Centre for Internet and Society

Draft Roundtable Report on AI and Banking

Shweta Mohandas — 2018-03-11T14:56:31Z

For more details visit https://cis-india.org/internet-governance/files/draft-roundtable-report-on-ai-and-banking

AI Manufacturing and Services Report

Admin — 2018-03-11T14:43:00Z

For more details visit https://cis-india.org/internet-governance/files/AIManufacturingandServices_Report_02.pdf

RightsCon 2018

Admin — 2018-02-28T15:15:06Z

Rohini Lakshané, Anubha Sinha, Vidushi Marda, and Amba Kak will be participating in the seventh event in the RightsCon Summit Series to be held in Toronto from May 16 - 18, 2018 as speakers.

Rohini's proposal “Cheap and chipper: IP in India's affordable smartphones” has been accepted!

As the world’s leading conference on human rights in the digital age, RightsCon brings together business leaders, policy makers, general counsels, government representatives, technologists, and human rights defenders from around the world to tackle pressing issues at the intersection of human rights and digital technology. This is where our community comes together to break down silos, forge partnerships, and drive large-scale, real-world change toward a more free, open, and connected world.

For more info click here

For more details visit https://cis-india.org/a2k/news/rightscon-2018

Marathi Language Day events by CIS-A2K in February 2018

subodh — 2018-03-17T08:58:44Z

Marathi Language day is celebrated all over world on 27th February. Dnyanpeeth award winning writer V.V.Shirwadkar alias Kusumagraj was born on this date. Various events and activities were conducted in collaboration with community, institutions and government departments.

Online Workshops

These were conducted at Jeevan Jyoti Women empowerment centre,Velhe ; Garware College of Commerce, Pune and Dayanand college in Solapur. Proof reading of marathi book on Wikisource was completed by the students of Garware college on this day.

Media

Guest editorial in leading newspaper Sakal was published on 10th Feb. The gist is - Everyone speaks, discusses about status of marathi on the occasion of language day on 27th feb and Yearly Litfest. If we want to make marathi, a global language for knowledge sharing and connecting to world lang' communities, it is necessary to adopt unicode and open source softwares in writing, publishing,printing etc. The collaborative works also need unicode as it is a universal bridge. The Wikipedias in 288 lang's is a great success story because it is based on Unicode & open source. The editorial also gives future action plan to achieve this, viz. upgradation of academic courses related to language business, writers/publishers workshops, Indic lang computing centre, digitisation/OCR and content donation in Wikisource, Wiktionary etc., Copyright free/relicense movement among writers or copyright holders, Appeal to social and educational magazines to upload their old issues on Wikisource as reference material.

Radio Interview on Tomato FM 94.3 Kolhapur on 27th Feb. The promotion was made through Facebook post and ads on Radio. The interview received good response from 2 districts.

Event in Sangli

A special event was arranged by 'Janswasthya organisation on 28th Feb. Nearly 80 prominent personalities from Sangli district gathered together to discuss about growth of marathi language. Alongwith Subodh Kulkarni, writer Ramdas Phutane also participated.

Media Coverage

News in Pudhari
News in Lokmat
News in Samana

For more details visit https://cis-india.org/a2k/blogs/marathi-language-day-events-by-cis-a2k-in-february-2018

Delhi Declaration on Open Access

Admin — 2018-02-26T14:53:07Z

Open Access India recently released a statement to promote openness in science and research communities. CIS contributed to the text and introduced it to the participants of OpenCon 2018, Delhi.

Published by Open Access India on February 14, 2018. Read the original post here.

This declaration was drafted by a group comprising of researchers and professionals working for opening up access to research outputs for public good in India. The declaration is aimed at scientific communities, scholarly societies, publishers, funders, universities and research institutions to promote openness in science and research communications.

Preamble

The South Asian region, home to 24% of the world’s population faces major challenges such as hunger, poverty and inequality. These challenges become the collective responsibility of scholars and experts in research universities across the country. Consequently, it becomes imperative that research institutes share scientific research outputs and accelerate scientific research. The Open Access movement which aims for making all ‘publicly funded research outcomes publicly available for the public good’ is gaining momentum.

“Open means anyone can freely access, use, modify, and share for any purpose(subject, at most, to requirements that preserve provenance and openness)” –Open Definition.

As per the Budapest Open Access Initiative (BOAI), ‘Open Access’ (to scholarly literature) is “free availability on the public internet, permitting any users to read, download, copy, distribute, print, search, or link to the full texts of these articles, crawl them for indexing, pass them as data to software, or use them for any other lawful purpose, without financial, legal, or technical barriers other than those inseparable from gaining access to the internet itself”.

Since the launch of the BOAI on 14th Feb. 2002, efforts are being made by various scholarly societies, academic communities and governments to make scholarly content Open. However, due to various reasons, the full potential of Open Access is not realised by the producers (scholars), publishers and readers (scholars and society at large) of this knowledge and the world is still disconnected in terms of sharing the scholarly content openly.

As per the Scimago Journal & Country Rank (SJR), India ranks 9th in the year 2016 producing about 13 lakhs articles. However, 82% of them are not Open Access and the Institutional Repositories in India are sparsely populated in spite of having Open Access mandates in place. The Directory of Open Access Journals (DOAJ) lists only 200 out of the 20,000+ journals being published from India.

The historical BOAI is now 16 years old, but still there is a need for all of us to be educated and empowered to realize the power of Open Access to scholarly content and harness it for public good in India. With burgeoning commercial scholarly publications and increasing diversity in terms of availability of & accessibility to the information, we need to create a necessary framework for making Open Access the default by 2025 in India.

To ensure the wide availability and encourage the use of of research data and information for the purpose of addressing multifaceted challenges, Open Access to publicly funded research and scholarly outputs are to be made available under Open Licenses (e.g. Creative Commons) while duly acknowledging the intellectual property (work/rights of the creators/producers/authors).

Declaration

We, the contributors and signatories of this declaration, members of the Open Access India, Open Access communities of practice in India and the attendees of the OpenCon 2018 New Delhi held on 3rd Feb., 2018 at Acharya Narendra Dev College, Kalkaji, New Delhi (University of Delhi) agree to issue this declaration:

We advocate for the practice of Open Science (sharing research methods and results openly which will avoid “reinventing the wheel”) and adoption of open technologies for the development of models for sharing science and scholarship (Open Scholarship) to accelerate the progress of research and to address the real societal challenges
We will strive to publish our interim research outputs as preprints or postprints (e.g. Institutional Repositories) and encourage our peers and supervisors to do the same to make our research open and actionable in a timely manner.
We will practice and encourage researchers and scientists to implement openness in peer-reviewing and other editorial services, influence the scholarly societies to flip their journals into Open Access and will contribute for the development of whitelist of Open Access journals in India adhering to the “Principles of Transparency and Best Practice in Scholarly Publishing”.
We will garner support of the relevant stakeholders (scholars, journal editorial teams, university libraries, research funders, authorities’ in-charge of dissemination of scholarship in higher education) for spearheading the Open Access movement.
We will take forward the concept of Open Access to further bring all the publicly funded research outputs (not limited to journal literature alone) to be freely available under open licenses to the public to use, reuse and share in any media in open formats.
We will impress upon policy makers to adopt an open evaluation system for research and an institutional reward system for practicing openness in science ,scientific communications and academic research across disciplines including Humanities and Social Sciences
We will support and work for an alternate reward system in recognition and promotion not in terms of the ‘Impact Factor’ of the journals, but the ‘Impact’ of the articles/scholarship in science and the society and impress upon all the scientists/scholars, research funders, research institutes, universities, academies and scholarly societies to sign the San Francisco Declaration on Research Assessment (DORA).
We strongly agree with the Joint COAR-UNESCO Statement on Open Access , Jussieu Call and Dakar Declaration. And will also follow the international initiative Open Access 2020, to develop roadmaps to support sustainable Open Access scholarly communication models which are free of charge for the authors and free of charge availability to the readers.
While learning from South South cooperation on Open Access, will work for developing a framework for Open Access in India and South Asia: National Policies for Open Access and country-specific action plans will be formulated aimed at making Open Access as the default in India and South Asia, by 2025.
For creating more awareness on Open Access, infrastructure, capacity building, funding and policy mechanisms, as well as incentivizing for the Open Access, we come forward to share success stories, studies and discussions during the Open Access Week.

Adopted on 14th February 2018

Signatories (along with their affiliation):

Anasua Mukherjee, BRICSLICS
Anubha Sinha, CIS India
Anup Kumar Das, Open Access India; CSSP, JNU
Arul George Scaria, NLU Delhi
Barnali Roy Choudhury, Open Access India
Bhakti R Gole, Open Access India
Girija Goyal, ReFigure.org
Javed Azmi, Jamia Hamdard
Kavya Manohar, Open Access India
Neha Sharma
Nirmala Menon IIT Indore
Sailesh Patnaik, Access to Knowledge, CIS
Savithri Singh, Creative Commons India
Sridhar Gutam, Open Access India
Subhashish Panigrahi, Internet Society, O Foundation
Vijay Bhasker Lode, Open Access India
Virendra Kamalvanshi, Banaras Hindu University
Tanveer Hasan A K, Access to Knowledge, Bangalore
Waseem A Malla

Ahsan Ullah, Bangladesh
Anila Sulochana, Central University of Tamil Nadu
Anoh Kouao Antoine, Ecole Supérieure Africaine des TIC, Côte d’Ivoire (Ivory Coast)
Antonio Solís Lima,México
Atarino Helieisar, FSM Supreme Court Law Library, Federated States of Micronesia
Bidyarthi Dutta, Vidyasagar University
Binoy Mathew, INELI
Boye Komla Dogbe, Ministère De La Communication, De La Culture, Togo
Srikanth Reddy, CBIT
Cajetan Onyeneke, Imo State University, Nigeria
Chantal Moukoko Kamole, Universitty of Douala, Cameroun
D Puthira Prathap, Extension Education Society
Daniel Bossikponnon, Ministère du plan et du Développement, Bénin
Dare Adeleke, the Federal Polytechnic, Ado-Ekiti, Nigeria
Dilip Man Sthapit, TU Central Library/LIMISEC, Nepal
Emmy Medard Muhumuza, Busitema University Library, Uganda
Fabian Yelsang, Institute for Interdisciplinary Research and Consultancy Services, Ghana
Fayaz Loan, University of Kashmir
GJP Dixit, Central Library, Central University of Karnataka
Gurpreet Singh Sohal, GGDSD College
Harinder Pal Singh Kalra, Punjabi University
Hue Bui, Thainguyen University of Sciences, Vietnam
Jacinto Dávila, Universidad de Los Andes, Venezuela
Jaishankar K, International Journal of Cyber Criminology
Jancy Gupta, National Dairy Research Institute
JK Vijayakumar
Jonathan Tennant, Open Science MOOC, Germany
Julián Vaquerizo-Madrid, Unidad de Neurología Clínica Evolutiva, Spain
Kamal Hossain, University of Liberal Arts Bangladesh (ULAB), Bangladesh
Kasongo Ilunga Felix, Democratic Republic of Congo
Kavita Chaddha
Kojo Ahiakpa, Research Desk Consulting Ltd., Ghana
Krishna Chaitanya, Velaga, the Wikipedia Library
Kumaresan Chidambaranathan, New Zealand
Kunwar Singh, Banaras Hindu University
Luis Saravia, PERU
Mahendra Sahu, Gandhi Institution of Engineering & Technology,Gunupur
Maidhili S., Meenakshi College for Women
Manika Lamba, University of Delhi
Md. Nasir Uddin, BRAC University, Bangladesh
Md. Nazim Uddin, International Centre for Diarrhoeal Disease Research, Bangladesh
Md. Nurul Islam, International Islamic University Chittagong, Bangladesh
Md. Shahajada Masud Anowarul Haque, BRAC University, Bangladesh
Mir Sakhawat Hossain, Kabi Nazrul Government College, Bangladesh
Munusamy Natarajan, CSIR-NISCAIR
Murtoza Kh Ali, Bangladesh
Subash Pillai, ICAR-Indian Institute of Farming Systems Research
Nasar Ahmed Shah, Aligarh Muslim University
Nimesh Oza, Sardar Patel University
Niraj Chaudhary, United States
Poonam Bharti
Prerna Singh, Central University of Jammu
Rabia Bashir, Law and Parliamentary Affairs, Pakistan
Rajendran Murugan, Department of Education, University of Delhi
Rama Kant Shukla, Delhi Technological University
Raman Nair R, Centre for Informatics Research and Development
Rebat Kumar Dhakal, KUSOED Integrity Alliance, Nepal
Revocatus Kuluchumila, AMUCTA, Tanzania
M. Humayun Kabir, Tutul, National Health Library & Documentation Centre, Bangladesh
Sabuj Kumar, Chaudhuri, University of Calcutta
Sandipan Banerjee
Satwinder Bangar
Shahana Jahan, Bangladesh
Shamnad Basheer, SpicyIP
Shivendra Singh
Shreyashi Ray, NLU, Delhi
Sivakrishna Sivakoti
Soumen Kayal, Maharaja Manindra chandra College
Srinivasarao Muppidi, Sanketika Vidya Parishad Engineering College
Stephanie Gross, MSLIS from Pratt Institute, USA
Sujata Tetali, MACS-Agharkar Research Institute
Surjodeb Lulu Hono Basu
Susmita Das, Bangladesh Agricultural Research Council, Bangladesh
Susmita Chakraborty, University of Calcutta
Thilagavathi, Thillai Natarajan, Avinashilingam Institute for Home Science and Higher Education for Women
Umesh Kumar
Umme Habiba, Noakhali Science and Technology University, Bangladesh
Vinita, Jain, M D College of Arts, Science and Commerce
Virginia Inés Simón, Red Iberoamericana de Expertos sobre la Convención de los Derechos de las Personas con Discapacidad, Argentina
Vrushali Dandawate, AISSMS College of Engineering/DOAJ
Waqar Khan, Dhaka Shishu Hospital, Bangladesh
Wilbert Zvakafa, Chinhoyi University of Technology, Zimbabwe
Yasser Ahmed, South Valley University, Egypt
Yohann Thomas, Wikimedia India
Zakir Hossain, International Association of School Librarianship, International Schools Region, Switzerland
Dahmane Madjid, CERIST, Algeria
Nagarjuna G, Homi Bhabha Centre for Science Education, TIFR
Sulyman Sodeeq Abdulakeem, Federal Polytechnic Offa, Nigeria
Leena Shah, DOAJ
Hamady Issaga Sy, Sénégal
Sanket Oswal, Wikimedia India
Chitralekha, University of Delhi
Chris Zielinski, University of Winchester, United Kingdom
Mourya Biswas, Prateek Media

For more details visit https://cis-india.org/openness/news/delhi-declaration-on-open-access

The Right to Information, The Right to Knowledge (Talk by Sam Pitroda & Carl Malamud)

pranesh — 2018-02-14T12:19:16Z

On October 15, 2017, Sam Pitroda and Carl Malamud will speak on open data and knowledge in India.

HasGeek and NUMA Bangalore are co-organizing a talk by two eminent internet pioneers — Sam Pitroda and Carl Malamud — on open data and knowledge in India. Pranesh Prakash of CIS will introduce the speakers and their work.

The Right to Information, The Right to Knowledge

Sam Pitroda and Carl Malamud will talk about their efforts in India, the U.S., and many other countries to help promote universal access to knowledge. They'll discuss the constitutional underpinnings of this right in India and some of the information they've been making available, including 3 lakh books from the Digital Library of India, 19,000 official standards from the Bureau of Indian Standards, and a raft of other resources such as the entire Collected Works of Mahatma Gandhi.

They will discuss how key laws such as the Right to Information make this possible but will focus more on how the world of open source and the Internet can turn that promise into a reality. Universal access to knowledge is the great unmet promise of our times, and they will talk about what we can all do to make this dream possible.

About the speakers

Dr. Sam Pitroda was a senior advisor to Prime Ministers Rajiv Gandhi and Manmohan Singh and is widely credited for having led India’s telecommunications and technology revolutions in the 1980s. Dr. Pitroda holds 20 honorary PhDs, close to 100 worldwide patents, and helped create the first digital PBXs in the 1960s.

Carl Malamud started the first radio station on the Internet and is considered one of the pioneers of the U.S. open government movement. Carl runs Public.Resource.Org, an NGO which has placed hundreds of millions of pages of government information online, including all 19,000 Indian Standards.

For more details visit https://cis-india.org/events/the-right-to-information-the-right-to-knowledge

Open Data and Land Ownership - Environment Scan

sumandro — 2018-02-12T10:37:48Z

The State of Open Data is an ambitious research project reflecting on 10 years of action on open data and providing a critical review of the current state of the open data movement across a range of issues and thematic areas. This environment scan represents the first step in gathering information to support a review of the state of open data with regard to land ownership, and in refining the focus of a chapter. The lead author for this chapter is Sumandro Chattapadhyay.

Comments and suggestions: Environment Scan (Google Drive)

State of Open Data: Join the Investigation!

State of Open Data on Twitter: @stateofopendata

Issues

[Gap] Land Ownership data is mostly closed

Land Ownership data ranks as the least likely data to be available in an open format and under open license (across the world) among the fifteen types of data tracked by Global Open Data Index developed by Open Knowledge International. Similarly, the latest Global Report of the Open Data Barometer initiative of World Wide Web Foundation finds Land Ownership to be the least open of different categories of data that are essential for ensuring government accountability – only 1% of countries surveyed were found to open up Land Ownership data as opposed to 10% of countries opening up Budget data, and 11% of countries opening up Election Results data (http://opendatabarometer.org/4thedition/report/#table7). Both these findings indicate that Land Ownership data is among the most closed categories of data that are needed globally for ensuring accountability and transparency, as well as for tracking shifts in the distribution of national wealth.

[Gap] Global paucity of reliable information about cross-border investments in and shifts in ownership of land

While initiatives like Land Matrix have spearheaded greater availability of open data about global cross-border investments in land and resulting shifts in ownership patterns, researchers have pointed out the limited accuracy and methodological reflexivity in the production of such data sets, and highlighted the possibility of them representing "an instance of 'false precision'". A recent article in Financial Times notes that “[t]here is plenty of debate over the accuracy of this [open-source data of agricultural land sales]. Official data sources vary widely from country to country, while land deals themselves are notoriously opaque and fluid. Media reports about the leasing or buying of land often lack clairity."

[Progress] Collaborative and incremental development of extensive and intensive monitoring of openness of land ownership data across countries

There are several recent examples of collaborative efforts to better collect, organise, and recognise open land ownership data, which indicate at a growing momentum to address this critical weak link in the global open data agenda. Key initiatives include the GODI Fellowship established by Cadasta Foundation and Open Knowledge International, a focus on Land Use and Productivity Data as part of the Agricultural Open Data Package of the International Open Data Charter, and the work of Land Portal in the Mekong region to develop a common land information vocabulary, especially in a region marked by "its disparate languages and range of national priorities [and] the need to communicate effectively about complex land issues across borders and between individuals with different skill sets".

[Progress] Success of the Access Land campaign in California, USA:

"Access Land is a coalition of 50+ organizations committed to increasing access to our public land through open data. This summer, both the Federal Government and California State Parks released reservation contracts that require open data and plans to engage third party partners – redefining how the public accesses their land forever. Unlocking park data empowers entrepreneurs of all backgrounds to build unique applications that better connect the public to their land. By reaching a wider and more diverse demographic, visitation to our parks will rise, boosting revenue and ensuring the future relevance and sustainability of our public land. Open data is the key to inspiring the next generation of park supporters."

