Time for some kudos, just as the year draws to a close. As in previous years, the reputed international journal ‘Managing Intellectual Property’ (“MIP”), came up with its list of the 50 most influential people in IPR for 2014-15.
Apologies for carrying this slightly late in the day, but this article was behind a pay-wall till recently. Many thanks to MIP for opening it up!
Here is a link to the full list, which includes the following famous names:
Jack Ma, Founder and Chairperson, Alibaba
Justice Clarence Thomas, US Supreme Court
John Berard, CEO, Vox Populi
Franics Gurry, Director General WIPO
Michelle Lee, Director, USPTO
Benoit Battistelli, President, EPO
The Turtles (a music band)
Indians on the List!
I am particularly pleased that the list this year includes 3 Indians:
- Justice Gautam Patel of the Bombay High Court
- Justice Prabha Sridevan, former judge of the Madras High Court and former Chairperson, IPAB
- Prof Shamnad Basheer, Founder, SpicyIP
At the outset, I would like to make some quick observations. In a recent post, I noted the significance of ‘institutional virtuosity’ and ‘individual virtuosity’ in building a robust institutional framework. The IPR institutional framework in India is still at a nascent stage and far from satisfactory. Further, as an emerging leader of the developing world, India is expected to give a robust developing world narrative to the IP discourse. The contributions of Justice Gautam Patel, Justice Sridevan and Prof Basheer are to be appreciated in this context. All three of them have contributed to the IP discourse in significant ways.
First let’s take Justice Gautam Patel. He reminds me of my jurisprudence classes in Law School, where my Professor Pritam Baruah (who now teaches at the Jindal Global Law School) would emphasise on three elements of legal reasoning: law, logic and coherence. Justice Patel’s judgments are ‘strong’ and ‘measured’ on all these fronts. As far as Indian judgments are concerned, several academics have pointed deep-rooted qualitative defects such as plagiarism (most recently experienced in Roche vs Cipla, where to the credit of the judges, they made amends immediately), failure to surgically analyse the issues at hand, repeating counsel arguments ad-nauseam, and the usage of circuitous legal reasoning. Often, it is difficult to cull out the ratio decidendi of the judgment. Justice Gautam Patel’s judgments are clearly a cut above in this regard and a breath of fresh air! I had earlier analysed one of his judgments in Spicy IP here (which I thoroughly enjoyed, I must say).
Justice Patel reminds one of Lord Denning, whose judgments not only make for extremely lucid writing and reasoning, but also never fail to strike a discordant note, when the ends of justice so desire. Lord Denning believed that the public won’t follow the law unless they believed and understood that it was just. Our judiciary needs erudite judges for building a robust IPR jurisprudence that adequately reflects the socio-cultural and economic ecosystem of India.
And in the non IP sphere, his priceless nuggets in the “cutting chai (tea)” ruling went viral. Taking a dig at the Maharashtra Police Department for arresting a man for drinking tea in a “suspicious manner” at a road side stall near Shivaji University in Kolhapur, he observed as follows: “This is bewildering. We were unaware that the law required anyone to give an explanation for having tea, whether in the morning, noon or night. One might take tea in a variety of ways, not all of them always elegant or delicate, some of them perhaps even noisy. But we know of no way to drink tea ‘suspiciously’.” He added, “The ingestion of a cup that cheers demands no explanation. And while cutting chai is permissible, now even fashionable, cutting corners with the law is not.” As you can see, his judgments are ‘forceful’ and ‘measured’.
His brief profile is available here.
Justice Prabha Sridevan handed down many a wonderful decision from the IPAB, which she chaired through a rather tumultuous history. Noted as much for her legal acumen as her integrity, as she never hesitated from “calling a spade a spade”. Perhaps the only judge who had the courage to criticize the very tribunal which she chaired. As many of our readers know, her report to the Madras High Court in the PIL filed by Professor Basheer challenging the constitutionality of the IPAB was a stinging indictment of the government’s apathy towards this important body. Later, she also spoke against the lack of independence of IPAB after her retirement.
Most notably, it was her judgment at the IPAB that validated the IPO ruling on India’s first compulsory license in Bayer Corporation vs Union of India and Ors. The matter went in appeal to the Apex Court; argued by the best lawyers of the country. The SC agreed with the robust reasoning of IPAB and the IPO.
