Centre for Internet and Society

Sub$-100 Phones: Browser Compatibility Tests

rohini — 2017-02-16T16:47:02Z

This post documents the results of browser compatibility tests conducted on six out of eight specimen mobile phones being studied under the Pervasive Technologies project. These phones are Internet-enabled and cost the equivalent of USD 100 or less in India. Rohini Lakshané and CIS volunteer Dhananjay Balan carried out the tests. Intern Shreshth Wadhwa provided assistance.

Names and descriptions of mobile phones under study: Annexure 1
How the phones under study were chosen: Section 3.2: Criteria for choosing the mobile phones

Research Question:

What technical standards are browsers pre-installed in the eight test phones compatible with?

This question partially answers research question #2 in Methodology: Patent Landscaping in the Indian Mobile Device Market, that is, what patents pertain to [technical] capabilities commonly found in networked mobile devices sold in India for USD 100 or less?

Method:

We conducted tests on all browsers pre-installed, that is, installed by the manufacturer, on six mobile phones to understand their extent of compliance with technical standards for the web. All browsers were tuned to their default settings and no plugins or extensions were installed in them. The tests could not be run on two phones for reasons stated in "Limitations".

For Android v4.0 (Ice Cream Sandwich) and higher versions, we set up a local host and automated all the tests by using a script. The local host was set up to expose sample HTTP endpoints. We tested all browsers through this server.

A Shell script was used to acquire screenshots of the results of the tests:
#!/bin/bash

adb shell screencap -p $1
adb pull $1

We collected screenshots of devices with Android versions below v4.0 by capturing the framebuffer since the shell command was introduced in v4.0.

Script: Github - https://gist.github.com/dbalan/e58f51b713bfd6d711fd02061e27ca90 or Download as .zip.

Android version numbers, where applicable, can be found in the “User Agent” row of the test results. We took photos of the screens for the rest of the devices.

Standards and capabilities tested:

Browser Network Support

HTTP/1.1
HTTP/2
SSL

Acid Tests

Acid tests 1, 2, and 3 (http://www.acidtests.org) were run on all phones.

Acid 1 tests for compliance to the CSS 1.0 standard; Acid 2 for HTML 4, CSS 2.1, PNG, and data URLs. Acid 3 for SVG, HTML, SMIL, Unicode, DOM, ECMAScript (Javascript), and CSS 3, among other parameters. Here is the full list of specifications tested by Acid 3: http://www.webstandards.org/action/acid3/x

Image Formats

JPEG
GIF
PNG

Results

View as .ods; View as .xls

Reading the results:

User-agent string

Example 1: Micromax Canvas Engage A091
User-agent: Mozilla/5.0 (Linux; Android 4.4.2; Micromax A091 Build/A091) AppleWebKit/537.36 (KHTML, like Gecko) Chrome/34.0.1847.114 Mobile Safari/537.36

Mozilla/5.0: Mozilla Firefox browser, version number
This is a user-agent token.

Linux: Linux kernel

Android 4.4.2: Operating system, version number

Micromax A091: Device ID

Build/A091: Build number.

This is a customised Android build by Micromax. (Build numbers of stock Android 4.4.2 are KOT49H and KVT49L).

AppleWebKit/537.36: WebKit, version number. WebKit by Apple is a component of a layout engine that renders web pages in browsers. It is based on KHTML.KHTML: HTML layout engine developed by KDE. Licensed LGPL.

like Gecko: A browser that behaves like a Gecko browser

Chrome/34.0.1847.114: Chrome for Android browser, version number

Mobile: Either mobile browser or mobile device, or both

Safari/537.36: Apple Safari browser, version number

Example 2: Opal Cyher-Shot NX900
User-agent: Dorado WAP-Browser/1.0.0/powerplay/2

Dorado WAP-Browser/1.0.0: User agent key, version

This is a WAP browser for mobile phones based on a Java engine.

Observations:

Browsers pre-installed on phones of Indian brands comply with all technical standards and capabilities tested for. All of these phones -- Intex, Lava and Micromax -- also run on the Android operating system. In the case of failed tests, the results are the same or similar for most mobile phones. For example, Opera Mini 7.5 on Intex Aqua N15 and on Micromax Canvas Engage A091 scored 97/100 in the Acid3 test. This is in line with the results released by Acid for Opera Mini 7.5 and also by the Browserscope project for profiling web browsers.

Awang, Yestel and Opal are brands from China or Hong Kong. The only pre-installed browser on Awang A808, an Android v2.3 (Gingerbread) phone, also cleared all tests but one. It scored 95/100 in the acid3 test, which is the case for the Firefox browser on most Gingerbread phones. The browsers on non-Android phones Yestel and Opal failed the tests for Acid1, Acid2, Acid3 and HTTP2, which indicates that while these phones are technically Internet-enabled, their users do not enjoy many of the benefits of the modern web.

Screenshots or photos of results:

View photos and screenshots
The name of the file is in the format: <name of browser>_<name of format/ acid test with number>.<file extension>
In the case of default browsers, <name of browser> appears as “android”.

Limitations:

Eight phones were under study. However, one of the phones (HiBro) did not contain a pre-installed browser. The only way to access the Internet on this phone was through pre-installed apps such as Facebook.

The operating system of Kechaoda K16, which was Java-based, did not yield to the script used for running the tests. It had one pre-installed WAP browser. Both these phones were excluded from the tests.

Screenshots could not be obtained for the results of tests of two phones, Opal Cyher-Shot NX900 and Yestel Q5S+. We took photos of their screens instead.

For more details visit https://cis-india.org/a2k/blogs/sub-100-phones-browser-compatibility-tests

Tweak the Make in India Recipe

rohini — 2016-06-04T04:02:01Z

As an erstwhile journalist covering electronics technologies and IT a few years ago, I was privy to a litany of manufacturers' woes and their causes: Tangled tax laws and regulations, red tape, corruption, licence raj, unreliable infrastructure such as power and roads, and lack of skilled labour.

The article was published by Business Today on June 3, 2016.

Unlike China, which raked in profits by keeping margins low and volumes high, every entity in the supply and distribution chain in India wanted a 30 per cent cut. India, they said, was no country for manufacturers. The only real electronics manufacturing was that of low-end or low-precision products. Where the products were of higher quality, they were merely assembled in India, often with the intent of circumventing taxes and of employing cheap labour.

Walking around the IT and Electronics pavilion at the Make in India Week in Mumbai early this year, I could see that not much has changed. As if symbolic of the scenario, there was one Indian company. The rest were MNCs based in Taiwan, China, Sweden, Japan, the US, and Germany. The push for indigenous manufacturing is nevertheless apparent from the flurry of proposed incentives, large infrastructural investments, and facilities made available to manufacturers and new entrepreneurs by the government. The Make in India mix, however, needs more than subsidies, tax waivers, reimbursement of duties, or monetary grants.

A pet peeve of brand owners and manufacturers with large patent portfolios operating in India is that research and development (R&D) in the country largely happens only in public research institutions and universities. Indian firms don't invest in R&D and subsequently fill patents. A patenting landscaping exercise conducted by us at the Centre for Internet and Society last year showed that all Indian patents, nearly 4,000 in number, pertaining to mobile technologies are owned by non-Indian companies. Out of approximately 19,500 patent applications, a meagre 18 were filed by Indian companies.

India's premier educational institutions also apply for far less patents within the country and abroad than their foreign counterparts. For example, the National Academy of Inventors has published a list of "Top 100 worldwide universities granted US utility patents in 2013" and another in 2014. One Indian school features on these lists - the Indian Institute of Science (IISc) - with 21 patents in 2013. Within India, the IITs and IISc file up to 200 applications every year; MIT files nearly 4,000 in the US. Several large MNCs run R&D facilities in India, hiring some of the best talent in the country. The patents for their work are first registered to these companies abroad, contributing to royalty outflows. One way to correct the famine of locally owned intellectual property is for the government to urge top Indian companies and academic institutions to push the envelope in terms of R&D and patenting. A promising development is that the Indian government has pledged start-up funds. So have companies such as Qualcomm, which has committed $150 million to a strategic venture fund in India.

Another gripe is that the manufacturing units in India are in reality assembly lines that only put together imported parts and components and generally make copied products. While the government has provided sops to encourage actual manufacturing to truly reduce dependence on 'screwdriver technologies', it needs to incentivise foreign corporations operating in India to transfer their technology to Indian entities, instead of only assembling here using automated or human labour. Moreover, India-manufactured products are infamously substandard. These products need to pass quality checks if India aspires for an export market and leverage in asking for transfer of technology.

To benefit from the transfer of technology, the workforce needs to learn to use it and assimilate it in its work life. Despite the intake of students in engineering schools in India being more than that in the US and China put together, a major chunk of newly graduated engineers in India is unemployable. The repairmen at Nehru Place's electronics market learn the ropes through an informal education system comprising their friends, peers and employers in small-time garage shops. Rookie engineers who secure the holy grail of college placement are trained from scratch by their employers, such as Infosys with its plush training campus located in Mysore. In either case, the employer is saddled with training new recruits. There is little in terms of professional excellence that institutions of formal education seem to impart. Prime Minister Modi believes that Indias human power would be among its largest exports by 2030, but monikers such as "coding coolies" only point to low valuation of its services. Unless quality vocational education produces professionals in different rungs of the manufacturing ecosystem - from technicians to production personnel to designers to ideators - manufacturing in the country will stay deprived of the benefits of the newest technologies.

Next would come developing indigenous technologies (governed by technical standards and otherwise) in order to reduce dependence on technologies owned by foreign rights holders. India's remote sensing capabilities are among the best in the world. Like GPS developed by the US and GLONASS by Russia, NAVIC is Indias own satellite navigation system. Where GPS in India becomes spotty or inaccurate, NAVIC is likely to be much more reliable and accurate. Mobile handsets sold in India are not equipped yet with the receivers needed to work with NAVIC. When they are, it will be a fillip for both manufacturing and location-based services in the country. There is also a need for diffusion of these technologies. India's public research organisations produce several potentially life-changing inventions, which unfortunately, almost never reach mass implementation.

With the emergence of new technologies comes a greater need for access to patenting. A patent is a monopoly granted to its owner for 20 years in return for publicly disclosing an invention. Without the ability to enforce it, such a monopoly is not of much use. Patenting is also expensive and time-consuming, especially for an individual innovator without the backing of an employer that has the wherewithal for it. Many opt for filing patents via large companies while retaining their names as the inventors. The company thus owns the patent. Small manufacturers without the resources to apply for a patent prefer to zealously guard their inventions. Instead of risking their unpatented inventions being stolen, they limit their use to their own establishments, and sometimes take the inventions with them to the grave.

Make in India was unveiled at a time when manufacturing worldwide was starting to experience the ongoing slump. China, so difficult to beat at its own game, has been facing the heat. There is a tiny window of opportunity for India, which may be akin to the guns made by Indian Ordnance Factories (IoF). These guns - exorbitantly priced and of low build quality - are notorious for backfiring. In the truly Indian spirit of jugaad, they are taken to gunsmiths by their buyers for big and small tweaks that would prevent unfortunate endings. Like the IoF guns, the Make in India recipe needs its own set of tweaks.

For more details visit https://cis-india.org/a2k/blogs/business-today-rohini-lakshane-june-3-2016-tweak-the-make-in-india-recipe

Women's Safety? There is an App for That

rohini — 2017-01-10T02:48:34Z

“After locking ourselves in a room for more than 6 days, this is what we came out [sic] with. Join us in helping make WOMEN feel SAFE,” read a gloating press release about a smartphone app for women to notify their near ones that they were in distress. It was one among many such PRs frequently landing in my mailbox after the rape and murder of a young student on board a private bus in Delhi in 2012.

The article by Rohini Lakshané was published in Gender IT.org on May 19, 2016. This was also mirrored by Feminism in India on January 9, 2017.

The incident had spurred protests across the country and made international headlines. Along with all this came a slew of new “women’s safety” apps. Existing ones, many of which had fizzled out, were conveniently relaunched. My own experience of user-testing such apps in India back then was that they were unreliable at best and dangerously counterproductive at worst. Some of them were endorsed by governments and celebrities and ended up being glorified despite their flaws, their technical and systemic handicaps never acknowledged at all.

There are myriad mobile phone apps meant to be deployed for personal safety, but their basic functioning is more or less the same: the user activates the app (by pressing a button, shaking the device or similar cue), which sends a distress message containing the users’ location to pre-defined contacts. Some apps include additional artefacts such as a short audio or video recording of the situation. Some others augment this mechanism by alerting the police and other agencies best placed to respond to the emergency. For example, the Companion app for students living on campus notifies the university along with police. The SOS buttons in taxi-hailing apps such as Uber enable the user’s contacts to follow the cab’s GPS trail and notify them and the cab company’s “incident response team” of emergencies. Apps such as Kitestring would treat the lack of the user’s response within a time-window as the trigger for a distress message. All their technical wizardry perhaps makes it easy to lose sight of the fact that technology is not a saviour but a tool or an enabler, that technology alone cannot be the panacea of a problem that is deeply complex and, in reality, rooted in society and governance.

The Indian government announced last month that every phone sold in the country from January 2017 should be equipped with a panic button that sends distress flares to the police and a trusted set of contacts. Nearly half the phones sold in India cost USD 100 or less. Prices are kept so low by sacrificing features and the quality of the hardware; there are a lot of phones with substandard GPS modules, poor touchscreens, slow processors, bad cameras, tiny memory, and dismal battery life. They run on different versions of different operating systems, some of them outdated. All of these factors would determine if someone is able to use the app at all and how quickly they and their phone would be able to respond to an emergency. Additionally, mobile phone signals become thin or shaky in areas with a high number of users and buildings located cheek-by-jowl. Even when the mobile hardware is good and the mobile signal usable, GPS accuracy can be spotty and constant location tracking would hog battery. These issues would affect the efficacy of any app. Besides, there is too much uncertainty for an app developer to factor in. (Two years ago, I learnt about an app called Pukar, then operational in collaboration with police departments in four cities in India. Pukar solved the problem of potential inaccuracy of the GPS location by getting the user’s contacts to tell the police where the person in distress might be.) Designing a one-size-fits-all safety app is almost impossible. The app that rings a loud alarm when triggered may save someone’s life or spoil the chances of someone who is trying to get help while hiding. Different people may be vulnerable to different kinds of distress situations and an app can at best be optimised for some target user groups.

An app that does not work in tandem with existing machinery for law enforcement and public safety is a bad idea.

In the end, the “technical” problems may actually be problems of economic disparity. Making it mandatory for people to own phones equipped with certain hardware or requiring them to upgrade to more reliable devices would drive the phones out of the financial reach of many. Indian manufacturers have expressed concerns that the proposed panic button would raise costs for them as well the end buyers. Popularising a downloadable app and informing its target users how to install and work it correctly needs a marketing blitzkrieg, which is something only the state or well-funded developers can afford. The New Delhi police department runs a dedicated control room for reports arriving from its safety app, Himmat (the word for courage in many Indian languages). It’s an expensive affair.

An app that does not work in tandem with existing machinery for law enforcement and public safety is a bad idea. It puts the onus of “keeping women safe” on members of their social circles or on intermediaries and private parties such as cab companies, while absolving law enforcement agencies of their failing to provide security. It opens doors to victim blaming in case someone is unable to use the app at the right time in the right way, or if the app fails.

On the contrary, an app that does loop in the police raises concerns about surveillance and protection of data available to the police, which is especially problematic in places such as India where there is no law for privacy or data protection. Alwar, one of the cities where Pukar was implemented, is super-populated with a large geographical area and a high crime rate. Police departments in such places tend to be overworked and understaffed. Without significant policing reforms, it is questionable whether they will be able to respond in time. A sting operation done by two media outlets on 30 senior officials of the New Delhi police department in 2012 showed the cops blaming victims of sexual violence with gay abandon. “If girls don't stay within their boundaries, if they don't wear appropriate clothes, then naturally there is attraction. This attraction makes men aggressive, prompting them to just do it [sexual assault]," reads one of their nuggets. “It's never easy for the victim [to complain to the police]. Everyone is scared of humiliation. Everyone's wary of media and society. In reality, the ones who complain are only those who have turned rape into a business," goes another. An app that lets known people monitor someone’s location also poses the risk of abuse, coercion and surveillance by intimate partners or members of the family.

Unfortunately, there is no app for reforming a morass in law enforcement or dismantling patriarchy.

For more details visit https://cis-india.org/internet-governance/blog/gender-it-rohini-lakshane-may-19-2016-womens-safety-there-is-an-app-for-that

Dataset: Patent Landscape of Mobile Device Technologies in India

rohini — 2016-05-03T20:06:43Z

Patent landscape of mobile technology patents and patent applications held by 50 companies operating in India. Licensed CC-BY-SA 4.0.

