The Centre for Internet and Society
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Summary of CIS Comments to DIPP’s Discussion Paper on SEPs and their availability on FRAND terms
http://editors.cis-india.org/a2k/blogs/summary-of-cis-comments-to-dipp2019s-discussion-paper-on-seps-and-their-availability-on-frand-terms
<b>This blog post summarises CIS’ responses to DIPP’s Discussion Paper on SEPs and their availability on FRAND terms. The response made specific recommendations regarding adequacy of Indian law to determine SEP litigation, remedies for FRAND assured SEPs, FRAND royalty rates, SSO’s policies, parties’ non-disclosure agreements and transparency, and essentiality of SEPs and their declassification. </b>
<p><span id="docs-internal-guid-667bbb2d-526e-1e2f-19c3-bceb0be39562"></span></p>
<p dir="ltr"><strong>On April 22nd, 2016, CIS filed a comment with the <a href="http://cis-india.org/a2k/blogs/dipp-comments.pdf">Department for Industrial Policy and Promotion (DIPP), regarding Standard Essential Patents(SEPs) in India and their availability on FRAND terms.</a> A TL;DR version of the comment follows. </strong></p>
<h2 style="text-align: justify;">Whether IPR and antitrust legislations should be amended </h2>
<p style="text-align: justify;" dir="ltr">CIS submitted that no amendments to either the Patents Act, 1970 or the Competition Act, 2005 may be preferred. The changes that need to be brought forth are the adoption of a balanced National IPR Policy, and a National Competition Policy - both of which have been in the works for a while. Further, we urge the government to not enter into FTAs like the Regional Comprehensive Economic Partnership.</p>
<h2><span style="text-align: justify;">IPR Policies of SSOs, and prescribing Guidelines for their functioning</span></h2>
<p dir="ltr"><span style="text-align: justify;">CIS recommended that, first, Indian SSOs adopt an IPR Policy factoring in “India specific requirements”; second, on TSDSI’s IPR Policy (and DOSTI, GIFSI), certain changes be made to the policy to a) require the members to refrain from seeking injunctive relief b) delete the condition where FRAND negotiations may be subject to a condition of reciprocity; (c) to identify in detail the procedure to be followed in case of patent ‘holdups’ and patent ‘holdouts’; (d) to identify in detail the procedure to be followed in case of refusal to license by TSDSI members, and, nonmembers, both; and, (e) to include a detailed process on the declassification of a standard or technical specification. Further, SSOs may consider recommending the use of royalty-free licenses, in tune with the W3C and Open Mobile Alliance.</span></p>
<p style="text-align: justify;" dir="ltr">The government should prescribe Model Guidelines that may be adopted by Indian SSOs (incorporating the suggestions above), in view of increasing complexity of SEP litigation, and potential abuse of FRAND process. The Model Guidelines may additionally 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>
<h2 style="text-align: justify;">Royalty Rates </h2>
<p style="text-align: justify;" dir="ltr">The government should also intervene in the setting of royalties and FRAND terms, in light of severe inadequacies in the SSOs’ IPR policies. CIS suggested that the government should initiate the formation of a patent pool of critical mobile technologies and apply a compulsory license with a five per cent royalty. Also, payment of royalties on SEPs should be capped by fixing a limit by the DIPP. </p>
<p style="text-align: justify;" dir="ltr">Further, royalty rates for SEPs should be based on the smallest saleable patent practising component. </p>
<h2 style="text-align: justify;">Non-Disclosure Agreements and Transparency </h2>
<p style="text-align: justify;" dir="ltr">On the use of Non-Disclosure Agreements in SEP/FRAND litigation, CIS submitted that . 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 all instances.</p>
<p style="text-align: justify;" dir="ltr">On making the practices of cross-licensing and patent pooling transparent, CIS strongly urged the DIPP to strictly enforce the compliance of Form 27s by patentees. Availability of Form 27s will critically enable willing licensees to access patent working information in a timely manner. The Form 27 template may be modified to include more details, including patent pool licenses, with an explicit declaration of the names of the licensees and not just the number.</p>
<p style="text-align: justify;" dir="ltr">Further, 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>
<h2 style="text-align: justify;">Remedies for FRAND- assured SEPs </h2>
<p style="text-align: justify;" dir="ltr">CIS recommended that courts adopt a more cautious stance towards granting injunctions in the field of SEP litigation, because a) injunctions may deter willing licensees from agreeing to the FRAND commitment, and also harm them b) accurately proving irreparable damage is difficult to establish in the Indian context for smartphone manufacturers c) there exists ambiguity in Indian jurisprudence to determine the conduct of an unwilling licensee, inter alia.</p>
<p dir="ltr"><span style="text-align: justify;">In CIS’ 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. Analytical frameworks may be studied in American jurisprudence to determine reasonable royalty rates, and patent damages.</span></p>
<h2 style="text-align: justify;">Essentiality of SEPs and their declassification </h2>
<p style="text-align: justify;" dir="ltr">To determine whether a patent declared as SEP is actually an Essential Patent, CIS submits that various methodologies have been used by studies to analyse the same. Goodman and Myers led a study on the subject in 2005; and additionally, laboratory tests and expert opinions can be taken into account to determine the essentiality. </p>
<p style="text-align: justify;" dir="ltr">Lastly, CIS suggested that Indian SSOs maintain a publicly accessible database of SEPs found to be invalid or non-essential in India. Such a record will assist the process of declassifying SEPs timely.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/summary-of-cis-comments-to-dipp2019s-discussion-paper-on-seps-and-their-availability-on-frand-terms'>http://editors.cis-india.org/a2k/blogs/summary-of-cis-comments-to-dipp2019s-discussion-paper-on-seps-and-their-availability-on-frand-terms</a>
