Centre for Internet and Society

Working Requirements for Complex Products under the Indian Patent System

rohini — 2017-08-04T01:38:38Z

For more details visit https://cis-india.org/a2k/files/working-requirements-for-complex-products-under-the-indian-patent-system

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

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

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.]

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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.]

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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.

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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)

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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

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

RTI request to Indian Patents Office for Form 27 (Statement of Working of patents), March 2016

rohini — 2017-10-13T04:35:46Z

The Centre for Internet and Society filed this request under the Right to Information Act in March 2016 as part of research for the paper: Patent Working Requirements and Complex Products: An Empirical Assessment of India's Form 27 Practice and Compliance (July 2017). We sought forms pertaining to 61 of the patents found in our patent landscaping study. These forms were not available on the online public databases, InPASS and IPAIRS, at the time of the filing the RTI request. Research assistance was provided by intern Shreshth Wadhwa.

Patent Working Requirements and Complex Products: An Empirical Assessment of India's Form 27 Practice and Compliance (July 2017)

Patent landscaping study -- Patents and Mobile Devices in India: An Empirical Survey (April 2016)

We filed our first application under the RTI Act with the Controller General of Patents, Designs and Trade Marks in Mumbai in June 2015 for procuring Form 27 not available through their online databases, but received a generic response about how to download Form 27 from the online databases. The IPO also stated, “The desired information relates to about 1700 patents for all the years, to supply and trace out the information physical form requires huge humane resource and need to divert the office staff for some days which would hampers the day-todays- official work therefore, the information is proactively disclosed in the office website for the public”. (View the application and response here)

In view of this response, we filed another RTI application with the same office in March 2016, and restricted the number of patents to 61. The patents represent a cross-section of owners in our landscaping study. (View methodology). We also stated in the RTI request that we had already searched the online databases for the forms and did not find any. The IPO replied in April 2016 that it could provide CIS with forms for eleven of the requested patents. As for the rest of the forms, the IPO stated, “As thousand of Form-27 are filed in this office, it is very difficult to segregate Form-27 for the patent numbers enlisted in your RTI application as it needs diversion of huge official/ staff manpower and it will affect day to day work of this office.”

A few days after CIS received the reply from the IPO, Form 27 pertaining to patents in the landscape happened to start appearing on InPASS and IPAIRS E-register portal.

Text of the application and the IPO’s response

(View a scanned copy of the application here and of the response here)

11 March 2016

Central Public Information Officer

Office of the Controller General of Patents, Designs, and Trade Marks

Boudhik Sampada Bhawan

Near Antop Hill Post Office, S.M. Road,

Antop Hill, Mumbai - 400037

Dear Sir/ Madam,

Subject: Request for information under section 6 of the Right To Information Act, 2005; regarding Form 27 submissions for patents

Full name of the applicant: Ajoy Kumar
Address of the applicant: 194, 2^nd C Cross, Domlur 2^nd stage, Bangalore 560071
Details of the information required: Please consider this an application under Section 6 of the Right To Information Act, 2005. This is an application for three pieces of information.

Firstly, you are requested to provide us with the Form 27 submissions for all the following patents for all the years for which they are available.

Secondly, we also request a record of all the years for which such Form 27 submissions have not been made for each of the patents listed here.

In the event that you do not possess these documents, please transfer this application to the concerned authority within five days of its receipt and inform us of the same; as mandated under Section 6(3) of the Act.

Patent Numbers:

264868
264414
218424
236178
250862
264266
263473
264878
264343
257411
263618
258568
264451
222947
263817
258983
196731
256864
262863
264764
259008
196474
264532
265027
258788
248749
259831
265788
214641
252360
250406
209397
226831
235014
229789
265069
220354
254083
264352
231642
258698
261503
241959
214988
237117
264824
263358
235688
251240
236556
203034
203036
234157
203686
213723
229632
240471
241747
223183
243980
200572

I submit that I have searched for copies of Form 27 filings of the above patents on the online portals of the Indian Patent Office, including the IPAIRS search engine and INPASS. As the search results did not yield the Form 27 documents, I am making this request under the Right To Information Act. Screenshots of three instances in which Form 27 was not found are attached in Annexure I. The respective patent numbers are mentioned along with the screenshots.

[Annexure I]

****************************************************************************************

Response from the IPO (reproduced verbatim)

Government of India

Patent Office, Boudhik Sampada Bhavan

S.M. Road, Near Post Office,

Antop Hill, Mumbai 400037, India

Email: mumbai-patent@nic.in

Website: www.ipindia.nic.in

Letter No: RTI/ 03

06/04/2016

To,

Shri Ajoy Kumar,

194, 2^nd C Cross,

Domlur 2^nd Stage

Bangalore - 560071

Sub: Supply of information sought under RTI Act, 2005 - reg.

Sir,

With reference to your application under the Right to Information Act, 2005 dated 16/03/2016 in this regard the detailed parawise information as follows.

As thousand of Form-27 are filed in this office, it is very difficult to segregate Form-27 for the patent numbers enlisted in your RTI application as it needs diversion of huge official/ staff manpower and it will affect day to day work of this office.
It is difficult to create such a record for the Patent numbers; you have listed for the same reason given above.

However, copies of Form 27 for Patent nos. 222947, 259008, 258788, 250406, 235014, 203034, 203036, 234157, 203686, 213723, 240471 could be made available to you on paying prescribed copying charges of Rs. 480/- (120 x 4 = 480/-)

Yours faithfully,

Dr. Ujjwala Haldankar

Assistant Controller of Patents and Designs & Central Public Information Officer

For more details visit https://cis-india.org/a2k/blogs/rti-request-to-indian-patents-office-for-form-27-statement-of-working-of-patents-march-2016

RTI request to Indian Patents Office for Form 27 (Statement of Working of patents), 2015

rohini — 2017-10-13T04:37:13Z

The Centre for Internet and Society filed this request under the Right to Information Act in 2015 as part of research for the paper: Patent Working Requirements and Complex Products: An Empirical Assessment of India's Form 27 Practice and Compliance (July 2017). We sought Form 27 (also known as Statements of Working) pertaining to randomly selected patents found in our patent landscaping study. These forms were not available on the online public databases, InPASS and IPAIRS, at the time of the filing the RTI request. Research assistance was provided by intern Nayana Dasgupta.