[Progress] HM Land Registry, Government of UK, publishing Commercial and Corporate Ownership Data and Overseas Companies Ownership Data for free

On November 7, 2017, the land records authority of UK (HM Land Registry) started free sharing of two of its land ownership data sets: the Commercial and Corporate Ownership Data and Overseas Companies Ownership Data, which "contain more than 3 million rows of data and include the address, company’s name, price paid and country of incorporation along with other useful information." The decision is expected to "support growth in the property technology (PropTech) sector and among small and medium-sized enterprises."

Who?: Stakeholders, networks, community

Cadasta Foundation

"Develops and promotes the use of simple digital tools and technology to help partners efficiently document, analyze, store, and share critical land and resource rights information. By creating an accessible digital record of land, housing and resource rights, we help empower individuals, organizations, communities, and governments with the information they need to make data-driven decisions and put vulnerable communities and their needs on the map… Cadasta is dedicated to working in such settings to help partners use simple, low-cost, high-tech tools to efficiently and effectively document their land and resource rights — incrementally strengthening their rights to land. This documentation creates an evidence base and advocacy case for vulnerable communities’ claims to the land. Such documentation can make it less likely that communities will be displaced and can serve to support demands for compensation should communities be displaced. We use and create versatile digital tools for a myriad of purposes from certifying sustainable agricultural production to creating a digital land registry that secures land rights for millions of people."

"Cadasta Foundation is developing an open platform, informed by the Social Tenure Domain Model, for documenting land and resource rights. Through the development of an ecosystem of partners, technology and data, the platform is designed to allow the direct capture and documenting of land rights through a global open platform that is secure, cost effective and transparent. The foundation’s perspective is informed by years of experience working with formal land administration processes and national-level land information systems, as well as working with volunteered geographic information to develop robust and upto-date datasets. At Cadasta, the focus is twofold – providing the repository and tools necessary to document the rights of those left out of the formal system, while also serving as a portal for open datasets in land and other resources, such as extractives, forestry and agricultural investment concessions, where they exist."

Supported by the Department for International Development of Government of UK and the Omidyar Network

Website: http://cadasta.org/

Global Land Alliance

"The mission of Global Land Alliance is to enable the prosperity of people and places by advancing learning and practice to achieve land tenure security and the efficient, inclusive and sustainable use of land and natural resources. We aim to accelerate quality development by resolving land issues with new paradigms of participation and accountability… Global Land Alliance takes the traditional think tank model a step forward, not only producing new understanding and recommendations based on on-the-ground perspectives of citizens, community leaders and businesses, but also channeling those learnings toward practical implementation at scale. By scaling and speeding up resolution of land issues, we can scale up and speed up improved results in the big issues of our time: urbanization, food security, environmental sustainability and peace."

"PRIndex, the Global Property Rights Index, is a collaborative initiative between Global Land Alliance and the Overseas Development Institute to develop and roll out the first global measurement of peoples’ perceptions of their property rights. PRIndex is establishing a global and national-level baseline of perceptions of land tenure security. This baseline will provide the grounding for a global conversation and movement around securing the property rights of billions who currently lack them."

Supported by Inter-American Development Bank, Omidyar Network, Department for International Development of Government of UK, the World Bank, Overseas Development Initiative, and others

Website: http://www.globallandalliance.org/

Global Land Tool Network

"The Global Land Tool Network (GLTN) is an alliance of international partners committed to increasing access to land and tenure security for all, with a particular focus on the poor and women. The Network’s partners include international civil society organizations, research and training institutions, bilateral and multilateral organizations, and international professional bodies… GLTN develops, disseminates and implements pro-poor and gender-responsive land tools. These tools and approaches contribute to land reform, good land governance, inclusive land administration, sustainable land management, and functional land sector coordination."

"Throughout the world, land provides a primary source of income, food security, cultural identity and shelter. It also serves as a fundamental asset for the economic empowerment of the poor and provides a safety net in times of hardship. To enhance access to information and awareness by land and data community and the wider stakeholders around land indicators in the SDGs and related processes for their monitoring, GLTN in collaboration with Land Portal Foundation produced the Land and SDGs dashboard."

Facilitated by UN-Habitat; currently implementing programmes supported by Ministry of Foreign Affairs of Government of Norway, SIDA, Government of the Netherlands, and UN-Habitat

Website: https://gltn.net/home/

International Land Coalition

"A global alliance of civil society and intergovernmental organisations working together to put people at the centre of land governance. The shared goal of ILC's over 200 members is to realise land governance for and with people at the country level, responding to the needs and protecting the rights of women, men and communities who live on and from the land."

Supported by the Federal Ministry for Economic Cooperation and Development of Government of Germany, EU, IFAD, Irish Aid, American Jewish World Service, Belgian Fund for Food Security, Swiss Agency for Development and Cooperation, SIDA, and others.

Website: http://www.landcoalition.org/

Land Matrix

"A global and independent land monitoring initiative. Our goal is to facilitate an open development community of citizens, researchers, policy-makers and technology specialists to promote transparency and accountability in decisions over land and investment... [The website functions as a] Global Observatory - an open tool for collecting and visualising information about large-scale land acquisitions."

Supported partly by the internal resources of the partner organisations, and partly by Oxfam, SDC, Netherlands Ministry of Foreign Affairs, BMZ and European Commission; designed and developed by Sinnwerkstatt in partnership with Tactical Studios at Tactical Technology Collective.

Website: http://landmatrix.org/en/

Land Portal Foundation

"Works to create a better information ecosystem for land governance through a platform based on cutting-edge linked and open data technologies. We help partners to create, curate and disseminate land governance data and information to become part of a more inclusive information landscape. Current information sources are often fragmented, represent a restricted set of perspectives, and are not structured, curated and licensed in ways that support maximum discovery, engagement and reuse."

The Foundation is hosted by University of Groningen, The Netherland; supported by the Department for International Development of Government of UK, International Land Coalition, and the Global Land Tool Network.

Website: https://landportal.org/

Open Land Contracts

"An online repository of publicly available contracts for large-scale land, agriculture, and forestry projects. The repository includes the full text of contracts; plain language summaries (also referred to as "annotations") of each contract’s key social, environmental, human rights, fiscal, and operational terms; and tools for searching and comparing contracts. Launched in October 2015, OpenLandContracts.org promotes greater transparency of land-based investments, facilitates a better understanding of the contracts that govern them, and provides useful tools for governments, communities, companies, and other stakeholders."

An initiative of the Columbia Center on Sustainable Investment (CCSI), a joint center of Columbia Law School and the Earth Institute at Columbia University, USA; supported by UKaid from the Department for International Development, Government of UK.

Website: http://www.openlandcontracts.org/

Radiant

"Radiant launched operations in August 2016 to answer the call for open access to geospatial data, with analytical tools for global development practitioners designed to improve decision-making, and to foster entrepreneurship worldwide. Radiant’s geospatial technology platform will permit users to illuminate earth, literally, to allow everywhere to be "seen"; to turn the telescopes back on human activity as we enter the Anthropocene period; and to give decision-makers a scientific window into understanding global activity better. Providing the global community with these tools and data can create powerful insights and accelerate greater catalytic, evidence-based support for change."

Supported by Omidyar Network and Bill and Melinda Gates Foundation.

Website: https://radiant.earth/

Research and evidence

Cotula, Lorenzo, and Thierry Berger. 2017. Trends in global land use investment: Implications for legal empowerment. London, UK: IIED. Accessed from http://www.landcoalition.org/sites/default/files/documents/resources/12606iied.pdf

This report takes stock of trends in land use investments and legal empowerment responses, with a view to informing next steps for legal empowerment agendas. Drawing on a review of the available literature and global datasets, it discusses evolving patterns in land use investments, developments in investment frameworks, and implications for legal empowerment initiatives.

Ferris, Lindsay, Frank Pichel, and Neil Sorensen. 2016. Land Debate on Open Data and Land Governance. Cadasta Foundation and Land Portal. December. Accessed from https://landportal.org/pt/library/resources/report-debate-open-data-and-land-governance

Across most contexts, government data sources on land are largely inaccessible, from land administration data, such as parcel data and ownership information to land investments, contract data and even policy information. In considering data on property ownership specifically, the latest version of the Open Data Barometer shows only two countries, New Zealand and the United Kingdom, obtained a full 100% score on the topic of Land Ownership. When this land administration data is made available, it is commonly made public via a web portal rather than as open data. However, governments are not the sole sources of land data. For example, international organizations such as World Bank, the United Nations and numerous bi-lateral donor organizations publish land related data, while countless NGOs may participate in community mapping and policy analysis. Beyond EU Directives for geospatial datasets, common principles and processes are lacking for determining what data should be open, with often differing interpretations among EU Directives. Finally, questions of how to tackle privacy and security risks to vulnerable populations remain disputed, leading NGOs, governments and international institutions to dismiss open data entirely. However, with an ambitious 2030 Agenda for Sustainable Development, there is an increasing need to pool data resources toward solving global challenges -- while protecting the rights of vulnerable populations. In September 2016, Cadasta Foundation and the Land Portal Foundation teamed up to facilitate a conversation on these issues. Our aims were to better understand the current landscape, potential impacts as well as illustrate the unique challenges in opening land data in order to begin figuring out the solutions. Within the Land Portal platform, we heard the points of view of 26 participants from government land agencies, international institutions and NGOs. Throughout this report, we’ve summarized the main themes that surfaced throughout the three-week Land Debate.

Ferris, Lindsay. 2017. Outputs for the Cadasta GODI Fellowship. Links to four outputs accessed from https://blog.okfn.org/2017/06/09/what-data-do-we-need-the-story-of-the-cadasta-godi-fellowship/

Throughout the fellowship, Lindsay conducted interviews with land experts, NGOs and government officials as well as on-going desk research on the land data publication practices across different contexts. She established 4 key outputs: 1. Outlining the challenges of opening land ownership data… 2. Mapping the different types of land data and their availability… 3. Assessing the privacy and security risks of opening certain types of land data… 4. Identifying user needs and creating user personas for open land data… Throughout the GODI process, our aim is to advocate for datasets that different stakeholders actually need and that make sense within the context in which they are published. For example, one of the main challenges in land ownership is that data is not always recorded or gathered by the federal level, and is collect in cities and regions. One of the primary users of land ownership data are other government agencies. Having a grasp of this type of knowledge helped us better define the land ownership dataset for the GODI. Ultimately, we developed a thoughtful definition based on these reflections and recommendations.

Hogge, Becky. 2015. “HM Land Registry: The UK’s trading funds, and two futures for open data”. In Open Data: Six Stories About Impact in the UK. November. Omidyar Network. Pp. 17-24. Accessed from https://www.omidyar.com/sites/default/files/file_archive/insights/Open%20Data_Six%20Stories%20About%20Impact%20in%20the%20UK/OpenData_CaseStudies_Report_complete_DIGITAL_102715.pdf

HM Land Registry began a phased release of its data on property transactions – the Price Paid Dataset – in March 2012, and by November 2013 the entire historic record dating back to 1995 was released. The data provides much-needed transparency in a historically “murky” business, and is already being used extensively by some traditional players in the property market. Additionally, new players are consolidating around the field of proptech, developing digital tools to bring buying and selling property “out of the Stone Age”. Proptech startups attracted an estimated $1.4 billion in investment globally in 2014. PI Labs, an incubator for proptech startups, opened in London in late 2014.

Raman, Bhuvaneswari, and Zainab Bawa. 2011. Citizens Participation and Technology Interventions in Government Programmes: The Case of Nemmadi Kendras in Bangalore. SIRCA Report. Janastu. Accessed from http://tgc.janastu.org/2011/06/raman-bawa/

Our findings on Nemmadi corroborates Benjamin et al (2005) suggestion that transparency of land information in contexts such as Bangalore can accentuate existing social and economic inequalities and can weaken the claims on land of relatively weaker groups in society. The reflection of the activist from Dalit Sangarsh Samithi quoted above draw attention to the fact that despite the apparent myth of uniform access to information, there are differences in terms of their ability to capture this information. Specifically, when it comes to land, it is not only about having information but also the power to displace / disposses current occupiers. Thus, power between different users affect their ability to capture this information to their advantage but more importantly, such visibility can pose new risks to the claims of relatively weaker groups. Proponents of data transparency fail to make the distinction between access to and the capture of information and the risk posed by opening up certain types of data. Based on our preliminary observations we suggest that there is need to differentiate between the types of data that is made public and the political economic context in which such information is made public. Our findings suggest the usefulness of further research on this aspect.

Events

International workshop on Open Land Data: Mobile Apps and Geo-services for Open Soil Data

Hosted by Tom Hengl and Rik van den Bosch (ISRIC – World Soil Information), and Jeff Herrick (U.S. Department of Agriculture – Agricultural Research Service, New Mexico State University), July 2-4, 2017, Wageningen University, the Netherlands, http://gsif.isric.org/doku.php/wiki:workshop_2017

Responsible Land Governance: Towards an Evidence Based Approach

Annual Word Bank Conference on Land and Poverty, Washington DC, USA, March 20-24, 2017, https://www.conftool.com/landandpoverty2017/index.php?page=browseSessions&form_session=555&presentations=show

Workshop on Open Data and Land Governance: Moving Towards an Information Ecosystem

Land Portal Foundation and Cadasta Foundation, March 20, 2017, OpenGov Hub, Washington DC, USA, https://landportal.org/event/2017/03/open-data-and-land-governance-moving-towards-information-ecosystem

Resources and funding

Department for International Development, Government of UK: Land Governance for Economic Development

"DFID will pursue actions globally to improve land rights protection to: help ensure women and men enjoy legally recognised, secure property and tenure rights. To Improve information and knowledge to facilitate the provision of clear, transparent land related information and knowledge, enabling rights to be identified, understood and protected. To improve private sector investment through the development and rollout of a standardized investment risk assessment methodology and implementation of best practice in land governance."

Website: https://devtracker.dfid.gov.uk/projects/GB-1-204252/

Omidyar Network – Property Rights

"We know why this matters: Strengthening rights to land, natural resources, and other assets empowers people to decide, based on their tacit and local knowledge, how best to use their assets. Add in increased decision-making authority with legal rights to benefit from valued uses of property, and you get improved incentives to invest in families, children, farms and businesses. It is worth underscoring that the poor – whether informal urban entrepreneurs or smallholder farmers – are by far the largest group of businesspeople in the world. And, as highlighted in the recent report Accelerating Entrepreneurship in Africa, improving property transfer procedures will strengthen business opportunities..."

Website: https://www.omidyar.com/investees?initiative=Property+Rights®ion=All&search=#filter and https://www.omidyar.com/blog/why-property-matters

World Bank – Land

"The World Bank is increasingly working to open land and geospatial datasets for acceleration of growth through businesses, and improving own source local revenue creation, location-based analysis and decision-making, urban management, climate change responses, and resilience… The World Bank recognizes that national land administration systems and spatial data infrastructure are fundamental to disaster risk reduction and response by the provision of historical repository of pre-disaster land use and occupancy, location-based information as well as a unified geospatial platform for planning, monitoring, and implementing responses… The World Bank is working on land tenure as well as land and geospatial infrastructure and systems in 48 countries, with a current investment of approximately $1 billion in commitments, impacting millions of land holders in Africa, Asia, Eastern Europe and Central Asia, Latin America, and the Middle East and North Africa."

Website: http://www.worldbank.org/en/topic/land#2

For more details visit https://cis-india.org/openness/open-data-and-land-ownership-environment-scan

Internet Researchers' Conference 2018 (IRC18): Offline, February 22-24, Sambhaavnaa Institute

sumandro — 2018-07-02T18:30:52Z

We are proud to announce that the third edition of the Internet Researchers' Conference series will be held at the Sambhaavnaa Institute, Kandbari (Himachal Pradesh) during February 22-24, 2018. This annual conference series was initiated by the Researchers@Work (RAW) programme at CIS in 2016 to gather researchers, academic or otherwise, studying internet in/from India to congregate, share insights and tensions, and chart the ways forward. The *offline* is the theme of the 2018 edition of the conference (IRC18), and the conference agenda will be shaped by nine sessions selected by all the teams that submitted session proposals, and an independent paper track consisting of six presentations.

Venue: Sambhaavnaa Institute, Kandbari, Palampur, Himachal Pradesh, 176061

Travel Information: Getting to Sambhaavnaa (Sambhaavnaa Institute)

Weather in Kandbari: 10°-20°c with possibility of light shower (AccuWeather)

Registration: RSVP (Google Drive)

Agenda: Conference Programme (Google Drive)

Poster: Download (JPG)

IRC18: Offline

Does being offline necessarily mean being disconnected? Beyond anxieties such as FOMO, being offline is also seen as disengagement from a certain milieu of the digital (read: capital), an impediment to the way life is organised by and around technologies in general. However, being offline is not the exception, as examples of internet shutdown and acts on online censorship illustrate the persistence and often alarming regularity of the offline even for the ‘connected’ sections of the population.

State and commercial providers of internet and telecommunication services work in tandem to produce both the “online” and the “offline” - through content censorship, internet regulation, generalised service provision failures, and so on. Further, efforts to prioritise the use of digital technologies for financial transactions, especially since demonetisation, has led to a not-so-subtle equalisation of the ‘online economy’ with the ‘formal economy’; thus recognising the offline as the zones of informality, corruption, and piracy. This contributes to the offline becoming invisible, and in many cases, illegal, rather than being recognised as a condition that necessarily informs what it means to be digital.

Who is offline, and is it a choice? The global project of bringing people online has spurred several commendable initiatives in expanding access to digital devices, networks, and content, and often contentious ones such as Free Basics / internet.org, which illustrate the intersectionalities of scale, privilege, and rights that we need to be mindful of when we imagine the offline. Further, the experience of the internet, for a large section of people is often mediated through prior and ongoing experiences of traditional media, and through cultural metaphors and cognitive frames that transcend more practical registers such as consumption and facilitation. How do we approach, study, and represent this disembodied internet – devoid of its hypertext, platforms, devices, it's nuts and bolts, but still tangible through engagement in myriad, personal and often indiscernible ways.

For the third edition of the Internet Researchers’ Conference (IRC18), we invite participants to critically discuss the *offline*. We invite sessions that present or propose academic, applied, creative, or technical works that explore social, economic, cultural, political, infrastructural, or aesthetic dimensions of the *offline*.

Sessions

#OnlineGovernanceOfflineGovernment - Mohammad Javed Alam and Suman Mandal - Session Details

#WomenInTech - Priyanka Chaudhuri and Tripti Jain - Session Details

#Cyberflesh - Akriti Rastogi, Ishani Dey, and Sagorika Singha - Session Details

#RethinkingTheVirtualPublic - Daisy Barman and Aamir Qayoom - Session Details

#FeminismIRL - Mamatha Karollil, the SIVE Collective, and Tara Atluri - Session Details

#ILoveYou - Dhiren Borisa and Dhrubo Jyoti - Session Details

#CollectionAndIdentity - Ravi Shukla, Rajiv Mishra, and Mrutyunjay Mishra - Session Details

#FollowUsOffline - Dinesh, Farah Yameen, Afrah Shafiq, and Bhanu Prakash GS - Session Details

#OfSiegesAndShutdowns - Chinmayi S. K. and Rohini Lakshané - Session Details

Papers

Slow journalism and the temporalities of the offline - Akshata Pai - Paper Abstract

Campus campaigns: User perceptions in pre-digital and digital eras - Arjun Ghosh - Paper Abstract

The many lives of food: Blogs to books and back - Dhrupadi Chattopadhyay - Paper Abstract

Feminism in digital age - Putul Sathe - Paper Abstract

Marathi literary criticism in the era of social media - Rajashree Patil - Paper Abstract

Taking open science offline - Shreyashi Ray - Paper Abstract

About the IRC Series

The Researchers at Work (RAW) programme at the Centre for Internet and Society (CIS) initiated the Internet Researchers' Conference (IRC) series to address these concerns, and to create an annual temporary space in India, for internet researchers to gather and share experiences.

