While the early 1990s (specifically, 1991) was too early for the mobile device manufacturing industry to be listed among high priority industries, the public announcement by the government covered computer software, consumer electronics, and electrical and electronic appliances for home use. The cap on royalty rates was lifted by the DIPP in 2009. <a name="_ftnref39"></a></p>
<p style="text-align: justify; "><strong>F.4.</strong> It is submitted in the case of mobile device technology, we are witnessing a situation similar to that of the 1990s. In this sphere, most of the patent holders are multinational corporations which results in large royalty amounts leaving India. At the same time, in our opinion, litigation over patent infringement in India has limited the manufacture and sale of mobile devices of homegrown brands.</p>
<p style="text-align: justify; "><strong>F.5.</strong> We believe that the aforementioned developments are detrimental to the Make in India and Digital India initiatives of the Government of India, and, the government's aim of encouraging local manufacturing, facilitating indigenous innovation, as well as strengthening India's intellectual property regime. It is our submission, therefore, that the payment of royalties on SEPs be capped.</p>
<p style="text-align: justify; "><strong>F.6.</strong> We submit that such a measure is particularly important, given the nature of SEP litigation in India. While SEP litigation in India is indeed comparable to international SEP litigation on broader issues raised, specifically competition law concerns, but differs crucially where the parties are concerned. International SEP litigation is largely between multinational corporations with substantial patent portfolios, capable of engaging in long drawn out litigations, or engaging in other strategies including setting off against each other's patent portfolios. Dynamics in the Indian market differ - with a larger SEP holder litigating against smaller manufacturers, many of whom are indigenous, home-grown. <a name="_ftnref40"></a></p>
<p style="text-align: justify; "><strong>F.7.</strong> In June, 2013, we had recommended to the erstwhile Hon'ble Minister for Human Resource Development <a name="_ftnref41"></a> that a patent pool of essential technologies be established, with the compulsory licensing mechanism. Subsequently, in February, 2015, we reiterated this request to the Hon'ble Prime Minister.<a name="_ftnref42"></a> We propose that the Government of India initiate the formation of a patent pool of critical mobile technologies and mandate a five percent compulsory license. <a name="_ftnref43"></a> As we have stated in our request to the Hon'ble Prime Minister, we believe that such a pool would "possibly avert patent disputes by ensuring that the owners' rights are not infringed on, that budget manufacturers are not put out of business owing to patent feuds, and that consumers continue to get access to inexpensive mobile devices. Several countries including the United States issue compulsory licenses on patents in the pharmaceutical, medical, defence, software, and engineering domains for reasons of public policy, or to thwart or correct anti-competitive practices." <a name="_ftnref44"></a></p>
<p style="text-align: justify; "><strong>F.8.</strong> We believe that such a measure is not in breach of our international obligations under the TRIPS Agreement.</p>
<p style="text-align: justify; "><strong><i>g) Whether the practice of Non-Disclosure Agreements (NDA) leads to misuse of dominant position and is against the FRAND terms?</i></strong></p>
<p style="text-align: justify; "><strong>G.1.</strong> The issue of Non Disclosure Agreements ("<strong>NDAs</strong>") in SEP/FRAND litigation is a contentious one. Patent holders argue that they are essential to the license negotiation process to protect confidential information, whereas potential licensees submit that NDAs result in the imposition of onerous conditions.<a name="_ftnref45"></a></p>
<p style="text-align: justify; "><strong>G.2.</strong> In India's SEP litigation, the use of NDAs has been raised as an issue in at least two cases - separately by Intex<a name="_ftnref46"></a> and by iBall <a name="_ftnref47"></a>, in their cases against Ericsson. Intex and iBall have both claimed that the NDAs that Ericsson asked them to sign were onerous, and favoured Ericsson.</p>
<p style="text-align: justify; "><strong>G.3.</strong> According to Intex, the NDA in question would result in high legal costs for Intex, and, would render it unable to disclose crucial information to its vendors (who had agreed to supply to Intex on the condition that Intex was not infringing on any patents). <a name="_ftnref48"></a></p>
<p style="text-align: justify; "><strong>G.4.</strong> According to iBall, the parties had agreed to enter a global patent license agreement ("<strong>GPLA</strong>") but Ericsson insisted on an NDA. Upon receiving the terms of the NDA, iBall claimed before the CCI that Ericsson's refusal to identify the allegedly infringed SEPs; the threat of patent infringement proceedings; the attempt to coax iBall to enter into a "one-sided and onerous NDA"; the tying and bundling patents irrelevant to iBall's products by way of a GPLA; demanding unreasonably high royalties by way of a certain percentage value of handset as opposed to the cost of actual patented technology used all constituted abuse of Ericsson's dominant position under Section 4 of the Competition Act. <a name="_ftnref49"></a></p>
<p style="text-align: justify; "><strong>G.5.</strong> In India, the law on misuse (abuse) of dominant position by an 'enterprise' is found primarily in Section 4 of the Competition Act (read with Section 2(h) of the Competition Act, which defines 'enterprise'). In its recent decision in the Ericsson-CCI case <a name="_ftnref50"></a>, the Delhi High Court has found Ericsson to be an 'enterprise' for the purposes of the Competition Act, and hence subject to an inquiry under Section 4 of the same legislation. In the same decision, the court has also recognised the jurisdiction of the CCI to examine Ericsson's conduct for abuse of behaviour, based on complaints by Micromax and Intex. The use of NDAs is one of the grounds on which the parties have complained to the CCI.</p>
<p style="text-align: justify; "><strong>G.6.</strong> Pending a final determination by the CCI (and subsequent appeals), it would be premature to make an absolute claim on whether the use of NDAs results in an abuse of dominant position in <i>all</i> instances. However, the following submissions are made: <i>First, </i>the determination of misuse/abuse of dominant position is influenced by a number of factors <a name="_ftnref51"></a>, i.e., such a determination should be made on a case to case basis. <i>Second, </i>the market regulator, the CCI, is best situated to determine (a) abuse of dominance, and (b) whether the use of NDAs by an enterprise constitutes an abuse of its dominance. <i>Third, </i>the question of whether the use of NDAs constitutes misuse of dominance needs to be addressed in two parts - (a) whether the use of the NDA <i>itself </i>is abusive, irrespective of its terms and, (b) whether the use of certain specific terms renders the NDA abusive. <i>Fourth, </i>NDAs could potentially lead to the patent owner abusing its dominant position in the market, as well as result in an invalidation of FRAND commitments and terms. NDAs make it impossible to determine if a patent holder is engaging in discriminatory licensing practices. <i>Fifth, </i>NDAs are especially harmful in the case of NPEs-- companies that hold patents and monetise them but don't build or manufacture the components or devices that implement the technology associated with the patents.</p>
<p style="text-align: justify; "><strong> <i> h) What should be the appropriate mode and remedy for settlement of disputes in matters related to SEPs, especially while deciding FRAND terms? Whether Injunctions are a suitable remedy in cases pertaining to SEPs and their availability on FRAND terms? </i> </strong></p>
<p style="text-align: justify; "><strong>H.1.</strong> The licensing of SEPs on FRAND terms requires the parties to negotiate "reasonable" royalty rates in good faith, and apply the terms uniformly to all willing licensees. It is our submission that if the parties cannot agree to FRAND terms, they may enter into binding arbitration. Further, if all efforts fail, there exist remedies under the Patents Act and the Competition Act, 2002 to address the issues.</p>
<p style="text-align: justify; "><strong>H.2.</strong> Section 115 of the Patents Act empowers the court to appoint an independent scientific adviser " <i> to assist the court or to inquire and report upon any such question of fact or of opinion (not involving a question of interpretation of law) as it may formulate for the purpose. </i> "<a name="_ftnref52"></a> Such an independent adviser may inform the court on the technical nuances of the matter.</p>
<p style="text-align: justify; "><strong>H.3. </strong> Further<strong>, </strong>under the Patents Act, pending the decision of infringement proceedings the Court may provide interim relief, if the plaintiff proves <i>first, </i>a prima facie case of infringement; <i>second, </i>that the balance of convenience tilts in plaintiff's favour; and, <i>third, </i>that if an injunction is not granted the plaintiff shall suffer irreparable damage. <strong>H.4. </strong>However, it is our suggestion that courts adopt a more cautious stance towards granting injunctions in the field of SEP litigation. <i>First, </i>in our opinion, injunctions may prove to be a deterrent to arrive at a FRAND commitment, in particular, egregiously harming the willing licensee. <i>Second, </i>especially in the Indian scenario, where litigating parties operate in vastly different price segments (thereby targeting consumers with different purchasing power), it is difficult to establish that "irreparable damage" has been caused to the patent owner on account of infringement. <i>Third, </i>we note the approach of the European Court of Justice, which prohibited the patent holder from enforcing an injunction provided a willing licensee makes an offer for the price it wishes to pay to use a patent under the condition that it deposited an amount in the bank as a security for the patent holder. <a name="_ftnref53"></a> <i>Fourth, </i>we also note the approach of the Federal Trade Commission in the USA, which only authorizes patent holders to seek injunctive relief against potential licensees who have either stated that they will not license a patent on any terms, or refuse to enter into a license agreement on terms that have been set in the final ruling of a court or arbitrator. <a name="_ftnref54"></a> Further, as Contreras (2015)<a name="_ftnref55"></a> observes, that the precise boundaries of what constitutes as an unwilling licensee remains to be seen. We observe a similar ambiguity in Indian jurisprudence, and accordingly submit that courts should carefully examine the conduct of the licensee to injunct them from the alleged infringement.</p>