Patent Working Requirements and Complex Products: An Empirical Assessment of India's Form 27 Practice and Compliance (July 2017)

Patent landscaping study -- Patents and Mobile Devices in India: An Empirical Survey (April 2016)

This was our first RTI request filed with the Controller General of Patents, Designs and Trade Marks for the research on practices and compliance of patent holders to the Form 27 requirement. The response contained generic instructions about how to download Form 27 from the publicly-accessible online databases. The IPO also stated that, “The desired information relates to about 1700 patents for all the years, to supply and trace out the information physical form requires huge humane resource and need to divert the office staff for some days which would hampers the day-todays- official work therefore, the information is proactively disclosed in the office website for the public”.

We subsequently filed another RTI request with the Indian Patents Office while limiting the number of patents to 61. (View the application and response here).

Text of the application and IPO's response

(View a scanned copy of the application here and the response here)

10 June 2015

To
Central Public Information Officer
Office of the Controller General of Patents, Designs, and Trade Marks
Boudhik Sampada Bhawan
Near Antop Hill Post Office, S.M. Road,
Antop Hill, Mumbai - 400037

Dear Sir/ Madam,

Subject: Request for information under section 6 of the Right To Information Act, 2005; regarding Form 27 submissions for patents

Full name of the applicant: Ajoy Kumar
Address of the applicant: 194, 2^nd C Cross, Domlur 2^nd stage, Bangalore 560071
Details of the information required: Please consider this an application under Section 6 of the Right To Information Act, 2005. This is an application for three pieces of information.

Firstly, you are requested to provide us with the Form 27 submissions for all the following patents for all the years for which they are available.

Secondly, we also request a record of all the years for which such Form 27 submissions have not been made for each of the patents listed here.

Thirdly, we request a record of all the patents among those listed here which do not have a single Form 27 submission from the year of application/ grant.

[List of patent numbers]

*************************************************************

Response from the IPO (reproduced verbatim)

Government of India

Patent Office, Boudhik Sampada Bhavan

S.M. Road, Near Post Office,

Antop Hill, Mumbai 400037, India

Email: mumbai-patent@nic.in

Website: www.ipindia.nic.in

No. RTI/Mum/38

Date: 17/06/2015

To,

Shri Ajoy Kumar,

194, 2^nd C Cross,

Domlur 2^nd Stage

Bangalore - 56007

Sub: Supply of information sought under RTI Act - reg.

Sir,

With reference to your application under RTI, dated 15.06.2015, wherein the information sought for form 27 details (commercial working of patent) for all the years for about 1700 patents application.

Reply:

a) The requested information can be had from the office website for the filing of form 27 www.ipindia.nic.in,, go to http;//ipindiaservices.in/workingofpatents/

b) Pelase see the print screen from where one can access the desired information

[Screenshot from ipindiaservices.gov.in/workingofpatents]

c) Or the desired information also can be obtained under section 153, Rule.27 of the patents Act and Rules, as the information can be inspected the physical records under the Act.

d) The desired information relates to about 1700 patents for all the years, to supply and trace out the information physical form requires huge humane resource and need to divert the office staff for some days which would hampers the day-todays- official work therefore, the information is proactively disclosed in the office website for the public.

[Screenshots from ipindiaservices.gov.in/workingofpatents]

Thanking you,

Yours faithfully

(N. Ramchander)

Astt. Controller of Patents & Designs

& CPIO, Patent Office, Mumbai

For more details visit https://cis-india.org/a2k/blogs/rti-request-to-indian-patents-office-for-form-27-statement-of-working-of-patents-2015

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

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

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

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

Patent Working Requirements and Complex Products: An Empirical Assessment of India's Form 27 Practice and Compliance

rohini — 2017-10-13T04:32:49Z

India requires every patentee to file an annual statement, also known as “Form 27”, describing the working of each of its issued Indian patents. If a patent is not locally worked within three years of its issuance, any person may request a compulsory license, and if the patent is not adequately worked within two years of the grant of such a compulsory license, it may be revoked. The research paper on Form 27 practices and compliance by patentees authored by Prof Jorge L. Contreras, University of Utah, and Rohini Lakshané, Centre for Internet and Society has been accepted for publication in the NYU Journal of Intellectual Property and Entertainment Law.

The research paper by Prof Jorge L. Contreras, University of Utah, and Rohini Lakshané, Centre for Internet and Society was published on SSRN on July 17, 2017. The paper has been accepted for publication in the NYU Journal of Intellectual Property and Entertainment Law.

The potency of India’s patent working requirement was demonstrated by the 2012 issuance of a compulsory license for Bayer’s patented drug Nexavar. In order to provide the public with information about patent working, India requires every patentee to file an annual statement on “Form 27” describing the working of each of its issued Indian patents.

We conducted the first comprehensive and systematic study of all Forms 27 filed with respect to a key industry sector: mobile devices. We obtained from public online records 4,916 valid Forms 27, corresponding to 3,126 mobile device patents. These represented only 20.1% of all Forms 27 that should have been filed and corresponded to only 72.5% of all mobile device patents for which Forms 27 should have been filed. Forms 27 were missing for almost all patentees, and even among Forms 27 that were obtained, almost none contained useful information regarding the working of the subject patents or fully complying with the informational requirements of the Indian Patent Rules. Patentees adopted drastically different positions regarding the definition of patent working, while several significant patentees claimed that they or their patent portfolios were simply too large to enable the reporting of required information. Many patentees simply omitted required descriptive information from their Forms without explanation.

The Indian government has made little or no effort to monitor or police compliance with Form 27 filings, undoubtedly leading to significant non-compliance. However, some of the complaints raised by patentees and industry observers may have merit. Namely, that patents covering complex, multi-component products that embody dozens of technical standards and thousands of patents are not necessarily amenable to the individual-level data requested by Form 27. We hope that this study will contribute to the ongoing conversation in India regarding the most appropriate means for collecting and disseminating information regarding the working of patents.

Download the Paper

For more details visit https://cis-india.org/a2k/blogs/patent-working-requirements-and-complex-products-an-empirical-assessment-of-indias-form-27-practice-and-compliance

Open Letter to Prime Minister Modi

rohini — 2016-02-14T04:39:01Z

After the government introduced the "Make in India" and "Digital India" programmes, the air is thick with the promise of reduced imports, new jobs, and goods for the domestic market. In light of the patent wars in India, the government can ill-afford to overlook the patent implications in indigenously manufactured mobile phones. CIS proposes that the Government of India initiate the formation of a patent pool of critical mobile technologies and a five percent compulsory license.