</p>
No publishersinhaDIPPIntellectual Property RightsFRANDAccess to Knowledge2016-04-26T12:07:30ZBlog EntryResponses to the DIPP's Discussion Paper on SEPs and their Availability on FRAND Terms
http://editors.cis-india.org/a2k/blogs/responses-to-the-dipps-discussion-paper-on-seps-and-their-availability-on-frand-terms
<b>The Department of Industrial Policy and Promotion (DIPP), Government of India, requested comments through its "Discussion Paper on Standard Essential Patents and Their Availability on FRAND Terms" on March 1, 2016. This post is a compilation of various comments submitted in response to it.</b>
<p style="text-align: justify; ">The Centre for Internet & Society (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. The submission is divided in 3 main parts. The first part, ‘Preliminary’, introduces the document; the second part, ‘About CIS’, is an overview of the organization; and, the third 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. The submission to the DIPP was prepared by Anubha Sinha, Nehaa Chaudhari and Rohini Lakshané.</p>
<hr style="text-align: justify; " />
<div style="text-align: justify; "><b><a href="http://editors.cis-india.org/a2k/blogs/dipp-comments.pdf" class="internal-link"> </a></b></div>
<h3 style="text-align: justify; ">Download</h3>
<table class="plain" style="text-align: justify; ">
<tbody>
<tr>
<th>
<ul>
<li><a href="http://editors.cis-india.org/a2k/blogs/discussion-paper-on-standard-essential-patents-and-their-availability-on-frand-terms" class="internal-link"><span style="text-decoration: underline;">Discussion Paper on Standard Essential Patents and their Availability on Frand Terms</span></a> (Government of India, Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, March 1, 2016)</li>
<li><a href="http://editors.cis-india.org/a2k/blogs/dipp-comments.pdf" class="internal-link">Centre for Internet and Society</a></li>
<li><a class="external-link" href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2769239">Centre for Internet and Society (hosted on Social Science Research Network)</a></li>
<li><a class="external-link" href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2768496">Prof. Jorge L. Contreras</a></li>
<li><a href="http://editors.cis-india.org/a2k/blogs/aba-comments.pdf" class="internal-link">Joint Comments of the American Bar Association (ABA) Sections of Anti-Trust Law, Intellectual Property Law, International Law, and Science & Technology Law</a></li>
<li><a href="http://editors.cis-india.org/a2k/blogs/g-mason-dipp-response" class="internal-link">Global Antitrust Institute, George Mason University School of Law</a></li>
<li><a href="http://editors.cis-india.org/a2k/blogs/cmai-tema" class="internal-link">CMAI-TEMA (Communication Multimedia and Infrastructure Association of India - Telecom Equipment Manufacturers Association of India)</a></li>
<li><a class="external-link" href="http://sflc.in/comments-on-dipp-discussion-paper-on-standard-essential-patents-and-their-availability-on-frand-terms/">Software Freedom Law Centre (SFLC)</a></li>
<li><a class="external-link" href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2779696">Yogesh Pai</a></li>
</ul>
</th>
</tr>
</tbody>
</table>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/responses-to-the-dipps-discussion-paper-on-seps-and-their-availability-on-frand-terms'>http://editors.cis-india.org/a2k/blogs/responses-to-the-dipps-discussion-paper-on-seps-and-their-availability-on-frand-terms</a>
</p>
No publisherAnubha Sinha, Nehaa Chaudhari, and Rohini LakshanéDIPPFeaturedAccess to Knowledge2016-07-07T16:24:01ZBlog EntryNational IPR Policy Series: RTI Requests by CIS to DIPP + DIPP Responses
http://editors.cis-india.org/a2k/blogs/national-ipr-policy-series-rti-requests-by-cis-to-dipp-dipp-responses
<b>In earlier blog posts, we have discussed the development of India’s National IPR Policy (“the Policy”); comments by the Centre for Internet and Society (“CIS”) to the IPR Think Tank before the release of the first draft of the Policy and CIS’ comments to the IPR Think Tank in response to the first draft of the Policy. Continuing our National IPR Policy Series, this article documents our requests to the Department of Industrial Policy and Promotion (“DIPP” / “the Department”) under the Right to Information (“RTI”) Act, 2005 and the responses of the Department.</b>
<p><a href="http://editors.cis-india.org/a2k/blogs/national-ipr-policy-series-dipp-response.pdf" class="external-link">View the PDF here</a>.</p>
<hr />
<h3>Details of RTI Requests Filed by CIS</h3>
<p style="text-align: justify; ">In February, 2015, <a href="http://cis-india.org/a2k/blogs/rti-requests-dipp-details-on-constitution-and-working-of-ipr-think-tank">CIS had filed three RTI requests</a> with the DIPP. <a href="http://editors.cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-1-february-2015/view">The first request</a> was four-pronged, seeking information related to <i>first,</i> the process followed by the Department in the creation of the IPR Think Tank; <i>second, </i>details and documents of a meeting held to constitute the Think Tank; <i>third, </i>details and documents of all/multiple meetings held to constitute the Think Tank; <i>fourth</i>, details of a directive/directives received from any other Government Ministry/authority directing the constitution of the Think Tank and <i>fifth,</i> the process of shortlisting the members of the Think Tank by the DIPP.</p>
<p style="text-align: justify; "><a href="http://editors.cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-2-february-2015/view">In our second RTI request,</a> <i>first,</i> we requested details of the process followed by the Think Tank in the formulation of the Policy; <i>second, </i>we requested all documents relating to a meeting held for the formulation of the Policy; <i>third, </i>we requested all documents held for multiple meetings for the creation of the Policy and <i>fourth,</i> we requisitioned all suggestions and comments received by the Think Tank from stakeholders <b>before</b> the release of the Policy, that is, those suggestions/comments received in November, 2014.</p>