<p style="text-align: justify; "><strong><i>i) What steps can be taken to make the practice of Cross-Licensing transparent so that royalty rates are fair & reasonable?</i></strong></p>
<p style="text-align: justify; "><strong>I.1.</strong> The Patents Act requires patentees and licensees to submit a statement on commercial working of the invention to the Controller every year. <a name="_ftnref56"></a> Form 27 under section 146(2) of the Act lists the details necessary to be disclosed for compliance of the requirement of "working". A jurisprudential analysis reveals the rationale and objective behind this mandatory requirement. Undeniably, the scheme of the Indian patent regime makes it amply clear that "working" is a very important requirement, and the public as well as competitors have a right to access this information in a timely manner, without undue hurdles. <a name="_ftnref57"></a> Indeed, as the decision in <i>Natco Pharma</i> v. <i>Bayer Corporation</i> <a name="_ftnref58"></a> reveals, the disclosures in Form 27 were crucial to determining the imposition of a compulsory license on the patentee. Thus, broadly, Form 27 disclosures can critically enable willing licensees to access patent "working" information in a timely manner.</p>
<p style="text-align: justify; "><strong>I.2.</strong> However, there has been little compliance of this requirement by the patentees, despite the IPO reiterating the importance of compliance through the issuance of multiple public notices <a name="_ftnref59"></a> (suo motu and in response to a public interest litigation filed in 2011 <a name="_ftnref60"></a>), and, reminding the patentees that non-compliance is punishable with a heavy fine. <a name="_ftnref61"></a> Findings of research submitted by one of the parties<a name="_ftnref62"></a> in the writ of the<a></a><a></a><a>2011</a><a name="_msoanchor_1"></a><a name="_msoanchor_2"></a><a name="_msoanchor_3"></a> public interest litigation<i>Shamnad Basheer </i>v. <i>Union of India and others</i><a name="_ftnref63"></a> reveal as follows. <i>First, </i>a large number of Form 27s are unavailable for download from the website of the IPO. This possibly indicates that the forms have either not been filed by the patentees with the IPO, or have not been uploaded (yet) by the IPO. <i>Second, </i>a large number of filings in the telecom sector remain incomplete.</p>
<p style="text-align: justify; "><strong>I.3. </strong> In 2015, CIS queried the IPO website for Form 27s of nearly 4,400 patents. CIS' preliminary research (ongoing and unpublished) echoes findings <a name="_ftnref64"></a> similar to the ones disclosed in the case discussed in paragraph <strong>I.2.</strong> of this submission (above).</p>
<p style="text-align: justify; "><strong>I.4.</strong> In view of the submissions above, CIS makes the following recommendations to make the practice of cross-licensing transparent so that royalty rates are fair & reasonable: <i>first, </i>that there be a strict enforcement of the submission of Form 27s on a regular and timely basis by the patentees; and, <i>second, </i>that guidelines may be drawn up on whether it was discriminatory to charge no royalties (whether on the SSPPU or on the whole device) for a patent holder in a cross-licensing arrangement with another, when it charges royalty on the selling price of the device from a non-cross-licensor.</p>
<p style="text-align: justify; "><strong><i>j) What steps can be taken to make the practice of Patent Pooling transparent so that royalty rates are fair & reasonable?</i></strong></p>
<p style="text-align: justify; "><strong>J.1.</strong> Patent pools can be understood as an agreement between two or more patent owners to license one or more of their patents to one another or to third parties.<a name="_ftnref65"></a> Thus, the creation of a patent pool makes use of the legal instrument of licensing, similar to the practice of cross-licensing. Insofar, we reiterate our recommendations made in paragraph <strong>I.3. </strong>of this submission (above), which apply to the answer to the instant question.</p>
<p style="text-align: justify; "><strong>J.2.</strong> In furtherance of the recommendation above, we also propose the alteration of the Form 27 template <a name="_ftnref66"></a> to include more disclosures. Presently, patentees are required to to declare number of licensees and sub-licensees. We specifically propose that the format of Form 27 filings be modified to include patent pool licenses, with an explicit declaration of the names of the licensees and not just the number.</p>
<p style="text-align: justify; "><strong>J.3. </strong> It is also our submission that patent pools be required to offer FRAND licenses on the same terms to both members and non-members of the pool.</p>
<p style="text-align: justify; "><strong> <i> k) How should it be determined whether a patent declared as SEP is actually an Essential Patent, particularly when bouquets of patents are used in one device? </i> </strong></p>
<p style="text-align: justify; "><strong>K.1.</strong> We submit that several studies on the essentiality of SEPs indicate that only a small percentage of SEPs are actually essential. A study conducted by<i>Goodman </i>and <i>Myers </i>(2004) showed that only 21% of SEPs pertaining to the 3G standard in the US were deemed to be actually essential. <a name="_ftnref67"></a> Another study conducted by the same authors in 2009 for WCDMA patents showed that 28% SEPs were essential. <a name="_ftnref68"></a></p>
<p style="text-align: justify; "><strong>K.2.</strong> In our opinion, <i>first, </i>the methodology adopted by <i>Goodman </i>and <i>Myers</i> <a name="_ftnref69"></a><i> </i>could be replicated to determine the "essential" nature of an SEP. <i>Second, </i>while adopting their methodology, it would be useful to address some of the issues over which these studies were critiqued. <a name="_ftnref70"></a> Accordingly, we suggest that (a) laboratory tests may be conducted by an outside expert or by a commercial testing laboratory, and not at an in-house facility owned by either parties, so as to eliminate in the lab results; and, (b) expert opinions may be considered in order to determine essentiality.</p>
<p style="text-align: justify; "><strong> <i> l) Whether there is a need of setting up of an independent expert body to determine FRAND terms for SEPs and devising methodology for such purpose? </i> </strong></p>
<p style="text-align: justify; "><strong>L.1.</strong> In our opinion, there is no need for an independent expert body to determine FRAND terms for SEPs and devising the methodology for such a purpose. The existing legal and regulatory framework is reasonably equipped to determine FRAND terms. A more detailed submission on the existing framework and suggested changes has been made in our answer to question 'a' of the discussion paper (above).</p>
<p style="text-align: justify; "><strong>L.2.</strong> However, we observe that Indian courts, tribunals and the CCI are yet to endorse a methodology for making FRAND determinations. The judgments of the Delhi High Court do not provide a conclusive rationale or methodology for the imposition of royalty rates in the respective matters. <a name="_ftnref71"></a> <strong> </strong></p>
<p style="text-align: justify; "><strong>L.3. </strong> We submit that<strong> </strong>in the absence of definitive Indian jurisprudence for determination of FRAND terms, American jurisprudence provides certain guidance. Contreras<a name="_ftnref72"></a> (2015) informs us about the various case law American courts and regulators have developed and adhered to whilst making such determinations.The dominant analytical framework for determining "reasonable royalty" patent damages in the United States today was set out in 1970 by the District Court for the Southern District of New York in <i>Georgia-Pacific Corp. </i>v. <i> U.S. Plywood Corp <a name="_ftnref73"></a> </i> . While this may be used as a guiding framework, the question of methodology remains far from settled.</p>
<p style="text-align: justify; "><strong> <i> m) If certain Standards can be met without infringing any particular SEP, for instance by use of some alternative technology or because the patent is no longer in force, what should be the process to declassify such a SEP? </i> </strong></p>
<p style="text-align: justify; "><strong>M.1. </strong> In our opinion, if a standard can be met without infringing a patent declared to be "essential" to it, then the patent is not actually "essential". In this instance, the methods suggested in response to question 'k' of the discussion paper (above) could be used to declassify the SEP.</p>
<p style="text-align: justify; "><strong>M.2. </strong> We further submit that if a patent is no longer in force, that is, if it has expired, then it ceases to be patent, and therefore an SEP. The process to declassify such an SEP could be simply to declare it an expired patent.</p>
<p style="text-align: justify; "><strong>M.3. </strong> In addition, if it is possible to implement a certain standard by using an alternative technology, then the SEP for such a standard is not actually an SEP. However, the scale of operations and that of mass manufacturing and compatibility requirements in devices and infrastructure mean that it is unlikely to have different methods of implementing the same standard.</p>
<p style="text-align: justify; "><strong>M.4.</strong> In general, it is our submission that an Indian SSO could maintain a publicly accessible database of SEPs found to be invalid or non-essential in India.</p>
<p style="text-align: justify; "><strong>7. </strong> We reiterate our gratitude to the DIPP for the opportunity to make these submissions. In addition to our comments above, we have shared some of our research on this issue, in the 'Annexures', below.</p>
<p style="text-align: justify; "><strong>8. </strong> It would be our pleasure and privilege to discuss these comments with the DIPP; and, supplement these with further submissions if necessary. We also offer our assistance on other matters aimed at developing a suitable policy framework for SEPs and FRAND in India, and, working towards the sustained innovation, manufacture and availability of mobile technologies in India.</p>