The blog post was re-published by Medianama on March 24, 2015.

Honourable Prime Minister Shri Narendra Modi,

We at the Centre for Internet and Society support the "Make in India" and "Digital India" initiatives of the Indian government and share your vision of a digitally empowered India where “1.2 billion connected Indians drive innovation”, where “access to information knows no barriers”, and where knowledge is the citizens’ power. The government’s plan of incentivising the manufacturing of electronics hardware, including that of mobile phones in the 2015 Union Budget is equally encouraging. Towards this important goal of nation building, the Centre for Internet and Society is researching the patent and copyright implications of Internet-enabled mobile devices that are sold in the Indian market for Rs 6,000 or less.

Bolstered by Make in India, several mobile phone manufacturers have started or ramped up their manufacturing facilities in India. Homegrown brands — such as Spice, Maxx Mobile and Lava — and foreign manufacturers alike are making humongous investments in mobile phone plants. Chip manufacturer Mediatek; one of the newest entrants in the Indian smartphone market, Xiaomi; and telecom company Huawei, all different links in the mobile phone manufacturing chain, are setting up research and development units in India having recognised its potential as a significant market. These developments promise to cut or substitute imports, cater to the domestic market, create millions of jobs, and stem the outflow of money from India.

However, mobile phone manufacturers, big and small, have also been embroiled in litigation in India for the past few years over patents pertaining to crucial technologies. Micromax, one of the several Indian mobile phone manufacturers with original equipment manufacturers in China was ordered by the Delhi High Court late last year to pay a substantial 1.25 to 2 per cent of the selling price of its devices to Ericsson, which has claimed infringement of eight of its standard essential patents. Intex and Lava, two members of Micromax’s ilk, have been similarly sued and claim to have received the short end of the stick in the form of unreasonable and exorbitant compensations and royalty rates. Chinese budget phone manufacturers operating in India — Xiaomi, OnePlus, and Gionee — also have come under the sledgehammer of sudden suspension of the sale of their devices. The bigger companies such as Asus, Samsung and ZTE have faced the heat of patent litigation as well.

The fear of litigation over patent infringement could thwart local innovation. Additionally, the expenses incurred due to litigation and compensation could lead to the smaller manufacturers shutting shop or passing on their losses to their consumers, and in turn, driving the price points of Internet-enabled mobile devices out of the reach of many. It could also become a stumbling block to the success of ambitious plans of the government, such as the one to provide free WiFi in 2,500 cities and towns across India.

We propose that the Government of India initiate the formation of a patent pool of critical mobile technologies and mandate a five percent compulsory license. Such a pool would possibly avert patent disputes by ensuring that the owners' rights are not infringed on, that budget manufacturers are not put out of business owing to patent feuds, and that consumers continue to get access to inexpensive mobile devices. Several countries including the United States regularly issue compulsory licenses on patents in the pharmaceutical, medical, defence, software, and engineering domains for reasons of public policy, or to thwart or correct anti-competitive practices.[1] [2] Unfortunately, we did not receive a response from the previous government to our suggestion of establishing such a patent pool. We believe that our proposal falls in line with your ambitious programmes designed to work towards your vision of India, and we hope that you would consider it.

Yours truly,
Rohini Lakshané,
Programme Officer,
The Centre for Internet and Society

Copies to:

Shri Arun Jaitley, Minister for Finance
Shri Rajiv Mehrishi, Secretary to Ministry of Finance
Smt. Smriti Zubin Irani, Minister for Human Resource Development
Shri Satyanarayan Mohanty, Secretary to Ministry of Human Resources Development
Smt. Nirmala Sitharaman, Minister for Commerce and Industry
Shri Amitabh Kant, Secretary to Department of Industrial Policy and Promotion
Shri Ravi Shankar Prasad, Minister for Communication and Information Technology
Shri Rakesh Garg, Secretary to Department of Telecommunications
Shri R. S. Sharma, Secretary for Department of Electronics and Information Technology

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

[1]. James Love, Knowledge Ecology International (KEI) written comments and notice of intent to testify at the Special 301 Public Hearing, Page 6, "US use of compulsory licensing",http://keionline.org/sites/default/files/KEI_2014_Special301_7Feb20014_FRComments.pdf, February 7, 2014, Last accessed February 10, 2015.

[2]. Colleen Chien, Cheap Drugs at What Price to Innovation, Does the Compulsory Licensing of Pharmaceuticals Hurt Innovation, Berkeley Technology Law Journal, Volume 18, Issue 3, Article 3, Page 862, "Compulsory licensing in the United States", http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1429&context=btlj, June 2003, Last accessed February 10, 2015.

For more details visit https://cis-india.org/a2k/blogs/open-letter-to-prime-minister-modi

Methodology: Statements of Working (Form 27) of Indian Mobile Device Patents

rohini — 2017-09-10T15:19:51Z

In India, if a patent is not locally worked within three years of its issuance, any person may request a compulsory license, and if the patent is not adequately worked within two years of the grant of such a compulsory license, it may be revoked. In order to provide the public with information about patent working, India requires every patentee to file an annual statement on “Form 27” describing the working of each of its issued Indian patents. We conducted the first comprehensive and systematic study of all Forms 27 filed with respect to mobile devices. We tried to empirically establish the extent to which patentees and licensees comply with the statutory requirement to declare information about the working of their patents. Research assistance was provided by interns Anna Liz Thomas and Nayana Dasgupta.

The research paper on patent landscape, Patents and Mobile Devices in India: An Empirical Survey, [PDF] was published in the Vanderbilt Journal of Transnational Law (2017).

The research paper on "Patent Working Requirements and Complex Products: An Empirical Assessment of India's Form 27 Practice and Compliance" has been published here (July 2017).

The dataset of all the Form 27 studied for this paper has been published here.

Research Questions

How many annual Form 27 submissions have been made to the Indian Patent Office for 4,419 granted patents identified in the landscape of mobile device patents in India?
How many patents have no corresponding Form 27 filed yet?
How many Form 27 submissions from those found are defective?
Is there an identifiable pattern in the defects and discrepancies?
Is there any discernible trend in filing of Form 27 over time and with respect to patent owners?

The objective of this paper is to quantitatively determine the extent to which patentees and licensees comply with the statutory requirement to declare information about the working of their patents according to Section 146(2) of the Patents Act, 1970 read with Rule 131 of the Patent Rules, 2003.