<p style="text-align: justify; ">In our <a href="http://editors.cis-india.org/a2k/blogs/cis-request-to-dipp-3.pdf" class="external-link">third RTI request</a>, also filed on also filed in February, 2015, we had asked the DIPP to indicate all suggestions and comments received by the IPR Think Tank from different stakeholders in response to the first draft of the National IPR Policy (to have been submitted on or before January 30, 2015 <a href="http://dipp.nic.in/English/acts_rules/Press_Release/pressRelease_IPR_Policy_30December2014.pdf">as per DIPP’s Public Notice</a>).</p>
<h3 style="text-align: justify; ">Responses by DIPP to CIS' RTI Requests</h3>
<p style="text-align: justify; ">The DIPP replied to our three RTI requests in multiple stages. At first, <a href="http://editors.cis-india.org/a2k/blogs/dipp-response-improper-payment.pdf" class="external-link">in a letter dated 12 February, 2015</a>, we were directed to resubmit our application , seemingly because we hadn’t addressed the Postal Money Order to the correct authority, and were directed to do the same. Funnily enough, we received three other responses – one for each of our RTI requests (the first of these is not dated; the second one is dated 19 February, 2015 and then revised to 26 February, 2015; and the third is also dated 26 February, 2015).</p>
<h3 style="text-align: justify; ">The First Response: On the Constitution of the Think Tank</h3>
<p style="text-align: justify; ">In the <a href="http://editors.cis-india.org/a2k/blogs/dipp-response-1.pdf" class="external-link">first of their responses</a> to these requests, the Department has grouped our queries into five questions and provided a point-wise response to these questions, as under:</p>
<ul>
<li style="text-align: justify; "><b>Please indicate in detail the process followed by the Department of Industrial Policy and Promotion for the constitution for an IPR Think Tank to draft the National Intellectual Property Rights Policy under Public Notice No. 10 (22)/2013 –IPR-III dated November 13, 2014 (sic).</b></li>
</ul>
<p style="text-align: justify; ">In its response the Department notes that it convened an <i>interactive meeting on IPR issues</i> which was chaired by the Minister for Commerce and Industry (Independent Charge), i.e., Ms. Nirmala Sitharaman. As per the Department’s response, this meeting was held on 22 September, 2014 (<b>“the Meeting”</b>) and was aimed at discussing <i>issues related to IPRs, including finalization of the Terms of Reference for IPR Think-Tank proposed to be established </i>(sic.) The Department also notes that <i>representatives from various Ministries/Departments, Member of various Expert Committees constituted by the Department, besides IP experts and other Legal Practitioners</i> (sic) were invited to the meeting. The Department then states that the composition of the Think Tank was decided <i>on the basis of the discussions held in the department after the said interactive Meeting</i> (sic).</p>
<ul>
<li style="text-align: justify; "><b>If there was a meeting held to decide on the same, please include all necessary documents including the minutes of the meeting, records, documents, memos, e-mails, opinion, advices, press releases, circulars, orders etc in which the constitution of the aforesaid mentioned IPR Think Tank was decided (sic).</b></li>
</ul>
<p style="text-align: justify; ">The Department has attached the Minutes of the Meeting held on 22 September, 2014 (<b>“the Minutes”</b>) and states that there were no documents or papers that were circulated at this meeting and that the participants were asked to present their views on various IP issues at this meeting.</p>
<p style="text-align: justify; "><span>Excerpts from the Minutes</span></p>
<p style="text-align: justify; ">The Secretary of the Department (Shri Amitabh Kant) refers to a (then) recent announcement made by the Minister of State for Commerce and Industry (<b>“the Minister”</b>) on the formulation of the National IPR Policy and the establishment of an IPR Think Tank and states that the meeting had been convened to <i>discuss on various IPR issues with IP experts and legal practitioners so that it would provide essential inputs to the policy needs of the department</i> (sic). The Minutes report that Mr. Kant further stated that the objective of the department was to have <i>a world class IP system</i> and that this included a comprehensive National IPR Policy and <i>which takes care of various issues like IP creation, protection, administration and capacity building </i>(sic). He is also reported to have said that such a stakeholder interaction was important for the government to seek inputs.</p>
<p style="text-align: justify; ">The Minister is reported to have said that the purpose of the meeting was to constitute an IP Think Tank that would <i>regularly provide inputs to all IP policy needs of this department as well as advice government in disparate legal aspects (sic). </i>The Minutes also report her to have said that the department would finalize an IP policy within ninety days of the Meeting, based on the inputs of the participants.</p>
<p style="text-align: justify; ">According to the Minutes, various issues emerged from the discussion. <i>Inter alia, </i>these include <i>first,</i> that the proposal to constitute the Think Tank was a welcome measure, along the lines of similar initiatives taken by Australia, South Kora, the United Kingdom and the United States of America; <i>second, </i>that in order to remove misconceptions held by <i>foreign stakeholders</i> about IP enforcement in India, there was a need to highlight judgments of Indian courts that were favorable to <i>foreign stakeholders and MNCs</i>; <i>third, </i>that the national policies on telecom, manufacturing and IP ought to be integrated; <i>fourth</i>, that the focus of the Policy should be <b><i>increase in creation of IP including commercialization of IP and strengthening human capital and IP management</i></b> and <i>fifth</i>, that empirical studies should be conducted to examine the feasibility of Utility Models protection, that there was a need to revise the law on Geographical Indications and that the Policy should include protection for traditional knowledge and guidelines for publicly funded research.</p>