The IRC series is driven by the following interests:

creating discussion spaces for researchers and practitioners studying internet in India and in other comparable regions,
foregrounding the multiplicity, hierarchies, tensions, and urgencies of the digital sites and users in India, accounting for the various layers, conceptual and material, of experiences and usages of internet and networked digital media in India, and
exploring and practicing new modes of research and documentation necessitated by new (digital) objects of power/knowledge.

The first edition of the Internet Researchers' Conference series was held in February 2016. It was hosted by the Centre for Political Studies at Jawaharlal Nehru University, and was supported by the CSCS Digital Innovation Fund. The second Internet Researchers' Conference was organised in partnership with the Centre for Information Technology and Public Policy (CITAPP) at the International Institute of Information Technology Bangalore (IIIT-B) campus on March 03-05, 2017.

For more details visit https://cis-india.org/raw/irc18

Submission to the Committee of Experts on a Data Protection Framework for India

amber — 2018-02-05T13:39:00Z

This submission presents comments by the Centre for Internet and Society, India (“CIS”) on the ‘White Paper of the Committee of Experts on a Data Protection Framework for India’ (“White Paper”) released by the Ministry of Electronics and Information Technology. The White paper was drafted by a Committee of Expert (“Committee”) constituted by the Ministry. CIS has conducted research on the issues of privacy, data protection and data security since 2010 and is thankful for the opportunity to put forth its views. The submission was made on January 31, 2018.

For more details visit https://cis-india.org/internet-governance/submission-to-the-committee-of-experts-on-a-data-protection-framework-for-india

January 2018 Newsletter

praskrishna — 2018-03-01T01:35:56Z

January 2018 Newsletter

Dear readers,

Previous issues of the newsletters can be accessed here.

Highlights
The paper titled "Patent Working Requirements and Complex Products" has been published in the latest issue of the NYU Journal of Intellectual Property and Entertainment Law. It is one of the outputs of the Pervasive Technology project and has been authored by Prof. Jorge L. Contreras, Paxton M. Lewis, and Rohini Lakshané. CIS made a submission to the Department of Industrial Planning and Promotion on mobile patents. CIS offered its assistance on matters aimed at developing a suitable policy framework for SEPs and FRAND in India, and, working towards sustained innovation, manufacture and availability of mobile technologies in India The use of Artificial Intelligence (AI) in healthcare in India is increasing with new startups and large ICT companies offering AI solutions for healthcare challenges in the country. The report by by Yesha Paul, Elonnai Hickok, Amber Sinha and Udbhav Tiwari seeks to map the present state of AI in the healthcare sector in India. About 27% of India's population is still illiterate or barely literate. Most privacy policies and terms of services for web and mobile applications are in English and therefore it is only 10% of us who can actually read them before we provide our consent. The article by Sunil Abraham was published in Deccan Herald on January 20, 2018. CIS made a submission to TRAI Consultation on inputs to the National Telecom Policy. CIS in its submission also recommended what all should be the main objectives of TRAI while drafting the next edition of National Telecom Policy. Under a research grant from the Azim Premji University CIS has initiated a study of the ongoing updation process of the National Register of Citizens (NRC) in Assam and the resultant reform of citizen identification infrastructure in India. The 2G judgment of December 2017 provides a critique of how no proper evidence was presented on existence of an FCFS policy and its improper implementation, wrote Shyam Ponappa in his article in the Business Standard which was published on January 3, 2018.

Highlights

The paper titled "Patent Working Requirements and Complex Products" has been published in the latest issue of the NYU Journal of Intellectual Property and Entertainment Law. It is one of the outputs of the Pervasive Technology project and has been authored by Prof. Jorge L. Contreras, Paxton M. Lewis, and Rohini Lakshané.
CIS made a submission to the Department of Industrial Planning and Promotion on mobile patents. CIS offered its assistance on matters aimed at developing a suitable policy framework for SEPs and FRAND in India, and, working towards sustained innovation, manufacture and availability of mobile technologies in India
The use of Artificial Intelligence (AI) in healthcare in India is increasing with new startups and large ICT companies offering AI solutions for healthcare challenges in the country. The report by by Yesha Paul, Elonnai Hickok, Amber Sinha and Udbhav Tiwari seeks to map the present state of AI in the healthcare sector in India.
About 27% of India's population is still illiterate or barely literate. Most privacy policies and terms of services for web and mobile applications are in English and therefore it is only 10% of us who can actually read them before we provide our consent. The article by Sunil Abraham was published in Deccan Herald on January 20, 2018.
CIS made a submission to TRAI Consultation on inputs to the National Telecom Policy. CIS in its submission also recommended what all should be the main objectives of TRAI while drafting the next edition of National Telecom Policy.
Under a research grant from the Azim Premji University CIS has initiated a study of the ongoing updation process of the National Register of Citizens (NRC) in Assam and the resultant reform of citizen identification infrastructure in India.
The 2G judgment of December 2017 provides a critique of how no proper evidence was presented on existence of an FCFS policy and its improper implementation, wrote Shyam Ponappa in his article in the Business Standard which was published on January 3, 2018.

The following articles were written by CIS members:

Digital native: Memory card is full (Nishant Shah; Indian Express; January 3, 2018).
The 2G Judgment of December 2017: What Was It About? (Shyam Ponappa; Business Standard; January 3, 2018).
Fixing Aadhaar: Security developers' task is to trim chances of data breach (Sunil Abraham; Business Standard; January 10, 2018).
Another Step towards Privacy Law (Elonnai Hickok; Governance Now; January 15, 2018).

Data Protection: We can innovate, leapfrog (Sunil Abraham; Deccan Herald; January 20, 2018).

CIS in the News:

From net neutrality to IBC & Aadhaar, how Vidhi is framing key government legislation (Surabhi Agarwal and Samanwaya Rautray; Economic Times; January 4, 2018).
UIDAI denies any breach of Aadhaar database (Komal Gupta; Livemint; January 7, 2018).
Token security or tokenized security? (Manasa Venkataraman and Ajay Patri; Livemint; January 9, 2018).
UIDAI introduces new two-layer security system to improve Aadhaar privacy (Economic Times; January 11, 2018).
Hammered government offers Virtual ID firewall to protect your Aadhaar (New Indian Express; January 11, 2018).
Virtual Aadhaar ID: too little, too late? (Yuthika Bhargava; Hindu; January 11, 2018).
India To Introduce Virtual ID For Aadhaar To Strengthen Privacy (Bloomberg Quint; January 11, 2018).
UIDAI's Virtual ID, limited KYC does little to protect Aadhaar data already collected, say critics (Business Today; January 12, 2018).
Aadhaar Body Talked About Virtual ID 7 Years Ago, Put It Off: UIDAI Chief (Sukriti Dwivedi; NDTV; January 13, 2018).
Bengaluru gives data safety tips to panel (Deccan Herald; January 14, 2018).
Is your personal information under lock and key? (Sravanthi Challapalli; Hindu Businessline; January 16, 2018).
Aadhaar-privacy debate: How the 12-digit number went from personal identifier to all pervasive transaction tool (First Post; January 18, 2018).
Paytm Payments Bank woos corporates with digital incentives (Komal Gupta and Remya Nair; Livemint; January 24, 2018).
Aadhaar's new security measures are good, it is still work in progress (Alnoor Peermohamed; Business Standard; January 25, 2018).

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Access to Knowledge
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Our Access to Knowledge programme currently consists of two projects. The Pervasive Technologies project, conducted under a grant from the International Development Research Centre (IDRC), aims to conduct research on the complex interplay between low-cost pervasive technologies and intellectual property, in order to encourage the proliferation and development of such technologies as a social good. The Wikipedia project, which is under a grant from the Wikimedia Foundation, is for the growth of Indic language communities and projects by designing community collaborations and partnerships that recruit and cultivate new editors and explore innovative approaches to building projects.

►Wikipedia

Blog Entries

Government of Odisha adopting Creative Commons License to Promote Transparency and Access to Knowledge (Sailesh Patnaik; January 17, 2018).
Experience and Learning outcome from Wikipedia Education Program (Lakshmi Karlekar; January 30, 2018).

Events Organized

Marathi Wikipedia Workshop at Dept. of Mass Communication, Solapur University (Organized by CIS-A2K and Dept of Mass Communication, Solapur University; Solapur; January 2, 2018).
Marathi Wikipedia Workshop at Dayanand College, Solapur (Organized by CIS-A2K and Dayanand College, Solapur; Solapur; January 3, 2018).
Marathi Wikipedia Workshop at Willingdon College, Sangli (Organized by CIS-A2K and Willingdon College; Sangli; January 5, 2018).
Marathi Wikipedia Workshop at Govt.Science & Arts College, Aurangabad (Organized by CIS-A2K and Govt.Science & Arts College; Aurangabad; January 9, 2018).
Marathi Wikipedia Workshop at Dr.Babasaheb Ambedkar Marathwada Vidyapeeth (Organized by CIS-A2K and Dr. Babasaheb Ambedkar Marathwada University; Aurangabad; January 10, 2018).
Marathi Wikipedia Workshop at Shivaji University, Kolhapur (Organized by CIS-A2K and Shivaji University; Kolhapur; January 15, 2018).
Wikidata Workshop (Organized by CIS-A2K and Andhra Loyola College; Vijaywada; January 20 - 21, 2018).
Train the Trainer 2018 (Organized by CIS-A2K; Mysore; January 26 - 28, 2018).

►Pervasive Technologies

Research Paper

Patent Working Requirements and Complex Products (Jorge L. Contreras, Rohini Lakshané and Paxton M. Lewis; JIPEL NYU Journal of Intellectual Property & Entertainment Law, Vol. 7 - No.1 on January 16, 2018).

Submission

Submission to DIPP at Meeting with IP Stakeholders (Anubha Sinha; January 1, 2018). The submission was made in December 2017 but it was published on the website in January 2018.

►Openness

Our work in the Openness programme focuses on open data, especially open government data, open access, open education resources, open knowledge in Indic languages, open media, and open technologies and standards - hardware and software. We approach openness as a cross-cutting principle for knowledge production and distribution, and not as a thing-in-itself.

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Internet Governance
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As part of its research on privacy and free speech, CIS is engaged with two different projects. The first one (under a grant from Privacy International and IDRC) is on surveillance and freedom of expression (SAFEGUARDS). The second one (under a grant from MacArthur Foundation) is on restrictions that the Indian government has placed on freedom of expression online.

►Privacy

Blog Entry

Artificial Intelligence and the Healthcare Industry in India (Yesha Paul, Elonnai Hickok, Amber Sinha and Udbhav Tiwari (Ecosystem mapping by Shweta Mohandas, Sidharth Ray and Elonnai Hickok. Designed by Saumyaa Naidu under Creative Commons Attribution 4.0 International License; January 26, 2018).

Events Organized

Roundtable on A.I. and Manufacturing and Services (TERI, Bengaluru; January 19, 2018).

null Bangalore Meet: Special Session on Digital Identity and Privacy (CIS, Bengaluru; January 19, 2018). Sunil Abraham gave a talk.

►Free Speech and Expression

Blog Entries

Internet Governance Forum Report 2017 (Shweta Mohandas; January 11, 2018).

Mobile net ban during peaceful protest leaves farmers confused (Shruti Jain; January 19, 2018).

‘Hurt sentiments’ cost Udaipur internet access for four days (Shruti Jain; January 19, 2018).

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Telecom
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CIS is involved in promoting access and accessibility to telecommunications services and resources, and has provided inputs to ongoing policy discussions and consultation papers published by TRAI. It has prepared reports on unlicensed spectrum and accessibility of mobile phones for persons with disabilities and also works with the USOF to include funding projects for persons with disabilities in its mandate:

Article

Submission to TRAI Consultation on "Inputs for Formulation of National Telecom Policy - 2018" (Pranesh Prakash; January 25, 2018).

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Researchers at Work
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The Researchers at Work (RAW) programme is an interdisciplinary research initiative driven by an emerging need to understand the reconfigurations of social practices and structures through the Internet and digital media technologies, and vice versa. It aims to produce local and contextual accounts of interactions, negotiations, and resolutions between the Internet, and socio-material and geo-political processes:

Blog Entry

Life of a Tuple: National Register of Citizens (NRC) and the Reform of Citizen Identification Infrastructure in Assam (Sumandro Chattapadhyay; January 22, 2018). All posts related to the study can be found here.

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About CIS
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The Centre for Internet and Society (CIS) is a non-profit organisation that undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives. The areas of focus include digital accessibility for persons with disabilities, access to knowledge, intellectual property rights, openness (including open data, free and open source software, open standards, open access, open educational resources, and open video), internet governance, telecommunication reform, digital privacy, and cyber-security. The academic research at CIS seeks to understand the reconfigurations of social and cultural processes and structures as mediated through the internet and digital media technologies.

► Follow us elsewhere

Twitter: http://twitter.com/cis_india
Twitter - Access to Knowledge: https://twitter.com/CISA2K
Twitter - Information Policy: https://twitter.com/CIS_InfoPolicy
Facebook - Access to Knowledge: https://www.facebook.com/cisa2k
E-Mail - Access to Knowledge: a2k@cis-india.org
E-Mail - Researchers at Work: raw@cis-india.org
List - Researchers at Work: https://lists.ghserv.net/mailman/listinfo/researchers

► Support Us

Please help us defend consumer and citizen rights on the Internet! Write a cheque in favour of 'The Centre for Internet and Society' and mail it to us at No. 194, 2nd 'C' Cross, Domlur, 2nd Stage, Bengaluru - 5600 71.

► Request for Collaboration

We invite researchers, practitioners, artists, and theoreticians, both organisationally and as individuals, to engage with us on topics related internet and society, and improve our collective understanding of this field. To discuss such possibilities, please write to Sunil Abraham, Executive Director, at sunil@cis-india.org (for policy research), or Sumandro Chattapadhyay, Research Director, at sumandro@cis-india.org (for academic research), with an indication of the form and the content of the collaboration you might be interested in. To discuss collaborations on Indic language Wikipedia projects, write to Tanveer Hasan, Programme Officer, at tanveer@cis-india.org.

CIS is grateful to its primary donor the Kusuma Trust founded by Anurag Dikshit and Soma Pujari, philanthropists of Indian origin for its core funding and support for most of its projects. CIS is also grateful to its other donors, Wikimedia Foundation, Ford Foundation, Privacy International, UK, Hans Foundation, MacArthur Foundation, and IDRC for funding its various projects.

For more details visit https://cis-india.org/about/newsletters/Qjanuary-2018-newsletter

AI and Healtchare Report

Admin — 2018-01-26T01:35:20Z

For more details visit https://cis-india.org/internet-governance/files/ai-and-healtchare-report

Patent Working Requirements and Complex Products

Jorge L. Contreras, Rohini Lakshané and Paxton M. Lewis — 2018-01-23T15:09:30Z

The paper titled "Patent Working Requirements and Complex Products" has been published in the latest issue of the NYU Journal of Intellectual Property and Entertainment Law. It is one of the outputs of the Pervasive Technology project and has been authored by Prof. Jorge L. Contreras, Paxton M. Lewis, and Rohini Lakshané.

Download PDF here. The paper was published by JIPEL NYU Journal of Intellectual Property & Entertainment Law, Vol. 7 - No.1 on January 16, 2018.

Introduction
I. Patent Working Requirements
A. History of Patent Working Requirements
B. The Evolution of India’s Patent Working Requirement
1. Background
2. The Patents Act, 1970
3. India’s Current Working Requirement
C. The Indian Working Requirement and Natco Pharma Limited v. Bayer Corporation
D. Form 27 and India’s Reporting Requirement
E. Theory and Criticism of Form 27
II. Empirical Study of Indian Form 27 Disclosures in the Mobile Device Industry
A. Background: Existing Data and Studies
B. Methodology
C. Limitations
III. Findings
A. Aggregated Data – Forms Found and Missing
B. Working Status
C. Descriptive Responses
1. Working Status Not Disclosed
2. Patents Not Worked
3. Varied Interpretations of Working
4. Changes in Status
IV. Discussion and Analysis
A. Process Weaknesses
B. Non-Enforcement and Non-Compliance
C. Uncertainty Surrounding Working and Complex Products
D. Strategic Behavior
E. Opportunities for Further Study
Conclusion
Appendix

Introduction

In 2012, Natco Pharma Ltd. (“Natco”) petitioned the Indian Patent Office (“IPO”) for a compulsory license to manufacture Bayer’s patented cancer drug, Nexavar. Natco cited numerous grounds in support of its petition, including Nexavar’s high cost and limited availability in India. But along with these relatively common complaints in the global access to medicines debate, Natco raised a less typical theory; Bayer failed to “work” the patent sufficiently in India. In doing so, Natco invoked a seldom-used provision of Indian patent law that allows any person to seek a compulsory license under an Indian patent that is not actively being commercialized by its owner within three years from the issuance of the patent.

Patent working requirements exist in different forms throughout the world. Broadly speaking, to “work” a patent is to practice, in some manner, the patented invention within the country that issued the patent. While patents are seen as a means to create incentives for inventors to share their ideas, working requirements are intended to mitigate the exclusivity of patent monopolies by requiring the patent holder to disseminate its invention into the local market. The patent holder thereby imparts knowledge and skills to the local community, enhances economic growth, supports local manufacturing, and promotes the introduction of innovative new products into the local market.

While patent working requirements have existed in various jurisdictions for more than a century, working requirements have seldom been the subject of vigorous enforcement. The U.S.-Brazil dispute and the Natco case represent a revival of interest in patent working requirements. In particular, the Natco case has reintroduced questions of whether working requirements are, or should be, allowed under the TRIPS Agreement.

In prior work, Contreras and LakshanÈ have analyzed the domestic Indian patent landscape pertaining to mobile device technology. The authors now extend that work to examine the working of those patents. This Article presents a detailed case study of the Indian patent working statutes and their procedures, particularly the requirement that all patent holders file an annual form (Form 27) to demonstrate that their patents are being worked in the country. We collected and reviewed all publicly available Forms 27 in the mobile device sector to assess the completeness and accuracy of the information disclosed. We then analyzed the results to assess the robustness of India’s patent working requirement and its utility for complex information and communication-based products and technologies.

The remainder of this Article proceeds in four principal parts. Part I.A provides a brief history of patent working requirements. Part I.B describes the development of India’s current working requirements and its novel Form 27 filing requirement. Part II describes our empirical study of India’s Form 27 filings in the mobile device sector. Part III discusses our findings and analysis. We conclude with recommendations for further study and policy.

I. Patent Working Requirements

A. History of Patent Working Requirements

The origins of patent working requirements have been traced to the 1300s, when early patent privileges were granted in jurisdictions such as feudal England and the Republic of Venice, with an expectation that foreign innovators would teach the invented art to local industry. The underlying incentive for providing monopoly rights was thus tied to local industrialization. This incentive to share technology was directed not only to local citizens but, even more so, to foreign inventors. Countries issued patent privileges to encourage foreigners to migrate and develop or protect local industry by teaching their art to the local population. Local industrialization was thus considered a central means to economic development and technological advancement.