Section 146(2): Without prejudice to the provisions of sub-section (1), every patentee and every licensee (whether exclusive or otherwise) shall furnish in such manner and form and at such intervals (not being less than six months) as may be prescribed statements as to the extent to which the patented invention has been worked on a commercial scale in India.

Rule 131: Form and manner in which statements required under section 146(2) to be furnished

The statements shall be furnished by every patentee and every licensee under sub-section (2) of section 146 in Form 27 which shall be duly verified by the patentee or the licensee or his authorised agent.
The statements referred to in sub-rule (1) shall be furnished in respect of every calendar year within three months of the end of each year.
The Controller may publish the information received by him under sub-section (1) or sub-section (2) of section 146.

Object

The research object is Form 27 submissions made annually to the Indian Patent Office for the 4,419 granted patents.

4,052 of these patents were identified in the landscape (“the patent landscape”) developed by the Centre for Internet and Society as a part of ongoing research on patents pertaining to sub-USD-100 mobile devices sold in India. The dataset of the patent landscape can be accessed here. Another 367 patents pertaining to mobile technology identified during the landscaping exercise but excluded from it, were added to the initial set of 4,052 patents.

A blank copy of Form 27 is available here. The pro forma is defined as per Schedule II of Patent Rules, 2003.

Research Methods

[Corresponding research questions

How many annual Form 27 submissions have been made to the Indian Patent Office for 4,419 granted patents identified in the landscape of mobile device patents in India?
How many patents have no corresponding Form 27 filed yet?
How many Form 27 submissions from those found are defective?]

Outsourcing the searching of the submitted copies of Form 27 to a contractor

Owing to the repetitive nature of the process for collecting the forms, as well the large scale of the project, the task of searching was outsourced to a contractor. Price quotations were invited from five data entry operators and two firms of patent attorneys. On the basis of the quotation, deliverable time, scope and nature of the results delivered, and quality assurance, the contract was awarded to one firm. The firm offered the best price for a commensurate deliverable time and assured quality of results.

Form 27 retrieval online

Form 27 were searched from IPAIRS (Indian Patent Information Retrieval System) and InPASS (Indian Patent Advanced Search System) public databases of the Indian Patent Office.

InPASS has two features: Application Status and E-Register. We checked both features, in case forms not found through one could be located through the other. We indeed found that, sometimes, the forms not available on E-register could be found through the Application Status table, and vice versa.

Case 1: Accessing form 27 using Application Status tab on INPASS

A search portal is located at ipindiaservices.gov.in/publicsearch.

Enter the patent number in the “Patent Number” search field without the kind codes (IN) and click on “Search”. E.g., for patent number IN263932B, enter ‘263932’ in the “Patent Number” field.
Once the queried patent is displayed, select the “Application Status” tab to access the list of documents that were filed for the requested patent.

In the Application Status tab, scroll down to the bottom to view “Application Status table”. Click on the “View Documents” button to access the list of the documents filed for the queried patent. A pop-up window opens with the results.

In the window, a list of hyperlinks to various documents is displayed. Sometimes Form 27/ working statement is explicitly named so. At other times, it may have a different title. Once you click on the form 27 link, a PDF file opens in a new tab. There may be more than one Form 27 in the list of documents as Form 27 is an annual submission.

Case 2: No record of Form 27 found (Application status tab)

If the form is not present on InPASS, that is, if it has not been uploaded to the website, or if it has not been submitted to the Indian Patent Office (IPO), then it will not be displayed in the list of documents described in Case 1, step 5. Such instances have been logged as “No record found”.

Case 3: Accessing form 27 using E-Register tab on INPASS

At http://ipindiaservices.gov.in/publicsearch, a patent search portal is displayed. Enter the patent number by following the same steps as described in Case 1 until the queried patent is displayed. Select the “E-register” tab to access the e-register data corresponding to the queried patent.

In the “E-register” tab, scroll to the bottom to view the “Information u/s 146” table. The “Information u/s 146” table includes a list of Form 27 filed for the queried patent. As visible in the screenshot below, on clicking the “261762_2015” hyperlink, Form 27 for the queried patent opens. There could be multiple form 27s corresponding to different years.

Case 4: No record of Form 27 found (E-register)

If the form is not present in the E-register, that is, if it has not been uploaded to the website or if it has not been submitted to the IPO, then the E-Register tab displays “Eregister Not Available”.

Case 5: Searching on IPAIRS

Both InPASS and IPAIRS fetch forms from the same URL. However, we observed that one search engine sometimes displays the forms when the other doesn’t. The IPAIRS search engine was used when Form 27 was not found on InPASS.

IPAIRS patent search homepage: http://ipindiaonline.gov.in/patentsearch/search/index.aspx On the home page, in the Application Status tab, enter the full patent application number and CAPTCHA.
A window containing information pertaining to the patent application opens. At the bottom of the window, there is a “View Documents” button.

On clicking on “View Documents”, a new window with list of hyperlinked documents opens as described in Case 1, Step 5.

The URL for the new window displayed via “View Documents” on IPAIRS is the same as the URL displayed via “View Documents” in the “Application Status” tab on InPASS. For example, for patent number 263932, the URL for this window is the same on IPAIRS and InPASS: http://ipindiaonline.gov.in/patentsearch/GrantedSearch/viewdoc.aspx?id=Bx6eZ7YQLgsl3yH1LqKHjg==&loc=wDBSZCsAt7zoiVrqcFJsRw==

Form 27 retrieval via Right To Information (RTI) requests

CIS filed two requests under the RTI Act, 2005 with the Office of the Controller General of Patents, Designs, and Trade Marks in Mumbai.

CIS' RTI application to the Indian Patent Office in Mumbai, March 2016 [PDF]. The IPO's reply, April 2016 [PDF].

(View text: https://cis-india.org/a2k/blogs/rti-request-to-indian-patents-office-for-form-27-statement-of-working-of-patents-march-2016)

CIS' RTI application to the IPO in Mumbai, June 2015 [PDF]. The IPO's reply, June 2015 [PDF].

(View text: https://cis-india.org/a2k/blogs/rti-request-to-indian-patents-office-for-form-27-statement-of-working-of-patents-2015)

InPASS and IPAIRS yielded Form 27 for 1,999 patents out of 4,419. For Form 27 pertaining to 61 of the remaining patents, CIS made a request in March 2016 under the Right to Information Act (2005) to the office of the Indian Patent Office located in Mumbai.

