As we wish our readers a warm and fulfilling year ahead, we’d like to take this opportunity to glance back at the year that was. From the Novartis decision to the Marrakesh Treaty, from our new website to Aparajita’s legal notice – 2013 was certainly an eventful year for both the IP landscape as well as for our blog!
The year started off with some great news for the blog with Barry Sookman ranking SpicyIP as the 8th most popular IP/Tech law blog in the world. Ranking systems of any sort, of course, can never be a completely holistic indicator of quality – nonetheless, it’s always encouraging to hear that we’re being noticed!
Soon after this, we announced our first ever SpicyIP Fellowship program. If I’m not mistaken, this is one of the only IP centric fellowships in India (though if our readers know of more, I’d like to request you to please mention more details in the comments below.) In order to apply, applicants are required to submit at least three post worthy submissions within a 6 week window period. Selected fellows are given the chance to join our team for a period of one year, researching and writing on leading IP developments under the guidance of our team. We received several great entries and as a result we were able to introduce 3 new fellows to our team – Aparajita Lath (4th year, NUJS), Anubha Sinha (4th year, RMLNLU) and L. Gopika Murthy (2nd year, NLSIU). They’ll be continuing on in our team after their fellowship period expires next month. We also came across an terrific writer in Madhulika Vishwanathan (M.S. Pharmacology, Indian Patent Agent) who also joined our team in early 2013. Further, though our current fellowship application window is still open (till Jan 15th, 2014), Devika Agarwal (4th year, RMLNLU) has already matched our required criteria and will be one of our fellows for this upcoming fellowship year!
While criticism has become a part and parcel of blogging, the past year saw that taken a bit too far with Aparajita receive a defamation notice from the Times Publishing House. The notice was regarding a short post she had written on a complex dispute between Financial Times and Times Publishing House. You can read the post here for yourself to see if you think it was defamatory or not. We certainly didn’t think it was and Shamnad sent this brilliantly written response back to them. It’s not the first time we’ve received a defamation notice and unfortunately, may not be the last time. What we can be sure of though, is that we’re not going to sit back and submit to baseless legal threats.
Moving on to arguably the biggest development for us as a blog , 2013 also saw us finally shifting over from our blogspot address to our new website – SpicyIP.com for a new look, more functionality and hopefully a spicier IP experience for our readers! Just to add a quick word on one of the ways we’re hoping our readers can contribute to our new site: “if you have copies of any old Indian IP legislations or policy documents that are not otherwise available to the public, do share it with us and we promise to make it available as part of our “Open IP” project: a project to foster more openness and transparency within the Indian IP regime.” (as noted in this post here).
The IP landscape
This year was a monumentous one for the Indian IP landscape with the biggest development arguably being the Novartis decision which brought to the fore a ruling on the contentious Section 3(d) of the Indian Patent Act. Unfortunately, most of the noise around the case did not look directly at the judgment or the reasoning of the judgment but rather focused more simplistically on the outcome of Novartis’ patent not being granted – this outlook being problematic for the simple reason that it ignores the particular facts and context of this case. The main takeaway from the case is that in order for a patent to be granted on the new form of a known substance, the new drug must be be more therapeutically efficacious than the known drug. The court left open the most interesting question of what standards a substance needs to meet in order to be declared more therapeutically efficacious. Though it did state that in the present case, a mere statement of enhanced bioavailability without further proof of how such enhancement increases the therapeutic efficacy of the new substance was not sufficient to fulfill the required standard. On a relevant note, Shamnad’s intervention petition in this case, a first of its kind by an academic in India, like the eventual judgment, is a very balanced analysis and came to the same conclusions for the most part. You can read as well as view the intervention petition here.
Often mentioned in tandem with the Novartis decision is India’s first Compulsory License, which was upheld by the IPAB in March, 2013. This, along with talk of 3 more compulsory licenses has led to some fear (or fear mongering?) amongst Big Pharma though at least 1 of the 3 compulsory licenses has since been turned down. Nonetheless, worries or no worries, with its generic industry and strong emerging economy, India is too important a market to ignore. It’ll be interesting to see how Big Pharma decides to tackle the Indian market – or rather how the Indian government decides to tend to its healthcare needs as we move forward from here. Cancer, in particular will likely be the center of attention as more patients require treatments even as treatments, often prohibitively expensive, are still being developed.
2013 also saw the start of litigation around Standard Essential Patents (SEPs) in the wireless telecom sector in India with the Micromax – Ericsson disputes taking off at both the Competition Court of India (CCI) as well as the Delhi High Court. While proceedings are still going on before the DHC, the CCI has ordered an investigation into anticompetitive licensing by Ericsson of its SEPs. Rajiv has put together an excellent series of posts on the valuation of FRAND terms (part 1, part 2 and part 3) – the Fair, Reasonable And Non-Discriminatory terms on which SEPs are to be licensed at. However, with aggressive litigation starting in the wireless telecom sector, it may be the non-essential patents which take center stage at Court as they have the potential to bring in the big money. As per our background post here (2011), non-essential patents outnumber essential patents by a factor of four. Along with the lack of FRAND restrictions on non-essential patents, the sheer number of non-essential / non-standardized, yet, potentially blocking patents seem to ensure that they’ll be taking center stage in the years of litigation that are bound to be coming.
While a focus on ownership rights and patent valuation is going on in the domestic scene, the international landscape saw the first ever user-centric IP treaty in the historical Marrakesh treaty – an international treaty that carves out copyright exceptions for the print disabled. India, with more than 60 million potential beneficiaries, had already carved out similar such provisions in the 2012 Copyright amendments and welcomed the treaty. Significantly, this WIPO treaty, signed by 51 countries came into being in 5 years through an open collaborative negotiation process resulting in an agreement with little to no criticism is a model of stark contrast when compared to the closed, secretive negotiation process of some other multilateral and bilateral agreements. The uber controversial Trans Pacific Partnership for instance is nearly 4 years into negotiations between a mere 12 countries and from the text of the last leaked draft, still seems to have a way to go.
Bereavements: Sadly, the previous year also saw the loss of some giants in the IP field.
- Mr A.A.Mohan: A leading IP stalwart from Chennai and founder of Mohan Associates. He passed away on 14th September, 2013.
- Prof Tehemtan Nasserwanji Daruwalla: One of the pioneers of Intellectual property law in India – an academic and a lawyer extraordinaire. He passed away on 13th August, 2013.
- Mr Shaid Alikhan: The former Dy D.G., WIPO and Undersecretary General, United Nations, passed away in Hyderabad earlier last year.
- Rahul Cherian: Rahul was policy activist for disability rights, IP rights and Tech law, and amongst other activities, he was involved in drafting the Marrakesh Treaty for the Visually Disabled. He passed away on 7th February, 2013.
- Aaron Swartz: The 26 year old internet activist was heavily involved in copyright reform and issues surrounding technology freedom. He passed away on 11th January, 2013.
What will be in store in the coming year? What will be the biggest development in the coming year?I hope readers will contribute their guesses in the comment section below. My own guess would be the upcoming decision of the DU Photocopy case – whichever way it is decided – as it will have tremendous repercussions to how/if students can gain access to their educational materials! For a background, see here. And for our latest update on the case, see here.
Cheers! And a happy new year to all of you!