<p style="text-align: justify; ">The Minister is then said to have identified six major areas during the discussion, including <i>IP institution, legislation, implementation, public awareness, international aspects and barriers in IP growth</i> as areas to be covered under the Policy.</p>
<p style="text-align: justify; "><span>Who attended the Meeting?</span></p>
<p style="text-align: justify; ">Attached with the Minutes was also a list of participants who attended the Meeting. Out of the thirty six attendees, <i>I have not been able to locate a single individual or organization representing civil society</i>. Participants include representatives from various government departments and ministries, including <i>inter alia,</i> the DIPP, the Department of Commerce, the Ministry of External Affairs, the Ministry of Information and Broadcasting, the Copyright Division from the Department of Higher Education of the Ministry of Human Resources Development, the Office of the Controller General of Patents, Designs and Trademarks and the Ministry of Culture. The Meeting was also attended by representatives of corporations and industry associations, including FICCI, CII and Cadila Pharmaceuticals; in addition to representatives from law firms including Luthra and Luthra, K&S Partners and Inventure IP and academics including, <i>inter alia,</i> faculty from the Asian School of Business, Trivandrum, Indian Law Institute, Delhi, Tezpur University, Assam, National Law University, Delhi, NALSAR University of Law, Hyderabad, the Indian Institute of Technology, Madras and the National Law School of India University, Bangalore.</p>
<ul>
<li style="text-align: justify; "><b>If there were multiple meetings held for the same please provide all necessary documents including the minutes of all such meetings, records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders etc. for all such meetings held (sic).</b></li>
</ul>
<p style="text-align: justify; ">The Department answered, “No”; which I’m taking to mean that there weren’t other meetings held for the formulation of the Think Tank or the Policy. This is interesting, because the Minutes (referred to earlier) speak of another inter-ministerial meeting <i>including IP experts and legal practitioners</i> slated to be held around the 10<sup>th</sup> of October, 2014, to discuss the framework of the Policy.</p>
<ul style="text-align: justify; ">
<li><b>If a directive or directives were received by the Department of Industrial Policy and Promotion from any other government body to constitute such a think tank, please provide a copy of such a directive received by the DIPP from any Government authority, to constitute such a Think Tank (sic).</b></li>
</ul>
<p style="text-align: justify; ">The Department answered, “No”; which I’m taking to mean that there was no communication received by the Department to constitute this Think Tank.</p>
<ul style="text-align: justify; ">
<li><b>Please indicate in detail the process of shortlisting the members of the IPR Think Tank by the Department of Industrial Policy and Promotion or any other body that was responsible for the same (sic).</b></li>
</ul>
<p style="text-align: justify; ">The Department replied that the answer to this was the same as that to the first question.</p>
<h3 style="text-align: justify; ">The Second Response: The Drafting of the Policy</h3>
<p>The <a href="http://editors.cis-india.org/a2k/blogs/dipp-response-2.pdf/" class="external-link">second of the Department's responses</a> to our requests came in the form of separate responses to each of our four questions, as under:</p>
<ul>
<li><b>Please indicate in detail the process followed by the IPR Think Tank constituted by the Department of Industrial Policy and Promotion via Public Notice No. 10 (22)/2013-IPR-III dated November 13, 2014 while framing the first draft of the National IPR Policy dated Dec. 19, 2014 (sic).</b></li>
</ul>
<p style="text-align: justify; ">The Department stated that the IPR Think Tank conducted its meetings independently without any interference from the Department. The Department then stated that the Think Tank had received comments from stakeholders via a dedicated email id and <i>conducted the interactive meeting with stakeholders while framing the draft on the National IPR Policy.</i></p>
<ul>
<li style="text-align: justify; "><b>If there was a meeting held to decide on the same, please include all necessary documents including the minutes of the meeting, records, documents, memos, e-mails, opinion, advices, press releases, circulars, orders, suggestions etc. related to drafting of such National IPR Policy Think Tank chaired by Justice Prabha Sridevan (sic). </b></li>
</ul>
<p style="text-align: justify; ">The Department replied that since the IPR Think Tank had decided <i>its process by themselves</i> (sic), the Department<i> do not have the minutes of the meeting etc. conducted by the IPR Think Tank </i>(sic). It attached with its reply a copy of the press releases announcing the composition of the Think Tank and asking stakeholders to submit comments to the first draft of the Policy.</p>
<ul>
<li style="text-align: justify; "><b>If there were multiple meetings held for the same, please provide all necessary documents including the minutes of all such meetings, records, documents, memos, e-mails, opinions, advices, press releases, circulars, order suggestions etc. for all such meetings held (sic).</b></li>
</ul>
<p>The Department replied that the response to this was the same as that to the earlier question above.</p>
<ul>
<li style="text-align: justify; "><b>Please provide all the suggestions and comments received by the IPR Think Tank from stakeholders after the DIPP issued Public Notice No. 10/22/2013-IPR-III dated 13.11.2014 asking for suggestions and comments on or before November 30, 2014 (sic).</b></li>
</ul>
<p>The Department replied that the comments and suggestions were received by the Think Tank directly and that therefore, the Department was <i>not in a position to provide the same.</i></p>