Despite these early developments, by the late 19th and early 20th centuries, developed countries’ conceptual understanding of a patentee’s obligation and its relevance to national development began to shift away from local manufacturing. As a result, in many developed countries disclosure through importation became sufficient to meet the “informational goal” of patents, particularly patents that represented improvements to existing technologies.

The 1883 Paris Convention for the Protection of Industrial Property prohibited the automatic forfeiture of a patent for a failure to work it locally. While both developed and developing countries disputed the proper remedy for the failure to work a patent, there remained a consensus that failure to work a patent was inconsistent with the patent privilege.

A half-century later, the 1925 Hague Conference, which amended the Paris Convention, recognized the failure to work a patent as an abuse that member states could “take necessary legislative measures to prevent.” As a remedy for non-working, drafters viewed compulsory licensing of non-worked patents as more palatable than outright forfeiture. Nevertheless, forfeiture of patent rights was still permitted under the Convention, though an action for forfeiture could not be brought until two years following the issuance of the first compulsory license covering the non-worked patent.In the 1967 Stockholm amendments to the Convention, further limitations on compulsory licensing for non-working patents were introduced, notably prohibiting member states from permitting the grant of a compulsory license for failure to work until three years after the issuance of the allegedly non-worked patent.

Within the flexibilities allowed by the Convention, developing countries continued to adopt strict working requirements and to resist international requirements that favored developed countries. For example, in the late 1970s and early 1980s, developing countries proposed revisions to the Paris Convention that would have provided that mere importation did not satisfy local working requirements and to permit the expansion of sanctions for non-working beyond compulsory licensing.

The desire of developed countries for stronger international rules relating to intellectual property led to the formation of the World Trade Organization (“WTO”) in 1994, under which the Trade Related Aspects of Intellectual Property Rights (“TRIPS”) Agreement was negotiated. While the TRIPS Agreement does not explicitly address patent working requirements, Article 2.1 incorporates Article 5A of the Paris Convention (i.e. the article related to compulsory licensing and the limitations on granting compulsory licenses discussed above), and Article 2.2 reinforces the existing obligations of members of the Paris Union. Additionally, Article 27.1 of the TRIPS Agreement, which establishes requirements for patentable subject matter, prohibits “discrimination as to the place of invention, the field of technology and whether products are imported or locally produced” raising a question as to whether countries with local working requirements must recognize importation as an acceptable manner of satisfying those requirements.However, Article 30 of the TRIPS Agreement permits a member state to allow exceptions to the exclusive rights of a patent holder, and Article 31 allows a state to issue a “compulsory” license under one or more patents without the authorization of the patent holder “in the case of national emergency or other circumstances of extreme urgency or in cases of public non-commercial use.” Given these mixed signals, commentators are divided on whether, and how, the TRIPS Agreement may affect local working requirements.

To date, the only WTO dispute challenging the validity of national working requirements has been between the United States and Brazil. In 2000, the Clinton administration, responding to concerns raised by the American pharmaceutical industry, initiated a WTO dispute proceeding to challenge Brazil’s local working requirement. The United States argued that Article 68 of Brazil’s 1996 Industrial Property Law violated Articles 27(1) and 28(1) of the TRIPS Agreement for discriminating against U.S. owners of Brazilian patents whose products were imported, but not locally produced, in Brazil.

Despite the pending WTO litigation, the Brazilian Ministry of Health adopted an aggressive stance toward reducing the price of antiretroviral medications and threatened to issue compulsory licenses for the local manufacture of two such drugs, both patented by U.S. companies, if they were not discounted by 50%. In response to political and public pressures, the United States and Brazil settled the dispute before any definitive opinion was issued by the WTO.

As a British colony, India’s pre-independence patent laws were modeled largely on then-prevailing English law. India gained its independence from Great Britain in 1947 and almost immediately began to consider the adoption of patent laws reflecting emerging national goals of industrialization and economic development. Thus, in early 1948, a committee known as the Tek Chand Committee was appointed to review and reconcile India’s patent laws with its national interests. The committee’s efforts resulted in the Chand Report, which recommended the use of compulsory patent licenses to stimulate India’s industrial economy.

A second major report commissioned by the Indian government and prepared primarily by Shri Justice N. Rajagopala Ayyangar, was issued in 1959. The Ayyangar Report suggested that India should deviate from the “unsuitable patent policies of industrialized nations” because patent regimes operate differently in developing versus developed nations. Recognizing that a significant weakness in developing nations “is that foreign patent owners do not work the invention locally,” the Ayyangar Report recommended compulsory licensing as “the remedy to redress the handicap of foreigners not working the invention locally.”

2. The Patents Act, 1970

The India Patents Act, 1970, was enacted in 1972. Among other things, it sought to address the economic repercussions resulting from foreign dominance of the patent landscape in India, as recommended by the Chand Report and the Ayyangar Report. Accordingly, Section 83 of the 1970 Act provides certain policy-driven justifications for India’s working requirements, explaining:

“that patents are granted to encourage inventions and to secure that the inventions are worked in India on a commercial scale and to the fullest extent that is reasonably practicable without undue delay; [and]

that they are not granted merely to enable patentees to enjoy a monopoly for the importation of the patented article[.]”

These provisions make clear that working a patent in India is both an important policy goal and consists of something more than importation of the patented article into India. Some additional knowledge transfer must occur so that manufacturing of other steps necessary for commercialization are carried out in India.

Following the Ayyangar Report’s recommendations, Section 84(1) of the 1970 Act provided for compulsory licensing of patents as follows:

“At any time after the expiration of three years from the date of the sealing of a patent, any person interested may make an application to the Controller alleging that the reasonable requirements of the public with respect to the patented invention have not been satisfied or that the patented invention is not available to the public at a reasonable price and praying for the grant of a compulsory licence to work the patented invention.”

These requirements, particularly the availability of the patented article to the public at a “reasonable price,” seek to address issues raised in the debate over access to medicines, and particularly the high pricing maintained by many Western pharmaceutical firms in developing countries.

However, working of patents more generally is incorporated into the compulsory licensing regime through Section 90, which clarifies when the “reasonable requirements of the public” will be deemed not to have been satisfied. In particular, Section 90(c) specifies that, for purposes of compulsory licensing under Section 84, “the reasonable requirements of the public shall be deemed not to have been satisfied Ö if the patented invention is not being worked in the territory of India on a commercial scale to an adequate extent or is not being so worked to the fullest extent that is reasonably practicable[.]” Thus, local working of patents is tied to the public interest and has become express grounds for requesting a compulsory license in India.

In addition to giving applicants the right to seek a compulsory license under non-worked patents, the 1970 Act also gave the Controller the power to revoke a patent on the grounds that the reasonable requirements of the public were not being satisfied or the patented invention was not available to the public at a reasonable price. Under Section 89(1), any interested person could apply to the Controller for such an order of revocation no earlier than two years following the grant of the first compulsory license under the relevant patent.

3. India’s Current Working Requirement

India became a member of the World Trade Organization on January 1, 1995, also making India a party to the TRIPS Agreement. In order to reconcile the 1970 Act with the TRIPS Agreement, India amended its Patents Act in 1999, 2002, and 2005. Most relevant to this Article, the 2002 amendments modified India’s compulsory licensing and working requirements.

India’s amended Patents Act retains strong working requirements, which permit the Controller to revoke unworked patents. Section 83 of the Act, as amended in 2002, provides several additional justifications for India’s patent working requirement not contemplated in earlier versions of the Act. For example, the 2002 amendments recognize that patents are intended to support the “transfer and dissemination of technology . . . in a manner conducive [sic] to social and economic welfare.” Several of the new justifications emphasize that patents should support, and not impair, the public interest, particularly “in sectors of vital importance for socio-economic and technological development of India.”

Against this backdrop, the amended Act explicitly makes compulsory licenses available for non-worked patents. Section 89 explains that one of the “general purposes” of compulsory licenses is to ensure that “patented inventions are worked on a commercial scale in the territory of India without undue delay and to the fullest extent that is reasonably practicable.” The amended Act expanded Section 84(1), which authorizes third parties to seek compulsory licenses, to include as an express basis for seeking a compulsory license “that the patented invention is not worked in the territory of India.”

Thus, new section 84(1)(c) establishes working of a patent as an independent ground for seeking a compulsory license, in addition to the grounds under sections 84(a) and (b) that the patented technology fails to reasonably meet public needs. This approach contrasts with the original 1970 formulation, discussed above, in which non-working of a patent formed a basis for seeking a compulsory license, but only as an element of the “reasonable requirements of the public,” rather than an independent ground in itself.

Section 84(6) specifies factors that the Controller must take into account when considering an application for a compulsory license, including:

(i) the nature of the invention, the time which has elapsed since the sealing of the patent and the measures already taken by the patentee or any licensee to make full use of the invention;

(ii) the ability of the applicant to work the invention to the public advantage;

(iii) the capacity of the applicant to undertake the risk in providing capital and working the invention, if the application were granted;

(iv) as to whether the applicant has made efforts to obtain a licence from the patentee on reasonable terms and conditions and such efforts have not been successful within a reasonable period as the Controller may deem fit [i.e., not ordinarily exceeding a period of six months] . . . .

Section 84(6) appears to represent a concession to patent holders, making clear that compulsory licenses will only be granted to applicants that are able to exploit the licensed patent rights in a manner that is likely to remedy the failure of the patent holder to work the patent.

While a formal definition of working is not provided under the statute, the language of section 83 suggests that the patented invention must be manufactured locally to the extent possible and that importation would be acceptable only if local manufacturing is unreasonable. Additionally, the statutory language suggests that if importation is necessary, only the patent holder or its chosen licensees may import the patented invention. The statute also fails to establish any circumstances that may be excused from India’s patent working requirement. This omission may have been intentional, perhaps suggesting that any technology that is worth patenting in India should also be capable of being worked in India.

In short, India’s patent working requirement is intended to be taken seriously. The penalties for failing to work a patent include the issuance of a compulsory license beginning three years after patent issuance, and if that does not fulfill public requirements for the patented article, possible revocation of the patent. Moreover, there is evidence that Indian courts may be reluctant to grant injunctive relief to patent holders that do not work their patents.

C. The Indian Working Requirement and Natco Pharma Limited v. Bayer Corporation

India’s patent working requirement was featured prominently in Natco’s recent compulsory license request with respect to Bayer’s Indian patent covering sorefanib tosylate, a kidney and liver cancer drug marketed by Bayer as NexavarTM. Bayer obtained an Indian patent covering Nexavar in 2008. Despite Bayer’s estimate that more than 8,800 patients in India were eligible to take the drug, its imports were sufficient to supply only 200 patients. Moreover, Bayer priced a monthly dose of the drug at more than 280,000 Rupees (approximately US$5,608), a price unaffordable to the vast majority of Indians. In response, Natco, an Indian generic drug manufacturer, attempted to negotiate a license with Bayer to manufacture and sell Nexavar in India. However, when negotiations were unsuccessful, Natco applied to the Drug Controller General of India for regulatory approval to manufacture a generic version of Nexavar in India. The approval was granted.

Natco then petitioned the Controller of Patents under section 84 of the Patents Act for a compulsory license to manufacture a generic version of Nexavar. Natco offered several justifications in support of its application for a compulsory license, including Nexavar’s high cost and limited availability in India. In addition, Natco argued that Bayer had failed to work its patent in India within three years of its issuance, as required under section 84(1)(c) of the Patents Act. Specifically, Natco argued that “[t]he patented product is being imported into India and hence the product is not worked in the territory of India to the fullest extent that is reasonably practicable.” Additionally, Natco argued that Bayer faced “no hurdle[s] preventing [it] from working the Patent in India” because Bayer already had “manufacturing facilities in India for several products.”

Bayer responded that it actively imported Nexavar into India, which demonstrated sufficient working, and argued that India’s working requirement did not require manufacture of the patented product in India. In evaluating Natco’s petition, the Controller considered the legislature’s intent, the Paris Convention, the TRIPS Agreement, and India’s Patents Act. In view of these authorities, the Controller interpreted the term “worked” to mean that the patented invention must be manufactured or licensed within India, reasoning that “[u]nless such an opportunity for technological capacity building domestically is provided to the Indian public, they will be at a loss as they will not be empowered to utilise [sic] the patented invention, after the patent right expires.” Under this interpretation, the Controller concluded that Bayer had not worked its patent in India since importation is not sufficient to constitute “working” a patent. Accordingly, in 2012 the Controller issued a compulsory license to Natco under Bayer’s patent covering Nexavar.

Bayer unsuccessfully appealed the Controller’s decision to the Indian Intellectual Property Appellate Board (IPAB). The IPAB affirmed the Controller’s decision, but disagreed with the Controller’s interpretation of the term “worked.” Instead of ruling that working categorically excludes importation of the patented product into India, the IPAB concluded that determining whether a patented invention is worked must be considered on a case-by-case basis. Thus, the term “worked” does not necessarily exclude importation, but it also does not strictly require manufacturing in India.

In affirming the decision of the IPAB, the Bombay High Court opined that “[m]anufacture in all cases may not be necessary to establish working in India[.]” However, the court implied that working a patent without local manufacture could be a high hurdle to clear, reasoning that the patent holder must then “establish those reasons which makes it impossible/prohibitive for it to manufacture the patented drug in India.” It is only when the patent holder satisfies the authorities that “the patented invention could not be manufactured in India” that it can be considered worked by import.

Apart from the working requirement, the Bombay court focused on whether Bayer had reasonably satisfied the requirements of the public, recognizing that those requirements might differ depending on the type of product covered by the patent. Thus, when assessing whether demand for the patented article was met to an “adequate extent,” the considerations pertaining, for example, to a luxury article would vary significantly from those pertaining to a lifesaving medicine. In the case of medicines, the court reasoned, meeting public demand to an adequate extent should be deemed to mean it is available to 100% of the market: “Medicine has to be made available to every patient and this cannot be deprived/sacrificed at the altar of rights of [the] patent holder.”

Following Natco’s successful application for, and defense of, its compulsory license, other generic drug manufacturers sought compulsory licenses to manufacture patented pharmaceutical products in India. For example, in 2013, BDR Pharmaceuticals, Ltd., an Indian manufacturer, filed an application for a compulsory license to manufacture Bristol Myers Squibb’s anti-cancer drug dasatinib (marketed as SprycelTM), and the Indian Ministry of Health recommended that the Department of Industrial Policy and Promotion (DIPP) grant local manufacturers compulsory licenses for trastuzumab, a breast cancer drug marketed by Roche (HerclonTM) and Genentech (HerceptinTM) and ixabepilone (Roche’s IxempraTM). To date, each of these petitions has failed for various reasons other than that pertaining to dasatinib, which remains under consideration by DIPP.

D. Form 27 and India’s Reporting Requirement

The Indian patent working requirement under Section 84 of the Patents Act, as well as the availability of compulsory licenses for non-worked patents, is not unique to India, and other developing countries have adopted similar legal requirements. India has, however, enacted what appears to be a unique reporting structure associated with its patent working requirement. India adopted a form submission requirement as a means to regulate the patent working requirement under the India Patents Act in 1970.Specifically, section 146(2) of the Patents Act provides that:

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.

In support of this statutory requirement, the patent rules adopted by the Indian Ministry of Commerce and Industry provide that the required statements of working must be submitted in a prescribed format (Form 27). The rules also provide that such statements must be furnished to the Controller of Patents in respect of every calendar year within three months following the end of such year.

Form 27, a template of which is appended to the 2003 version of the Indian patent rules, requires the patent holder to disclose “the extent to which the patented invention has been worked on a commercial scale in India.” To that end, Form 27 requires that the patent holder complete the following information:

The patented invention:

(i) { } Worked { } Not worked [Tick (✓) mark the relevant box]

a. if not worked: reasons for not working and steps being taken for the working of the invention.

b. if worked: quantum and value (in Rupees), of the patented product:

manufactured in India

imported from other countries (give country wise details)

(ii) the licenses and sub-licenses granted during the year;

(iii) state whether the public requirement has been met partly/adequately/to the fullest extent at reasonable price.

Under Section 122, failing to submit a Form 27 or providing false information on the form may lead to a significant fine, imprisonment, or both.

Though India’s working requirement first appeared in the Patents Act in 1970, it appears to have been ignored until around 2007. In 2007, the Controller first mentioned the local working of patented inventions in his annual report. The reports provided by the Controller between 2007 and 2009 indicate that, on average, less than 15 percent of Indian patents were being worked commercially. In 2009, 2013 and 2015, the Controller issued public notices calling on patent owners to comply with their obligations to file statements of working on Form 27.

While the penalties for failing to furnish information via Form 27 are steep, potentially resulting in fines or imprisonment, local critics claim that many patent holders fail to make the required filings and that the Indian government has never taken meaningful action to penalize this non-compliance.

On February 12 2013, the Indian Patent Office announced plans to make Form 27 submissions for the year 2012 available to the public via the IPO website. As discussed in Part II.A below, that effort has been met with limited success.

E. Theory and Criticism of Form 27

There is little legislative or administrative history explaining the genesis of India’s unique Form 27 requirement. On one hand, a requirement that the details of patent working be disclosed by patent holders supports the goal of making unworked patents available for compulsory licensing in India, both to promote economic development and public access to patented products. A public registry of Forms 27 could also shift enforcement of India’s working requirement from the IPO and Controller to private sector entities with the greatest incentive to monitor the working of patents in their respective industries. This shift could relieve India’s resource-strapped administrative agencies of a potentially significant policing function, one that it does not appear they were actively enforcing in any event.

However, it is not clear that these goals are well served by the current Form 27 framework, which has been criticized by a number of local commentators. For example, the IPAB ruled in Natco that the term worked must be decided on a case-by-case basis. How, then, should patent holders answer the first question posed in Form 27 and its sub-questions? How is a patent holder to know whether importation or licensing in a certain case will qualify as working a patent in India? If the Form is intended to increase transparency and certainty regarding the working of patents in India, it is hindered in so doing by the lack of a formal definition of working. This lack of clarity affects both patent holders, who are less able to order their affairs so as to comply with statutory working requirements, as well as potential compulsory licensees, who lack a clear assurance of when a compulsory license petition will be successful.

Commentators have raised a variety of additional critiques of the Form 27 framework. The U.S.-based Intellectual Property Owners Association, in a formal 2014 submission to the U.S. Trade Representative, has referred to the Form 27 process as “highly burdensome” and warns that the information disclosed in publicly-accessible forms could “result in even greater pressure on Indian authorities to compulsory license [patented] products.”Moreover, the association argues that Form 27 does not adequately recognize that some patents may be practiced by multiple products, or that multiple patents may be practiced by a single product. Thus, it may be unrealistic for patent holders to attribute a “specific commercial value” to specific patented features of complex technologies.

Additionally, a number of Indian practitioners have raised concerns that the public disclosure of confidential plans for working patents through Form 27 may jeopardize or destroy valuable trade secrets and proprietary information. This threat could cause patent holders to disclose as little specific or valuable information as possible in their Form 27 filings, a result that is suggested by the findings discussed in Part III below.

Based on studies of filed Forms 27, Professor Shamnad Basheer, has concluded that India’s local working Form 27 submission requirements are not being taken seriously, particularly by international pharmaceutical companies. As a result, in 2015 Professor Basheer initiated public interest litigation in the High Court of Delhi against the Indian government for failure to comply with India’s patent laws. The suit seeks a judicial order compelling the Indian government “to enforce norms relating to the disclosure of ‘commercial working’ of patents by patentees and licensees” and to take action “against errant patentees and licensees for failure to comply with the mandate.” In 2016 an Indian patent attorney, Narendra Reddy Thappeta, filed an application to intervene in Basheer’s public interest suit, among other things, in order to raise issues regarding the difficulty of complying with Form 27 requirement for information and communication technology providers.

