LAW RESOURCE INDIA

Insidious India project

Posted in PATENTS by NNLRJ INDIA on March 4, 2010

MNC-backed IP summits try to influence sitting judges on patent law enforcement issues pending in Indian courts

For several years now, one of America’s top law schools has been spearheading a campaign here to bring about “awareness on intellectual property (IP) and create judicial interactions”. The campaign — actually, crusade is a more apt term — was launched by The George Washington University Law School (GWU) in 2004 a year before India was scheduled to enact a product patents law in compliance with its World Trade Organisation commitments. Grandly titled, “The India Project”, GWU has brought several delegations of American IP heavyweights from leading law firms, judges of the Federal Circuit (the central US court of appeal) and a clutch of academics primarily to teach Indians “the importance of IP”. That’s what Raj Dave, manager of the India Project, an alumnus of IIT-Khargapur who is now partner in a Washington law firm, has been saying repeatedly.

Dave has been quoted as saying that awareness created by the “India Project has helped Indians and the India media to understand the importance of IP”. Ignore the patronising attitude inherent in such statements. It could be that GWU and the India Project are not familiar with India’s long history of IP protection. The country has had a pharmaceutical product patent regime going back a long way — to 1911— till it decided, in 1970, to opt for an IP regime that was more appropriate to its development goals. But even if IP awareness had to be taken to the people once again after the 2005 amendment, why did GWU mount such a major campaign here?

The stated objective of the India Project is to “create interactions between leading US, European, Asian and Indian academics, industry leaders, lawyers, judges and policy-makers in the field of IP”. But the key goal, to quote its director Martin J Adelman, is “to work closely and cooperatively with Indian judges to ensure not just enaction but enforcement of patent laws”. Adelman is an IP expert and professor of law at GWU.

So the India Project has been hosting frequent symposiums in various cities, events which are not just about creating IP awareness. Among the prominent invitees are sitting judges of the Supreme Court of India and major high courts, which is not as harmless as it seems. These symposiums are all sponsored by big business, many of whom have a vested interest in how the judiciary is tackling the numerous patent cases now being fought in the high courts and the Supreme Court. The 2009 symposium, for instance, was sponsored by Novartis, The Pharmaceutical Research and Manufacturers of America, which is the association of the big boys of the US pharma industry; Intellectual Ventures, a firm specialising in buying up IP rights of other companies; software giant Microsoft and chip designer Qualcomm. The grand sponsor has been the US-India Business Council (USIBC), a lobby that which has been leading a powerful campaign against certain provisions in the Indian Patent Law. This year’s event (February 14-18) had USIBC and Gilead Sciences as the sponsors and among those attending the February conclave was the Controller General of Patents PH Kurian along with senior lawyer Amarjit Singh Chandiok who has appeared for the government in a case where Bayer has challenged a key section of India’s patent law.

Sponsors, who pay hefty sums to send delegates to the events, are also allowed to make presentations, an opening that some companies have used to push their own case. In what has come as a shock to participants at the 7th IP Summit held last month in Delhi and Mumbai is that Gilead was allowed to make a presentation on its AIDS drug Tenofovir, the patent for which has been rejected by the Indian Patent Office. Gilead’s appeal against the rejection is pending with the Intellectual Property Appellate Board (IPAB).

The presentation made by the company had this closing warning: “The licensing model — Gilead licenses its patents to generic firms — is at risk and the decision by the IPAB will send a powerful signal about prospects for tech transfer partnerships with Indian companies.” There are other disquieting aspects to the India Project, such as the moot courts or mock courts. Moot courts are used in law school to sharpen the legal skills of students who are given a specific issue to argue, but in this instance, the moot court problems are a simulation of patent enforcement issues pending in Indian courts!