<h3>The<i> </i>Third Response: Stakeholder Comments</h3>
<p>In its <a href="http://editors.cis-india.org/a2k/blogs/dipp-response-3.pdf" class="external-link">third and final response</a> to our requests, the DIPP replied to our query as under:</p>
<ul>
<li style="text-align: justify; "><b>Please indicate all the suggestions and comments received by the IPR Think Tank by different stakeholders on or before January 30, 2015 on its first draft of the National Intellectual Property Policy submitted by the IPR Think Tank on December 19, 2014.</b></li>
</ul>
<p>The Department said that <i>the suggestions and comments on the draft on National IPR Policy have been received by the IPR Think Tank directly. As such this Department is not in a position to provide the same (sic.).</i></p>
<h3>Observation on the DIPP's Responses</h3>
<p><i>Prima facie, </i>the responses by the Department are rather curious, leading to a range of oddities and unanswered questions.</p>
<h3>Who Will Watch the IPR Think Tank</h3>
<p style="text-align: justify; ">In its response to our first RTI request, the Department quite clearly stated that it decided the composition of the IPR Think Tank based on discussions in a meeting that it convened, which was also chaired by the Minister of State for Commerce and Industry, the parent ministry of the DIPP. In the same response, the Department also stated that it had not received any directive from any other ministry/government department directing the constitution of the IPR Think Tank, leading to the conclusion that this decision was taken by the DIPP/the Ministry of Commerce and Industry itself. Subsequently however, the Department justified its refusal to furnish us with documents leading to the development of the first draft of the National IPR Policy (contained in our second RTI request) by stating that the IPR Think Tank conducted its business without any interference from the Department, and that the Department did not have access to any of the submissions made to the IPR Think Tank or any of the internal minutes of the meetings etc. that were a part of the process of drafting the IPR Policy.</p>
<p style="text-align: justify; ">Various press releases by the DIPP have stated that it has constituted the IPR Think Tank, and that the purpose of the IPR Think Tank <a href="http://dipp.nic.in/English/acts_rules/Press_Release/ipr_PressRelease_24October2014.pdf">would be to advise the Department on IPR issues.</a> Visibly, the Department intends for the IPR Think Tank to play an active role in shaping India’s IP law and policy, including suggesting amendments to laws wherever necessary. It is concerning therefore that on the question of accountability of the IPR Think Tank, the DIPP remains silent. It may be argued perhaps, that the IPR Think Tank constitutes a ‘public authority’ under Section 2(h)(d) of the <a href="http://righttoinformation.gov.in/rti-act.pdf">Right to Information Act, 2005</a> (<b>“RTI Act”</b>). In that case, the IPR Think Tank would have to fulfill, <i>inter alia,</i> all of the obligations under Section 4 of the RTI Act as well as designate a Public Information Officer. Alternatively, given that the IPR Think Tank has been constituted by the DIPP and performs functions for the DIPP, the Public Information Officer of the DIPP would have to furnish <span>all</span> relevant information under the RTI Act (including the information that we sought in our requests, which was not provided to us).</p>
<h3 style="text-align: justify; ">Who are the Stakeholders</h3>
<p style="text-align: justify; ">Even a preliminary look at the list of participants at the Meeting (based on which the Department constituted the IPR Think Tank) reveals that not all stakeholders have been adequately represented. I haven’t been able to spot any representation from civil society and other organizations that might be interested in a more balanced intellectual property framework that is not rights-heavy. The following chart (based on a total sample size of 36 participants, as stated in the list of participants provided to us by the DIPP) will help put things in perspective.</p>
<table class="listing">
<tbody>
<tr>
<th><img src="http://editors.cis-india.org/home-images/Meeting.png" alt="Meeting" class="image-inline" title="Meeting" /></th>
</tr>
</tbody>
</table>
<h3 style="text-align: justify; ">What Could've Been Done?</h3>
<p style="text-align: justify; ">Setting aside arguments on its necessity, let us for the moment assume that this drafting of the National IPR Policy is an exercise that needed to have been undertaken. We must now examine what might possibly be the best way to go about this.</p>
<p style="text-align: justify; ">In 2014, the World Intellectual Property Organization (<b>“WIPO”</b>) (based on whose approach the Policy seems to have been based- at least in part), produced a detailed <a href="http://www.wipo.int/edocs/pubdocs/en/intproperty/958/wipo_pub_958_1.pdf">Methodology for the Development of National Intellectual Property Strategies</a>, outlining a detailed eight step process before a National IP Policy was implemented in a Member State. While this approach is one to be followed by the WIPO and might not be entirely suited to India’s drafting exercise, specific sections on the national consultation process as well as the drafting and implementation of national intellectual property strategies might prove to be a decent starting point.</p>
<p>(More on this in an upcoming article).d</p>
<h3>Where Do We Go From Here?</h3>
<p style="text-align: justify; ">The DIPP’s responses have left me with more questions, probably the subject of more RTI requests. Is the IPR Think Tank a public authority for the purposes of the Right to Information Act, 2005? To whom should questions of informational accountability of the IPR Think Tank be addressed, if there is no information available on the IPR Think Tank, and the DIPP claims to have no access to it? Do we need to re-examine the draft National IPR Policy given that there has been inadequate representation of all stakeholders? What were the suggestions made by different stakeholders, and (how) have these been reflected in the first draft of the Policy? Was there an evaluation exercise conducted before the first draft of the Policy was released in order to better inform the formulation of the Policy?</p>
