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Workshop on Competition Law and Policy
http://editors.cis-india.org/a2k/news/workshop-on-competition-law-and-policy
<b>National School of Law India University and the Delegation of European Union to India jointly organized a workshop at Competition Commission of India in New Delhi from October 19 - 21, 2016. Anubha Sinha and Rohini Lakshané participated and made presentations. </b>
<p style="text-align: justify; ">The workshop was organized under the broader EU-India project titled "Capacity Building Initiative in Competition Area under Trade Development Programme" sponsored jointly by European Union Delegation and National Law School of India University, Bengaluru.</p>
<h3 style="text-align: justify; ">Download</h3>
<ul>
<li><a href="http://editors.cis-india.org/a2k/blogs/workshop-brochure-cci.pdf" class="internal-link">Workshop brochure</a></li>
<li>Anubha Sinha's presentation on "<a href="http://editors.cis-india.org/a2k/blogs/cci-presentation.pdf" class="internal-link">Investigation into the sub $100 Mobile Device Industry from IPR + Competition law lens</a>"</li>
<li>Rohini Lakshané's presentation on <a href="http://editors.cis-india.org/a2k/blogs/cci-workshop-on-competition-law-and-policy.pdf" class="external-link">CCI Workshop on Competition Law and Policy Competition Policy and Internet</a></li>
</ul>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/news/workshop-on-competition-law-and-policy'>http://editors.cis-india.org/a2k/news/workshop-on-competition-law-and-policy</a>
</p>
No publisherpraskrishnaIntellectual Property RightsAccess to KnowledgePervasive Technologies2016-10-23T01:51:25ZNews 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 EntrySub$-100 Phones: Browser Compatibility Tests
http://editors.cis-india.org/a2k/blogs/sub-100-phones-browser-compatibility-tests
<b>This post documents the results of browser compatibility tests conducted on six out of eight specimen mobile phones being studied under the Pervasive Technologies project. These phones are Internet-enabled and cost the equivalent of USD 100 or less in India. Rohini Lakshané and CIS volunteer Dhananjay Balan carried out the tests. Intern Shreshth Wadhwa provided assistance.</b>
<ul>
<li>Names and descriptions of mobile phones under study: <a class="external-link" href="http://cis-india.org/a2k/blogs/annexure-1-mobile-phones-to-study.pdf">Annexure 1</a></li>
<li>How the phones under study were chosen: <a class="external-link" href="http://cis-india.org/a2k/blogs/patent-landscaping-in-the-indian-mobile-device-market">Section 3.2: Criteria for choosing the mobile phones</a></li>
</ul>
<hr />
<h3 style="text-align: justify; ">Research Question:</h3>
<p>What technical standards are browsers pre-installed in the eight test phones compatible with?</p>
<p>This question partially answers research question #2 in <a class="external-link" href="http://cis-india.org/a2k/blogs/patent-landscaping-in-the-indian-mobile-device-market">Methodology: Patent Landscaping in the Indian Mobile Device Market</a>, that is, what patents pertain to [technical] capabilities commonly found in networked mobile devices sold in India for USD 100 or less?</p>
<h3 style="text-align: justify; ">Method:</h3>
<p style="text-align: justify; ">We conducted tests on all browsers pre-installed, that is, installed by the manufacturer, on six mobile phones to understand their extent of compliance with technical standards for the web. All browsers were tuned to their default settings and no plugins or extensions were installed in them. The tests could not be run on two phones for reasons stated in "Limitations".<br /><br />For Android v4.0 (Ice Cream Sandwich) and higher versions, we set up a local host and automated all the tests by using a script. The local host was set up to expose sample HTTP endpoints. We tested all browsers through this server.<br /><br />A Shell script was used to acquire screenshots of the results of the tests:<br /><i>#!/bin/bash<br /><br />adb shell screencap -p $1<br />adb pull $1</i><br /><br />We collected screenshots of devices with Android versions below v4.0 by capturing the framebuffer since the shell command was introduced in v4.0.</p>
<p style="text-align: justify; "><b>Script:</b> Github - https://gist.github.com/dbalan/e58f51b713bfd6d711fd02061e27ca90 or <b><a href="http://editors.cis-india.org/a2k/blogs/github" class="internal-link">Download as .zip</a></b>.</p>
<p style="text-align: justify; ">Android version numbers, where applicable, can be found in the “User Agent” row of the test results. We took photos of the screens for the rest of the devices.</p>
<h3 style="text-align: justify; ">Standards and capabilities tested:</h3>
<p><b>Browser Network Support</b></p>
<ol>
<li>HTTP/1.1</li>
<li>HTTP/2</li>
<li>SSL</li>
<br /></ol>
<p><b>Acid Tests</b></p>
<p>Acid tests 1, 2, and 3 (http://www.acidtests.org) were run on all phones.</p>
<p style="text-align: justify; ">Acid 1 tests for compliance to the CSS 1.0 standard; Acid 2 for HTML 4, CSS 2.1, PNG, and data URLs. Acid 3 for SVG, HTML, SMIL, Unicode, DOM, ECMAScript (Javascript), and CSS 3, among other parameters. Here is the full list of specifications tested by Acid 3: http://www.webstandards.org/action/acid3/x</p>
<p style="text-align: justify; "><b>Image Formats</b></p>
<ul>
<li>JPEG</li>
<li>GIF</li>
<li>PNG</li>
</ul>
<ul>
</ul>
<h3></h3>
<h3></h3>
<h3>Results</h3>
<p>View as <a href="http://editors.cis-india.org/a2k/blogs/sub-100-mobile-phones-browser-compatibility-tests" class="internal-link">.ods</a>; View as <a class="external-link" href="http://cis-india.org/a2k/blogs/sub-100-phones-browser-compatibility">.xls</a></p>
<h3></h3>
<h3></h3>
<h3>Reading the results:</h3>
<p>User-agent string</p>
<p><i>Example 1: Micromax Canvas Engage A091<br />User-agent: Mozilla/5.0 (Linux; Android 4.4.2; Micromax A091 Build/A091) AppleWebKit/537.36 (KHTML, like Gecko) Chrome/34.0.1847.114 Mobile Safari/537.36</i></p>
<p style="text-align: left; "><b>Mozilla/5.0</b>: Mozilla Firefox browser, version number<br />This is a user-agent token.</p>
<p><b>Linux</b>: Linux kernel<b> </b></p>
<p><b>Android 4.4.2:</b> Operating system, version number<b> </b></p>
<p style="text-align: left; "><b>Micromax</b> <b>A091</b>: Device ID</p>
<p style="text-align: left; "><b>Build/A091:</b> Build number.</p>
<p style="text-align: left; ">This is a customised Android build by Micromax. (Build numbers of stock Android 4.4.2 are KOT49H and KVT49L).<b> </b></p>
<p style="text-align: left; "><b>AppleWebKit/537.36</b>: WebKit, version number. WebKit by Apple is a component of a layout engine that renders web pages in browsers. It is based on KHTML.KHTML: HTML layout engine developed by KDE. Licensed LGPL.</p>
<p style="text-align: left; "><b>like Gecko</b>: A browser that behaves like a Gecko browser<br /><b> </b></p>
<p style="text-align: left; "><b>Chrome/34.0.1847.114</b>: Chrome for Android browser, version number<br /><b> </b></p>
<p style="text-align: left; "><b>Mobile:</b> Either mobile browser or mobile device, or both <br /><b> </b></p>
<p style="text-align: left; "><b>Safari/537.36:</b> Apple Safari browser, version number</p>
<p><i>Example 2: Opal Cyher-Shot NX900<br />User-agent: Dorado WAP-Browser/1.0.0/powerplay/2</i></p>
<p><b>Dorado WAP-Browser/1.0.0:</b> User agent key, version</p>
<p>This is a WAP browser for mobile phones <a class="external-link" href="https://www.google.com/url?q=http://thadafinser.github.io/UserAgentParserComparison/v4/user-agent-detail/d5/a6/d5a63f05-4b47-48b9-bcf6-9f1ff3d90867.html%23&sa=D&ust=1468082385035000&usg=AFQjCNEAjT9HLfuO9JJIzoAKXm095JixAA">based on a Java engine</a>. <i><br /></i></p>
<h3>Observations:</h3>
<p>Browsers pre-installed on phones of Indian brands comply with all technical standards and capabilities tested for. All of these phones -- Intex, Lava and Micromax -- also run on the Android operating system. In the case of failed tests, the results are the same or similar for most mobile phones. For example, Opera Mini 7.5 on Intex Aqua N15 and on Micromax Canvas Engage A091 scored 97/100 in the Acid3 test. This is in line with the <a class="external-link" href="http://d30ohmzj0cjdlk.cloudfront.net/en/Acid3">results released by Acid</a> for Opera Mini 7.5 and also by the <a class="external-link" href="http://www.browserscope.org/?category=acid3&v=top&ua=Opera%20Mini*&o=csv">Browserscope</a> project for profiling web browsers.</p>
<p>Awang, Yestel and Opal are brands from China or Hong Kong. The only pre-installed browser on Awang A808, an Android v2.3 (Gingerbread) phone, also cleared all tests but one. It scored 95/100 in the acid3 test, which is the case for the Firefox browser on most Gingerbread phones. The browsers on non-Android phones Yestel and Opal failed the tests for Acid1, Acid2, Acid3 and HTTP2, which indicates that while these phones are technically Internet-enabled, their users do not enjoy many of the benefits of the modern web.</p>
<h3>Screenshots or photos of results:</h3>
<p><a href="http://editors.cis-india.org/a2k/blogs/photos-and-screenshots" class="internal-link">View photos and screenshots</a><br />The name of the file is in the format: <name of browser>_<name of format/ acid test with number>.<file extension><br />In the case of default browsers, <name of browser> appears as “android”.</p>
<h3>Limitations:</h3>
<p>Eight phones were under study. However, one of the phones (HiBro) did not contain a pre-installed browser. The only way to access the Internet on this phone was through pre-installed apps such as Facebook.</p>
<p>The operating system of Kechaoda K16, which was Java-based, did not yield to the script used for running the tests. It had one pre-installed WAP browser. Both these phones were excluded from the tests.<br /><br />Screenshots could not be obtained for the results of tests of two phones, Opal Cyher-Shot NX900 and Yestel Q5S+. We took photos of their screens instead.</p>
<ol> </ol>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/sub-100-phones-browser-compatibility-tests'>http://editors.cis-india.org/a2k/blogs/sub-100-phones-browser-compatibility-tests</a>
</p>
No publisherrohiniIntellectual Property RightsAccess to KnowledgePervasive Technologies2017-02-16T16:47:02ZBlog 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>
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</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 EntryDataset: Patent Landscape of Mobile Device Technologies in India
http://editors.cis-india.org/a2k/blogs/dataset-patent-landscape-of-mobile-device-technologies-in-india
<b>Patent landscape of mobile technology patents and patent applications held by 50 companies operating in India. Licensed CC-BY-SA 4.0.</b>
<p><a href="http://editors.cis-india.org/a2k/blogs/cis-mobile-device-patent-landscape" class="internal-link">Dataset: Patent Landscape of Mobile Device Technologies in India</a></p>
<p>This dataset contains a landscape of 23,569 patents and patent applications registered in India and relevant to the domain of mobile technology. These patents and patent applications are held by 50 Indian and non-Indian companies operating in the country. The patent landscape has been released under the Creative Commons-Attribution-Share Alike 4.0 (CC-BY-SA 4.0) License as a part of the ongoing Pervasive Technologies research project.</p>
<p>For the detailed methdology used for drawing up this landscape, read: <a class="external-link" href="http://cis-india.org/a2k/blogs/patent-landscaping-in-the-indian-mobile-device-market">Methodology: Patent Landscaping in the Indian Mobile Device Marketplace</a></p>
<p>A paper titled <a class="external-link" href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2756486">"Patents and Mobile Devices in India: An Empirical Survey"</a> published on SSRN in March 2016 presents an analyis of this patent landscape.</p>
<p>For queries regarding the dataset or its reuse, write to <a class="mail-link" href="mailto:rohini@cis-india.org">rohini@cis-india.org</a>.</p>
<h3>Using this dataset:</h3>
<p><b>Assignee:</b> The assignee is one of 50 companies specified in<a class="external-link" href="http://cis-india.org/a2k/blogs/fifty-companies.pdf"> Annexure 4</a> of the methodology document. 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><b>Patent Number:</b> This column contains the patent number in the case of granted patents and the application number in case of patent applications. Patent numbers have been coded in the Thomson Reuters database as IN<6 digit number>B. For example, the patent number 247760 in the Indian Patent Office database is coded as IN247760B in this dataset. The application number is coded as well. However, there is a separate column (Column R) for the application number as given in the Indian Patent Office database.</p>
<p><b>Level 1: </b>Patents and patent applications in the landscape have been categorised into: Body Design, Communication, Connectable Interfaces, Display, Energy Storage, Memory, Operational Blocks, Sensors, Software, and Sound, image and video.</p>
<p><b>Level 2: </b>Almost all categories have further been divided into sub-categories, i.e., Level 2 categories.</p>
<p><b>Infrastructure/ UE: </b>Refers to whether the patent pertains to infrastructure and the user equipment (IUE) or only the user equipment (UE).</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/dataset-patent-landscape-of-mobile-device-technologies-in-india'>http://editors.cis-india.org/a2k/blogs/dataset-patent-landscape-of-mobile-device-technologies-in-india</a>
</p>
No publisherrohiniFeaturedAccess to KnowledgePervasive Technologies2016-05-03T20:06:43ZBlog EntryPatents and Mobile Devices in India: An Empirical Survey
http://editors.cis-india.org/a2k/blogs/patents-and-mobile-devices-in-india-an-empirical-survey
<b>Though India has the second-largest wireless subscriber base in the world, with more than 150 mobile device vendors, it has, until recently, remained relatively unaffected by the global smartphone wars. Over the past three years, however, a growing number of patent enforcement actions have been brought by multinational firms against domestic Indian producers. These actions, which have largely resulted in judgments favoring foreign patent holders, have given rise to a variety of proposals for addressing this situation.
