SpicyIP subscribers recently received a short blurb from Shamnad on this FT article regarding the hypocrisy of stamping ‘national interest’ considerations as valid only when certain countries declare it. Aside from the hypocrisy of declaring ‘national interest’ valid only when certain nations declare it – let’s not forget that India’s ‘national interest’, declared problematic by the US, is for providing its patients with access to life saving medicines – while US’ ‘national interest’, that is presumably valid, is for ensuring iPads and iPhones are available to its citizens. Two-faced much?
Anyway, in light of these recent developments, we’re very glad to bring our readers a ‘ghost post’ on this topic from one of our regular readers who goes by the monicker ‘Frequently Anon’.
Samsung v. Apple Presidential Enforcement Veto
Recently, the US government vetoed the decision of its International Trade Commission relating to the Apple- Samsung patents battle. A thorough background is present on Forbes’ website. The actual veto / disapproval letter is available here.
For many years now, India has been ‘bashed’ by developed nations arguably because we have ‘slack’ / ‘innovation unfriendly’ standards and have issued compulsory license, revoked patents on pharmaceutical compounds, do not look at patents for salts / polymorphs of known compounds very favorably. But when India / Thailand did things that were allegedly hurting patentee’ interests, the whole world became agitated. India has been the subject of US’ 301 reports for long. Innovator drug companies withheld their drug registrations in Thailand!
However, this very one sided traffic in global media has never looked at the history of IP in the US and today’s developed European nations. The US did not respect copyright of other nations’ authors for a very long time. Per Wikipedia, “the 1790 Act did not regulate other kinds of writings, such as musical compositions or newspapers and specifically noted that it did not prohibit copying the works of foreign authors.” The Americans effectively forced the Wright Brothers and other patentees to form the Airplane patents’ pool.
The Swiss and Germans had a patent struggle for a long time and effectively grew up on each other’s patents in dye-stuff and chemicals domain. A journal article that gives some background on the history of Swiss patent law is here.
No major media house // IP author wanted to say much that India’s sole compulsory license was issued mainly since the Patentee imported only 300 bottles of the drug in a country of 1+ billion people. Importantly, the CL was issued after negotiations broke down and even today subsists with a royalty payment clause.
No major media house in the last few days has mentioned much on the Indian’ government’s refusal to proceed with divisional applications filed by Genentech on Trastuzumab because that would mean highlighting the fact that Genentech did not bother to file the basic request for examination in time nor visited the Patent Office when requested to come and explain its stand. The oddest part is that Genentech continued filing divisional applications even after it got a patent on the most important claim – the composition of Trastuzumab. Multi-generation divisional practices are not allowed in Indian patent practise / Statute and even then every single major drug company keeps on filing these 3rd/ 4th generation divisional. We recently saw Gilead’s divisionals being refused and earlier have seen how Abbott had filed multiple divisionals in different branches of the Patent Office.
Today, when the US govt over turns the decision of its own ITC body against a foreign patentee, only a very small minority of IP practitioners discuss this dichotomy (hypocrisy by US Govt in my eyes). Every nation takes steps to protect its interests – public and economic – depending on where they are in development and what repercussions they foresee.
So, when the US govt. moved against foreign patentees and overturned the ITC order, why are they arguing that the patentee still has rights in Federal Courts? Don’t patentees in the Indian cases have rights in Indian cases? Yes, they do. So, how is the US any different from India when it comes to protecting its own first??
– Frequently Anon
So if I understand your argument correctly, it’s ok that India’s IP standards are lacking because India’s economic development is on par with the USA’s ca. 1790?
Dear Anon.
Many thanks for trying to understand the argument without ever bothering to look at the main event – 2013 veto by Obama Govt.
So, well, I hope you have a good day and drink Bournvita 🙂
Freq. Anon.
For [email protected]. Firstly, a determination that India’s IP standards are lacking is a Northern determination. Secondly, the author of this ghost post is not stating that Indian standards are on par with USA’s ca. 1790 – this is being used as an example to state that legislation reflects the social and economic needs of a country at a given point of time. Thirdly, the Patents Act is a socio-economic legislation, and is intended to reflect and provide for the economic development of a nation – not that of the Northern hemisphere.
Finally, prior to criticising Indian law, and how it is applied, perhaps a note justifying (God knows How?) the veto would be a better idea, particularly how the use of high-technology phones/comm.devices constitute ‘national interest’. This is a classic example of double-speak.
I believe that there are two aphorisms that would sum up both the current US stand on Indian patent law, as well as the implied criticism in your comment:
(a) Physician, heal thyself!; and
(b) People who live in grass houses should not stow thrones, lest the house collapses!
Regards,
R’IP’ Von Winkler
For people who understand Hindi and understand our sentiments, I would like to cite a few lines on this very interesting topic…
“Tumara Khoon Khoon Hai
Aur Humara Khoon Paani Hai,
Tum Karo Toh Seena Jori
Aur Hum Kare Toh Chori”…..
Dear all,
Why to use Spicy IP for free campaign for Bournvita? Don’t we have any Indian one?
The fact of the matter is that your arguments in this post does not put India to any better position on its innovation capabilities! While THEY have enough of innovations to fuel their economy and/or to uplift human livings/environment, we have enough of innovations from THEM to copy, off course by negating their rights when asked.
We can not think of a PIPELINE with India in origin. But we can easily think of copy cats with Indian origin traced back to THEIR work.
The bottom line is that we are always taking this same path of failing to appreciate workable innovations which would lead us further away from innovation ecosystem.
Our ministry begging for investments (read ALMS) visiting THEM and THEIR forum is at least a pointer to this fact.
Feel sad to write those, but our future does not look promising either!!
Choicest Regards.
TS
Dear TS:
I never said that India is any better on the innovation train. Nor do I think that my post mentions any thing about India policy / legal decisions are correct.
The entire point of this post was to show that governments everywhere do what seems convenient and least risky for them and therefore we should take the media coverage with a large pinch of salt.
As for Bournvita – simple – it is Tan ki shakti, man ki shakti for my first anon commentor 🙂 Don’t try to read too much into Bournvita and the substance of the post.
Freq. Anon.
I recently read this article in the news paper wherein US Law makers were claiming that India is not playing by the rules
http://www.deccanherald.com/content/341845/india-not-ready-play-rules.html?goback=.amf_124885_91620990
Now once u read the apple vs samsung case, US now for a national company and that too leading in smartphones not in smart medicines uses its veto power and then why such hypocrit commenting on countries like India.
Friends:
IN a related patent litigation at the same Forum (US ITC), Apple has won against Samsung and banned import of some older Samsung devices in to USA.
It would be very interesting to see if Obama also vetoes this ITC decision.
http://www.bbc.co.uk/news/business-23643700
Freq. Anon.