Despite its perceived problems, Form 27 has proven useful in Indian proceedings. Notably, the information disclosed in Bayer’s Form 27 filings played an important role in the Natco case by helping to establish the low number of patients having access to the drug. Basheer refers to the working requirement as “a central pillar of the Indian patent regime” and views the disclosure requirements of Form 27 as essential tools to ensure that needed information is made public.

II. Empirical Study of Indian Form 27 Disclosures in the Mobile Device Industry

In order to gain a better understanding of India’s patent working requirement, particularly patent holders’ compliance with the statutory requirement to declare information about the working of their patents through Form 27, we conducted an empirical study of all available Form 27 submissions for Indian patents in the mobile device sector. In this Part, we describe the objectives, background and methodology of this study.

A. Background: Existing Data and Studies

Every year, the Controller publishes an Annual Report containing statistics relating to patent filings in India. Since 2010, this report has contained data relating to Form 27 filings. This data indicates that a significant number of patent holders fail to file Form 27 as required. Below is a summary of this data as derived from the Controller’s Annual Reports from 2010 to 2016:

Table 1

Indian Controller of Patents Form 27 Filing Data (2010-2016)

Under the Patents Act, a Form 27 must be filed every year with respect to every issued patent in India. Accordingly, the discrepancy between the number of patents in force for a given year and the number of Forms 27 filed likely indicates non-compliance with the filing requirement. Interestingly, it appears that instances of non-compliance dropped noticeably in years immediately after the Controller issued its public reminders to file Form 27 in December 2013, February 2013 and early 2015. Even so, compliance has not been complete even in these years.

As noted above, Professor Shamnad Basheer has conducted two studies of Form 27 compliance in India. The first study, released in April 2011, focused on the pharmaceutical sector. The researchers selected seven pharmaceutical products directed at either cancer or hepatitis, all of which were subject either to Indian litigation or patent office oppositions and were patented in India between 2006 and 2008. They then collected Form 27 filings relating to each of these patents through a series of Right to Information (RTI) petitions to the Indian Patent Office (IPO). Based on the Forms produced by the IPO in response to these requests, the researchers found significant non-compliance with Form 27 filing requirements: some firms failed to file forms in some years, while some forms that were filed were incomplete.

Professor Basheer’s second study had a broader scope, covering a total of 141 patents: 52 patents held by 13 firms in the pharmaceutical sector, 52 patents held by 7 firms in the telecommunications sector, and 37 patents held by 4 institutions which are claimed to have arisen from publicly-financed research. The researchers used series of RTI petitions to collect a total of 263 Forms 27 corresponding to these patents filed between 2009 and 2012.

Based on a total of 141 patents, full compliance with Form 27 filing requirements would have yielded 423 Forms 27 over the three-year period studied. The total of 263 Forms identified indicates a non-compliance ratio of approximately 38%, assuming that all filed forms were produced by the IPO. A review of the reported data indicates that some firms, particularly in the pharmaceutical sector, were assiduous in filing Forms 27. For example, Genentech and Janssen Pharmaceuticals, with two patents each, each filed six Forms 27, suggesting full compliance. Other firms, however, fell far short of this measure. Apple, for example, with four patents, filed only one Form.

In addition to raw filing statistics, Prof. Basheer investigates the quality of the disclosures made in individual Forms 27. He finds that significant numbers of filed Forms “were grossly incomplete, incomprehensible or inaccurate.” For instance, numerous forms failed to indicate how patents were being worked or the quantity, value or place of manufacture of patented products as required by the Form. In addition, of forty-two Forms that disclosed non-working of a patent, twenty-eight (65%) failed to offer any reason for non-working. Though the raw data underlying these conclusions does not appear to be publicly available, choice excerpts from a few Forms are offered.

While the prior studies cited above suggest that there are substantial non-compliance issues with Form 27 practice in India, additional data is required to develop a more complete understanding of this issue. The Controller’s annual report data is provided only at a gross level and lacks any detail regarding compliance. Prof. Basheer’s pioneering studies, while first alerting the public to the problems of non-compliance, cover only small, non-random samples of patents and end prior to the general online availability of Forms 27.

B. Methodology

In this study, we sought to assess annual Form 27 submissions across a comprehensive set of patents and a substantial time frame. To do so, we utilized a set of 4,052 Indian patents identified by Contreras and LakshanÈ as of February 2015 in a prior study of the Indian mobile device patent landscape (Landscape Study). Another 367 patents pertaining to mobile device technology, which were not included in the original Landscape Study, were also identified by an independent contracted search firm. In the aggregate, we analyzed 4,419 Indian patents issued as of February 2015 in the mobile device sector, which we believe to represent the large majority of issued Indian patents in this sector as of the date selected.

We identified Form 27 filings with respect to each such patent through searches of two public online databases maintained by the Indian Patent Office: Indian Patent Advanced Search System (“InPASS”) and Indian Patent Information Retrieval System (“IPAIRS”). We manually eliminated duplicate results obtained from these two databases.

Our initial searches in 2015 yielded Form 27 submissions for only 1,999 out of 4,419 patents. These searches yielded no Forms 27 for some firms known to be significant patent holders in the mobile devices industry. To attempt to locate the missing forms, LakshanÈ, through the Centre for Internet and Society (CIS), submitted two formal requests to the IPO located in Mumbai under the Indian Right to Information (“RTI”) Act of 2005. The first RTI application was submitted on June 10, 2015, requesting Form 27 information for over 800 patents. On June 17, the IPO replied with generic instructions on how to find Form 27 submissions online. A second RTI application was filed on March 11, 2016. The second request sought Form 27 filings pertaining to 61 of the remaining patents. These 61 patents were selected to represent a sample of patents held by the full cross-section of patent holders identified in the Landscape Study. In April 2016, the IPO replied that, due to internal resource constraints, it could only provide CIS with Forms 27 for eleven (11) of the requested patents.

Nevertheless, a few days after IPO’s reply, Form 27 submissions pertaining to patents in the Landscape Study started appearing on InPASS and IPAIRS. We repeated the search for Forms 27 corresponding to all 4,419 patents in our dataset in August 2016 and obtained a total of 4,935 Forms 27 corresponding to a total of 3,126 patents (an increase of 1,127 patents over the initial search).

All Forms 27 that we accessed were downloaded as PDF files or original image files and manually entered into a text-searchable spreadsheet maintained at CIS. All information from the Forms 27 was transcribed into the spreadsheet, including all textual descriptions of patent working and licensing. The results were then analyzed as described in Part III.A below.

C. Limitations

The present study was limited by the technical capabilities of the IPO’s online Form 27 repository. As described above, we found significant gaps in posted Forms 27 in our initial search, and it took a formal RTI application to spur the IPO to upload additional forms. Yet, we still identified 1,400 fewer Forms 27 than issued patents in the mobile devices category. The degree to which these missing forms arise from abandoned or expired patents, or additional failures of the IPO to upload filed forms, is unclear. Other than the IPO web site, there is no practical way to identify or access Forms 27 filed with the IPO. Technical issues with the InPASS and IPAIRS databases were constant challenges during this study. The databases were frequently unavailable, produced conflicting results, and were subject to numerous runtime errors and failures.

Despite these technical challenges, we believe that we have identified a large segment of filed Forms 27 covering Indian patents held by all major patent holders in the mobile device sector. We hope that this study will further encourage the IPO to improve the regularity and reliability of its Form 27 database.

III. Findings

In this Section, we describe the findings of our empirical collection analysis of Forms 27 pertaining to Indian patents in the mobile device sector.

A. Aggregated Data ñ Forms Found and Missing

As noted above, we used a dataset comprising 4,419 Indian patents in the mobile device sector issued as of February 2015. Of these, at least 107 patents were likely expired prior to the date on which a Form 27 would have been filed, leaving 4,312 patents for which at least one Form 27 could have been filed.

We were able to identify and obtain a total of 4,916 valid Forms 27which corresponded to 3,126 of these patents, leaving 1,186 Indian patents for which a Form 27 could have been filed, but was not found. This total represents 27.5% of the patents for which at least one Form 27 could have been filed: a significant portion of the total number of patents in the field, and within the general range of missing Forms identified by both the Controller and Basheer (2015).

Based on the year of grant of each of the 4,312 patents identified in the mobile device sector as to which a Form 27 could have been filed, we determined that a total of 24,528 Forms 27 should have been filed with respect to these patents. This figure represents the sum of total Forms 27 that could have been filed for each such patent, which ranges from a low of one to a high of eight Forms 27 per patent. In our sample, no single patent was associated with more than five Forms 27. As noted above, we obtained a total of 4,935 Forms 27 filed with respect to 3,126 patents, representing only 20.1% of the total Forms 27 that should have been filed and made available with respect to the 4,312 patents studied. Figure 1 below compares the number of Forms 27 filed in each year since 2009 with the number of Forms 27 that should have been filed each year based on the number of mobile device patents in force from year to year.

Figure 1

Actual vs. Required Form 27 Filings, by year (based on number of mobile device patents in force)

As shown in Figure 1, Form 27 filings have fallen well below the required number every year. In 2009, the first year in which Forms 27 were filed in any numbers, only 36 Forms were filed, representing only 2.8% of the 1,302 Forms that should have been filed based on the number of mobile device patents in force that year. By 2013, the number of Forms filed rose to 2,389, representing 70.7% of the 3,379 Forms that should have been filed. This ratio declined again in 2014 to 1,392 Forms out of a total of 3,639 (38.3%). Data for 2015 and 2016 are likely incomplete given the February 2015 cutoff for patents in our study. We also expect that many of the 1,186 “missing” Forms 27 were filed more recently and have not yet been uploaded by the IPO in a searchable format.

One possible explanation for the beginning of filings in 2009 and the significant jump in filings in 2013 may be the Controller’s public notifications of the need to file Forms 27 in 2009 and 2013.

Figure 2 below illustrates the number of issued patents in the mobile device sector for which Forms 27 were found and missing, categorized by patent holder (assignee). Complete data is contained in the Appendix, Table A1.

Figure 2

Forms 27 (Identified and Missing) Per Assignee

As shown in Figure 2, missing Forms 27 were distributed among most holders of Indian patents in the mobile device sector. Of the 40 firms identified as holding issued mobile device patents, Forms were missing for 37 of these (92.5%). In most cases, more Forms 27 were found than missing. In a few cases, however (most notably Philips), more Forms 27 were missing than found. In the case of four large patent holders (Qualcomm, Siemens, Philips and Samsung), more than 100 Forms 27 were missing. Forms 27 were missing for patents with issuance dates ranging from 2004 to 2015.

There are several possible reasons that Forms 27 may not have been identified for all issued Indian patents. One possibility, is non-compliance by the patent holder. This is likely the case with respect to the early years (2009-2010), when filing requirements were not yet normalized. However, in more recent years, the following factors suggest that patent holder non-compliance is not a significant cause of missing Forms 27 in the IPO database: (1) Forms 27 were missing for nearly all patent holders across the board, (2) large patent holders filed hundreds of Forms 27 and were clearly aware of their filing requirements, (3) the incremental cost of filing Forms 27 is minimal, and (4) in most cases, large patent holders simply copy text from one form to another (not in itself ideal, see below), requiring little incremental effort to file additional forms. Rather, given our experience with IPO during this study (see Methodology, above), we expect that the missing forms are due largely to the IPO’s failure to upload Forms 27 to its web site in a timely and reliable manner, and the dropping of Forms 27 once uploaded.

B. Working Status

As noted above, we reviewed 4,935 Forms 27 filed with respect to 3,126 patents in the mobile device sector. Figure 3 below illustrates the number of patents for which Forms 27 were filed and which the assignee designated that the patent was worked versus not worked (or, in a few cases, made no indication of working status).

Figure 3

Working Status, by Assignee

These results suggest that different patentees have developed significantly different strategies regarding their Form 27 filings. For example, Qualcomm, the largest holder of patents in the mobile device sector (1,298 patents, 993 of which have associated Forms 27), represents that nearly all of its patents (986, 99.3%) are being worked. Samsung, on the other hand, holds the second-highest number of patents (551 patents, 430 of which have associated Forms 27). Yet Samsung claims that it is working only 12 of its patents (2.3%). Clearly, these two patentees are employing different strategies regarding the declaration of working. A glance at Figure 3 suggests that some patentees such as RIM (now renamed Blackberry) follow Qualcomm’s approach of declaring most patents to be worked, while others (Ericsson, LG, Motorola, Panasonic, Philips, Siemens) follow Samsung’s approach and declare most patents not to be worked.

Of course, one might reason that there may be some difference between the patents themselves, and that the patentees’ declarations may simply reflect the fact that some firms’ patents are used more pervasively in India. This conjecture, however, is unlikely. Most of the patentees studied are large multinationals whose patents cover the same products. Many of these patents are declared as essential to the same technical standards. Moreover, given the generally ambiguous evidence proffered by patentees supporting their designated working status (see Part III.C, below), we doubt there are substantial enough differences among the patentees’ portfolios to account for the significant divide in declarations of working status.

C. Descriptive Responses

As noted above, Form 27 requires the patentee to disclose whether or not a patent is being worked in India. If so, the patentee must disclose the number and amount of revenue attributable to products covered by the patent that are manufactured in India and are imported from other countries. If the patent is not being worked, the patentee must explain why and describe what steps are being taken to work the invention. In both cases, the patentee must also identify licenses and sublicenses granted and state how it is meeting public demand for products at a reasonable price.

As first observed by Basheer, there is widespread non-compliance with these reporting and disclosure requirements. We largely confirm this result. Below is a summary of our findings with respect to the descriptive responses for the 4,935 Forms 27 that we reviewed.

1. Working Status Not Disclosed

For a surprising number of Forms 27 (95 or 3%), the working status of the relevant patent was not designated (i.e., neither the box for “worked” nor “not worked” was checked by the patentee). Table 1 below shows the patentees that filed Forms 27 in this manner.

Table 1

Forms 27 Failing to Disclose Working Status

Clearly, these sophisticated multinational firms understood the filing requirements for Form 27 and, in most cases, filed additional Forms 27 that did indicate whether the relevant patent was or was not being worked. Thus, the principal reason for filing a Form 27 without designating its working status appears to be the patentee’s uncertainty regarding the patent’s working status in India.

Illustrating this point, Motorola declares in several of its Forms of this nature that “[i]t is not possible to determine accurately whether the patented invention has been worked in India or not, due to the nature of the invention.” While Motorola fails to explain how “the nature of the invention” makes it impossible to determine whether or not the patent is being worked, it uses this litany in most of its Forms 27 that fail to disclose working status. Ericsson adopts a slightly different approach, stating that while it is actively seeking opportunities to work the patent, there may have been some uses of the patented technology. Thus, again, it is uncertain whether the patent is being worked or not. Presumably, these patentees felt that it was preferable to file an incomplete, rather than incorrect, Form 27.

Interestingly, most patentees never revised their working non-designations over the years. Thus, if a patent was not designated as worked or not worked in the first year a Form 27 was filed, subsequent filings for that patent typically duplicated the language of prior years’ filings. One exception appears to be Google, which acquired Motorola’s patent portfolio in 2012. For Indian Patent No. 243210 issuing in 2010, Motorola filed Forms 27 in 2010 and 2011 without indicating whether or not the patent was worked. However, in 2013, Google/Motorola filed a Form 27 for the same patent indicating that it was not worked.

Google has elected to opt for non-working when it is uncertain of the working status of a patent. For example, the following qualified language is used in several Forms in which Google indicates that a patent is not being worked:

Based on a reasonable investigation, it is Google’s belief that the patent has not been worked in India. The uncertainty arises because Google’s products and services are covered by numerous patents belonging to Google’s very large worldwide patent portfolio, and Google does not routinely keep track of which individual patent is being employed in Google’s products and services. The present statement is being filed on the basis of Google’s current estimation, but Google requests opportunities to revise the statement, should it transpire at a later date that the patent is being worked contrary to their present belief.

2. Patents Not Worked

We examined a total of 2,380 Forms 27 that indicated the relevant patents were not being worked. If a patent is specified as not being worked, the patentee must disclose the reasons for the failure to work the patent, and describe what steps are being taken to work the invention.

In a small number of cases, the patentee offered some plausible explanation for non-working of the patent. The most common of these, claimed by in Ericsson in thirty-six Forms 27, was that the underlying technology was still under development, making working impossible, at least until that development was completed. In a handful of other Forms 27 (6), Ericsson and Nokia have claimed that a patent was not being worked because it covered a technology awaiting approval or endorsement by a standards body. In the vast majority of cases, however, no explanation is offered as to why a particular patent is not being worked.

With respect to disclosure of the patentees’ plans for working a non-worked patent, most simply include stock language stating that they are “actively seeking” or “on the lookout for” commercial working opportunities in the future. Alcatel-Lucent adopted an even more passive and non-specific stance toward its plans to work patents, stating in numerous Forms 27 (applicable to 29 patents) that “as and when there is a specific requirement, the patent will be worked.”

3. Varied Interpretations of Working

We reviewed 2,425 Forms 27 that listed the subject patent as being worked. In such cases, the patentee must disclose the number and amount of revenue attributable to products covered by the patent, whether manufactured in India or imported from other countries. A tiny percentage of the Forms 27 that we reviewed provided this information in the form requested. As we discuss in our conclusions, below, it is likely that the format of the required response is simply unsuitable for complex products such as mobile devices. Below we summarize and classify the types of responses that patentees offered regarding the working of their patents.

a. Specific Information ñ Very few Forms 27 actually provide the specific product volume and value information required by the Form. The only patentee that provided the specific information required by Form 27 was Panasonic, which, with respect to the only two patents that it claimed to work (of a total of 66 Indian patents as to which a Form 27 was found), listed specific product volumes and values.

Other patentees disclosed specifics regarding the technical details of their worked patents, but declined to provide product volume and value information. For example, Ericsson discloses: “the stated patent covers a specific detail of data transmission to a mobile in a GSM or WCDMA mobile network where said transmission of data is not performed if the mobile has not enough battery capacity left for the transfer.” Ericsson goes on, however, to explain that because this patented technology is intended to be used in conjunction with other patented technologies, it is not possible to provide the financial value of the worked patent “in isolation.” Oracle also adopts this approach of offering specific product information, while declining to estimate associated sales volume or revenue.

b. Relevance to a Standard ñ In several cases, a patentee describes its patented invention by reference to an industry standard. For example, Nokia-Siemens utilize the following description for one patent that is allegedly worked: “Invention relevant for IEEE 802.16-2009 and IEEE 802.16-2011 standard.” While the patentee offers no additional information regarding the working of the patent, the desired implication, presumably, is that the patent covers an aspect of the standard, and if the standard is implemented in products sold in India (as it likely is), then the patent is thereby worked.