</b>
<p style="text-align: justify; ">In order to assess the potential impact of patents on the mobile device market in India, and to assist policy makers in formulating and implementing regulations affecting this market, we have conducted a comprehensive patent landscape analysis of the mobile device sector in India using public data relating to Indian patent ownership by technology type, nationality, and industry classification. Our results illuminate a number of important features of the Indian mobile device market, including the overwhelming prevalence of foreign patent holders, the rate at which foreign and domestic firms are obtaining patents, and how these patent holdings are likely to shape industrial dynamics in the Indian market for mobile devices, as well as the availability of low-cost mobile devices that can significantly enhance public health, agriculture, safety and economic development throughout India.</p>
<p style="text-align: justify; "><b><a href="http://editors.cis-india.org/a2k/blogs/SSRN-id2756486.pdf/view" class="external-link">Download the full paper here</a></b></p>
<p style="text-align: justify; "><b><i>This paper was <a class="external-link" href="https://www.vanderbilt.edu/jotl/2017/02/patents-and-mobile-devices-in-india-an-empirical-survey/">published by the Vanderbilt Journal of Transnational Law </a>on February 9, 2017.</i><br /></b></p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/patents-and-mobile-devices-in-india-an-empirical-survey'>http://editors.cis-india.org/a2k/blogs/patents-and-mobile-devices-in-india-an-empirical-survey</a>
</p>
No publisherrohiniIntellectual Property RightsAccess to KnowledgePervasive Technologies2017-03-29T04:03:03ZBlog EntryFueling the Affordable Smartphone Revolution in India
http://editors.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
<b>Smartphones have emerged as the exemplar of mankind's quest for shrinking technologies. They embody the realization of a simple premise – that computing devices would do more and cost less. This realization has been responsible for modern society's profound transformations in communication, governance, and knowledge distribution.</b>
<p>The essay was published as part of the <a class="external-link" href="http://www.digitalasiahub.org/thegoodlife/">The Good Life in Asia's Digital 21st Century essay collection</a>.</p>
<hr />
<p style="text-align: justify; ">The launch of the iPhone in 2007 is often credited with ushering in an era of smartphones. Ever since, the world's best tech R&D has focused on increasing the capabilities of these devices. And as a result, less than a decade later, we have sub-hundred dollar smartphones. The low-cost smartphone has found an enthusiastic and insatiable market in developing countries, especially Asia. India is no exception to the Asian narrative – Micromax, Spice, and Lava (low cost smartphone manufacturers) are household names in the Indian smartphone market, which accounted for 65% of internet traffic in 2014 (Meeker, 2015).</p>
<p style="text-align: justify; ">The Indian Prime Minister, carrying the twin aspirations of catalyzing the growth of indigenous manufacturing and bridging the digital divide, launched the “Digital India” and “Make in India” campaigns last year. During his US visit, Google, Apple, Microsoft, Facebook extended their support to the campaigns' vision (Guynn, 2011). The campaigns outline the government's elaborate initiatives to, inter alia, bridge the digital divide and build indigenous manufacturing capacity. While all these developments bode well for the indigenous smartphone, there remain some serious concerns affecting the growth of the industry – for instance, patent infringement litigations and the absence of clear legal and regulatory solutions.</p>
<p style="text-align: justify; ">From the state of the industry and its implications, it can be concluded that: first, growing access to smartphones has been influenced by their phenomenal affordability; second, smartphones are an excellent example of technology for development (UNDP, 2001) and a facilitator of access to knowledge; and third, domestic smartphone production has occurred in an imprecise legal and regulatory environment.</p>
<p style="text-align: justify; ">This essay attempts to build an appreciation for the role that smartphones are playing in development, specifically, by fostering Access to Knowledge. Conversations around development by public-interest groups and emerging industries often espouse Access to Knowledge to address concerns in international development, communications, technology, education, and intellectual property policy. Whereas the principle can be regarded as in-theworks, two theories inform us about the role of mobile phones in fostering Access to Knowledge. Lea Sheaver's theory classifies mobile as an Access-toKnowledge good. Lea enumerates the five key components of a robust Access to Knowledge framework, viz., education for information literacy, access to the global knowledge commons, access to knowledge goods, an enabling legal framework, and effective innovation systems (Sheaver, 2007). According to her, affordability of the good is the ultimate indicator of its efficacy as an access to knowledge good. Furthermore, inventions in microchip technology, electronics manufacturing, and software need to be supported by enabling legal and policy frameworks coupled with effective innovation systems.</p>
<p style="text-align: justify; ">Yochai Benkler's framework classifies mobile-devices as both informationembedded goods and information-embedded tools (Benkler, 2006). He says, “Information-embedded goods are those goods which are ‘better, more plentiful or cheaper because of some technological advance embedded in them or associated with their production,’ such as medicines, movies, and improved crop seed. Information-embedded tools, in turn, are those technologies necessary for research, innovation, and communication of knowledge” (Benkler, 2006). A smartphone qualifies as both because it can be used to obtain knowledge, and it depends on discoveries in microchip technology, electronics manufacturing, and software to function.</p>
<p style="text-align: justify; ">To date, there has been no formal, theoretical or evidentiary investigation on the emergence of smartphones as an Access-to-Knowledge good. In the following sections, I will attempt to explain the smartphone’s dependence on an enabling legal framework and effective innovation systems (Lea's components). It must be borne in mind that globally, discussions affecting access to knowledge have aimed at creating balanced and inclusive systems related to intellectual property (Kapczynski & Krikorian, 2010). Therefore, the essay will focus on: first, the relationship between constituent mobile technologies and intellectual property as a function of production/deployment of smartphones in India; and second, the relationship between innovation and access.</p>
<h3 style="text-align: justify; ">Creating an Enabling Legal Framework to Foster Access to Knowledge</h3>
<p style="text-align: justify; ">The adage “the only lesson you can learn from history is that it repeats itself” is worth bearing in our narrative. The emergence of the smartphones industry in Asia has commonalities with the flourishing Asian piracy trade – which remains an essential access solution for low-income societies constantly barraged by expensive western media goods. The prohibitive cost of acquiring brand-name devices (e.g. Apple, HTC, Samsung, Sony) drove local production to imitate and innovate cheaper substitutes (WIPO, 2010). This occurred within the lenient and flexible intellectual property regimes prevalent in Asian countries, which continue to be constantly criticized for their failure to enact stricter intellectual property law. The hubs of smartphone production – China, Taiwan, and India – have flexible intellectual property protection law and lax enforcement measures (Centre for Internet and Society, 2012).</p>
<p style="text-align: justify; ">Concerns of intellectual property center around patent and copyright legislation, which have yet to be fully developed to address intellectual property in high-tech industries (since trademark issues remain unchanged, they will not be discussed in the essay.) As a result, constituent smartphone technologies have been shaped and governed by a blend of formal and informal rules and legal and illegal practices. This is why they are often referred to as “gray market” technologies. A smartphone in terms of constituent intellectual property can be broadly divided into hardware and software technologies. This piece will first deal with hardware, followed by software technologies.</p>
<h3 style="text-align: justify; ">Hardware Technologies and Their Relationship with IP Law</h3>
<p style="text-align: justify; ">Presently, most Indian manufacturers import hardware from China and Taiwan, and assemble the phones in India. A few key Indian domestic players are Maxx Mobile, Intex, Spice, and Lava, whose dominance have not gone unnoticed by foreign manufacturers. A couple of these domestic manufacturers are now embroiled in patent litigation threats or infringement suits. And as litigation piles up in Indian courts, the judiciary is slowly waking up to mobile patent litigation, but is yet to rule comprehensively. To make matters worse, the jurisdiction of the Indian antitrust regulator remains unclear, and to a certain extent overlaps with the judiciary, adding to the ambiguity. For instance, when an appellate court ruled in favor of the Swedish tech-giant Ericsson, it ordered Micromax to pay a flat 1.25 – 2% of its devices' selling price to Ericsson (Lakshane, 2015). The ruling was devoid of a more rational and reasoned approach developed by courts of other jurisdictions in similar matters, which prescribed that the infringers pay damages based on the price of the patented components only, and not the retail price of the phones. This decision risks causing a significant increase in the price of phones and potentially threatens local innovation.</p>
<p style="text-align: justify; ">The Indian government's Make in India and Digital India campaigns aim to fulfill the vision of a digitally empowered India, and the 2015 Indian Union budget also targets boosting the electronics manufacturing industry. Despite these broad initiatives, there needs to be a more focused policy in place to ensure domestic companies do not get weighed down by patent related concerns. The root cause of litigation is the vesting of a majority of critical mobile patents (Standard Essential Patents, or SEPs) by a handful tech-giants. For instance, Qualcomm owns 5700 patents around CDMA technology (qualcomm.com). In another instance, the DVD format constitutes 311 SEPs for DVD players and 272 SEPs for DVD recorders (CIS, 2012). Such a dense concentration of patents around SEPs creates a patent thicket and thereby compels Smartphone manufacturers to acquire multiple licenses, and to pay high transaction costs and huge royalties to the owner. To reduce conflict and protect domestic players from being arm-twisted into paying high royalties, the government can potentially identify critical technologies and initiate the formation of a patent pool of such technologies. The concept of a patent pool mandates that the patent holders issue licenses on fair, reasonable, and nondiscriminatory basis to interested parties. However, a nuanced and cautious approach to setting up such pools is necessary (Shapiro, 2001).</p>
<p style="text-align: justify; ">There are interesting lessons in China's steps to encourage local innovation of Smartphone hardware as well, specifically in the form of standardized technologies. The Chinese government has actively supported the development of indigenous standards to shield domestic manufacturers from royalty exposure. In fact, the China Blue High-definition Disc (CBHD) standard was built as an alternative to the Blu-ray disc and was duly adopted by the Chinese government, which reportedly caused the royalty rates for the Blu-ray format to dip. Much later, Warner Bros, Paramount, and other motion picture producers adopted the CBHD standard as well for distribution in China.</p>
<h3 style="text-align: justify; ">Software Technologies and Their Relationship with IP Law</h3>