But the more troubling question here is why the Ministry of Commerce and the CII are backing the India Project. The pharma industry, for instance, has been seeking some answers from the CII but has not got a response so far, possibly because the industry itself is divided. However, Commerce Minister Anand Sharma needs to explain why his Department of Industrial Policy & Promotion is a regular co-sponsor of the IP summits. Does the ministry subscribe to the patent laws of the country or not?For several years now, one of America’s top law schools has been spearheading a campaign here to bring about “awareness on intellectual property (IP) and create judicial interactions”. The campaign — actually, crusade is a more apt term — was launched by The George Washington University Law School (GWU) in 2004 a year before India was scheduled to enact a product patents law in compliance with its World Trade Organisation commitments.

Grandly titled, “The India Project”, GWU has brought several delegations of American IP heavyweights from leading law firms, judges of the Federal Circuit (the central US court of appeal) and a clutch of academics primarily to teach Indians “the importance of IP”. That’s what Raj Dave, manager of the India Project, an alumnus of IIT-Khargapur who is now partner in a Washington law firm, has been saying repeatedly.

Dave has been quoted as saying that awareness created by the “India Project has helped Indians and the India media to understand the importance of IP”. Ignore the patronising attitude inherent in such statements. It could be that GWU and the India Project are not familiar with India’s long history of IP protection. The country has had a pharmaceutical product patent regime going back a long way — to 1911— till it decided, in 1970, to opt for an IP regime that was more appropriate to its development goals. But even if IP awareness had to be taken to the people once again after the 2005 amendment, why did GWU mount such a major campaign here?

The stated objective of the India Project is to “create interactions between leading US, European, Asian and Indian academics, industry leaders, lawyers, judges and policy-makers in the field of IP”. But the key goal, to quote its director Martin J Adelman, is “to work closely and cooperatively with Indian judges to ensure not just enaction but enforcement of patent laws”. Adelman is an IP expert and professor of law at GWU.

So the India Project has been hosting frequent symposiums in various cities, events which are not just about creating IP awareness. Among the prominent invitees are sitting judges of the Supreme Court of India and major high courts, which is not as harmless as it seems. These symposiums are all sponsored by big business, many of whom have a vested interest in how the judiciary is tackling the numerous patent cases now being fought in the high courts and the Supreme Court. The 2009 symposium, for instance, was sponsored by Novartis, The Pharmaceutical Research and Manufacturers of America, which is the association of the big boys of the US pharma industry; Intellectual Ventures, a firm specialising in buying up IP rights of other companies; software giant Microsoft and chip designer Qualcomm. The grand sponsor has been the US-India Business Council (USIBC), a lobby that which has been leading a powerful campaign against certain provisions in the Indian Patent Law. This year’s event (February 14-18) had USIBC and Gilead Sciences as the sponsors and among those attending the February conclave was the Controller General of Patents PH Kurian along with senior lawyer Amarjit Singh Chandiok who has appeared for the government in a case where Bayer has challenged a key section of India’s patent law.

Sponsors, who pay hefty sums to send delegates to the events, are also allowed to make presentations, an opening that some companies have used to push their own case. In what has come as a shock to participants at the 7th IP Summit held last month in Delhi and Mumbai is that Gilead was allowed to make a presentation on its AIDS drug Tenofovir, the patent for which has been rejected by the Indian Patent Office. Gilead’s appeal against the rejection is pending with the Intellectual Property Appellate Board (IPAB).

The presentation made by the company had this closing warning: “The licensing model — Gilead licenses its patents to generic firms — is at risk and the decision by the IPAB will send a powerful signal about prospects for tech transfer partnerships with Indian companies.” There are other disquieting aspects to the India Project, such as the moot courts or mock courts. Moot courts are used in law school to sharpen the legal skills of students who are given a specific issue to argue, but in this instance, the moot court problems are a simulation of patent enforcement issues pending in Indian courts!

