Centre for Internet and Society

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

rohini — 2016-03-16T02:37:02Z

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

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

Ericsson’s position on patenting

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

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

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

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

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

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

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

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

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

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

Ericsson’s position on FRAND licensing

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

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

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

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

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

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

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

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

Ericsson’s position on SEP litigation in India and injunctions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Injunctive relief and FRAND licensing in Europe

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

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

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

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Open data in patenting

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

The trade-off between access and innovation

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

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

The challenge of harmonisation

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

Patenting for universities

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

Number of patents granted annually to:

Xingua University, China: 1,000

MIT, United States: 4,000

IIT and IISC, India: Between 100 and 200

Technology areas and number of SEPs in Europe

Telecom via public network: 4,284

IT and Internet: 534

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

Security, cryptography, biometrics: 182

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

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All comments in square brackets and italics by the author.

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

A Study of J. Sai Deepak's Comments on Competition Law in India

Aarushi Bansal — 2015-11-21T06:18:42Z

In his blog, 'The Demanding Mistress', J. Sai Deepak has commented on the competition law in India, using provisions of different acts, case judgments and amendments to these acts. He has also included a comment on India’s patent law. This review studies his comments to the Competition Act, 2002 (“Competition Act”) and the Patents Act, 1970 (“Patents Act”).

Read J. Sai Deepak - The Demanding Mistress[1]. Nehaa Chaudhari provided inputs and edited this blog post.

The Nexus Between the Competition Act and the Patents Act

Sai Deepak explains the nexus between the Competition Act and the Patents Act[2] using two positions. Firstly, by using two situations to explain which of these two acts will apply under different circumstances. Secondly, by explaining the overlap that is apparent in cases of abuse of power.

Under the first issue, the two situations are thus. In a case where a patentee's patent over a technology allows him to acquire a position of dominance, Competition Act will be applied if he abuses this dominance. In case a patentee imposes a high license fee on his product, many players cannot afford it and get ejected from the market. Here, both the acts would apply, thereby indicating an overlap.

Under the second issue, it is stated that abuse of power could also happen if a patentee sets an "unfair price". Therefore, Sai Deepak argues that for ensuring fair or affordable price, there should be harmony between Competition Act and Patents Act. He has derived harmonized interpretations of "unfair price" under the Competition Act and "reasonably affordable price" under the Patents Act. He explains that the price under each law is measured according to the price for the licensee and not the price demanded or the value of the licensed technology. He further, argues that such a harmonization is possible since "price" under these two acts is essentially used in the same context. It is necessary to harmonize the two acts since the overriding effect of Section 60 of the Competition Act can be effective only when an inconsistency is proved with the other provisions or laws.

Patents and Competition "Arrangements"

An arrangement[3] or collusion may exist between two market players if their activities can be foreseeably linked, even if there is no express act or formal arrangement between these parties. This has been explained through an example.

A sells a patented drug in the market. B sells another patented drug which is similar to the drug sold by A. A also has some share in B's company. When C introduces a similar drug at a much cheaper price, B is forced to reduce his the price of his drug. A follows suit.

It may be noted that since there were similarities between the drugs being sold by A and B, and, therefore the patent, it may have been possible for B to challenge A’s patent on prior art and eject A from the market, thereby reducing competition.

Since he did not challenge A's patent which was closest to that of B in terms of prior art, there may be an arrangement between A and B. This shows that A and B decided to divide the market and not encroach upon each other's trading space. In addition to this, the fact that A was a shareholder in B's company, points in the direction of a collusive activity.

Legality of Pay-for-Delay Settlement Payments

This post, as written by Amshula Prakash, refers to J. Sai Deepak's comments on the topic. She has described a Pay-For-Delay settlement [4] as a patent settlement wherein the patentee pharmaceutical company pays the generic manufacturer to remain ejected from the market for a certain period of time.

She justifies these agreements by relying on the case of Federal Trade Commission v. Actavis [5],which upheld that such agreements are lawful as long as their anti-competitive activities are covered under the exclusive patent granted to them. She opines that entering late into the market is better than not entering at all, and such a deal would anyway not go beyond the life of the patent. She concludes by reiterating J. Sai Deepak's statement that the exact impact of the agreement cannot be ascertained, as no such cases of Pay-For-Delay agreements have arisen in the Indian market yet.

Collective Bargaining

J Sai Deepak has addressed two issues under this post. Firstly, the relation between collective bargaining and cartel-like conduct. Secondly, whether any defense under S.3(3) [6] of the Competition Act is available against cartel-like conduct.

In first issue, [7] J. Sai Deepak suggests that collective bargaining is a joint venture as it increases efficiency of entities in providing services. Similarly, an agreement to reduce such efficiency is also a joint venture, since it may ensure competitiveness in the market and control over prices. He specifies grounds to determine the purpose of a collective act which helps ascertain whether it will be covered under "collective bargaining". These include the nature of business, parity between parties, past negotiations etc. He has relied on foreign sources to justify cartel-like behavior of smaller entities, like Australia's Dawson Committee and Taiwan's efforts to integrate smaller enterprises into the mainstream market to increase efficiency and competitiveness. Hence he suggests that an amendment should be made in law to permit small businesses to make an exception to cartel-like conduct and collective bargaining.

Under the second issue, [9] he opines that a strict assumption of the presence of any anticompetitive nature or agreement is counter productive to the intention of the law. The available defenses under S.3(3) for parties accused of cartel-like conduct can be justified using the proviso[10] under this section. He explains that collective bargaining may be seen as a "joint venture" under the proviso of S.3 if it is not anti-competitive. He has further supported this argument by relying on FICCI - Multiplex Association of India v. United Producers/ Distributors Forum, [11] where "collective bargaining" was accepted as a valid defense to cartel-like behavior.

Power of Competition Commission with Respect to Abuse of Powers

J. Sai Deepak has explained the powers of the Competition Commission of India (CCI),[12] firstly, with respect to abuse of powers and secondly, in terms of imposing liability.

With Respect to Abuse of Powers

With respect to abuse of powers, he refers to Section 4 of the Competition Act. It refers to a situation wherein a dominant player in the market sets a discriminatory (including predatory price) or unfair price in the sale of his good. Predatory pricing is explained in this section and not discriminatory or unfair price. J. Sai Deepak argues that since they are capable of having different meanings, there might be different forms of abuse which a dominant entity can exercise.

He relies on a test laid down in a case on unfair price, namely United Brands Company v. Commission of the European Communities.[13] A question arising under this test was whether the regulator is expected to fix prices if they are found to be unfair. To show that the CCI has the power to fix prices, S.27 and 28 of the Act have been compared. Section 27(d) empowers the CCI to direct that agreements which are in contravention of Section. Furthermore, Section 27 (g) allows the CCI to pass orders 'it may deem fit'. Section 28(2)(a) empowers the CCI to vest property rights, which creates licenses for third parties. The CCI can set future commercial terms in agreements remove complexities of the market in the interest of equity and justice. This shows the abundant powers the Competition Commission of India has to set prices.

In Terms of Imposing Liability

To answer whether these decisions of the CCI are in rem [14], he explains that the CCI can regulate market transactions and the finding of an abusive practice would be applied to other enterprises with similar practices. This shows that CCI lays down rules prescribing acceptable practices in the market.

Review of the Competition Amendment Bill, 2012

This post discusses the proposed amendments in the Bill [15] regarding three issues. Firstly, in regards to joint dominance, i.e. position of dominance enjoyed by one or more enterprises, J. Sai Deepak argues that the Bill recognizes an oligopolistic market's collusive activities, thereby providing a legal method of identifying it. He argues that it is not yet time to introduce it into the Indian industrial arena, since S.3 which regards anti-competitive agreements, is too rigorous to harmonize the concept of joint dominance with it.

Secondly, another proposed change is to render the decision taken under S.21[16] appeal-able under S.53A of the Act. He criticizes this by saying that an appeal on S.21 while adjudicating on S.53A may lead to a multiplicity of legislations and jurisdiction issues.

Lastly, the amendment of S.5A, empowers the government to specify the values of any assets or turnovers based on the class of enterprises. The government may consult the CCI, but the consultation is not binding or of mandatory assent, which shows that the CCI might turn into a tool which furthers the powers of the executive.

Conclusion

On reading J. Sai Deepak's comments on the competition law in India, I have concluded that several provisions under legislations regulating competition in Indian markets might still not be comprehensive. This may be because many scenarios for which these provisions have been made have not yet arisen in India. Hence a few outcomes of these legislations remain to be mere speculations and as several developments in the market are still underway, laws like the Competition Act should adopt to these if and when they arise.

[1]. http://thedemandingmistress.blogspot.in/

[2]. http://thedemandingmistress.blogspot.in/2013/09/the-overlap-between-patents-and.html#links

[3]. http://thedemandingmistress.blogspot.in/2011/10/patents-and-competition-need-for.html#links

[4]. http://thedemandingmistress.blogspot.in/2013/06/legality-of-pay-for-delay-settlement.html#links

[5]. 570 U. S. ____ (2013)

[6]. Defines the type of agreements which would qualify as anti-competitive

[7]. http://thedemandingmistress.blogspot.in/2012/01/collective-bargaining-and-cartel-like.html#links

[8]. Committee of Inquiry for the Review of the Trade Practices Act of the Australian Parliament

[9]. http://thedemandingmistress.blogspot.in/2012/01/competition-act-is-collective.html#links

[10]. Refers to “any agreement entered into by way of joint ventures”.

[11]. Case No. 01 Of 2009

[12]. http://thedemandingmistress.blogspot.in/2015_01_01_archive.html

[13]. C-27/76 [1978]

[14]. http://thedemandingmistress.blogspot.in/2014/07/are-decisions-of-competition-commission.html#links

[15]. http://thedemandingmistress.blogspot.in/2015/03/a-review-of-competition-amendment-bill.html#links

[16]. Reference by Commission to statutory authority in case of contravention with the Act

For more details visit https://cis-india.org/a2k/blogs/a-study-of-j-sai-deepaks-comments-on-competition-law-in-india

MHRD IPR Chair Series: Information Received from IIT Roorkee

Karan Tripathi and Nehaa Chaudhari — 2015-11-21T07:26:45Z

This post provides a factual description about the operation of Ministry of Human Resource Development IPR Chair’s Intellectual Property Education, Research and Public Outreach (IPERPO) scheme in IIT Roorkee.

Nehaa Chaudhari provided inputs, analysed, reviewed and edited this blog post.

The author has analysed all the data received under various heads such as income, grants from MHRD, planned and non planned expenditure, nature and frequency of programmes organised and the allocation of funds for the same. Throughout the course of observation and presentation of the analysed data, the author seeks to trace the presence of unjustified underutilisation of funds by the aforementioned university as provided by the MHRD during the period of 2003-2014.

To collect the information for the given study, an RTI application was filed to the Indian Institute of Technology, Roorkee on 6/02/2015 by the Centre for Internet and Society. The reply to RTI application was received on 16/02/2015.

These are the documents received by CIS from IIT Roorkee:

For RTI Response click here (IIT Roorkee -Receipt of RTI- 20.4.15)
For complete supporting documents click here (IIT Roorkee – Response and Report)

Hereinafter, in order to receive any information about IIT Roorkee’s RTI reply, kindly refer to the above mentioned links.

Following are the queries mentioned in the RTI application along with their replies.

Reports on the implementation of the IPERPO scheme of the Ministry of Human Resource Development and the implementation of the MHRD IPR Chair funded under the scheme at IIT Roorkee from 2003-20014
Reply: The University documented the minutes of the Departmental Faculty Committee Meeting where proposals for forming Departmental Administrative Committee, syllabus for new institute electives, duties of Departmental Research Committee, forming Institute Time Table Committee, conversion of existing LR1 computer lab and teaching scheme of autumn semester 2013 were deliberated upon. The University also organised various events such as Training of Trainers programme and International Conclave on Innovation and Entrepreneurship.
Documents indicating the date on which such an IPR Chair was set up at your institution and a copy of the application made by IIT Roorkee to the MHRD for instituting such an IPR Chair and documents received by IIT Roorkee from the MHRD approving the same
Reply: According to the Office Memorandum (dated 04 May 2012) of IIT Roorkee, Dr P.K. Ghosh had been appointed on the position of Professional Chair on IPERPO with effect from April 27 2012. A suitable financial grant of Rs. 208.02 lakhs was demanded for a period of five years.
Documents detailing the release of grants to the MHRD IPR Chairs under the IPERPO Scheme
Reply: As it appears from the reply filed by IIT Roorkee to the RTI filed by the CIS, Rs. 30,00,000.00 of the Grant in aid was sanctioned to the University by the MHRD during the financial year 2010-2011 and nil amount was utilized for the purpose of it. At the end of the year, the balance sum of Rs. 30,27,041 (including the interest) was surrendered to the Government.
Documents relating to receipts of utilisation certificates and audited expenditure statements and matters related to all financial sanctions with regard to funds granted to the MHRD IPR Chair established under the IPERPO scheme at IIT Roorkee
Reply: IIT Roorkee has replied with a series of Statement of Expenditure ranging from 2010-2014 that explains its rate of expenditure and amount of interest accumulated and surrendered to the Government along with the unutilized amount. In the financial year 2011-2012 the unutilized expenditure was 3,105,159.00 which came down to 11,74, 026.00 in 2012-2013 due to which a grant of Rs. 24,00,000.00 was extended to the University by MHRD for the financial year 2013-2014.
Documents regarding all matters pertaining to finance and budget related the MHRD IPR Chair under the IPERPOs scheme established at IIT Roorkee
Reply: CIS did not receive any sort of clarity on matters pertaining to finance and budget related to MHRD IPR Chair under the IPERPO scheme as the response for this question was coupled with the previous question on utilization certificates.
Details of the IPR Chair’s salary under the IPERPO Scheme indicating whether this amount is paid over and above the professional’s usual salary
Reply: According to the RTI reply, the position of Chair Professor is awarded for a period of three years or upto 68 years of age, whichever is earlier. The pay of Chair Professor is fixed as per the rules and guidelines of Professional Chair in the institute.