<p style="text-align: justify; ">Unlike hardware technology, where India is struggling to build manufacturing capacity, the success of the Indian software industry has already been realized. The software-as-a-service (SaAS) industry is led by Infosys, TCS, and Wipro in software exports. The prevailing trend in the industry since the 1980s was to assign ownership of their products to offshore clients. However, in the past decade, there has been a conscious shift by the Indian software development workforce to build products for Smartphone platforms. This is in response to the shift in local populations to accessing content and services online. Reports indicate that India has the second largest population of mobile applications developers (approx. 3 million) in the world, second only to the US (Livemint, 2015). The Indian government has recognized the potential of mobile application-based ventures and created funds to encourage app development in India (IAMAI, 2015).</p>
<p style="text-align: justify; ">Intellectual property protection around software is fairly ambiguous. A piece of code is potentially capable of gaining both patent and copyright protection. In the area of mobile application development, preliminary research findings indicate that coding occurs with an agnostic attitude towards intellectual property laws (Cassar, 2014). One of the reasons is ambiguity on a multitude of issues around the protection of software because Indian legislation on patent and copyright is frustratingly insufficient. There is a growing discontentment about long-term patent protection over software code, which could be detrimental to innovation – particularly, to the start-up segment of software industry. In more technologically advanced economies, software patenting has emerged as a scourge – last year, the US Supreme Court in Alice Corporation Pty Ltd v. CLS Bank International Et Al narrowed the eligibility of software inventions to gain patent protection. The activist discourse has shifted in favor of eliminating software patenting because of the incremental and obsolescent nature of a software invention, inter alia (Lapowsky, 2015). However, in a recent disappointing move, the Indian patent office widened the scope of patent-eligible subject matter for software-related inventions – a move that was decried by free software activists and industry alike. This widening of scope can only benefit tech-giants in building bigger patent portfolios, which is unnecessary and unhealthy for innovation by small and mid-tier entities (Sinha, 2015).</p>
<h3 style="text-align: justify; ">Effective Innovation Systems</h3>
<p style="text-align: justify; ">Innovation ensures fresh creation of knowledge. A society cannot premise itself on the mere importation of knowledge; it must also strive to use the knowledge to meet its own local needs and environment. Innovation depends on a variety of factors – there is no singular path or factor to build an innovative and enterprising society. The patent system is often incorrectly credited with “promoting” innovation. The discourse around innovation was extremely patent-centric until studies disproved the assumptive correlation between high patenting activity and innovation. Continuing in the same vein, Lea states, “From the A2K perspective, however, relying on patents – which represent the right to exclude others from access to the innovation – is particularly problematic. Patents likely represent the segment of innovation of least value for expanding access to knowledge: improvements in the knowledge stock whose application is limited by exclusive property rights” (Shaver, 2007).</p>
<p style="text-align: justify; ">In this framework, it is also important to shed light on the growing movement of openness. Openness as a movement has been captured by various fields - Big data, software, education, media, etc. Free and Open Source Software has emerged as a key agent in information technology policy-making in India, with the Indian government adopting an open standards policy and an open software policy for its own purposes.</p>
<p style="text-align: justify; ">In the context of smartphone technologies, preliminary findings also support the shift towards openness (Huang, 2014). Industry participants have observed that openness will lead to greater benefits in private production of hardware technologies. Similarly, mobile applications developers have also voiced support of open source software (Cassar, 2014).</p>
<h3 style="text-align: justify; ">Conclusion</h3>
<p style="text-align: justify; ">The discussion above identified a limited set of legal and regulatory concerns affecting the state of production/deployment of smartphones in India. These issues and findings are backed by preliminary research, and purport to sustain the emergence of the smartphone as an enabler of access to knowledge. The proposed solutions direct industry and the government alike to take immediate steps to fix problems impeding pervasive access to this knowledge good.</p>
<p style="text-align: justify; ">The experience of the smartphone industry with an imprecise legal and regulatory environment, akin to piracy, has thus far been a success story of affordability, quality substitution, and innovation. However, this narrative is now threatened by messy litigation, jurisdictional uncertainties between the anti-trust regulator and judicial system, SEP licensing issues, rise of software patents, inter alia. Despite these issues, the industry continues to grow. The future of access to knowledge is therefore bright, provided that stakeholders make efforts to meet the needs of this emerging industry and the public, including development and consumer interests.</p>
<hr />
<p><strong> References / Links / Resources</strong></p>
<ol>
<li>Benkler, Y. (2006). The Wealth Of Networks: How Social Production Transforms Markets And Freedom. Retrieved from http://www.benkler.org/wealth_of_networks/index.php?title=Chapter_9%2C_section_3.</li>
<li>Cassar, S. (2014). Interviews with App Developers: Open Source, Community, and Contradictions – Part III. Retrieved from: http://cis-india.org/a2k/blogs/interviews-with-app-developers-open-sourcecommunity-and-contradictions-iii</li>
<li>Cassar, S. (2014) Ambiguity in the App Store: Understanding India’s emerging IT sector in light of IP. Retrieved from http://cis-india.org/a2k/blogs/ambiguity-in-the-app-store</li>
<li>Centre for Internet and Society, Pervasive Technologies: Access to Knowledge in the Marketplace(2012, September). Retrieved from http://cis-india.org/a2k/pervasive-technologies-research-proposal.pdf/view</li>
<li>Guynn, J. (2015, September 28). Facebook, Silicon Valley like Indian Prime Minister Narendra Modi. Retrieved from http://www.usatoday.com/story/tech/2015/09/27/narendra-modi-india-facebook-markzuckerberg-google-sundar-pichai-silicon-valley/72936544/</li>
<li>Huang, M. (2014). [Open] Innovation and Expertise > Patent Protection & Trolls in a Broken Patent Regime (Interviews with Semiconductor Industry - Part 3). Retrieved from: http://cis-india.org/a2k/blogs/ interviews-with-semi-conductor-industry-part-3</li>
<li>IAMAI (2015). An inquiry into India's app economy.</li>
<li>Kapczynski, A., Krikorian, G., (2010). Access to Knowledge in the Age of Intellectual Property. Retrieved from: https://mitpress.mit.edu/sites/default/files/titles/free_download/9781890951962_Access_to_ Knowledge_in_the_Age_of_Intellectual_Property.pdf</li>
<li>Lakshane, R. (2015, September). FAQ: CIS Proposal for Compulsory Licensing of Critical Mobile Technologies. Retrieved from: http://cis-india.org/a2k/blogs/faq-cis-proposal-for-compulsory-licensing-ofcritical-mobile-technologies</li>
<li>Lakshane, R. (2015, February). Open Letter to Prime Minister Modi. Retrieved from: http://cis-india.org/ a2k/blogs/open-letter-to-prime-minister-modi</li>
<li>Lapowsky, I. (2015, February). If You Want to Fix Software Patents, Eliminate Software Patents. Retrieved from https://www.eff.org/mention/follow-wired-twitter-facebook-rss-eff-if-you-want-fix-software-patentseliminate-software</li>
<li>Meeker, M. (2015). 2015 Internet Trends. Retrieved from http://www.kpcb.com/partner/mary-meeker</li>
<li>PTI (2015). Google aims to make India a hub for app development. Livemint. Retrieved from: http:// www.livemint.com/Industry/rwWUfp30YezONe0WnM1TIO/Google-aims-to-make-India-a-hub-for-appdevelopment.html</li>
<li>Qualcomm Enters Into CDMA Modem Card License Agreement with Seiko Instruments Incorporated. (n.d.). Retrieved November 13, 2015, from https://www.qualcomm.com/news/releases/2000/06/20/ qualcomm-enters-cdma-modem-card-license-agreement-seiko-instruments</li>
<li>Shapiro, C. (2001). Navigating the Patent Thicket: Cross Licenses, Patent Pools, and Standard Setting. Innovation Policy and the Economy, 1, 119-150. Retrieved from: http://www.nber.org/chapters/c10778.pdf</li>
<li>Shaver, L. (2007). Defining and Measuring Access to Knowledge: Towards an A2K Index. Faculty Scholarship Series. Paper 22. retrieved from: http://digitalcommons.law.yale.edu/fss_papers/22</li>
<li>Sinha, A. (2015). Comments on the Guidelines for Examination of Computer Related Inventions (CRIs). Retrieved from http://cis-india.org/a2k/blogs/comments-on-the-guidelines-for-examination-of-computerrelated-inventions-cris</li>
<li>United Nations Development Programme, Human Development Report 2001: Making New Technologies Work for Human Development (2001). Retrieved from http://hdr.undp.org/reports/global/2001/en/</li>
<li>World Intellectual Property Organisation. (2010, Dec 1-2). Media Piracy in Emerging Economies: Price, Market Structure and Consumer Behavior. Retrieved from the WIPO website: http://www.wipo.int/edocs/ mdocs/enforcement/en/wipo_ace_6/wipo_ace_6_5.pdf</li>
</ol>
<p>
For more details visit <a href='http://editors.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://editors.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>
</p>
No publishersinhaFeaturedIntellectual Property RightsAccess to KnowledgePervasive Technologies2016-03-16T15:23:43ZBlog Entry2016 Works-in-Progress Intellectual Property ("WIPIP") Colloquium
http://editors.cis-india.org/a2k/news/2016-works-in-progress-intellectual-property-wipip-colloquium
<b>Prof. Jorge Contreras presented a paper co-authored by Rohini Lakshané on the patent landscape conducted for the Pervasive Technologies project at WPIP. The event was held in Washington D.C. on February 19 and 20, 2016. It was organized by School of Law, University of Washington. </b>
<p>For more details <a href="http://editors.cis-india.org/a2k/blogs/2016-WIPIP-Agenda.pdf" class="internal-link">click here</a></p>
<p>.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/news/2016-works-in-progress-intellectual-property-wipip-colloquium'>http://editors.cis-india.org/a2k/news/2016-works-in-progress-intellectual-property-wipip-colloquium</a>
</p>
No publisherpraskrishnaAccess to KnowledgePervasive Technologies2016-03-20T05:10:52ZNews ItemPervasive Technologies Project Presentations at the 4th Global Congress, 2015
http://editors.cis-india.org/a2k/blogs/pervasive-technologies-project-presentations-at-the-4th-global-congress-2015
<b>These are the presentations made by the members of the PT Project team at the 4th Global Congress on Intellectual Property and the Public Interest, 2015 at National Law University, New Delhi.</b>
<ul>
<li><b>Nehaa Chaudhari: <a href="http://editors.cis-india.org/a2k/blogs/the-curious-case-of-the-cci-competition-law-and-sep-regulation-in-india" class="internal-link">The Curious Case of the CCI: Competition Law and SEP Regulation in India</a></b></li>
<li><b>Amba Uttara Kak and Maggie Huang: <a href="http://editors.cis-india.org/a2k/blogs/rethinking-music-copyright-management-in-the-age-of-digital-distribution-business-models-licensing-practices-and-copyright-institutions-in-india" class="internal-link">Rethinking Music Copyright Management in the Age of Digital Distribution: Business Models, Licensing Practices and Copyright Institutions in India</a></b></li>
<li><b>Rohini Lakshané</b>:<b> <a href="http://editors.cis-india.org/a2k/blogs/patent-landscaping-in-the-sub-100-mobile-device-market-in-india" class="internal-link">Patent Landscaping in the sub-$100 Mobile Device Market in India</a></b></li>
<li><b>Anubha Sinha: <a href="http://editors.cis-india.org/a2k/blogs/ip-in-mobile-applications-development" class="internal-link">IP in Mobile Applications Development in India</a><br /></b></li>
</ul>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/pervasive-technologies-project-presentations-at-the-4th-global-congress-2015'>http://editors.cis-india.org/a2k/blogs/pervasive-technologies-project-presentations-at-the-4th-global-congress-2015</a>
</p>
No publishernehaaCopyrightAccess to KnowledgePervasive Technologies2016-01-21T16:33:41ZBlog EntryThe two-faced FRAND: Licensing and injunctive relief in ICTs
http://editors.cis-india.org/a2k/blogs/two-faced-frand-licensing-and-injunctive-relief-in-icts