Some patentees offer less specific information regarding the standards that their patents cover. For example, Ericsson states in one Form that “This patent is essential for a 3rd Generation Partnership Project (3GPP) standard and Ericsson is also, subject to reciprocity, committed to make its standard essential patents available through licensing on fair, reasonable and Non-discriminatory (FRAND) terms.” In this formulation, the patentee appears both to be implying working of the patent by virtue of the implicit inclusion of the standard in Indian products, and also to be making known its willingness to enter into licenses in the future on FRAND terms. This future-looking perspective, however, is not responsive to the information called for by Form 27 for patents that are allegedly being worked, and implies that the patent is not, in fact, being worked yet in India.

c. Indian Licensees ñ Some licensees, Qualcomm in particular, disclose that they have licensed their patents to Indian firms. These licenses are disclosed in Qualcomm’s Forms 27 for various patents. However, it is not clear what manufacturing or other activity is carried out by these Indian licensees. Ericsson, which has been engaged in litigation with numerous Indian and Chinese vendors of mobile devices in India, reports that it is receiving royalties from at least two of these entities under court order, though it stops short of stating that these entities are licensed under Ericsson’s patents.

d. Worldwide Licensees ñ In addition to Indian licensees, Qualcomm discloses that, as of 2014, it had granted worldwide CDMA-related patent licenses to more than 225 licensees around the world, and that CDMA-based devices were imported into India from “countries such as Canada, China, Finland, Germany, Italy, Japan, Korea, Switzerland, Taiwan, and the United States.” While Qualcomm is not specific regarding the linkage, if any, between its worldwide licensees and mobile devices sold in India, it reports that more than 37.7 million CDMA-based mobile devices were sold in India in 2014 at an average price of USD $161.94. And though not express, the implication of these data is that all CDMA-based mobile devices sold in India somehow utilize Qualcomm’s patented technology.

The granting of worldwide licenses raises an interesting question regarding local working of patents. As Ericsson (which claims to have executed more than 100 patent licensing agreements) explains, its global licensees are, by definition, licensed in every country, including India. Because their global license agreements “are operational in India”, the licensees are theoretically authorized to work Ericsson’s patents in India. But it is not clear that this means that the patents are actually being worked in India. Simply granting a worldwide patent license does not mean that the licensed patent is being worked, just as the issuance of a patent in a country does not mean that the patent is being worked in that country.

e. Too Big to Know ñ Some patentees claim that they or their patent portfolios are simply too vast to determine how particular patents are being worked in India, or the number or value of patented products sold in India. Nokia, for example, uses the following language in 82 separate Form 27 filings: “Nokia’s products and services are typically covered by tens or hundreds of the nearly 10,000 patents in Nokia’s worldwide portfolio. Nokia does not keep records of which individual patents are being employed in each of Nokia’s products or services, and is therefore unable to report the quantum and value of its products or services which employ the patented invention.”

In a similar vein, Ericsson notes that its patented technologies are intended to be used in combination with a large number of other technologies patented by Ericsson and others. Accordingly, “it is close to impossible to prove an indication of specific or even close to accurate financial value of the said patent in isolationÖ” This said, Ericsson goes on to disclose its total product sales in India (3.09 billion SEK in 2013) and also notes that it earns revenue from licensing its patents (without disclosing financial data).

f. On the Lookout ñ Curiously, some patentees that claim to be working their patents use the same language regarding their search for working opportunities as they and others use with respect to non-worked patents. For example, Ericsson makes this statement regarding some of the patents that it is allegedly working in India: “The patentee is in the lookout for appropriate working opportunities in a large scale although there may have been some use of the patented technology in conjunction with other patented technologies.” This language is uncertain and does not seem to support a claim that, to the patentee’s knowledge, the patent is actually being worked. At best, it expresses optimism toward the possibility of finding an opportunity to work the patent in the future.

g. Information Provided Upon Request ñ Some patentees decline to provide any information about the working of their patents in Forms 27, but offer to provide this information if requested (presumably by a governmental authority). Some patentees further explain their hesitation to provide this information in Form 27 on the basis that the information is confidential, but commit to provide it if requested.

h. Corporate PR ñ Some patentees, in addition to, or in lieu of, providing information about their patents, offer general corporate information of a kind that would often be found in corporate press releases and annual reports. For example, Research in Motion offers this glowing corporate report in lieu of any information about its allegedly worked patents:

Patentee is a leading designer, manufacturer and marketer of innovative wireless solutions for the worldwide mobile communications market. Through the development of integrated hardware, software and services that support multiple wireless network standards, the patentee provides platforms and solutions for seamless access to time-sensitive information including email, phone, SMS messaging, internet and intranet-based applications. Patentee’s technology also enables a broad array of third party developers and manufacturers to enhance their products and services with wireless connectivity. Patentee’s portfolio of award-winning products, services and embedded technologies are used by thousands of organizations around the world (including in India) and include the Blackberry wireless platform, the RIM Wireless Handheld product line, software development tools, radio-modems and software/hardware licensing agreements.

RIM then goes on to explain that it has so many patents that identifying how the instant patent is worked in India is impossible (see “Too Big to Know” above).

Ericsson likewise offers a bit of self-serving corporate history in twenty-eight different Forms 27 in which it states:

Ericsson’s history in India goes back 112 years during which period Ericsson has contributed immensely to the telecommunication field in India. Ericsson provides, maintains and services network for several major government and private operators in India. At present, Ericsson has more than 20,000 employees across 25 offices in India. Further, Ericsson has established manufacturing units, global service organization and R&D facilities in India…

i. Just Don’t Know ñ Some patentees simply assert that they are unable to determine information regarding working of their patents, without any explanation why. Alcatel-Lucent, for example, offers the following unsatisfying disclosure with respect to the eight patents that it claims to be working in India: “The patentee is unable to particularly determine and provide with reasonable accuracy the quantum and value of the patented invention worked in India, including its manufacture and import from other countries during the year 2014.”

j. No Description ñ Some patentees simply omit to provide any information whatsoever regarding the working of their patents, even when patents are allegedly worked.

4. Changes in Status

While some of the “boilerplate” responses provided by patentees in their filed Forms 27 might suggest that patentees give little thought to the content of Form 27 filings, we identified a small but non-trivial number of patents (4.1%) as to which the patentee changed the working status, either from worked to not worked, or vice versa. Overall, we identified 128 instances in which the working status of a patent was changed from one year to the next. Of these, 51 went from worked to not worked, and 77 went from not worked to worked. Such changes suggest that patentees give at least some thought to the manner in which they work their patents, and seek to correct inaccurate disclosures, though these observed variances could also be attributed to changes in law firm, changes in interpretation of filing requirements or mere clerical errors and inconsistencies in filings from year to year.

In 17 cases, the status of the same patent changed twice over the course of three or more Forms 27. Almost all of these three-stage “flip-flops” moved from worked to not worked to worked, with the aberrant ‘not worked’ year occurring in 2013. In fact, 2013 seems to have been a popular year for changes in working status, whether because of heightened awareness, and therefore greater scrutiny of Form 27 filings due to the Controller General’s public notice of that year, or changes in interpretation of filing requirements occasioned by a widely-attended seminar or article. But whatever the cause, it seems highly unlikely that, over the course of three years, a single patent could go from being worked in India, to not being worked, to being worked again. As a result, we attribute these flip-flop changes primarily to filing errors and inconsistencies rather than genuine attempts to correct inaccurate disclosures.

Corresponding to changes in working status, patentees often changed the textual descriptions of working or non-working contained in their Forms 27. These changes usually involved adding stock language regarding working or non-working to a Form 27 that previously contained no descriptive information. However, in some cases the patentee’s descriptive text bears little relation to the purported working status of the patent. For example, as illustrated in Table 2 below, a single patentee’s disclosures with respect to two different patents across three filings employ the same textual descriptions but for different working status.

Table 2 Comparison of Working Status Descriptions

As illustrated by Table 2, the patentee’s working description (Text A) is identical in 2011 and 2014 for both patents, though in 2014 one patent is allegedly worked and the other is not. Likewise, in 2013, one patent is worked and the other is not, yet the textual description for both is identical (Text B). Putting aside, for a moment, the fact that neither Text A not Text B is particularly responsive to the information requirements of Form 27, it is puzzling why the patentee would use the same stock language to describe both working and non-working of its patents. The only consistency that emerges from this example is across filing years, suggesting, perhaps, that the textual descriptions used in these forms was more dependent on the person or firm making the filing in a particular year than the alleged working status of the patents in question.

IV. Discussion and Analysis

Professor Basheer charges that significant numbers of Forms 27 are “grossly incomplete, incomprehensible or inaccurate,” and has sued the Indian Patent Office to compel it to improve its monitoring and enforcement of Form 27 filings. Our results confirm that there are overall weaknesses in the Indian Form 27 system, several of which reveal deeper problems with the implementation of India’s patent working requirement.

A. Process Weaknesses

Though filings in support of India’s patent working obligation have been required since 1972, and Form 27 has been on the books since 2003, meaningful filings of Form 27 did not begin until the Controller’s first public notice on this topic in 2009. In the following eight years, Form 27 filings have increased, but are still well below required levels (see Part III.A, above). Even at their peak in 2013, we located only 70.7% of required Forms 27 in the mobile device sector, a sector characterized by sophisticated firms that are advised by counsel. Filing ratios were significantly lower in every other year.

There are several possible reasons for these discrepancies. First are possible issues with the IPO’s electronic access to records. As noted in Part II, we experienced significant difficulties obtaining Forms 27 through the IPO’s web site. It was only after two RTI requests that significant numbers of Forms 27 were made accessible online. It is possible that the IPO has additional Forms 27 in its files that have not been made accessible electronically. For a system the purpose of which is to make information about non-worked patents available to the public, such lapses are inexcusable, particularly given that India’s current working requirement is nearing its 50th anniversary. Accordingly, we expect that improvements to the IPO’s electronic filing and access systems may improve the profile of Form 27 filing compliance.

B. Non-Enforcement and Non-Compliance

As noted above, we expect that some portion of the apparent non-compliance with India’s Form 27 requirement is attributable to the inaccessibility of properly filed Forms 27. However, it is also likely that some portion of the deficit in available Forms 27 is due to actual non-compliance by patentees. Though there are stiff penalties on the books for failing to comply with Form 27 filing requirements, including fines and imprisonment, we are unaware of any enforcement action by the IPO or any other Indian governmental authority regarding such non-compliance.

Given that records of all issued Indian patents are available online, and that all filed Forms 27 should also be available online, it would not seem particularly difficult for the IPO to implement an automatic monitoring and alert system warning patentees that they have not filed required Forms 27. Such a system would likely increase compliance substantially. However, we find no evidence that the IPO monitors or otherwise keeps track of Form 27 filings or seeks to contact patentees who fail to meet their filing requirements. As a result, it is not surprising that non-compliance is widespread.

C. Uncertainty Surrounding Working and Complex Products

When Forms 27 are filed, many of them lack any meaningful detail regarding the manner in which patents are worked or the reasons that they are not worked. While the descriptive requirements of Form 27 are quite clear, even the largest and most sophisticated patentees seemingly struggle with determining whether or not a patent is actually worked in India and, if so, how to quantify its working in the manner required by the Form. There are several reasons that this degree of uncertainty exists. First, India has no clear statutory, regulatory or judicial guidelines for interpreting its working requirement. As the court noted in Natco, the working determination must be made on a case by case basis, with attention to the specific details of the patent in question. This open-ended standard offers little guidance to firms regarding the degree to which importation or licensing may qualify as working a patent, or even what degree of assembly, packaging or distribution within India will so qualify.

Additionally, some patentees have taken the position in their Forms 27 that merely licensing a patent to an Indian firm qualifies as working the patent in India. Some have even gone so far as to take the position that granting a worldwide patent license qualifies as working the licensed patent in India, given that India is part of the world. These conclusions seem stretched, but they have not, to our knowledge, ever been challenged by the IPO or any private party.

What’s more, several patentees take the position that it is impossible to determine the value attributable to a single patent that covers only one element of a complex standard or product (“too big to know”). While these patentees may disclose the size of their large patent portfolios or total Indian product revenues, these figures do not provide the information required by Form 27 relative to the individual patent that is claimed to be worked.

Given the degree of uncertainty surrounding the Indian working requirement and how it is satisfied, it is not surprising that the disclosures contained in most Forms 27 are meaningless boilerplate that convey little or no useful information about the relevant patents or products. Moreover, it is questionable whether it is even possible for a willing patentee to provide the product and revenue information currently required by Form 27 for complex, multi-patent products such a mobile devices. It may be time for the IPO to revisit the information requirements of Form 27, which were seemingly developed with products covered by one or a handful of patents in mind, to more suitable address complex electronic and communications products that may be covered by hundreds or thousands of patents each.

D. Strategic Behavior

In an environment of extreme uncertainty and low enforcement, it is not surprising that patentees have developed self-serving strategies to achieve their internal goals while arguably complying with the requirements of Form 27. Evidence of strategic behavior can be seen clearly in the divide between those patentees that claim that they are working most of their patents and those that claim that they are not. We can assume that there are not significant differences in the portfolio make-up among these different patentees, so the large difference between their ratios of worked and non-worked patents must be attributable primarily to decisions made to further corporate interests.

For example, it is possible that those patentees claiming significant working of their patents do so in order to avoid requests for compulsory licenses against their patents. Such patentees may wish to exploit the Indian market themselves, or license others to do so on terms of their choosing, so may seek to avoid compulsory licensing on terms dictated by the government. Those patentees claiming significant non-working, on the other hand, may actively be seeking applications for compulsory licensing. Why? Perhaps because these patentees do not plan to sell products in India and see little prospect of entering into commercial license agreements with Indian producers. Thus, their greatest prospect of any financial return on their patents may be a compulsory license. As unlikely as it sounds, they may be using Form 27 as a legally-sanctioned “To Let” sign for otherwise unprofitable patents.

Whatever the underlying reasons are for patentee strategic decisions in the filing of Forms 27, IPO owes the public greater clarity regarding the formal requirements for working patents in India. It is only when disclosures are made in a consistent and understandable format that the public will acquire the knowledge about patent working that the Act intends for them to receive.

E. Opportunities for Further Study

This is the first comprehensive and systematic study of reporting compliance with India’s patent working requirements. It covers only one industry sector: mobile devices. Expanding this study to additional industry sectors, particularly pharmaceuticals and biomedical products, would likely yield additional insights.

It would also be informative to revisit the instant set of patents in a few years time to determine whether increased IPO access to electronic records may alter the somewhat poor compliance landscape revealed by this study. That is, if a significant number of Forms 27 that have been filed are simply unavailable through the IPO’s web site, then hopefully continued information technology improvements at the IPO will improve availability in years to come.

Conclusion

India’s annual Form 27 filing requirement is intended to provide the public with information regarding the working of patents in India so as to enable informed requests to be made for compulsory licenses of non-worked patents. While such a goal is laudable, it is not clear that this system is currently achieving the desired results.

In the first systematic study of all Forms 27 filed with respect to a key industry sector ñ mobile devices ñ we found significant under-reporting of patent working, likely due to some combination of systemic deficiencies and non-compliance by patentees. Thus, from 2009 to 2016, we could identify and access only 20.1% of Forms 27 that should have been filed in this sector, corresponding to 72.5% of all mobile device patents for which Forms 27 should have been filed. Forms 27 were missing for almost all patentees, suggesting that defects in the Indian Patent Office’s online access system may play a role in the unavailability of some forms.

But even among Forms 27 that were accessible, almost none contained useful information regarding the working of the subject patents or fully complying with the informational requirements of the Form and the Indian Patent Rules. Patentees adopted drastically different positions regarding the definition of patent working, some arguing that importation of products into India or licensing of Indian suppliers constituted working, while others even went so far as to argue that the granting of a worldwide license to a non-Indian firm constituted working in India. Several significant patentees claimed that they or their patent portfolios were simply too large to enable the provision of information relating to individual patents, and instead provided gross revenue and product sale figures, together with historical anecdotes about their long histories in India. And 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, likely encouraging non-compliance. Moreover, some of the complaints raised by patentees and industry observers regarding the structure of the Form 27 requirement itself have merit. Namely, 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.

APPENDIX

TABLE A1

Professor, University of Utah S.J. Quinney College of Law and Senior Fellow, Centre for International Governance Innovation. JD (Harvard Law School), BSEE, BA (Rice University). The authors are grateful for constructive discussion and feedback at the 2016 Works in Progress in Intellectual Property conference at University of Washington, the 2017 International Intellectual Property Roundtable at NYU Law School, the 2017 Intellectual Property Scholars Conference (IPSC) at Cardozo Law School, the Second International Conference on Standardization, Patents and Competition Issues at Jindal Global Law School, and a faculty workshop at the University of Utah S.J. Quinney College of Law. We also thank Anubha Sinha, Shamnad Basheer, Nehaa Chaudhari, Kirti Gupta, Kshitij Kumar Singh, Marketa Trimble and Sai Vinod for their helpful input regarding this article, and Anna Liz Thomas and Nayana Dasgupta for valuable research assistance. The research for this article was conducted as part of the Pervasive Technologies Project at the Centre for Internet and Society, India, and has been supported, in part, by the International Development Research Centre (Canada), the Albert and Elaine Borchard Fund for Faculty Excellence at the University of Utah and Google, Inc. The views expressed in this article are solely those of the authors.

Program Officer, Centre for Internet and Society, India. Bachelor of Instrumentation Engineering (University of Mumbai).

Law Clerk, Supreme Court of Utah. JD (University of Utah S.J. Quinney College of Law), BS, BA (Butler University).

Natco Pharma Ltd. v. Bayer Corp., (2011) I.P.O. Order No. 1, at 6 (India).

See id.

The Natco case is one in a long line of cases in the ongoing “access to medicines” dispute, in which developing countries seek compulsory licenses for local use of lifesaving drugs that are patented by western pharmaceutical firms. See, e.g., Srividhya Ragavan, Patent and Trade Disparities in Developing Countries (2012); Charles R. McManis and Jorge L. Contreras, Compulsory Licensing of Intellectual Property: A Viable Policy Lever for Promoting Access to Critical Technologies?, in TRIPS and Developing Countries ñ Towards a New IP World Order? (Gustavo Ghidini, Rudolph J.R. Peritz & Marco Ricolfi, eds. 2014); Jerome H. Reichman, Comment: Compulsory Licensing of Patented Pharmaceutical Inventions: Evaluating the Options, 37 J. L. Med. & Ethics 247, 250 (2009).

Natco Pharma Ltd. v. Bayer Corp., supra note at 6.

See Patents Act, No. 39 of 1970, India Code (1970), ch. XVI, ß 84(1).

See Rochelle Dreyfuss & Susy Frankel, From Incentive to Commodity to Asset: How International Law Is Reconceptualizing Intellectual Property, 36 Mich. J. Int’l L. 557, 576 (2015); See also Feroz Ali, Picket Patents: Non-Working as an IP Abuse, at *5, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2732521 (last visited Feb. 6, 2017); see also Bryan Mercurio & Mitali Tyagi, Treaty Interpretation in WTO Dispute Settlement: The Outstanding Question of the Legality of Local Working Requirements, 19 Minn. J. Int’l L. 275, 281 (2010).

Marketa Trimble, Patent Working Requirements: Historical and Comparative Perspectives, 6 U.C. Iʀᴠɪɴᴇ L. Rᴇᴠ. 483, 500-501 (2016).

Id. at 495.

Jorge L. Contreras & Rohini LakshanÈ, Patents and Mobile Devices in India: An Empirical Survey, 50 Vand. Transnat’l L.J. 1 (2017). The data set used in the foregoing study can be found at https://cis-india.org/a2k/blogs/dataset-patent-landscape-of-mobile-device-technologies-in-india.

Trimble, supra note , at 488. In England, royal patents were granted to foreigners who would teach their art to the local population. Id. at 488, 497. Venice provided monopoly rights and tax holidays for foreign inventors to immigrate and improve local industrialization. Ragavan, supra note , at 3.