2.0 Comparative Analysis between University Response and the guidelines of MHRD Scheme Document

The Scheme Document of MHRD is a comprehensive document which consists of guidelines regarding Intellectual Property Education, Research and Public Outreach. It talks about a list of objectives, purposes, conditions and eligibility criteria for a University to ensure in order to implement IPERPO in a truest sense. This document provides the procedural as well as qualifying conditions for an Institute to ensure or fulfil before applying for the MHRD grant. Some of these conditions include maintenance of utilization certificates, audit reports, expenditure statements and event information which would be open to access on demand by MDHR or Comptroller and Auditor General of India.

A. Objectives:

As it appears from the reply statement of IIT Roorkee, each and every event organised after the establishment of IPR Chair in 2012, where the funds from the grant have been utilized, is done to promote the scholarly as well as academic interests in the field of Intellectual Property. Even before applying for the MHRD grant, the University has organised many National Seminars and has started various short term courses in order to encourage research and excellence in Intellectual Property. This fact completely resonates with the core objective of MHRD scheme document, i.e. strengthening the academic and research discourses in the field of Intellectual Property.

B. Eligibility:
IIT Roorkee is recognized by the University Grants Commission. Therefore, it fulfils the eligibility criteria mentioned in the scheme document.

C. Conditions for Grant of Assistance
There are several conditions laid down in the scheme document which need to be fulfilled by the concerned University in order to successfully receive the grant. The underlying condition is the dissemination and development in the field of Intellectual Property Rights.

According to the documents available with CIS, IIT Roorkee has organised at least 27 events in the field of IPR ranging from introduction of new electives, National Workshops and Symposiums, Expert Lectures, Infrastructure Development, Online portals for IP Administration and awareness and infrastructure development.

3.0 Financial Analysis of IIT Roorkee’s IPR Grant

According to the RTI reply, the IPR Chair at IIT Roorkee was established in the forenoon of 27th April 2012 with Dr P.K. Ghosh as its Chairman. Dr Ghosh was promised an Honorarium payment of Rs. 30,000 per month and a Contingency payment of Rs. 20,000 per month.

3.1 Financial Year 2010-2011

In this financial year, the IPR Chair was not established at IIT Roorkee. The total grant received by the University was Rs. 30, 00,000.00 out of which Rs.0 was utilized for the purpose of it was sanctioned.

At the end of the financial year, the remaining amount of Rs. 30,00,000, (due to Nil utilisation) along with the interest of Rs. 27041 was either surrendered to the government or adjusted towards the grants-in-aid payable during the next financial year.

3.2 Financial Year 2011-2012

The IPR Chair was still not established at the University. The opening balance was the amount carried forward from the previous year (30,27,041) upon which interest of Rs. 1,17,117 was received making the total receipt to be 31,144,158. Out of this, a total of Rs. 38,999 was utilised for travelling and miscellaneous expenditure. At the end of the year, the remaining of amount of Rs. 3,105,159 was either surrendered to the government or adjusted towards the grant-in-aid payable during the next financial year 2012-2013. As per the documents available with CIS, the statement of expenditure for this financial year has not been submitted by the university.

3.3 Financial Year 2012-2013

In this financial year the IPR Chair was established with Dr. P.K. Ghosh as its Chairman. The Opening balance was the amount carried forward from the previous financial year (31,05,159) upon which an interest income of Rs.1,25,376 was received along with a refund of advance amounting to Rs. 42,968. Out of the total receipt of Rs. 32,73,503 the total expenditure of the University on the current financial year was Rs. 20,99,477. The remaining amount of Rs. 11,74,026 was either surrendered to the government or adjusted towards the grants-in-aid payable during the next financial year 2013-2014.

3.4 Financial Year 2013-2014

In this financial year, the University received a grant of Rs. 24,00,000 from the government along with the amount carried forward from the previous financial year (Rs.11,74,026) upon which an interest income of Rs. 55,892 was received. Out of this, a sum of Rs. 24,01,045 was utilised as contingency expenditure. The remaining amount of Rs. 12,28,873 has been either surrendered to the government or adjusted towards the grants-in-aid payable during the next financial year 2014-2015.

In this financial year, the expenditure on library (5,00,979) is the only sum which exceeded the sanctioned amount (5,00,000). Moreover, there has been no expenditure on Outreach Program and Clinics. The honorarium payment to the IPR Chair Professor is similar to the sanctioned amount (3,60,000) but there’s a difference in his contingent payment (1,39,645 instead of 2,40,000). The total amount of expenditure in this financial year is Rs. 24,01,045.

For more details visit https://cis-india.org/a2k/blogs/mhrd-ipr-chair-series-information-received-from-iit-roorkee

National IPR Policy Series: Quick Observations on the Leaked Draft of the National IPR Policy

nehaa — 2015-11-19T05:13:14Z

Earlier this week, the “Don’t Trade Our Lives Away” blog leaked the supposed final draft of India’s National IPR Policy (“leaked draft”). This article presents quick comments on this leaked draft.

The leaked draft (which is not final) is available here. The only official document that the Department of Industrial Policy and Promotion (“DIPP”) has released so far is the First Draft of the National IPR Policy (“First Draft”).

CIS has tracked these developments since the beginning. We have submitted preliminary comments, critical comments to the First Draft, sent multiple requests under the Right to Information Act, 2005 (“RTI requests”) to the DIPP and published their responses, discussed the IPR Think Tank as a public authority under the RTI Act, analysed the process compared to recommendations by the World Intellectual Property Organization (“WIPO”), compared the First Draft to an earlier National IPR Strategy[N1] , written a letter to the Think Tank and have now begun to track the work being done by the Sectoral Innovation Council on IPR, also established under the DIPP. At the time of writing this post, we have been unable to locate comments to the First Draft made available by the DIPP.

Since the release of the First Draft in December, 2014, this leaked document has been the first look at an updated IPR Policy for India. Not much seems to have changed since December, 2014 and this new leaked draft (which is dated April, 2015), barring the inclusion of some Special Focus Areas.

Perhaps one of the strongest criticisms of the First Draft had been that it supposed a nexus between IP and innovation, and various stakeholders had been quick to point this out as problematic, and fallacious. Unfortunately, since the language of the new draft has barely changed (I have managed to count only two-three additions), this remains the underlying issue in the new draft as well.

What continues to be worrying in both drafts is sweeping references of benefits of IP to India’s socio-economic development. What constitutes this development and how IPR, and specifically the IPR Policy will achieve it is anyone’s guess, given that there are no references to studies undertaken to assess how IPR contributes to socio-economic development, specifically in India.

Here are some other quick comments:

In the first objective on IP Awareness and Promotion, the new draft includes an additional recommended step – that of engaging with the media to ‘sensitize them on IP issues’ (sic.). Given that this is under a broader objective of encouraging IP promotion, I am inclined to believe that this could be interpreted as telling the media to print positive things about intellectual property and refrain from criticizing intellectual property (that seems to be the theme of this entire document!). What does it mean to ‘sensitize’ the media about intellectual property?
In the second objective, on IP creation, the leaked draft contains a recommendation to conduct a study to assess the contribution of various IP based industries to the economy – including employment, exports and technology transfer. No other details have been provided in the draft.
Also in the second objective, the new draft makes a mention of improving the IP output of universities, national laboratories etc. The new draft proposes to encourage and facilitate the acquisition of intellectual property rights by these labs and institutions, whereas the earlier draft recommended the protection of IPRs created by them.
In the covering letter to the leaked draft, Justice Sridevan states that the final draft includes a discussion on key focus areas – creative industries, biotechnology, ICT, energy, agriculture, health, geographical indications (“GIs”) and traditional knowledge (“TK”). These have been discussed at the end of the new draft.
Limitations and exceptions remain confined to an area of future study/research for future policy development. The ‘Creative Industries’ section of the leaked draft makes a mention of the significance of limitations and exceptions to safeguard access to knowledge and information; and the need to balance user rights and property rights. One would have liked to see this discussed more substantively in the policy and not confined only to a paragraph in the section on ‘Creative Industries’.
In a welcome move, the policy draft (new) seeks to promote the adoption of free and open standards and free and open software in the ‘Information and Communication Technology and Electronics’ section.

With the DIPP Secretary’s latest update that the new policy draft will be released in about a month’s time, one will have to wait and see what the final draft looks like.

For more details visit https://cis-india.org/a2k/blogs/national-ipr-policy-series-quick-observations-on-the-leaked-draft-of-the-national-ipr-policy

Pervasive Technologies: Working Document Series – Updated Research Methodology – Applying the Actor Network Theory to Competition Law and Standard Essential Patent Litigation in India

nehaa — 2015-10-04T04:20:13Z

This document lays out the updated research methodology for the paper on competition law issues around standard essential patent litigation in India.

Read the earlier posts:

In New Delhi, as in Fascist Milan or Nazi Berlin, the individual is lost; the scale is not human but super human; not national, but super-national: it is, in a word, Imperial.[1]

Twenty plus years later, written after he was awe-struck by the grandeur of the Rashtrapati Bhawan in New Delhi, Dalrymple’s delightful choice of words on the similarities between Lutyen’s Delhi and Speer’s Nuremberg[2] rather aptly describe today’s globalized narrative of intellectual property (“IP”) rights determination and ownership. The process of determination of standards applied in mobile devices, claims of IP ownership in these standards and the subsequent enforcement (globally) of these IP claims are all instances of this narrative.

The increasingly global nature of both – innovation and intellectual property has been well documented by researchers over the years and needs no further exploration in this article. This article will seek to examine how this narrative influences (either overtly or covertly) the application of competition law to the regulation of standard essential patents (SEPs) in India. More specifically, this article seeks to study the role of various human and non-human actors involved were competition law to be considered as a potential solution to the matter of SEP litigation in India.

This article examines four research questions. First, how does the globalized narrative of intellectual property influence the determination of standards around mobile devices, their IP protection, licensing and enforcement? Second, what are the important competition law issues in SEP litigation in the United States of America (“USA”) and the European Union (“EU”), and how have regulators (the Federal Trade Commission (“FTC”) and the European Commission (“EC”) respectively) and courts in these jurisdictions addressed these issues? Third, what are the critical issues in SEP litigation and competition law in India and how do they compare with similar questions in other jurisdictions? Fourth, could solutions and methodology from the FTC and the EC be applied to SEP competition law matters in India?

In this effort, this article will employ Bruno Latour’s Actor-Network Theory[3] (“ANT”) as the primary research methodology, supplemented where needed by others including comparative research and case studies. A detailed approach into discussing the (above) research questions has been discussed below.

Question one - how does the globalized narrative of intellectual property influence the determination of standards around mobile devices, their IP protection, licensing and enforcement?

This question primarily seeks to explain the determination SEPs on standards through International Standard Setting Organizations (“SSOs”) and the subsequent obligation on members of the SSOs to licence these SEPs on a Fair, Reasonable and Non Discriminatory (“FRAND”) basis.

Applying the ANT, this question will identify both human and non-human actors and that play a role internationally, in the determination of SEPs and their licensing. Illustratively, these actors include the SSOs, multinational corporations that are members of the SSOs, the FRAND licences and the contracts/terms of reference between the SSOs and their member corporations. In order to address this question, the author will refer to academic writing and other literature explaining the role of various actors and the international nature of the standard setting process. Networks that these actors share with each other and the possible influences to the determination of international standards will be studied. This question will explore the international IP environment, and the power of various actors that have an influence on IP norm setting, and attempt to locate the power of these various actors in their network setting.

Question two - what are the important competition law issues in SEP litigation in the USA and the EU, and how have regulators (the FTC and the EC respectively) and courts in these jurisdictions addressed these issues?

This question will study the competition law issues arising from the international determination of standards and the cross-border assertion and enforcement of intellectual property rights discussed in the previous question. This question will also study how (first, whether) courts and regulators have attempted to address some of the competition law issues.

Also applying the ANT, this question will identify various actors involved in competition law litigation around SEPs before the FTC, EC and the courts in the USA and the EU. Illustratively, these include the parties to the litigation, the regulator (whether the FTC or the EC), the court and the legal principles employed. Further applying the ANT, this question will also study how the various actors relate to one another, as a result of their connections within this network, i.e., the litigation, and other connections in other networks (for instance, the position of the parties in certain markets).

Under this research question, select a case study method will be employed to select cases from each jurisdiction. The most important cases pertaining to competition law questions will be studied. These are yet to be identified.

Question three - what are the critical issues in SEP litigation and competition law in India and how do they compare with similar questions in other jurisdictions?

This research question will seek to map the global context around SEP litigation (discussed above) to specific cases in India. In doing so, the author will study the two SEP disputes in India with competition law implications – the Ericsson and Micromax dispute and the Ericsson and Intex dispute; based on information available in the public domain. While there are other pending disputes around SEPs in India, they do not involve the Competition Commission of India (India’s market regulator), and hence are outside the scope of this article. Through a study of these cases, questions of competition law will be identified. Such questions may be either those as a result of the direct application of the Competition Act, 2000 or certain actions taken by the courts with competition law implications (for instance, granting ex-parte interim injunctions).

Having identified competition law issues in SEP litigation in India, the author will then employ the comparative research methodology to trace similar issues in international SEP litigation, discussed under the previous research question. What the author is most interested in locating is the position of the actors in domestic as well as international SEP litigation. Specifically, it is submitted that characters in the domestic litigation also trace back to the context of global IP norm setting; some of them more directly than others. For instance, multinational corporations are directly involved in IP norm setting and are a party to domestic disputes. Further, domestic regulators may seek to draw inferences or apply commonly understood international legal principles, thus invoking more international actors. This phase will attempt to distill the uniqueness of India in the narrative of global IP ownership around SEP litigation.

Question four- what are the challenges for competition regulation of SEPs in India; do principles and methodology from the FTC/ EU and courts present solutions to these challenges?

In this question, the author deliberates the challenge of competition regulation for SEPs in India and whether the approach of international regulators and courts could serve as a roadmap to address these issues.

