Patent

Participation at ASSOCHAM event to create conflict of interest : Letter to CCI


The ASSOCHAM organised IP conference on ‘Interface between Intellectual Property & Competition Law’ – Invention, Growth and New Challenges’ held on the 7th of this month became the subject of much controversy, when a section of the civil society, comprising organisations Alternative Law Forum, Bangalore, Centre for Internet and Society, Bangalore, IT for Change, Bangalore, Knowledge Commons Collective, New Delhi, National Working Group on Patent Laws, New Delhi and Software Freedom Law Centre, New Delhi raised concerns against the participation of the CCI chairperson Ashok Chawla as a keynote speaker at the event that was not only co-sponsored by (lo behold!) Ericsson, but was also to be attended by one of its representatives. Three more CCI members – GP Mittal and MS Sahoo and SL Bunker – were also scheduled to attend the conference.

In their letter to the CCI, the organisations had argued that CCI’s participation in the event would pose a rather grave conflict of interest. Firstly, so far as the sharing of a platform by a public watchdog with private commercial actors is concerned, and secondly, considering that three CCI investigations against Ericsson on the very same issues that were to be discussed at the event – Standard Essential Patents (SEPs) and the competition aspects of licensing agreements –  are currently underway.

SpicyIP has documented Ericsson’s run-in with the CCI on multiple occasions here, here, here, here, here and here. To quickly help the uninitiated catch up, complaints were filed before the CCI by Intel, Micromax and iBall against the discriminatory royalty charged by Ericsson for the issue of licenses to use Standard Essential Patents(SEPs). These patents are owned by Ericsson, but have been adopted as standards, leaving mobile phone and tablet manufacturers with no option but to obtain a license for the use of these patents – thereby imposing upon Ericsson the obligation to issue the same in accordance with the FRAND terms.

The organisations claimed that CCI’s participation in the conference had the potential to compromise public perception of the CCI as an independent, unbiased watchdog. They stated in their letter, that in the light of well-set precedent, it is only expected that a quasi-judicial body like the CCI refrains from engaging in discussions on matters that are currently under its investigation, and especially so where the private entity it is investigating against had been invited as a key-note speaker at the conference itself. The letter went on to say that the CCI is expected to avoid any occasion that could cause not only actual conflict of interest, but also a perceived conflict of interest – which it claimed would arise by its virtue of its participation, because it would raise the possibility of the body getting influenced by the interests of private entities like Ericsson.

The letter pointed out that this was not an academic event, but a commercial one, where an exclusive group of IP owners – one that included Microsoft, Intel, Qualcomm in addition to Ericsson -were given an opportunity to put forth their views in the presence of the CCI, from the perspective of an IP owner. The letter states, it is very clear the primary objective of the conference is regulatory capture through reaching out to CCI. Any direct or indirect participation of CCI in the conference would convey the signal with regard to the vulnerability of CCI to lobbying and corporate capture. The letter questioned the ethics and propriety of CCI’s participation in a conference organised and sponsored by commercial entities in order to further their own economic interests. It emphasized that such participation could very well raise questions as to CCI’s credibility as a guardian of public interest, and affect its image as a non-aligned, neutral quasi-judicial body.

Sources tell us that the letter did in fact ruffle quite a few feathers. The CCI chair, we hear, made only but a quick appearance, disappearing right after his speech. The panels for the event were reshuffled, with the Ericsson speaker being put on a later panel. Further, attendance was slim.

Now, it may be argued that the presence of the CCI chairman at an open event where private actors present their stand on the rather controversial conference theme may not have been the smartest way to go if they really did have a crooked trick up their sleeve. However, where an authority appears to have voluntarily put itself in a vulnerable position where it becomes susceptible to the influence of third parties in line with their vested interests, it seems rather necessary to jolt the said authority out of its stupor in order to prevent aspersions from being cast upon the integrity of its subsequent actions.

The letter did just that, and it looks like it might have fairly succeeded.

Kiran George

Kiran Mary George is a Third Year student at ILS Law College, Pune. Her first stint in the world of Intellectual Property law was an internship with a registered copyright society that granted her an insight into the world of copyright in music. Since then, her interest in IPR has taken strong hold, and she enjoys keeping close tabs on developments in the field. She is still discovering her interests, but so far takes a special liking to open access, copyright and trademarks.

4 comments.

  1. Prashant ReddyPrashant Reddy

    Hi Kiran,

    I’m honestly quite surprised with the tone of this post. Do you really think the CCI Chairperson is so fickle minded that he can be swayed by attending one conference? If this is the case perhaps you should also prescribe a reading list for these authorities, so that their minds aren’t ‘polluted’ by reading anything on the ‘banned’ list prepared by these NGOs.

    And pray, what are these illusory standards of propriety that supposedly forbid judges or bureaucrats from attending any conference? There is no such rule – we’ve seen several such attempts by these NGOs to manufacture rules of propriety which have no basis in the rules of professional or ethical conduct.

    I’ve also noticed that you omitted the CCI Chairperson’s comment defending the CCI’s attendance of the event. I’ve taken the liberty to reproduce his statement below: “”I see no conflict of interest in attending the function and give the keynote address for a day long seminar. It is entirely what should I say irrational to talk of conflict of interest… Advocacy is a statutory mandate which we have to follow,” he said.”

    Its okay if you want to condemn a man as per your standards of morality but atleast be fair about it – it wouldn’t have hurt to cite his defence in the ET article.