How the 61 patents were chosen
37 of the 50 companies in the patent landscape owned granted patents. We took one patent from each of the 37 companies. [See Annexure 4 (PDF)of Methodology: Patent landscaping in the Indian mobile device market] The remaining were patents litigated in India, as well as patents transferred from one of the companies in the landscape to another.

IPO’s reply to the March 2016 RTI application
The IPO replied in April 2016 that it could provide CIS with forms for eleven of the requested patents. As for the rest of the forms, the IPO stated, “As thousand [sic] of Form-27 are filed in this office, it is very difficult to segregate Form-27 for the patent numbers enlisted in your RTI application as it needs diversion of huge official/ staff manpower and it will affect day to day [sic] work of this office.”

Repeating the Form 27 search online

A few days after CIS received the reply from the IPO, Form 27 pertaining to patents in the landscape started appearing on InPASS and IPAIRS E-register portal. CIS’ contractor repeated the search for forms for all 4,419 patents as some forms filed in 2016 and 2015 were found. Forms for additional 1,003 patents were found, taking the number of patents with at least one corresponding form to 3,002.

Of the 1,417 patents for which forms were not found, 481 are either expired or there is no log corresponding to them in the E-Register.

Schema for the results

Information from the Form 27 was logged into a spreadsheet with the following heads:
Serial Number -- Assignee -- Patent Number -- Status -- Application Date -- Grant Date -- Title -- Application Number -- Form 27 presence -- Multiple Forms -- Number of years -- Year -- If Worked -- Working/ Non-working Status -- Working/ Non-working Information -- Licensing Status -- Licensing Information -- Comments.

Detailed legend and process of logging the results

Assignee: Name of the company that owns the patent. Annexure 4 [PDF] lists 50 companies studied for the patent landscape. 37 of those companies owned patents in India. Thus, the assignee could be one of 37 companies among the 50 in Annexure 4. 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.

Form 27 presence: Whether or not Form 27 was found. Entries in this column are either “Yes” or “No”. If case Form 27 was not found, the subsequent columns are unpopulated.

Multiple Forms: If more than one Form 27 was found, the number of years for which it was found. In some cases, more than one form was found for the same patent for the same year. We have considered these instances as a single form for the same year and noted the defect in the “Comments” column.

Year: The year for which the form was filed. This information was found in #2 of the pro forma of Form 27. In the case of patents with Form 27 filed for more than one year, the entries for different years have been logged into consecutive rows.

If Worked: This information was found in 3(i) of the pro forma. Depending on whether the text of Form 27 states that the patent was “worked” or “not worked”, results have been logged as either “Yes” or “No”. In instances where it is not explicitly stated whether the patent has been worked or not, or where 3(i) is blank, the results are logged as “Not disclosed” with a description of the defect in the “Comments” column.

Working/ Non-working status: Corresponds to 3(i)a in the case of patents stated as “worked” and to 3(i)b in the case of those stated as “not worked”. The results have been marked as:

Description is generic (future use)
Description is generic (present use)
Description is specific
No description

Description is generic (future use): No specific information been provided as required by 3(i)a or 3(i)b. The description indicates that in the future the patentee might “work” or license the patent or do both. E.g: “May be worked in the future depending on the market demand and when technology is mature.”

“We are still assessing the commercial and technological aspects of working of this patent in India and negotiating marketing and distribution of patented product with related parties.”

“Technical developments [sic] are still continuing” or “Negotiations and technical developments [sic] are still continuing”.

Description is generic (present use): No specific information been provided as required by 3(i)a or 3(i)b. The description indicates that the patentee may be “working” the patent. E.g:, “DUE TO THE NATURE OF THE INVENTION, IT IS NOT POSSIBLE TO DETERMINE ACCURATELY WHETHER THE PATENTED INVENTION HAS BEEN WORKED IN INDIA OR NOT. Improvements in the invention are continuing to be made. The Patentee is actively looking for licensees and customers to commercialise the invention in the Indian environment.”

“... This patent is among a large number of patents in the patentee’s complex portfolio which may cover the products services and embedded technologies provided by the patentee or its licensee(s) in India. This patent might worked [sic] in India in some of the patentee(s) existing or future products, services and embedded technologies. Given the extremely Iarge number of patents that may apply to any given product or service of the patentee, it is very difficult to Identify and accurately update which of those patents would apply to the numerous products, services and embedded technologies.”

Description is specific: Specific information has been provided as required in 3(i)a or 3(i)b.

E.g, “Quantum of the patented product-303520 and value of the patented product in INR-2790524299”.

No description: 3(i)a and 3(i)b are blank.

Working/non-working information: Contains the full text of the descriptions mentioned in “Working/non-working status” column. These have been reproduced verbatim from Form 27 filings.

Licensing status: States whether or not the patent has been licensed as per 3(ii) of the pro forma for Form 27. Results are logged as “Yes” (licensed), “No” (no-licensed), “Cross-licensed” and “Not disclosed”.

“Not disclosed” indicates that the response to 3(ii) is either blank or there is an explicit statement that licensing information would not be disclosed on Form 27. E.g: “As all the licenses are confidential in nature, the details pertaining to the same are not being disclosed herein and may be provided to the Patent Office as and when the same is specifically directed by the Patent Office under sealed cover so that such details are not laid open in public domain.”

Licensing information: Contains the full text of the response reproduced verbatim from 3(ii). (Blank fields when there is no text in 3(ii))

For patents marked as licensed, this column contains the names and addresses of licensees and/ or sub-licensees.

For patents marked as not-licensed, this column is either blank or contains statements such as, “Information Not readily available; efforts will be made to collect and submit further information, if asked for.”, “None”, “No licensees”.

For patents marked as “cross-licensed”, the patentee states that it has a cross-licensing agreement with its licensees. E.g: “There is a cross license agreement between <company name> and at least one licensee, giving mutual rights to produce despite monopoly afforded by patents that are hold by any of the companies. There is no information available on whether the technology of said patent is included products sold by such licensee. As all the licenses are confidential in nature, the details pertaining to the same shall be provided under specific directions from the Patent Office.”

Comments: Contains information about defects and notable observations from the Form 27 submissions.

Validation of results

Validation of the results was done via deduplication first and then random sampling of 10% of the results.

