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US IP Lobby’s scheduled meet with Indian judiciary raises Conflict of Interest concerns


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In a rather worrying development, it appears that US-based “Intellectual Property Owners Association” (IPO), possibly in partnership with the Confederation of Indian Industries (CII), has arranged a series of exclusive meetings with members of the Indian Judiciary, the Intellectual Property Appellate Board, Custom officials and Intellectual Property Offices in Delhi and Chennai.

Despite its innocuous sounding title, the IPO’s Innovation Dialog Trip to India (Nov 16 – 21) is a big cause for concern. As this ToI article points out, “The delegation plans to meet and interact with intellectual property office (IPO) officials, Intellectual Property Appellate Board (IPAB) members, judiciary and judicial staff of high courts and the Supreme Court justices, or in short, all those who can influence or who have a bearing on the cases they are fighting in India.” Frankly, given conflict of interest concerns, I’m surprised such meetings are being allowed at all! In fact, it was due to the mere participation in 2 conferences (as opposed to exclusive meetings as seems to currently be the case) organised by the very same Intellectual Property Owners Association, that led to the letter requesting the recusal, and the eventual recusal of Justice Bhandari in the Novartis – Glivec dispute in 2011, as Novartis was a member of the IPOA.

The IPOA has on its Board of Directors, personnel from several top MNC Pharma cos including its President Philip S Johnson (Johnson & Johnson). Before even looking at the members of the organization, the Board of Directors itself includes members from Pfizer, Sanofi-Aventis, Bristol-Myers Squibb Co., Roche, Eli Lilly, and GSK amongst others. Our readers may remember the Board member from Pfizer, Roy Waldron, who had gone to the US House of Representatives with severe criticisms of India’s Pharmaceutical Patent Regime. (And I’ve pointed out several of what I termed as “intellectual dishonesties” in his statement in my earlier post here). Given that there are many disputes currently pending (and/or appealable) with these very companies before the bodies they are scheduled to meet on this trip, is the conflict of interest not obvious?

According to the site, the IPO’s Innovation Dialog Trip to India is being sponsored Lakshmikumaran & Sridharan attorneys, Lex Orbis, CII, and S.S.Rana & Co.

As Livelaw reported earlier this evening, this arrangement of meetings has not gone without notice. The “Campaign for Affordable Trastuzumab” has addressed a letter of protest to the Chief Justice of India, Chief Justice of the Delhi High Court, and to the Chairman of the IPAB. The letter “raises concerns regarding the serious conflict of interest involved in such meetings, which would cast a dark shadow on the neutrality of the judiciary. The letter hence requested the cancelling of any scheduled meetings with the IPOA delegation.”

In pertinent part, the letter (made available by LiveLaw here) states:

The claim that these meetings are being organized to “share experiences and perspectives on intellectual property and practice with patent practitioners and the judiciary of India” is a shameless ruse – the intent is clearly to create an opportunity for multinational pharmaceutical companies to lobby on contentious issues that are taking center stage in the struggle over the interpretation of India’s medicines patent law,” … Our courts are in the forefront of the move to hold public institutions to account for any breach of ethics and propriety. The recent step taken by the Supreme Court to scrutinise the visitors book of the Director of Central Bureau of Investigation is a clear message in this regard, with serious note being taken of the alleged visits of individuals directly or indirectly linked to ongoing CBI investigations.”

Swaraj Paul Barooah

Swaraj Paul Barooah

Follow @swarajpb Swaraj has a deep interest in IP, Innovation and Information policy, especially when they involve issues relating to Access to Knowledge, Innovation incentive mechanisms, Digital Freedoms, Open Access, Education, Health and Development. After his BA, LLB (hons) from Nalsar Univ of Law, Hyderabad, he went on to do his LLM from UC Berkeley in 2010. He is now pursuing his J.S.D. degree from UC Berkeley where he is focusing on Drug Innovation Policy and Access to Medicines. Aside from SpicyIP, he is also engaged as a consultant on various IP matters, and is a visiting faculty member at Nalsar Univ of Law. He is also in the process of starting up a New Delhi based "IP, Innovation & Information Policy" focused think-tank.

9 comments.

  1. Andrew B

    Perhaps the delegation will include those who agree with the US Chamber of Commerce that India, boasting the largest film industry in the world, is in danger of losing imminent collapse because of India’s failure to strengthen its IP laws. “These jobs, the countless jobs of those in the industry, and India’s biggest export opportunity are likely to go by the wayside if IP rights are not clarified, protected, or enforced.” http://www.theglobalipcenter.com/is-bollywood-indias-next-greatest-export/ See also https://www.techdirt.com/articles/20130612/16480623431/us-chamber-commerce-bollywood-is-so-successful-without-strong-copyrights-that-it-will-fail-unless-india-strengthens-its.shtml

    Reply
  2. Prashant ReddyPrashant Reddy

    Hi Swaraj,

    Let me begin with the disclaimer that I work for one of the law firms sponsoring the IPO’s visit, although I’m not part of the delegation.