    I really do hope that SpicyIP, a forum meant to be used for a free exchange of ideas on IP, doesn’t lend itself to these attempts by NGOs to ‘ban’ a free exchange of ideas just because it ‘offends’ some false sense of public morality.

    Regards,
    Prashant

    Reply
  2. Kiran George Post author

    Hi Prashant,

    Thank you for your comment. At the outset, I would like to clarify that there was no deliberate attempt to exclude his statement on the conflict of interest bit, and I did include the link to the ET article that you speak of, in the post. Also, I’d like to mention that statements that I have made in favour of the letter and against the CCI Chair’s attendance are with reference to the presence of Ericsson and Intel specifically at the conference and in the light of its theme. I am not questioning the legitimacy of judges and judicial officers attending and speaking at conferences – the issue is discussing and witnessing a discussion that bears direct and absolute relevance to the matters pending before the judicial/quasi-judicial body.

    As in all other conferences, this conference too anticipated a rather lively discussion on its theme, which included right within its ambit the question of SEPs and competition aspects of licensing agreements – two issues that form the very crux of the ongoing CCI investigations against Ericsson. Further, in addition to Ericsson, atleast one of the three parties that filed the complaints before the CCI were present at this event as well. To my understanding, extrajudicial activities remain permissible to the extent that they do not conflict with judicial/quasi-judicial obligations – and as it appears to me, the possibility of such conflict very well seems to arise. Where the matters remain pending before the CCI, it seems to me that the chair’s attendance could most certainly have the potential to undermine the commission’s impartiality, and for obvious reasons – being the theme of the conference itself, and its specific attendees.

    I’d like to point out that although we would all like to hope and believe that judges and heads of quasi-judicial bodies like the CCI are truly unprejudiced and neutral at all points of time, there remains a legitimate reason why judges are expected not to enter into a public debates on matters that are pending or likely to arise for judicial determination. Further, if judges and heads of quasi judicial bodies were really as neutral and unbiased as we’d all like to believe, there would be no reason for the sub judice rule to exist in the first place, right? After all, why impose restrictions on media reportage when the presumption is that judges can’t possibly be so fickle minded as to allow themselves to be influenced?

    I could be wrong, but in my opinion, to say with absolute certainty that there simply cannot be the slightest possibility that the Chair can, even mildly, be swept one way or another by what he witnesses at a conference that, and I mention again, not only covers the issue that lies at the core of the investigation but also has the parties to the dispute as attendees might just be a little too far of a stretch – especially so when you look at the likelihood of attempts being made at the conference to lobby the Chair in the hope of influencing the CCI’s final decision in the Ericsson matter.

    And this, for the simple reason that as an independent quasi-judicial watchdog, I believe it owes the public an obligation to appear unbiased and objective in determination of the matters that come before it – one that certainly cannot be fulfilled if the CCI chairman decides to attend events of the sort under question for reasons that I’ve already mentioned above.

    Reply
  3. Prashant ReddyPrashant Reddy

    Hi Kiran,

    I think it is a bit of stretch to believe that a member of CCI would be swayed in his or her final judgment just because they attended a conference funded by Ericsson. Going by your logic, CCI members shouldn’t be allowed to read anything written by Ericsson’s lawyers in publicly available dockets because it may sway their mind in advance.

    My problem with this letter and with your post is that both presume that our judges will be influenced by merely attending industry sponsored conferences. How do you come to such a conclusion? For any judicial system to work we need to start with a presumption of faith in the people whom we choose. This kind of mud-slinging where we point fingers at a public official just because he appeared to speak at an industry sponsored event is damaging the public discourse and in my book, is akin to a witch-hunt. This is all the more true when you can’t even point to a code of ethics which forbid them from doing so. If we can’t trust our judges and public officials with something as trivial as attending conferences sponsored by the industry (and mind you this was a conference where no hospitality was presumably offered to the Chairperson, since it was held in Delhi itself) we have some serious problems with the people we are appointing.

    At the end of the day, I think there is a fine line between being an activist and being a rabble-rouser. I can’t speak about the other organizations who have signed the letter but I certainly hope that the writers for SpicyIP remain on the right side of that fine line while reporting on such issues.

    The restrictions on media reporting that you speak off are meant to protect the reputation of the accused and not to insulate judges from potential bias – at least that is my understanding after reading the Sahara judgement of the SC.

    Regards
    Prashant

    Reply
  4. Gopal Sankaranarayanan

    I am inclined to agree with Prashant on this. If one were to follow the Novartis litigation in the Supreme Court, it was precisely such a ‘letter’ that made Justice Bhandari recuse from hearing the case – simply because he had attended some seminar which was sponsored by a consortium from the international pharma industry, which included Novartis. [https://spicyip.com/2011/09/full-text-of-letter-asking-for-justice.html]
    It is extremely easy to shoot off epistles based on some knee-jerk assumption that it was making CCI vulnerable to ‘corporate capture’. By this measure, no Supreme Court judge can ever attend a Government function, because he is hearing cases involving the Government. Or even accept salaries from the exchequer. Or live in Government bungalows. Or fly Air India when he is hearing an Air India case. In fact, none of them should have heard the NJAC challenge because it involves their own decision making. And none of them can hear the challenges in Karnataka and Delhi about designating senior advocates. All likely to be victim of ‘Government capture’. Suddenly, when its the private sector, these groups get their knickers in a knot. Especially one of them who happens to be a signatory to both letters. I’m curious – was this really worth their while? Or is there some other agenda. I personally couldnt care less about how CCI functions, but I have strong issues with this mindless criticism of our institutions for the sake of being critical.

    Reply

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