Dataset: Patent Landscape of Mobile Device Technologies in India

This dataset contains a landscape of 23,569 patents and patent applications registered in India and relevant to the domain of mobile technology. These patents and patent applications are held by 50 Indian and non-Indian companies operating in the country. The patent landscape has been released under the Creative Commons-Attribution-Share Alike 4.0 (CC-BY-SA 4.0) License as a part of the ongoing Pervasive Technologies research project.

For the detailed methdology used for drawing up this landscape, read: Methodology: Patent Landscaping in the Indian Mobile Device Marketplace

A paper titled "Patents and Mobile Devices in India: An Empirical Survey" published on SSRN in March 2016 presents an analyis of this patent landscape.

For queries regarding the dataset or its reuse, write to rohini@cis-india.org.

Using this dataset:

Assignee: The assignee is one of 50 companies specified in Annexure 4 of the methodology document. Where two assignees are mentioned, the patent was transferred from the second assignee to the first on account of sale of the patent, company merger, etc. For example, "Huawei|NEC" indicates that a patent that belonged to NEC was transferred to Huawei.

Patent Number: This column contains the patent number in the case of granted patents and the application number in case of patent applications. Patent numbers have been coded in the Thomson Reuters database as IN<6 digit number>B. For example, the patent number 247760 in the Indian Patent Office database is coded as IN247760B in this dataset. The application number is coded as well. However, there is a separate column (Column R) for the application number as given in the Indian Patent Office database.

Level 1: Patents and patent applications in the landscape have been categorised into: Body Design, Communication, Connectable Interfaces, Display, Energy Storage, Memory, Operational Blocks, Sensors, Software, and Sound, image and video.

Level 2: Almost all categories have further been divided into sub-categories, i.e., Level 2 categories.

Infrastructure/ UE: Refers to whether the patent pertains to infrastructure and the user equipment (IUE) or only the user equipment (UE).

For more details visit https://cis-india.org/a2k/blogs/dataset-patent-landscape-of-mobile-device-technologies-in-india

Patents and Mobile Devices in India: An Empirical Survey

rohini — 2017-03-29T04:03:03Z

Though India has the second-largest wireless subscriber base in the world, with more than 150 mobile device vendors, it has, until recently, remained relatively unaffected by the global smartphone wars. Over the past three years, however, a growing number of patent enforcement actions have been brought by multinational firms against domestic Indian producers. These actions, which have largely resulted in judgments favoring foreign patent holders, have given rise to a variety of proposals for addressing this situation.

In order to assess the potential impact of patents on the mobile device market in India, and to assist policy makers in formulating and implementing regulations affecting this market, we have conducted a comprehensive patent landscape analysis of the mobile device sector in India using public data relating to Indian patent ownership by technology type, nationality, and industry classification. Our results illuminate a number of important features of the Indian mobile device market, including the overwhelming prevalence of foreign patent holders, the rate at which foreign and domestic firms are obtaining patents, and how these patent holdings are likely to shape industrial dynamics in the Indian market for mobile devices, as well as the availability of low-cost mobile devices that can significantly enhance public health, agriculture, safety and economic development throughout India.

Download the full paper here

This paper was published by the Vanderbilt Journal of Transnational Law on February 9, 2017.

For more details visit https://cis-india.org/a2k/blogs/patents-and-mobile-devices-in-india-an-empirical-survey

The two-faced FRAND: Licensing and injunctive relief in ICTs

rohini — 2016-03-16T02:37:02Z

Important takeaways from the Indo-Europe Conference on Building a Sustainable IPR-ICT Ecosystem for Promoting Innovation, held in Bangalore in November 2015. Ericsson and the Indian Cellular Association presented an interesting set of views on FRAND licensing as well as injunctive relief, from seemingly opposite ends of the spectrum.

For the schedule, and more information, visit: http://www.ict-ipr.in/sipeit/conference

Ericsson’s position on patenting

-- Companies file numerous patent applications every year but 95% of all granted patents are never commercialised.

-- Ericsson manages to commercialise less than 5 percent of its patents.

-- A patent application could be rejected because it is not inventive or novel enough. Sometimes, a competitor manages to file for or obtain a patent for the same or similar technology a few days before Ericsson. Hence, it becomes prior art and Ericsson is unable to apply for a patent.

-- Monetising patents is a challenge because the technology they pertain to may not be good enough to be implemented. Either that, or nobody in the market wants the technology. There is no business aspect to it. Thus, patenting is expensive but but filing patents is a trial-and-error activity, which makes patenting financially cumbersome.

-- Ericsson feels the need to file a lot of patents, so that some of those patents could be useful from a business perspective. The rest are not commercialised.

-- The number of patents filed are rising in certain countries, but the numbers are misleading. Some patents are of poor quality and/ or unusable for commercialisation.

-- Ericsson gets approximately 5,000 inventions per year but files patent applications for only around 1,500 to 1,600, as the rest of the inventions do not have a business aspect to it. That is, Ericsson does not believe that the invention has good business potential or that there is little way for the market to adapt to it.

-- When companies invest heavily on research and development, and when they try to get (what will later become a) standardised technology released into the market, they should get fair returns on investment.

-- Indian companies need to invest in IPR. They need to do trial-and-error with respect to patenting. Only then, perhaps, some returns will accrue to them from owning patents.

-- Monetisation is besides selling products. It's a side effect of investment in research and development.

Ericsson’s position on FRAND licensing

-- No company apart from non-practising entities (NPEs) make all or most of its money from licensing. Ericsson makes most of its money from its products and not patents.

-- A large number of companies such as Ericsson have inventors based in India but the patents get registered abroad, [that is, the patents are not filed by the Indian subsidiary of Ericsson].

-- The percentage fee charged for a FRAND license is a low, single-digit number.

-- It's a wrong conception that FRAND licensing is very expensive and will shut down Indian companies. If there were no FRAND agreements, no Indian company would be able to put out a phone in the market.

-- It’s a wrong notion that FRAND agreements are prohibiting any company from the market. Indian companies will not be thrown out of the market by FRAND companies or companies that possess a lot of patents. No Indian company would be able to make and sell a phone if FRAND terms didn’t exist.

-- Ericsson is called a patent troll because it doesn’t make mobile phones anymore, but Ericsson built the technology it patented [unlike other patent trolls who buy and gather patents].

-- Ericsson has entered into more than licensing 100 agreements worldwide. Many of its licensees are repeat licensees.

-- The average selling price (ASP) of China-made phones sold in India is USD 50. This money goes to China. The ASP of high-end phones elsewhere is USD 250. Thus, a royalty of USD 15, calculated on the sale price of the end product, is not high.

Ericsson’s position on SEP litigation in India and injunctions

-- Nobody starts litigation in order to render an injunction in the end. The idea is to get the other party to the table and negotiate reasonable terms.

-- Litigation without injunction is a toothless tiger. The 'licensee' has the financial upper hand of not paying the licensor. So the former can keep prolonging negotiations.

-- When hold-out happens during licensing negotiations, litigation is used as a last resort. Injunctions are one of the possible outcomes of litigation.

-- India should play the SEP game. 5G development starts in January 2016 and India should try to get a stake in the development. Indian companies should try to get high quality patents.

[This suggestion seems to be for homegrown Indian companies as Ericsson also stated during the conference that, “A large number of companies such as Ericsson have inventors based in India but the patents get registered abroad”, that is, the patents are not filed by the Indian subsidiary of Ericsson.]

*****

Indian Cellular Association on injunctive relief, SEPs and FRAND licensing rates

-- When the standard setting process is collaborative, it is not logical to apply injunctive relief. It is against the ethos of the community.

--Telecommunication was the first industry to create monopolies, that is, standardisation in order to serve the customer better.

-- [With reference to SEP infringement litigation happening in India], the so-called infringer is not in league/ not competing with anything the patent holder is making and/ or selling.

-- The Competition Act in India is a wide-ranging law. It is not a restrictive trade practices act or a monopolies act. Patents are out of the purview of competition.

-- If a rights holder has acquired dominance as a part of the standard setting process, it is undoubtedly dominant. But if the rights holder's market practices are fair, then it is not violating any provisions of the Competition Act.

-- India has a “demographic dividend”. Legacy patent holders should look at India differently, and consider our purchasing power. If technology has to proliferate, then consumers in India cannot be burdened with the same royalties as the developed world.

-- We are trying to strengthen the TSDSI, India's indigenous standards development body [so that India can have a stake in international standards development].

-- The size of the global smartphone market today [2015] is USD 500 billion; India's mobile phone market is worth USD 16 billion. The mobile phone market share of China is pegged at USD 110 billion.

-- The mobile phone market in India will be worth USD 100 billion as of the year 2022 or 2023. For SEP royalties that reward the innovation of all the SEP holders, what will be the amount of royalty outflow? If the outflow is USD 500 billion [in the year 2022 or 2023], then the FRAND percentage be 0.5, which is not a single-digit number, unlike what was stated by Ericsson's representative.

-- In the projected figure of USD 100 billion, USD 30 billion accounts for display, USD 5 billion accounts for Lithium-ion battery, USD 5 billion for communication protocol, and the complete chipset stack for around USD 10 billion. If the FRAND rate were to be determined as a percentage of the price of the smallest practising component of the [finished] device, then it would be, say, 2% of USD 10 billion. If the FRAND rate were to be determined as a percentage of the end product, it would be 0.5% of USD 100 billion. But, if the FRAND percentage were a single-digit number, which could also be 9, then all the manufacturers except the rights holders would be snuffed out. China's mobile market is at USD 110 billion now and is projected to be at USD 400 billion in 2022, will be paying around USD 1 billion in total royalty outflows.

-- We also need to evaluate macro costs of research and development globally. How many times, how much, and for how many years do we need to reward innovation? What is the right return amount for inventors? All this will come up for serious debate with the patent office, the Competition Commission of India, the companies, and with the ministries. To ensure equitable growth and a level playing field, all these entities need to get involved.

-- There is deep distrust of rights holders due to opaqueness in their operations. For example, injunctive relief was sought against a small importer in an Indian court. The royalty rate demanded happened to be half of that demanded from another Indian importer in the same court against an interim injunction. The rights holder then claimed that the email sent to the former importer was a mistake and it revised the rates so that it was equal for both importers.

[This seems to be a reference to Ericsson suing Saral Communications for patent infringement in the Delhi High Court around the same time that Micromax complained to the Competition Commission of India alleging abuse of its dominant positon by Ericsson. The interim royalty rates quoted to Saral were half of the rates that Micromax was ordered to pay, rendering Ericsson's conduct discriminatory and in violation of FRAND. Ericsson subsequently claimed that the rates conveyed to Saral via email were a mistake and asked for the same interim royalty rates as it from Micromax. For more details refer to, Court document reveals discriminatory royalty demands by Ericsson for its wireless patents.

This is also an indication that the market practices of certain rights holders are not consistent, which not only results in a trust deficit but prevents the implementation of a harmonised FRAND rate across the world.]

****

Injunctive relief and FRAND licensing in Europe

-- According to the German Patent Act, there is automatic injunction as a consequence of patent infringement. No injunctive relief is granted for SEPs anymore in Germany, if certain conditions are fulfilled by the willing licensee.

-- Long-standing provisions exist in Germany for calculating royalties when multiple patents and multiple patent holders exist. FRAND licensing for one patent is useless. There should be FRAND for the whole complex.

-- As per the Huawei decision of the European Court of Justice, dated 16 July 2015, a willing licensee can make an offer for the price it wishes to pay to use a patent under the condition that it deposits an amount in the bank as a security for the licensor. Then the licensor cannot enforce the injunction anymore.

****

Open data in patenting

If the data available with patent offices across the world is made publicly accessible by the respective governments in a way that it is possible to search, understand, and visualise it, then there could be an explosion in innovation.

The trade-off between access and innovation

Inexpensive phones of sub-standard quality break down or stop working sooner than good quality phones. This also destroys incentives for innovators who want to bring high quality phones into the market. So the inexpensive, low-quality phones is a trade-off between having access to mobile phones today and experiencing the fruits of innovation tomorrow. The Hatch Waxman Act in the US addresses this issue by allowing imitators to come into the economy through an authorised mechanism, which also restores some incentives for innovation.

The tradeoff is also addressed better by implementing an evidence-based approach instead of a one-size-fits-all solution. Some regions require an emphasis on access. In other places that do not lack access due to their geographical location and clusters of innovators, IPRs can be implemented more strictly. Such a segmented approach to regions and product-markets can be crafted into policy.

The challenge of harmonisation

Denmark does not have a dedicated intellectual property office. Work on IP is integrated in the government offices for trade, growth, economy, and so on. IPR is strongly interlaced with competition law in the country. Similarly, the Department of Telecom, Department of Health, the Indian Patent Office and the Competition Commission of India should work in tandem to avoid conflict in the way they address cases and issues.

Patenting for universities

Indian university do not carry out patenting as much as their counterparts in other countries. The DieTY has schemes for supporting patent filing by universities and academic institutions.

Number of patents granted annually to:

Xingua University, China: 1,000

MIT, United States: 4,000

IIT and IISC, India: Between 100 and 200

Technology areas and number of SEPs in Europe

Telecom via public network: 4,284

IT and Internet: 534

Audio/ video systems, coding, et cetera.: 221

Security, cryptography, biometrics: 182

(Source: Competition Policy Brief, June 2014, Issue 8, Standard Essential Patents, European Commission)

***

All comments in square brackets and italics by the author.

For more details visit https://cis-india.org/a2k/blogs/two-faced-frand-licensing-and-injunctive-relief-in-icts

FAQ: CIS' Proposal for Compulsory Licensing of Critical Mobile Technologies

rohini — 2016-02-14T04:40:29Z

Earlier this year, the Centre for Internet & Society (CIS) had proposed that the Government of India (GoI) initiate the formation of a patent pool of critical mobile technologies and mandate a five percent compulsory license. The proposal was made in light of ongoing litigation in India over standard essential patents pertaining to mobile technology, and the government's own “Make in India” and “Digital India” programmes.

Read CIS' proposal to the Government of India regarding the formation of a patent pool here. To read about ongoing litigation in India over standard essential patents pertaining to mobile technology, click here.

1. How did CIS arrive upon the figure of 5 percent as the compulsory licensing fee for the patent pool?

As part of foreign technology agreements, the Department of Industrial Development (DID) introduced a ceiling of 5 percent on the royalty rates charged for domestic sale and 8 percent for export of goods pertaining to "high priority industries" in the year 1991. Royalties higher than 5 percent or 8 percent, as the case may be, required securing approval from the government[1]. While 1991 was too early for the mobile device manufacturing industry to be listed among high priority industries, the public announcement by the government covered computer software, consumer electronics, and electrical and electronic appliances for home use[2]. In 2009, another department under the Ministry of Commerce and Industry, the Department for Industrial Policy and Promotion, revoked the cap on royalty rates[3]. Sanjana Govil throws some light on why government regulation on intellectual property was introduced in the early 90s and how it succeeded in reducing the flow of money out of India: Putting a Lid on Royalty Outflows — How the RBI can Help Reduce India 's IP Costs.

The situation in 1991 is somewhat analogous to the current one where most of the patent holders in the mobile device technology domain are multinational corporations, which results in large royalty amounts leaving India. At the same time, litigation over patent infringement in India has thwarted the manufacture and sale of mobile devices of homegrown brands. Additionally, these developments are detrimental to the Modi government’s aim of encouraging local manufacturing as well as strengthening India’s intellectual property regime.

2. How would royalties be distributed among patent holders in a patent pool where a single fee of 5 percent is being charged?

A patent pool formed for the purpose of compulsorily licensing the patents contained in it can be managed by combining government intervention with the governance structure of a voluntary patent pool. Vikrant Narayan Vasudeva enumerates the different approaches to setting royalty rates in a patent pool once a “royalty base” has been established[4]:

● Rule of Thumb

● Numerical Proportionality

● Industry Standards / Market or Comparable Technology Method

● Discounted Cash Flow

● Ranking

● Cost-based Rate Setting

● Surrogate Measures

● Disaggregation Methods

● Option Methods

● Competitive Advantage Valuation (R)

3. The letter implicitly suggests that litigation intended to protect the interests of patent holders could potentially have a chilling effect on government initiatives, local innovation and the interests of consumers. Is there evidence to support this?

Though there is a thin line between legitimate application of legal remedies and chilling effects, the ramifications of the acitivies of non-practising entities (NPEs), of strategic lawsuits against public participation (SLAPP suits), and of frivolous lawsuits provide plenty of evidence to support making such a proposal.

Some indicative examples:

Patent trolling pays: Since 2010, trolls have made 3 times as much money in court as real companies

Kootol (India-based troll with US and European patent applications) sends notices to many companies regarding Twitter/Facebook-style feeds

Alleged troll that sued eBay over PTO reexamination dismisses lawsuit

Patent Troll Lodsys Settles for Nothing to Avoid Trial

Why I’m not paying the Troll Toll

[1] Press Note No. 12 (1991 Series), Procedures in respect of foreign technology agreement, http ://eaindustry .nic .in /handbk /chap 003.pdf, Last accessed September 16, 2015.