In answering this question, the author will trace India’s specific location in global competition. The tensions between differently situated actors and the networks that they form will be examined. Some comparisons will be made to illustrate how the relationship of international jurisdictions (mainly the USA and the EU) with international multinational corporations that are a party to litigation differs from that of India. Legal traditions and institutions in India will be used to understand what legal possibilities are available for using competition regulation to regulate SEPs. This includes specifically the levers in competition law such as abuse of dominance as well as the nature of the competition regulator and the role that it identifies for itself. One might also consider the relative ‘youth’ of the competition regulator as a factor in laying down legal principles, the constraints it imposes on itself as well as a tension between the market regulator and the courts. This phase will also attempt to make a case for IP regulation within India’s existing culture of engaging with the public interest in intellectual property regulation.

Having examined global IP norm setting in SEPs, international and domestic issues around SEP litigation and the network of actors involved in these proceedings, in concluding this article, the author seeks to illustrate how actors and networks in the SEP-competition set-up derive power from each other; and how the location of an actor within a network is likely to influence law and regulation. Tracing this location will then in turn be useful in determining what solutions would best address the matter of competition regulation for SEPs in India.

[1]William Dalrymple, The City of Djinns – A Year in Delhi (rep. 2014, Penguin, India) at 83.

[2]Id at 82.

[3]Bruno Latour, Networks, Societies, Spheres: Reflections of an Actor – Network Theorist, International Journal of Communication 5 (2011), 796- 810, http://ijoc.org/index.php/ijoc/article/viewArticle/1094 (accessed 31 August, 2015).

For more details visit https://cis-india.org/a2k/blogs/pervasive-technologies-working-document-series-2013-updated-research-methodology-2013-applying-the-actor-network-theory-to-competition-law-and-standard-essential-patent-litigation-in-india

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

rohini — 2016-02-14T04:40:29Z

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

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

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

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

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

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

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

● Rule of Thumb

● Numerical Proportionality

● Industry Standards / Market or Comparable Technology Method

● Discounted Cash Flow

● Ranking

● Cost-based Rate Setting

● Surrogate Measures

● Disaggregation Methods

● Option Methods

● Competitive Advantage Valuation (R)

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

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

Some indicative examples:

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

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

Alleged troll that sued eBay over PTO reexamination dismisses lawsuit

Patent Troll Lodsys Settles for Nothing to Avoid Trial

Why I’m not paying the Troll Toll

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

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

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

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

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

Pervasive Technologies: Working Document Series - Research Questions and a Literature Review on the Actor-Network Theory

nehaa — 2015-09-05T04:56:03Z

This document is divided into two parts - the first part lays out a series of research questions, potentially seeking to apply actor-network theory as a research methodology. The second part seeks to map literature around the Actor-Network Theory ("ANT") as a research methodology.

Part 1: Research Questions

The aim of this exercise is to delineate the contours of the paper, and provide some insight into the demarcation of the various sections.

The overall context to this paper will be determined by a globalized form of intellectual property ownership, and the various instances in which this narrative finds a place (either overtly or covertly) in the regulation of standard essential patents in India. In our paper, the globalized form of IP ownership is probably most clearly indicated in the standard setting process, where participants are International Standard Setting Organizations determining, in a manner of speaking - the rules of the game - that is - licensing on Fair Reasonable and Non Discriminatory Basis. The other important player to our understanding of global ownership would be multilateral organizations such as Ericsson, involved in many of the disputes before the Delhi High Court and the Competition Commission of India ("CCI"). Perhaps international actors/actants would also be international legal principles as well as international regulators such as the FTC or the ECC themselves. This phase of the paper will also trace India's specific location in global competition. In doing so, not only will the market positions of some of the players be examined, but also some comparisons will be made to illustrate how the relationship of international jurisdictions (mainly the USA and the EU) with international multinational corporations that are a party to litigation differs from that of India. This phase of the chapter will most likely apply the doctrinal method of research, study academic texts as sources as well as study some decisions by international regulators and courts to understand the tools and sites available for regulation as well as the nature of the regulatory process itself.

The second phase of this chapter will seek to map the overall context to specific cases - that is, pending legal processes in India. This includes both, ongoing litigation on patent infringement at the Delhi High Court as well as ongoing disputes before the CCI as well. The characters in this litigation also trace back to the broader context; some of them more directly than others. The multinational corporations are directly involved in both contexts, whereas the domestic regulators may seek to draw inferences or apply commonly understood international legal principles, thus invoking more international actants.

This phase of the chapter will study three key litigations in India - Ericsson and Micromax, Ericsson and Intex, and a third that is yet to be defined. Legal traditions and institutions in India will be used to understand what legal possibilities are available for using competition regulation to regulate SEPs. This includes specifically the levers in competition law such as abuse of dominance as well as the nature of the competition regulator and the role that it identifies for itself. One might also consider the relative 'youth' of the competition regulator as a factor in laying down legal principles, the constraints it imposes on itself as well as a tension between the market regulator and the courts. Perhaps this might also be an actant, in the context of the actor network theory. This phase of the chapter will most likely apply the doctrinal method of research, study academic texts as sources as well as study legal instruments and judicial decisions as sources.

The third phase of this chapter will now ask the question of standard essential patent (SEP) regulation, located within this broader matrix of intellectual property ownership and fluidity of actants. The specific question to be asked will be what is the competition regulation challenge for SEPs in India? This phase will attempt to distill the uniqueness of India in the narrative of global IP ownership around SEP litigation. It will be observed that the nature of the players in international litigation as well as in India is rather different. This phase will also attempt to make a case for IP regulation within India's existing culture of engaging with the public interest in intellectual property regulation.

It is in this phase that one must also examine the usefulness of the actor-network theory as a research methodology to study SEP regulation in India. It must be noted that while SEP regulation so used is used to refer to competition regulation specifically, and not to other levers, such as mechanisms within intellectual property law itself. The focus of this exercise will be competition regulation, with an engagement with other areas of the law and the judicial process only in as much as it informs our understanding of competition regulation of SEPs or impedes it. If one were to apply the actor network theory to this phase of the exercise, one would view courts, parties involved in the litigation, the CCI, international legal principles, international market regulators, international SSOs, competition law as well as issues raised in the litigation as 'actants', both human and non human, who are to be treated on par with each other, with a study of the networks that these actants create, or are a part of.

Part 2: Literature Review on the Actor-Network Theory

The aim of this exercise is to first, understand the ANT as a research methodology; second, to study its components and third, to ascertain its suitability as a research method for exploring the challenge of regulating SEP litigation through completion law mechanisms in India.

What is the Actor-Network Theory?

David Banks, in a 2011 blog post, contextualized in trying to trace a relationship between our offline and online behavior presents an overview of the ANT.[1] Banks describes ANT as an ongoing project that seeks to radically transform how social scientists talk about society's relationship to technology and other non human actors ; and identifies Bruno Latour, John Law and Michael Callon as the major authors in this space. (It is observed that there might have been additions or deletions to this core list of thinkers - not to self for further reading).

In his paper[2] reflecting on the ANT, Bruno Latour refers to himself as a 'fellow traveler' of the various network 'revolutions', and says that in the network, he has found a powerful way of rephrasing basic issues of social theory, epistemology and philosophy. Latour says that in its simplest and deepest sense, the notion of the network is of use whenever action has to be redistributed.[3] In a different paper, Latour argues that the purpose of the ANT is not to provide explanations for the behaviour and reasons of actors, but only to map procedures which enable actors to relate to each other and each others' world building capacity. My discomfort with this reading is trying to locate what these procedures would be in an SEP regulation environment.

Identifying the components of the ANT

Latour presents an actant - or an actor - as something that acts, or to which some sort of activity is assigned by others. [4] There is no special motivation of humans or human actors. "An actant," says Latour, "can literally be anything provided it is granted to be the source of the action."[5] The conception of an actant, Latour further articulates, should be not as fixed entities, but as fluid, circulating objects, whose stability and continuity depends on other actions. [6]

So what is on its agenda? The attribution of human, unhuman, nonhuman, inhuman, characteristics; the distribution of properties among these entities; the connections established between them; the circulation entailed by these attributions, distributions and connections; the transformation of those attributions, distributions and connections, of the many elements that circulates and of the few ways through which they are sent.[7]

Banks[8] identifies actants to be of two types - human and non human, further explaining that 'actors' is typically used to refer to humans. These actants have equal amounts of agency within the actor-network. Banks proceeds to demonstrate this applicability of equal agency with an illustration of getting wi-fi connectivity in Albany. In his narrative [9] (and as he notes later himself), Banks uses the same language (read as according agency to the inanimate) to describe both, the human and non human actants. Says Banks, that the actants are merely nodes that facilitate a larger functioning. It is submitted that the 'larger functioning' being referred to is probably something that would be determined on a case to case basis - depending on what was being studied.

In a 1999 paper On Recalling ANT[10], Latour articulates a problem with the usage of the word 'network' as a result of its usage having changed over time - from using it to refer to a series of transformations incapable of being captured by prevalent social theory at the time, to an unmediated access to every piece of information (to my understanding within the context of the World Wide Web). Latour explains that his new understanding is exactly the opposite of what they meant and that it ought not to be used to mean the transformations they were initially articulating.

Another of Latour's papers is helpful in arriving at an understanding of the 'network', where he argues that it would be fallacious to consider it in a technical sense, as one would a sewage, a train or a telephone network.[11] Unlike a technical network, Latour argues, an actor-network may have no compulsory paths, no nodes and might be quite local in nature. Latour further argues that thinking in terms of a network helps us overcome the tyranny of distance, citing a range of examples including standing one metre away from somebody in a telephone booth and yet being more closely connected to his mother, thousands of miles away, among others[12]. In each of his illustrations, however, Latour articulates closeness or distance in terms of geography or presence in a physical sense, which might not be entirely applicable to the research question we're seeking to study. What might be more useful perhaps, is the articulation of the network where he argues that instead of tracing an individual to the collective or the agency, one could only at the number of connections an element has and gauge the importance of the element in light of these connections . The greater the number of connections, the more important an element and vice versa. [13]

ANT Criticism and Applicability of the ANT to our research question?

Before delving into specifics of the ANT that lend themselves to a critique, I submit a broader reservation with the application of the ANT to studying legal and regulatory processes. From my reading and understanding of the ANT so far, a cornerstone appears to be the exclusion normative ideologies, with a focus on studying processes and networks as is, without formulating a value-judgment on their larger place in the society being studied. In so far as defending this claim, Latour and other supporters of this theory have relied on scientific examples (for instance, the reference to the Colombia Shuttle - NASA and its complex organizational structure)[14] or illustrations from the social sciences or social phenomena. I'm still attempting to locate a paper that utilizes the ANT to study law or regulation. Prima facie, the challenge being posed is to study inherently normative structures and processes with clear power structures.

Banks[15] describes the efficacy of the ANT in describing the processes by which inventions and technological systems come into being, or fail to do so. Perhaps in studying the legal regulation of SEP litigation in India, the efficacy of the ANT would like in describing the processes by which legal regulation and legal systems in India (specifically to regulate SEPs) come into being, or fail to do so. By extension, for our research question, non human actants as identified by Banks[16] would probably be legal institutions and the parties to the litigation themselves. What is unclear at the moment is whether policy and legal instruments or levers themselves would be actors.

Banks, in his article also articulates criticisms[17] to the ANT propounded by Sandra Harding, David Bloor and Sal Restivo, on the grounds of being blind towards other social factors such as race or patriarchy. If one were to extend this to the research question at hand, an argument could be made that the ANT seeks to equate dissimilarly situated institutions. Corollaries to race and patriarchy might be found in the market power of parties (an Ericsson v. a Micromax), or even within regulatory set up itself, where, based on the facts so far, an argument could be made out that different regulators are situated differently, where the Delhi High Court could pass an order restraining another regulator - the Competition Commission of India, from passing its own order.

A reference to the 'agency' critique of the ANT is made by Latour himself, in his 1999 paper. Latour goes on to acknowledges the critiques of the ANT, but says that most have (mistakenly) centered either around the actor or around the network; and that the idea was to never occupy a position in the agency/structure debate.[18] Later in the paper, Latour further clarifies that actants are not to be perceived as playing the role of agency, and network is not to be seen as playing the role of the structure. Instead, says he, they represent two sides of the same phenomenon. Latour further explains that the ANT merely tried to learn from the actors (what was sought to be learnt was difficult to grasp), without attempting to be an explanation of societal pressures (and the reasons for such pressures) on actors. The difficulty in reading this paper for me was that it was rather dense in many respects, with various concepts - including, for instance, the idea of the 'social', which he refers to constantly, not being clearly articulated. Further, what is uncertain to me is how this question of agency will play out if applied to a legal or regulatory context. If, for instance, a legal principle was to be a non human actant, how would this have an agency independent of the human actor (the judge) that would be the one applying the legal principle in the first place? Can we truly exclude the question of agency from the ANT if the very exclusion of agency means a recognition of the existence of agency in the first place? How does one exclude the question of agency in seemingly unequally situated actors with an inherent power dynamic? Is the ANT, then even a useful research methodology? In his 1999 paper, Latour argues that the aim of the ANT is to study actors without the imposition of an a priori definition of their world building capacities.[19] The question now arises for me, is how to divest regulators of their 'world building capacities'.

Explaining the rationale[20] for the ANT (in social science research), Latour articulates a dissatisfaction that social scientists have with both, micro (local sites) and macro levels (more abstract ideas like culture, patriarchy etc.) of research. This dissatisfaction, he argues, results in a back and forth between these sites ad infinitum. The ANT, argues Latour, is a way of tracing these dissatisfactions, not for the purposes of finding a solution, but to follow them elsewhere and explore the very conditions that make these two disappointments possible. Latour further clarifies that one must not understand 'network' in ANT to mean a larger society that would help make sense of local interactions or as an anonymous field of forces. Instead, he says, it refers to summing up various interactions through various devices, inscriptions, forms and formulae into a very local, very practical, very tiny locus. My key takeaway from this articulation was that ANT could be used to study various interactions between various key stakeholders, with a very specific research question. Given that the locus could also be tiny, perhaps if the research question was narrowed further, the key stakeholders, or the 'network' and the 'actants' would reduce as well.