    Coming to my main comment – I’m a little surprised at the conspiratorial tone of this post. You’ve mentioned that it is worrying that these delegations are even allowed to meet judges and have even mentioned conflict of interest. I fail to understand the thrust of this argument. Are you indicating, that the mere interaction between judges and foreign delegations is likely to influence the outcome of pending cases or are you indicating that it will pollute the minds of a our judges. If our judges are really so fickle minded, then yes we are certainly in trouble.

    If you are alleging a breach of ethics, I do hope you refer to the Restatement of Judicial Ethics or any other code that you think is relevant. You cannot finger-point against institutions without holding them accountable to some normative standards.

    Last but not the least, I would like to draw your attention to the quote from the letter by the activist crowd and their comparison of this visit to the controversy surrounding the CBI chief. How is this a valid comparison? Since you’ve specifically quoted this portion of the letter, can you explain the parallels between both events?

    Prashant

    Reply
  3. Shashank Mangal

    Justice must not only be done but it should be seem to have been done. This basic postulate of jurisprudence shall stand violated by this IP dialogue. One may be able to justify the dialogue but how can one convince either the generic pharma industry or an Indian with an income of $ 1500 per year requiring medicines for his treatment, that an out of court dialogue between their adversaries and the adjudicators has nothing to with their interests.

    Reply
  4. Nataraj

    It’s interesting that the IPO website lists several past events – but none of them seem to involve meeting with judges of the Federal Circuit or the CAFC or the USPTO to open a dialogue. The only other non-US trips by IPO delegations appear to be ‘study trips’ to Korea, China and Japan.

    It does raise a question on whether the need for a dialogue was especially felt in the case of India.

    That apart, (and Swaraj, please do correct me if I am wrong) my reading of your post was not that you were castigating or impugning either the intelligence or the integrity of our judiciary. Rather, it appears that you are questioning the fundamental propriety of a lobby/trade group meeting judicial officers and quasi-judicial officers – who preside over their matters (a question of optics). Am I right. If yes, I would agree with you.

    Best

    GN

    Reply
  5. Harleen

    I agree with Swaraj. Free speech is all about allowing people to raise their concerns. I do not feel comfortable with such a meeting between a lobby and decision makers.

    Do I think that Judges are fickle minded and would blindly get influenced? No.

    But can I be a 100% sure?

    That is why meetings like these are morally wrong, and sometimes you do not need a statute to tell you that you are wrong.

    I would like to quote the following from the speech of Hon’ble Justice YK Sabharwal on Canons of Judicial ethics:

    “The notions of fairness and impartiality give rise to certain special norms
    for Judges. These norms are designed so that he remains independent and
    uninfluenced. His job is to hear the parties in the open court. It is thus taboo
    for him to give a private audience to the litigants or their lawyers. He has to
    shun social interactions with such category of persons at all costs. The
    concept of courts functioning under the public glare generally called “open court”
    is not an idle one. It is based on the principle of transparency because that reinforces
    faith and confidence of the public in the system. It is, therefore, a
    sacred duty of every Judge to function in the open in discharge of his official
    duties.”

    Reply
  6. Swaraj Paul BarooahSwaraj Paul Barooah Post author

    Thanks everyone for your comments. Have been travelling and still only with a patchy cell phone connection, but a quick response:
    Nataraj, that is indeed what I’m getting at as well. I’m in agreement with what you, Shashank, and Harleen have said.
    Prashant, my issue is not with a ‘foreign delegation’, but with parties who have pending and upcoming cases before the judiciary being allowed this type of exclusive private meetings with the judiciary and ipo. Especially in the context of members of that delegation not only having a history of insisting that the laws relevant to their pending and upcoming cases are illegitimate, but also of insisting that India be ‘punished’ through trade sanctions for upholding them.

    Reply
  7. PrashantPrashant

    Swaraj,

    Your explanation opens the door to a very slippery slope because it casts as an aspersion on a judge every time he meets anybody who has been or is a potential litigant. Going by your standard of conduct, a judge will be expected to sit in his house and court and not meet anybody or attend any conferences whether they are organized by the industry or by lawyers. What about a bar association event where lawyers and judges mingle – should even that be ended because a lawyer may talk to a judge about a potential case? I think that is a unreasonable standard. An exchange of ideas never hurt anybody and you haven’t been able to give a single reason apart from the vague reason of “optics”. You cannot have such vague standards to determine conduct in public life.

    I wasn’t surprised at all when the activists raised this red flag because they have done it before but I’m very surprised that they found the support of SpicyIP, a blog meant to ensure a debate not silence on IP issues.

    Regards
    Prashant

    Reply

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