[2] Press Note No. 10 (1992 Series), Revised List of Annex-III items, http ://eaindustry .nic .in /handbk /chap 005.pdf, Last accessed September 16, 2015.

[3] Press Note No.8 of 2009, Liberalization of Foreign Technology Agreement policy, http ://dipp .gov .in /English /acts _rules /Press _Notes /pn 8_2009.pdf, Last accessed September 16, 2015.

[4] B. Setting Royalty Rates, Patent Valuation and License Fee Determination in Context of Patent Pools, Vikrant Narayan Vasudeva, http ://cis -india .org /a 2 k /blogs /patent -valuation -and -license -fee -determination -in -context -of -patent -pools, Last accessed September 16, 2015.

For more details visit https://cis-india.org/a2k/blogs/faq-cis-proposal-for-compulsory-licensing-of-critical-mobile-technologies

'We Need to Proactively Ensure that People Can't File Patents Representative of the Creativity of a FOSS Community'

rohini — 2015-09-27T11:51:50Z

Rohini Lakshané attended “Open Innovation, Entrepreneurship, and Our Digital Culture” in Bangalore on August 13, 2015. Major takeaways from the event are documented in this post.

Speakers: Prof. Eben Moglen, Keith Bergelt, and Mishi Choudhary; Panel discussion moderator: Venkatesh Hariharan. See the event page here. The organizers republished Rohini's report on their website.

Prof. Eben Moglen on FOSS and entrepreneurship

The culture of business in the 21^st century needs open source software or free software because there is one Internet governed by one set of rules, protocols and APIs that make it possible for us to interact with each another. The Internet made everybody interdependent on everybody else. Startup culture needs free and open source software (FOSS) because startups are an insurgency, a guerrilla activity in business. The incumbents in a capitalistic world dislikes competition and detests that existing resources, such as FOSS, enable insurgents to circumvent some of the steep curve that they had to climb in order to become incumbents.
Hardware is developing in ways that make the idea of proprietary development of software obsolete. There is no large producer of proprietary software that isn't also dependent on FOSS. Microsoft Cloud is based on deployments that do not use Windows but are based on FOSS. The era of Android as a semi-closed, semi-proprietary form of FOSS is over. Big and small companies around the world are exploiting the open source nature of Android.
Free software is a renewable resource not a commodity. Management is needed to avoid over-consumption or destruction of the FOSS ecosystem. Software is to the 21^st century economic life what coal, steel, and rare earth metals were at the end of the previous century.
FOSS turned out to be about developing human brains. It turned out to be about using human intelligence in software better. Earlier universities, engineering colleges and research institutions were the greatest manufacturers and users of FOSS. Now businesses of all sizes are.
When Richard Stallman and Prof. Eben Moglen set out to make GPL free, they initiated a large public discussion process, the primary goal of which was to ensure that individual developers have as much right to talk and to be heard as loudly as the largest firms in the world. At the end of the negotiation process, 35 or 36 of the largest patent holders in the IT industry accepted the basic agreement to be a part of the commons. --- Incumbents like people to pay for a seat at the table. Paying to have an opinion is a pretty serious part of the landscape of the patent system.

Prof. Eben Moglen on Digital India

Every e-governance project that the Indian government buys should use FOSS. The very nature of the way the citizens and governments interact can come to be mediated by software that people can read, understand, modify, and improve. An enormous ecosystem will come up -- a kind of public–private partnership (PPP) in the improvement of governance and government services, which is far more useful than most other forms of PPP conceptualised in the developed world in the 20^th century.
Everybody has a stake in the success of this policy. Several corporations are working against this policy as they once stated that they do not need FOSS.
The biggest market for both making and consuming software in the world is in India, because the science done here will dominate global software making, which in turn will define how the Internet works, which in turn will define society. One can't develop the largest society on earth by reinventing the wheel. The government is going to understand that only the sharing of knowledge and the sharing of forms of inventing would enable the largest society in the world to develop itself freely and take its place in the forefront of digital humanity.
If every state government's data centre across India is going to be turned into a cloud, one state might have VMWare, another might have AWS, and so on, it would be disastrous. To prevent this, all e-governance activities of every state government and federal agency in India could be conducted in one, big, homogeneous Indian cloud. This would enable utility computing across the country for all citizens, which would also make room for citizen computing to happen. When one moves towards architectures of omnipresent utility computing with large amounts of memory flatly available to everybody, one is going to be describing a national computing environment for a billion people. We can't even begin to model it until we start accomplishing it.
Prof. Eben Moglen's ambition is that there comes a time not very long from now when basic data science is taught in Indian secondary schools. The software is free and all the big data sets are public. A nation of a 100 million data scientists rules the world.

Keith Bergelt on the Open Invention Network

Over the past 10 years, Open Invention Network (OIN) has emerged as the largest patent non-aggression community in the history of technology. It has around 1,700 participants and is adding almost 2 participants every day. In the last quarter, OIN had approximately 200 licensees.
There is now a cultural transformation where companies are recognising that where OIN members collaborate, they shouldn't use patents to stop or slow down progress. Where members compete, they choose to invent while utilising defensive patents publications. What we are doing is a patent collaboration and a technical collaboration that exists in major projects around the world.
OIN has been making a major effort since January 2015 to spend more time in India and China to be able to ensure that the technological might and expertise represented in the two countries can be a part of the global community, and that global projects can start here. “We can expect to leverage the expertise of the community to be able to drive innovation from here [India and China]. It's not about IBM investing a billion dollars a year since 1999 and having some birthright to driving the open source initiatives around the world or about Google or Red Hat or anyone else. You have the ability to impact major changes and we want to be able to support you in the name of freedom of action as participants.”

Panel Discussion

Patent Wars and Innovation

In the past 5 to 7 years, patent wars in the handset segment of the information technology (IT) market have wasted tens of billions of dollars on litigation, and on raising the price of patent armaments. This patent litigation was purely an economic loss to the IT industry and it contributed nothing. If the patent system strangles invention, non-profit groups, non-commercial bodies, free software makers, and start-ups cannot invent freely.
Defensive patent publications, such as those made by IBM, lead to the gross underestimation of the inventive power and output of the company. People are struggling to find something to evaluate the productive output of an entity – startup, micro-industry or macro-industry. Patents are being used inappropriately and it's part of the corruption of the patent system. Any venture capitalist (VC) who believes that either the innovative capacities or the potential success factors of a start-up are tied to its patents should know that there are only a minuscule number of cases where patents are the differentiator. The differentiators required in order to sustain business are how smart the people are, how quickly they innovate, and how quickly they are able to adapt to complex situations. We see a trend in the US of not equating patents with innovation. The core-developer and hacker communities are largely anti-patent.
However, the flip side is that if the FOSS communities do not patent defensively, i.e., acquire and publish patents for their inventions in order to prevent others from getting patents in one jurisdiction or another, patent trolls will eventually encroach on the communities' inventive output. The only people making money out of this whole process are lawyers. It is slowing down the uptake of technology by creating fears and doubts in the system.
FOSS communities didn't qualify everything produced in the 23 years of (Linus') Linux, which would have let the service serve as stable prior art, preventing other people from filing patents. We can debate what is patentable subject matter in general or whether software should be patentable, but in the meantime if we can be proactive and file everything that we have in defensive publications and make it accessible to the patent and trademark offices here and around the world, we will have far fewer patents. We need to be activists in making sure that people can't file patents that are representative of the creativity of a community.
The Chinese government has instituted a programme designed to produce defensive publications in order to capture all the inventiveness across their industries, to be able to ensure that the quality of what ultimately gets patented is at least as high.
The US has a massive repository called ip.com, which is with every patent examiner of the USPTO.
India does not grant software patents as per section 3(k) of the Indian Patents Act, but that doesn't mean that no software patents are being granted. One of the empirical studies conducted by the Software Freedom Law Centre (SFLC) in India shows that 98.3% of the [telecom and computing technology] patents granted till 2013 went to multinational corporations. Almost none of the assignees are Indian.
In the context of the ongoing patent infringement law suits filed in the Delhi High Court by Ericsson [link]: The Delhi High Court has had a reputation of being very pro-intellectual property from the beginning.
Also, there is pressure from trade organisations. In August 2015, Ericsson along with ASSOCHAM invited the Director General of the Competition Commission of India to present a paper about why patents are good. It is essential to determine how the rules of conflict of interest apply here. This is exactly what the pharmaceutical industry would do. The only bodies who would object are Doctors Without Borders (MSF) or some local organisations who realise that high priced patented drugs is not what India needs and that we do not need to have the same IP policy as the US or Japan. We only need a different policy.
The Special 301 Report of the United States Trade Representative (USTR) is a big sham, and it suggests that India doesn't have strict enforcement of IP law. India does, unlike China.
Accenture has been granted a software patent in India. The patent is about an expert present in a remote location transferring knowledge to somebody who is listening in another location. Universities offering MOOCs, BPOs, and many other services would fall under such a patent. SFLC spent four years trying to fight this patent. The first defence of Accenture's battery of lawyers was that they won't use the patent.
Patents of very low quality are being bought at very high prices. The tax system or the subsidy system for innovation regards all patents as equal. This is a pricing failure and that should be corrected by other forms of intervention. The pendulum has already begun to swing the other way. Alice Corp was the third consecutive and unanimous ruling by the US Supreme Court that abstract ideas are not patentable. Patent applications pertaining to business methods and algorithms are increasingly being rejected by the USPTO after the ruling.

Prof. Eben Moglen on Facebook:

Facebook is a badly designed technology because there is one Man in the Middle who keeps all the logs. The privacy problem with Facebook is not just about what people post. It's about surveillance and data mining of web reading behaviour. It is a social danger that ought not to exist. I have said since 2010 is that we can't forbid it; let's replace it. It means bringing the web back as a writeable medium for people in an easy way. What I see as next-generation architecture could just as well be described as Tim Burners Lee's previous generation architecture.

You have to be able to trust the Internet. If you can't, you are going to be living in the shadow of govt surveillance, corporate surveillance, the fear of identity theft, and so on. We need to be able to explain to people what kind of software they can trust and what kind they can't. Distributed social networking will happen; it's not that difficult a problem.

An example of federated networking is Freedombox, a cheap hardware doing router jobs using free software in ways that encourage privacy. The pilot project for Freedombox has been deployed in little villages in Andhra Pradesh and Karnataka. These routers don't deliver logs to a thug in a hoodie in Menlo Park.

For more details visit https://cis-india.org/a2k/blogs/we-need-to-proactively-ensure-that-people-cant-file-representatives-of-the-creativity-of-a-foss-community

Report: 5G Technologies Workshop by IEEE

rohini — 2015-09-27T11:45:57Z

A report on the 5G Technologies Workshop organised by the Bangalore Chapter of the IEEE Communication Society at Bangalore on May 22 -23, 2015.

Workshop schedule [PDF]

Why is 5G needed?

The “Internet of Things” (IoT), increasing number of telephone connections, increasing use of data by mobile devices, and an exponential increase in the diversity of wireless applications, all require a backbone network in the form of 5G. At the same time, network operators need a sound business model. According to a white paper released by Cisco, the Visual Networking Index: Global Mobile Data Traffic Forecast Update 2014 [PDF], the number of connected devices will go up from 7 billion in 2014 to 12 billion in 2020. These include smartphones, mobile phones that are not smartphones, laptops, tablets, wearables, devices that support machine to machine communication (telemetry, automotive, smart grid and transaction devices), and other portable devices. Mobile data traffic is projected to have a compound annual growth rate (CAGR) of 61% from 2013 to 2018, and the number of connected wearable devices are projected to increase with a CAGR of 52% in the same duration.

5G is projected to completely roll out by the year 2020.

What are the use cases of 5G?

Driverless automobiles, vehicle-to-vehicle communication for road safety, smart cameras in cities, virtual reality gaming, remotely operated robots, tactile internet applications, applications in the cloud, and networks of sensors placed in home, industry and office environments are some of the use cases of 5G.

5G is expected to contribute to massive connectivity and ubiquitous coverage required for smart manufacturing, smart devices in the consumer electronics and personal electronics domains, smart healthcare, smart retail, smart transportation and so on.

Is there a definition of 5G yet?

There is consensus on the following new requirements for wireless communication systems. Most of these will mature beyond 2020.

Speeds of up to 10 gigabytes per second: 100 times faster than 4G LTE and 10 times faster than LTE-Advanced.
Very low latency, which will support augmented reality and tactile Internet.
Very high mobility: Gigabit Ethernet is a form of LAN (local area network) technology that supports data transfer rates of approximately 1 gigabit per second. 5G would support Gigabit Ethernet (also known as Gigabit Everywhere). The user can experience high levels of mobility.
Low energy consumption in networked mobile devices compared with the current rates of energy consumption in order to make mobility sustainable.
Machine-to-machine (M2M) communication among a large number of devices to support the “Internet of Things”.

Challenges in implementing 5G in India/ Ways in which massive growth in the number of users, connected devices, and network traffic can be handled

5G is expected to provide numerous high quality services to millions of users and to provide connectivity to many heterogeneous networked devices, which may contain multiple multiband radios.

While capacity and data throughput need to increase, the amount of radio spectrum available is limited. New spectrum bands could be released to deal with this additional demand. (Refer “Emerging spectrum licensing options” below.)
Additional base transceiver stations will need be set up.
5G will exist alongside multiple and heterogeneous networks (3G, 4G, WLAN, NFC, and beyond with macro/femto/pico cells) while supporting numerous services all the time, many of which will be data-intensive will severely reduce the battery life of mobile devices and hence devices with greater battery life and very efficient power management will be required.
Also, combining various technologies (LTE with WiFi and/or legacy infrastructure with WiFi) and implementing heterogeneous networks will cater to increased demands. LTE will remain the baseline technology for wide area broadband in the 5G era. Interoperability with 4G will be critical to the adoption of 5G.
The backhaul will need upgrading in order to maximise speed and bandwidth. The National Optical Fibre Backbone is an infrastructural project that could work towards meeting this need.
Spectral efficiency needs to be improved but currently spectral efficiency is as optimum as it can get. In light of this, the solution lies usability of currently available technologies, for instance, LTE Release 8 has not been deployed yet. The concept of Small Cell has been defined in LTE Release 12, which has been optimised as much as technologically possible for the current bands. A potential enhancement being discussed for Release 13 is to make LTE operable with unlicensed spectrum bands as well.
Some amount of traffic can be offloaded using free spectrum (WiFi offloading) as well as the existing cellular spectrum (device to device offloading). [Refer: Licensed-assisted Access below]

--- Offloading can happen via cellular-to-WiFi hotspots (LTE and Advanced LTE)

--- Via Cellular small cells and relays (LTE/Advanced LTE, 3G)

--- Via co-located cellular and WiFi (Advanced LTE)

--- Via proximity services and D2D communication (Advanced LTE)

A unified solution lies in the end user enjoying ubiquitous connectivity and consistent user experience, and the telecom operator being able to operate efficiently with the gradual rollout of 5G and with close integration between heterogeneous technologies, with the use of the cloud and software defined networking (SDN) as underlying principles.

Emerging Spectrum Licensing Options

Static assignments and exclusive licenses of spectrum paved the foundation for reliable services and innovation on technology evolution. Cellular systems have now gained the ability to operate on frequencies of up to 5 GHz and to operate over system bandwidths up to 100 MHz.

To deal with the increased demand for spectrum, new spectrum bands could be released. These bands are likely to be in the higher frequencies with a carrier bandwidth of up to 1 GHz. Initial research shows that such high frequency bands might require the development of a new radio waveform, a new radio technology. It is not known yet if and when the standardisation of the new radio technology will be undertaken. Spectrum is a costly investment, so telcos tend to be very picky about it.

The prevalent scenario in India

India is not seen as an early adopter of new wireless communication technologies.
Indian telcos invest late in ‘new’ technologies, but they invest massive amounts of money and for periods of time comparatively much longer than in early adopter countries. Indian telcos are still starting and/ or expanding their 4G operations and these will stand for a long time to come.
Call tariffs are among the lowest in the world.
New spectrum is unlikely to be released in the near future. World Radio Conference 2019 (WRC 2019) is likely to be the earliest possible time of release.
5G system design is therefore likely to happen over two phrases: Evolution design (up to 5 GHz) by the year 2020 and Revolution design (in bands over 5 GHz) around 2023.

Licensed sharing/ Authorised sharing of spectrum

One way of dealing with the spectrum crunch, could be spectrum sharing. When the holder of spectrum is known to be underutilising it, and there is little possibility of changing the policies governing the quantum of utilisation, spectrum sharing is a preferred solution.

License-exempt use of spectrum with the implementation of policy guidelines could be practiced in cases such as apartment complexes and bus stations handling large amounts of traffic.