Latour has also argued that the ANT makes no assumptions about how an actor should behave and assumes infinite pliability and absolute freedom of actors. [21] In itself AT is not a theory of action no more than cartography is a theory on the shape of coasts lines and deep sea ridges; it just qualify what the observer should suppose in order for the coast lines to be recorded in their fine fractal patterns. Any shape is possible provided it is obsessively coded as longitude and latitude. Similarly any association is possible provided it is obsessively coded as heterogeneous associations through translations.

there is no difficulty in seeing that AT is not about traced networks by about a network-tracing activity. As I said above there is not a net and an actor laying down the net, but there is an actor whose definition of the world outlines, traces, delineate, limn, describe, shadow forth, inscroll, file, list, record, mark, or tag a trajectory that is called a network. No net exists independently of the very act of tracing it, and no tracing is done by an actor exterior to the net. A network is not a thing but the recorded movement of a thing. The questions AT addresses have now changed. It is not longer whether a net is representation or a thing, a part of society or a part of discourse or a part of nature, but what moves and how this movement is recorded. [22]

A useful articulation of the application of ANT emerges out of Jonathan Murdoch's 1997 paper.[23]He submits that the human gaze is being increasingly considered as an unreliable source of knowledge, being in a constant state of flux. Citing the example of the environment/biosphere to demonstrate the futility of the separations we make between nature and society, Murdoch argues that any solution to the environmental crisis will involve a profound re-thinking of how we link these two domains.[24]Extending this argument to our research question, one might ponder for instance that any solution to the SEP litigation and regulation conundrum will involve a profound re-thinking of how we link the courts and the CCI. What is unclear is what method we will use to arrive at this re-thinking, or what the re-thought out version would look like.

Murdoch does, however, articulate concerns with the 'non dualistic' framework (which the ANT positions itself as) and argues, relying on others before him, that such an adoption could have far reaching consequences; that the very basis of the development of social science is such a binary division. Murdoch argues that the nature-society divide has enabled social scientists to break the hegemony of the natural scientists. Murdoch further submits his reading of Latour, where he states that the power of laboratories arises as a result of their ability to tie together actors that are beyond the lab into networks that are then used to disseminate scientific facts.[25] Murdoch's paper largely focuses on blurring the distance between 'natural' and 'social' actors, and identifies the difficulties in attempting to compare the two. Murdoch questions if natural actors whose identity emerge from nature itself are malleable as social actors, who are by definition, a product of society. What is unclear, however, is how malleable are two dissimilarly situated social actors; and whether 'social actors' is broad enough to encompass all institutions born out of or with a human/societal interaction component. Specifically, for our paper, would courts and the CCI both qualify as social actors? Would legal principles? Would the decision making process by the courts itself? Latour's very example for proposing the ANT was that of pasteurization in France. Murdoch also questions whether it's possible to in fact treat various actants as each other. In order to address another critique of ANT, that where we exclude notions of power, Mudoch says Law's articulation - of focusing on 'victims' instead of 'heroes' might prove to be useful. This has not been discussed in detail, leaving the reader to make their own inferences.

In other words, can ANT, with its seamless webs, forever crisscrossing the human-nonhuman divide, provide a secure platform for critique, for the expression of a profound dissatisfaction with the activities of powerful social actors and the attribution of responsibility to those actors? Can it, in other words, ever do anything more than describe, in a prosaic fashion, the dangerous imbroglios that enmesh us?
Does this emphasis on description necessarily represent "an insuperable obstacle to effective and convincing social criticism

[1] David Banks, A Brief Summary of Actor Network Theory, available at http://thesocietypages.org/cyborgology/2011/12/02/a-brief-summary-of-actor-network-theory/ (last accessed 29 August, 2015).

[2] Bruno Latour - Networks, Societies, Spheres : Reflections of an Actor - Network Theorist, International Journal of Communication 5 (2011), 796- 810, available at http://ijoc.org/index.php/ijoc/article/viewArticle/1094 (last accessed 31 August, 2015).

[3] Id at 797.

[4] Bruno Latour - complications paper - at internal page 7.

[5] Id.

[6] Id at internal page 8.

[7] Id at internal page 7.

[8] Id.

[9] Id.

[10] Bruno Latour, On Recalling ANT, available at http://www.bruno-latour.fr/sites/default/files/P-77-RECALLING-ANT-GBpdf.pdf (last accessed 28 August, 2015).

[11] Bruno Latour, On actor-network theory. A few clarifications plus more than a few complications, available at http://www.bruno-latour.fr/sites/default/files/P-67%20ACTOR-NETWORK.pdf (last accessed 30 August, 2015) at internal page 2.

[12] Id at internal page 4

[13] Id at internal page 6.i

[14] Latour, the networks, societies, spheres paper

[15] Id.

[16] Id.

[17] Id.

[18] Latour, recalling the ANT paper.

[19] Recalling ANT paper, page 20

[20] Bruno Latour, On Recalling ANT, available at http://www.bruno-latour.fr/sites/default/files/P-77-RECALLING-ANT-GBpdf.pdf (last accessed 28 August, 2015).

[21] Latour, the complications paper, page 9.

[22] Id at 14.

[23] Jonathan Murdoch, Inhuman/nonhuman/: actor-network theory and the prospects for a nondualistic and symmetrical perspective on nature and society, Environment and Planning D: Society and Space, 1997, Volume 15, 731-576

[24] Murdoch at page 732.

[25] Murdoch at page 737.

For more details visit https://cis-india.org/a2k/blogs/pervasive-technologies-working-document-series-research-questions-and-a-literature-review-on-actor-network-theory

Report: 5G Technologies Workshop by IEEE

rohini — 2015-09-27T11:45:57Z

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

Workshop schedule [PDF]

Why is 5G needed?

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

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

What are the use cases of 5G?

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

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

Is there a definition of 5G yet?

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

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

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

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

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

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

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

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

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

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

Emerging Spectrum Licensing Options

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

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

The prevalent scenario in India

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

Licensed sharing/ Authorised sharing of spectrum

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

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

Traffic offloading: LTE over unlicensed spectrum

-- Licensed-Assisted Access (LAA)

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

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

– In general

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

– 2G

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

– 2.5G

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

– 3G

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

– 4G

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

– 5G

Attributes currently proposed for 5G:

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

Which would result in:

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

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

Key technologies for 5G wireless communication networks

– Massive MIMO (multiple-input multiple-output)

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

- New antenna technologies

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

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

– Cloud technologies for flexible Radio Access Networks (RAN)

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

– Advanced Interference Management

New air interfaces under consideration include:

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

– Network Densification

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

– Millimetre wave band

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

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

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

Reproduced with permission from Rohde and Schwarz

Green Communications Using 5G

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

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

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

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

Glossary

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

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

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

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

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

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

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

rohini — 2018-05-06T03:51:49Z

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

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

View paper on SSRN.

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

Pervasive Technologies Project Working Document Series: Literature Review on IPR in Mobile app development

sinha — 2015-08-31T13:48:02Z

This post is literature survey of material exploring and analysing the role of Application Platforms in the Mobile Applications Development ecosystem, albeit from an intellectual property perspective. The document is a work in progress.

1. What are the decisions developers are making within their practice in terms of location of their enterprise and clients, scale of audience, funding, business models and mobile apps marketplace (app stores)? Who is the primary actor in the mobile applications development cycle in India?

1.1. Is the mobile apps marketplace organically developing into a Bazaar model, or a Cathedral model?

1.2. What are the contractual terms between the enterprise and the employee? What is the typical nature of agreements in the mobile apps development industry between enterprise- employee and enterprise- client?

The role of Mobile application developers (“developers”) is critical in the app market, especially when such markets are regarded as the key entry and dissemination point for mobile content. Developers are seen as innovation engines and the fastest route to innovation, so understanding factors that attract and retain third party mobile application developers is of importance to mobile platform providers in order to survive.

Who are the primary actors in the mobile applications development cycle in India?

This chapter of the Pervasive Technologies Project (“Project”) aims to study developers who are key contributors to the mobile applications space within India; and the problems, those being faced by them as they attempt to navigate an emerging and ambiguous ecosystem. The results of our qualitative research give us insight into the characteristics of this new tribe. A majority of the developers do not own the products they innovate and instead assign ownership of their IP over to their clients. Innovating for the purpose of creating and retaining ownership is a key motivation and is reflected in the tendency of developers to move away from the services sector to develop their own products.[1]

As one developer puts it, “unless you're a 1000 man enterprise, there's no economic benefit in services; as competition has driven pricing so low, everyone's struggling to deliver $12-14 per hour.”

Every startup in mobile development, especially, is doing services to stay afloat and would like to move toward a product model.

Further, IAMAI conducted a survey[2] in 2013 and the report presents an analysis in four sections:

a) Who? The App Developer in India

b) What? The Preference of Users and Developers in India

c) Why? The Business of Apps in India

d) How? The Future of Apps in India

The Report states:

“The vast majority of app developers in India are male. In their survey of 454 developers, only 35 respondents were female reflecting the gender bias. On the demand side 80 percent of smartphone users in India are male reinforcing the male dominance. Geographically the respondents were all based in India except one developer of Indian origin residing in Malaysia. The well known and established IT cities in India are attractive for app developers because they provide with easy access to infrastructure, skill and a ready market for products. The survey shows the concentration of app developers in the cities of Bangalore, Mumbai, Delhi NCR, Hyderabad and Ahmedabad. A larger percentage of developers in such IT cities make apps on a full-time basis as compared to developers in other cities. The survey data also shows that Bangalore, Mumbai and NCR have the maximum number of companies (organized business operations) engaged in app development. Cities like Ahmedabad, Hyderabad and Chennai host many small teams of app developersas well as self-employed app professionals. In most of the other cities such as Bhubaneshwar, Cochin, Coimbatore, Gandhinagar and Kota, app development is done primarily on a part-time basis and is not the primary source of income. This could be the result of limited monetization options that make app development an unsustainable livelihood for many.

The popularity of international apps was evident in the survey data. The average download of ‘Indian’ apps was very low. Only 14 of the 454 developers has crossed the hundred thousand download mark, of which only 5 surpassed the one million milestone. These numbers do not pertain to a single app, but to the cumulative number of downloads across all the apps created by each developer, supporting the thesis of low visibility of apps developed domestically.

In their sample of 454 developers, entertainment apps including gaming and social networking are the dominant categories reflecting demand side preference. Utilities, health and education are the other important categories. The survey also below provided the number of apps developed under each category. The list does not include lifestyle and enterprise apps which are exceptions. One forceful result of their survey is the focus of app developers on foreign app demand in preference to producing locally-relevant content - as the latter is less profitable. Each respondent in their sample had developed an average of 38 apps. Of these 13 have developed 100 or more apps and these are the larger professional app companies. After excluding extreme values, the average number of apps developed by each respondent fell to 17.

Skewed revenue sharing models biased against content providers was one of the main reasons why Indian app developers focus on international app stores such as Apple App Store or Google PlayStore that offer a flat 70 percent of the total revenue to developers. This adversely affected development of India-specific apps and even popular apps such as Saavn and Zomato have expanded abroad because of this very reason.

Survey results indicated an Android dominated future for the app economy in India for two apparent reasons. One, Android devices are more affordable and two, the Android ecosystem is open allowing OEMs such as Samsung and HTC to manufacture mobile devices that use the Android OS. The drawback turns out to be the resulting fragmentation in screen sizes, resolution limits and hardware traits. Because of this, “developing apps that work across the whole range of Android devices can be extremely challenging and time-consuming.” Moreover, Indian app developers need to recognise the existence of an active market for used phones and thus the appeal of ‘backward compatibility’ i.e. an app that can work across old devices as well as new ones and also function across both old and new versions of operating systems will stand a better chance of success.

On the whole, app development was not considered to be a remunerative business opportunity. 17 percent of respondents who answered the question on choice of revenue model indicated that they did not have a specific revenue generation plan. While some developers are engaged in contractual development, there are few developers who self finance their project and do not actively market or promote their app. The business of app development in India seems to be at a stage in which it could be characterised as one based on a ‘hit and trial’ philosophy. Self financing is common in the industry. Only 7 and 13 developers approached banks or venture capitalists for financing. Funding an app developer was not an investor’s primary choice. Recognising the market failure and the utility of apps, the Department of Electronics and IT and Department of Telecommunication have both instituted funds to encourage mobile technology ventures

and app development in India.[3] One can argue on the efficacy of the use of limited public resources for app development, but not the fact that app development in India needs a boost. The industry is still very young and ‘unorganized’ and is largely dependent on own and informal sources for financing. The study presents presents the source of financing for app developers.”

Understanding of IP

There is a lack of understanding of IP amongst the developers. During the course of interviews, IP was often thought of as mere content or code. There was also confusion between the terms IP and IPR. The few developers who understood the nuances of IP better, voiced a need for the developer community to deepen their understanding of what parts of their work are IP. Samuel Mani, Founding Partner of Mani Chengappa & Mathur, stressed that developers should recognize the value within not just the product or software itself, but the background business processes. According to Mani, the execution of the idea is the true source of innovation; how one accesses the market, and maybe who the market is as well.[4]

The IAMAI report[5] had some observations on the impact of IP on the apps industry. According to the report, “since the industry thrived on innovation, protection of intellectual property was important to developers. The balance between protection and sharing of innovation was part of a larger and often tendentious debate on open source versus proprietary software development.[6] The survey did not attempt to deconstruct that debate; merely reported that 70 percent of respondents were of the view that intellectual property protection was a concern for app developers. However, not all had taken steps to protect intellectual property. The lack of seriousness could be associated with poor revenue potential from apps. Among those who had, some obtained copyrights/patents, while others worked with individual checks on in-app piracy using code morphing, copy protection, server–based checks, or both etc (The study provides data on different IP protection measures).”