<p style="text-align: justify; "><strong>On behalf of the Centre for Internet and Society, 22 April, 2016</strong></p>
<p style="text-align: justify; ">Anubha Sinha - <a>anubha@cis-india.org</a> | Nehaa Chaudhari - <a>nehaa@cis-india.org</a></p>
<p style="text-align: justify; ">Rohini Lakshané - <a>rohini@cis-india.org</a></p>
<p style="text-align: justify; "><strong>___________________________________________________________________________</strong></p>
<p style="text-align: justify; ">___________________________________________________________________________</p>
<p style="text-align: justify; "><strong>ANNEXURES</strong></p>
<p style="text-align: justify; "><strong>___________________________________________________________________________</strong></p>
<p style="text-align: justify; ">● Anubha Sinha, Fuelling the Affordable Smartphone Revolution in India, available at <a href="http://cis-india.org/a2k/blogs/digital-asia-hub-the-good-life-in-asias-21-st-century-anubha-sinha-fueling-the-affordable-smartphone-revolution-in-india"> http://cis-india.org/a2k/blogs/digital-asia-hub-the-good-life-in-asias-21-st-century-anubha-sinha-fueling-the-affordable-smartphone-revolution-in-india </a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Nehaa Chaudhari, Standard Essential Patents on Low-Cost Mobile Phones in India: A Case to Strengthen Competition Regulation?, available at <a href="http://www.manupatra.co.in/newsline/articles/Upload/08483340-C1B9-4BA4-B6A9-D6B6494391B8.pdf"> http://www.manupatra.co.in/newsline/articles/Upload/08483340-C1B9-4BA4-B6A9-D6B6494391B8.pdf </a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Nehaa Chaudhari, Pervasive Technologies:Patent Pools, available at <a href="http://cis-india.org/a2k/blogs/patent-pools">http://cis-india.org/a2k/blogs/patent-pools</a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Nehaa Chaudhari, The Curious Case of the CCI:Competition Law and SEP Regulation in India, presented at the 4th Global Congress on Intellectual Property and the Public Interest, <span>available </span>at <a href="http://cis-india.org/a2k/blogs/the-curious-case-of-the-cci-competition-law-and-sep-regulation-in-india"> http://cis-india.org/a2k/blogs/the-curious-case-of-the-cci-competition-law-and-sep-regulation-in-indi </a> <a href="http://cis-india.org/a2k/blogs/the-curious-case-of-the-cci-competition-law-and-sep-regulation-in-india">a</a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Nehaa Chaudhari, Letter for Establishment of Patent Pool for Low Cost Access Devices through Compulsory Licences, available at <a href="http://cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices"> http://cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices </a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Prof Jorge L. Contreras and Rohini Lakshané, Patents and Mobile Devices in India: An Empirical Survey, available at <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2756486">http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2756486</a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Rohini Lakshané, CIS, List of technical standards and IP types (Working document), available at <a href="https://drive.google.com/file/d/0B8SgjShAjhbtaml5eW50bS01d2s/view?usp=sharing"> https://drive.google.com/file/d/0B8SgjShAjhbtaml5eW50bS01d2s/view?usp=sharing </a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Rohini Lakshané, Open Letter to Prime Minister Modi, February 2015, available at <a href="http://cis-india.org/a2k/blogs/open-letter-to-prime-minister-modi">http://cis-india.org/a2k/blogs/open-letter-to-prime-minister-modi</a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Rohini Lakshané, FAQ: CIS' proposal to form a patent pool of critical mobile technology, September 2015, available at <a href="http://cis-india.org/a2k/blogs/faq-cis-proposal-for-compulsory-licensing-of-critical-mobile-technologies"> http://cis-india.org/a2k/blogs/faq-cis-proposal-for-compulsory-licensing-of-critical-mobile-technologies </a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Rohini Lakshané, Joining the dots in India's big-ticket mobile phone patent litigation, May 2015, last updated October 2015, available at <a href="http://cis-india.org/a2k/blogs/joining-the-dots-in-indias-big-ticket-mobile-phone-patent-litigation"> http://cis-india.org/a2k/blogs/joining-the-dots-in-indias-big-ticket-mobile-phone-patent-litigation </a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Rohini Lakshané, Compilation of Mobile Phone Patent Litigation Cases in India, March 2015, last updated April 2016, available at <a href="http://cis-india.org/a2k/blogs/compilation-of-mobile-phone-patent-litigation-cases-in-india"> http://cis-india.org/a2k/blogs/compilation-of-mobile-phone-patent-litigation-cases-in-india </a> , (last accessed April 22, 2016).</p>
<p style="text-align: justify; ">● Rohini Lakshané, Patent landscaping in the Indian Mobile Device Marketplace, presented at the 4th Global Congress on Intellectual Property and Public Interest, December 2015, available at <a href="https://drive.google.com/open?id=0B8SgjShAjhbtME45N245SmowOGs">https://drive.google.com/open?id=0B8SgjShAjhbtME45N245SmowOGs</a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Vikrant Narayan Vasudeva, Patent Valuation and Licence Fee Determination in the Context of Patent Pools, available at <a href="http://cis-india.org/a2k/blogs/patent-valuation-and-license-fee-determination-in-context-of-patent-pools"> http://cis-india.org/a2k/blogs/patent-valuation-and-license-fee-determination-in-context-of-patent-pools </a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">************</p>
<div style="text-align: justify; "><br clear="all" />
<hr size="1" width="33%" align="left" />
<div id="ftn1">
<p><a name="_ftn1"></a> This submission has been authored by (alphabetically) Anubha Sinha, Nehaa Chaudhari and Rohini Lakshané, on behalf of the Centre for Internet and Society, India.</p>
</div>
<div id="ftn2">
<p><a name="_ftn2"></a> See The Centre for Internet and Society, available at <a href="http://cis-india.org/">http://cis-india.org</a> (last accessed 22 April, 2016) for details of the organization, and, our work.</p>
</div>
<div id="ftn3">
<p><a name="_ftn3"></a> Make in India, available at <a href="http://www.makeinindia.com/home">http://www.makeinindia.com/home</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn4">
<p><a name="_ftn4"></a> Digital India, available at <a href="http://www.digitalindia.gov.in/">http://www.digitalindia.gov.in/</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn5">
<p><a name="_ftn5"></a> See Nehaa Chaudhari, The Curious Case of the CCI:Competition Law and SEP Regulation in India, presented at the 4th Global Congress on Intellectual Property and the Public Interest, available at <a href="http://cis-india.org/a2k/blogs/the-curious-case-of-the-cci-competition-law-and-sep-regulation-in-india"> http://cis-india.org/a2k/blogs/the-curious-case-of-the-cci-competition-law-and-sep-regulation-in-india </a> (last accessed 21 April, 2016) for further details on relevant provisions.</p>
</div>
<div id="ftn6">
<p><a name="_ftn6"></a> In the High Court of Delhi, W.P.(C) 464/2014 & CM Nos. 911/2014 & 915/2014, judgment delivered on 30 March, 2016. Hereafter referred to as the Ericsson-CCI judgment.</p>
</div>
<div id="ftn7">
<p><a name="_ftn7"></a> Id.</p>
</div>
<div id="ftn8">
<p><a name="_ftn8"></a> Id.</p>
</div>
<div id="ftn9">
<p><a name="_ftn9"></a> Under Articles 226 and 227 of the Constitution of India, and, under Article 32 of the Constitution of India, for the High Courts and the Supreme Court, respectively.</p>
</div>
<div id="ftn10">
<p><a name="_ftn10"></a> Agreement on Trade-Related Aspects of Intellectual Property Rights, available at <a href="https://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm">https://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn11">
<p><a name="_ftn11"></a> KEI Staff, 2015 October 15 version: RCEP IP Chapter, available at <a href="http://keionline.org/node/2472">http://keionline.org/node/2472</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn12">
<p><a name="_ftn12"></a> BIS Act, 2016, available at <a href="http://www.bis.org.in/bs/bsindex.asp">http://www.bis.org.in/bs/bsindex.asp</a> (last accessed 21 April, 2016).</p>
</div>
<div id="ftn13">
<p><a name="_ftn13"></a> TSDSI, Intellectual Property Rights Policy, available at <a href="http://www.tsdsi.org/media/Help/2014-12-17/TSDSI-PLD-40-V1.0.0-20141217.pdf"> http://www.tsdsi.org/media/Help/2014-12-17/TSDSI-PLD-40-V1.0.0-20141217.pdf </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn14">
<p><a name="_ftn14"></a> Id at Clause 3.1.</p>
</div>
<div id="ftn15">
<p><a name="_ftn15"></a> Id at Clause 5.1.</p>
</div>
<div id="ftn16">
<p><a name="_ftn16"></a> Id at Clause 5.2.</p>
</div>
<div id="ftn17">
<p><a name="_ftn17"></a> Id at Clause 5.5.</p>
</div>
<div id="ftn18">
<p><a name="_ftn18"></a> Id at Clauses 7.1. and 7.2.</p>
</div>
<div id="ftn19">
<p><a name="_ftn19"></a> Id at Clause 7.2.1.a (iii).</p>
</div>
<div id="ftn20">
<p><a name="_ftn20"></a> Id at Clause 7.2.1.b(iii).</p>
</div>
<div id="ftn21">
<p><a name="_ftn21"></a> Id at Clause 7.3.</p>
</div>
<div id="ftn22">
<p><a name="_ftn22"></a> GISFI, Intellectual Property Rights Policy, available at <a href="http://www.gisfi.org/ipr_policy/gisfi_intellectual_property_righ.htm"> http://www.gisfi.org/ipr_policy/gisfi_intellectual_property_righ.htm </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn23">
<p><a name="_ftn23"></a> Id at Clauses 6.2.1.a(iii) and 6.2.1.b(iii).</p>
</div>
<div id="ftn24">
<p><a name="_ftn24"></a> See W3C, Patent Policy, available at <a href="https://www.w3.org/Consortium/Patent-Policy-20040205/">https://www.w3.org/Consortium/Patent-Policy-20040205/</a> (last accessed 22 April, 2016) for more details on their royalty-free licences.</p>
</div>
<div id="ftn25">
<p><a name="_ftn25"></a> See OMA, Use Agreement, available at <a href="http://openmobilealliance.org/about-oma/policies-and-terms-of-use/use-agreement/"> http://openmobilealliance.org/about-oma/policies-and-terms-of-use/use-agreement/ </a> (last accessed 22 April, 2016) for more details on their royalty-free licences.</p>
</div>
<div id="ftn26">
<p><a name="_ftn26"></a> See Rohini Lakshané, Open Letter to PM Modi, available at <a href="http://cis-india.org/a2k/blogs/open-letter-to-prime-minister-modi">http://cis-india.org/a2k/blogs/open-letter-to-prime-minister-modi</a> (last accessed 22 April, 2016) for further details of CIS' proposal.</p>