Traffic offloading: LTE over unlicensed spectrum

-- Licensed-Assisted Access (LAA)

LAA can be use to opportunistically boost data rate. It works by aggregating a primary cell, operating in licensed spectrum to deliver critical information and guaranteed Quality of Service, with a secondary cell operating in unlicensed spectrum. LAA can be implemented globally in the 5 GHz band. The secondary cell operating in unlicensed spectrum can be configured either as downlink-only cell or contain both uplink and downlink. This also facilitates some degree of co-existence between the operators of LTE and WiFi as well as among LTE operators.

How do the availability of network services and cost efficiency affect network performance?

– In general

Availability of network service is inversely proportional to bit-rate.
Costs pertaining to terminals and networking are inversely proportional to latency.
The length of the battery life of terminals (i.e. mobile devices) is inversely proportional to spectral efficiency.

– 2G

2G technology has an emphasis on voice and SMS with low bit-rate and low spectral efficiency. This leads to high mobility and high availability of the network service at the boundaries of the cell. (The cell boundaries are the furthest from the cell tower in terms of physical distance.)

– 2.5G

2.5G (EDGE and GPRS) provided higher bit-rates and hence lower spectral efficiency and lower availability of the network service at the boundaries of the cell.

– 3G

Targets for 3G performance were not comprehensively defined by the ITU-R in the IMT 2000 set of standards. The target defined peak bit-rates for a single user. Hence, in its early stages 3G did not meet expectations for data transfer speeds.

– 4G

Mobility continued to be low in 4G technology even as the ITU-R provided more comprehensive specifications by including spectral efficiency and latency targets. Like 3G, 4G focussed on single-user peak data rates.

– 5G

Attributes currently proposed for 5G:

High connection density (approx 10^5 users per km^2)
Low latency (less than 10 ms)
High bit-rate (approx 10^8 bits per second)
High capacity density (approx 10^3 bits per second per Hertz per km^2)
High spectral efficiency (approx 3 bits per second per Hertz)

Which would result in:

Very high terminal costs for the operator (between USD 100 and USD 1,000)
Low availability of network service
Low battery life of the user equipment,i.e., mobile devices and fixed devices utilised by the end user (less than 1 day)
Low energy efficiency (approx 10^-6 joules per bit)
Somewhat low mobility (less than 10 km per hour)

However, targets for the Internet-of-Things and for public safety conflict with the above attributes and their consequences, indicating the possible future emergence of more than one technical solution.

Key technologies for 5G wireless communication networks

– Massive MIMO (multiple-input multiple-output)

The number of receiver and transmitter elements as (also transceiver elements) are expected to increase to 100- 1000 low-power antennas per base transceiver station (BTS).

- New antenna technologies

Large scale antenna system (LSAS), 3D-MIMO, Steerable array antennas

Transmitted radio significantly reduces as the number of antenna elements is increases. Hundreds of thousands of antennas could be used together to improve the energy efficiency of wireless communications. Steerable arrays of antennas could be used for dynamic beam-forming patterns.

– Cloud technologies for flexible Radio Access Networks (RAN)

Cloud-based network architecture would include a centralised base station with numerous radio units distributed over the cell and ideally connected by optic fibre in order to reduce latency.

– Advanced Interference Management

New air interfaces under consideration include:

UFMC: Universal Filtered Multi-Carrier
FBMC: Filter-Bank Multi-Carrier
GFDM: Generalized Frequency Division Multiplexing
SCMA: Sparse Code Multiple Access
NOMA: Non-Orthogonal Multiple Access

– Network Densification

The proposed 5G requires new network architecture -- HetNet and Small Cell

– Millimetre wave band

New channels models will need to be developed to deal with different propagation conditions. 5G will work on higher frequencies, that is, in the millimetre wave band which has shorter wavelength (10GHz to 50GHz, 60 GHz, and possibly 70 GHz to 80 GHz) and wider bandwidths (500MHz to 3GHz). Millimetre wave (mmWave) MIMO requires dynamic beamforming at the transmitter and receiver.

More technical assumptions:
-- 5G will require significantly higher albeit low cost backhaul capacity (about 400 Gb/s).
-- 5G will have very low round-trip latency requirements.
– Higher frequencies and higher densities will dictate small cells.

Over-The-Top (OTT) Applications on Mobile User Equipment and IoT Devices

Reproduced with permission from Rohde and Schwarz

Green Communications Using 5G

The joint optimisation of Energy efficiency and spectral efficiency is critical for 5G research. There is still a long way to go to develop a unified framework and a comprehensive understanding of the tradeoff between energy efficiency and spectral efficiency. The latter has been pursued for decades as the top design priority of all major wireless standards, ranging from cellular networks to local and personal area networks. The cellular data rate has been improved from kilobits per second in 2G to gigabits per second in 4G. Spectral efficiency-oriented designs, however, have overlooked the issues of infrastructural power consumption.

The total power consumption of India’s mobile telephony infrastructure was 11.16 billion KWh in 2010. About 15% cell sites in India are either not connected to the electricity grid or receive power for less than eight hours a day; only about 10% receive more than 20 hours of power (Source: Intelligent Energy Limited). Two billion liters of diesel is consumed per year to power these cell sites, contributing to CO2 emission levels and massively adding to the operational costs of telcos.

The Indian Institute of Information Technology-Bangalore has proposed two power saving mechanisms.

Power-Saving Semi-Persistent Scheduler (PS-SPS) for VoLTE traffic in LTE-Advanced: This is a new scheduling algorithm implemented for VoLTE traffic in the downlink of LTE-Advanced cells in order to reduce power consumption in the link level. This proposed solution submitted to the IEEE is claimed to save power without affecting the network’s ability to support a large of VoLTE calls.
Random Access strategies for IoT devices in LTE-Advanced network: This scheme reduced the number of what is called “retransmissions” by Internet-of-Things devices so that these devices may complete the data transmission procedure [Random Access Channel procedure] in a comparatively short time. This scheme does not need the use of additional spectrum or barring mechanisms for IoT devices.

Glossary

Beamforming or spatial filtering is a signal processing technique used in sensor arrays for directional signal transmission or reception. -- Van Veen, B.D.; Buckley, K.M. (1988). "Beamforming: A versatile approach to spatial filtering" (PDF). IEEE ASSP Magazine 5 (2): 4. doi:10.1109/53.665.

Latency is a measure of the time delay that occurs when data packets travel from one networked point to another.

Multiple-input and multiple-output, or MIMO, is a method for multiplying the capacity of a radio link using multiple transmit and receive antennas to exploit multipath propagation. -- Lipfert, Hermann (August 2007). MIMO OFDM Space Time Coding – Spatial Multiplexing, Increasing Performance and Spectral Efficiency in Wireless Systems, Part I Technical Basis (Technical report). Institut für Rundfunktechnik.

Spectral efficiency is a measure of the performance of channel coding methods. It refers to the ability of a given channel encoding method to utilize bandwidth efficiently. It is defined as the average number of bits per unit of time (bit-rate) that can be transmitted per unit of bandwidth (bits per second per Hertz). – Taylor and Francis, Encyclopedia of Wireless and Mobile Communications, http://www.tandfonline.com/doi/pdf/10.1081/E-EWMC-120043448

Throughput is the amount of data transferred from one place to another or processed in a specified amount of time. Data transfer rates for disk drives and networks are measured in terms of throughput. Typically, throughputs are measured in kbps, Mbps and Gbps. – Webopedia, http://www.webopedia.com/TERM/T/throughput.html

For more details visit https://cis-india.org/a2k/blogs/5g-spectrum-ieee-workshop-bangalore

Joining the Dots in India's Big-Ticket Mobile Phone Patent Litigation (Updated)

rohini — 2018-05-06T03:51:49Z

An analysis of the significant commonalities and differences in various big-ticket lawsuits in India over the alleged infringement of mobile device patents.

This blog post has been merged with another on the same topic and published as a paper. The paper was last updated in October 2017.

View paper on SSRN.

For more details visit https://cis-india.org/a2k/blogs/joining-the-dots-in-indias-big-ticket-mobile-phone-patent-litigation

5G Technologies Workshop by IEEE

rohini — 2015-08-29T14:10:03Z

The workshop was organized by IEEE Communications Society, Bangalore Chapter, at Bangalore on May 22 and 23, 2015. Rohini Lakshané attended the workshop.

Download the programme schedule

For more details visit https://cis-india.org/telecom/news/5-g-technologies-workshop

Report: Global Intellectual Property Convention 2015

rohini — 2015-06-21T13:36:18Z

The Global Intellectual Property Convention was held in January 2015 in Mumbai. Interns Anna Liz Thomas and Nayana Dasgupta assisted with the making of this report.

Conference Schedule [PDF]

National IPR Policy Recommendations [PDF]

Harshvardhan Lale, Price Waterhouse Coopers (PWC)

Digital piracy in India

Special 301 Report:

India is second among 10 countries on the Priority Watch List of the United States Trade Representatives (USTR), according to the Special 301 Report published in May 2014. Once every two years, the US, through its trade representatives releases the Special 301 Report, which deals with piracy across the globe, especially in the places where US business interests lie. Though the police conduct at least 25 raids every week across India, it has made no difference to the rate of piracy in the country. When a couple of software publishers entered India, they were very confident that none of their products, in any shape and form, could be pirated in India. I took one of the heads of Compliance to the [pirated goods] market where we got a product worth Rs. 5 crores for Rs. 100.

The Special 301 Report also suggests that none of the previous governments or government bodies in India have taken any initiative whatsoever to ensure that even the products used in the government offices are not pirated. According to US government agencies (2013), there were serious difficulties in attaining constructive engagement on IPR issues with the UPA government.

Video piracy:

India is rated as one of the countries with the highest incidence of video piracy by MPDA, well above Bulgaria, Costa Rica, Greece, and Peru. We [supporters of stricter IP] are now trying to get the digital rights management provision in the [Indian] Copyright Law [redacted], but that is still in the future.

Broadcast piracy:

A few Indian television channels are facing this problem because of demand [to view their content] from Indians living abroad.

Online piracy:

The Internet has been an enabler for the movie and music industry. Many cinema and music publishers have their own channels, say, on YouTube. Although content cannot be directly downloaded from YouTube, "YouTube grabber" software enables piracy.

Surreptitious recording of public performances on mobile phones and recording of cinema screenings using camcorders are other instances of piracy. These recordings are later circulated on the Internet.

Software piracy:

Recently, one automobile manufacturer had to recall a set of its vehicles from the Indian market. Investigations revealed that one of the automobile components, which was procured from a supplier, was created using pirated software. There is a fair chance that a pirated product won't provide all the functionalities that you might otherwise get, or that some APIs (Application Programming Interface) may be missing, which may lead to erroneous or inaccurate design.

Counterfeiting, online piracy, end user piracy, client overuse, and hard disk loadings [sideloading] amount to most of the software piracy in India. One of the software companies for whom we [PWC] are doing an audit - it happens to be one of the leading information technology companies in India - we identified a gap of 20 million [US] dollars for one software publisher in their India operations. Whether this was deliberate or not can be debated, but it is a serious problem.

A survey on software piracy conducted across the globe by Business Software Alliance indicates that India has improved from bring ranked tenth to twelveth. Estimated use of unlicensed software stands at 43% globally; India is at 60% [as per the latest figures]. In 2010, India was at 64%, in 2011 at 63%. There is a recent case of a patent getting rejected because the organisation that had applied for it had used unlicensed software for designing the product. Another serious impact with regard to RnD and patents is on privacy. [Pirated software could contain] malware with the potential of stealing information].

Some of the major problems are that organisations are not aware of the implications of using pirated software and media, leading to potential non-compliances. [Owing to] lack of knowledge of licensing, the different software licenses, software publishers not using a standard format of licensing, the end consumer does not understand what licensing is. In the license terms, there is a "Right to Audit", which gives every software publisher the right to evaluate your organisation at any time.

Corporates are trying to align themselves with consultants like us [PWC] to support the industry in curbing piracy. The Make in India program has a dedicated section on intellectual property (IP). There is a special focus on intellectual property rights (IPR) for the manufacturing sector, which is directly affected by digitalisation. We hope that with the new government, some change will happen in the software piracy space.

Omesh Puri, Senior Associate, LexOrbis

Effective Copyright Enforcement in the Digital Era: Relevance of John Doe Orders

Copyright enforcement challenges in the digital world:

Rapid growth in digital technology presents enormous opportunities for copyright owners as it expands their customer base, reduces distribution costs, and makes territorial boundaries almost a nullity. The disadvantage is that, unless regulated properly, it exposes copyrighted work to threat of blatant infringement spread across different media including the Internet. The main problem before copyright owners is ever-growing online piracy. The Internet grants anonymity to copyright infringers. There can be a number of occasions where copyright owners are not able to ascertain the infringer's identity even after spending considerable time or money. In such cases, a John Doe order comes as an effective enforcement tool.

The name John Doe is used to identify unknown and nameless infringers or defendants who have allegedly committed some wrong, but whose identity is unknown to the plaintiff. To avoid delay and injustice, the court names the defendant John Doe, until such time as the defendant is identified. The orders passed by courts in such cases are known as John Doe orders, and is an internationally accepted practice to enforce IPR, especially with respect to copyright and trademark. This is prevalent in various jurisdictions including the US, Canada, Australia and New Zealand. This order has also been formalised in the statutory provision of these countries. It is an ex-parte interim injunction with the added benefit that the plaintiff is given the liberty to add to the array of parties who would be identified after the filing of the suit. These orders are an exception to the general rule which requires the defendant to be identified prior to the filing of the suit. The ex-parte interim injunction then applies even against the later defendants. It is also against the defendants whose identities are unknown during the filing of the suit. The orders enjoin unknown defendants from engaging in any infringing activity.

Why are John Doe orders so popular?

These orders allow for immediate action in case any instance of infringement comes to light. As the copyright owners only need to serve a copy of the order to the erring parties instead of filing of a new suit. By filing a single action, and after obtaining a single John Doe order, the plaintiff would be able to cover all alleged and even potential infringements and violators, which would ultimately save a lot of time and costs. The plaintiff would not be required to file separate court actions before different courts in India. Once they obtain this order, it will block all unknown defendants and infringers. It is also able to reduce online piracy by mandating that internet service providers block access to infringing websites.

Some of the important John Does copyright injunctions passed in India:

The first John Doe order was passed in the famous case of Ten Sports entitled Taj Television v. Rajan Mandal. The plaintiff, Taj Television, a Dubai-based company, owned and operated an exclusive sports channel by the name Ten Sports. They had acquired the exclusive rights to broadcast the 2002 FIFA World Cup. They entered into agreements with various cable operators for transmission of the channel. However, many unlicensed cable operators started displaying Ten Sports without any permission or authorisation from Taj Television, which then instituted a suit against named and unnamed cable operators. In 2002, the Delhi High Court passed a pathbreaking order which stopped the unauthorised broadcast of FIFA World Cup matches.

The Indian Court has specifically held that such orders may be enforced against persons whose identities are unknown at the time of instituting the suit.

Whose identities fall within the scope of action?

So long as the litigating finger is directed at an unknown person, the inability to identify him by name is a mere misnomer. The principle of litigating finger was affirmed in this case. After this there have been a series of John Doe orders. However it is only in recent times that the Indian Judiciary has started granting these orders on a regular basis, especially for blocking websites. In another case in 2014, Star India Pvt. Ltd. vs. Haneeth Ujwal, the plaintiff was one of the leading broadcasters in India. They had acquired the exclusive broadcasting rights, which includes television, mobile, Internet or on-demand rights with respect to the 2014 India vs. England Test Series. Star India filed the suit against websites, many of which were unidentifiable in nature or the owners could not be located. They were showing these cricket matches live without the permission of Star India. The websites' viewers could either view the ad-supported free version or the video-on-demand or pay-per-view subscription-enabled version. The availability of this content is supported by advertisements found on these websites.

How could the exclusive rights of the plaintiff be protected, and what can be the appropriate remedy?

Should the websites be blocked completely or only the specific URL providing access to the infringing content? The court held that both known and unknown defendants were liable for infringement as there was no remedy available to the plaintiff other than blocking the entire website. Blocking URLs was considered to be insufficient remedy by the court because, in its opinion, the website owners could easily change the specified URL by merely one character to circumvent the John Doe order passed by the Court.

Challenges:

While it has become routine to seek John Doe copyright injunctions before every big movie release or any major sporting event, many claim that they have largely remained unsuccessful in checking and controlling small street pirates. Lack of police cooperation may also render these orders unenforceable. There is another dispute going on whether these orders should be limited to entire websites or specific URLs. The Delhi HC has previously granted orders to extend the inclusion of these orders on the entire website. However, there is another opinion by Madras HC which said that these orders would be limited to specific URLs. In the absence of specific judicial guidelines, there is no clarity on the scope of these orders or under what circumstances these may be granted. There is a risk of misuse and improper implementation of these orders.