<p style="text-align: justify; ">We will be looking at these and other questions as they arise, and sending some of these to the DIPP in the form of RTI requests. (Watch the blog for more).</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/national-ipr-policy-series-rti-requests-by-cis-to-dipp-dipp-responses'>http://editors.cis-india.org/a2k/blogs/national-ipr-policy-series-rti-requests-by-cis-to-dipp-dipp-responses</a>
</p>
No publishernehaaAccess to KnowledgePervasive TechnologiesDIPPRTINational IPR PolicyAccountabilityFeaturedIPR Think TankHomepage2015-04-26T08:47:00ZBlog EntryIndian Department of Industrial Policy and Promotion Discussion Paper on Standard Essential Patents
http://editors.cis-india.org/a2k/blogs/indian-department-of-industrial-policy-and-promotion-discussion-paper-on-standard-essential-patents
<b>India’s Department of Industrial Policy and Promotion (“DIPP”) released in March, earlier this year, a discussion paper on standard essential patents and their availability on fair, reasonable and non discriminatory terms.</b>
<p>Available here – <a href="http://dipp.nic.in/english/Discuss_paper/Feedback.aspx"><span>http://dipp.nic.in/english/Discuss_paper/Feedback.aspx</span></a></p>
<p>DIPP should also be publishing all of the feedback that it receives on the above link. The deadline was submission of comments was (extended to) 29 April, 2016. CIS’ comments are <a href="http://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"><span>here</span></a> and a summary is <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>here.</span></a></p>
<p>We’re also collecting and uploading other submissions to the DIPP on this issue. Some are <a href="http://cis-india.org/a2k/blogs/responses-to-the-dipps-discussion-paper-on-seps-and-their-availability-on-frand-terms"><span>here</span></a>.</p>
<hr />
<p>This post was published by infojustice.org on May 4, 2016. It can be <a class="external-link" href="http://infojustice.org/archives/35979">read here</a>.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/indian-department-of-industrial-policy-and-promotion-discussion-paper-on-standard-essential-patents'>http://editors.cis-india.org/a2k/blogs/indian-department-of-industrial-policy-and-promotion-discussion-paper-on-standard-essential-patents</a>
</p>
No publishernehaaDIPPIntellectual Property RightsAccess to Knowledge2016-05-10T15:23:21ZBlog EntryDIPP RESPONSE TO CIS (THIRD) RTI REQUEST - FEBRUARY, 2015
http://editors.cis-india.org/a2k/blogs/dipp-response-to-cis-third-rti-request-february-2015
<b></b>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/dipp-response-to-cis-third-rti-request-february-2015'>http://editors.cis-india.org/a2k/blogs/dipp-response-to-cis-third-rti-request-february-2015</a>
</p>
No publishernehaaGovernment InformationAccess to KnowledgeDIPPIntellectual Property RightsAccountabilityNATIONAL IPR POLICYIPR THINK TANK2015-04-14T18:16:52ZFileDIPP RESPONSE TO CIS (SECOND) RTI REQUEST - FEBRUARY, 2015
http://editors.cis-india.org/a2k/blogs/dipp-response-to-cis-second-rti-request-february-2015
<b></b>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/dipp-response-to-cis-second-rti-request-february-2015'>http://editors.cis-india.org/a2k/blogs/dipp-response-to-cis-second-rti-request-february-2015</a>
</p>
No publishernehaaGovernment InformationAccess to KnowledgeDIPPIntellectual Property RightsAccountabilityNATIONAL IPR POLICYIPR THINK TANK2015-04-14T17:58:50ZFileDIPP RESPONSE TO CIS (SECOND) RTI - FEBRUARY, 2015
http://editors.cis-india.org/a2k/blogs/dipp-response-to-cis-second-rti-february-2015
<b></b>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/dipp-response-to-cis-second-rti-february-2015'>http://editors.cis-india.org/a2k/blogs/dipp-response-to-cis-second-rti-february-2015</a>
</p>
No publishernehaaGovernment InformationAccess to KnowledgeDIPPIntellectual Property RightsAccountabilityNATIONAL IPR POLICYIPR THINK TANK2015-04-14T18:14:18ZFileDIPP RESPONSE TO CIS (FIRST) RTI - FEBRUARY, 2015
http://editors.cis-india.org/a2k/blogs/dipp-response-to-cis-first-rti-february-2015
<b></b>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/dipp-response-to-cis-first-rti-february-2015'>http://editors.cis-india.org/a2k/blogs/dipp-response-to-cis-first-rti-february-2015</a>
</p>
No publishernehaaGovernment InformationAccess to KnowledgeDIPPIntellectual Property RightsAccountabilityNATIONAL IPR POLICYIPR THINK TANK2015-04-14T17:42:43ZFileCIS' Submission to DIPP and CGPDTM at meeting with IP Stakeholders
http://editors.cis-india.org/a2k/blogs/cis-submissions-to-dipp-and-cgptdm-at-meeting-with-ip-stakeholders
<b>The Office of the Controller General of Patents, Designs and Trademarks held a meeting with IP stakeholders on December 7, 2017, chaired by the Secretary, DIPP, to take suggestions on improving procedures and functioning of the Office. Anubha Sinha attended the meeting and requested the DIPP to improve compliance of uploading Form 27s by patentees and ensure proper enforcement of related provisions within the Indian Patent Act, 1970. Additionally, we sent a detailed submission to the Office, drawing from our recent research. Thanks to Rohini Lakshane and Aman Goyal for their inputs. </b>
<h3 align="center" style="text-align: justify;"><strong>Submission to the Department of Industrial Planning and
Promotion (DIPP) at <a class="external-link" href="http://http://www.ipindia.nic.in/writereaddata/Portal/News/374_1_Meeting_Circular_for_Stakeholders_Meeting_at_Udyog_Bhawan_on_7-12-2017.pdf">Meeting with IP Stakeholders on 07 December, 2017</a></strong></h3>
<p> </p>
<p style="text-align: justify;" class="MsoListParagraphCxSpFirst">1. As the DIPP is aware, the Indian
mobile device manufacturing industry is mired in issues related to licensing of
standard essential patents (SEPs). Disputes have resulted in imposition of
heavy interim royalty rates on Indian manufacturers, payable to foreign SEP
holders. Section 146(2) of the Patent Act, 1970 mandates patentees to provide
information on working of patents, which is crucial for willing licensees to access patent working information in a timely manner.