Analysis of results

[Corresponding research questions:
4. Is there an identifiable pattern in the defects and discrepancies?
5. Is there any discernible trend in filing of Form 27 over time and with respect to patent owners?]

The results logged into the spreadsheet were analysed to find a pattern in the defects in the submissions. Visualisations will be created, if necessary.

Prior Art

Extraordinary writ petition in the matter of a public interest litigation, filed in the High Court of Delhi, Shamnad Basheer vs Union of India and others, C.M. No. 5590 of 2015 http://spicyip.com/wp-content/uploads/2015/05/FORM-27-WP-1R-copy.pdf

The petitioner(s) “sought to investigate the commercial working of certain patented inventions in India, particularly in relation to three key areas”. One of these areas include telecommunications technology. Para 53 to 58 of the writ elucidate on the petitioners’ observations and findings on “High technology patents and trolls”, while para 59 and 60 refer to the linkage between patents and products. Annexure P-8 of this petition contains copies of Form 27 filed by Ericsson in India. Annexure P-11 contains a “summary of findings of Form 27 investigations conducted by the petitioner”. Annexure P-4 (II. Telecommunications Sector) contains a list of 58 patents pertaining to the telecommunications domain in India. 21 of these are coincide with the patent landscape mentioned in “Research Object”.
Basheer had published a report in 2011 based on the findings of his RTI investigation of Form 27 pertaining to pharmaceutical patents in India. The report titled “RTI Applications and “Working” of Foreign Drugs in India?” is available at: http://www.spicyip.com/docs/Workingpatents.doc The report sheds light on lack of filing, incomplete filing and violation of patent working norms by pharmaceutical companies. He states having encountered difficulties during the RTI process: The RTI process was a very arduous one, with the patent office refusing information or claiming missing files in some cases. We had to resort to the appellate procedure in almost all cases. And in one case concerning the drugs Tarceva and Sutent, both the CPIO (Delhi office) and the appellate authority refused to provide information. We had to then take the matter up directly with Controller General PH Kurian who immediately ordered that the information be provided. Upon his instructions, the information was provided within 24 hours. However, we received this information only on the 4^th of April 2011, more than 6 months since we began the RTI process! (Source: Drug Firms and Patent "Working": Extent of Compliance with Form 27 http://spicyip.com/2011/04/drug-firms-and-patent-working-extent-of.html

Limitations

If Form 27 is not found on InPASS or INPAIRS, it is not possible to determine if the form has not been submitted to the IPO or it has been submitted but the IPO has not uploaded it. There is no publicly available database or log where such information is available.
Technical issues with the IPAIRS website hampered the speed of searching for and downloading Form 27. At the time of trial run in May 2015, the website was not available for nearly a week. Technical issues also lead to conflicting search results on IPAIRS and INPASS at times. For example, the form may be available via one search engine but not via another, even though they are fetched the files from the same database. Runtime errors occur due to browser caching.

Edited, September 10, 2017: To add -- URLs of the research paper on Form 27 published in July 2017, and of the dataset containing raw data, which was published and licensed CC-BY-SA 4.0.

For more details visit https://cis-india.org/a2k/blogs/methodology-statements-of-working-form-27-of-indian-mobile-device-patents

Methodology: Patent Landscaping in the Indian Mobile Device Market

rohini — 2017-02-15T14:05:38Z

Through the patent landscaping exercise, we have identified patents pertaining to Internet-enabled mobile devices sold in India for USD 100 or less. The findings from this exercise are being used to develop legal strategies to reduce patent-based impediments to the widespread and rapid proliferation of this beneficial technology throughout India. The research methodology adopted for the patent landscaping exercise has been delineated here. This document is a work in progress.

1. Research Questions

Are there indications of increasing patent filing over time by the mobile device industry in India?
What patents pertain to capabilities commonly found in networked mobile devices sold in India for USD 100 or less?
What are the existing patent pools for each of the capabilities identified in question 2? What do we know about these patent pools?
Would the existing patent pools be sufficient to ensure that:

consumers continue to have access to inexpensive devices?
manufacturers operating in the budget segment are not snuffed out by patent litigation or do not pass on losses caused by patent litigation to their consumers?
the rights of patent holders are not infringed upon? If not, why?

Which of these patent pools could go into an India-based mobile device patent "pool of pools" formed possibly through government intervention and having a royalty level supportable by the domestic Indian consumer market for mobile devices?
What is the design and manufacturing flow of a finished Internet-enabled low-cost mobile phone sold in India?

2. Objective

The objective of the chapter is to exhaustively determine the number of patents that apply to an Internet-enabled mobile device that costs the equivalent of USD 100 or less in the Indian retail market. The set of patents is restricted to those that apply to technologies which are commonly found in such a device. This set of patents could be included in a patent pool for Indian manufacturers of mobile phones.

3. Object

[2. What patents pertain to capabilities commonly found in networked mobile devices sold in India for USD 100 or less?]

Eight mobile phones [Annexure 1 (PDF)] have been procured for identifying the technical standards implemented in them. These are phones manufactured in China and sold in the white or grey market in India either by Indian brands or by Chinese ones. The research object also includes the Indian patent database, documentation published by standard setting organisations, and the practices of Indian manufacturers of Internet-enabled mobile devices in the sub-USD-100 segment.

3.1. The phones were used to determine “capabilities commonly found in networked mobile devices sold in India for USD 100 or less” as described in research question 2. These capabilities were identified by (a) examining the physical components of the phone, (b) by running emulators which identified details about the hardware, (c) verifying the findings from (a) and (b) with the users' manual, packaging box, or any other documentation published by the manufacturer.

3.2. Criteria for Choosing the Mobile Phones

The handsets cost less than USD 100 (INR 6,000 approximately), connect to the Internet, and are sold in physical Indian markets.
Every handset has at least one feature that differentiates it from the rest of the set. For example, in-built support for multiple Indian languages; 50 kilowatt battery (as published on the carton and battery label); camera with CMOS sensor.
The universal set for the mobile phones of interest for this research can not be defined as the phones are sold in grey or black markets. Catalogues, online listings, company websites, and other documentation for this universal set are not available. Hence, it is not possible to definitively identify mobile phones that are 'representative' of the handsets of interest. Handsets that help one get a richer sense of the population of the sub-USD-100 mobile phone market in India have been chosen.