<b>Important takeaways from the Indo-Europe Conference on Building a Sustainable IPR-ICT Ecosystem for Promoting Innovation, held in Bangalore in November 2015. Ericsson and the Indian Cellular Association presented an interesting set of views on FRAND licensing as well as injunctive relief, from seemingly opposite ends of the spectrum.</b>
<p>For the schedule, and more information, visit: <a class="external-link" href="http://www.ict-ipr.in/sipeit/conference">http://www.ict-ipr.in/sipeit/conference</a></p>
<h2><span>Ericsson’s position on patenting </span></h2>
<p dir="ltr"><span>-- Companies file numerous patent applications every year but 95% of all granted patents are never commercialised. </span></p>
<p><span>-- Ericsson manages to commercialise less than 5 percent of its patents.</span></p>
<p><span>-- A patent application could be rejected because it is not inventive or novel enough. Sometimes, a competitor manages to file for or obtain a patent for the same or similar technology a few days before Ericsson. Hence, it becomes prior art and Ericsson is unable to apply for a patent. </span></p>
<p><span>-- Monetising patents is a challenge because the technology they pertain to may not be good enough to be implemented. Either that, or nobody in the market wants the technology. There is no business aspect to it.<strong> </strong></span><strong><span>Thus, patenting is expensive but but filing patents is a trial-and-error activity, which makes patenting financially cumbersome.</span></strong></p>
<p><span>-- Ericsson feels the need to file a lot of patents, so that some of those patents could be useful from a business perspective. The rest are not commercialised.</span></p>
<p><span>-- The number of patents filed are rising in certain countries, but the numbers are misleading. Some patents are of poor quality and/ or unusable for commercialisation.</span></p>
<p dir="ltr"><span>-- Ericsson gets approximately 5,000 inventions per year but files patent applications for only around 1,500 to 1,600, as the rest of the inventions do not have a business aspect to it. That is, Ericsson does not believe that the invention has good business potential or that there is little way for the market to adapt to it. </span></p>
<p dir="ltr"><span>-- When companies invest heavily on research and development, and when they try to get (what will later become a) standardised technology released into the market, they should get fair returns on investment.</span></p>
<p dir="ltr"><span>-- Indian companies need to invest in IPR. They need to do trial-and-error with respect to patenting. Only then, perhaps, some returns will accrue to them from owning patents.</span></p>
<p dir="ltr"><span>-- Monetisation is besides selling products. It's a side effect of investment in research and development.</span></p>
<h2><span>Ericsson’s position on FRAND licensing</span></h2>
<p dir="ltr"><span>-- No company apart from non-practising entities (NPEs) make all or most of its money from licensing. Ericsson makes most of its money from its products and not patents. </span></p>
<p><span>-- A large number of companies such as Ericsson have inventors based in India but the patents get registered abroad, [that is, the patents are not filed by the Indian subsidiary of Ericsson].</span></p>
<p><span>-- </span><strong><span>The percentage fee charged for a FRAND license is a low, single-digit number. </span></strong></p>
<p><span>-- It's a wrong conception that FRAND licensing is very expensive and will shut down Indian companies. If there were no FRAND agreements, no Indian company would be able to put out a phone in the market.</span></p>
<p><span>-- It’s a wrong notion that FRAND agreements are prohibiting any company from the market. Indian companies will not be thrown out of the market by FRAND companies or companies that possess a lot of patents. No Indian company would be able to make and sell a phone if FRAND terms didn’t exist.</span></p>
<p><span>-- <strong>Ericsson is called a patent troll because it doesn’t make mobile phones anymore, but Ericsson built the technology it patented [unlike other patent trolls who buy and gather patents].</strong></span></p>
<p dir="ltr"><span>-- Ericsson has entered into more than licensing 100 agreements worldwide. Many of its licensees are repeat licensees.</span></p>
<p id="docs-internal-guid-4f920544-b271-1bd0-cde5-919b2b7c321e" dir="ltr"><span>-- <strong>The average selling price (ASP) of China-made phones sold in India is USD 50. This money goes to China. The ASP of high-end phones elsewhere is USD 250. Thus, a royalty of USD 15, calculated on the sale price of the end product, is not high.</strong></span></p>
<h2><span>Ericsson’s position on SEP litigation in India and injunctions</span></h2>
<p dir="ltr"><span>-- Nobody starts litigation in order to render an injunction in the end. The idea is to get the other party to the table and negotiate reasonable terms.</span></p>
<p><span>-- </span><strong><span>Litigation without injunction is a toothless tiger.</span><span> The 'licensee' has the financial upper hand of not paying the licensor. So the former can keep prolonging negotiations.</span></strong></p>
<p><span>-- When hold-out happens during licensing negotiations, litigation is used as a last resort. Injunctions are one of the possible outcomes of litigation.</span></p>
<p><span>-- India should play the SEP game. 5G development starts in January 2016 and India should try to get a stake in the development. Indian companies should try to get high quality patents.</span></p>
<p><i><span>[<span id="docs-internal-guid-7d58a686-b1b1-3c63-f6ae-d317a187703b">This suggestion seems to be for homegrown Indian companies as Ericsson also stated during the conference that, “A large number of companies such as Ericsson have inventors based in India but the patents get registered abroad”, that is, the patents are not filed by the Indian subsidiary of Ericsson.]</span></span></i></p>
<p style="text-align: center; "><span>*****</span></p>
<h2><span>Indian Cellular Association on injunctive relief, SEPs and FRAND licensing rates<br /></span></h2>
<p dir="ltr"><span> -- When the standard setting process is collaborative, it is not logical to apply injunctive relief. It is against the ethos of the community.</span></p>
<p><span>--Telecommunication was the first industry to create monopolies, that is, standardisation in order to serve the customer better.</span></p>
<p><span>-- [With reference to SEP infringement litigation happening in India], the so-called infringer is not in league/ not competing with anything the patent holder is making and/ or selling.</span></p>
<p dir="ltr"><span>-- The Competition Act in India is a wide-ranging law. It is not a restrictive trade practices act or a monopolies act. Patents are out of the purview of competition.</span></p>
<p dir="ltr"><span>-- If a rights holder has acquired dominance as a part of the standard setting process, it is undoubtedly dominant. But if the rights holder's market practices are fair, then it is not violating any provisions of the Competition Act.</span></p>
<p dir="ltr"><span>-- India has a “demographic dividend”. Legacy patent holders should look at India differently, and consider our purchasing power. If technology has to proliferate, then consumers in India cannot be burdened with the same royalties as the developed world.</span></p>
<p dir="ltr"><span>-- We are trying to strengthen the TSDSI, India's indigenous standards development body [so that India can have a stake in international standards development].</span></p>
<p dir="ltr"><span>-- The size of the global smartphone market today [2015] is USD 500 billion; India's mobile phone market is worth USD 16 billion. The mobile phone market share of China is pegged at USD 110 billion.<br /></span></p>
<p id="docs-internal-guid-7d58a686-b24c-352b-bfd3-d6b26ac7a9d8" dir="ltr"><span>-- The mobile phone market in India will be worth USD 100 billion as of the year 2022 or 2023. For SEP royalties that reward the innovation of all the SEP holders, what will be the amount of royalty outflow? If the outflow is USD 500 billion [in the year 2022 or 2023], then the FRAND percentage be 0.5, which is not a single-digit number, unlike what was stated by Ericsson's representative.</span></p>
<p dir="ltr"><span>-- In the projected figure of USD 100 billion, <span id="docs-internal-guid-7d58a686-b259-5f5a-3e52-9c4a2f5bf957">USD 30 billion accounts for display, USD 5 billion accounts for Lithium-ion battery, USD 5 billion for communication protocol, and the complete chipset stack for around USD 10 billion. If the FRAND rate were to be determined as a percentage of the price of the smallest practising component of the [finished]</span> device, then it would be, say, 2% of USD 10 billion. If the FRAND rate were to be determined as a percentage of the end product, it would be 0.5% of USD 100 billion. But, <strong>if the FRAND percentage were a single-digit number, which could also be 9, then all the manufacturers except the rights holders would be snuffed out. </strong>China's mobile market is at USD 110 billion now and is projected to be at USD 400 billion in 2022, will be paying around USD 1 billion in total royalty outflows.<span id="docs-internal-guid-7d58a686-b267-9e65-539f-9bacaa7b48df"> </span><span id="docs-internal-guid-7d58a686-b267-9e65-539f-9bacaa7b48df"> </span></span></p>
<p id="docs-internal-guid-4f920544-b2a5-a0f4-a732-f19269164fc5" dir="ltr"><span><span id="docs-internal-guid-7d58a686-b267-9e65-539f-9bacaa7b48df">-- We also need to evaluate macro costs of research and development globally. How many times, how much, and for how many years do we need to reward innovation? What is the right return amount for inventors? All this will come up for serious debate with the patent office, the Competition Commission of India, the companies, and with the ministries. To ensure equitable growth and a level playing field, all these entities need to get involved.</span></span></p>
<p dir="ltr"><span>-- There is deep distrust of rights holders due to opaqueness in their operations. For example, injunctive relief was sought against a small importer in an Indian court. The royalty rate demanded happened to be half of that demanded from another Indian importer in the same court against an interim injunction. The rights holder then claimed that the email sent to the former importer was a mistake and it revised the rates so that it was equal for both importers. </span></p>
<p dir="ltr"><strong><span><i>[This seems to be a reference to Ericsson suing Saral Communications for patent infringement in the Delhi High Court around the same time that Micromax complained to the Competition Commission of India alleging abuse of its dominant positon by Ericsson. The interim royalty rates quoted to Saral were half of the rates that Micromax was ordered to pay, rendering Ericsson's conduct discriminatory and in violation of FRAND. Ericsson subsequently claimed that the rates conveyed to Saral via email were a mistake and asked for the same interim royalty rates as it from Micromax. For more details refer to, <a class="external-link" href="http://www.fosspatents.com/2014/03/court-document-reveals-discriminatory.html">Court document reveals discriminatory royalty demands by Ericsson for its wireless patents. </a></i></span></strong></p>
<p dir="ltr"><strong><span><i>This is also an indication that the market practices of certain rights holders are not consistent, which not only results in a trust deficit but prevents the implementation of a harmonised FRAND rate across the world.] <br /></i></span></strong></p>
<p><strong> </strong></p>
<p dir="ltr" style="text-align: center; "><span><span>****</span></span></p>
<h2><span><span>Injunctive relief and FRAND licensing in Europe</span></span></h2>
<p><span>-- According to the German Patent Act, there is automatic injunction as a consequence of patent infringement. No injunctive relief is granted for SEPs anymore in Germany, if certain conditions are fulfilled by the willing licensee.</span></p>
<p><span>-- Long-standing provisions exist in Germany for calculating royalties when multiple patents and multiple patent holders exist. FRAND licensing for one patent is useless. There should be FRAND for the whole complex. </span></p>
<p dir="ltr"><span>-- As per the Huawei decision of the European Court of Justice, dated 16 July 2015, a willing licensee can make an offer for the price it wishes to pay to use a patent under the condition that it deposits an amount in the bank as a security for the licensor. Then the licensor cannot enforce the injunction anymore.</span></p>