James Martin, Director, Fieldfisher

Online Infringement In the European Union

(Recent Court Rulings in the European Union Regarding Online Copyright Infringement and Database Rights)

The Svensson case:

The Court of Justice of the European Union (CJEU) ruled that the owner of a website may use hyperlinks to redirect Internet users to protected works available on other websites without the authorisation of the copyright holder of the linked website, provided that the linked website is freely available, that is, it can be accessed by anyone on the Internet.

The Retriever Sverige website operated to provide clickable links to articles published by other websites on the internet. The claimants were journalists who wrote articles for the Goteborgs-Posten website, and those articles were being linked by the Retriever Sverige website. The claimants argued that the Retriever Sverige hyperlink constituted an infringement of the claimant's copyright by making a communication to the public without the author's permission and they alleged that this was contrary to Article 3 of the Information Society Services Directive, commonly known as the InfoSoc Directive, which is the European Directive that harmonises copyrights across the 28 member states of the EU within the Information Society. The case made its way to the Swedish Court of Appeal which stayed the proceedings pending references to four questions to the CJEU.

1. If anyone other than the holder of copyright in a certain work supplies a clickable link to the work on his website, does that constitute communication to the public within the meaning of Article 3(1) of the InfoSoc Directive?

2. Is the assessment under Q1 affected if the work which the link refers is on a website on the Internet, which can be accessed by anyone without restrictions or if access is restricted in some way?

3. When making the assessment under Q1, should any distinction be drawn between a case where the work, after the user has clicked on the link, is shown on another website and one where the work, after the user has clicked on the link, is shown in such a way as to give the impression that the content is appearing on the same website, in other words, framing the content.

4. Is is possible for a [an EU] Member State to give wider protection to the author's exclusive rights by enabling communication to the public to cover a greater range of acts than provided for in Art. 3(1) of the Info Soc Directive?

In answer to the first question, the Court of Justice determined that "communication to the public " requires both a "communication" and a "public". The hyperlinks were determined to be making available, and therefore, they were an act of communication. However, there is a sting in the tail, because the Court of Justice held that the public must be a new public, and the communication must be directed to a new public. A public that wasn't taken into account by the copyright holders when they first authorised their initial communication to the public. In the second stanza for Svensson, the public targeted by the journalists' original articles consisted of all potential visitors to the Goteborgs-Posten website, which was unrestricted. Therefore they could be freely used and read by any Internet user. Consequently the links provided by the Retriever Sverige website were not to a new public and there was no need to obtain the author's consent.

In response to the second question, the situation would be different if the link allowed users to bypass restrictions designed to limit access to the public such as a paywall as can be found on The Times London websites, the Wall Street Journal websites and many others. Such users were not taken into account by the original copyright holders when the initial communication was authorised. So those people would constitute a new public.

Regarding the third question, the framing, the Court of Justice unusually held that it was irrelevant. The Internet user who clicks on a hyperlink is given the impression that the link is appearing on the site that contains the link, in other words, framing somebody else's content that is already freely available on the internet on your own website is absolutely fine, and there are obviously issues that arise out of that concerning advertising revenue streams that some people have on their websites where they are effectively making money by putting content freely on the internet by having advertising revenue surrounding their content. But of course if somebody can freely embed that content on their website, those adverts aren't necessarily seen. But as far as the European Court of Justice is concerned in the context of copyright, this is perfectly acceptable, and this applies across all 28 EU Member States.

In answering the fourth question, the CJEU held that member states do not have the right to give wider protection to copyright holders by widening the concept of "communication to the public" from that which is given in the InfoSoc Directive, as this would otherwise give rise to legislative differences between member states contrary to the purposes of the directive.

Bestwater ruling:

The Bestwater case reconfirmed the liberal approach that the Court of Justice takes towards embedding copyright material on a third party website. The judgement has been stayed pending the outcome of the decision handed down in the Svensonn case. And the CJEU has ruled that unless an original publisher uses technical access restrictions, then embedded content does not reach a new public. The effect of this judgement, combined with the Svensonn judgement is likely to lead to more restrictive publishing practices within the EU. Copyright holders will seek to avoid free riders taking advantage of the loophole that the court seems to have legitimised. So to provide background,

The Bestwater case was referred to the Court of Justice by the German Federal Court of Justice. It deals with a promotional video about water pollution that was produced by Bestwater International, a company that makes water filters. The film was originally published by Bestwater on its own company website and later uploaded to YouTube, allegedly without the permission or knowledge of Bestwater. The defendants were competitors of Bestwater, and they embedded the video on their websites, with the frames pointing to the YouTube copy. Now Bestwater objected to this use and sought an injunction against the two representatives of the rival company from the German Court. Bestwater's position was that the video was protected by copyright and that the exclusive rights to use the film belonged to Bestwater. So the German court referred the case to the CJEU asking whether the embedding of content of a third-party website on one's own website constitutes a communication to the public within the meaning of Article 3(1) of the InfoSoc Directive.

After the Svensonn decision, the Court of Justice felt that it had already put an end to the debate regarding content on the Internet and it reverted to the German Court suggesting that the latter should withdraw its submission. In other words, saying that they did not want give an answer, saying that they had already answered it. The German Court insisted on a decision, one of the main reasons apparently being that in the Bestwater case, the YouTube video which the defendants were linking to and embedding on their website was itself a copyright violation. Nevertheless, in delivering its decision the CJEU followed the same rationale as in Svensonn and held that embedding content from another website does not amount to communication to the public if the uploader did not restrict access to the content and communicated it to the entire web community. There was no new public accessing the Bestwater video when it was embedded on the defendant's website, because when the video was uploaded on YouTube, whether lawfully or unlawfully, it was intended to be accessed by all who have access to the Internet. So this ruling somewhat cast doubt on the technical and economic understanding of modern media publication because the CJEU's position seems to be that the Internet is a medium rather than a mere technology. In other words, by analogy, a website does not compare to a particular magazine, newspaper, or a particular TV channel, but print media, TV in general, i.e, the relevant audience being all those who have access to magazines and newspapers rather than access to a particular newspaper, and all those who have access to TVs rather than a specific channel. So from a purely economic perspective these decisions raise concerns as they open up numerous possibilities to take advantage of copyright holders and content of other parties on the Internet. Based on these decisions, it's now possible to use written content, images or other videos that are hosted on another website for one's own website simply by embedding them. Apart from using somebody else's Internet bandwidth (which wasn't addressed by the CJEU at all), the CJEU in these copyright cases haven't taken account that the embedded content is actually taken out of its original context, and the advertisements displayed on the original website alongside the uploaded content may not appear on the embedded website, and the embedder may therefore spoil an important source of revenue for the copyright owner and use third-party copyright content for its own economic benefit. The most obvious response to these decisions will be that copyright owners will need to protect their content by implementing paywalls or other restrictive measures from the outset.

Another decision that the ECJ handed down involved the low-cost European Airline, RyanAir. This has been a long running dispute with various third parties, but one third party in particular, which accessed content on the RyanAir website to enable the sale of RyanAir flights and details about RyanAir time tables and schedules available on that third-party website, and interestingly, one thing that the Court of Justice raised in that decision is that it may be possible for owners of content to bind third parties in contract, but obviously you need to ensure that you are binding that third party in contract by accessing the website so that even if you cannot sue them for copyright infringement, you may be able to sue them for breach of contract for accessing your content and placing it on their website.

Database rights (AutoTrack v. GasPedaal)

The Court of Justice ruled in 2014 that the use of a meta-search engine can, in certain circumstances, constitute re-utilisation of the contents of the database in the meaning of Article 7(2)(b) of the Database Directive.

Database rights is an unusual concept, very newly come into the EU, and they provide protection above and beyond copyright protection. You don't necessarily need to have original content in a database, it's really protecting the investment an individual makes in actually producing the database, and that investment can be assessed on a qualitative or quantitative basis.

The Database Directive introduced the bespoke new form of legal protection. It is commonly referred to as the sui generis right . Article 7(1) in particular provides a "right for the maker of a database which shows that there has been qualitatively and/ or quantitatively a substantial investment in either obtaining, verification or presentation of the content to prevent extraction and/or re-utilisation of the whole or of a substantial part, evaluated quantitatively and/or qualitatively, of the contents of that database". Now for this purpose, Article 7(2)(b) provides that "re-utilisation means any form of making available to the public of all or a substantial part of the contents of a database by the distribution of copies, by renting, by online, or other forms of transmission". Article 7(5) provides that "the repeated and systematic extraction and/or re-utilisation of insubstantial parts of the contents of the database implying acts which conflict with a normal exploitation of that database or which unreasonably prejudice the legitimate interests of the maker of the database shall not be permitted."

The recitals to the Directive also back this up. So recital 42 of the Directive provides for "The right to prevent extraction and/or re-utilization related to acts by the user which go beyond his legitimate rights and thereby harm the investment". "The right to prohibit extraction and or re-utilization of all or a substantial part of the contents of a database relates not only to the manufacture of a parasitical competing product but also to any user who, through his acts, causes significant qualitative or quantitative detriment to the investment".

Turning to the facts of this case, Wegener operated a website called AutoTrack which carried car sale advertisements updated daily of to a 190,000 to 200,000 second hand cars of which around 40,000 were to be found on the AutoTrack website. Now Innoweb operated an online car advertisement website called GasPedaal. Rather than having its own database, it used a dedicated meta-search engine which then searched third party websites including AutoTrack's, using those websites to obtain results. So when a user typed in search terms on the GasPedaal website, the site's search engine would translate the relevant command into a language that could be understood by the AutoTrack web search engine. The AutoTrack search engine would then find any relevant advertisements and make them available on the GasPedaal search engine, which would then sort and collate those results from other dedicated search engines on other websites as well. The GasPedaal search engine would then note where more than one site produced the same advertisement and then made a single search result of those, presenting the user with links to the multiple sources. For each search performed, the GasPedaal search engine only returned results representing a small number of the advertisements on the AutoTrack site, but that is because it was only returning results that matched the relevant search terms given by the Internet user. Now Wegener successfully sued Innoweb for infringement of its database right. Innoweb appealed and the Hague Court of Appeal stayed the proceedings pending reference to the CJEU for a ruling on nine questions. The Court of Justice did not consider it necessary to consider all the nine questions. It ruled that it would be an infringement to the database right to use the meta-search engine in circumstances such as that involved in such proceedings. Under Article 7(1), an operator who makes available on the internet a dedicated meta-search engine such as GasPedaal re-utilises the whole or substantial part of the contents of a protected database, when that database's meta-search engine:

1) provides the end user with a search form which essentially offers the same range of functionality as the search form on the original database site.

2) where it translates queries from end users into the search engine for the database site in real time so that all the information on that database is searched through.

3) where it presents the results to the end user using a format of the website grouping duplications together into a single block item in an order that reflects the criteria comparable to those used by the search engine of the database site concerned for presenting results.

A dedicated meta-search engine is different from a general search engine based on an algorithm (like Google), primarily because a meta-search engine does not have its own data itself. It makes use of search engines of third party websites by transferring the queries from its users to the other search engines having first translated them into the relevant format required. It therefore offers the public a service where it searches the entire contents of the third-party databases or part of them in real time.

So Article 7(2)(b) has been broadly drafted to include "any other form of making available". The EUCJ attributed a broad meaning to the concept of reutilisation in its case law focusing on the objective of the database right which is to stimulate investment in data storage and processing systems. So in light of this objective, the re-utilisation has been construed as referring to any unauthorised act of making available to the public the results of the database maker's investment. Accordingly, in this case, it included any distribution to the public of the contents of the database regardless of the nature and form of the process used. When a website operator makes a dedicated meta-search engine available on the Internet, it does more than just point out the third-party databases that exist that a user can go to and consult. It gives the end user the means of searching all that data in most third-party databases without even visiting those third party databases' websites and akin to the Svensson and Bestwater case, this might mean that advertisers might stop advertising on the original third-party's site and might start placing advertisements on the meta-search engine's site. Now in this case we are looking at database rights, the EUCJ considered this dedicated meta-search engine to be close to a parasitical competing product. But it made a reference to the fact that this wording exists in Recital 42 of the Preamble of the Database Directive. The legislation is different, so this is why it has reached a different result, but still, it leads to a conflicting approach. So the Court of Justice held that the meta-search engine sites are close to being parasitical competing products and they've gone on to explain the fact that they resemble databases even though they themselves do not contain databases. And therefore in this case, and in similar cases, operators of such search engines would be making available to contents of third party websites within the meaning of Article 7(2)(b).

What are the effects of this judgement?

By bypassing the homepage and most other pages of the site that actually contain the database, meta-search engines can divert hits, and potentially advertising revenues. Operators of websites that scrape data from third parties and enable those third party sites to be searched, and by doing so thereby risks diverting advertising revenue may therefore need to review their technical business model in light of this judgement.

Chaitanya Prasad, Controller General of Patents, Designs & Trade Marks, India

In India, patents, trademarks, designs, and geographical indications are administered by the Controller General of Patents, Designs and Trademarks. We have offices in New Delhi, Mumbai, Chennai, Kolkata and Ahmedabad. We have a Geographical Indications Registry located in Chennai as well as an Institute of Intellectual Property Management in Nagpur.

There are other IPR laws administered by different ministries. The Ministry of Human Resource Development looks after the Copyright laws. The Department of Information Technology looks after the Semiconductors, Integrated Circuits, and Layouts and Designs Act.

The number of patents in force in India in 2013 was 41,103 out of which 82 per cent were owned by non-resident Indians. The average age of patents in force in India is around 11.6 years, incidentally the second- highest in the world. The reason could be that India is a large market and companies want to exploit these patents and keep them in force.

National IP Trends

The filing of patents in India has gone up from around 35,000 to around 43,000 from 2007 to 2014, and the resident filing has gone up from 17% to 25%. In the year 2011-12, 11,000 patent applications were examined while in 2013-14, the number was 18,000. On a comparative basis, in India one patent examiner examined 140 patent applications in 2014 against 50 and 70 in the US and EU respectively. Therefore, it is the lack of human resources that is creating a backlog in the processing of patents in India vis-a-vis other countries.

Initiatives of the Indian Patent Office aimed at creating easy access to patents offices, and at Improving Its Quality and Services:

Comprehensive e-filing has been introduced where every document and form can be filed online, with regard to patent and trademarks. A payment gateway was launched in 2014, wherein Internet banking facilities of more than 70 banks can be used in addition to debit cards and credit cards for filing any patent or trademark. There is complete electronic processing in the patent and trademark office. Every paper that comes in is scanned, digitised and uploaded. Every paper that is issued from or received by the office is made available on the website.

An entry in the national phase can be done by filing Form 1 and the last page of the specification as we are directly streaming specifications from the WIPO patents scope. Incentives are being given for online filing. There is a 10% cost differential between online and offline filing since February 2014. One month after the incentive was introduced, online filing went up from 30% to 75%.

A new category has been introduced for Medium and Small Enterprises (MSMEs) in patents and designs. MSMEs get 50% discount for filing.

Quality management teams have been hired and skill development of personnel has been undertaken. Measures to introduce more transparency have been sought and efforts have been made to disseminate information with regard to IPRs. Real-time status of IP applications is available within tier file wrappers and e-registers.

The Indian Patent Office does weekly publication of online journals. We have a free public search facility. We have started instant email communications to applicants in trademarks specifically for filing purposes. We have started QR-coded communications for smartphones.

We have introduced a number of dynamic utilities where one can avail of information in real-time. Using the "stock and flow utility" one can find the stock of applications as well as the flow of applications from one process to another. From this, one can drill down to the office, the field, and the application itself and go to the file in the file wrapper and see the entire office thrown open to the world. One of the utilities counts and publicly displays the number of lapsed and expired patents in real-time. Because the patents have either lapsed or expired, these can be searched through fields of technology through any patent application that was not renewed or has expired. These applications are available on the website with the specification and search facility on a real-time basis. A number of other dynamic utilities for examinations, show-cause hearings, publications, registrations, et cetera have been made available online in real-time. We have started working as an international searching authority and have started giving high quality reports. These are currently available to all Indians.

We are shortly going to provide a searchable patent database. We are also bringing in an integrated search engine and are augmenting our human resources. The new government has approved 1,033 new posts in the patent and trademark offices, and with the training and skill of the increased human resources, we will stand on par with the best in the world with regard to the examination and disposal of both patent and trademark applications. We are completely overhauling our hardware and processing software. We will soon introduce new guidelines - one on computer-related inventions and another on search and examination generally.

Dr. Stefan V. Steinbrener, Consultant, Bardehle Pagenberg

Patentability of Computer-Implemented Inventions at the EPO

"Computer-implemented invention" (CII) is defined in the guidelines of the European Patents Office as an expression intended to cover claims which involve computers, computer networks, or other programmable apparatus, whereby prima facie one or more of the features of the claimed invention are realised by means of a programme or programs. Such a claim directed at computer-implemented inventions may take the form of a method of implementing said apparatus, apparatus set up to execute the method, or following the computer programme itself or as well as the physical media carrying the programme, computer programme product claims such as data carrier, storage medium, computer readable medium, or signal.