</div>
<div id="ftn27">
<p><a name="_ftn27"></a> Rohini Lakshané, CIS, List of Technical Standards and IP Types (Working document), available at <a href="https://drive.google.com/file/d/0B8SgjShAjhbtaml5eW50bS01d2s/view?usp=sharing"> https://drive.google.com/file/d/0B8SgjShAjhbtaml5eW50bS01d2s/view?usp=sharing </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn28">
<p><a name="_ftn28"></a> Mark Lemley and Carl Shapiro, Patent Holdup and Royalty Stacking,<i> 85 Tex. L. Rev. at 2015</i>; See also, for e.g., RPX Corporation, Amendment No. 3 to Form S-l, 11 Apr. 2011, at 59, available at <a href="http://www.sec.gov/Archives/edgar/data/1509432/000119312511101007/ds1a.htm"> http://www.sec.gov/Archives/edgar/data/1509432/000119312511101007/ds1a.htm </a> (last accessed 22 April, 2016), quoting - <i>"Based on our research, we believe there are more than 250,000 active patents relevant to today's smartphones…"</i>.; See further Steve Lohr, Apple- Samsung Case Shows Smartphone as Legal Magnet,<i> </i>New York Times, 25 Aug. 2012, available at <a href="http://www.nytimes.com/2012/08/26/technology/apple-samsung-case-shows-smartphone-as-lawsuit-magnet.html"> http://www.nytimes.com/2012/08/26/technology/apple-samsung-case-shows-smartphone-as-lawsuit-magnet.html </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn29">
<p><a name="_ftn29"></a> Jorge L. Contreras and Rohini Lakshané, Patents and Mobile Devices in India: An Empirical Survey, available at <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2756486">http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2756486</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn30">
<p><a name="_ftn30"></a> Ann Armstrong, Joseph J. Mueller and Timothy D. Syrett, The Smartphone- Royalty Stack:Surveying Royalty Demands for the Components Within Modern Smartphones, available at <a href="https://www.wilmerhale.com/uploadedFiles/Shared_Content/Editorial/Publications/Documents/The-Smartphone-Royalty-Stack-Armstrong-Mueller-Syrett.pdf"> https://www.wilmerhale.com/uploadedFiles/Shared_Content/Editorial/Publications/Documents/The-Smartphone-Royalty-Stack-Armstrong-Mueller-Syrett.pdf </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn31">
<p><a name="_ftn31"></a> Florian Mueller,<i> </i>Ericsson Explained Publicly why it Collects Patent Royalties from Device (Not Chipset) Makers, available at <a href="http://www.fosspatents.com/2014/01/ericsson-explained-publicly-why-its.html"> http://www.fosspatents.com/2014/01/ericsson-explained-publicly-why-its.html </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn32">
<p><a name="_ftn32"></a> Romit Guha and Anandita Singh Masinkotia, PM Modi's Digital India Project:Government to Ensure that Every Indian has a Smartphone by 2019, available at <a href="http://articles.economictimes.indiatimes.com/2014-08-25/news/53205445_1_digital-india-india-today-financial-services"> http://articles.economictimes.indiatimes.com/2014-08-25/news/53205445_1_digital-india-india-today-financial-services </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn33">
<p><a name="_ftn33"></a> Nehaa Chaudhari,<i> </i>Standard Essential Patents on Low-Cost Mobile Phones in India: A Case to Strengthen Competition Regulation?, available at <a href="http://www.manupatra.co.in/newsline/articles/Upload/08483340-C1B9-4BA4-B6A9-D6B6494391B8.pdf"> http://www.manupatra.co.in/newsline/articles/Upload/08483340-C1B9-4BA4-B6A9-D6B6494391B8.pdf </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn34">
<p><a name="_ftn34"></a> See part 10.2.2. of the Discussion Paper, at page 25.</p>
</div>
<div id="ftn35">
<p><a name="_ftn35"></a> J.Gregory Sidak, FRAND in India:The Delhi High Court's Emerging Jurisprudence on Royalties for Standard-Essential Patents, available at <a href="http://jiplp.oxfordjournals.org/content/early/2015/06/11/jiplp.jpv096.full"> http://jiplp.oxfordjournals.org/content/early/2015/06/11/jiplp.jpv096.full </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn36">
<p><a name="_ftn36"></a> Appeal from the United States District Court for the Eastern District of Texas in No. 6:11-cv-00343-LED, decided on 03 December, 2015, available at. <a href="http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1066.Opinion.12-1-2015.1.PDF"> http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1066.Opinion.12-1-2015.1.PDF </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn37">
<p><a name="_ftn37"></a> Id.</p>
</div>
<div id="ftn38">
<p><a name="_ftn38"></a> Kumkum Sen, News on Royalty Payments Brings Cheer in New Year, available at <a href="http://www.business-standard.com/article/economy-policy/news-on-royalty-payment-brings-cheer-in-new-year-110010400044_1.html"> http://www.business-standard.com/article/economy-policy/news-on-royalty-payment-brings-cheer-in-new-year-110010400044_1.html </a> (last accessed 21 April, 2016).</p>
</div>
<div id="ftn39">
<p><a name="_ftn39"></a> See Sanjana Govil, Putting a Lid on Royalty Outflows- How the RBI Can Help Reduce India's IP Costs<i>, </i>available at <a href="http://cis-india.org/a2k/blogs/lid-on-royalty-outflows">http://cis-india.org/a2k/blogs/lid-on-royalty-outflows</a> (last accessed 21 April, 2016), for a discussion on the introduction of royalty caps in the early 1990s, and its success in reducing the flow of money out of India.</p>
</div>
<div id="ftn40">
<p><a name="_ftn40"></a> Supra note 33.</p>
</div>
<div id="ftn41">
<p><a name="_ftn41"></a> Nehaa Chaudhari, Letter for Establishment of Patent Pool for Low-cost Access Devices through Compulsory Licenses, available at <a href="http://cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices"> http://cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices </a> <span> </span> (last accessed 21 April, 2016).</p>
</div>
<div id="ftn42">
<p><a name="_ftn42"></a> Supra note 26.</p>
</div>
<div id="ftn43">
<p><a name="_ftn43"></a> Rohini Lakshané, FAQ: CIS' proposal to form a patent pool of critical mobile technology, September 2015, available at <a href="http://cis-india.org/a2k/blogs/faq-cis-proposal-for-compulsory-licensing-of-critical-mobile-technologies"> http://cis-india.org/a2k/blogs/faq-cis-proposal-for-compulsory-licensing-of-critical-mobile-technologies </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn44">
<p><a name="_ftn44"></a> Id.</p>
</div>
<div id="ftn45">
<p><a name="_ftn45"></a> See the Ericsson-CCI case, supra note 6, for Intex's submissions as discussed by Justice Bakhru.</p>
</div>
<div id="ftn46">
<p><a name="_ftn46"></a> Id.</p>
</div>
<div id="ftn47">
<p><a name="_ftn47"></a> Rohini Lakshané, Compilation of Mobile Phone Patent Litigation Cases in India, available at <a href="http://cis-india.org/a2k/blogs/compilation-of-mobile-phone-patent-litigation-cases-in-india"> http://cis-india.org/a2k/blogs/compilation-of-mobile-phone-patent-litigation-cases-in-india </a> (last accessed 21 April, 2016).</p>
</div>
<div id="ftn48">
<p><a name="_ftn48"></a> See the Ericsson-CCI case, supra note 6, at paragraph 19.2.</p>
</div>
<div id="ftn49">
<p><a name="_ftn49"></a> Supra note 47.</p>
</div>
<div id="ftn50">
<p><a name="_ftn50"></a> See the Ericsson-CCI judgment, supra note 6, at paragraphs 88-105.</p>
</div>
<div id="ftn51">
<p><a name="_ftn51"></a> Section 19(4) of the Competition Act. See also <i>Competition Commission of India</i> v. <i>Steel Authority of India and Another</i>, (2010) 10 SCC 744.</p>
</div>
<div id="ftn52">
<p><a name="_ftn52"></a> Section 115 of the Patents Act, 1970.</p>
</div>
<div id="ftn53">
<p><a name="_ftn53"></a> <i>Huawei Technologies Co. Ltd </i> v.<i> ZTE Corp. and ZTE Deutschland</i>, Judgment of the Court (Fifth Chamber) of 16 July 2015 in GmbH C-170/13.</p>
</div>
<div id="ftn54">
<p><a name="_ftn54"></a> Third Party United States Fed. Trade Commission's Statement on the Public Interest, <i>In re Certain Wireless Communication Devices, Portable Music and Data Processing Devices, Computers and Components Thereof</i>, U.S. Int'l Trade Comm'n, Inv. No. 337-TA-745 (Jun. 6, 2012).</p>
</div>
<div id="ftn55">
<p><a name="_ftn55"></a> Jorge L. Contreras, A Brief History of FRAND: Analyzing Current Debates in Standard Setting and Antitrust Through a Historical Lens<i>,</i> 80 Antitrust Law Journal 39 (2015), available at <span>h</span><a href="http://ssrn.com/abstract=2374983">ttp://ssrn.com/abstract=2374983</a><span> or</span> <a href="http://dx.doi.org/10.2139/ssrn.2374983">http://dx.doi.org/10.2139/ssrn.2374983</a><a href="http://dx.doi.org/10.2139/ssrn.2374983"> </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn56">
<p><a name="_ftn56"></a> Section 146(2) of the Patents Act, 1970..</p>
</div>
<div id="ftn57">
<p><a name="_ftn57"></a> Sai Vinod, Patent Office Finally Takes Form 27s Seriously, available at <a href="http://spicyip.com/2013/02/patent-office-finally-takes-form-27s.html"> http://spicyip.com/2013/02/patent-office-finally-takes-form-27s.html </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn58">
<p><a name="_ftn58"></a> Order No. 45/2013 (Intellectual Property Appellate Board, Chennai), available at <a href="http://www.ipab.tn.nic.in/045-2013.htm">http://www.ipab.tn.nic.in/045-2013.htm</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn59">
<p><a name="_ftn59"></a> Intellectual Property India, Public Notice, available at <a href="http://www.ipindia.nic.in/iponew/publicNotice_Form27_12Feb2013.pdf">http://www.ipindia.nic.in/iponew/publicNotice_Form27_12Feb2013.pdf</a> (last accessed 22 April, 2016) <i>and</i> Intellectual Property India, Public Notice, available at <a href="http://ipindia.nic.in/iponew/publicNotice_24December2009.pdf">http://ipindia.nic.in/iponew/publicNotice_24December2009.pdf</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn60">
<p><a name="_ftn60"></a> Supra note 57.</p>
</div>
<div id="ftn61">
<p><a name="_ftn61"></a> Id.</p>
</div>
<div id="ftn62">
<p><a name="_ftn62"></a> See research findings available at <a href="http://spicyip.com/wp-content/uploads/2015/05/FORM-27-WP-1R-copy.pdf"> http://spicyip.com/wp-content/uploads/2015/05/FORM-27-WP-1R-copy.pdf </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn63">
<p><a name="_ftn63"></a> In the High Court of Delhi, W.P.(C) 5590/2015. This litigation is currently ongoing. See, illustratively, Mathews P. George, <i>Patent Working in India: Delhi HC issues notice in Shamnad Basheer </i>v<i>. Union of India & Ors. - I</i>, available at <a href="http://spicyip.com/2015/09/patent-working-in-india-delhi-hc-issues-notice-in-shamnad-basheer-v-union-of-india-ors-i.html"> http://spicyip.com/2015/09/patent-working-in-india-delhi-hc-issues-notice-in-shamnad-basheer-v-union-of-india-ors-i.html </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn64">