See Ragavan, supra note , at 3; see also G.B. Reddy & Harunrashid A. Kadri, Local Working of Patents ñ Law and Implementation in India, 18 J. Intell. Prop. Rights 15, 15 (2013).

See Ragavan, supra note , at 3; see also Trimble, supra note , at 488.

See Ragavan, supra note , at 3; see also Reddy & Kadri, supra note , at 16.

See Reddy & Kadri, supra note , at 17; see also Ali, supra note , at *9.

See generally Paul Champ & Amir Attaran, Patent Rights and Local Working Under the WTO TRIPS Agreement: An Analysis of the U.S.-Brazil Patent Dispute, 27 Yale J. Int’l L. 365, 371 (2002).

Trimble, supra note , at 498 (“In the United Kingdom in the 18th century ‘the requirement of compulsory working dropped into desuetude and its place was taken for all practical purposes, in particular in the practice of the law courts, by [the full disclosure] requirement’”) (alterations in original) (internal citations omitted).

Paris Convention for the Protection of Industrial Property, World Intellectual Property Organization, art. 5(A)(1), March 20, 1883.

See Reddy & Kadri, supra note , at 17; see also Champ & Attaran, supra note , at 371; Trimble, supra note , at 493ñ94.

Hague Revision to Paris Convention for the Protection of Industrial Property, World Intellectual Property Organization, art. (5)(A)(2), November 6, 1925.

See Champ & Attaran, supra note , at 372; see also Trimble, supranote , at *490-94 (tracing history of remedies for failure to meet working requirements, including forfeiture).

London Revision to Paris Convention for the Protection of Industrial Property, World Intellectual Property Organization, art. 5(A)(4), June 2, 1934; See Trimble, supra note , at 494.

Stockholm Revision to Paris Convention for the Protection of Industrial Property, World Intellectual Property Organization, art. 5(A)(2), July 14, 1967.

See Trimble, supra note , at 494-95; see also Janice M. Mueller, The Tiger Awakens: The Tumultuous Transformation of India’s Patent System and the Rise of Indian Pharmaceutical Innovation, 68 U. Pitt. L. Rev. 491, 517-18 (2007)..

See Trimble, supra note , at 494.

See Ragavan, supra note , at 65-66. See generally TRIPS: Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1c, 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994), reprinted in World Trade Organization, The Results of the Uruguay Round of Multilateral Trade Negotiations 365 (1995) [hereinafter “TRIPS Agreement”].

Additionally, those countries that were not members of the Paris Union but are members of the WTO are therefore obligated to comply with the Paris Convention and its revisions under Article 2.2 of the TRIPS Agreement.

TRIPS Agreement, supra note , art. 27.1.

TRIPS Agreement, supra note , art. 30-31; see also Ragavan, supranote ; McManis and Contreras, supra note .

See generally Trimble, supra note , at 496; Shamnad Basheer, Making Patents Work: Of IP Duties and Deficient Disclosures, 7 Queen Mary J. Intell. Prop. 3, 16-17 (2017).

Request for Consultations by the United States, Brazil ñ Measures Affecting Patent Protection, WTO Doc. WT/DS199/1 (June 8, 2000); see also Reddy & Kadri, supra note , at 17; Trimble, supra note , at 496-497.

Champ & Attaran, supra note , at 380.

Article 28(1) of the TRIPS Agreement defines the rights that may be conferred on patent owners.

Champ & Attaran, supra note , at 381-82.

Id. at 381. The two patented drugs that the Brazilian Ministry of Health threatened to grant compulsory licenses on were efavirenz and nelfinavir. These drugs are antiretroviral drugs used to treat AIDS. Geoff Dyer, Brazil Defiant Over Cheap AIDS Drugs, Fin. Times, Feb. 9, 2001, at 10.

Barbara Crossette, U.S. Drops Case Over AIDS Drugs in Brazil, N.Y. Times (June 26, 2001), http://www.nytimes.com/2001/06/26/world/us-drops-case-over-aids-drugs-in-brazil.html.

Kalyan C. Kankanala, Arun K. Narasani & Vinita Radhakrishnan, Indian Patent Law & Practice 1 (2010).

See Mueller, supra note , at 509-511; see also Ragavan, supra note , at 31.

Shri Justice N. Rajagopala Ayyangar, Report on the Revision of the Patents Law (September 1959) [hereinafter “Ayyangar Report”]; Ragavan,supra note , at 31-33.

P. Narayanan, Patent Law 5 (4th ed. 2006).

Ayyangar Report, supra note .

Ragavan, supra note , at 35.

Id. at 39-40.

See generally The Patents Act, No. 39 of 1970, India Code (1970).

See Ragavan, supra note , at 42-45 (summarizing changes effected by the 1970 law).

The Patents Act, 1970 ß 83 (emphasis added).

The Indian Controller General of Patents, Designs & Trade Marks, who will be referred to herein as the Controller for simplicity.

The Patents Act, 1970, ß 84(1) (emphasis added). The three-year time period reflected in the Act is derived from Section 5(A)(4) of the Paris Convention (current numbering). See supra note .

The Patents Act, 1970 ß 84(1).

Id. ß 90(c).

Id.

Id. ß 89(3). While the language of Section 89 is couched in terms of the “reasonable requirements of the public,” it is interesting to note that the caption of the section reads “Revocation of patents by the Controller for non-working,” thus focusing more explicitly on the working requirement.

The Patents Act, 1970 ß 89(1). The two-year time period reflected in the Act is derived from Section 5(A)(3) of the Paris Convention (current numbering). See supra note and accompanying text.

See India and the WTO, Wᴏʀʟᴅ Tʀᴀᴅᴇ Oʀɢ.,http://www.wto.org/english/thewto_e/countries_e/india_e.htm. See generally TRIPS Agreement.

India amended its 1970 Act in three amendments, corresponding to the transition periods permitted by the TRIPS Agreement. India played a significant role in establishing the TRIPS multi-year transition periods. See Mueller, supra note , at 518. For a discussion of India’s political and economic considerations underlying its support of compulsory licensing under TRIPS, see Omar Serrano & Mira Burri, Making Use of TRIPS Flexibilities: Implementation and Diffusion of Compulsory Licensing Regimes in Brazil and India (World Trade Inst. Working Paper No. 1 2016).

The Patents (Amendment) Act, No. 38 of 2002, India Code (2002).

Id. ß 85.

Id. ß 83(c).

Id. ß 83(d)-(f).

Id. ß 89.

Id. ß 84(1) (emphasis added).

Id.

Id. ß 84(6).

See Thomas Cottier, Shaheeza Lalani & Michelangelo Temmerman, Use It or Lose It: Assessing the Compatibility of the Paris Convention and TRIPS Agreement with Respect to Local Working Requirements, 17 J. Int’l Econ. L. 437, 441 (2014).

See The Patents Act, No. 39 of 1970, India Code (1970), ß 90(2) (“No license granted by the Controller shall authorise the licensee to import the patented article or an article or substance made by a patented process from abroad where such importation would, but for such authorisation, constitute an infringement of the rights of the patentee.”).

See Basheer, supra note , at 9.

Natco Pharma Ltd. v. Bayer Corp., (2011) I.P.O. Order No. 1, 5 (India).

Id. at 22.

Id. at 25 (noting that an average Indian government employee would have to work for 3.5 years to afford a single month’s dosage).

Id. at 6.

Id. at 5.

Id.

Id. at 6.

Id.

Id. at 37.

Id.

Id. at 38.

Id. at 40-41.

Id. at 43.

Id. at 45 (“I am therefore convinced that ‘worked in the territory of India’ means ‘manufactured to a reasonable extent in India.’”).

Id. at 60.

Natco Pharma Ltd. v. Bayer Corp., (2013) I.P.A.B. Order No. 45 (India).

Id.

Id. at 43.

Bayer Corp. v. Union of India, Bombay High Ct. at 29 (Jul. 15, 2014).

Id.

Id. at 24.

Id. Bayer subsequently appealed to the Indian Supreme Court, which declined to hear the case. See Samanwaya Rautray, Nexavar License Case: SC Dismisses Bayer’s Appeal Against HC Decision, Economic Times, Dec. 13, 2014, http://economictimes.indiatimes.com/industry/healthcare/biotech/pharmaceuticals/nexavar-licence-case-sc-dismisses-bayers-appeal-against-hc-decision/articleshow/45500051.cms

Harsha Rohatgi, Indian Patent Office Rejects Compulsory Licensing Application: BDR Pharmaceuticals Pvt. Ltd. vs. Bristol Myers Squibb, Khurana & Khurana (last visited Oct. 20, 2017), http://www.khuranaandkhurana.com/2013/11/13/indian-patent-office-rejects-compulsory-licensing-application-bdr-pharmaceuticals-pvt-ltd-vs-bristol-myers-squibb/.

Patralekha Chatterjee, 2013: India Battles for Right to Use Compulsory Licenses to Make Medicines Affordable, Intellectual Property Watch(last visited Oct. 20, 2017), https://www.ip-watch.org/2013/01/22/2013-india-battles-for-right-to-use-compulsory-licences-to-make-medicines-affordable/.

See Pankhuri Agarwal, DIPP Drags the Dasatinib Compulsory License Drama: A Situation of ‘Extreme Urgency’?, SpicyIP blog (Sep. 24, 2016), https://spicyip.com/2016/09/dipp-drags-the-dasatinib-compulsory-license-drama-a-situation-of-extreme-urgency.html. See, e.g., IPO Order No. C.L.A. No.1 of 2015, In the matter of Lee Pharma Ltd v. AstraZeneca AB, dated January 19, 2016 (rejecting application due to lack of evidence presented under all three prongs of Section 84 analysis).

For example, Article 68 of Brazil’s 1996 Industrial Property Law subjects a patentee to compulsory licensing if the patentee does not exploit “the object of the patent within the Brazilian territory for failure to manufacture the product or failure to use a patented process.” 68 C.P.I., Law No. 9,279 (Brazil, May 14, 1996). For additional examples, See Cottier et al., supra note , at 461-71.

While form submissions to show the working of a patent are unique to India’s patent law, a submission requirement to maintain intellectual property rights is similarly used in the United States for trademarks. In the United States, registered trademark owners must submit a declaration of use to avoid cancellation of the registration. See 15 U.S.C. ß 1058.

The Patents Act, No. 39 of 1970, India Code (1970), ß 146(2).

Id.

The Patent Rules, Rule 131, India (2003).

The Patent Rules, Rule 131, India (2003). There is an apparent discrepancy between section 146(2) of the India Patents Act, 1970 and Rule 131 of the Patent Rules, 2003. While section 146 suggests that patentees should file Forms 27 every six months, Rule 131 of the Patent Rules, 2003 requires the statements to be furnished in respect of every calendar year.

The Patents Act, No. 39 of 1970, India Code (1970), ß 146(2).

The public requirement refers to “the reasonable requirements of the public with respect to the patented invention.” The Patents (Amendment) Act, No. 38 of 2002, India Code (2002), ß 84(1)(a). In other words, if the patentee must explain how he has or has not met his duties under section 83 and 84 of the Patents Amendment Act of 2002.

Patents Rules, Form 27, 2003.

The Patents (Amendment) Act, No. 38 of 2002, India Code (2002), ß 122 provides:

“1) If any person refuses or fails to furnish-Ö b) to the controller any information or statement which he is required to furnish by or under section 146,

he shall be punishable with [a] fine which may extend to twenty thousand rupees.

2) If any person, being required to furnish any such information as is referred to in sub-section (1), furnishes information or statement which is false, and which he either knows or has reason to believe to be false or does not believe to be true, he shall be punishable with imprisonment which may extend to six months, or with fine, or with both.”

Annual Report 2007-08, Office of the Controller General of Patents, Designs, and Trade Marks including GIR and PIS/NIIPM (IPTI), at 12; see also Reddy & Kadri, supra note , at 21.

Annual Report 2008-09, Office of the Controller General of Patents, Designs, Trade Marks and Geographical Indications, at 21; Annual Report 2007-08, Office of the Controller General of Patents, Designs, and TradeMarks including GIR and PIS/NIIPM (IPTI), at 12; see also Reddy & Kadri, supra note , at 21-22.

Controller Gen. of Patents, Designs and Trade Marks, Public Notice No. CG/PG/2009/179, Dec. 24, 2009; Controller Gen. of Patents, Designs and Trade Marks, Public Notice No. CG/Public Notice/2013/77, Feb. 12, 2013; Controller Gen. of Patents, Designs and Trade Marks, Public Notice No. CG/Public Notice/2015/95, 2015.

The Patents Act, No. 39 of 1970, India Code (1970), ß 122. (A patentee may be imprisoned for submitting false information).

Reddy & Kadri, supra note , at 22; see also Shamnad Basheer v. Union of India, Writ Petition, at F (Del. 2015) [hereinafter Basheer Writ Petition (2015)] (“[T]he Respondents authorities have never initiated action against any of the errant patentees.”).

Prashant Reddy, Patent Office Publishes All ‘Statements of Working’ ñ Finally!, Spicy IP, (June 25, 2013) https://spicyip.com/2013/06/patent-office-publishes-all-statements.html.

See, e.g., Basheer Writ Petition (2015), supra note (raising numerous deficiencies with Form 27); Shamnad Basheer & N. Sai Vinod RTI Applications and ‘Working’ of Foreign Drugs in India, Spicy IP, at 5 (Apr., 2011) (“However, Form 27 in its present format leaves much to be desired and we will be drafting a more optimal Form 27 and forwarding this to the government for consideration, so that the form can be a lot more clearer and can call for a greater range of information.”).

Letter from Philip S. Johnson, President, Intellectual Prop. Owners Assn., to Hon. Michael Froman, U.S. Trade Representative (Feb. 7, 2014).

Id.

Prathiba Singh & Ashutosh Kumar, When in Rome, do as the Romans do, IP Pro Life Sciences at 16, (Mar. 10, 2013)http://ipprolifesciences.com/ipprolifesciences/IPPro%20Life%20Sciences_issue_04.pdf.

Among other things, Prof. Basheer is the founder of the SpicyIP blog, a leading source of intellectual property news and commentary in India. SeePart III.A, infra, for a discussion of the results of his studies of Form 27 compliance.

Basheer & Vinod, supra note , at 6-8.

Basheer Writ Petition (2015), supra note .

Id. at 1, 8.

Shamnad Basheer v. Union of India, Writ Petition No. 5590 (Del. 2015), Application Seeking Permission to Intervene in the Above Public Interest Litigation (2016). Some of the issues raised by Mr. Thappeta are discussed in Part IV below.

Bayer Corp. v. Union of India, Writ Petition No. 1323 of 2013, Judgment at 8ñ10 (Jul. 15, 2014).

Basheer, supra note , at 17.

Indian Patent Office reporting year (Apr. 1 – Mar. 31).

See supra note .

Basheer & Vinod, supra note .

This study pre-dates the electronic availability of Forms 27.

Basheer & Vinod, supra note , at 7-8.

Basheer Writ Petition (2015), supra note , at Annexure P-11, tbl. I. It is not clear how the studied patents were selected. They do not represent the totality of patents in the designated industry sectors. Likewise, it is not clear how “publicly-funded research” is defined nor the amount of such funding behind the selected patents.

It appears that this study covered three “reporting years” at the IPO: 2009-10, 2010-11 and 2011-12. Reporting years run from April 1 to March 31.

This figure is calculated as 1 – 263/421. Prof. Basheer has reported this ratio as approximately 35%. Basheer, supra note , at 18.

Basheer Writ Petition (2015), supra note , at Annexure P-11, tbl. I.

Id. at 10.

Id. at 10-16; Basheer, supra note , at 19.

Basheer, supra note , at 12-13.

See Contreras & LakshanÈ, supra note , at 27-28 (describing electronic search and case harvesting methodology).

Searches were conducted and results were compiled by a contracted Indian service provider selected through a competitive bid process.

While InPASS and IPAIRS retrieve Form 27 submissions from the same URL, we observed that sometimes a submission that was displayed on data base was not displayed on the other. Thus, IPAIRS was used when Form 27 was not found for a queried patent on InPASS. InPASS has two features: Application Status and E-Register. At times, some forms were not available at E-Register that could be found through the Application Status table, and vice versa. Thus, both features were used. A detailed, step-by-step description of the search methodology used can be found at http://cis-india.org/a2k/blogs/methodology-statements-of-working-form-27-of-indian-mobile-device-patents.

Ajoy Kumar, “Request for Information under Section 6 of the Right to Information Act, 2005; regarding Form 27 Submissions for Patents,” The Centre for Internet and Society, (June 10, 2015), https://cis-india.org/a2k/blogs/rti-app-2015.pdf/at_download/file.

Boudhik Bhawan, “Supply of information sought under RTI ñ reg,” The Centre for Internet and Society, (June 17, 2015), https://cis-india.org/a2k/blogs/rti-reply-2015.pdf/at_download/file.

Ajoy Kumar, “Request for Information under Section 6 of the Right to Information Act, 2005; regarding Form 27 Submissions for Patents,” The Centre for Internet and Society, (Mar. 11, 2016), https://cis-india.org/a2k/blogs/rti-app-2016.pdf/at_download/file.

Id.

Ujjwala Haldankar, “Supply of information sought under RTI, 2005 ñ reg,” The Centre for Internet and Society, (Apr. 4, 2016), https://cis-india.org/a2k/blogs/rti-reply-2016.pdf/at_download/file.

Rohini LakshanÈ, Dataset for “Patent Working Requirements and Complex Products: An Empirical Assessment of India’s Form 27 Practice and Compliance,” The Centre for Internet and Society (Aug. 17, 2017), https://cis-india.org/a2k/blogs/dataset-for-patent-working-requirements-and-complex-products-an-empirical-assessment-of-indias-form-27-practice-and-compliance.

Similar deficiencies with the IPO’s online filing facility have been noted by Basheer. See Basheer Writ Petition (2015), supra note , at 17.

Prior to the 2002 Amendments to the Patents Act, 1970 (effective May 20, 2003), the term of product patents in India was 14 years from the date of issuance. Patents Act (2002 Amendments), Sec. 53. Accordingly, any patent issued in 1995 or earlier would be expired by 2009. Based on the data provided by the Controller and Basheer, it appears that few, if any, Forms 27 were filed prior to 2009. Thus, it is unlikely that any patent that expired prior to 2009 would have a corresponding Form 27. As a result, for purposes of counting Forms 27 that were, and should have been filed, we disregarded 107 patents in our dataset that were issued in 1995 or earlier (the vast majority of which were owned by Siemens).

A total of 4,935 Forms 27 were identified by our search. In 2013, Motorola filed 19 Forms 27 that were backdated to 2004 and 2005. These Forms corresponded to patents issued between 2008 and 2010, and apparently reflected the patentee’s incorrect belief that Form 27 must be filed as of the date of the filing of a patent application rather than the issuance of the patent. Because the patentee also filed Forms 27 dated as of 2013 for these patents, we have disregarded these spurious filings.

Based on the data provided by the Controller and Basheer, it appears that few, if any, Forms 27 were filed prior to 2009. Thus, we assumed that Forms 27, if filed, would only have begun to be filed in 2009. As discussed in note , supra, the first patents that could be expected to have a filed Form 27 were issued in 1996 (i.e., one Form filed in 2009, the year of the patent’s expiration). Thus, beginning with patents issued in 1996, we calculated the total number of Forms 27 that could have been filed with respect to such patents beginning in 2009 and ending in 2016 (noting that we ended our study in August 2016). Thus, for patents issued in 1996 and expiring in 2009, one Form 27 could have been filed. For patents issued in 2002 to 2008, and expiring well after 2016, a total of eight Forms 27 could have been filed, in each case beginning in 2009 and ending in 2016. Patents issued in 2015 could have at most one Form 27 filed. Though Form 27 is not required to be filed until the year after a patent has been granted, some patentees have made filings in the year of grant. We counted these filings, but did not count year-of-grant filings in determining the maximum number of filings that could be made for a particular patent.