One can assume that an important part of all applications will fall under this definition. In 2010, the EPO granted 60,000 patents out of which 20,000 were covered by the said definition.

The core regulation is Article 52 of the EPC: European patents shall be granted for inventions in all fields of technology provided that they involve an inventive step and are susceptible for industrial application. Further, there is a list of non-inventions which include discoveries, scientific theories, mathematical methods, schemes, rules and methods for performing mental acts, playing games, doing business, programmes for computers, and presentations for information. This will include or exclude patentability only to the extent to which the European patent application or patent related to such subject matter or activity.

The nature and language of such a regulation mandate the identification of a criterion delimiting excluded items from non-excluded ones. On the one hand, we have no definition of statutory subject matter apart from stipulation that inventions arise from all fields of technology. On the other hand we have a definition of a non-exhaustive list of exceptions, which are not patentable or have non-patentable subject matter. This regulation is, however, contrasting with respect to US regulations. In paragraph 101 in the US, the definitions of statutory subject matter can be found and the non-patentable subject matter is determined through findings of the Supreme Court, abstract ideas, laws of nature and natural phenomena.

Thus from a legal aspect, there are two hurdles for patent eligibility. The first is the patent eligibility of the subject matter. If this is in the affirmative, then the next hurdle is whether the elements of a patent are satisfied, namely, novelty, innovativeness, and industrial applicability.

According to European standards, an invention may not be innovative but may be patent eligible so long as the subject matter is patentable. The judicial issues that are to be addressed are the development of a coherent method of identifying the patentability of a subject matter and subsequently dealing with the grey areas in technicality by sifting through individual cases in order to arrive at certain guidelines for approaching individual cases of patent eligibility.

The finding of the case law upon the first issue is that an invention is such if the claimed subject matter has some technical matter. A subject matter is said to have technical character if it relates to a technical device, product or relates to technical means. "Technical means" has been liberally construed such that in a particular matter a method of storing information using paper and a pencil is patent eligible subject matter because the method employs technical means such as paper and pencil. However, the same would not be patented as the implementation of the same is trivial. The answer to the same question of patentability would be no if it is among the excluded subject matter or is similar to another invention. The barrier to patent eligibility will not disappear but the threshold is much lower. It is only when a subject matter is completely devoid of technical means can it be not called can invention. Barriers also come into play when the idea is abstract or even if there is a possibility of the use of technical means to some extent but claims for the same are not made.

Are computer-implemented innovations patent eligible under the EPC?

The answer would be yes, if explicitly tied to technical means.

When determining whether the invention has the required qualities of a patent, the answer would be in the affirmative if those of the technical features that contribute to the technical character are noble, inventive and industrially applicable. Thus only features of a technical character are taken into consideration while the others making no such contribution are ignored. For example, there have been a lot of patent applications for business methods from the United States, after the State's Street Bank Decision. These applications may have about forty pages of description of the business innovation with a disclaimer note at the end stating that the implementation of the same can be achieved through basic hardware that are already in use. Such applications lack an inventive step and can therefore cannot be patented. Thus, the basic test of patent eligibility with regard to the definition of an invention is the determination of whether there is a technical solution to a technical problem.

Some of the excluded subject matter may contribute towards technical character. Mathematical methods, for example, in the case of cryptography, wherein a mathematical algorithm may assist in the implementation of the same; then such a mathematical method may be patentable.

Further, "technical" should be understood to mean technological. But generally, it is difficult to define the term "technical", even through case laws. The meaning of the same in the core area is however undisputed while the semantics which lack definition are only at the fringes which may be identified in individual cases. We thus work with a dynamic concept of technology.

Ravi Bhola, Partner, KnS Partners

Patent Valuation and its Interplay with FRAND Terms

There are two broad methodologies for the valuation of patents. One is quantitative valuation by taking into consideration the income, the cost, and the market. However, the more relevant method is the qualitative analysis wherein one can look into the scope of the claims, geographical coverage, et cetera. Patent valuation is sometimes speculative. However, in an observation made by a court in the Federal Circuit, a judge directed a re-trial stating that in the study by the patentee, which was an SEP holder, the damages were predicted on speculation and unrealistic assertions. Thus one can ponder about whether there is a requirement to take into consideration a greater number of tools, software, or parameters for the valuation of intellectual property.

In order to strike a balance with society, SEP holders are obligated to licence their patents on FRAND terms to interested parties. The observed trend is that because SEPs are more important, they are valued higher than regular patents. Therefore, the question arises: Are SEPs are over- valued? For this purpose, reference must be made to four ongoing cases concerning SEPs.

Ericsson v. Micromax:

While the adjudication had commenced, it was observed that Ericsson has prior license agreements on FRAND terms of its 8 SEPs (under litigation in this case) with players in the West and other parts of the world. The court thus called forth these agreements for perusal.

Therefore, the first contentious concern is the manner or methodology adopted by the courts to arrive at the unrealistic rates of royalties. However, it is evident in this case that the court, by referring to prior agreements with the same set of SEPs, are trying to bring down the rates of royalty to more realistic values, even at the interim stage.

A similar situation has been observed in the case between Ericsson and Xiaomi, which is pending in the Delhi High Court. Here the court arrived at the amount of Rs. 100 as an interim arrangement, till the adjudication of the matter has been completed. It was again speculated here as to whether the amount was inflated.

The trend observed in the patent litigation at the Delhi High Court where most of such matters are adjudicated, is that unlike the pharmaceuticals sphere, there is a greater tendency in the telecommunication patent litigation to grant a temporary injunction, modify or even vacate the same while determining royalties payable, even at this stage.

How has the West handled these matters with regard to SEP valuation?

Motorola sued Microsoft in the US over the infringement of some of its SEPs. The former sought 2.25% royalty, but the court set a lower rate, such that the royalty amount fell from 4 million USD to about 1.8 million USD. The question which arises is with regard to the manner of determination of such royalties and whether sufficient parameters are in existence [to determine royalties].

Another example is of a European case wherein Apple was found to be infringing SEPS owned by Motorola Mobility. Apple's claim before the European Commission was that as an interested and willing licensee, it had made efforts to obtain a license for the said patents under FRAND terms which Motorola Mobility deterred vehemently. The European Commission upon investigation found that Motorola was exploiting its dominant position in the market and it intentionally sought to oust Apple from the usage of technology protected by means of the SEPs. Damages were accordingly awarded in this case.

Therefore, there is uniformity in the notion that there is an obligation on SEP holders to license their patents to interested licensees on FRAND terms.

What constitutes reasonableness?

The presumption with subjective issues such as these is that the courts will define the same through case laws. While FRAND terms have been dealt with by the courts and even the European Commission, it is pertinent to note whether there have been any anti-trust or competition matters pertaining to the ongoing litigation in telecommunication patent infringement. The Competition law comes into picture while determining the checks and balances to ensure that the SEP holder acts in a reasonable manner.

In Micromax v. Ericsson and Intex v. Ericsson placed before the Competition Commission of India (CCI), Micromax and Ericsson claimed that they had approached Ericsson as licensees but the immense royalty rates put forth by Ericsson deterred them. The CCI after investigation affirmed the claims of Micromax and Intex, with the finding that Ericsson has indeed abused its dominant position. However, the Delhi High Court has directed the CCI to abstain from passing the final order as long as the case is sub-judice.

Daniel R. Bereskin , Q.C. Founding Partner, Bereskin & Parr LLP

Patents as Catalysts to Economic Growth

The more I studied WIPO data and other sources, the more I came to the conclusion that patent numbers, whether in terms of filing or grants are a pretty poor indicator of the level of innovation in a country. Many commentators have taken the view that the patent system throughout the world is in crisis and there are many reasons for this. Far too many patents are granted for very trivial innovative steps, if they are even innovative at all. They are tiny sideways steps, even backwards steps.

When I started in 1965, in order to get a patent, you had to have an invention that was new, "unobvious" and useful. Now we see many thousands of patents granted annually for inventions that are of very dubious merit. Not only does this not encourage economic growth, it tends to retard economic growth. Think of small and medium-sized enterprises, for example. When they are confronted with many thousands of patents that are far too expensive for them to properly evaluate, covering very trivial or insignificant steps.

It is really up to the government to a large extent to encourage innovation and they do that in many countries in different ways such as through research and development tax incentives. The trouble is that if a government spends money in encouraging research and development, it tends to be invisible to the ordinary member of the public whereas building roads and doing other things that are much more concrete in nature are easier and better from the short-term political view. At the same time, if a country is to grow economically, and to prosper in the future, it is absolutely crucial that governments make an investment. I think a rough rule of thumb is for governments to devote up to about 2% of their GDP to encouraging R&D, and that money is significant, but it has to be spent wisely.

Now India has come up for criticism by the US Chamber of Commerce for not adequately protecting IP rights. The International Trade Commission is conducting a survey right now of US firms to understand how the policies of India discriminate against US exports and investment. Canada is also on the watch-list, although it is the US's greatest trading partner and is in close proximity to the US. I find these comments to be very ironic because the US has a history of discriminating against foreigners when it comes to protecting its own citizens. In fact Prof. Jane Ginsburg who is a prominent teacher and writer called the US in the 19th century a pirate nation, and the reason why she said that is because the US refused to grant copyright to works of foreign authors and that did not change till 1891. The reason for that was that Americans liked to read British authors in preference to the works of American authors. So the solution was to not give copyrights to British authors. When they finally, grudgingly, granted copyright protection, it was on the condition that the books of foreign authors had to be manufactured in the United States. This manufacturing clause was not repealed until fairly recently and that was done only because by then the US realized that the US had become a big exporter of books by authors. So we have to take with a grain of salt the comments we get about IP policies in every country. It is very important to take a realistic view of what is really going on.

China has grown steadily in the past eight years to the point where the growth is now over nine trillion dollars. The growth in filing patents in China is incredible. It is going up exponentially and shows no signs of abating. In 2012, WIPO showed that Chinese nationals were responsible for almost 150,000 granted Chinese patents and the number of issued patents to foreigners was roughly 75,000. The problem with China is that there is no way of knowing what the mix is between patents of invention and utility models. Given the enormous disparity between the number of applications filed by the Chinese people in China compared with those filed by them abroad, most of the inventions that are utility models, or patents that are of very dubious economic value. My feeling is that these huge numbers are due to government policy in dictating to Chinese companies that they have to file a lot of patent applications, because it is easy for a government to say, "Look at how impressive our filing statistics are". You have to dig deeper to try to find out what the value is of the innovations that are represented by these patents. My feeling is that since such a small number, roughly 4% of all applications filed by the Chinese in China were filed abroad, that is an indication that the vast majority of these huge Chinese filings are not of any great economic importance.

India's GDP is over 1.3 trillion dollars. Economists predict that in 15 years, the Indian economy is expected to rival that of the US. Of course, India has a population of over 1.3 billion. The US has, maybe, a quarter of that. So you cannot exactly compare them.

Patent applications in Indiai show a somewhat disturbing trend. Although there is some growth in the patent filings by resident applicants, non-residents' filings swamp [outnumber] those of the residents. The number of applications filed abroad by companies and individuals of Indian origin is less than 10,000, which is a very small number given the size of the Indian economy.

There has been a very sharp decline in the past four years in the number of patents that are actually granted to individuals or companies where the inventors are of Indian origin. In 2014, less than 600 patents were granted to Indian nationals [WIPO statistics]. The number of patents granted to foreign applications is likewise declining and it is surprising. It could mean that the Indian Patent Office is getting tougher on "unobviousness". Nevertheless, the numbers are still pretty low.

Korea is a real success story. Their GDP is not yet at the level of India or China, but it is at 1.3 trillion dollars, which is not insignificant. But take a look at their patent application filings. Korean inventors were responsible for almost 150,000 filings in 2012. Koreans filed more than 50,000 applications abroad in the same year. These grants are substantial compared with [erstwhile] figures for India and China.

The US GDP is close to 17 trillion dollars and the economy seems to be continuing to grow. Right now the US economy is about 27% of the worldwide GDP. It is reasonable to conclude that the US has a very strong and vested interest in trying to ensure that IP rights are protected outside of the US because their continued growth depends on the protection of their homegrown IP.

Questions-Answers

How do you compare and contrast recent litigation in pharma versus litigation in the high-tech space, especially Ericsson and Vringo?

Pravin Anand (Managing Partner, Anand & Anand): In the Francis Xavier case in New Delhi, a division bench of the Delhi High Court said that an ex-parte injunction must not be granted in patent cases. The law, however, changed subsequently. The first evidence is of a DCJI clearance required when an application was moved by a pharma company and the news reached the patent owner by means of a right-to-information (RTI) request and private investigation. The patent owner then approached the court in order to prevent to the marketing of the product. Thus, before the launch of the product, the patent holder obtained a status quo. The rules of the division bench did not apply because balance of convenience was observed in maintaining the status quo. But that order essentially acted as an ex-parte injunction in a patent matter. This was phase one. Phase two saw the grant of injunction as the number of status quo order had exceeded twenty five in litigation against well known companies such as Pfeizer and Bristol Meyers. These orders were converted to injunctions by the judges.

The third phase was brought on by the Ericsson, Vringo, and other electronics companies, which albeit through lesser litigations, were able to create quite a stir. Ex-parte injunctions were granted in these cases. However, the judges felt the need to arrive at interim arrangements in lieu of the injunctions. Earlier, pending trial, these arrangements involved the payment of money and royalty by the defendants through their sales, directly to the plaintiff.

Therefore, the present stance is that both status quo orders and temporary injunctions are in use in pharma litigation before the launch of the product. Subsequently, the grant of such orders is rare. The impediment after launch is that the price difference between the plaintiff's and the defendant's product are evident to the question. Prior to the launch, only the plaintiff's product exists in the market. Hence, the grant of such orders is said to be in favour of balance of convenience. The mobile phone patent litigation cases, however, are witnessing the grant of interim orders, rather, arrangements.

Why is it that the Courts cannot wait another day to hear both the parties before granting the ad interim injunction?

Abhay Pandey, Partner, LexOrbis: The main issue that is going to come up in electronic product litigation is the pleading which contains the product mapping. In the Ericsson cases, there is an indirect reference made to the infringements, i.e., the devices are following the standards and not the readings to the claims. Therefore, the issue of injunctions will arrive only once the product is broken down into the claims.

D.P. Vaidya (Lakshmikumaran Sreedharan)

Computer Related Inventions and Indian Patent Law

Section 2 of the Indian Patent Act defines “invention” as any new process or new product which has or which involves an inventive step and is capable of industrial applications. “Inventive step” as well as “capable of industrial application” are defined in the Act. Section 3 defines what are not inventions. With respect to computer related inventions (CRIs), section 3(k) is worded differently than the provision for CRIs in the European Patent Convention (EPC). In Indian law, mathematical methods, algorithms, and business methods are not considered “inventions”, irrespective of whether they are “as such”. Computer programs are qualified with the phrase “per se” instead. The only common thing between EPC and Indian patent law is that “computer programs per se” or “computer programs as such” are not inventions. So programs that do not quality “per se” or “as such” could be patentable.

What are CRIs?

CRIs can be classified as: CRIs related to general purpose computers and CRIs implemented by specific computers (and not special purpose computers). General purpose computers are inventions that work towards different types of solutions. The solutions could be purely mathematical calculations or technical problems.

The term “business method” is not precisely defined in law as much as the abstract idea is. Generally speaking, any commercial transaction will qualify as a “business method” going by my observations from various decisions in the US, UK, and Europe.

Example technical problem: What is the point of presence (PoP) for designing network topology or network architecture?

Based on rules and various parameters defined for the topology or architecture, a schematic is drawn up. It shows the locations where the PoPs should be placed to minimise the cost of operations and the investment. This is also an application that can be implemented over a general purpose computer.

Would it fall under the definition of an “algorithm”? The definition of “algorithm” in the guidelines is very broad. Whether or not it is implemented on a [general purpose] computer, it will be treated as a “computer” because there is no qualifier as “per se” or “as such”. If it is an algorithm, it is not patentable.

Then, what is not an “algorithm”? It could be argued that all methods will fall under the definition of “algorithm”. The IEEE definition of a “solution to a problem” is that it is a finite set of well-defined rules in a finite number of steps. For example, a complete specification for a sequence of arithmetic operations for evaluating the value of sin “x” for a given precision. When the aim is mainly to determine a certain value or function for optimisation or for arithmetic calculations, the method or process can be treated as an “algorithm”. From a legal point of view, methods are patentable, but paradoxically, algorithms are not considered inventions.