<p><a name="_ftn64"></a> In response to an RTI request made to the IPO in Mumbai for forms unavailable on the website, CIS received a reply stating, "As thousand [sic] of Form -27 are filed in this office, it is very difficult to segregate Form-27 for the patent numbers enlisted in your RTI application as it needs diversion of huge official staff/ manpower and it will affect day to day [sic] work of this office." This research is ongoing and unpublished. Please contact us for a copy of the RTI application and the response received.</p>
</div>
<div id="ftn65">
<p><a name="_ftn65"></a> WIPO Secretariat<i>, </i>Patent Pools and Antitrust - A Comparative Analysis, available at <a href="https://docs.google.com/viewer?url=http%3A%2F%2Fwww.wipo.int%2Fexport%2Fsites%2Fwww%2Fip-competition%2Fen%2Fstudies%2Fpatent_pools_report.pdf"> https://docs.google.com/viewer?url=http%3A%2F%2Fwww.wipo.int%2Fexport%2Fsites%2Fwww%2Fip-competition%2Fen%2Fstudies%2Fpatent_pools_report.pdf </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn66">
<p><a name="_ftn66"></a> Form 27, The Patents Act, available at <a href="http://ipindia.nic.in/ipr/patent/manual/HTML%20AND%20PDF/Manual%20of%20Patent%20Office%20Practice%20and%20Procedure%20-%20html/Forms/Form-27.pdf"> http://ipindia.nic.in/ipr/patent/manual/HTML%20AND%20PDF/Manual%20of%20Patent%20Office%20Practice%20and%20Procedure%20-%20html/Forms/Form-27.pdf </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn67">
<p><a name="_ftn67"></a> David J. Goodman and Robert A. Myers, 3G Cellular Standards and Patents, available at <a href="http://patentlyo.com/media/docs/2009/03/wirelesscom2005.pdf">http://patentlyo.com/media/docs/2009/03/wirelesscom2005.pdf</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn68">
<p><a name="_ftn68"></a> Darien CT, Review of Patents Declared as Essential to WCDMA through December, 2008, available at <a href="http://www.frlicense.com/wcdma1.pdf">http://www.frlicense.com/wcdma1.pdf</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn69">
<p><a name="_ftn69"></a> Supra note 67.</p>
</div>
<div id="ftn70">
<p><a name="_ftn70"></a> Donald L. Martin and Carl De Meyer, Patent Counting, a Misleading Index of Patent Value: A Critique of Goodman & Myers and its Uses, available at <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=949439">http://papers.ssrn.com/sol3/papers.cfm?abstract_id=949439</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn71">
<h5><a name="h.b6s0l5evilsq"></a> <a name="_ftn71"></a> Rohini Lakshané, Joining the Dots in India's Big-Ticket Mobile Phone Patent Litigation<i>,</i> available at <a href="http://cis-india.org/a2k/blogs/joining-the-dots-in-indias-big-ticket-mobile-phone-patent-litigation"> http://cis-india.org/a2k/blogs/joining-the-dots-in-indias-big-ticket-mobile-phone-patent-litigation </a> (last accessed 22 April, 2016). See also supra note 47 for more details.</h5>
</div>
<div id="ftn72">
<p><a name="_ftn72"></a> Supra note 55.</p>
</div>
<div id="ftn73">
<p><a name="_ftn73"></a> 318 F. Supp. 1116, 1120 (S.D.N.Y. 1970), modified and aff'd, 446 F. 2d 295 (2d Cir. 1971), cert. denied, 404 U.S. 870 (1971).</p>
</div>
</div>
<div style="text-align: justify; ">
<hr size="1" width="33%" align="left" />
<div>
<div id="_com_1"><a name="_msocom_1"></a>
<p>2015</p>
</div>
</div>
<div>
<div id="_com_2"><a name="_msocom_2"></a>
<p>They filed it in 2011</p>
</div>
</div>
<div>
<div id="_com_3"><a name="_msocom_3"></a>
<p>The 2011 filing only includes pharma, BTW: http://spicyip.com/docs/Form%2027s.pdf. Also, this writ is from May 2015: http://spicyip.com/wp-content/uploads/2015/05/FORM-27-WP-1R-copy.pdf Anyway, I'll leave it as it is.</p>
</div>
</div>
</div>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/comments-on-department-of-industrial-policy-and-promotion-discussion-paper-on-standard-essential-patents-and-their-availability-on-frand-terms'>http://editors.cis-india.org/a2k/blogs/comments-on-department-of-industrial-policy-and-promotion-discussion-paper-on-standard-essential-patents-and-their-availability-on-frand-terms</a>
</p>
No publisherAnubha Sinha, Nehaa Chaudhari and Rohini LakshaneAccess to KnowledgePervasive TechnologiesCompetitionFeaturedPatents2016-05-03T02:30:15ZBlog EntryCCI allowed to probe Ericsson: FAQs on Ericsson’s disputes with Micromax and Intex
http://editors.cis-india.org/a2k/blogs/the-quint-nehaa-chaudhari-april-30-2016-cci-allowed-to-probe-ericsson
<b>The blog post is an analysis of the recent decision of the Delhi High Court, clarifying that the Competition Commission of India could investigate Ericsson for a violation of competition law. A shorter version of this blog post was published in the Quint on April 30, 2016.</b>
<div>Read the original article published by <a class="external-link" href="http://www.thequint.com/technology/2016/04/29/all-you-want-to-know-about-the-ericsson-micromax-patent-dispute-intex-intellectual-property-rights-make-in-india">Quint</a> on April 30 here.</div>
<hr />
<p style="text-align: justify; ">The mobile phone is the <a href="http://cis-india.org/a2k/blogs/Standard-Essential-Patents-on-Low-Cost-Mobile-Phones-in-India-A-Case-to-Strengthen-Competition-Regulation.pdf"><span>sole access point to the internet</span></a> for about half of India’s population. It has an important role to play in India’s development story, one that is amplified given the central government’s <a href="http://www.digitalindia.gov.in/content/information-all"><span>focus</span></a> on <a href="http://www.digitalindia.gov.in/content/e-governance-%E2%80%93-reforming-government-through-technology"><span>leveraging the internet</span></a> for better <a href="http://www.digitalindia.gov.in/content/ekranti-electronic-delivery-services"><span>governance</span></a>. The government has recognized this importance, evidenced through <a href="http://www.digitalindia.gov.in/content/electronics-manufacturing"><span>electronics manufacturing incentives</span></a> and, a stated commitment to ensure ‘<a href="http://www.digitalindia.gov.in/content/universal-access-mobile-connectivity"><span>universal access to mobile connectivity’</span></a>. Homegrown brands, including Micromax and Intex, with their affordable, low-cost mobile phones, play an important role in this development story.</p>
<p style="text-align: justify; ">In March, 2013, the Swedish multinational, Ericsson, sued Micromax for patent infringement, setting in motion a <a href="http://cis-india.org/a2k/blogs/compilation-of-mobile-phone-patent-litigation-cases-in-india"><span>series of events</span></a>, with the potential to disturb India’s mobile phone dream. Then, last month, the Delhi High Court (the Court) <a href="http://lobis.nic.in/ddir/dhc/VIB/judgement/30-03-2016/VIB30032016CW4642014.pdf"><span>recognized</span></a> the authority of the market regulator - the Competition Commission of India (CCI) - to probe Ericsson for its allegedly anticompetitive conduct.</p>
<p style="text-align: justify; "><strong>Why did Ericsson sue Micromax?</strong></p>
<p style="text-align: justify; ">Ericsson claims that Micromax’s mobile phones infringe its standard essential patents (SEPs) on mobile phone technologies, including 3G and EDGE.</p>
<p style="text-align: justify; "><strong>How are some patents identified as SEPs?</strong></p>
<p style="text-align: justify; ">International Standard Setting Organizations (SSOs) – such as <a href="http://www.etsi.org/"><span>ETSI</span></a> or <a href="https://www.ieee.org/index.html"><span>IEEE</span></a> - recognize international standards. 3G and Wi-Fi are examples of such internationally recognized standards.</p>
<p style="text-align: justify; ">According to the <a href="http://www.etsi.org/standards/how-does-etsi-make-standards"><span>SSOs</span></a>, the determination of standards depends on consensus, driven by their <a href="http://www.etsi.org/membership"><span>members</span></a>. After a standard is determined, SEP owners (including Ericsson) <strong><span>voluntarily disclose</span></strong> which of their patents are <strong><i>essential</i></strong> to the determined standard, and, undertake to license these on fair, reasonable and non-discriminatory (FRAND) terms, to any willing licensee.</p>
<p style="text-align: justify; "><strong>Does this give rise to legal issues?</strong></p>
<p style="text-align: justify; ">This process results in a variety of (<a href="http://editors.cis-india.org/a2k/blogs/well-documented"><span>well-documented</span></a>) legal questions, many of which have been raised in India’s SEP litigation, and have been alluded to by the Court in the present judgment. The Court has recognized the potential for SEPs to create dominant positions for their owners, noting that “any technology accepted as a standard would have to be <strong><span>mandatorily</span></strong> <strong><span>followed </span></strong>[emphasis, mine] by all enterprises in the particular industry.”</p>
<p style="text-align: justify; ">Some other legal issues around SEPs include the enforceability of FRAND commitments; determining what would constitute ‘fair’, ‘reasonable’ and, ‘non-discriminatory’; the possibility of non/incomplete disclosure by patent owners; and, a refusal by licensees to negotiate FRAND terms in good faith. A related issue that has received comparatively less attention is the essentiality of peripheral or, non standard but essential patents, where there is no obligation to license on FRAND terms.</p>
<p style="text-align: justify; "><strong>Have there been other SEP infringement suits filed in India?</strong></p>
<p style="text-align: justify; ">Yes. Besides Micromax, Ericsson has also <a href="http://cis-india.org/a2k/blogs/compilation-of-mobile-phone-patent-litigation-cases-in-india"><span>sued other</span></a> low-cost mobile phone sellers/manufacturers, homegrown and otherwise, for patent infringement. These include Intex, Lava, Gionee, Xia and iBall. In addition, Vringo has also sued ZTE and Asus, separately. [In this article, we will limit ourselves to a discussion on Ericsson’s suits against Micromax and Intex.]</p>
<p style="text-align: justify; "><strong>What did Micromax and Intex do after being sued by Ericsson?</strong></p>
<p style="text-align: justify; ">Ericsson’s suits were followed by deliberations between the parties (Ericsson and Micromax, and, Ericsson and Intex, independently) and some interim orders by the Court. This litigation is ongoing, and final orders are awaited.</p>