<p dir="ltr" style="text-align: center; "><span>****<br /></span></p>
<h2><span>Open data in patenting </span></h2>
<p><span>If the data available with patent offices across the world is made publicly accessible by the respective governments in a way that it is possible to search, understand, and visualise it, then there could be an explosion in innovation.</span></p>
<h2><span>The trade-off between access and innovation</span></h2>
<p dir="ltr"><span>Inexpensive phones of sub-standard quality break down or stop working sooner than good quality phones. This also destroys incentives for innovators who want to bring high quality phones into the market. So the inexpensive, low-quality phones is a trade-off between having access to mobile phones today and experiencing the fruits of innovation tomorrow. <strong>The Hatch Waxman Act in the US addresses this issue by allowing imitators to come into the economy through an authorised mechanism, which also restores some incentives for innovation.</strong></span></p>
<p dir="ltr"><span>The tradeoff is also addressed better by implementing an evidence-based approach instead of a one-size-fits-all solution. Some regions require an emphasis on access. In other places that do not lack access due to their geographical location and clusters of innovators, IPRs can be implemented more strictly. Such a segmented approach to regions and product-markets can be crafted into policy.</span></p>
<h2><span>The challenge of harmonisation</span></h2>
<p dir="ltr"><span>Denmark does not have a dedicated intellectual property office. Work on IP is integrated in the government offices for trade, growth, economy, and so on. IPR is strongly interlaced with competition law in the country. <strong>Similarly, the Department of Telecom, Department of Health, the Indian Patent Office and the Competition Commission of India should work in tandem to avoid conflict in the way they address cases and issues.</strong></span></p>
<h2 dir="ltr"><span> </span><span>Patenting for universities</span></h2>
<p><span>Indian university do not carry out patenting as much as their counterparts in other countries. The DieTY has schemes for supporting patent filing by universities and academic institutions. </span></p>
<p><span>Number of patents granted annually to:</span></p>
<p><span>Xingua University, China: 1,000</span></p>
<p><span>MIT, United States: 4,000</span></p>
<p><span>IIT and IISC, India: Between 100 and 200</span></p>
<h2><span>Technology areas and number of SEPs in Europe</span></h2>
<p id="docs-internal-guid-7d58a686-b1b4-a37d-f2ae-7182f21bda20" dir="ltr"><span>Telecom via public network: 4,284</span></p>
<p><span>IT and Internet: 534</span></p>
<p><span>Audio/ video systems, coding, et cetera.: 221</span></p>
<p><span>Security, cryptography, biometrics: 182</span></p>
<p dir="ltr"><span>(Source: <span id="docs-internal-guid-7d58a686-b1b5-2260-14d7-cc444e9011c9">Competition Policy Brief, June 2014, Issue 8, Standard Essential Patents, European Commission)</span></span></p>
<p dir="ltr" style="text-align: center; "><span><span>***</span></span></p>
<p dir="ltr" style="text-align: left; "><span><span><i>All comments in square brackets and italics by the author.</i><br /></span></span></p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/two-faced-frand-licensing-and-injunctive-relief-in-icts'>http://editors.cis-india.org/a2k/blogs/two-faced-frand-licensing-and-injunctive-relief-in-icts</a>
</p>
No publisherrohiniPervasive Technologies2016-03-16T02:37:02ZBlog EntryA Study of J. Sai Deepak's Comments on Competition Law in India
http://editors.cis-india.org/a2k/blogs/a-study-of-j-sai-deepaks-comments-on-competition-law-in-india
<b>In his blog, 'The Demanding Mistress', J. Sai Deepak has commented on the competition law in India, using provisions of different acts, case judgments and amendments to these acts. He has also included a comment on India’s patent law. This review studies his comments to the Competition Act, 2002 (“Competition Act”) and the Patents Act, 1970 (“Patents Act”).</b>
<p>Read J. Sai Deepak - The Demanding Mistress<a href="#fn1" name="fr1">[1]</a>. Nehaa Chaudhari provided inputs and edited this blog post.</p>
<hr />
<h2>The Nexus Between the Competition Act and the Patents Act</h2>
<p style="text-align: justify; ">Sai Deepak explains the nexus between the Competition Act and the Patents Act<a href="#fn2" name="fr2">[2] </a>using two positions. Firstly, by using two situations to explain which of these two acts will apply under different circumstances. Secondly, by explaining the overlap that is apparent in cases of abuse of power.</p>
<p style="text-align: justify; ">Under the first issue, the two situations are thus. In a case where a patentee's patent over a technology allows him to acquire a position of dominance, Competition Act will be applied if he abuses this dominance. In case a patentee imposes a high license fee on his product, many players cannot afford it and get ejected from the market. Here, both the acts would apply, thereby indicating an overlap.</p>
<p style="text-align: justify; ">Under the second issue, it is stated that abuse of power could also happen if a patentee sets an "unfair price". Therefore, Sai Deepak argues that for ensuring fair or affordable price, there should be harmony between Competition Act and Patents Act. He has derived harmonized interpretations of "unfair price" under the Competition Act and "reasonably affordable price" under the Patents Act. He explains that the price under each law is measured according to the price for the licensee and not the price demanded or the value of the licensed technology. He further, argues that such a harmonization is possible since "price" under these two acts is essentially used in the same context. It is necessary to harmonize the two acts since the overriding effect of Section 60 of the Competition Act can be effective only when an inconsistency is proved with the other provisions or laws.</p>
<h3 style="text-align: justify; ">Patents and Competition "Arrangements"</h3>
<p>An arrangement<a href="#fn3" name="fr3">[3] </a>or collusion may exist between two market players if their activities can be foreseeably linked, even if there is no express act or formal arrangement between these parties. This has been explained through an example.</p>
<p>A sells a patented drug in the market. B sells another patented drug which is similar to the drug sold by A. A also has some share in B's company. When C introduces a similar drug at a much cheaper price, B is forced to reduce his the price of his drug. A follows suit.</p>
<p style="text-align: justify; ">It may be noted that since there were similarities between the drugs being sold by A and B, and, therefore the patent, it may have been possible for B to challenge A’s patent on prior art and eject A from the market, thereby reducing competition.</p>
<p style="text-align: justify; ">Since he did not challenge A's patent which was closest to that of B in terms of prior art, there may be an arrangement between A and B. This shows that A and B decided to divide the market and not encroach upon each other's trading space. In addition to this, the fact that A was a shareholder in B's company, points in the direction of a collusive activity.</p>
<h2 style="text-align: justify; ">Legality of Pay-for-Delay Settlement Payments</h2>
<p style="text-align: justify; ">This post, as written by Amshula Prakash, refers to J. Sai Deepak's comments on the topic. She has described a Pay-For-Delay settlement <a href="#fn4" name="fr4">[4] </a>as a patent settlement wherein the patentee pharmaceutical company pays the generic manufacturer to remain ejected from the market for a certain period of time.</p>
<p style="text-align: justify; ">She justifies these agreements by relying on the case of <i>Federal Trade Commission v. Actavis</i> <a href="#fn5" name="fr5">[5]</a>,which upheld that such agreements are lawful as long as their anti-competitive activities are covered under the exclusive patent granted to them. She opines that entering late into the market is better than not entering at all, and such a deal would anyway not go beyond the life of the patent. She concludes by reiterating J. Sai Deepak's statement that the exact impact of the agreement cannot be ascertained, as no such cases of Pay-For-Delay agreements have arisen in the Indian market yet.</p>
<h2 style="text-align: justify; ">Collective Bargaining</h2>
<p style="text-align: justify; ">J Sai Deepak has addressed two issues under this post. Firstly, the relation between collective bargaining and cartel-like conduct. Secondly, whether any defense under S.3(3) <a href="#fn6" name="fr6">[6]</a> of the Competition Act is available against cartel-like conduct.</p>
<p style="text-align: justify; ">In first issue, <a href="#fn7" name="fr7">[7]</a> J. Sai Deepak suggests that collective bargaining is a joint venture as it increases efficiency of entities in providing services. Similarly, an agreement to reduce such efficiency is also a joint venture, since it may ensure competitiveness in the market and control over prices. He specifies grounds to determine the purpose of a collective act which helps ascertain whether it will be covered under "collective bargaining". These include the nature of business, parity between parties, past negotiations etc. He has relied on foreign sources to justify cartel-like behavior of smaller entities, like Australia's Dawson Committee and Taiwan's efforts to integrate smaller enterprises into the mainstream market to increase efficiency and competitiveness. Hence he suggests that an amendment should be made in law to permit small businesses to make an exception to cartel-like conduct and collective bargaining.</p>
<p style="text-align: justify; ">Under the second issue, <a href="#fn9" name="fr9">[9]</a> he opines that a strict assumption of the presence of any anticompetitive nature or agreement is counter productive to the intention of the law. The available defenses under S.3(3) for parties accused of cartel-like conduct can be justified using the proviso<a href="#fn10" name="fr10">[10]</a> under this section. He explains that collective bargaining may be seen as a "joint venture" under the proviso of S.3 if it is not anti-competitive. He has further supported this argument by relying on <i>FICCI - Multiplex Association of India v. United Producers/ Distributors Forum</i>, <a href="#fn11" name="fr11">[11] </a>where "collective bargaining" was accepted as a valid defense to cartel-like behavior.</p>
<h2 style="text-align: justify; ">Power of Competition Commission with Respect to Abuse of Powers</h2>
<p>J. Sai Deepak has explained the powers of the Competition Commission of India (CCI),<a href="#fn12" name="fr12">[12] </a>firstly, with respect to abuse of powers and secondly, in terms of imposing liability.</p>
<h3>With Respect to Abuse of Powers</h3>
<p style="text-align: justify; ">With respect to abuse of powers, he refers to Section 4 of the Competition Act. It refers to a situation wherein a dominant player in the market sets a discriminatory (including predatory price) or unfair price in the sale of his good. Predatory pricing is explained in this section and not discriminatory or unfair price. J. Sai Deepak argues that since they are capable of having different meanings, there might be different forms of abuse which a dominant entity can exercise.</p>
<p style="text-align: justify; ">He relies on a test laid down in a case on unfair price, namely <i>United Brands Company v. Commission of the European Communities.</i><a href="#fn13" name="fr13">[13]</a> A question arising under this test was whether the regulator is expected to fix prices if they are found to be unfair. To show that the CCI has the power to fix prices, S.27 and 28 of the Act have been compared. Section 27(d) empowers the CCI to direct that agreements which are in contravention of Section. Furthermore, Section 27 (g) allows the CCI to pass orders 'it may deem fit'. Section 28(2)(a) empowers the CCI to vest property rights, which creates licenses for third parties. The CCI can set future commercial terms in agreements remove complexities of the market in the interest of equity and justice. This shows the abundant powers the Competition Commission of India has to set prices.</p>
<h3 style="text-align: justify; ">In Terms of Imposing Liability</h3>
<p style="text-align: justify; ">To answer whether these decisions of the CCI are <i>in rem </i><a href="#fn14" name="fr14">[14]</a>, he explains that the CCI can regulate market transactions and the finding of an abusive practice would be applied to other enterprises with similar practices. This shows that CCI lays down rules prescribing acceptable practices in the market.</p>