4. Rationale

Though India has not yet witnessed patent litigation of the same scale as developed countries, litigation over standard essential patents in India has already led to injunctions against nine homegrown and Chinese manufacturers^[1]. The mobile device landscape in India uncovered through this research will be applied to the development of policy recommendations that aim to ensure that consumers continue to have access to inexpensive devices, that manufacturers operating in the budget segment do not end up shutting shop due to patent litigation, and the rights of patent holders are not infringed upon.

5. Research Method

[1. Are there measurable indications of increasing patent filing by the mobile device industry in India?

2. What patents pertain to capabilities commonly found in networked mobile devices sold in India for USD 100 or less?]

Fifty Indian and non-Indian companies most likely to hold telecom-related patents in India were identified by CIS. [Annexure 4]. Two patent searchs firm were contracted the task of searching the database of the Indian Patent Office by the names of the fifty companies for patents granted and applied for.

5.1. Procedure for selecting law firms/ patent attorneys:

Ten law firms and patent search agencies from different parts of India were identified as potential contractors after preliminary meetings with several patent attorneys and representatives of law firms.
Price quotations were invited from the ten organisations after holding one or more meetings with each.
On the basis of the quotation, deliverable time, scope and nature of the results delivered, and quality assurance, the contract was awarded to one firm of patent attorneys (Hourglass Research, Mumbai) and one law firm. The firms offered the best price for a commensurate deliverable time and assured quality of results.

5.2. Patent Firm 1 (Hourglass Research) Search Strategy:

Step 1: A taxonomy that comprehensively covers different technologies implemented in an Internet-enabled mobile phone was drawn up [Annexure 5]. The taxonomy was split into categories (Level 1) and sub-categories (Level 2).

Step 2: The Derwent World Patents Index (DWPI) assigns one or more manual codes (MC) to each patent depending on the technology described by the patent. The patent firm matched manual codes pertaining to mobile technology with categories in the taxonomy. Thus, each manual code corresponded to one or more categories in the taxonomy.

Step 3: Subsequently, search strings [listed in Annexure 6] were used to find published applications as well as granted patents from the Thomson Innovation (TI) database. The search strings comprise permutations and combinations of the manual codes [Annexure 7], fifty assignees , keywords, and IPC classes and sub-classes. The search results were extracted on February 23, 2015. Hence, the patents granted or published till then have been included in the landscape. The start date is January 1, 2000 as the Thomson Innovation Database does not contain earlier records from the Indian Patent Office database.

Step 4: Then, manual codes for each patent in the results were extracted. Each patent was assigned a category corresponding to its manual codes. This automated categorisation was manually reviewed and validated by reading the claims, abstract, DWPI use, and DWPI novelty. In instances where the patent could not be categorised based on the information contained in the claims, abstract, DWPI use, and DWPI novelty, the detailed description associated with the patents (i.e., the column entitled "Description" in the dataset) was read.

Step 5: The TI database yields International Patent Documentation (INPADOC) families. In instances where one or more patents from the same family appeared in the search results, granted patents were chosen over non-granted ones as "representative" of the family.

Step 6: The results were deduplicated first on the basis of the publication number and then on the basis of the application number. In five instances, two or more different patents were assigned the same application number. This was resolved by manually reading the patent and determining the most relevant patent.

4,052 patents and 19,517 patent applications relevant to the mobile phone were found at the end of the patent landscaping exercise.

5.3. Schema for identified patents and patent applications: Name of Assignee -- Patent Number -- Application Number -- Status of application (Granted/ Published) -- Application Date -- Publication Date -- Grant Date -- Database Searched -- Title -- Abstract -- Category (Level 1) -- Sub-category (Level 2) -- Infrastructure/ User Equipment/ both -- Title (DWPI) -- Abstract (DWPI) -- Abstract DWPI Novelty -- Abstract DWPI Use -- Comments/ Remarks

5.4. List of IPC classes and sub-classes and DWPI Manual Codes excluded from the patent search: [Annexure 8], [Rejoinder to Annexure 8]

These classes, sub-classes and manual codes were excluded as they were very overarching for the research question. Class H04, for instance, pertains to "electric communication techniques". It is likely to comprise a comparatively large number of patents not pertaining to mobile device technology. Instead, certain sub-classes of H04 that are the most relevant to mobile device have been considered. As another example, the sub-classes of G01 pertain to measurements of physical quantities (length, area, thickness, et al). The number of patents pertaining to mobile technology in these sub-classes will be small compared with the number of patents in the sub-class.

5.5 Patent Search Firm 2

Patent Search Firm 2 used Questel and Questel Orbit databases to search for patents and patent applications filed in India from January 1, 2005 to January 1, 2015. The results delivered by this firm did not fulfill our quality standards. Hence, they were dropped from the research. We intended to compare the results of the two search firms to determine the difference.

5.6. Identifying telecom standards implemented in mobile phones:

[2. What patents pertain to capabilities commonly found in networked mobile devices sold in India for USD 100 or less?]

Using documentation available from standards-setting organisations and industry consortia, and from the nine handsets, 322 technical standards [Annexure 2] implemented in a networked mobile device have been identified by CIS. These technical standards support commonly found capabilities in a networked mobile handset. By dismantling the phones, their components were identified [Annexure 3]. The list of components and standards was used to determine the patent pools, standard-setting organisations and standard development organisations of interest for research questions 3 and 4 as well as for the literature survey.

6. Validation of Results

The results of the patent landscaping exercise turned in by the patent search firm were validated by performing the following steps:

Checking for duplicate application numbers via MySql
Checking for duplicate publication numbers via MySql

No duplicates were found.

7. Analysis of Results

[2. What patents pertain to capabilities commonly found in networked mobile devices sold in India for USD 100 or less?]

7.1. Data Analysis: Breakdown of 23,569 patents and patent applications

Number of patents and patent applications combined in the different Level 1 categories,

Number of patents and patent applications combined in Level 2 categories (i.e., sub-categories).