Nature of their clients

Out-sourced 'mobile app services' is marginal as a business model here in India.[7]

Ownership of their product/service:

Often, the lack in understanding can be traced to the developers working in isolation from the legalities involved in assigning the product to the client. Majority of those interviewed developed mobile app products for clients, and in turn assigned ownership of their products to their clients. As previously mentioned, they commonly shared an interest in leaving the services sector to create products of their own, with some of them already having made the transition within their business model.[8]

Contractual clauses most important to mobile app developers: Delving deeper into the aspect of assigning ownership to clients, the most common practice is for developers to enter into a work-for-hire agreement with the client. Typically, a work-for-hire agreement mandates that if a worker is paid to carry out a particular project, whatever is created within the project belongs to the client.[9]

For startups where team players are small in number, it is likely that all will have access to any contract agreements entered into with clients. For larger corporate software developer firms, there may be a specialized department for legal-related matters. In such cases, the mobile app developers themselves would seldom lay eyes on the legalese of contracts, for the primary reason being that it doesn't concern them. Instead, the terms of agreement more familiar to them would be those that they obliged to upon working for their employer. The interviews revealed that the importance of contract agreements was actually underestimated in the country.[10]

Within a work-for-hire agreement, it is commonplace for developers to enter into restrictive agreements that obstruct the freedoms of what they can do with the code created for the client. Problematic areas proved to be those related to the time periods in which the developer was not allowed to take up future work for competing clients (i.e. the non-compete clause), or could not talk about their work for the client at all (the “quiet period”).[11]

Developers are unable to license their work to other interested clients when one client retains ownership. “Clients typically do not want a perpetual license, but complete ownership”, says a website developer. He further explains that, “this means they could make a derivative work or use it for another project. Depending on how bad we want the project, we'll work out some middle ground.” But it does not seem to be so easy for he and his SME to do so: “The thing about contracts is it’s all about a sort of differential bargaining power that the two parties have... you’ll have very little control about what happens once you’ve got paid.”[12]

To have any sort of bargaining power within a work-for-hire arrangement requires a lot of time for negotiating, and the space for communication to begin with. In many cases, contracts may not even be introduced into a work agreement, leaving a lot of intricacies to the unknown.

The problems are further compounded by contract illiteracy, more so in second tier cities.[13]

2. What is the nature of innovation emerging from the mobile app industry? What is the awareness of the "mobile applications developer and its enterprise on rules concerning code, content and design? How does re-use and sharing of code, content and design occur in the mobile application developer ecosystem ? What is the perceived impact of the Indian IPR regime on the aforementioned aspects? Finally, do the emerging trends in re-use and sharing of code run afoul of Indian IP law?

There is a marked shift towards using open source software amongst developers. According to a Gartner study, most software makers will have some open source applications or code in their portfolio by 2016. The study also reaches the conclusion that 99% of Forbes’ Global 2000 companies will be using some form of open source software.[14]

Awareness

The interviews revealed different personal understandings of the meaning of IP. The most common responses were the following[15]:

A : When questioned about IP to developers, they did not know what it meant, because it didn’t have anything to do with what they were doing.

B : Developers often did not know what part of their app was IP... there is was gap in understanding with respect to IP.

For the most part, it seems, IP was considered to refer to content or code across interviews, and was even confused at one point with IPR (IP Rights) within a response referring to an SME's trademark and pending application.

For those who appeared to be better versed in matters related to IP, they emphasised on the need for developers to be better acquainted with what parts of their work are IP. One interviewee stressed on the importance of developers to recognize the value of background business processes, apart from software and the product itself. [16]

In certain cases, it took $1 million in sales for a medium-sized software development enterprise to start paying attention to IP. The enterprise tried to obtain patent protection for their application, but the effort turned out to be futile.[17]

Protection of work (Speaks to awareness also)

When asked, those interviewed responded with a variance in answers. Some simply stated that their work is not protected, while a few mentioned that they acquired trademark or intend to apply for trademark protection. One interviewee had a patent pending in India and the US, as well. In many conversations, developers mentioned that their code for their apps is under open source licenses, and a couple others entailed sharing that the content is under creative commons licenses, “individual licenses,” or joint copyright. Additionally, within one interview, one mentioned the use of encryption tools as a technical means of protection for their work.[18]

“The concept of securing IP is relatively new within the Indian context... it becomes a question of priority between innovation and protection" — Aravind Krishnaswamy, Levitum.

Of the developers interviewed, many exhibited some sort of confusion or misunderstanding related to the protection of their works by means of intellectual property rights (IPR). Those interviewed seemed to either express an interest to acquire IPR in the future for their products in the forms of patent or trademark protection, or expressed their appreciation for openness source licensing—or both! Beneath these immediate responses, however, many repeated patterns, as well as contradictions, are revealed. Conversations that followed within these interviewed entailed the opportunity to hear from personal experiences and opinions on different areas within their practice intersecting IPR.[19]

Across interviews conducted, one particular observation entailed the tendency for developers to have worked in the past for corporate employers that have dealt with cases of infringement or have acquired IP protection. Almost half of those interviewed shared the fact that they worked for a corporate employer and became better familiar with different notions of intellectual property through that experience. It may not be too far-fetched to suggest, then, that for the developer the idea of acquiring IPR protection is one that may be reinforced from previous employers or other successful development companies with IPR of their own.[20]

Impact of law & reasons for IPR Protection

One would assume that if a startup was bootstrapped with minimal cash flow, then it would place a low priority on getting IP protection for its products. Aravind Krishnaswamy of startup, Levitum, also stated that “the concept of securing IP was relatively new within the Indian context.” [21]

Yet, many developers who were interviewed did express an interest in IPR. The main concerns developers believed IP protection would address, were proving ownership over their work or preventing problems in the future. One developer's commented on how the mobile app market is a “new and potentially volatile area for software development.” For this reason, it was imperative that he and his team attempted to avoid trouble in the future, and ensure that they going about mobile app development the right and moral way.[22]

Within another interview, developer, John Paul of mobile app SME, Plackal, explained his motives for seeking to acquire patent protection, the application for which back then was pending in India and the US: "For us, applying for a patent is primarily defensive. And if it does get infringed upon, it would give us a good opportunity to generate revenue from it." For the company's trademark, they sought to be able to enforce their ownership over their product's brand: “As a precautionary, we've trademarked the app so that should there be a situation where the app is pirated, we can claim ownership for that app.”[23]

Do the emerging trends run afoul of Indian law?

Yes. This was evident from the legal practices of mobile app developers and the resulting cases of infringement.

Some instances of infringement (limited to Mobile app content (i.e. logos, pictures, etc.)) are[24]:

• Pirated apps in app stores

• “Dummy apps” or imitations of another's app

• Breaching app stores user agreement

• Violation of License agreements of code created by another

• Violation of Open source licenses

• Breaching of terms of agreement for by commissioning clients

• Breaching of terms of agreement for by those hired

Some of the developers indicated that they weren't a fish big enough to be pursued for infringement. “The big companies do not go after small developers; it depends on how much money they're making.” said a developer. He added,“Patent lawsuits can cost something like millions of dollars, so unless they're going to get more back, they wouldn't go through the trouble of doing so... but that is true even in the US.”

Some added that others who may have been apparently copying you, may have been working on the same content independently. Corporate players are in non-compliance knowingly than not, whereas more SMEs infringe upon others without being aware that they are. Just as well, the degree to which infringement takes place may differ between the two types of industry players: “At the corporate level, where they know they are not in compliance, the degree of non-compliance might be very small or specific, but it still exists.” On the other hand, for startup developers, a substantial amount of their code may not comply with the licenses and agreements they are obliged to—something that could pose problems for them later down the road if left unfixed. [25]

3. The apps marketplace is extremely important since they are the gatekeepers enabling access to apps. What is the nature of the apps marketplace? What are the limitations associated with it ? How do the existing regulatory models intersect with this relatively new marketplace? What is the enforcement carried out by these app stores in terms of IP?

“The app platform is a gatekeeper which provides the consumer and developer a virtual space to buy and sell products (mobile apps). What is the nature of the app platform? What are the limitations associated with it?

An app dealing in pirated content or infringing intellectual property faces the risk of getting barred by the app platform. What is the enforcement carried out by app platforms to protect intellectual property?”

Firstly, what is an app platform?

Iansteti and Levien[26] state that at the core of each innovation network is a focal organization known as platform owner (or keystone) that provides the platform to facilitate contribution by other members in the network.

Hagiu[27] defines a platform as a product, service or technology that provides a foundation for other parties to develop complementary products.

Specifically, I Kouris[28] defines an app platform as a special kind of electronic market which enable software developers to distribute their software applications(apps) among users of mobile devices like smartphones or tablets. An app platform owner dictates the entire infrastructure(like user interface, server space, etc.) and determines the rules for the interaction between the developers and users. They usually provide information about apps and developers and serve as a trusted third party by controlling app quality. Fransman M[29] characterised the app platform as an 'innovation ecosystem incorporating app developers effectively.'

Innovation can happen within the enterprise, or can take a more open route and benefit from external innovation. In order to gain the benefit of external innovation, platform owners must open their platforms up beyond their internal base of developers and provide resources to third party developers.[30]

What is the platform concept in software?

Broadly, Noori[31], discusses the issues about the platform concept in software and attempts to address the subject of platform strategy. Tsai, Phal & Robert[32] further the discussion by stating principles for an effective platform strategy.

In mobile ecosystems building a developer community is one of the niches to attract the developers to join the ecosystem. However, health can mean differing things for different ecosystem members. In order to stimulate innovation[33] the keystone company is often forced to relinquish much of their control over the platform to the development community. This involves a careful balancing act in relinquishing enough control to create a healthy environment for developers, and not stifling innovation while retaining a necessary and desired degree of control.[34]

Baskin[35] examines the problems concerning software patent under the mobile applications platform environment. The scope of the analysis is limited to two mobile applications platforms: Apple's iOS and Google's Android. The analysis throws light on the problems of innovation in software systems like iOS and Android. The note also proposes several changes to both antitrust and patent laws that will make it more difficult for established market players to prevent new competitors from entering high tech markets, thereby promoting greater openness and innovation. The part on software patents discusses the effects of enforcement of patent rights on open and closed systems. The note observes that the US Federal Circuit's decisions (Fonar Corp. v. Gen. Elec. Co., io7 F.3d 1543, 1549 (Fed. Cir. 1997)) have severely curtailed both the enablement and best mode requirements for successful software patents., thereby limiting the disclosure and preventing many of the invention's useful elements from reaching the public domain. Patentability issues have affected open systems such as Android more than Apple, owing to a greater dependency on third parties to run android systems, leading to more patent infringement issues. It recommends, that, intellectual property law should promote open systems above patent protection in high tech fields, allow reverse engineering of software and introduce an 'independent invention' defence in the law for innovators.

A certain paper addresses rejection of apps in the AppStore on three grounds: rejection on content grounds (including some competition-driven restrictions), rejection on development grounds, and the regulation of transactions.

Apple's and Google's foray into building a mobile development platform

Coming from the music and personal computer industry, Apple disrupted the mobile industry by making its mobile development platform available to third party developers and eliminating the barriers between those developers and customers. The main goal of Apple in the mobile world is to increase the cross-sales of its high-margin products by providing a continuous experience roaming (iPhone, iPad, Mac, and Apple TV) using complements such as mobile applications, content, services, and accessories.[36] Google, on the other hand, is an online advertising company which provides an open source mobile operating system, in the shape of Android, on which mobile handset manufacturers can develop smartphones without paying software licensing fees. By commoditizing mobile device production under its unique governance structure and building a large developer community, Google secured a means of reducing the barriers to new users accessing their advertising through smartphones. Microsoft through its Windows Phone is the most recent addition to the leading mobile platform providers. Its motivations lie in trying to protect its core business of software licensing which has been disrupted by falling PC sales linked to the emergence of mobile technology and free cloud technology services provided by companies such as Google which have impacted respectively on its licensing fees for Windows OS and Microsoft Office[37].

Luis H Hestres[38] analyzes Apple’s guidelines and approval process on the App Store, discusses content-based rejections of apps, and outlines the consequences of this process for developers’ and consumers’ freedom of expression. It outlines a set of principles to ensure “app-neutrality” whilie ensuring device quality and safety. The article illustrates challenges faced by app developers working on the iOS platform. Criticisms have come forth about Apple's arbitrary and opaque review process. Apple has a rejection rate of 30% of the 26,000 apps submitted to the app store each week[39]. Van Grove[40] comments that the ambiguity, opaqueness, and susceptibility to outside pressures that seems to characterize Apple’s approval process do a disservice to a democratic online culture. With more than 400 million iOS devices sold worldwide since 2007[41], Apple’s devices and app store have become important online intermediaries for Internet users. The article proposes a few basic guidelines, anchored on widely accepted international laws and treaties, such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

Statistics

A Report[42] presents us with some important insights into the growth of Google Play. Following are the highlights of the report: There are now well over 1 million apps available on Google Play App downloads and revenue from Google Play increased dramatically over the past year; Markets such as Brazil, Russia, Mexico, Turkey and Indonesia are driving growth in app downloads from Google Play; Google Play is experiencing rapid expansion of monetization in established markets such as Japan, the United States and South Korea; Games played a major role in the acceleration of Google Play revenue growth, but almost all app categories experienced expansion and accounted for almost 90% of revenue in Q1 2014; The freemium business model advanced its domination of Google Play app revenue, and represents a growing proportion of downloads; Asian markets lead the way in generating freemium revenue. Another report8 reiterates the explosion of gaming apps.

4. How does Indian copyright law and patent law apply to the mobile applications development ecosystem, in respect of the various business models operating in the industry?

4.1. The patent regime is grounded on a laboratory model of innovation. What does the niche mobile applications development industry (working on a micro-creativity model of innovation) require differently from the patent regime to foster growth?

4.2. Similarly, copyright law has a distinct design for digital objects. Examine the design and its suitability to regulate a mobile application.