This requirement, that the details of patent working be disclosed by patentees
supports the goal of making unworked patents available for compulsory licensing
in India, both to promote economic development and public access to patented
products. Penalties for failing to furnish such information (via Form 27) are
steep, potentially resulting in fines or imprisonment.</p>
<p style="text-align: justify;" class="MsoListParagraphCxSpMiddle">2. We note that in 2009, 2013 and 2015
the Controller issued public notices calling on patent owners to comply with
their obligations to file statements of working on Form 27. Further, on
February 12, 2013, the Indian Patent Office (IPO) announced plans to make Form
27 submissions for the year 2012 available to the public via the IPO website.</p>
<p style="text-align: justify;" class="MsoListParagraphCxSpMiddle">3. We commend the efforts of the IPO, however,
our empirical research on ICT innovations<a name="_ednref1" href="#_edn1"><span class="MsoEndnoteReference"><span class="MsoEndnoteReference">[i]</span></span></a> as well as by Prof. Shamnad
Basheer (on ICT and pharmaceutical sector)<a name="_ednref2" href="#_edn2"><span class="MsoEndnoteReference"><span class="MsoEndnoteReference">[ii]</span></span></a> reveals that there are serious
lapses as far as compliance and enforcement of statutory provisions mandating
filing of Form 27 are concerned.</p>
<p style="text-align: justify;" class="MsoListParagraphCxSpLast">4. In the past year, we studied data
available from 2009- 2016 for the mobile device sector, and could only identify
and access 4,916 valid Forms 27, corresponding to 3,126 mobile device patents,
leaving 1,186 Indian patents for which a
Form 27 could have been filed, but was not found.<a name="_ednref3" href="#_edn3"><span class="MsoEndnoteReference"><span class="MsoEndnoteReference">[iii]</span></span></a> For a surprising number of Form 27s (3%) the
working status of the relevant patent was not designated.</p>
<p style="text-align: justify;">Even among the Form 27s that had been
obtained, almost none contained useful information regarding the working of the
subject patents or fully complying with the informational requirements of the
Indian Patent Rules. Many patentees simply omitted required descriptive
information from their forms without any explanation.<a name="_ednref4" href="#_edn4"><span class="MsoEndnoteReference"><span class="MsoEndnoteReference">[iv]</span></span></a></p>
<p style="text-align: justify;">Via our research we also gathered
complaints raised by patentees and industry observers regarding the structure
of the Form 27 requirement itself. For example, patents covering complex,
multi-component products that embody dozens of technical standards and
thousands of patents may not necessarily be amenable to the individual-level
data requested by Form 27.</p>
<p style="text-align: justify;" class="MsoListParagraphCxSpFirst">5. Regardless, we submit that these
technical difficulties should not hinder the critical statutory requirement
placed on patent holders to diligently comply with Form 27 compliance. In the
context of licensing of SEPs, several stakeholders recently suggested solutions
as revealed from our study of the submissions made to the TRAI Consultation on
Promoting Local Telecom Manufacturing<a name="_ednref5" href="#_edn5"><span class="MsoEndnoteReference"><span class="MsoEndnoteReference">[v]</span></span></a>:</p>
<ul><li>Two
industry associations, namely Telecom Equipment Manufacturers Association of
India (TEMA) and Telecom Equipment & Services Export Promotion Council (TEPC) and a telecommunication
enabler Vihan Network Limited recommended that a modified and longer version of Form 27 (Form 27S) may be designed for SEP
holders that should apply right at the filing stage. Section 159 of the
Patent Act, 1970 empowers the central government to make such modifications to the form, as necessary.<a name="_ednref6" href="#_edn6"><span class="MsoEndnoteReference"><span class="MsoEndnoteReference">[vi]</span></span></a></li><li>Further,
Prof. T Ramakrishna (MHRD Chair on Intellectual Property Rights) at NLSIU, specifically
recommended that Form 27 may be amended
to include a new column, which may require the patent holder to declare
if their patent forms a part of any standard and in case of affirmative answer
– the name of the Standard Setting Organisation and corresponding standard of
which it is a part.</li></ul>
<p style="text-align: justify;" class="MsoListParagraphCxSpMiddle"> 6. Further, we would like to draw
attention to how our study was limited by the technical capabilities of the
Indian Patent Office’s online Form 27 repository, such as<a name="_ednref7" href="#_edn7"><span class="MsoEndnoteReference"><span class="MsoEndnoteReference">[vii]</span></span></a>:</p>
<ul><li>IPAIRS
returned either a 404 error or Connection Time Out ("site is taking too
long to respond") <a href="http://ipindiaonline.gov.in/patentsearch/search/index.aspx">http://ipindiaonline.gov.in/patentsearch/search/index.aspx</a>. In our opinion, it could be
redirected to InPASS as it uses the same search engine as InPASS. Further, <a href="http://ipindia.nic.in/patsea.htm">http://ipindia.nic.in/patsea.htm</a> returned a 404 error.</li><li>Some
PDFs of the forms comprise scanned image files without OCR of the text. This
makes them inaccessible to the visually impaired, and prevents search and
discoverability of their content. This also makes them less usable by
preventing copying and selection of text.</li><li>In some cases, it was difficult to identify
which one in the list of documents associated with a patent is Form 27, because
of obscure filenames.</li></ul>
<ul>
<ul><li>
<p>For
example, for Patent Number 262228, Form 27 was named 68.262228.pdf, as found on
IPAIRS.</p>
</li><li>
<p>For
Patent number 260603, the filename for Form 27 was "ipindiaonline.gov.in_epatentfiling_online_frmPreview.asp.pdf"