7.2. Visualisations: Graphical representations of the patent landscape

1. Number of patents in each Level 1 category
2. Number of published patent applications versus granted patents in each Level 1 category
3. Number of patents in each sub-category of “Communication”
4. Number of patents in each sub-category of “Operational Blocks”
5. Number of patents in each sub-category of “Sensors”
6. Number of patents in each sub-category of “Energy Storage”
7. Number of patents in each sub-category of “Sound, image, and video”
8. Number of patents in each sub-category of “Display”
9. Number of user equipment patents, infrastructure patents and infrastructure and user equipment patents.
10. Number of patents held by each of the fifty assignees
11. Number of patent filings by the fifty assignees from the year 2000 to the year 2014
12. Number of patents in each Level 1 category filed over the years (time intervals: 2000-2003, 2004-2007, 2008-2011, 2012-2014)
13. Number of patents filed annually from the year 2000 to 2014 for all Level 1 categories combined
14. Top 10 assignees in Communication
15. Top 10 assignees in Operational Blocks
16. Top 10 assignees in Software
17. Top 10 assignees in Sensors
18. Top 10 assignees in Sound, Image, and Video
19. Top 10 assignees in Display
20. Number of patents in each Level 1 category held by each assignee in the top 10. (The ten assignees with the most number of patents in the overall dataset of 23,569.)
21. Number of patents filed from the year 2000 to 2014 in each sub-category of Communication
22. Number of patents filed from the year 2000 to 2014 in each sub-category of Operational Blocks
23. Sub-categories (Level 2 categories) with the highest number of filings [Baseband; Bandwidth; Call and data management; Signalling, routing and switching]
24. Top 10 assignees in Baseband
25. Top 10 assignees in Bandwidth
26. Top 10 assignees in Call and data management
27. Top 10 assignees in Signalling, routing and switching

8. Confidential Research and Anonymised Interviews

[6. What is the design and manufacturing flow of a finished Internet-enabled low-cost mobile phone sold in India?]

CIS conducted and published anonymised interviews with semiconductor chip manufacturers in Taiwan in September 2014. A confidential research exercise was conducted with original equipment manufacturers (OEMs) and white-label assembly lines in China in 2014. The two research exercises have contributed to the mapping of the downstream flow of manufacturing a finished, Internet-enabled, low-cost mobile device.

9. Literature Survey

[3. What are the existing patent pools for each of the capabilities found in a low-cost networked mobile device? What do we know about these patent pools?

4. Would the existing patent pools be sufficient to ensure that consumers continue to have access to inexpensive devices, that manufacturers operating in the budget segment are not snuffed out by patent litigation (or pass on losses caused by patent litigation to their consumers), and the rights of patent holders are not infringed upon. If not, why?]

Research questions 3 and 4 will be answered via a comprehensive literature survey.

10. Prior Art

A list of 2,300 patents from different jurisdictions (US, Japan, India, Korea, Sweden, Taiwan, Europe, China, Finland, France, Norway, UK, Germany, Singapore) searched by keyword/ keystring was compiled in 2013 ^[2].

Clairvolex, a market research firm based in Gurgaon conducted a patent landscaping exercise of mobil technologies in India in 2010. The search was based on IPC classes: http://www.clairvolex.com/pdf/communication.pdf

11. Narrative:

The chapter for the book takes the form of a story of an Indian businessperson travelling to Shenzhen in China to procure a consignment of mobile phones for selling them in India. The businessperson puts together a configuration of hardware and software for the mobile phone and sets out to find the royalties he would need to pay for it.

Numerical data has been presented using visualisations.

12. Assumptions:

The chapter assumes a direct link between the patent regime and the availability of inexpensive Internet-enabled mobile devices, whereas the latter is affected by several other factors outside the scope of this research, for example, trademark infringement litigation.

13. Limitations:

The patent landscape only encompasses the patents and patent applications filed by 50 major brands in India. It does not take into account patents held by other vendors, universities, and educational institutions.
The patent landscaping exercise was conducted for patents granted and applications filed between January 1, 2000 and February 23, 2015 as earlier data for Indian patents was not available in the Thomson Reuters database. As the lifespan of a patent is 20 years, live patents granted between 1995 and 2000 in India are not present in the landscape.
IPC classes, sub-classes and DWPI manual codes listed in Annexure 8 were not included in the patent landscape as they were very overarching for the research question. Class H04, for instance, pertains to "electric communication techniques". It is likely to comprise a comparatively large number of patents not pertaining to mobile device technology. Instead, certain sub-classes of H04 that are the most relevant to mobile device have been considered. As another example, the sub-classes of G01 pertain to measurements of physical quantities (length, area, thickness, et al). The number of patents pertaining to mobile technology in these sub-classes will be small compared with the number of patents in the sub-class. Owing to the presence of a relatively large number of patents superfluous to the research, these classes were not included in the interest of time, effort, and monetary cost.

Edited, April 8, 2015: To add -- Procedure for selecting law firms/ patent attorneys for this task, Patent database searching by company name, List of companies

Edited April 27, 2015: To update -- Annexure 2, List of standards and specifications found in sub-USD-100 Internet-enabled mobile phones sold in India.

Edited, May 23, 2015: To remove "Scope: Software patents will not be considered" as software patents granted in India have been found.

Edited, July 25, 2015: To remove steps "Patent database searching by standard" and "patent database searching by keyword" as they would have increased the time and costs needed for the landscaping without adding significant value. Hence, removed the research question, "What degree of standards implemented in the mobile device technology sold within India compared with that in the US is currently covered by patents?"

Edited, November 7, 2015: To edit – Research question 1. Are there measurable indications of increasing patenting activity in the mobile device industry in India?

2. What patents are absolutely necessary to keep a networked mobile device which costs less than USD 100 in India running?

3. What are the existing patent pools for each of the standards identified and what do we know about them?

4. Question trifurcated.

5. Which of these patent pools could go into an India-based mobile device patent "pool of pools" formed possibly through government intervention and having a royalty level supportable by the domestic Indian mobile device market?

Research Objective: The set of patents is restricted to those that apply to technologies that are absolutely necessary for the functioning of such a device.

To add in “Research Object”: The research object was used to determine “ features commonly found in networked mobile devices sold in India that cost less than USD 100” as described in research question 2.

To add sections on Analysis of Results, Confidential Research and Anonymised Interviews, and Literature Survey.

Edited, November 17, 2015: To add section on Limitations.

Footnotes:

[1]. Compilation of Mobile Phone Patent Litigation Cases in India, Rohini Lakshané, March 15, 2015, http://cis-india.org/a2k/blogs/compilation-of-mobile-phone-patent-litigation-cases-in-india, Last accessed November 7, 2015.

[2]. Mobile Phone Patents: Prior Art Survey, Nehaa Chaudhari, October 23, 2013, http://cis-india.org/a2k/blog/mobile-phone-patents, Last accessed November 7, 2015.

For more details visit https://cis-india.org/a2k/blogs/patent-landscaping-in-the-indian-mobile-device-market