A. The interviews reveal a dichotomy existing in the mobile app developer space. While some developers argued for strong IPR protections, several of app developers opposed strict IPR protection (patents, especially) and advocated use of open source software.[43]

Open source for future protection (Applicable as literature to Research question 2)

Sometimes developers license for community values primarily, however, the assumption is that dominant reason is to retain the ability to use their own work across clients. A designer from a services enterprise gave a different reason for doing so: to guarantee their ability to use their work again. “Since we use a bunch of templates and things like that, those we license using a non-exclusive license, because we reuse those elements on different bits of code in different projects,” he explains, “so there are bits of it which is used over multiple projects and there are stuff that is built exclusively for the client.”[44]

Here one can gather some insight, that perhaps developers do not necessarily license for community values primarily, but for the ability to use their own work across clients. That being said, we begin to wonder what the possibility that open source code may serve as a loophole for work-for-hire contracts, which require the developer to assign all written intellectual property to whoever is commissioning the project. If the code happened to “already be available by open source,” a developer may still be honouring any restrictive agreements with clients, and ensuring their ability to use their code in this future again.[45]

As a developer suggests, that startups should first and foremost protect themselves by making wiser choices related to code in order to prevent being litigated against by others—such as using an open source equivalent to a piece of code that one does not have the rights to, or instead putting the extra time in to develop it from scratch.[46]

Of those who expressed an interest in the open source movement, not all had said that their products were to be open licensed as well. One developer explicitly stated: “I like the idea of open source, and building upon others' work...but our app is not open source, it's proprietary.” It may be a given, then, that all or most developers within our interview sample rely on open source code within their practice, but not all may contribute their resulting product's source code back.[47]

Vivek Durai, from Humble Paper said that despite the fact that “open source has really taken route... on the smaller levels, people will come to a point when philosophies begin to change the moment you start seeing commercial.”[48]

B. A certain paper[49] examines from various angles the complex relationship between intellectual-property rights and technological innovation. Following are the conclusions:

1) Intellectual property rights are most likely to foster innovation when the following conditions converge in a particular industry: (a) high research-and-development costs; (b) a high degree of uncertainty concerning whether specific lines of research will prove fruitful; (c) the content of technological advances can be ascertained easily by competitors through “reverse engineering”; and (d) technological advances can be mimicked by competitors rapidly and inexpensively.

2) The likelihood that intellectual-property rights will impede more than stimulate innovation increases as more and more of the following factors obtain in a particular field: (a) trade-secret protection or lead-time advantages reduce the ability of competitors to take advantage of technological advances; (b) innovation in the field tends to be highly cumulative; (c) researchers in the field are motivated primarily by non-monetary incentives; (d) the field is characterized by strong network externalities. The last three of these circumstances were all present during the development of the technical infrastructure of the Internet; it is thus not surprising that that development proceeded rapidly and effectively with little reliance upon intellectual-property systems.

3) The following techniques may be employed to mitigate the economic side-effects of intellectual-property systems: (a) compulsory licenses; (b) facilitation of price discrimination; (c) strict enforcement of the “utility” requirement; (d) encouragement of appropriate cross-licensing agreements (provided that cartel behavior can be simultaneously discouraged); (e) narrow interpretations of “similarity”; (f) strict enforcement of “enablement” and “best-mode” requirements; and (g) the affirmative defenses of patent and copyright misuse.

4) In contexts in which reliance upon these mitigating devices is not feasible, the following alternative ways of solving the public-goods problem may be superior to intellectual-property rights as ways of stimulating innovation:government research; government funding for private research; or post-hoc government rewards for private technological advances.

C. In a paper[50], the authors study the determinants of patent quality and volume of patent applications when inventors care about perceived patent quality. They analyze the effects of various policy reforms, specifically, a proposal to establish a two‐tiered patent system. In the two‐tiered system, applicants can choose between a regular patent and a more costly, possibly more thoroughly examined, ‘gold‐plate’ patent. Introducing a second patent‐tier can reduce patent applications, reduce the incidence of bad patents, and sometimes increase social welfare. The gold‐plate tier attracts inventors with high ex‐ante probability of validity, but not necessarily applicants with innovations of high economic value.

D. Copyrights related to apps are still being hashed out in the courts. Oracle, for example, sued Google[51] for copyright infringement regarding the structure of Java APIs in its Android operating system[52], and the case was decided by the U.S. Supreme Court.

E. Policy Levers in Patent Law[53]

The paper argues that some industries should be the subject of patent tailoring – which can make them illustrative of certain policy levers. Use of obviousness and disclosure doctrines to modulate the scope and frequency of patents, as might be necessary where anti-commons to patent thicket theories are applicable.

Nature of software vis-a-vis biological/chemical inventions

Software inventions tend to have a quick, cheap, and fairly straightforward post- invention development cycle. Most of the work in software development occurs in the initial coding, not in development or production. The lead time to market in the software industry tends to be short. Because innovation is less uncertain in software than in industries like biotechnology, Merges’ economic framework suggests that the non-obviousness bar should be rather high.

Implementing a rational software policy obviously requires some significant changes to existing case law. A number of policy levers might be brought to bear on this problem. First, obviousness doctrine needs to be reformed, preferably by way of a more informed application of the level of skill in the art or alternatively by application of new secondary considerations of non-obviousness.

Poor handling of software patents by the Federal Circuit

The paper argued that broad software patents were indeed what the existing Federal Circuit jurisprudence will likely produce. By relaxing the enablement requirement and permitting software inventions defined in broad terms, supported by very little in the way of detailed disclosure, the Federal Circuit has encouraged software patents to be drafted broadly and to be applied to allegedly infringing devices that are far removed from the original patented invention.

By implication, the Federal Circuit’s standard also seems to suggest that many narrower software patents on low- level incremental improvements will be invalid for obviousness in view of earlier, more general disclosures. They may also be invalidated under the on- sale bar, because the Supreme Court’s view that a software invention is “ready for patenting” when it is the subject of a commercial order and when the inventor has described its broad functions, even if it is not clear how the code will be written or that it will work for its intended purpose, means that any patentee who waits until the code is written to file a patent application risks being time-barred for not filing earlier. Unfortunately, the Federal Circuit’s current standard seems to be precisely backwards. Software is an industry characterized by at least to a limited extent by competition theory and to a greater extent by cumulative innovation. Cumulative innovation theory suggests that patent protection for incremental software inventions should be relatively easy to acquire in order to reward incremental improvements, implying a somewhat lower obviousness threshold. It also suggests that the resulting patents should be narrow and, in particular, that they should not generally extend across several product generations for fear of stifling subsequent incremental improvements. This suggests that software patents should be limited in scope.

Second, a higher disclosure requirement and restrictions on the doctrine of equivalents will help reduce patent scope. Additionally, the authors think software patents are the ideal candidate for a new policy lever: reverse engineering. Many commentators have explained the importance of permitting competitors to reverse engineer a product in order to see how it works and to figure out ways to design around it. In the case of copyright, courts have adapted the doctrine of fair use, together sometimes with copyright misuse, to allow competitors to engage in reverse engineering of computer software. Patent law includes no express provision allowing reverse engineering, nor is there any judicially developed exception akin to copyright’s fair use doctrine that might permit it. Indeed, patent law generally lacks provisions akin to fair use or other exceptions that might readily be pressed into the service of reverse engineering, although commentators have suggested that patent law may need such exceptions for precisely this reason.

This does not mean that reverse engineering a patented product is necessarily illegal patent law. Some inventions, such as the paper clip, are readily apparent once embodied in a product. Improvers do not need to reverse engineer the paper clip and figure out how it works in order to improve it; they just need to look at it. Additionally, in many cases, the patentee has done all the work necessary for reverse engineering patented inventions by virtue of disclosing how to make and use the claimed invention in the patent specification. In theory, an express provision authorizing reverse engineering would be superfluous if the enabling disclosures required to secure a patent were sufficiently strong – someone who wanted to learn how a patented device worked would only need to read the patent specification. Patentable inventions in software, however, generally do not have these characteristics. Software devices typically cannot be readily understood by casual inspection, and particularly not without access to human-readable source code or other documentation. Examination of the patent itself is unlikely to yield information equivalent to a reverse engineered inspection because the Federal Circuit does not require would-be patentees of software inventions to disclose the implementing source code or, for that matter, very much at all about their inventions. Accordingly, software patents present unique obstacles to consummation of the patent law’s traditional rights-for-disclosure bargain with the public. The specific reverse engineering techniques commonly used for software, in turn, may raise some infringement problems that are unique to software. The definition of infringement in the patent statute is extremely broad, encompassing anyone who “makes, uses, offers to sell, ... sells..., or imports” a patented product. Reverse engineering a patented computer program by decompiling it likely fits within this broad category of prohibited conduct, at least where the program itself is claimed as an apparatus. Reverse engineering clearly constitutes a “use” of the patented software, though owners of a particular copy of the program surely have the right to use it. More significantly, decompilation may also constitute “making” the patented program by generating a temporary yet functional copy of it in RAM memory and, in certain instances, a longer-term (though still “intermediate”) copy in more permanent memory. Those copies probably constitute patent infringement unless protected by some defense. The result of all of this is that the nominally neutral patent law rule – no defense for reverse engineering – affects software more than other industries.

The need for a reverse engineering exception in patent law militates in favor of adapting the existing doctrines of exhaustion or experimental use to that end. Patent misuse might also be adapted, as it has been in the copyright arena, to prevent patent holders from deterring or prohibiting reverse engineering related to their inventions. The exception might even be created out of whole cloth by reinterpreting the infringement provisions of section 271(a). The resulting patent doctrine would constitute a macro policy lever. As Cohen and Lemley observe, in most industries there is either no need to reverse engineer an invention or reverse engineering can be done without infringing the patent.

The paper concludes by stating, “Only in software is there a need for a particular doctrine to protect the right to reverse engineer —and therefore the ability of improvers to innovate. Thus, a judicially created reverse engineering defense would make sense across the board in software cases but not in other patent cases.”

[1]Samantha Cassar, "App Developers Series: Products-Services Dichotomy & IP (Part I)”, last accessed July 21, 2015

[2]IAMAI, “An inquiry into the impact of India's App economy”, 2015

[3]DoT has set up a 1000 crore app development centre called Application Development Infrastructure and 700 crores under the National E-Governance Plan have been allocated for mobile technology ventures

[4]Supra note 1

[5]Supra note 2

[6]Hippel, Eric von, and Georg von Krogh. "Open source software and the “private-collective” innovation model: Issues for organization science." Organization science 14.2 (2003): 209-223.

[7]Supra note 1

[8]Ibid

[9] Samantha Cassar, “Mobile App Developer Series: Terms of Agreement – Part IV”, last accessed July 21

[10]Ibid

[11]Ibid

[12]Ibid

[13]Ibid

[14]Gartner Data

[15]Supra note 1

[16]Ibid

[17]Samantha Cassar, “Interviews with App Developers: [dis]regard towards IPR vs. Patent Hype – Part II”, last accesed July 21, 2015

[18]Ibid

[19]Ibid

[20]Ibid

[21]Ibid

[22]Ibid

[23]Ibid

[24]Samantha Cassar, “Interviews with App Developers: Name of the Game (Part IV)”, last accessed July 21, 2015

[25]Ibid

[26]"Strategy as Ecology," Harvard Business Review, Vol. 82, No. 3, March 2004.

[27] Evans, D. S., A. Hagiu and R. Schmalensee, 2006, Invisible Engines: How Software Platforms

Drive Innovation and Transform Industries, Cambridge, MA: The MIT Press.

[28]Kouris, Iana and Kleer, Rob, "BUSINESS MODELS IN TWO-SIDED MARKETS: AN ASSESSMENT OF STRATEGIES FOR APP PLATFORMS" (2012). 2012 International Conference on Mobile Business. Paper 22.
http://aisel.aisnet.org/icmb2012/22

[29]Fransman, M. (2014) Models of Innovation in Global ICT Firms: The Emerging Global Innovation Ecosystems. JRC Scientific and Policy Reports –EUR 26774 EN. Seville: JRC-IPTS

[30] Deniz and Kehoe, Factors that attract and retain third party developers in mobile ecosystems, June 2013

[31]Nadea Saad Noori (2009) Managing External Innovation: The case of platform extension, available at http://www3.carleton.ca/tim/theses/2009/Noori2009.pdf

[32]Tsai, Phal & Robert, Industry Platform Construction and Development in a changing environment: Evidence from the ICT Industry, available at http://druid8.sit.aau.dk/acc_papers/6s5aqckmne7ggybu0vfxryrynuog.pdf

[33] Supra note 9

[34] Ibid.

[35]John Baskin, Competitive Regulation of Mobile Software Systems: Promoting Innovation Through Reform of Antitrust and Patent Laws (2013)

[36] Constantinou, 2012b

[37]Ibid.

[38]Luis H Hestres (2013) App Neutrality: Apple’s App Store and Freedom of Expression Online , American University , International Journal of Communication 7 (2013), 1265–1280

[39]Supra note 9

[40]Ibid.

[41] Supra note 9

[42]App Annie Data

[43]Supra note 1

[44]Samantha Cassar, “Interviews with App Developers: Open Source, Community, and Contradictions – Part III”, last accessed July 21

[45]Ibid

[46]Ibid

[47]Ibid

[48]Ibid

[49] William Fisher, INTELLECTUAL PROPERTY AND INNOVATION: THEORETICAL, EMPIRICAL, AND HISTORICAL PERSPECTIVES

[50]Patent Quality and a Two‐Tiered Patent System (Vidya Atal and Talia Brar, 2014)

[51]http://copyrightalliance.org/2014/05/federal_circuit_releases_decision_oracle_v_google

[52]http://copyrightalliance.org/2014/05/federal_circuit_releases_decision_oracle_v_google#.VYf0i9Z5MxB

[53]http://escholarship.org/uc/item/4qr081sg

For more details visit https://cis-india.org/a2k/blogs/pervasive-technologies-project-working-document-series-literature-review-on-ipr-in-mobile-app-development

National IPR Policy Series: RTI Requests by CIS to DIPP + DIPP Responses

nehaa — 2015-04-26T08:47:00Z

In earlier blog posts, we have discussed the development of India’s National IPR Policy (“the Policy”); comments by the Centre for Internet and Society (“CIS”) to the IPR Think Tank before the release of the first draft of the Policy and CIS’ comments to the IPR Think Tank in response to the first draft of the Policy. Continuing our National IPR Policy Series, this article documents our requests to the Department of Industrial Policy and Promotion (“DIPP” / “the Department”) under the Right to Information (“RTI”) Act, 2005 and the responses of the Department.

View the PDF here.