Then next level of general-purpose computer-implemented inventions (CII) are those that make changes in the operating systems [instead of sitting on top of the operating system]. By making changes in the operating system, the CII is changing the character of the computer. It is improving the computer, and therefore it is patentable. Also, a general purpose computer operating a machine or a technical process is patentable.

Embedded Computer-Implemented Inventions:

Wherever there is embedded software, the patent controllers generally do not have any issues related to patentability. They may have issues related to inventive step.

For more details visit https://cis-india.org/a2k/blogs/report-global-intellectual-property-convention-2015

Patterns of Gender Aggression and Harassment in Open Tech and Open Culture Communities Online

rohini — 2015-06-01T02:13:14Z

Report on the talk delivered by me at Adacamp held in Montreal, Canada on April 13-14, 2015.

Link to the original blog post published on Wikimedia blog can be accessed here.

I received a grant from the Wikimedia Foundation to participate in Adacamp. While the talk was pegged on my experience of working on Wikipedia's Gender gap in India, the content is equally relevant for other, open online projects, especially those that value the anonymity of its users. The talk ended with a discussion on how to identify and combat these patterns. It was a collaborative talk delivered along with Gretchen McCulloch who spoke on Wikipedia's Gender gap and Fandom. Credits to session rapporteur and participant Maja Frydrychowicz.

Gender disparity among Wikipedia's editors is well-known and well-documented.[1] [2] A survey conducted by the Wikimedia Foundation in 2011 pegged the number of female contributors to the English-language Wikipedia at 9%.[3] Several outreach, advocacy, and capacity-building efforts have been made to bridge Wikipedia's glaring gender imbalance. In the openness domain, other projects and initiatives have been making similar efforts to bring more women into the fold. To cite an example, the Outreach Program for Women endeavours to recruit more female coders in the world of open source software.

While the narrative of few women being online has changed, more in some parts of the world than in others, the next barriers of making them stay online and establishing an active presence, remain. Wikipedia, like many other open communities, has a high drop-out rate of female contributors. Many female contributors maintain identities that do not give away their gender or practise self-censorship in order to continue to be a part of the community. Several studies conducted in the past few years have attributed the gender gap to numerous reasons -- women have less time left after fulfilling their tasks at home and work; antagonistic exchanges are emotionally draining; in households where there is only one Internet-enabled device, women have access to it for a shorter time; and so on. A blog post by Sue Gardner former executive director of the Wikimedia Foundation, pithily lays out why women don't edit Wikipedia.

One of the ways that outreach and advocacy can work towards retaining more contributors and enabling them to participate more fruitfully is by identifying patterns of aggression and harassment that are directed, subtly or otherwise, at them owing to their gender or sexual orientation.

What are some of the significant patterns that cause a contributor to censor themselves or leave, even if they have just joined?

Hostile environment, antagonistic exchanges: These word clouds[4][5] display name-calling experienced by female users on Wikipedia. Wikipedia's editorial model stands on building consensus and collaboration but the spirit of debate often gives way to slings and arrows, many of which would violate Wikipedia's policy of being civil to other contributors (WP:Civil) and one of the five pillars of the crowdsourced encyclopedia. Facing hostility can be emotionally draining, especially for a new contributor, and reason enough for them to avoid contributing to certain topics, to censor themselves, or to leave the platform. Verbal violence and use of language considered unacceptable as per the community rules, is one form of harassment/ violence that is relatively easy to spot and call out, and is not uncommon.
Mansplaining: is more insidious than outright hostile behaviour. The intent is not constructive criticism but to humiliate the recipient, make them feel that do not belong in the space, or drive them underground. It involves the use of what Wikipedia terms "weasel words", and dismissive and condescending speech. It is difficult to address because it is less perceptible, difficult to differentiate from advise or feedback given in good faith (WP: AssumeGoodFaith), and does not violate the guideline of not attacking newbies but explaining the matter to them (WP:DontBiteTheNewbies).
Deletionism: is the practice of reverting edits or deleting/ nominating for deletion entire pages, projects, or other content out of relatively strict adherence to policies. Deletionism is often difficult to tell apart from very strict adherence to standards. Policies are open to interpretation, and deletionists justify their position by applying certain policies and contexts that favour their stance. In the context of issues pertaining to gender or sexuality, a pattern to look out for is the same user, IP address, or an apparent sockpuppet reverting edits, making edits, and defending them in a way that makes the article less gender-sensitive and disproportionately skewed away or towards a certain gender or orientation.
Subtle Powerplay/ Microaggressions: find their way into discussion boards, mailing lists and other areas of debate and discussion. A study done by the Internet Democracy Project in India documents some of the remarks that leave women feeling they are unwelcome, that do not belong in the space, or that they are an 'imposter'. "People will not be outright abusive towards you, which is a lot I face in my job. When someone does not want you to be a part of their community, they will not abuse you because they get banned for it. They will goad and nudge you in ways to tell and make sure that you are not welcome. So they will ask you, 'Oh, so when did you learn JavaScript?' knowing that you don’t know JavaScript. Just to make you feel that only those who have learnt JavaScript have the right to be there [in the forum].”

One of the factors that inadvertently aids some of these patterns is the kind of sources that are considered reliable on Wikipedia (WP:RS). Newspapers, magazines, websites, books, and journals are considered acceptable references. These sources tend to reflect existing gender biases and structures of power. Studies conducted on the content published by newspapers, for example, have shown that news coverage about men is much higher than that about women.

As most of the attendees of the talk were not very well-acquainted with the intricacies of Wikipedia's Gender gap, I went on to explain some topics that were not explicitly related to the subject of the talk.

Initiatives to improve diversity and encourage new contributors on Wikipedia

Beginner-friendly groups such as The Tea House and the Welcoming Committee
Special Interest Groups (SIGs)
The Gender gap project
Edit-a-thons geared towards increasing gender-sensitive content on Wikipedia and correcting content with gender bias
Wikipedia tries to foster positive feedback through barnstars, Wikilove, and marking a good edit with a “thank you” or a heart icon.

How existing editors can work towards increasing diversity and encouraging new editors

Help get more women mentioned in references or citations in Wikipedia articles.
Add information about women in biographies (e.g. add the mother's name or female spouse's name in a biography article.)
One of the traits of communities that do have many women on them is that a lot of positive interaction happens in response to contributions.
Teachers can obtain support for getting students to edit Wikipedia as part of a class project.

Strategies to recruit more women editors (individuals who self-identify as women, transwomen, genderqueer, genderfluid)

Aim outreach efforts towards women who blog, or already have a presence online.
Persuade existing editors to encourage women in their family and social groups to start contributing. In the case of existing male editors, it works as the two-pronged strategy of sensitising men while empowering women.
Organise outreach events where the organisers and participants are all women/ individuals who largely self-identify as women.
Organise outreach events with gender-sensitive male editors.

Questions-Answers

What is needed to meet Wikipedia's notability criterion?

A: There are different requirements depending on the subject of the article: a book, a work of art, a public figure, an artist, a writer, and so on. There are stricter requirements for biography articles, especially those of living people. Being famous does not necessarily mean being notable in the Wikipedia context. Notability requirements end up being gendered; Wikipedia replicates the biases that are present in the offline world due to its reference structure (WP:RS)

There were several general questions from the attendees about editing Wikipedia, and about Wikipedia policies and best practices. These were answered by McCulloch and me in the last 15 to 20 minutes of the talk.

References

[1]. Define Gender Gap? Look Up Wikipedia's Contributor List, Naom Cohen, January 30, 2011.

[2]. WP:Clubhouse? An Exploration of Wikipedia's Gender Imbalance, Shyong (Tony) K. Lam, Anuradha Uduwage, Zhenhua Dong, Shilad Sen, David R.Musicant, Loren Terveen, John Riedl, 2011

[3]. Women and Wikimedia survey, 2011

[4]. Research: Communicating on Wikipedia while female

[5]. Women and Wikimedia survey, 2011, Name-calling on English Wikipedia

[6]. Women and Online Abuse, Internet Democracy Project, 2013

For more details visit https://cis-india.org/openness/blog-old/patterns-of-gender-aggression-and-harassment-in-open-tech-and-open-culture-communities-online

Conference on Standards Settings Organizations (SSO) and FRAND, NLSIU

rohini — 2016-04-02T18:12:41Z

Rohini Lakshané attended the Conference on Standards Settings Organizations (SSO) and FRAND held at NLSIU, Bengaluru on March 21 and 22, 2015. It was organised by the MHRD Chair on Intellectual Property Rights, Centre for Intellectual Property Rights and Advocacy (CIPRA), National Law School of India University, Bengaluru in association with Intel Technology India. This post is a compilation of notes from the conference.

Programme Schedule

Significant Takeaways
It is anti-competitive to seek to exclude competitors from the market by seeking injunctions on the basis of SEPs, if the licensee is willing to take a license on FRAND terms. In these circumstances, the seeking of injunctions can distort licensing negotiations and lead to unfair licensing terms, with a negative impact on consumer choice and prices. -- EU Competition Policy Brief, Issue 8, June 2014. This is a very important issue for India as it thinks about how it can attract foreign investments. India has a unique opportunity to learn from these lessons from around the globe and craft India-specific solutions. India has the intellectual capability and the institutions capable of crafting these solutions, and in doing that we can support Make In India. India needs to be mindful about what is happening in the [South Asian] region. China has moved aggressively to try to curb FRAND abuse. The People's Court in China ruled in Huawei vs. InterDigital that for 2G, 3G, and 4G patents, the license fees of royalties should not exceed 0.019% of the actual sale price. Apple also stated that Ericsson was calculating royalties on the sale price of the iPhone or iPad, whereas the royalty should be calculated on the value of the baseband chip that runs this technology in the mobile device. If such litigation occurs in India, what would be India's position? If a building block contains the technology pertaining to a patent, then royalty should be calculated on the smallest possible patent practising unit and not the entire product. The government of India has adopted a royalty free (RF) approach to licensing open standards. Non-essential claims are excluded from disclosure. Pending patent applications are not. Only 16% patents declared as SEPs are actually SEPs, according to a study. The Delhi High Court has passed interim orders restraining the CCI from deciding these cases. Our appeal to the courts is that these patent infringement lawsuits should not be viewed in isolation. They should not be viewed as merely contractual issues between the licensor and the licensee. They should be seen in the context of their economic effects and their adverse effect on competition. The CCI should be enabled to deal with such cases. Matheson: The phrase "compulsory license" sends a shiver down every corporate's spine every time it is used. International experience is that the judicial system has been the only forum where we have been able to have due process to enable us to construct cases properly in order to explain to the judge or to the jurors how the system works. That has produced very sensible solutions to this problem. Handing it off to the government to institute a compulsory license wouldn't be fair to the SEP holders.

SSOs and FRAND: Licensing issues

John Matheson, Director of Legal Policy (Asia Pacific), Intel

The role of licensing policy

Ensuring market access
Standards often depend on patented technology, which is accessed through the Promise to License on FRAND terms.
It is equally critical to ensure that standards can be implemented without unfair legal games.
It is essential to prevent patent hold-up.
Reasonable compensation

Patent holders remain entitled to fair compensation and benefit from the proliferation of their technologies via standardisation.

Why FRAND?

A FRAND commitment embodies certain fundamental principles that have been recognised widely by the courts and regulators.

The fundamental purpose of a FRAND commitment is widespread adoption of the standard.

Because of the peculiar nature of SEPs, the process is open to abuse.

A FRAND commitment is aimed at preventing patent holders from exploiting a hold-up value and extracting unreasonable royalties and concessions that could otherwise follow from being in a very unique position. Often, the holders of the IP have a single solution to an interoperability or connectivity conundrum that technology is facing.

Why are SEP license negotiations different from Non-SEP ones?

In the context of non-SEPs, one may be negotiating to obtain a license to a patent for a particular feature. If the licensor is being difficult, one can discard the feature to include something else. In a competitive market, this negotiation is focused on the value of the invention to be licensed. Thus one can redesign to avoid a particular claim and, in turn, avoid injunction.

On the other hand, it is necessary to either obtain a license for or infringe an SEP to manufacture the mobile device. There is no workable alternative or workaround to obtaining a license for the desired technology. With the threat of an injunction looming over the negotiations, the prospective licensee is under pressure to obtain a license. So the market negotiations for SEPs and non-SEPs are very different. One-way negotiations raise the possibility of a patent hold-up, and abuse of the standard implementer.

IP policies inevitably involve compromise.

Common areas of misunderstanding include:

Valuations or meaning of "reasonable". Valuations of IP under consideration.
Injunctive relief or exclusion orders
Discrimination or refusal to license
Patent transfer (It requires a continuation of the FRAND commitment, and shouldn't get differential treatment in the IP policy.)

Competition authorities in the US and EU have asked SSOs to reconsider policies to reduce ambiguity in the context of these areas of misunderstanding.

The ex-ante or the incremental value of the SEPs before the standard is set needs to be understood. The SSOs look at several different ways to solve a connectivity problem. The patent owners bring their patents into the standards body and claim that theirs is the best way to solve that problem. The market and consumers want an uncomplicated solution which works and is as cheap as possible. In many cases, there is one single winner, simply because we need one solution. In exchange for being the winner, the FRAND discipline is quid pro quo.

European Commission's response to two different patent lawsuits:

In the Samsung and Motorola cases, the Commission clarifies that in the standardisation context where the SEP holders have committed to:

License their SEPs
Do so on FRAND terms

It is anti-competitive to seek to exclude competitors from the market by seeking injunctions on the basis of SEPs, if the licensee is willing to take a license on FRAND terms.

In other words, if there is a bona fide commitment on the part of the licensee to agree to that test, then it is anti-competitive to seek an injunction.

In these circumstances, the seeking of injunctions can distort licensing negotiations and lead to unfair licensing terms, with a negative impact on consumer choice and prices. -- EU Competition Policy Brief, Issue 8, June 2014.

Anyone who needs access to connectivity or needs interoperability requires to get a SEP license, and if that license is required to be obtained within a time limit, it almost -- by definition -- is not going to work. Patent licenses take years to negotiate, and they're incredibly complex. For example, a patent policy may offer up to 12 months to agree on a license, but that is not the way the market works. So we cannot expect policies that put forth time limits to work in the SEP arena. What we can expect is that the implementers make a bona fide commitment to seek a license.

Motorola vs. Microsoft, Germany:

Motorola sought injunctive relief against Microsoft in Germany. Microsoft moved its distribution centre from Germany to the Netherlands. This resulted in loss of jobs, relocation costs ($11.6 million), and annual increased operating costs of $5 million for Microsoft.

Samsung vs. Apple, Germany

Similarly, on the basis of one patent, a temporary injunction was granted on the sale of the Apple iPad and iPhone. Apple was forced to agree to terms it didn't want to agree to, so that the sale of its products would resume.

This is a very important issue for India as it thinks about how it can attract foreign investments. India has a unique opportunity to learn from these lessons from around the globe and craft India-specific solutions. India has the intellectual capability and the institutions capable of crafting these solutions, and in doing that we can support Make In India.

SEP holders that make FRAND commitments should not be allowed to obtain injunctions against alleged infringers, except in limited circumstances. This formula has been adopted by the IEEE, which has solved this problem. India has the opportunity to leapfrog a lot of patent litigation by adopting the IEEE test.

Learn from what happened with Microsoft in Germany. What kind of message do you want to send to the foreign community about investing in India? Do you want to use the scare tactics of injunctions or do you want to adopt a policy that will avoid litigation?

India needs to be mindful about what is happening in the [South Asian] region. China has moved aggressively to try to curb FRAND abuse. The People's Court in China ruled in Huawei vs. InterDigital that for 2G, 3G, and 4G patents, the license fees of royalties should not exceed 0.019% of the actual sale price.

Reasonable Compensation Considerations

Royalty based on the smallest unit that practices the standard.
Technical value of patented technologies vs. alternatives.
Overall royalty that could reasonably charged for all SEPs.

Non-discrimination

A commitment to license every implementer of the relevant standard.

Transfer

FRAND commitments follow the transfer of a patent to subsequent proprietors.

Dr. Krishna Sirohi, Impact Innovator, GISFI, President, I2TB

As per the Make in India programme, we have to achieve zero imports by 2020. Product development in India by Indian companies will happen with collaborative research and development and IPR sharing through licenses. We are looking at national capacity building through product development and patent uses.

Global Information and Communication Technology Forum for India (GISFI) is a standards setting body involved with standardisation and research. It is a telecommunications standards development body (TSDO) set up with the approval of the DoT. It has peer relationships with ITU, OMA, TTC and a bunch of other SDOs. Internet of Things (IoT), mobility and security are its three major research programmes.

GISFI is working towards defining 5G in India. The 5G standardisation theme in India is called WISDOM (Wireless Innovative System for Dynamic Operating Mega Communications). GISFI is considering the perspective of the Indian user, the network capability, the network architecture, network development and the Indian revenue model, strategic and special purpose networks, inclusive growth, and network security.