<p style="text-align: justify; ">Meanwhile, both Micromax and Intex have pursued a series of other remedies. Intex has filed applications for the revocation of Ericsson’s patents. In addition, Micromax and Intex have each filed separate complaints under India’s Competition Act, 2002 before the CCI, alleging that Ericsson had abused its dominant position. This is a punishable offence under Indian competition law.</p>
<p style="text-align: justify; ">Micromax and Intex have both claimed that Ericsson’s royalty rates were excessive. In addition, Micromax has objected to Ericsson’s use of the threat of injunctions and custom seizures, and, has also claimed that Ericsson’s conduct results in a denial of market access for Indian handset manufacturers. Intex has alleged, <i>inter alia, </i>that it was forced into signing an onerous non disclosure agreement by Ericsson; and, that it was forced to negotiate licences without a complete disclosure of its patents by Ericsson.</p>
<p style="text-align: justify; ">The CCI, finding there to be a <i>prima facie</i> case in each of the above complaints, ordered the Director General to undertake an investigation into the allegations made by both – Micromax and Intex. These orders were challenged by Ericsson in the Court.</p>
<p style="text-align: justify; "><strong>On what grounds did Ericsson challenge the CCI’s orders?</strong></p>
<p style="text-align: justify; ">Briefly, Ericsson argued-</p>
<p style="text-align: justify; ">(a) that the issue was one of patent law, which barred the applicability of competition law;</p>
<p style="text-align: justify; ">(b) that it was not an ‘enterprise’ under the Competition Act, 2002, and, that the CCI was empowered to check anticompetitive conduct only of ‘enterprises’;</p>
<p style="text-align: justify; ">(c) that its conduct was not anticompetitive since it was only exercising its rights to enforce its patents;</p>
<p style="text-align: justify; ">(d) that since the disputes between the parties were already being heard in other proceedings before the Court, the CCI could not adjudicate them; and,</p>
<p style="text-align: justify; ">(e) that Intex and Micromax were barred from making such allegations. Ericsson opined that since they had challenged its ownership of the SEPs, through revocation of petition applications (filed by Intex), and a denial of infringement claims (by Micromax), they could not now present a complaint premised on it being the owner of those same SEPs.</p>
<p style="text-align: justify; "><strong>What did the Court hold?</strong></p>
<p style="text-align: justify; ">Rejecting Ericsson’s arguments, the Court held that the CCI <strong><span>did</span></strong> [emphasis, mine] have the jurisdiction to examine if Ericsson’s conduct was anticompetitive, finding it to be an ‘enterprise’ under the Competition Act, 2002. However, the Court was clear that the CCI’s actions could be subject to judicial review by the High Court. It also found that the mere applicability of the Patents Act, 1970, did not bar the applicability of competition law, since the legislations covered distinct fields and served different purposes. Further, it opined that Micromax and Intex were free to explore alternative remedies; neither this pursuit, nor, the pendency of disputes on similar issues before the Court, was a bar to the CCI’s jurisdiction.</p>
<p style="text-align: justify; ">Interestingly, while not adjudicating the issue of Ericsson’s abuse of dominance in this particular case, Justice Bakhru, citing its conduct as presented by the other parties said that in some cases, “such conduct, if it is found, was directed in pressuring an implementer to accept non-FRAND terms, would amount to an abuse of dominance.”</p>
<p style="text-align: justify; "><strong>What does the judgment mean for India’s homegrown brands?</strong></p>
<p style="text-align: justify; ">The judgment is a boost for India’s home grown manufacturers in their battle against global patent holders. However, while it certainly validates the role and powers of India’s young market regulator, it will no doubt be appealed. One also expects multiple appeals over the CCI’s findings in the present and, future similar cases.</p>
<p style="text-align: justify; ">It is impossible to predict the outcome of legal proceedings in SEP litigation. Accordingly, Micromax, Intex (and others) would do well to augment their own patent portfolios (either by filing their own patents, or, by acquiring those of other companies). This may create a more level playing field, opening up alternate channels of negotiation, including, cross-licensing. They may also seek access to Ericsson’s SEPs under the compulsory licensing mechanism in India’s patent law.</p>
<p style="text-align: justify; "><strong>What does the government have to say?</strong></p>
<p style="text-align: justify; ">The Department of Industrial Policy and Promotion has recently released a <a href="http://dipp.nic.in/english/Discuss_paper/standardEssentialPaper_01March2016.pdf"><span>discussion paper</span></a> on these issues, inviting <a href="http://cis-india.org/a2k/blogs/summary-of-cis-comments-to-dipp2019s-discussion-paper-on-seps-and-their-availability-on-frand-terms"><span>comments</span></a> from <a href="http://cis-india.org/a2k/blogs/responses-to-the-dipps-discussion-paper-on-seps-and-their-availability-on-frand-terms"><span>stakeholders</span></a>. It would be unsurprising if the government intends to regulate this space, given the strong implications for not just its flagship Make in India and Digital India programs, but also its foreign policy narrative on protecting IPRs and fostering innovation. Immediate welcome steps from the government would be a final word on the <a href="http://dipp.nic.in/English/Schemes/Intellectual_Property_Rights/IPR_Policy_24December2014.pdf"><span>National IPR Policy</span></a>, and, the adoption of the<a href="http://www.mca.gov.in/Ministry/pdf/Revised_Draft_National_Competition_Policy_2011_17nov2011.pdf"><span> National Competition Policy</span></a>, awaited since 2014 and 2011, respectively.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/the-quint-nehaa-chaudhari-april-30-2016-cci-allowed-to-probe-ericsson'>http://editors.cis-india.org/a2k/blogs/the-quint-nehaa-chaudhari-april-30-2016-cci-allowed-to-probe-ericsson</a>
</p>
No publishernehaaAccess to KnowledgePervasive TechnologiesIntellectual Property RightsCompetition LawPatents2016-05-01T13:46:52ZBlog EntryStandard Essential Patents on Low-Cost Mobile Phones in India: A Case to Strengthen Competition Regulation?
http://editors.cis-india.org/a2k/blogs/the-socio-legal-review-nehaa-chaudhari-standard-essential-patent-on-low-cost-mobile-phones-in-india
<b>The realization of the promise of the sub hundred dollar mobile device as a facilitator of access to knowledge is contingent inter alia on its availability in the market place. In turn, the market availability of the sub hundred dollar mobile device is influenced by the existence of an enabling environment for producers to produce, and consumers to consume. From a regulatory perspective, the enabling environment itself is a function of existing laws and policies, and the ‘developmental effects’ of certain laws and policies (Saraswati, 2012).</b>
<p style="text-align: justify; ">This article seeks to examine one such legal and policy lever and the role of a regulator in the development of an enabling environment for access to sub hundred dollar mobile devices. This paper is founded on four assumptions: first, that access to sub hundred dollar mobile devices is influenced by their price; second, that the question of access necessitates conversation between the intellectual property regime and several other actors, sites and tools; third, that one of the fundamental goals of regulatory reform is the creation of a ‘stable, open and future- proof environment’ (Guermazi and Satola, 2005) that encourages access to these devices; and fourth, that there exist public law implications of intellectual property that justify the involvement of State actors and regulators in matters that may arise out of private transactions.</p>
<p style="text-align: justify; ">This article will examine whether there is a role to be played by competition law in this narrative of innovation, intellectual property and access to sub hundred dollar mobile devices. In light of increasing litigation around standard essential patents, and the inability of FRAND and International Standard Setting Organizations to find a comprehensive solution, this paper will question the efficacy of competition law as an ex post solution to a problem that might be better addressed by ex ante regulation from a specialized body.</p>
<p style="text-align: justify; ">In an attempt to address these questions, this article will examine the role of the Competition Commission of India and the Indian Judiciary. Orders of the Competition Commission will be studied from its inception till March, 2015, in order to draw conclusions about the role that the Commission identifies for itself and the nature of disputes it adjudicates. This article will also examine the role of similarly placed institutions in the United States of America as well as some member states of the European Union.</p>
<p style="text-align: justify; ">It will be argued that while Competition Law might address some of the issues arising out of litigation around standard essential patents, and might be a tool to increase access to sub hundred dollar mobile devices, its efficacy as a long term solution in light of its nature as an ex post solution, is questionable. Consequently, it might be prudent to have a conversation leaning towards exante regulation of the market place by a specialized regulator.</p>
<hr />
<p>The paper was published by <a class="external-link" href="http://www.sociolegalreview.com/standard-essential-patents-on-low-cost-mobile-phones-in-india-a-case-to-strengthen-competition-regultion/">Socio Legal Review</a> (National Law School of India University). Download the PDF <a href="http://editors.cis-india.org/a2k/blogs/Standard-Essential-Patents-on-Low-Cost-Mobile-Phones-in-India-A-Case-to-Strengthen-Competition-Regulation.pdf" class="internal-link">here</a>.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/the-socio-legal-review-nehaa-chaudhari-standard-essential-patent-on-low-cost-mobile-phones-in-india'>http://editors.cis-india.org/a2k/blogs/the-socio-legal-review-nehaa-chaudhari-standard-essential-patent-on-low-cost-mobile-phones-in-india</a>
</p>
No publishernehaaPatentsCompetition LawCompetitionAccess to Knowledge2016-04-24T04:42:52ZBlog EntryThe new Guidelines for Computer Related Inventions are a big win for FOSS in India!