Details of RTI Requests Filed by CIS

In February, 2015, CIS had filed three RTI requests with the DIPP. The first request was four-pronged, seeking information related to first, the process followed by the Department in the creation of the IPR Think Tank; second, details and documents of a meeting held to constitute the Think Tank; third, details and documents of all/multiple meetings held to constitute the Think Tank; fourth, details of a directive/directives received from any other Government Ministry/authority directing the constitution of the Think Tank and fifth, the process of shortlisting the members of the Think Tank by the DIPP.

In our second RTI request, first, we requested details of the process followed by the Think Tank in the formulation of the Policy; second, we requested all documents relating to a meeting held for the formulation of the Policy; third, we requested all documents held for multiple meetings for the creation of the Policy and fourth, we requisitioned all suggestions and comments received by the Think Tank from stakeholders before the release of the Policy, that is, those suggestions/comments received in November, 2014.

In our third RTI request, also filed on also filed in February, 2015, we had asked the DIPP to indicate all suggestions and comments received by the IPR Think Tank from different stakeholders in response to the first draft of the National IPR Policy (to have been submitted on or before January 30, 2015 as per DIPP’s Public Notice).

Responses by DIPP to CIS' RTI Requests

The DIPP replied to our three RTI requests in multiple stages. At first, in a letter dated 12 February, 2015, we were directed to resubmit our application , seemingly because we hadn’t addressed the Postal Money Order to the correct authority, and were directed to do the same. Funnily enough, we received three other responses – one for each of our RTI requests (the first of these is not dated; the second one is dated 19 February, 2015 and then revised to 26 February, 2015; and the third is also dated 26 February, 2015).

The First Response: On the Constitution of the Think Tank

In the first of their responses to these requests, the Department has grouped our queries into five questions and provided a point-wise response to these questions, as under:

Please indicate in detail the process followed by the Department of Industrial Policy and Promotion for the constitution for an IPR Think Tank to draft the National Intellectual Property Rights Policy under Public Notice No. 10 (22)/2013 –IPR-III dated November 13, 2014 (sic).

In its response the Department notes that it convened an interactive meeting on IPR issues which was chaired by the Minister for Commerce and Industry (Independent Charge), i.e., Ms. Nirmala Sitharaman. As per the Department’s response, this meeting was held on 22 September, 2014 (“the Meeting”) and was aimed at discussing issues related to IPRs, including finalization of the Terms of Reference for IPR Think-Tank proposed to be established (sic.) The Department also notes that representatives from various Ministries/Departments, Member of various Expert Committees constituted by the Department, besides IP experts and other Legal Practitioners (sic) were invited to the meeting. The Department then states that the composition of the Think Tank was decided on the basis of the discussions held in the department after the said interactive Meeting (sic).

If there was a meeting held to decide on the same, please include all necessary documents including the minutes of the meeting, records, documents, memos, e-mails, opinion, advices, press releases, circulars, orders etc in which the constitution of the aforesaid mentioned IPR Think Tank was decided (sic).

The Department has attached the Minutes of the Meeting held on 22 September, 2014 (“the Minutes”) and states that there were no documents or papers that were circulated at this meeting and that the participants were asked to present their views on various IP issues at this meeting.

Excerpts from the Minutes

The Secretary of the Department (Shri Amitabh Kant) refers to a (then) recent announcement made by the Minister of State for Commerce and Industry (“the Minister”) on the formulation of the National IPR Policy and the establishment of an IPR Think Tank and states that the meeting had been convened to discuss on various IPR issues with IP experts and legal practitioners so that it would provide essential inputs to the policy needs of the department (sic). The Minutes report that Mr. Kant further stated that the objective of the department was to have a world class IP system and that this included a comprehensive National IPR Policy and which takes care of various issues like IP creation, protection, administration and capacity building (sic). He is also reported to have said that such a stakeholder interaction was important for the government to seek inputs.

The Minister is reported to have said that the purpose of the meeting was to constitute an IP Think Tank that would regularly provide inputs to all IP policy needs of this department as well as advice government in disparate legal aspects (sic). The Minutes also report her to have said that the department would finalize an IP policy within ninety days of the Meeting, based on the inputs of the participants.

According to the Minutes, various issues emerged from the discussion. Inter alia, these include first, that the proposal to constitute the Think Tank was a welcome measure, along the lines of similar initiatives taken by Australia, South Kora, the United Kingdom and the United States of America; second, that in order to remove misconceptions held by foreign stakeholders about IP enforcement in India, there was a need to highlight judgments of Indian courts that were favorable to foreign stakeholders and MNCs; third, that the national policies on telecom, manufacturing and IP ought to be integrated; fourth, that the focus of the Policy should be increase in creation of IP including commercialization of IP and strengthening human capital and IP management and fifth, that empirical studies should be conducted to examine the feasibility of Utility Models protection, that there was a need to revise the law on Geographical Indications and that the Policy should include protection for traditional knowledge and guidelines for publicly funded research.

The Minister is then said to have identified six major areas during the discussion, including IP institution, legislation, implementation, public awareness, international aspects and barriers in IP growth as areas to be covered under the Policy.

Who attended the Meeting?

Attached with the Minutes was also a list of participants who attended the Meeting. Out of the thirty six attendees, I have not been able to locate a single individual or organization representing civil society. Participants include representatives from various government departments and ministries, including inter alia, the DIPP, the Department of Commerce, the Ministry of External Affairs, the Ministry of Information and Broadcasting, the Copyright Division from the Department of Higher Education of the Ministry of Human Resources Development, the Office of the Controller General of Patents, Designs and Trademarks and the Ministry of Culture. The Meeting was also attended by representatives of corporations and industry associations, including FICCI, CII and Cadila Pharmaceuticals; in addition to representatives from law firms including Luthra and Luthra, K&S Partners and Inventure IP and academics including, inter alia, faculty from the Asian School of Business, Trivandrum, Indian Law Institute, Delhi, Tezpur University, Assam, National Law University, Delhi, NALSAR University of Law, Hyderabad, the Indian Institute of Technology, Madras and the National Law School of India University, Bangalore.

If there were multiple meetings held for the same please provide all necessary documents including the minutes of all such meetings, records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders etc. for all such meetings held (sic).

The Department answered, “No”; which I’m taking to mean that there weren’t other meetings held for the formulation of the Think Tank or the Policy. This is interesting, because the Minutes (referred to earlier) speak of another inter-ministerial meeting including IP experts and legal practitioners slated to be held around the 10^th of October, 2014, to discuss the framework of the Policy.

If a directive or directives were received by the Department of Industrial Policy and Promotion from any other government body to constitute such a think tank, please provide a copy of such a directive received by the DIPP from any Government authority, to constitute such a Think Tank (sic).

The Department answered, “No”; which I’m taking to mean that there was no communication received by the Department to constitute this Think Tank.

Please indicate in detail the process of shortlisting the members of the IPR Think Tank by the Department of Industrial Policy and Promotion or any other body that was responsible for the same (sic).

The Department replied that the answer to this was the same as that to the first question.

The Second Response: The Drafting of the Policy

The second of the Department's responses to our requests came in the form of separate responses to each of our four questions, as under:

Please indicate in detail the process followed by the IPR Think Tank constituted by the Department of Industrial Policy and Promotion via Public Notice No. 10 (22)/2013-IPR-III dated November 13, 2014 while framing the first draft of the National IPR Policy dated Dec. 19, 2014 (sic).

The Department stated that the IPR Think Tank conducted its meetings independently without any interference from the Department. The Department then stated that the Think Tank had received comments from stakeholders via a dedicated email id and conducted the interactive meeting with stakeholders while framing the draft on the National IPR Policy.

If there was a meeting held to decide on the same, please include all necessary documents including the minutes of the meeting, records, documents, memos, e-mails, opinion, advices, press releases, circulars, orders, suggestions etc. related to drafting of such National IPR Policy Think Tank chaired by Justice Prabha Sridevan (sic).

The Department replied that since the IPR Think Tank had decided its process by themselves (sic), the Department do not have the minutes of the meeting etc. conducted by the IPR Think Tank (sic). It attached with its reply a copy of the press releases announcing the composition of the Think Tank and asking stakeholders to submit comments to the first draft of the Policy.

If there were multiple meetings held for the same, please provide all necessary documents including the minutes of all such meetings, records, documents, memos, e-mails, opinions, advices, press releases, circulars, order suggestions etc. for all such meetings held (sic).

The Department replied that the response to this was the same as that to the earlier question above.

Please provide all the suggestions and comments received by the IPR Think Tank from stakeholders after the DIPP issued Public Notice No. 10/22/2013-IPR-III dated 13.11.2014 asking for suggestions and comments on or before November 30, 2014 (sic).

The Department replied that the comments and suggestions were received by the Think Tank directly and that therefore, the Department was not in a position to provide the same.

The Third Response: Stakeholder Comments

In its third and final response to our requests, the DIPP replied to our query as under:

Please indicate all the suggestions and comments received by the IPR Think Tank by different stakeholders on or before January 30, 2015 on its first draft of the National Intellectual Property Policy submitted by the IPR Think Tank on December 19, 2014.

The Department said that the suggestions and comments on the draft on National IPR Policy have been received by the IPR Think Tank directly. As such this Department is not in a position to provide the same (sic.).

Observation on the DIPP's Responses

Prima facie, the responses by the Department are rather curious, leading to a range of oddities and unanswered questions.

Who Will Watch the IPR Think Tank

In its response to our first RTI request, the Department quite clearly stated that it decided the composition of the IPR Think Tank based on discussions in a meeting that it convened, which was also chaired by the Minister of State for Commerce and Industry, the parent ministry of the DIPP. In the same response, the Department also stated that it had not received any directive from any other ministry/government department directing the constitution of the IPR Think Tank, leading to the conclusion that this decision was taken by the DIPP/the Ministry of Commerce and Industry itself. Subsequently however, the Department justified its refusal to furnish us with documents leading to the development of the first draft of the National IPR Policy (contained in our second RTI request) by stating that the IPR Think Tank conducted its business without any interference from the Department, and that the Department did not have access to any of the submissions made to the IPR Think Tank or any of the internal minutes of the meetings etc. that were a part of the process of drafting the IPR Policy.

Various press releases by the DIPP have stated that it has constituted the IPR Think Tank, and that the purpose of the IPR Think Tank would be to advise the Department on IPR issues. Visibly, the Department intends for the IPR Think Tank to play an active role in shaping India’s IP law and policy, including suggesting amendments to laws wherever necessary. It is concerning therefore that on the question of accountability of the IPR Think Tank, the DIPP remains silent. It may be argued perhaps, that the IPR Think Tank constitutes a ‘public authority’ under Section 2(h)(d) of the Right to Information Act, 2005 (“RTI Act”). In that case, the IPR Think Tank would have to fulfill, inter alia, all of the obligations under Section 4 of the RTI Act as well as designate a Public Information Officer. Alternatively, given that the IPR Think Tank has been constituted by the DIPP and performs functions for the DIPP, the Public Information Officer of the DIPP would have to furnish all relevant information under the RTI Act (including the information that we sought in our requests, which was not provided to us).

Who are the Stakeholders

Even a preliminary look at the list of participants at the Meeting (based on which the Department constituted the IPR Think Tank) reveals that not all stakeholders have been adequately represented. I haven’t been able to spot any representation from civil society and other organizations that might be interested in a more balanced intellectual property framework that is not rights-heavy. The following chart (based on a total sample size of 36 participants, as stated in the list of participants provided to us by the DIPP) will help put things in perspective.

What Could've Been Done?

Setting aside arguments on its necessity, let us for the moment assume that this drafting of the National IPR Policy is an exercise that needed to have been undertaken. We must now examine what might possibly be the best way to go about this.

In 2014, the World Intellectual Property Organization (“WIPO”) (based on whose approach the Policy seems to have been based- at least in part), produced a detailed Methodology for the Development of National Intellectual Property Strategies, outlining a detailed eight step process before a National IP Policy was implemented in a Member State. While this approach is one to be followed by the WIPO and might not be entirely suited to India’s drafting exercise, specific sections on the national consultation process as well as the drafting and implementation of national intellectual property strategies might prove to be a decent starting point.

(More on this in an upcoming article).d

Where Do We Go From Here?

The DIPP’s responses have left me with more questions, probably the subject of more RTI requests. Is the IPR Think Tank a public authority for the purposes of the Right to Information Act, 2005? To whom should questions of informational accountability of the IPR Think Tank be addressed, if there is no information available on the IPR Think Tank, and the DIPP claims to have no access to it? Do we need to re-examine the draft National IPR Policy given that there has been inadequate representation of all stakeholders? What were the suggestions made by different stakeholders, and (how) have these been reflected in the first draft of the Policy? Was there an evaluation exercise conducted before the first draft of the Policy was released in order to better inform the formulation of the Policy?

We will be looking at these and other questions as they arise, and sending some of these to the DIPP in the form of RTI requests. (Watch the blog for more).

For more details visit https://cis-india.org/a2k/blogs/national-ipr-policy-series-rti-requests-by-cis-to-dipp-dipp-responses

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

rohini — 2016-04-02T18:12:41Z

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

Programme Schedule

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

SSOs and FRAND: Licensing issues

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

The role of licensing policy

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

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

Why FRAND?

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

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

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

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

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

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

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

IP policies inevitably involve compromise.

Common areas of misunderstanding include:

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

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

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

European Commission's response to two different patent lawsuits:

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

License their SEPs
Do so on FRAND terms

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

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

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

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

Motorola vs. Microsoft, Germany:

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

Samsung vs. Apple, Germany

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

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

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

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

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

Reasonable Compensation Considerations

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

Non-discrimination

A commitment to license every implementer of the relevant standard.

Transfer

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

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

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

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

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

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

GISFI plans and stages for 5G definition and adoption

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

Focus on Digital India and Make in India programmes.

Stage 2 (2016-2019): Standardisation

Stage 3 (2017-2021): Product Development

Stage 4 (2019-2023): Early Development

Technical understanding required for IPR issues

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

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

GISFI has adopted ITU's IPR policy.