However, some India-specific aspects such as illiteracy and lack of basic civic infrastructure need to be considered in the standardisation process.

GISFI plans and stages for 5G definition and adoption

Stage 1 (2014-2018): National agenda for strategic research, innovation and experimentation

Focus on Digital India and Make in India programmes.

Stage 2 (2016-2019): Standardisation

Stage 3 (2017-2021): Product Development

Stage 4 (2019-2023): Early Development

Technical understanding required for IPR issues

Enhancement applicable to general scenarios
- Traffic capacity
- Cell coverage
- Edge cell performance
- Intercell interference
- Network congestion
- Mobility
- Energy consumption
Enhancements targeting new use cases
- machine-type communication
- national security
- public safety services
Carrier aggregation
- Higher throughput owing to intra and inter-band transmission bandwidth of more than 20 MHz.
- Reduced network congestion owing to load-balancing across multiple carriers.
- Improvement in mobility and reduction in inter-cell interference.
Enhanced MIMO
- Improved spatial diversity and multiplexing
- Improved beam-forming
- Multiple access with multi-antenna transmission
Coordinated Multi-Point Operation (CoMP)
- Reduction in intercell interference owing to coordinated scheduling or beamforming (CS/CB)
- Transmission from multiple distribution points (base stations, RRH) in a coordinated way (Dynamic point selection, and Joint transmission)

What do SSOs handle IPR in different parts of the world and what are the issues they face?

GISFI has adopted ITU's IPR policy.

In SSOs, the FRAND principle works well only when participating entities have equal or almost equal IPR clout, and can reciprocate with their own patents every time other entities share their patents. It is difficult to create a balance between entities that only own IPR and those that only consume IPR.

Most of the members of SSOs are IPR owners. The entities that develop [technological] solutions without owning the IPRs are usually not a part of SSOs. However, additional strategies need to be implemented for realising the "Make in India" goal. The goal of zero imports by 2020 can only be achieved if a large number of small companies use these standards to develop products locally. So small manufacturers should be represented even at the highest levels of the standards development body. An IPR policy should be defined/ modified to factor in these needs.

Evaluation of LTE essential patents declared by ETSI

Cyber Creative Institute, June 2013: http://www.cybersoken.com/research/pdf/lte03EN.pdf

A large number of LTE patents are held by a handful of companies. There is no Indian owner of any LTE SEP.

Ericsson sued Apple in the US over infringement of its LTE patents. As of January 2015, Apple countersued Ericsson in a federal court in California and claimed that it did not owe any royalties to the latter.

Apple also stated that Ericsson was calculating royalties on the sale price of the iPhone or iPad, whereas the royalty should be calculated on the value of the baseband chip that runs this technology in the mobile device. If such litigation occurs in India, what would be India's position? If a building block contains the technology pertaining to a patent, then royalty should be calculated on the smallest possible patent practising unit and not the entire product.

Dr. Kumar N. Shivarajan, CTO, Tejas Networks

TSDSI's (Telecommunications Standards Development Society of India) IPR policy states that a member's technology will become a part of a standard as long as the member licenses it on FRAND terms to other members.

By 2017, 70% of the global equipment spend will be on LTE.
TD-LTE subscriber base in India has been projected to reach 67 million by 2017.
Most of the data connections in India are still on 2.5G.
Smartphones have become affordable but 3G continues to languish in India; 4G yet to take off.
The number of 3G connections in India grew from 30 million to 33 million from 2013 to 2014.

Is 5G the answer to India's access problems?

The mobile industry is aiming to go beyond traditional 4G LTE in 2015 and there is increasing focus on adding new bells and whistles to 4G and realise 4G+.

LTE Licensed-assisted access (formerly LTE-Unlicensed)
LTE Direct/ Peer-to-peer
LTE-M for machine to machine communication
CoMP

Countries forming 5G groups to take an early lead:

China: IMT-2020 (5G) Promotion Group
Korea: 5G Forum
EU: 5G Public Private Partnership (5G-PPP)

5G in its current form is souped-up 4G.

Key India-specific requirements for 5G standard development

5G must factor in the Indian requirement for DSL-like connectivity: Always ON, low latency, affordable cost
To minimise costs, 5G must minimise the use of BTS sites and focus on spectral efficiency.
5G should allow virtual network operations enabling multiple operators to use the same physical network infrastructure.
5G must work well in Indian propagation environments: concrete buildings blocking signals, dense barriers.
5G infrastructure should be green as electricity shortfall is a problem. India has 400,000 cell towers. 10% of them are not connected to the electricity grid. More than 70% experience power outages longer than 8 hours per day, and work on diesel-powered generators. As a result, 25% of the operational costs of telcos are their energy bills. India imports 3 billion litres of diesel annually to run these cell sites.

India can try to get a headstart in owning the IPR that would eventually go into the 5G standard.

Prof. Ramakrishna, MHRD Chair, NLSIU, Bengaluru

The attitude of an SSO towards patented technology determines the objective of its IPR policy. For example, an SSO may want to:

Promote widespread implementation of a standard without unnecessary IPR implications.
Ensure transparency and certainty about the declaration of patents and patents' claims as SEPs.
Ensure that every patented technology is available at a reasonable fee, comparable to the value of the technology.

What happens when IP ownership is transferred to another owner? It continues to be a part of the SSO but things get complicated.

New owners, third parties, subsidiaries, and affiliates fall under the purview of the IPR policy, by extension.

IP and Disclosure policies of Indian SDOs

BIS (Bureau of Indian Standards) and TEC (Telecommunication Engineering Centre) do not have IP policies of their own. TEC refers to the ISO/IEC IP policies wherever the technology is equivalent or the same.
GISFI disclosure requirement: Each member is required to inform GISFI in a timely manner of essential IPRs. But members are not under any obligation to conduct IP searches. GISFI's IPR policy is based on that of ETSI.
DOSTI (Development Organization of Standards for Telecommunications in India) is not functional.

IPR policy for open standards in e-governance

The government of India has adopted a royalty free (RF) approach to licensing open standards.

Mandatory Characteristics of Open Standards:

The patent claims necessary to implement the standard should be made available royalty free for the lifetime of the standard.
The standard shall be adapted and maintained by a not-for-profit organisation.
The standard shall have a technology-neutral specification.

The RF approach and the maintenance by a non-profit may be a disincentive for IP owners.

IEEE patent policy:

IEEE invites participants to disclose patent claims essential to a standard under development. Upon disclosure, the patent holder needs to submit a letter of assurance that states:

License(s) will be made available without compensation or at a RAND rate.
A commitment to enforce the essential patent claims against any entity complying with the standard.
Or state its unwillingness or inability to license its essential patent claims.

Common patent policy for ITU-T/ ITU-R/ ISO/ IEC

Recommendations/ deliverables are non-binding -- ensure compatibility of technologies and systems on a worldwide basis.

The "code of practice":

It is desirable that the fullest available information should be disclosed although ITU, ISO or IEC are unable to verify the validity of any such information.

Major types of IPR policies:

Participation-based IPR policies

These are common in small, informal bodies such as consortia.
Members are bound by the terms of membership to commit to licensing SEPs on RAND or RF terms.
SEP holders notify the standards body in case RAND or RF licenses are not available after the draft standard has been published.

Commitment-based IPR policies
- These are commonly followed large, standards setting bodies.
- These bodies identify SEPs to a draft standard through disclosure and submission of licensing commitment.
- Parties may seek alternative solutions or work on a withdrawn standard is the the alternative solutions don't work out.

Basic building blocks of commitment-based IPR policies

Disclosure policies:

Disclosure is important for
- sending requests to SEP holders to make licensing commitments
- ensuring that experts' groups make informed decisions on inclusion of patented technologies
- providing information to prospective standards implementers about the SEP owners

Two forms of disclosure:

A call for patents is made at the start of meetings. This is more informational than binding.
Later, the member states its intentions regarding licensing the patent on RAND terms.

How disclosure obligations arise (and commitments are binding):

IEEE has by-laws that are binding on members.
ITU, IEC, and ISO: It is via a resolution or recommendation.

(Indicative list)

General disclosure procedure:

The nature of disclosure rules concerning self-owned patents depends on the status or the role of the entity.

A "submitter" is a participant in the working group making a conscious decision to submit its technology to the SSO for a license or free of royalty.
A participant in a working group may submit its technology to the SSO free of royalty, on RAND terms, on RAND terms with the right to charge a fee, or with a refusal to license it. (A working group participant who discloses technology is usually a technology expert. When someone who does not have adequate knowledge of patents discloses technology, it has complicated implications.)
A non-working group participant (third-party) may also submit its technology.

ANSI has left it to the accredited SSO to decide the terms of disclosure for participants of working groups. It has not laid out a policy in this regard. Other organisations have laid out obligations on the submitter to disclose SEPs.

Nature of disclosure terms for patents owned by third-parties:

ETSI: It is obligatory.

ITU/ ISO: Obligatory only for participants of the working groups.

IEEE: Entirely voluntary

Non-essential claims are excluded from disclosure. Pending patent applications are not.

Working groups prefer early disclosure so that they may adopt or discard the claim as early as possible in the standard setting process.

ITU: Disclosure from the outset

IEEE: During meetings of the working group

ETSI: "Timely manner"

AFSI: At a sufficiently mature level

There is no mandate for updating the disclosure in case a standard evolves.

Most SSOs make disclosed patents public. Failure to disclose patents may result in accusations of abuse of monopoly or anti-trust/ anti-competitive activities.

It is difficult to identify all potentially essential patents due to the complexity of specifications.

Some SSOs don't require IP disclosure at all. The obligations to license on FRAND terms would be sufficient.

Only 16% patents declared as SEPs are actually SEPs, according to a study.

It makes sense for rightsholders to go for blanket disclosures instead of disclosure of specific patents.

Vinod Dhall, ex-chairperson of the Competition Commission of India (CCI):

Our competition law is new, so there aren't any cases pertaining to patent litigation and involving the competition law, which we can treat as precedents. In one of the mobile phone patent litigation cases in India, the implementer has approached the CCI claiming that the licensor has been abusing its dominant position in the market by charging unreasonable royalties.

The Delhi High Court has passed interim orders restraining the CCI from deciding these cases. Our appeal to the courts is that these patent infringement lawsuits should not be viewed in isolation. They should not be viewed as merely contractual issues between the licensor and the licensee. They should be seen in the context of their economic effects and their adverse effect on competition. The CCI should be enabled to deal with such cases.

Questions-answers round:

What are the criteria for declaring a patent an SEP?

T. Ramakrishnan: SSOs have no role in declaring that a patent is an SEP. The SEP holder declares that their patent is essential to a technical standard. Most of the time, the SEP may turn out to be a non-SEP at a later stage. Statistically, 16 out 100 claimed SEPs are actually SEPs. There is no way for SSOs to tell if a patent is an SEP. IP policies of most SSOs state that they don't search [if a patent is an SEP]. The members of SSOs are under no obligation to search.

The commitment to license an SEP on FRAND terms is more important to an SSO [than determining if the patent is indeed an SEP].

Can compulsory licensing be implemented with government intervention in India so that the Central Government can fix a royalty and put an end to patent litigation?

Matheson: The phrase "compulsory license" sends a shiver down every corporate's spine every time it is used. International experience is that the judicial system has been the only forum where we have been able to have due process to enable us to construct cases properly in order to explain to the judge or to the jurors how the system works. That has produced very sensible solutions to this problem. Handing it off to the government to institute a compulsory license wouldn't be fair to the SEP holders.

With respect to the "safe harbour" approach towards SEP-based injunctions, what does the licensee need to do to prove to the courts that it is a willing licensee, in the event that licensing negotiations fail or take a long time?

Matheson: It gets down to the licensee showing its willingness to negotiate. The licensee cannot make a half-hearted attempt and decline to negotiate or decline the licensor's offer and then disappear. They should physically engage in the negotiation. If and when it gets to a judicial environment, the judges know when people are telling stories and when parties are bona fide. They can tell a ruse when they see one, and I think it is one of the things you observe in practice.

Ramakrishnan: The licensee should be able to demonstrate that it is willing to pay the royalty and should deposit an amount towards royalty. One recommendation from AIPP states that instead of using the terms "willing licensee" and "willing licensor", use "good faith response". For "good faith" we have very well established criteria. The entire licensing process should end within 12 months of starting. If the negotiations fail or if the process takes longer, then they should agree upon an arbitrator to fix FRAND terms. These are indicators that demonstrate the licensee being a "willing licensee" or a "good faith" licensee.

Often technology changes before the legal action can be taken or the lawsuit completed, and the patent over which litigation has happened may no longer be relevant to the technology. How do patent holders deal with this situation?

S.K. Murthy, Research Scholar, NLSIU: Even if the technology becomes obsolete, damages can be claimed retrospectively.

Matheson: You have a commitment to a FRAND solution, so that when you enter the protracted negotiation, you know that at the end of it you will get a fair solution. That's not always the case when you are dealing outside the FRAND world. You're dealing with a FRAND incumbent, not with unlicensed patents.

Why is putting a time limit to negotiations not a good idea? Also, IEEE seems to have done well by taking the threat of negotiations out of its way. Is it practical in India, because injunction is still the most potent weapon to protect intellectual property rights in India currently?

Matheson: Licensing is incredibly complex. There can be claims to the validity of the patent, there are claim charts to be drawn, there is expert evidence to be put together. Litigation over patents can take 2 to 3 years. To say that there must be a solution [arrived at] within a smaller framework gives the licensor the opportunity to wait around till the end of that period and assert its patents through an injunction. If you're leaving injunction at the table, you will not have a fair solution. The licensee will always be at a major disadvantage. The IEEE solution is a good one because it has taken the time limit away, but at the same time the policies that would adopt that solution need to include the discipline to ensure that the negotiations are bona fide.

What percentage of the sale price should be provisioned by a product developer for royalties? Can a mechanism be drawn up for this purpose?

Justice Ratnakala: Definitely. Such a mechanism should be drawn up in the near future.

For more details visit https://cis-india.org/a2k/blogs/conference-on-standards-settings-organizations-sso-and-frand-nlsiu

Compilation of Mobile Phone Patent Litigation Cases in India

rohini — 2018-02-08T14:41:17Z

This working paper is an attempt to chronicle information about big-ticket lawsuits pertaining to mobile technology patents filed in India. All information presented in this paper has been gathered from publicly available sources. Interns Nayana Dasgupta, Sampada Nayak and Suchisubhra Sarkar (in alphabetical order) provided invaluable research assistance. This paper was first published as a blog post on the CIS website on March 15, 2015. It was periodically updated till October 31, 2017 to reflect new developments in the different lawsuits at the Delhi High Court and the cases with the Competition Commission of India.

Abstract

Nearly three years after litigation over patents and designs associated with big-ticket mobile technology started in the US, the first salvo in the patent wars was fired in India. Sweden-based Ericsson, a provider of communications infrastructure and services, sued home-grown budget smartphone manufacturer Micromax in early 2013. Patent litigation in the arena of mobile phone technology has steadily risen since. Lei Jun, the chairman of China's largest smartphone manufacturer Xiaomi has said that facing a patent lawsuit "can be considered a rite of passage for a company that is coming of age". This paper is an attempt to chronicle lawsuits pertaining to mobile technology patents filed in India. The first part of this paper, “Compilation of lawsuits” is an attempt to chronicle the significant developments in big-ticket lawsuits pertaining to mobile technology patents filed in India. The second part, “Commonalities and differences in the lawsuits” is an attempt to join the dots between the developments that were either remarkably common or notably different. All information presented in this paper has been gathered from publicly available sources and is up-to-date till the time of writing (October 31, 2017). This paper has been published as a part of the Pervasive Technologies project at the Centre for Internet and Society (CIS).

View paper on SSRN.

Access the court orders and other references in the paper.

Edit logs

Edited, April 2, 2015: To add section "6. Vringo vs. ZTE"

Edited, April 3, 2015: To add section "7. Vringo vs. Asus"

Edited, October 23, 2015: To add sections "8. Ericsson vs. iBall", "9. Ericsson vs. Competition Commission of India", "10. Ericsson vs. Lava". To update "Ericsson vs. Micromax" from “Micromax has challenged……”

Edited, April 15, 2016: To update "9. Ericsson vs Competition Commission of India... In a judgement dated March 30, 2016, the court dismissed all the writ petitions and applications pertaining to the role of the CCI before it and made these observations..."; "8. Ericsson vs iBall"; "10. Ericsson vs. Lava"; and "6. Vringo vs. ZTE".

Edited, April 29, 2016: To update "Ericsson vs. Xiaomi...On April 22, 2016, the Delhi High Court vacated the interim order passed in December 2014..."

Edited, January 13, 2017: To update "Ericsson vs. Gionee... In July 2014..."

Edited, February 8, 2018: To upload copy of working paper.

For more details visit https://cis-india.org/a2k/blogs/compilation-of-mobile-phone-patent-litigation-cases-in-india