But the more troubling question here is why the Ministry of Commerce and the CII are backing the India Project. The pharma industry, for instance, has been seeking some answers from the CII but has not got a response so far, possibly because the industry itself is divided. However, Commerce Minister Anand Sharma needs to explain why his Department of Industrial Policy & Promotion is a regular co-sponsor of the IP summits. Does the ministry subscribe to the patent laws of the country or not?

http://www.business-standard.com/india/news/latha-jishnu-insidious-india-project/387411/

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A patent conundrum

Posted in PATENTS by NNLRJ INDIA on February 19, 2010

PRAGNESH PRAKASH IN THE INDIAN EXPRESS

How can we make public funding of science research accountable? That’s the question raised by the Protection and Utilisation of Public Funded Intellectual Property (PUPFIP) Bill, currently with a Parliamentary Standing Committee. The bill stresses the creation of intellectual property rights (IPR) as a form of accountability — inspired by the American Bayh-Dole Act of 1980. IPR are monopoly rights granted by governments as part of a social quid pro quo for the promotion of creativity and innovation. Patents, for instance, prevent others from making use of the protected invention for a period of 20 years. However, the terms of this quid pro quo must naturally change if the invention arises from research conducted using taxpayers’ money. Additionally, these patents cost a lot of public money to register and maintain, as the government well knows: on average, Centre for Scientific and Industrial Research (CSIR) spending on registering and maintaining patents was more than ten times what it earns as royalties from those patents. While government research is not driven solely by the profit motive, the aim should not be to needlessly burn through taxpayers’ money either. The government (which funds more than three-fourths of all R&D in India) should thus seek to encourage research and its dissemination, and not to curtail it by forcefully asserting various IPR. While we are bound to the patent system by international treaty commitments, we can at least ensure that it does not work against the interests of development.

In fact, the head of CSIR has gone on record stating that he does not plan to charge royalties for the innovative solar-powered rickshaw that CSIR scientists have patented. Furthermore, the Open Source Drug Discovery project, that has got CSIR recognised as a pioneer in the world of drug discovery, has notched up more than 2,000 contributors and an international publication within a year of its launch, and is now moving on to re-annotation of mycobacterium tuberculosis genome. Such renunciation of royalties for the public good and models of open collaboration will not be possible under the PUPFIP Bill as it stands, since it severely restricts the freedom of researchers and academics to speak to their peers in conferences and to publish papers, and mandates patent protection of all publicly funded research.

The Bill, as presented before Parliament, also allows for exclusive licensing of public funded IPRs to individual corporations (thus leading to monopoly pricing) without providing any guidelines or safeguards to uphold the interests of the public, which in India consists largely of the poor. The very idea of public interest, which after all is the barometer by which public funding is to be measured, seems to be present nowhere except for the aims and objectives of the Bill. This must be rectified if any bill on publicly funded research is to hold water. Additionally, the emphasis in such a bill must not be on publicly funded intellectual property, but on public funded research and development. Legislation cannot be a panacea for the ills (both real and imagined) of Indian science — and a legislation focussed solely on IP even less so. A legislation that inhibits scientists from sharing knowledge and does not approach the matter from a public interest perspective can only worsen the situation.

One of the best ways to induce accountability into the system is to insist on open access publications that can be studied, learnt from, and criticised by the researcher’s peers as well as the public. This is also a recommendation of the World Health Assembly’s Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property. Patents alone cannot substitute for innovation, nor are they, especially in today’s fast-moving world, a good measure of the same. As Google’s senior vice-president put it recently, innovation and production of value lies not so much in building walls, but in building bridges. We cannot be following paradigms established 30 years ago in a completely different Western context, and hope that Indian science will benefit thereby. We must engage in a national dialogue on public access to publicly funded research, and must not allow a bill drafted in secrecy, and focussing solely on IP protection, to be passed in a roughshod manner.

By recently convening a meeting on the problems with the Bill, the departments of biotechnology and science and technology have taken the concerns of several senior scientists seriously, and are now willing to involve the public in discussion around the implications of the PUPFIP Bill. This is a positive step, for which they must be lauded.

The writer works at the Centre for Internet and Society, Bangalore

http://www.indianexpress.com/news/a-patent-conundrum/581701/0

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