<h2>Review of the Competition Amendment Bill, 2012</h2>
<p style="text-align: justify; ">This post discusses the proposed amendments in the Bill <a href="#fn15" name="fr15">[15] </a>regarding three issues. Firstly, in regards to joint dominance, i.e. position of dominance enjoyed by one or more enterprises, J. Sai Deepak argues that the Bill recognizes an oligopolistic market's collusive activities, thereby providing a legal method of identifying it. He argues that it is not yet time to introduce it into the Indian industrial arena, since S.3 which regards anti-competitive agreements, is too rigorous to harmonize the concept of joint dominance with it.</p>
<p>Secondly, another proposed change is to render the decision taken under S.21<a href="#fn16" name="fr16">[16] </a>appeal-able under S.53A of the Act. He criticizes this by saying that an appeal on S.21 while adjudicating on S.53A may lead to a multiplicity of legislations and jurisdiction issues.</p>
<p style="text-align: justify; ">Lastly, the amendment of S.5A, empowers the government to specify the values of any assets or turnovers based on the class of enterprises. The government may consult the CCI, but the consultation is not binding or of mandatory assent, which shows that the CCI might turn into a tool which furthers the powers of the executive.</p>
<h2 style="text-align: justify; ">Conclusion</h2>
<p style="text-align: justify; ">On reading J. Sai Deepak's comments on the competition law in India, I have concluded that several provisions under legislations regulating competition in Indian markets might still not be comprehensive. This may be because many scenarios for which these provisions have been made have not yet arisen in India. Hence a few outcomes of these legislations remain to be mere speculations and as several developments in the market are still underway, laws like the Competition Act should adopt to these if and when they arise.</p>
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<p style="text-align: justify; ">[<a href="#fr1" name="fn1">1</a>]. http://thedemandingmistress.blogspot.in/</p>
<p style="text-align: justify; ">[<a href="#fr2" name="fn2">2</a>]. http://thedemandingmistress.blogspot.in/2013/09/the-overlap-between-patents-and.html#links</p>
<p style="text-align: justify; ">[<a href="#fr3" name="fn3">3</a>]. http://thedemandingmistress.blogspot.in/2011/10/patents-and-competition-need-for.html#links</p>
<p style="text-align: justify; ">[<a href="#fr4" name="fn4">4</a>]. http://thedemandingmistress.blogspot.in/2013/06/legality-of-pay-for-delay-settlement.html#links</p>
<p style="text-align: justify; ">[<a href="#fr5" name="fn5">5</a>]. 570 U. S. ____ (2013)</p>
<p style="text-align: justify; ">[<a href="#fr6" name="fn6">6</a>]. Defines the type of agreements which would qualify as anti-competitive</p>
<p style="text-align: justify; ">[<a href="#fr7" name="fn7">7</a>]. http://thedemandingmistress.blogspot.in/2012/01/collective-bargaining-and-cartel-like.html#links</p>
<p style="text-align: justify; ">[<a href="#fr8" name="fn8">8</a>]. Committee of Inquiry for the Review of the Trade Practices Act of the Australian Parliament</p>
<p style="text-align: justify; ">[<a href="#fr9" name="fn9">9</a>]. http://thedemandingmistress.blogspot.in/2012/01/competition-act-is-collective.html#links</p>
<p style="text-align: justify; ">[<a href="#fr10" name="fn10">10</a>]. Refers to “any agreement entered into by way of joint ventures”.</p>
<p style="text-align: justify; ">[<a href="#fr11" name="fn11">11</a>]. Case No. 01 Of 2009</p>
<p style="text-align: justify; ">[<a href="#fr12" name="fn12">12</a>]. http://thedemandingmistress.blogspot.in/2015_01_01_archive.html</p>
<p style="text-align: justify; ">[<a href="#fr13" name="fn13">13</a>]. C-27/76 [1978]</p>
<p style="text-align: justify; ">[<a href="#fr14" name="fn14">14</a>]. http://thedemandingmistress.blogspot.in/2014/07/are-decisions-of-competition-commission.html#links</p>
<p style="text-align: justify; ">[<a href="#fr15" name="fn15">15</a>]. http://thedemandingmistress.blogspot.in/2015/03/a-review-of-competition-amendment-bill.html#links</p>
<p style="text-align: justify; ">[<a href="#fr16" name="fn16">16</a>]. Reference by Commission to statutory authority in case of contravention with the Act</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/a-study-of-j-sai-deepaks-comments-on-competition-law-in-india'>http://editors.cis-india.org/a2k/blogs/a-study-of-j-sai-deepaks-comments-on-competition-law-in-india</a>
</p>
No publisherAarushi BansalCompetitionAccess to KnowledgePervasive Technologies2015-11-21T06:18:42ZBlog EntryMHRD IPR Chair Series: Information Received from IIT Roorkee
http://editors.cis-india.org/a2k/blogs/mhrd-ipr-chair-series-information-received-from-iit-roorkee
<b>This post provides a factual description about the operation of Ministry of Human Resource Development IPR Chair’s Intellectual Property Education, Research and Public Outreach (IPERPO) scheme in IIT Roorkee.</b>
<p>Nehaa Chaudhari provided inputs, analysed, reviewed and edited this blog post.</p>
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<p style="text-align: justify; ">The author has analysed all the data received under various heads such as income, grants from MHRD, planned and non planned expenditure, nature and frequency of programmes organised and the allocation of funds for the same. Throughout the course of observation and presentation of the analysed data, the author seeks to trace the presence of unjustified underutilisation of funds by the aforementioned university as provided by the MHRD during the period of 2003-2014.</p>
<p style="text-align: justify; ">To collect the information for the given study, an RTI application was filed to the Indian Institute of Technology, Roorkee on 6/02/2015 by the Centre for Internet and Society. The reply to RTI application was received on 16/02/2015.</p>
<p style="text-align: justify; ">These are the documents received by CIS from IIT Roorkee:</p>
<ul>
<li>For RTI Response <a href="http://editors.cis-india.org/a2k/blogs/iit-roorkee-receipt-of-rti" class="internal-link">click here</a> (IIT Roorkee -Receipt of RTI- 20.4.15)</li>
<li>For complete supporting documents <a href="http://editors.cis-india.org/a2k/blogs/iit-roorkee-response-and-report" class="internal-link">click here</a> (IIT Roorkee – Response and Report)</li>
</ul>
<p style="text-align: justify; ">Hereinafter, in order to receive any information about IIT Roorkee’s RTI reply, kindly refer to the above mentioned links.</p>
<p style="text-align: justify; ">Following are the queries mentioned in the RTI application along with their replies.</p>
<ol>
<li style="text-align: justify; "><b>Reports on the implementation of the IPERPO scheme of the Ministry of Human Resource Development and the implementation of the MHRD IPR Chair funded under the scheme at IIT Roorkee from 2003-20014<br /></b>Reply: The University documented the minutes of the Departmental Faculty Committee Meeting where proposals for forming Departmental Administrative Committee, syllabus for new institute electives, duties of Departmental Research Committee, forming Institute Time Table Committee, conversion of existing LR1 computer lab and teaching scheme of autumn semester 2013 were deliberated upon. The University also organised various events such as Training of Trainers programme and International Conclave on Innovation and Entrepreneurship. </li>
<li style="text-align: justify; "><b>Documents indicating the date on which such an IPR Chair was set up at your institution and a copy of the application made by IIT Roorkee to the MHRD for instituting such an IPR Chair and documents received by IIT Roorkee from the MHRD approving the same<br /></b>Reply: According to the Office Memorandum (dated 04 May 2012) of IIT Roorkee, Dr P.K. Ghosh had been appointed on the position of Professional Chair on IPERPO with effect from April 27 2012. A suitable financial grant of Rs. 208.02 lakhs was demanded for a period of five years. </li>
<li style="text-align: justify; "><b>Documents detailing the release of grants to the MHRD IPR Chairs under the IPERPO Scheme</b><br />Reply: As it appears from the reply filed by IIT Roorkee to the RTI filed by the CIS, Rs. 30,00,000.00 of the Grant in aid was sanctioned to the University by the MHRD during the financial year 2010-2011 and nil amount was utilized for the purpose of it. At the end of the year, the balance sum of Rs. 30,27,041 (including the interest) was surrendered to the Government.</li>
<li style="text-align: justify; "><b>Documents relating to receipts of utilisation certificates and audited expenditure statements and matters related to all financial sanctions with regard to funds granted to the MHRD IPR Chair established under the IPERPO scheme at IIT Roorkee</b><br />Reply: IIT Roorkee has replied with a series of Statement of Expenditure ranging from 2010-2014 that explains its rate of expenditure and amount of interest accumulated and surrendered to the Government along with the unutilized amount. In the financial year 2011-2012 the unutilized expenditure was 3,105,159.00 which came down to 11,74, 026.00 in 2012-2013 due to which a grant of Rs. 24,00,000.00 was extended to the University by MHRD for the financial year 2013-2014.</li>
<li style="text-align: justify; "><b>Documents regarding all matters pertaining to finance and budget related the MHRD IPR Chair under the IPERPOs scheme established at IIT Roorkee</b><br />Reply: CIS did not receive any sort of clarity on matters pertaining to finance and budget related to MHRD IPR Chair under the IPERPO scheme as the response for this question was coupled with the previous question on utilization certificates.</li>
<li style="text-align: justify; "><b>Details of the IPR Chair’s salary under the IPERPO Scheme indicating whether this amount is paid over and above the professional’s usual salary</b><br />Reply: According to the RTI reply, the position of Chair Professor is awarded for a period of three years or upto 68 years of age, whichever is earlier. The pay of Chair Professor is fixed as per the rules and guidelines of Professional Chair in the institute.</li>
</ol>
<p>2.0 Comparative Analysis between University Response and the guidelines of MHRD Scheme Document</p>
<p style="text-align: justify; "><a class="external-link" href="http://copyright.gov.in/Documents/scheme.pdf">The Scheme Document of MHRD</a> is a comprehensive document which consists of guidelines regarding Intellectual Property Education, Research and Public Outreach. It talks about a list of objectives, purposes, conditions and eligibility criteria for a University to ensure in order to implement IPERPO in a truest sense. This document provides the procedural as well as qualifying conditions for an Institute to ensure or fulfil before applying for the MHRD grant. Some of these conditions include maintenance of utilization certificates, audit reports, expenditure statements and event information which would be open to access on demand by MDHR or Comptroller and Auditor General of India.</p>
<p style="text-align: justify; ">A. Objectives:</p>
<p style="text-align: justify; ">As it appears from the reply statement of IIT Roorkee, each and every event organised after the establishment of IPR Chair in 2012, where the funds from the grant have been utilized, is done to promote the scholarly as well as academic interests in the field of Intellectual Property. Even before applying for the MHRD grant, the University has organised many National Seminars and has started various short term courses in order to encourage research and excellence in Intellectual Property. This fact completely resonates with the core objective of MHRD scheme document, i.e. strengthening the academic and research discourses in the field of Intellectual Property.</p>
<p style="text-align: justify; ">B. Eligibility: <br />IIT Roorkee is recognized by the University Grants Commission. Therefore, it fulfils the eligibility criteria mentioned in the scheme document.</p>
<p style="text-align: justify; ">C. Conditions for Grant of Assistance <br />There are several conditions laid down in the scheme document which need to be fulfilled by the concerned University in order to successfully receive the grant. The underlying condition is the dissemination and development in the field of Intellectual Property Rights.</p>