See supra text accompanying note .

It is not surprising that no forms were available for patents issued prior to 2007, the first year that the Indian Controller of Patents drew attention to the Form 27 requirement. See supra Part I.D.

For patents that had different working designations in Forms 27 filed in different years, we counted a patent to be declared as worked if at least one Form 27 so designated the patent.

See supra text accompanying note .

See Basheer Writ Petition, supra note , at 10.

Motorola, Form 27 for 243220, IɴPASS (Mar. 31, 2014), http://ipindiaonline.gov.in/frm27/2013/243220_2013/243220_2013.pdf.

Ericsson, Form 27 for 241488, IɴPASS (Feb. 3, 2012), http://ipindiaonline.gov.in/frm27/2011/241488_2011/241488_2011.pdf(“The patentee is in the look out for appropriate working opportunities in a large scale although there may have been some use of the patented technology in conjunction with other patented technologies.”).

Google, Form 27 for 243210, IɴPASS (Mar. 27, 2015), http://ipindiaonline.gov.in/frm27/2014/243210_2014/243210_2014.pdf. See infra Part III.D for a discussion of patents as to which the patentee has changed the working status over the years.

See, e.g., Ericsson, Form 27 for 209941, IɴPASS (Mar. 30, 2015), http://ipindiaonline.gov.in/frm27/2014/209941_2014/209941_2014.pdf.

See, e.g., Ericsson, Form 27 for 259809, IɴPASS (Mar. 19, 2015), http://ipindiaonline.gov.in/frm27/2014/259809_2014/259809_2014.pdf.

Ericsson, Form 27 for 227819, IɴPASS (Mar. 13, 2015), http://ipindiaonline.gov.in/frm27/2014/227819_2014/227819_2014.pdf(“The patentee is in the look out for appropriate working opportunities in a large scale”); Motorola, Form 27 for 236128, IɴPASS (Mar. 8, 2013), http://ipindiaonline.gov.in/frm27/2012/236128_2012/236128_2012.pdf(“The Patentee is actively looking for licensees and customers to commercialise the invention in the Indian environment.”).

Alcatel-Lucent, Form 27 for 258507, IɴPASS (Mar. 18, 2015), http://ipindiaonline.gov.in/frm27/2014/258507_2014/258507_2014.pdf.

Panasonic, Form 27 for 239668, IɴPASS (Mar. 21, 2014), http://ipindiaonline.gov.in/frm27/2013/239668_2013/239668_2013.pdf; Panasonic, Form 27 for 208405, IɴPASS (Mar. 21, 2014), http://ipindiaonline.gov.in/frm27/2013/208405_2013/208405_2013.pdf.

Ericsson, Form 27 for 233994, IɴPASS (Mar. 6, 2013), http://ipindiaonline.gov.in/frm27/2012/233994_2012/233994_2012.pdf.

Id.

See Oracle, Form 27 for 230190, IɴPASS (Mar. 24, 2014), http://ipindiaonline.gov.in/frm27/2013/230190_2013/230190_2013.pdf(“The methods/structures of the patent are generally related to "Asynchronous servers". This product has been sold to several businesses in India in the past few years and is believed to be used by them. Additional information will be enquired and provided to the Patent Office upon request.”).

Nokia Siemens, Form 27 for 254894, IɴPASS (Mar. 28, 2014), http://ipindiaonline.gov.in/frm27/2013/254894_2013/254894_2013.pdf.

Ericsson, Form 27 for 249058, IɴPASS (Mar. 03, 2014), http://ipindiaonline.gov.in/frm27/2013/249058_2013/249058_2013.pdf; In other Forms 27, however, Ericsson

provides significant detail regarding the standards/specifications covered by its patents.

See, e.g., Ericsson, Form 27 for 213723, IɴPASS (Mar. 16, 2016), http://ipindiaonline.gov.in/frm27/2015/213723_2015/213723_2015.pdf(citing ETSI TS 126 092 V4.0.0 (2001-03), ETSI TS 126 073 V4.1.0 (2001-12) and ETSI TS 126 093 V4.0.0 (2000-12), all of which are pertinent to the UMTS 3G standard).

See, e.g., Qualcomm, Form 27 for 251876, IɴPASS (Mar. 28, 2015), http://ipindiaonline.gov.in/frm27/2014/251876_2014/251876_2014.pdf(disclosing Indian licensee Innominds Software Pvt. Ltd.).

See Ericsson, Form 27 for 213723, IɴPASS (Mar. 16, 2016), http://ipindiaonline.gov.in/frm27/2015/213723_2015/213723_2015.pdf(referencing royalty payments from Micromax and Gionee).

Qualcomm, Form 27 for 251876, IɴPASS (Mar. 28, 2015), http://ipindiaonline.gov.in/frm27/2014/251876_2014/251876_2014.pdf.

Id.

Nokia, Form 27 for 220072, IɴPASS (Mar. 20, 2014), http://ipindiaonline.gov.in/frm27/2013/220072_2013/220072_2013.pdf.

Ericsson, Form 27 for 251757, IɴPASS (Mar 11, 2014), http://ipindiaonline.gov.in/frm27/2013/251757_2013/251757_2013.pdf.

Id.

See, e.g., Ericsson, Form 27 for 248764, IɴPASS (Mar. 23, 2012)

http://ipindiaonline.gov.in/patentsearch/GrantedSearch/viewdoc.aspx?id=gPYX0WsErIRQR3is4uM1fw%3d%3d&loc=wDBSZCsAt7zoiVrqcFJsRw%3d%3d.

See, e.g., Huawei, Form 27 for 251769, IɴPASS (Mar. 4, 2014), http://ipindiaonline.gov.in/frm27/2013/251769_2013/251769_2013.pdf(“Information not readily available; efforts will be made to collect and submit further Information, if asked for.”).

See, e.g., Hitachi, Form 27 for 226462, IɴPASS (Mar. 28, 2013), http://ipindiaonline.gov.in/frm27/2013/226462_2013/226462_2013.pdf(“Confidential Information will be provided if asked for.”).

Research in Motion, Form 27 for 261068, IɴPASS (Feb. 10, 2015), http://ipindiaonline.gov.in/frm27/2014/261068_2014/261068_2014.pdf.

Ericsson, Form 27 for 254652, IɴPASS (Mar. 21, 2016), http://ipindiaonline.gov.in/frm27/2015/254652_2015/254652_2015.pdf.

See, e.g., Alcatel-Lucent, Form 27 for 202208, IɴPASS (Mar. 27, 2014), http://ipindiaonline.gov.in/frm27/2013/202208_2013/202208_2013.pdf.

See, e.g., Ericsson, Form 27 for 235605, IɴPASS (Feb. 23, 2011), http://ipindiaonline.gov.in/patentsearch/GrantedSearch/viewdoc.aspx?id=ghLLyAj0oCzH9pUf4tY2Kw%3d%3d&loc=wDBSZCsAt7zoiVrqcFJsRw%3d%3d; Ericsson, Form 27 for 235605, IɴPASS (Feb. 6, 2012), http://ipindiaonline.gov.in/patentsearch/GrantedSearch/viewdoc.aspx?id=ghLLyAj0oCzH9pUf4tY2Kw%3d%3d&loc=wDBSZCsAt7zoiVrqcFJsRw%3d%3d; Huawei, Form 27 for

249244, IɴPASS (Mar. 11, 2013), http://ipindiaonline.gov.in/patentsearch/GrantedSearch/viewdoc.aspx?id=9BzV82RULJkFoIPZZZeH9A%3d%3d&loc=+mN2fYxnTC4l0fUd8W4CAA%3d%3d.

Basheer Writ Petition (2015), supra note , at 10.

A patentee may be imprisoned for submitting false information. The Patents Act, No. 39 of 1970, India Code, ß 122 (1970).

See Reddy & Kadri, supra note , at 22; Basheer Writ Petition (2015), supra note , at 10 (“authorities have never initiated action against any of the errant patentees.”).

See supra text accompanying notes -84.

See supra Part III.C.3.c.

See supra Part III.C.3.d.

See supra Part III.C.3.e.

For example, as of 2015, more than 61,000 patent disclosures had been made against ETSI’s 4G LTE standard, and more than 43,000 against ETSI’s 3G UMTS standard, both of which are only one of many standards embodied in a typical mobile device. Justus Baron & Tim Pohlmann, Mapping Standards to Patents Using Databases of Declared Standard-Essential Patents and Systems of Technological Classification at 20, Table 5 (Regulation & Econ. Growth, Working Paper, 2015), http://www.law.northwestern.edu/research-faculty/searlecenter/innovationeconomics/documents/Baron_Pohlmann_Mapping_Standards.pdf.

See supra Part III.B.

We thank Chris Cotropia for this insight.

421 Forms 27 were found for Motorola. This total has been reduced by the 19 Forms filed in 2013 and incorrectly backdated to 2004 and 2005.

101 Siemens patents expired prior to 1996.

For more details visit https://cis-india.org/a2k/blogs/patent-working-requirements-and-complex-products

Government of Odisha adopting Creative Commons License to Promote Transparency and Access to Knowledge

Sailesh Patnaik — 2018-01-18T01:22:40Z

This year started with an astonishing announcement by the Government of Odisha towards the free knowledge movement. On the Public Domain day, which is celebrated every year on 1st January, The Government of Odisha continuing its collaboration with the Odia Wikipedia community has announced to release the content of its two major departments under Creative Commons license.

Last year, the Government of Odisha became the first state government in India to release their social media content under free license and released the content of its 8 social media accounts and the website of 2017 Asian athletics Championships under CC-BY-4.0 international license, which has overall helped in adding 207 distinct images into various Wikipedia projects.

The decision about the relicensing of the content was announced to the public in a tweet by the twitter account of the Information and Public Relations department (I&PR) which says “On the occasion of Public Domain Day, the website and social media feeds of I& PR Department are being licensed under Creative Commons which means all content on the website and social media accounts are now free for public usage. That includes photographs, videos, government publications and much more. This is in continuation with State Government’s principles of Teamwork, Transparency & Technology for bringing about Transformation.”

The two departments announced by the state Government to be the part of the collaboration are Information and Public Relations department; that informs the public on the plans, policies and Programmes of the Government. The I&PR department also publishes 2 state magazines, Utkala Prasanga, a state magazine published in Odia language and Odisha Review, a 72 years old state magazine published in English language. Also the ST&SC Development department; which works for the welfare of the backward and minority communities in Odisha. This department holds a major source of information in the form of Adivasi journal and research papers on Indigenous community of Odisha from its Research and Training institute. Most importantly, the social media accounts along with the websites are released under the Creative Commons license. Social media channels are updated on a daily basis and provides fresh content everyday about different collaborations of the Government.

In near future, the Government of Odisha is also planning to release content of some major departments under open license for people to access the information for free.

For more details visit https://cis-india.org/a2k/blogs/government-of-odisha-adopting-creative-commons-license-to-promote-transparency-and-access-to-knowledge

Token security or tokenized security?

Admin — 2018-01-17T00:17:41Z

Implementing a system of tokenization for Aadhaar verification will address the security loopholes highlighted in recent reports.

The article by Manasa Venkataraman and Ajay Patri was published in Livemint on January 9, 2018.

Those who were reassured that the Aadhaar architecture is safe and secure have faced a few rude shocks lately. First, there was the recent report in The Tribune on how one of its reporters was easily able to log in to the Aadhaar website and access any enrolled Indian’s personal information, all for a grand fee of Rs500. While the veracity of this report is still being contested by the Unique Identification Authority of India (UIDAI), it has stirred panic over the security of personal data entrusted to the government. This came close on the heels of reports last month that a telecom company was utilizing the eKYC (know your customer) data of its mobile subscribers to open payment bank accounts without their consent.

These two instances highlight scenarios where data from the Aadhaar database is vulnerable. In the first, the weaknesses in security measures and processes around the database leave information susceptible to an attack. In the second, providing third-party entities loosely regulated access to an individual’s data leaves scope for abuse.

There is a need to protect the data belonging to individuals in these situations, providing the government with two possible policy options: it can choose to either overhaul the Aadhaar architecture completely, or it can build in additional security measures to ensure that individual data is not compromised.

Uninventing Aadhaar is not a practical proposal. It would have to include repealing the statute on Aadhaar, disbanding the database already created, and figuring out alternative means of delivering the services that are now dependent on Aadhaar. A more sustainable way forward is to better secure Aadhaar. This will involve not only the secure collection and storage of personal data, but also a safe regulation of the manner in which third parties use it for authentication.

One way to protect Aadhaar-related communications is to channel them through a secure conduit. This can be achieved through a system of temporary tokens for Aadhaar-based verifications. Sunil Abraham from the Centre for Internet and Society (CIS) has recommended a system of using dummy or virtual Aadhaar numbers along with a smart card to protect information belonging to individuals.

Tokenization is the process of masking sensitive personal data with another innocuous dataset, allowing it to be shared with third parties without the risk of the personal data being exposed. So, every time a service provider asks for identification, the individual can provide a one-time-ID number generated by an Aadhaar app or on UIDAI’s website. The service provider can authenticate the one-time-ID number with the Aadhaar database, without needing to know or store the Aadhaar number. The algorithm used to generate the one-time-ID number must be constructed using hard-to-replicate information and kept a well-guarded secret. No two service providers will have the same one-time ID, making it harder for personal profiles to be constructed by mining data from multiple service providers, thus enabling a higher level of privacy protection.

Allowing such a system of tokenization for every eKYC can create a welcome layer of ambiguity around individuals’ personal data and preserve the individuals’ Aadhaar-related information with the government. This system also breaks the link between the Aadhaar database and any third party having access to an individual’s Aadhaar number. If this link is not broken, then any entity—government or private—would have access to potentially millions of Aadhaar card numbers, opening endless possibilities for data abuse.

The tokenization process allows the authority to arrest any attempts at data abuse. In fact, to make this system of tokens or one-time-ID numbers effective, the law must build in measures to penalize any attempt to recreate an individual’s Aadhaar number from the unique token number. In other words, the service provider is given a token number for authentication, but prohibited from obtaining the Aadhaar number it corresponds to.

Tokenization is an improvement over the status quo, but only in one aspect—making Aadhaar secure. It is imperative that the government pays equal attention to the manner in which all data is collected, stored and disposed of by the authority. There are two facets to be explored here: first, ensuring secure storage of the vast information database, and second, plugging security loopholes that happen at collection by limiting access to the database.

The adoption of appropriate technical safeguards is indispensable to thwart external threats to the Aadhaar database, such as ransomware attacks. Having appropriate security, and having periodic audits to test the adequacy of such security, is indispensable.

Equally, limiting access to the database is crucial for preventing leaks, such as the ones reported in The Tribune. It is important that only a select few individuals have access to the database and that these personnel are properly vetted before being vested with such responsibility.

These various facets of the Aadhaar ecosystem are likely to be further examined in the public in the weeks to come as the Supreme Court gears up to hear the petitions on Aadhaar. Regardless of the verdict, there is an urgent need to improve the safety of the Aadhaar ecosystem and the use of tokenization goes some way towards achieving this objective.

Manasa Venkataraman and Ajay Patri are researchers at the Takshashila Institution, an independent, non-partisan think tank and school of public policy.

For more details visit https://cis-india.org/internet-governance/news/livemint-january-9-2018-manasa-venkataraman-ajay-patri-token-security-or-tokenized-security

UIDAI's Virtual ID, limited KYC does little to protect Aadhaar data already collected, say critics

Admin — 2018-01-16T23:51:44Z

Aadhaar-issuing body, Unique Identification Authority of India (UIDAI), had barely started patting itself on the back for introducing the Virtual ID concept, what CEO Ajay Bhushan Pandey called "one of biggest recent innovations in this field", when detractors came crawling out of the woodwork, all guns blazing.

The article was published in Business Today on January 12, 2018.

"Under compulsion, millions of persons have already shared Aadhaar number with many service providers. New security layer is like locking the stable after horses have bolted," tweeted P. Chidambaram, Congress veteran and former finance minister. This is not just an opposition party member taking potshots at the government. As of last month, close to 14 crore out of about 30 crore Permanent Account Numbers (PANs) had already been linked to Aadhaar and 70% of the estimated 100 crore bank accounts had been seeded. This will be the case for insurance policies as well as all government-sponsored welfare schemes and services since the Supreme Court ruling to extend the deadline for mandatory Aadhaar linking came just a fortnight before the government's December 21 deadline. So how does the new two-tier security system protect all that Aadhaar data already collected by sundry agencies?

The short answer is that it does not. According to media reports, banks and other service providers have not been asked to delete stored Aadhaar data from their databases. The only directive is to enforce the new security system within the June 1 deadline. In the absence of a legal mandate, agencies can very well choose to retain any Aadhaar data previously collected on their servers, leaving it open to any number of security breaches in the future.

So, it would appear that the new VID and limited KYC norms are good ideas, just too late in arriving. Only procrastinators putting off linking Aadhaar to essential services stand to gain, unless the government decides to revoke all existing Aadhaar cards and issue fresh 12-digit unique identification numbers post June 1.

Where the new security system definitely scores is on the privacy front. To remind you, VID a temporary, 16-digit, randomly-generated number that an Aadhaar holder can use for authentication or KYC services along with his/her fingerprint instead in lieu of the Aadhaar number. The VID together with biometrics of the user would give any authorized agency, say, a mobile company, limited details like name, address and photograph, which are enough for any verification. You can generate/replace Virtual IDs on the UIDAI website, Aadhaar mobile app and at enrolment centres.

Since the system-generated VID will be mapped to an individual's Aadhaar number at the back end, it will do away with the need for the user to share Aadhaar number with sundry service agencies. This will, in turn, reduce the collection of Aadhaar numbers by various agencies. VIDs being temporary cannot be de-duplicated and as an added precaution, agencies that undertake authentication will not be allowed to generate VIDs on behalf of Aadhaar holders.

Furthermore, under limited KYC, UIDAI will evaluate all Authentication User Agencies (AUAs) and split them into two categories: Global AUAs and Local AUAs. Only agencies whose services, by law, require them to store the Aadhaar number-qualified as Global AUAs-will enjoy access to full demographic details of an individual. All the remaining AUAs will be branded as Local AUAs and will neither get access to full KYC, nor can they store the Aadhaar number on their systems. Instead, they will get a tokenised number issued by UIDAI to identify their customers. The 72 character alphanumeric 'UID Token' for your Aadhaar number will reportedly be different for every authentication body you approach so agencies will no longer be able to merge databases, thus enhancing privacy substantially.

However, there's a problem here, too. As Pranesh Prakash, Policy Director of Bengaluru-based Centre for Internet and Society, told The Hindu, "unless all entities are required to use VIDs or UID tokens, and are barred from storing Aadhaar numbers, the new measures won't really help."

In a recent online survey, conducted by social engagement platform LocalCircles, 52% of 15,000 respondents said they feared that their Aadhaar data might not be safe from unauthorised access by hackers and information sellers. The UIDAI's latest move does little to allay this doubt.

For more details visit https://cis-india.org/internet-governance/news/uidais-virtual-id-limited-kyc-does-little-to-protect-aadhaar-data-already-collected-say-critics