http://editors.cis-india.org/a2k/blogs/the-new-guidelines-for-computer-related-inventions-are-a-big-win-for-foss-in-india
<b>India is one of the few countries which permits patenting of software – a monopolization that has only benefited established corporations and largely throttled innovation in the software industry, worldwide. CIS has consistently advocated against patentablity of software and in a major victory last week, software patenting in India died a little more. This happened via the newly issued Guidelines for the Examination of Computer Related Inventions, which introduces a new test to restrict software patenting – in essence the same legal test that CIS had been proposing since 2010. This post highlights the new test and other noteworthy changes in the Guidelines. </b>
<p> </p>
<p>When
the Guidelines for examination of Computer Related Inventions(“
2015 Guidelines”) were released last year, it became <a href="http://www.livemint.com/Industry/XGBbgNllmvuEUhJWs2cWgK/Revised-guidelines-for-software-patents-put-on-hold.html">obvious
that they would have an adverse impact on innovation in the Indian
software industry</a>. Further, the 2015 Guidelines were legally
defective since they ran counter to the object of Section 3(k) of the
Patents Act, 1970, which is to unconditionally exclude mathematical
and business methods, computer programs per se, and algorithms from
patentable subject matter. To stop and prevent egregious harms, <a href="http://sflc.in/wp-content/uploads/2015/09/Letter_CRIGuidelines2015-Prime-Minister.pdf">civil
society organisations collectively wrote to the Prime Minister's
Office</a> flagging off the defects and requested for a recall of the
Guidelines. In
December 2015, the Indian Patent Office <a href="http://cis-india.org/a2k/blogs/guidelines-for-examination-of-computer-related-inventions-in-abeyance">promptly
recalled the 2015 Guidelines</a> and held a consultation to discuss
the concerns raised in the letter.</p>
<p>Based
on submissions by various stakeholders, the Patent Office released a
<a href="http://ipindia.nic.in/iponew/GuidelinesExamination_CRI_19February2016.pdf">new
set of Guidelines</a>(“Guidelines”), which are not only a
staggering improvisation from all previous versions, but also
introduce a new three step test to determine applicability of section
3(k), an area of Indian patent law that has been notoriously full of
uncertainties:</p>
<blockquote>
<p>5.
Tests/ Indicators to determine Patentability of CRIs (“Computer
Related inventions”):</p>
<p>Examiners
may rely on the following three stage test in examining CRI
applications:</p>
<p>(1)
Properly construe the claim and identify the actual contribution;</p>
<p>(2)
If the contribution lies only in mathematical method, business method
or algorithm, deny the claim;</p>
<p>(3)
If the contribution lies in the field of computer programme, check
whether it is claimed in conjunction with a novel hardware and
proceed to other steps to determine patentability with respect to the
invention. The computer programme in itself is never patentable. If
the contribution lies solely in the computer programme, deny the
claim. If the contribution lies in both the computer programme as
well as hardware, proceed to other steps of patentability.</p>
</blockquote>
<p> </p>
<p>CIS
had proposed the exact same test in its <a href="http://cis-india.org/a2k/blogs/cis-submission-draft-patent-manual-2010">earlier
submissions(2010)</a> to the Patent Office, albeit worded differently. We
submitted:</p>
<blockquote>
<p><em>"We
propose a new part to the above test to make the clause clearer. The
Manual should specify that “the computer programme portions of any
claimed invention should be treated as if it were covered by prior
art and patentability should thus be determined with respect to the
other features of the invention”. This way, we can ensure that an
invention which merely uses or implements a computer programme is not
granted patent on the basis of the inventiveness of the computer
programme </em>per
se<em>."</em></p>
</blockquote>
<p>Further,
the Guidelines also recognise that CRIs may fall under sections 3(k), 3(l), 3(m) and 3(n):</p>
<blockquote>
<p>2.2. The Patents (Amendment) Act, 2002 also introduced explicit exclusions from patentability under section 3 for CRIs as under:</p>
<p>3(k)
a mathematical or business method or a computer programme per se or
algorithms;</p>
<p>(l)
a literary, dramatic, musical or artistic work or any other aesthetic
creation whatsoever including cinematographic works and television
productions;</p>
<p>(m)
a mere scheme or rule or method of performing mental act or method of
playing game;</p>
<p>(n)
a presentation of information;</p>
</blockquote>
<p>And thus CRIs as such cannot be patentable, if they fall in either of the above
mentioned exclusions. Overall,
the new Guidelines offer more clarity and stick to the Patents Act,
1970's intention of disqualifying patentability of computer
programmes per se. We will soon post a detailed analysis of the Guidelines. In the meantime, you may read CIS' research on the subject in the section below.</p>
<h3><br /></h3>
<h3>CIS' Research and Submissions against Software Patenting<br /></h3>
<p>Over
the past years, CIS has produced research and consistently made
submissions advocating the roll- back of software patenting:</p>
<p><a name="parent-fieldname-title4"></a><a href="http://cis-india.org/a2k/blogs/arguments-against-software-patents">Arguments
Against Software Patents in India, 2010</a></p>
<p><a name="parent-fieldname-title"></a><a href="http://cis-india.org/a2k/blogs/cis-submission-draft-patent-manual-2010">CIS
Submission on Draft Patent Manual, 2010</a></p>
<p><a name="parent-fieldname-title1"></a><a href="http://cis-india.org/a2k/blogs/comments-on-draft-guidelines-for-computer-related-inventions">Comments
on the Draft Guidelines for Computer Related Inventions, 2013</a></p>
<p><a name="parent-fieldname-title3"></a><a href="http://cis-india.org/a2k/blogs/guidelines-for-examination-of-computer-related-inventions">Guidelines
for Examination of Computer Related Inventions: Mapping the
Stakeholders' Response</a>, 2014</p>
<p><a name="parent-fieldname-title2"></a><a href="http://cis-india.org/a2k/blogs/comments-on-the-guidelines-for-examination-of-computer-related-inventions-cris">Comments
on the Guidelines for Examination of Computer Related Inventions
(CRIs), 2015</a></p>
<p><a href="http://cis-india.org/a2k/blogs/cis-submission-to-indian-patent-office-on-examples-of-excluded-patentable-subject-matter-under-section-3-k-for-incorporation-in-the-yet-to-be-released-guidelines-for-computer-related-inventions">CIS'
submission to Indian Patent Office on Examples of Excluded Patentable
subject-matter under Section 3(k) for incorporation in the
yet-to-be-released Guidelines for Computer Related Inventions</a>,
2016</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/the-new-guidelines-for-computer-related-inventions-are-a-big-win-for-foss-in-india'>http://editors.cis-india.org/a2k/blogs/the-new-guidelines-for-computer-related-inventions-are-a-big-win-for-foss-in-india</a>
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No publishersinhaFeaturedPatentsAccess to KnowledgeSoftware Patents2016-02-24T06:30:37ZBlog EntryCIS' submission to Indian Patent Office on Examples of Excluded Patentable subject-matter under Section 3(k) for incorporation in the yet-to-be-released Guidelines for Computer Related Inventions
http://editors.cis-india.org/a2k/blogs/cis-submission-to-indian-patent-office-on-examples-of-excluded-patentable-subject-matter-under-section-3-k-for-incorporation-in-the-yet-to-be-released-guidelines-for-computer-related-inventions
<b>The Patent Office had put the Guidelines on Computer Related Inventions, 2015 in abeyance last month. This step was taken after several stakeholders including CIS made representations to the Office about serious substantive legal issues in the document. In furtherance of the consultative process, a meeting was conducted in Mumbai with various stakeholders, chaired by the Controller General of Patents Design Trademarks (“CGPTDM”). Anubha Sinha participated in the meeting, after which the CGPTDM invited submissions from stakeholders on specific examples on exclusions from patentability under section 3(k) of the Patents Act, 1970, for possible incorporation in the Guidelines for Examination of Computer Related Inventions.</b>
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<p style="text-align: justify;" class="Standard">This post contains CIS' submission on specific examples on exclusions from patentability under section 3(k). <strong>You may view the Guidelines <a href="http://www.ipindia.nic.in/iponew/CRI_Guidelines_21August2015.pdf">here</a>. To read the letter sent to the PMO, click <a href="http://sflc.in/joint-letter-to-the-pmo-expressing-concerns-over-the-guidelines-for-examination-of-computer-related-inventions-cris/">here</a>. To read CIS' analysis of the Guidelines, click <a href="http://cis-india.org/a2k/blogs/comments-on-the-guidelines-for-examination-of-computer-related-inventions-cris">here</a>. <br /></strong></p>
<p style="text-align: justify;" class="Standard"><strong><em>It is worth noting that the IPO requested for negative examples of patentability [CRIs that cannot be patented under the Act]. While it is commendable that the IPO sought inputs from stakeholders for negative examples, stakeholders have often requested the IPO to provide positive examples of patentable CRIs. The yet-to-be-released-Guidelines should also mention a sufficient number of positive examples to provide better clarity to stakeholders.</em></strong></p>
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<p style="text-align: center;">ILLUSTRATIVE EXAMPLES ON EXCLUSION FROM PATENTABILITY OF COMPUTER RELATED INVENTIONS<br />to<br />THE HON'BLE CONTROLLER GENERAL OF PATENTS DESIGNS AND TRADEMARKS<br />by<br />THE CENTRE FOR INTERNET AND SOCIETY, INDIA</p>
<p style="text-align: justify;"><strong>I. PRELIMINARY</strong></p>
<p style="text-align: justify;">1. This submission presents specific examples on exclusions from patentability, under section 3(k) of the Patents Act, 1970, for possible incorporation in the Guidelines for Examination of Computer Related Inventions.</p>
<p style="text-align: justify;">2. This submission is based on the Guidelines for Examination of Computer Related Inventions released in September 2015("2015 Guidelines/ Guidelines"). The Guidelines are in abeyance, presently.</p>
<p style="text-align: justify;">3. The Centre for Internet and Society ("CIS") commends the Hon'ble Controller General of Patents Designs and Trademarks ("CGPTDM"), Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India for its efforts at seeking inputs from various stakeholders. CIS is thankful for the opportunity to have been a part of this discussion since 2008; and to provide this submission in furtherance of of the feedback process continuing from the stakeholders' meeting conducted by the Hon'ble CGPTDM on 19.01.2016.</p>
<p style="text-align: justify;"><strong>II. OVERVIEW</strong></p>
<p style="text-align: justify;">4. The Centre for Internet and Society is a non-governmental organization engaged in research and policy work in the areas of, <em>inter alia</em>, intellectual property rights, access to knowledge and openness.<a name="_ftnref1" href="#_ftn1">[1]</a> This submission is consistent with CIS' commitment to safeguarding general public interest, and the interests and rights of various stakeholders involved. Accordingly, this submission aims to further these principles.</p>