<p style="text-align: justify; ">According to the documents available with CIS, IIT Roorkee has organised at least 27 events in the field of IPR ranging from introduction of new electives, National Workshops and Symposiums, Expert Lectures, Infrastructure Development, Online portals for IP Administration and awareness and infrastructure development.</p>
<p style="text-align: justify; ">3.0 Financial Analysis of IIT Roorkee’s IPR Grant</p>
<p style="text-align: justify; ">According to the RTI reply, the IPR Chair at IIT Roorkee was established in the forenoon of 27th April 2012 with Dr P.K. Ghosh as its Chairman. Dr Ghosh was promised an Honorarium payment of Rs. 30,000 per month and a Contingency payment of Rs. 20,000 per month.</p>
<p style="text-align: justify; ">3.1 Financial Year 2010-2011</p>
<p style="text-align: justify; "><img src="http://editors.cis-india.org/home-images/GrantUtilization.png" alt="null" class="image-inline" title="Grant Utilization" /></p>
<p style="text-align: justify; ">In this financial year, the IPR Chair was not established at IIT Roorkee. The total grant received by the University was Rs. 30, 00,000.00 out of which Rs.0 was utilized for the purpose of it was sanctioned.</p>
<p style="text-align: justify; "><img src="http://editors.cis-india.org/home-images/copy_of_GrantUtilization.png" alt="null" class="image-inline" title="Grant Utilization" /></p>
<p style="text-align: justify; ">At the end of the financial year, the remaining amount of Rs. 30,00,000, (due to Nil utilisation) along with the interest of Rs. 27041 was either surrendered to the government or adjusted towards the grants-in-aid payable during the next financial year.</p>
<p style="text-align: justify; ">3.2 Financial Year 2011-2012</p>
<p style="text-align: justify; "><img src="http://editors.cis-india.org/home-images/copy2_of_GrantUtilization.png" alt="null" class="image-inline" title="Grant Utilization" /></p>
<p style="text-align: justify; ">The IPR Chair was still not established at the University. The opening balance was the amount carried forward from the previous year (30,27,041) upon which interest of Rs. 1,17,117 was received making the total receipt to be 31,144,158. Out of this, a total of Rs. 38,999 was utilised for travelling and miscellaneous expenditure. At the end of the year, the remaining of amount of Rs. 3,105,159 was either surrendered to the government or adjusted towards the grant-in-aid payable during the next financial year 2012-2013. As per the documents available with CIS, the statement of expenditure for this financial year has not been submitted by the university.</p>
<p style="text-align: justify; ">3.3 Financial Year 2012-2013</p>
<p style="text-align: justify; "><img src="http://editors.cis-india.org/home-images/copy3_of_GrantUtilization.png" alt="null" class="image-inline" title="Grant Utilization" /></p>
<p style="text-align: justify; ">In this financial year the IPR Chair was established with Dr. P.K. Ghosh as its Chairman. The Opening balance was the amount carried forward from the previous financial year (31,05,159) upon which an interest income of Rs.1,25,376 was received along with a refund of advance amounting to Rs. 42,968. Out of the total receipt of Rs. 32,73,503 the total expenditure of the University on the current financial year was Rs. 20,99,477. The remaining amount of Rs. 11,74,026 was either surrendered to the government or adjusted towards the grants-in-aid payable during the next financial year 2013-2014.</p>
<p style="text-align: justify; ">3.4 Financial Year 2013-2014</p>
<p style="text-align: justify; "><img src="http://editors.cis-india.org/home-images/copy5_of_GrantUtilization.png" alt="null" class="image-inline" title="Grant Utilization" /></p>
<p style="text-align: justify; ">In this financial year, the University received a grant of Rs. 24,00,000 from the government along with the amount carried forward from the previous financial year (Rs.11,74,026) upon which an interest income of Rs. 55,892 was received. Out of this, a sum of Rs. 24,01,045 was utilised as contingency expenditure. The remaining amount of Rs. 12,28,873 has been either surrendered to the government or adjusted towards the grants-in-aid payable during the next financial year 2014-2015.</p>
<p style="text-align: justify; "><img src="http://editors.cis-india.org/home-images/copy6_of_GrantUtilization.png" alt="null" class="image-inline" title="Grant Utilization" /></p>
<p style="text-align: justify; ">In this financial year, the expenditure on library (5,00,979) is the only sum which exceeded the sanctioned amount (5,00,000). Moreover, there has been no expenditure on Outreach Program and Clinics. The honorarium payment to the IPR Chair Professor is similar to the sanctioned amount (3,60,000) but there’s a difference in his contingent payment (1,39,645 instead of 2,40,000). The total amount of expenditure in this financial year is Rs. 24,01,045.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/mhrd-ipr-chair-series-information-received-from-iit-roorkee'>http://editors.cis-india.org/a2k/blogs/mhrd-ipr-chair-series-information-received-from-iit-roorkee</a>
</p>
No publisherKaran Tripathi and Nehaa ChaudhariIntellectual Property RightsCopyrightAccess to KnowledgePervasive Technologies2015-11-21T07:26:45ZBlog EntryNational IPR Policy Series: Quick Observations on the Leaked Draft of the National IPR Policy
http://editors.cis-india.org/a2k/blogs/national-ipr-policy-series-quick-observations-on-the-leaked-draft-of-the-national-ipr-policy
<b>Earlier this week, the “Don’t Trade Our Lives Away” blog leaked the supposed final draft of India’s National IPR Policy (“leaked draft”). This article presents quick comments on this leaked draft.</b>
<p> </p>
<p style="text-align: justify;">The leaked draft (which is <a href="http://www.livemint.com/Politics/hFpH9YGm7HnlR01AhXj5PI/Leaked-draft-only-an-input-to-national-IPR-policy-Amitabh-K.html">not final</a>) is available <a href="https://donttradeourlivesaway.wordpress.com/2015/10/12/indias-national-ipr-policy-leaked-final-draft-is-it-really-the-finest/">here</a>. The only official document that the Department of Industrial Policy and Promotion (“DIPP”) has released so far is the <a href="http://www.dipp.nic.in/English/Schemes/Intellectual_Property_Rights/IPR_Policy_24December2014.pdf">First Draft of the National IPR Policy</a> (“First Draft”).</p>
<p style="text-align: justify;">CIS has tracked these developments since the <a href="http://cis-india.org/a2k/blogs/the-development-of-the-national-ipr-policy">beginning</a>. We have submitted <a href="http://cis-india.org/a2k/blogs/comments-on-proposed-ip-rights-policy-to-dipp">preliminary comments</a>, critical <a href="http://cis-india.org/a2k/blogs/national-ipr-policy-series-cis-comments-to-the-first-draft-of-the-national-ip-policy">comments to the First Draft</a>, sent <a href="http://cis-india.org/a2k/blogs/rti-requests-dipp-details-on-constitution-and-working-of-ipr-think-tank">multiple</a> <a href="http://cis-india.org/a2k/blogs/national-ipr-policy-series-follow-up-rti-to-dipp-on-ipr-think-tank">requests</a> under the Right to Information Act, 2005 (“RTI requests”) to the DIPP and published their <a href="http://cis-india.org/a2k/blogs/national-ipr-policy-series-rti-requests-by-cis-to-dipp-dipp-responses">responses</a>, discussed the <a href="http://cis-india.org/a2k/blogs/national-ipr-policy-series-who-is-a-public-authority-under-rti-act">IPR Think Tank as a public authority</a> under the RTI Act, analysed the process compared to <a href="http://cis-india.org/a2k/blogs/national-ipr-policy-series-indias-national-ipr-policy-what-would-wipo-think">recommendations</a> by the World Intellectual Property Organization (“WIPO”), <a class="external-link" href="http://cis-india.org/a2k/blogs/comparison-of-national-ipr-strategy-september-2012-national-ipr-strategy-july-2014-and-draft-national-ip-policy-december-2015">compared the First Draft</a> to an earlier National IPR Strategy<a href="#_msocom_1">[N1]</a> , written a <a href="http://cis-india.org/a2k/blogs/national-ipr-policy-series-cis-letter-to-ipr-think-tank">letter</a> to the Think Tank and have now <a href="http://cis-india.org/a2k/blogs/national-ipr-policy-series-what-have-sectoral-innovation-councils-been-doing-on-ipr">begun to track</a> the work being done by the Sectoral Innovation Council on IPR, also established under the DIPP. At the time of writing this post, we have been unable to locate comments to the First Draft made available by the DIPP.</p>
<p style="text-align: justify;">Since the release of the First Draft in December, 2014, this leaked document has been the first look at an updated IPR Policy for India. Not much seems to have changed since December, 2014 and this new leaked draft (which is dated April, 2015), barring the inclusion of some <em>Special Focus Areas.</em></p>
<p style="text-align: justify;">Perhaps one of the strongest criticisms of the First Draft had been that it supposed a nexus between IP and innovation, and various stakeholders had been quick to <a href="http://spicyip.com/2015/02/academics-and-civil-society-submits-critical-comments-to-dipp-on-draft-national-ipr-policy-by-ip-think-tank-part-i.html">point this out</a> as problematic, and fallacious. Unfortunately, since the language of the new draft has barely changed (I have managed to count only two-three additions), this remains the underlying issue in the new draft as well.</p>
<p style="text-align: justify;">What continues to be worrying in both drafts is sweeping references of benefits of IP to India’s socio-economic development. What constitutes this development and how IPR, and specifically the IPR Policy will achieve it is anyone’s guess, given that there are no references to studies undertaken to assess how IPR contributes to socio-economic development, specifically in India.</p>
<p>Here are some other quick comments:</p>
<ol></ol>
<ol>
<li style="text-align: justify;">In the first objective on IP Awareness and Promotion, the new draft includes an additional recommended step – that of engaging with the media to ‘sensitize them on IP issues’ (sic.). Given that this is under a broader objective of encouraging IP promotion, I am inclined to believe that this could be interpreted as telling the media to print positive things about intellectual property and refrain from criticizing intellectual property (that seems to be the theme of this entire document!). What does it mean to ‘sensitize’ the media about intellectual property?</li>
<li style="text-align: justify;">In the second objective, on IP creation, the leaked draft contains a recommendation to conduct a study to assess the contribution of various IP based industries to the economy – including employment, exports and technology transfer. No other details have been provided in the draft. </li>
<li style="text-align: justify;">Also in the second objective, the new draft makes a mention of improving the IP output of universities, national laboratories etc. The new draft proposes to encourage and facilitate the acquisition of intellectual property rights by these labs and institutions, whereas the earlier draft recommended the protection of IPRs created by them.</li>
<li>In the covering letter to the leaked draft, Justice Sridevan states that the final draft includes a discussion on key focus areas – creative industries, biotechnology, ICT, energy, agriculture, health, geographical indications (“GIs”) and traditional knowledge (“TK”). These have been discussed at the end of the new draft.</li>
<li style="text-align: justify;">Limitations and exceptions remain confined to an area of future study/research for future policy development. The ‘Creative Industries’ section of the leaked draft makes a mention of the significance of limitations and exceptions to safeguard access to knowledge and information; and the need to balance user rights and property rights. One would have liked to see this discussed more substantively in the policy and not confined only to a paragraph in the section on ‘Creative Industries’.</li>
<li style="text-align: justify;">In a welcome move, the policy draft (new) seeks to promote the adoption of free and open standards and free and open software in the ‘Information and Communication Technology and Electronics’ section.</li></ol>
<p style="text-align: justify;">With the DIPP Secretary’s latest update that the new policy draft will be released in about a month’s time, one will have to wait and see what the final draft looks like.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/national-ipr-policy-series-quick-observations-on-the-leaked-draft-of-the-national-ipr-policy'>http://editors.cis-india.org/a2k/blogs/national-ipr-policy-series-quick-observations-on-the-leaked-draft-of-the-national-ipr-policy</a>
</p>