She is also very passionate about GI’s. After rendering a very significant judgment in the Payyanur case, she wrote a powerful piece in the Hindu pointing to the crucial role that GIs perform viz., its role in ‘inclusive’ development. As ‘inclusive’ development has become one of the prominent goals of developmental strategy discourse in India, there is a need for greater understanding and appreciation of the role ascribed to GIs.
She is also extensively involved with various social and legal issues outside of IP. And is a very strong opponent to the death penalty. See this article of hers which stands apart for its logic and coherence.
She also headed the IP Think Tank which was assigned the task of framing the National IPR Policy. Her brief profile is available here.
As for Prof. Basheer, his contributions to the world of Indian IP are diverse and significant, given that he has been involved with Indian IP for more than 15 years now! Most notably, he founded this blog in 2005 as a way of democratizing the discussion around intellectual property issues and to foster more transparency in Indian IP. This transparency crusade is documented in an MIP article (SpicyIP carried it here.) Prof Basheer also assisted the Hon’ble Supreme Court in one of India’s most path-breaking IP cases, Novartis v. Union of India [(2013) 6 SCC 1] as an intervener-cum-amicus. In this landmark judgment, SC rejected the patent plea for Glivec (an anti-cancer drug) and relied pertinently on his interpretation of section 3(d). Unfortunately, as he notes, he was not credited appropriately for this line of reasoning (which the judges labeled as an ‘internal aid” to constructing section 3(d)). However, as Prof Basheer noted earlier, this is relatively a small slip, and in the end, the judges are to be lauded for one of the finest decisions on Indian intellectual property law. [For more on this, see here.]
Recently, the Madras High Court handed him a huge victory in his PIL challenging the constitutionality of IPAB. The appeal filed by the government was later dismissed by the Supreme Court. [For the chain of events, see here.]
In a later interview given to MIP, Prof. Basheer noted as follows: “…..there were two main justifications for the IPAB: one was to have a more competent dispute resolution body and the other was to resolve IP disputes in a speedier manner and reduce the pendency at the high courts. The IPAB has failed miserably on both counts. In fact, a recent empirical survey done by me and my research colleagues showed that the whole rate of disposal of cases at the various high courts is around 90% each year, the IPAB’s disposal rate is hardly 50%. Clearly the creation of this specialist body is not helping with the backlog! And in any case a number of decisions of the IPAB are routinely challenged before the High Court, making for a wasteful process overall.”
Prof. Basheer also petitioned the courts more recently to ensure that the patent working provisions are enforced and have some teeth without being mere paper tigers. I had blogged on this PIL here, here and here.
In yet another PIL filed by him through our own former blogger, Sai Vinod, Prof Basheer advocated that the Right to Information Act, 2005 ought to trump all other legislations such as the Patents Act when it came to information dispensation. [See ET and Live mint articles.] We had also extensively covered the issue here. These cases are expected to have far-reaching implications for the future of Indian IP.
Apart from pushing the bounds of IP through various interventions in the court and before the government, Prof Basheer has also contributed immensely to IP scholarship. Illustratively, here is a paper of his recommending an innovative model of investment protection for pharmaceutical drugs.
Further, Prof. Basheer was awarded the Infosys Prize, 2014. The Jury Chair, Prof. Amartya Sen made some remarkable observations which I am inclined to reproduce here: “It is my wonderful duty to congratulate Prof. Basheer for his remarkable work on legal theory, legal practice and also legal education. And he’s being honored by the Infosys Prize in Humanities for the major breakthroughs he has made, particularly in his academic work dealing with intellectual property rights generally, but patent laws in particular. He has also linked up the practice of law with the theory of it in a totally remarkable and convincing way. He has also been a major factor in the expansion of legal education in India whereby people can participate in the reasoning that goes into legal decisions on subjects including patent rights and so on, which affect the lives of so many people. So we are delighted on behalf of the Infosys Science Foundation and the jury committee to be able to honor Prof. Basheer for the fantastic work that he has done and which has made a major difference to the world of legal education and legal practice, and legal understanding across the country.”
On a lighter note, our Indian judges and academics might be pleased (or not) to find that the MIP Top 50 list includes Taylor Swift, an upcoming prominent Pop star. As MIP notes, “Swift has had a knack of causing waves for various moves in intellectual property. She received a lot of attention for applying to register various trade marks related to her hit album 1989, such as “Party Like It’s 1989” and “This Sick Beat”.” Well, this may be of interest to the artists of our film industry and prompt them to engage more with intellectual property issues and initiatives.