<p style="text-align: justify;"><strong>III. SUBMISSIONS</strong></p>
<p style="text-align: justify;">5. Broadly, we submit that the Guidelines narrowed the legal exclusions on patentable subject matter in section 3(k). Consequently, the Guidelines were arguably in violation of section 3(k).</p>
<p style="text-align: justify;">6. To supply clarity to the examination procedure, CIS has proposed a definition to "computer programme per se" in its previous submissions to the Indian Patent Office :</p>
<p style="text-align: justify;"><em> "Computer programme per se in the relevant clause means (a) any computer programme in the abstract, (b) any computer programme expressed in source code form, including source code recorded on an information storage medium, or (c) any computer programme that can be executed or executes on a general purpose computer, including computer programme object code designed for execution on a general purpose computer that is recorded on an information storage medium."<a name="_ftnref2" href="#_ftn2"><em><strong>[2]</strong></em></a> </em></p>
<p style="text-align: justify;"><em> Further, since the inclusion of computer programmes in a broader application should not render the application ineligible subject matter, CIS previously proposed an addition to the test: </em></p>
<p style="text-align: justify;"><em> "We propose a new part to the subject-matter test to make the clause clearer. The Manual should specify that "the computer programme portions of any claimed invention should be treated as if it were covered by prior art and patentability should thus be determined with respect to the other features of the invention". This way, we can ensure that an invention which merely uses or implements a computer programme is not granted patent on the basis of the inventiveness of the computer programme </em> per se<em>." <a name="_ftnref3" href="#_ftn3"><em><strong>[3]</strong></em></a></em></p>
<p style="text-align: justify;">7. Accordingly, CIS would like to highlight examples of specific patent applications on exclusions from patentability, under section 3(k) of the Patents Act, 1970, for considering their possible incorporation in the Guidelines. The applications are:</p>
<h3 style="text-align: justify;">7.1 Application No.: 112/CHE/2008</h3>
<p style="text-align: justify;"><strong>Title: Bill payment card method and system</strong></p>
<p style="text-align: justify;">The Asst. Controller General correctly examined and rejected the invention on the grounds of it purely relating to a business method and processor configured software. Applicant had contended, <em>inter alia</em>, that the method claimed a series of steps being executed with hardware features , including a communication network, communication link and other hardware peripherals intrinsic to the execution of the claimed method.</p>
<p style="text-align: justify;">Further, in their reply to the objections in the FER, the applicants stated:</p>
<p style="text-align: justify;"><em> " There is present a database to perform the functions of the card electronically. The processor is configured to receive information, transmit information and/or authorize the card and associated information thereof. The processor may be configured to produce reports, issue reports, confirmation receipt etc. </em></p>
<p style="text-align: justify;"><em> It also consists of a card which may include electronic and/or magnetic features e.g. a microprocessor, memory and an electronic chip, a magnetic strip, a USB flash drive and a wireless communication device. The card may be configured to communicate with a wired devices, such as by USB, coaxial cable..." </em></p>
<p style="text-align: justify;"><em> "...The whole process brings out technical effect in a way that this system allows for the payment of bills without the use of a bank account, credit card, or money order. Hence it is a system with technical features producing technical effect. Hence, enhancement of a business or teaching a way in which a business is carried out is essentially not the the prime motive of the instant invention. With its technical character, technical features and enhancement in business comes as by-product of the implementation of the instant invention." </em></p>
<p style="text-align: justify;">The invention was rejected.</p>
<h3 style="text-align: justify;">7.2 Application No.: 48/CHE/2005</h3>
<p style="text-align: justify;"><strong>Title: Structured approach to software specification</strong></p>
<p style="text-align: justify;">The applicant asserted in their reply to the FER<a name="_ftnref4" href="#_ftn4">[4]</a> that the claims related to an information managing system including at least on processing unit, a system memory, a system bus, a LAN, a remote computer, a video adapter and monitor and a software architecture performing a particular task or implement particular abstract data types. As a result, they contended that the said invention did not fall under the purview of section 3(k) of the Indian Patents Act, 1970.</p>
<p style="text-align: justify;">The application was correctly rejected by the Controller in the first instance itself.</p>
<h3 style="text-align: justify;">7.3 Application No.: 2019/CHENP/2004</h3>
<p style="text-align: justify;"><strong>Title: Apparatus and method of a distributed capital system</strong></p>
<p style="text-align: justify;">The FER included objections regarding lack of novelty, inventiveness, lack of constructive features, lack of support for the word "means" , objections towards a business method, computer program per- se towards an algorithm (objections incl. 3(k)) per se and also towards claims relating to mere medium etc.</p>
<p style="text-align: justify;">Further, it was stated by the Office that even the amended claims failed to overcome the said objections because, inter alia, " <em> the subject matter of the claims related to a method of carrying out financial transactions with one or more parties in a Distributed capital system implemented by pure software I algorithms per-se. The said method is a mere business method/algorithm which is implemented in a computer network through software modules."<a name="_ftnref5" href="#_ftn5"><strong>[5]</strong></a> </em> <em> </em></p>
<p style="text-align: justify;"><em> </em> The invention was rejected.</p>
<h3 style="text-align: justify;">7.4. Application No.: 4986/DELNP/2006</h3>
<p style="text-align: justify;"><strong>Title: A method of tracking a radio frequency signal by means of electronic equipment.</strong></p>
<p style="text-align: justify;">The objections in the FER were that, the subject matter claimed fell within the scope section 3(k) as amended by the Patents (Amendment) Act 2005, for being algorithm based method. Subject matter as described and claimed in computer program product claims as well fell within the scope of section 3(k), for being relating to computer program per se. The examination correctly disregarded the implementation of the invention on electronic equipment.</p>
<p style="text-align: justify;">The invention was rejected.</p>
<h3></h3>
<h3 style="text-align: justify;">7.5 Application No.: 1405/MUMNP/2008</h3>
<p style="text-align: justify;"><strong>Title: Method for determining an output value from a sensor in automation engineering</strong></p>
<p style="text-align: justify;">Order issued u/s 15 clearly pointed out that the contribution of the applicant was a mathematical method to determine the output variable from the input variable. And since mathematical methods were intellectual in nature, the invention lacked technical advancement.</p>
<p style="text-align: justify;">The invention was rejected.</p>
<h3 style="text-align: justify;">7.6. Application No.: 914/CHE/2007</h3>
<p style="text-align: justify;"><strong>Title: A system, method to generate transliteration and method for generating decision tree to obtain transliteration</strong></p>
<p style="text-align: justify;">One of the claims read:</p>
<p style="text-align: justify;"><em> "A system to generate transliteration of source language script into target language script using decision tree based technique with automated supervised learning, said system comprising of </em></p>
<p style="text-align: justify;"><em>i. </em> <em>a device having memory;</em></p>
<p style="text-align: justify;"><em>ii. </em> <em>an input device for entering text;</em></p>
<p style="text-align: justify;"><em>iii. </em> <em>transliteration engine to maintain patterns and predetermined rules used in transliteration of source language script into target language script;</em></p>
<p style="text-align: justify;"><em>iv. </em> <em>a display device for displaying entered text and transliterated textl and</em></p>
<p style="text-align: justify;"><em>v. </em> <em>an interface to enable typing in any language and optionally to integrate the transliteration system into existing web-pages."</em></p>
<p style="text-align: justify;">The application was correctly rejected by the Examiner for on grounds of falling under section 3(k), <em>inter alia</em>.</p>
<p style="text-align: justify;">8. CIS welcomes the initiative of the Hon'ble CGPTDM to provide said illustrative examples. CIS believes that it is essential that the Guidelines avoid violation of section 3(k), and are formed complying with the Indian Patents Act, 1970 and relevant judicial decisions; and keeping in mind the legislative intent.</p>
<p style="text-align: justify;">9. CIS would be willing discuss these submissions with the Hon'ble CGPTDM; and supplement them with further submissions if necessary, and offer any other assistance towards the efforts at developing a Guidelines for Examination of Computer Related Inventions.</p>
<p style="text-align: justify;"><strong>On behalf of the Centre for Internet and Society</strong><br /><strong>Anubha Sinha<br />Programme Officer</strong></p>
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<p><a name="_ftn1" href="#_ftnref1">[1]</a> <em> See</em> <a href="http://www.cis-india.org/">www.cis-india.org</a> for details about CIS' work.</p>
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<p><a name="_ftn2" href="#_ftnref2">[2]</a> Pranesh Prakash, CIS' submission on Draft Patent Manual 2010 , available at < <a href="http://cis-india.org/a2k/blogs/cis-submission-draft-patent-manual-2010"> http://cis-india.org/a2k/blogs/cis-submission-draft-patent-manual-2010 </a> ></p>
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<p><a name="_ftn3" href="#_ftnref3">[3]</a> Ibid.</p>
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<p><a name="_ftn4" href="#_ftnref4">[4]</a> <em> See</em> First Examination Report, available at <<a>48-CHE-2005 EXAMINATION REPORT REPLY RECEIVED 31-05-2013.pdf</a>></p>
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<p><a name="_ftn5" href="#_ftnref5">[5]</a> <em> See</em> First Examination Report for Application No.: 2019/CHENP/2004</p>
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For more details visit <a href='http://editors.cis-india.org/a2k/blogs/cis-submission-to-indian-patent-office-on-examples-of-excluded-patentable-subject-matter-under-section-3-k-for-incorporation-in-the-yet-to-be-released-guidelines-for-computer-related-inventions'>http://editors.cis-india.org/a2k/blogs/cis-submission-to-indian-patent-office-on-examples-of-excluded-patentable-subject-matter-under-section-3-k-for-incorporation-in-the-yet-to-be-released-guidelines-for-computer-related-inventions</a>
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No publishersinhaPatentsAccess to Knowledge2016-02-22T09:36:52ZBlog Entry