No publishernehaaIntellectual Property RightsAccess to KnowledgePervasive Technologies2015-11-19T05:13:14ZBlog EntryPervasive Technologies: Working Document Series – Updated Research Methodology – Applying the Actor Network Theory to Competition Law and Standard Essential Patent Litigation in India
http://editors.cis-india.org/a2k/blogs/pervasive-technologies-working-document-series-2013-updated-research-methodology-2013-applying-the-actor-network-theory-to-competition-law-and-standard-essential-patent-litigation-in-india
<b>This document lays out the updated research methodology for the paper on competition law issues around standard essential patent litigation in India. </b>
<p>Read the earlier posts:</p>
<ul>
<li><a class="external-link" href="http://cis-india.org/a2k/blogs/methodology-sub-hundred-dollar-mobile-devices-and-competition-law">Pervasive Technologies Project Working Document Series: Document 1 - Research Methodology for a Paper on Competition Law + IPR + Access to < $100 Mobile Devices</a></li>
<li><a class="external-link" href="http://cis-india.org/a2k/blogs/pervasive-technologies-working-document-series-research-questions-and-a-literature-review-on-actor-network-theory">Pervasive Technologies: Working Document Series - Research Questions and a Literature Review on the Actor-Network Theory</a></li>
</ul>
<hr />
<p style="text-align: justify; "><i>In New Delhi, as in Fascist Milan or Nazi Berlin, the individual is lost; the scale is not human but super human; not national, but super-national: it is, in a word, Imperial.</i><a href="#_ftn1" name="_ftnref1">[1]</a></p>
<p style="text-align: justify; ">Twenty plus years later, written after he was awe-struck by the grandeur of the Rashtrapati Bhawan in New Delhi, Dalrymple’s delightful choice of words on the similarities between Lutyen’s Delhi and Speer’s Nuremberg<a href="#_ftn2" name="_ftnref2">[2]</a> rather aptly describe today’s globalized narrative of intellectual property (“IP”) rights determination and ownership. The process of determination of standards applied in mobile devices, claims of IP ownership in these standards and the subsequent enforcement (globally) of these IP claims are all instances of this narrative.</p>
<p style="text-align: justify; ">The increasingly global nature of both – innovation and intellectual property has been well documented by researchers over the years and needs no further exploration in this article. This article will seek to examine how this narrative influences (either overtly or covertly) the application of competition law to the regulation of standard essential patents (SEPs) in India. More specifically, this article seeks to study the role of various human and non-human actors involved were competition law to be considered as a potential solution to the matter of SEP litigation in India.</p>
<p style="text-align: justify; ">This article examines four research questions. <i>First, </i>how does the globalized narrative of intellectual property influence the determination of standards around mobile devices, their IP protection, licensing and enforcement? <i>Second, </i>what are the important competition law issues in SEP litigation in the United States of America (“USA”) and the European Union (“EU”), and how have regulators (the Federal Trade Commission (“FTC”) and the European Commission (“EC”) respectively) and courts in these jurisdictions addressed these issues? <i>Third, </i>what are the critical issues in SEP litigation and competition law in India and how do they compare with similar questions in other jurisdictions? <i>Fourth, </i>could solutions and methodology from the FTC and the EC be applied to SEP competition law matters in India?</p>
<p style="text-align: justify; ">In this effort, this article will employ Bruno Latour’s Actor-Network Theory<a href="#_ftn3" name="_ftnref3">[3]</a> (“ANT”) as the primary research methodology, supplemented where needed by others including comparative research and case studies. A detailed approach into discussing the (above) research questions has been discussed below.</p>
<p style="text-align: justify; "><b>Question one - how does the globalized narrative of intellectual property influence the determination of standards around mobile devices, their IP protection, licensing and enforcement?</b></p>
<p style="text-align: justify; ">This question primarily seeks to explain the determination SEPs on standards through International Standard Setting Organizations (“SSOs”) and the subsequent obligation on members of the SSOs to licence these SEPs on a Fair, Reasonable and Non Discriminatory (“FRAND”) basis.</p>
<p style="text-align: justify; ">Applying the ANT, this question will identify both human and non-human actors and that play a role internationally, in the determination of SEPs and their licensing. Illustratively, these actors include the SSOs, multinational corporations that are members of the SSOs, the FRAND licences and the contracts/terms of reference between the SSOs and their member corporations. In order to address this question, the author will refer to academic writing and other literature explaining the role of various actors and the international nature of the standard setting process. Networks that these actors share with each other and the possible influences to the determination of international standards will be studied. This question will explore the international IP environment, and the power of various actors that have an influence on IP norm setting, and attempt to locate the power of these various actors in their network setting.</p>
<p style="text-align: justify; "><b>Question two - what are the important competition law issues in SEP litigation in the USA and the EU, and how have regulators (the FTC and the EC respectively) and courts in these jurisdictions addressed these issues? </b></p>
<p style="text-align: justify; ">This question will study the competition law issues arising from the international determination of standards and the cross-border assertion and enforcement of intellectual property rights discussed in the previous question. This question will also study how (first, whether) courts and regulators have attempted to address some of the competition law issues.</p>
<p style="text-align: justify; ">Also applying the ANT, this question will identify various actors involved in competition law litigation around SEPs before the FTC, EC and the courts in the USA and the EU. Illustratively, these include the parties to the litigation, the regulator (whether the FTC or the EC), the court and the legal principles employed. Further applying the ANT, this question will also study how the various actors relate to one another, as a result of their connections within this network, i.e., the litigation, and other connections in other networks (for instance, the position of the parties in certain markets).</p>
<p style="text-align: justify; ">Under this research question, select a case study method will be employed to select cases from each jurisdiction. The most important cases pertaining to competition law questions will be studied. These are yet to be identified.</p>
<p style="text-align: justify; "><b>Question three - what are the critical issues in SEP litigation and competition law in India and how do they compare with similar questions in other jurisdictions? </b></p>
<p style="text-align: justify; ">This research question will seek to map the global context around SEP litigation (discussed above) to specific cases in India. In doing so, the author will study the two SEP disputes in India with competition law implications – the Ericsson and Micromax dispute and the Ericsson and Intex dispute; based on information available in the public domain. While there are other pending disputes around SEPs in India, they do not involve the Competition Commission of India (India’s market regulator), and hence are outside the scope of this article. Through a study of these cases, questions of competition law will be identified. Such questions may be either those as a result of the direct application of the Competition Act, 2000 or certain actions taken by the courts with competition law implications (for instance, granting <i>ex-parte </i>interim injunctions).</p>
<p style="text-align: justify; ">Having identified competition law issues in SEP litigation in India, the author will then employ the comparative research methodology to trace similar issues in international SEP litigation, discussed under the previous research question. What the author is most interested in locating is the position of the actors in domestic as well as international SEP litigation. Specifically, it is submitted that characters in the domestic litigation also trace back to the context of global IP norm setting; some of them more directly than others. For instance, multinational corporations are directly involved in IP norm setting and are a party to domestic disputes. Further, domestic regulators may seek to draw inferences or apply commonly understood international legal principles, thus invoking more international actors. This phase will attempt to distill the uniqueness of India in the narrative of global IP ownership around SEP litigation.</p>
<p style="text-align: justify; "><b>Question four- what are the challenges for competition regulation of SEPs in India; do principles and methodology from the FTC/ EU and courts present solutions to these challenges?</b></p>
<p style="text-align: justify; ">In this question, the author deliberates the challenge of competition regulation for SEPs in India and whether the approach of international regulators and courts could serve as a roadmap to address these issues.</p>
<p style="text-align: justify; ">In answering this question, the author will trace India’s specific location in global competition. The tensions between differently situated actors and the networks that they form will be examined. Some comparisons will be made to illustrate how the relationship of international jurisdictions (mainly the USA and the EU) with international multinational corporations that are a party to litigation differs from that of India. Legal traditions and institutions in India will be used to understand what legal possibilities are available for using competition regulation to regulate SEPs. This includes specifically the levers in competition law such as abuse of dominance as well as the nature of the competition regulator and the role that it identifies for itself. One might also consider the relative ‘youth’ of the competition regulator as a factor in laying down legal principles, the constraints it imposes on itself as well as a tension between the market regulator and the courts. This phase will also attempt to make a case for IP regulation within India’s existing culture of engaging with the public interest in intellectual property regulation.</p>
<p style="text-align: justify; ">Having examined global IP norm setting in SEPs, international and domestic issues around SEP litigation and the network of actors involved in these proceedings, in concluding this article, the author seeks to illustrate how actors and networks in the SEP-competition set-up derive power from each other; and how the location of an actor within a network is likely to influence law and regulation. Tracing this location will then in turn be useful in determining what solutions would best address the matter of competition regulation for SEPs in India.</p>
<p style="text-align: justify; "> </p>
<hr style="text-align: justify; " />
<p style="text-align: justify; "><a href="#_ftnref1" name="_ftn1">[1]</a>William Dalrymple, The City of Djinns – A Year in Delhi (rep. 2014, Penguin, India) at 83.</p>
<p style="text-align: justify; "><a href="#_ftnref2" name="_ftn2">[2]</a>Id at 82.</p>
<p style="text-align: justify; "><a href="#_ftnref3" name="_ftn3">[3]</a>Bruno Latour, Networks, Societies, Spheres: Reflections of an Actor – Network Theorist, International Journal of Communication 5 (2011), 796- 810, http://ijoc.org/index.php/ijoc/article/viewArticle/1094 (accessed 31 August, 2015).</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/pervasive-technologies-working-document-series-2013-updated-research-methodology-2013-applying-the-actor-network-theory-to-competition-law-and-standard-essential-patent-litigation-in-india'>http://editors.cis-india.org/a2k/blogs/pervasive-technologies-working-document-series-2013-updated-research-methodology-2013-applying-the-actor-network-theory-to-competition-law-and-standard-essential-patent-litigation-in-india</a>
</p>
No publishernehaaAccess to KnowledgePervasive Technologies2015-10-04T04:20:13ZBlog Entry