on IPAIRS.</p>
</li></ul>
</ul>
<ul><li>Inconsistency in search results found on
IPAIRS. Searching for the peripheral documents of the patents, returned the
results, "No PDF found" for one full week. The next week, the
documents started showing. Some searches returned results for an entirely
different patent number.</li><li>Sometimes,
Form 27 found on InPASS was not found on IPAIRS and vice versa.</li><li>Runtime
errors occur due to browser caching.</li></ul>
<p style="text-align: justify;" class="MsoListParagraphCxSpLast">7. We are thankful to DIPP for the
opportunity to make these submissions. It would be our pleasure and privilege
to discuss these submissions and recommendations in details with the DIPP. We
also offer our assistance on other matters aimed at developing a suitable
policy framework for SEPs and FRAND in India, and, working towards sustained
innovation, manufacture and availability of mobile technologies in India.<br /></p>
<p style="text-align: justify;" class="MsoListParagraphCxSpLast"></p>
<p align="center" style="text-align: center;"><strong>Annexure</strong></p>
<p align="center" style="text-align: center;">Complete Data of CIS’
Study<a name="_ednref1" href="#_edn1"><span class="MsoEndnoteReference"><span class="MsoEndnoteReference">[i]</span></span></a></p>
<p align="center" style="text-align: center;"><img src="http://editors.cis-india.org/Screenshot47.png/image_preview" alt="Data" class="image-inline image-inline" title="Data" /> </p>
<p align="left" style="text-align: center;"><img src="http://editors.cis-india.org/copy_of_Screenshot46.png/image_preview" alt="Data2" class="image-inline" title="Data2" /></p>
<p align="center" style="text-align: center;"> </p>
<p> </p>
<div><br />
<hr align="left" size="1" width="33%" />
<div id="edn1">
<p class="MsoEndnoteText"><a name="_edn1" href="#_ednref1"><span class="MsoEndnoteReference"><span class="MsoEndnoteReference">[i]</span></span></a> See Contreras, Jorge L. and Lakshané,
Rohini and Lewis, Paxton<em>, Patent Working
Requirements and Complex Products</em> (October 1, 2017). NYU Journal of
Intellectual Property & Entertainment Law; Available at SSRN: <a href="https://ssrn.com/abstract=3004283" target="_blank">https://ssrn.com/abstract=3004283</a></p>
</div>
<div id="edn2">
<p class="MsoEndnoteText"><a name="_edn2" href="#_ednref2"><span class="MsoEndnoteReference"><span class="MsoEndnoteReference">[ii]</span></span></a> See Shamnad Basheer, <em>Making
Patents Work: Of IP Duties and Deficient Disclosures</em>, 7 QUEEN MARY J.
INTELL. PROP. 3, 16-17 (2017).</p>
</div>
<div id="edn3">
<p class="MsoEndnoteText"><a name="_edn3" href="#_ednref3"><span class="MsoEndnoteReference"><span class="MsoEndnoteReference">[iii]</span></span></a> Supra note 1.</p>
</div>
<div id="edn4">
<p class="MsoEndnoteText"><a name="_edn4" href="#_ednref4"><span class="MsoEndnoteReference"><span class="MsoEndnoteReference">[iv]</span></span></a> Refer to Appendix for a breakdown of
compliance of Form 27 by patent holders in the mobile device sector.</p>
</div>
<div id="edn5">
<p class="MsoEndnoteText"><a name="_edn5" href="#_ednref5"><span class="MsoEndnoteReference"><span class="MsoEndnoteReference">[v]</span></span></a> See TRAI’s Consultation Paper on
Promoting Local Telecom Equipment Manufacturing dated 18.09.2017 and the
responses, available here: <a href="http://trai.gov.in/consultation-paper-promoting-local-telecom-equipment-manufacturing?page=2">http://trai.gov.in/consultation-paper-promoting-local-telecom-equipment-manufacturing?page=2</a></p>
</div>
<div id="edn6">
<p class="MsoEndnoteText"><a name="_edn6" href="#_ednref6"><span class="MsoEndnoteReference"><span class="MsoEndnoteReference">[vi]</span></span></a> Section 159 of the Patent Act, 1970
empowers the central government to make rules. Accordingly, the Rule 131 of the
Patents Rules, 2003 prescribes Form 27 as the manner in which section 146(2) of
the Act is to be implemented.</p>
</div>
<div id="edn7">
<p class="MsoEndnoteText"><a name="_edn7" href="#_ednref7"><span class="MsoEndnoteReference"><span class="MsoEndnoteReference">[vii]</span></span></a> An email by Rohini Lakshane (CIS)
compiling these issues was sent to Dr. K.S. Kardam (Senior Joint Controller of
Patents and Designs - Indian Patent Office) on 09.09.2017.</p>
<p class="MsoEndnoteText"><br />[viii] See Contreras, Jorge L. and Lakshané,
Rohini and Lewis, Paxton<em>, Patent Working
Requirements and Complex Products</em> (October 1, 2017). NYU Journal of
Intellectual Property & Entertainment Law; Available at SSRN: <a href="https://ssrn.com/abstract=3004283" target="_blank">https://ssrn.com/abstract=3004283</a></p>
</div>
</div>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/cis-submissions-to-dipp-and-cgptdm-at-meeting-with-ip-stakeholders'>http://editors.cis-india.org/a2k/blogs/cis-submissions-to-dipp-and-cgptdm-at-meeting-with-ip-stakeholders</a>
</p>
No publishersinhaDIPPPatentsAccess to KnowledgePervasive Technologies2017-12-13T14:31:54ZBlog EntryCIS RTI REQUEST TO DIPP - NUMBER 3 - FEBRUARY, 2015
http://editors.cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-3-february-2015
<b></b>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-3-february-2015'>http://editors.cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-3-february-2015</a>
</p>
No publishernehaaGovernment InformationAccess to KnowledgeDIPPIntellectual Property RightsAccountabilityNATIONAL IPR POLICYIPR THINK TANK2015-04-14T17:28:53ZFileCIS RTI REQUEST TO DIPP - NUMBER 2 - FEBRUARY, 2015
http://editors.cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-2-february-2015
<b></b>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-2-february-2015'>http://editors.cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-2-february-2015</a>
</p>
No publishernehaaGovernment InformationAccess to KnowledgeDIPPIntellectual Property RightsNATIONAL IPR POLICYIPR THINK TANK2015-04-14T17:22:37ZFile