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

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

Evaluation of LTE essential patents declared by ETSI

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

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

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

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

Dr. Kumar N. Shivarajan, CTO, Tejas Networks

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

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

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

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

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

Countries forming 5G groups to take an early lead:

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

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

Key India-specific requirements for 5G standard development

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

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

Prof. Ramakrishna, MHRD Chair, NLSIU, Bengaluru

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

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

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

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

IP and Disclosure policies of Indian SDOs

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

IPR policy for open standards in e-governance

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

Mandatory Characteristics of Open Standards:

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

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

IEEE patent policy:

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

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

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

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

The "code of practice":

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

Major types of IPR policies:

Participation-based IPR policies

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

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

Basic building blocks of commitment-based IPR policies

Disclosure policies:

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

Two forms of disclosure:

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

How disclosure obligations arise (and commitments are binding):

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

(Indicative list)

General disclosure procedure:

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

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

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

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

ETSI: It is obligatory.

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

IEEE: Entirely voluntary

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

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

ITU: Disclosure from the outset

IEEE: During meetings of the working group

ETSI: "Timely manner"

AFSI: At a sufficiently mature level

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

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

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

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

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

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

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

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

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

Questions-answers round:

What are the criteria for declaring a patent an SEP?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Compilation of Mobile Phone Patent Litigation Cases in India

rohini — 2018-02-08T14:41:17Z

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

Abstract

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

View paper on SSRN.

Access the court orders and other references in the paper.

Edit logs

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

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

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

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

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

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

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

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

Open Letter to Prime Minister Modi

rohini — 2016-02-14T04:39:01Z

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

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

Honourable Prime Minister Shri Narendra Modi,

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

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

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

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

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

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

Copies to:

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

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

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

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

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

Beyond Alcohol and Angel Investors: Building Business Models in an Age of Mobile Music Streaming (Conference Learnings)

maggie — 2015-02-23T12:39:36Z

This blog post is the first of a series of blogs to document, synthesize, and analyze learnings from attending various music industry trade conferences. This first post introduces the research question, and highlights learnings about the various business models which can be accessible via the mobile, and broadly how the music industry is attempting to respond to monetization challenges.

Introduction

The Pervasive Technologies: Access to Knowledge in the Marketplace project is conducting research on access to the mobile phone hardware, software, and content in the context of the intellectual property regimes in India and China. This chapter focuses on access to music content via the mobile phone in India with a particular focus on copyright law.

Following preliminary research, it was identified that the copyright organizing institutions in India lacked legitimacy amongst stakeholders within the music industry. For the purposes of this research, these institutions include the Copyright Act, the Copyright Board, and the copyright societies. Collectively, these institutions have received constitutionality petitions, corruption allegations, and critiques of overall ineffectiveness in regulating and balancing music copyright for the maximal benefit to society. This is of particular importance in light of new modes of digital music distribution technologies (such as mobile phones, and music streaming platforms) which have resulted in a tremendous increase in music consumption but simultaneous decrease in revenue. This is in part due to new business models for music streaming services, and the increasing complexity of music copyright and licensing management in the digital content industries.

1) How have evolving music distribution technologies accessible via the mobile phone impacted business models and licensing practices amongst stakeholders in the digital music industry?

2) What are the specific copyright challenges for each stakeholder in the digital music distribution chain? How can the copyright institutions provide for a more effective regulation and regulation of music in India?

The research methodology1 includes a series of expert interviews whose participants were identified by attending the following key music industry trade conferences in India, and remotely attending in the relevant conferences abroad:

1) 6th MixRadio Music Connects Conference in Mumbai ("MRMC")2

2) The Exchange UK Conference ("Exchange")

3) Indiearth Independent Music, Film, and Media Xchange Conference ("Indiearth XChange")

4) Future of Music Coalition Policy Summit (remote attendance) ("FMC")3

5) San Francisco Music Tech Summit (remote attendance) ("SFMT")4

This first post will highlight learnings from the above conferences5, primarily to respond to the question: What business models for digital music distribution exist in the market today? How is music production financed today? The question of how each industry stakeholder is responding to monetization challenges will also be explored. The main findings documented are mainly sourced from the MRMC and IndiEarth Xchange conferences due to their focus on India and its unique, context-specific challenges.

"India should stop chasing and build business models. We are already ahead... being a mobile-first market... now must lead by learning from our rich cousins - the film and television industry. " - Sridhar Subramaniam, CEO, Sony Music India⁶

Business models and monetization seemed to be the key buzz words at the 6th annual MixRadio Music Conference held in Mumbai, with industry veteran Sridhar Subramaniam, CEO Of Sony Music India giving the opening keynote speech 'How the Industry Stands Today?'. Despite Vijay Lazarus, Secretary of the Indian Music Industry preceding the keynote with a welcome speech warning of piracy as the biggest barrier to monetization. Subramaniam seemed much more optimistic, declaring 2016 as the 'year of music' despite a 10% decline in the former year due to decreased subscription in c first aller ring-back tunes 7. This was in part due to his belief that India was ahead of the game -- being a mobile-market amidst a global trend of mobile music convergence through streaming-based music consumption. Given India's increasing preference for music access in this form, Subramaniam suggested India "stop chasing and build business models" via learning from the music industry's two rich cousins -- the television and film industry.

Subramaniam outlined a strategic plan for growing the 200 million dollar music industry up to a billion in 5 years. He explained how the music industry is positioned where the TV industry was 5 years ago - giving content away for free via ad-supported revenues. This is due to the popular "freemium" business model for music streaming, which allows users to listen to music for "free" (data-consuming, supported by advertisements), with an option to upgrade to a paid tier.

Given recently overlapping ecosystems - standalone music services, device-embedded music services, and operator-supported music services - the question was whether there was enough advertising based revenue to sustain this cluttered industry. In three years, Subramaniam predicted moving from predominantly pirate-consumed music, to ad-supported to a consumer-paid revenue model.

This transition would be done via learning from the film industry through a technique called windowing. This is when the same content is released through multiple windows - for film, this is done first in a theatre, then via home video, then television, then broadcast TV. For the music industry, monetization could occur via exclusives, recommendations, personalization, quality, or regional restrictions; holding some kind of premium content behind a paid wall. This strategy according to Subramaniam's estimates could reach the billion dollar mark in 3 years with the goal of transitioning the 200 million pirated market, to 75 million ad supported, to 25 million subscribers.

" For the first time we have access [to music] from not just one, two, but three ecosystems - standalone music services, device embedded music services, and operator-supported music services." - Sridhar Subramaniam

Following the forward thinking strategy for future business models, the rest of MRMC's panels brought the conversation back to current services and ecosystems of standalone, device-embedded, and operator-supported music services. This increasingly crowded space, along with new international entrants makes the mapping of upcoming services extremely difficult. Nevertheless, the diversity of these services were attempted to be represented at MRMC, with "standalones" like streaming services Gaana, Hungama Australian-based Guvera, and RDIO (which acquired former Indian service Dhingana), along with download stores like Indian-based independent platforms OKListen, Songdew, and Insync. "Device-embedded" services were represented by Samsung with its MilkMusic service, and formerly Microsoft/Nokia owned MixRadio (which has been recently acquired by LINE messaging app8). Lastly, "operator supported" platforms was represented by Bharti Airtel who introduced their new Wynk app, only fully accessible for Airtel telecom subscribers. Multinational content aggregator Believe Digital also was present, providing insight on how the back-end aggregation of content works. A question from the audience inquiring about how to get ones' music onto the various platforms revealed content aggregators' main value -- providing smaller labels and independent artists the ability to ensure their content is distributed widely across multiple platforms.

Although the MRMC panel Streaming: Gathering Momentum hosted a variety of different streaming services, it seemed that there is increasingly less differentiation. Services like user-tracking playlist curation and recommendation, social media-inspired tagging, mood-based suggestions, friend-based recommendations, temporary offline downloads, and more were all being adopted in various forms. Business models of initial free-to-use/access with premium pricing for ad removal and full-on downloads were also becoming a standard across platforms. Some services prioritized specific stakeholders, like Guvera who described their advertiser/brand focused approach through brand play-list curation to target to certain music users.

The Global Music and Mobile panel at the San Francisco Music Tech Summit ("SFMT") highlighted challenges for music applications, with Kathleen McMahon, Vice-President at SoundHound noting the challenge of merely staying relevant in the app store, in part due to the decreasing differentiation with other services. In the streaming ecosystem, a variety of music consumption options are increasingly available through a singular platform (i.e. Hungama enabling on line streaming, download of songs, and purchase of ring-tunes). Given the principle product - the music itself - is the same, the differentiator is marked in part by the user interface, and perhaps more significantly, by price differentiation.

Panelists also spoke of interesting licensing challenges, one being the complexity of differing rates between web-streaming verses mobile streaming, wifi-data transfer, verses 3G access. This copyright challenge was also exemplified when a panelist lamented on the challenges of licensing in various geographic territories, asking "Should I be able to listen to my Spotify subscription wherever I go? Is this not possible purely because of rights and not technology? Do borders even make sense anymore?" These specific challenges will be discussed in an upcoming post highlighting copyright and licensing challenges, but it is worth mentioning here as a barrier to potential technological innovation and ultimately success and survival of these platforms.

" [MCNs are] the new age record label...except far more equitable and less exploitative." - Samir Bhanghra, Managing Director and Co-Founder, Qyuki ⁹

Despite the increasing competition and services, one particular streaming platform which need not be concerned is the audio-video streaming service YouTube, which has a reach of 1 billion consumers, averaging to a viewership of 450billion mins per month 10. Framed as the new broadcast company for user-uploaded content, this viewership directly translates into advertising revenue for the platform, with brands sponsoring specific content creators ("YouTubers") themselves. An interesting new stakeholder which is in part facilitating this phenomena are multi-channel networks ("MCNs"), who was represented in the MRMC Indian MCNs panel by MCNs Qyuki, Digital Quotient, Ping Network and YouTubers All India Bakchod. The MCNs described their business model as a relationship-service, which acts as an aggregator and optimizer of various YouTube channels. With back-end analytics and advertising strategies, MCNs aim to optimize monetization opportunities by focusing on maximizing CPM (clicks per impression) and identifying brand sponsors. Despite the seemingly disruptive service, Tammay Bhat of All India Bakchod was skeptical about the need for such service, asking "How will an MCN actually help me get more money and sustain? As a creator, brands are coming directly. They are so accessible and it's not that difficult. Perhaps it could help smaller creators but..."

Smaller creators and independent artists was definitely one of the target clientele for Qyuki. Samir Bhangra, co-founder of MCN Qyuki's held workshop They Say You Can Monetize Content Digitally - Really? at the IndiEarth Xchange ("the Xchange") independent music film, and media trade conference. He appealed to the independent artists by illustrating the potential reach of the one billion YouTube viewers, and explained some useful back-end analytics which can allow for more strategic and effective monetization. According to Bhangra, the CPM in India is about 1Rs per view, with the possibility of doubling or tripling this if viewed in the United States. Qyuki in particular sought to optimize monetization through ad-funded support (via CPM and brand sponsorship), payment via the MCN themselves for content creation, and 'forward integration' through increasing demand for live and digital gigs through increasing regular viewers. Bhangra even went as far as hailing Qyuki and MCNs as the "new age record label" which would allow content creators full creative control.

"Well, I support piracy so..." - Sohail Arora, Founder, KRUNK¹¹

For independent artists, social media tools like YouTube, Facebook, and other direct-to-fan digital services are of even greater importance considering the relative lack of accessibility to mass-media marketing power. In the XChange workshop Driving Your Career with Social Media, Sohail Arora, founder of booking agency and general artist management company KRUNK focused on search-engine optimization strategies for various social media platforms This included tips such as tagging influencers via social media, strategic timings of content posting, unique release and distribution of music, diversity in content posts, suggestions for increased fan engagement, and more.

The rise of new technologies seem to have brought an increased role and importance to not just social media tools, but also artists managers as well to utilize these services effectively as one of their duties. This new role and its various responsibilities was highlighted by the The Exchange Music Trade Conference ("the Exchange") in the panel The Role of Artist Management Agencies. Considering the diversity of distribution options available, and the difficulty of controlling content usage once released, I asked artist manager Arora for his thoughts on some musicians' strategies of giving away free music downloads. He responded by stressing that freely giving away music was an essential marketing tool for his artists. The ability to download and share would in turn translate to an increased number of fans, quantifiable, measurable social media support (via "likes" and "follows"), and subsequently increased ticket sales, attendance for live shows, and brand sponsorship. This perspective resulted in an interesting conversation/debate with the audience, one member of whom was Marti Bharath, producer/composer of electronic act Sapta who believed that giving away music for free led to piracy, and a devaluation of music. In response, Arora unashamedly stated that he supported piracy, which temporarily halted that conversation during the time-crunched presentation.

" Independent Music is... anything that is not Bollywood" - Nikhil Udupa - MTV Indies. "If you liked it, good. If you didn't, not my problem" - Verhnon Ibrahim, Consultant¹²

Despite the numerous social media tools and online opportunities available for self-promotion, the reach of mass media and its role as a marketing tool was not forgotten amongst the independent music scene.

In the Making Space for Culture panel, an interesting conversation arose on what it meant to be an "independent" artist. It seems that it boiled down to those who were mostly unconnected to the larger institutional support of the music industry like major labels and traditional media -- radio, newspapers, magazines, and television. On the one hand, there was a sense of ambivalence as to whether or not their work would ever appeal to the tastes of the masses. One panelist had asked - would popularization of a certain artist or music remove the label of being "independent"? Nikhil Udupa of MTV Music defined independent music in India as anything that was not Bollywood, due to its dominance in the Indian music market and overall appeal to the masses. Music industry veteran Verhnon Ibrahim conveyed the notion of an independent artist by expressing the somewhat indifference to likeability when reflecting on his days while in a heavy metal band: "If you liked it, good. If you didn't, not my problem". He seemed to imply that appeal to the masses was essentially irrelevant, and almost more revered due to a sense of being able to maintain artistic integrity and authenticity.

The title of the panel itself - Making Space for Culture - was interesting, seemingly alluding to the opinion that mass-consumed, popular music was perhaps not as "cultured" . The main grievance and topic of conversation was that independent music, film, and media did not receive adequate airtime space on traditional media - television, radio, and even print. This premise was probably the only agreement during the panel, as conversation soon evolved to heated debates on whether media created trends or merely picked up on them; and whether there was lack of quality independent content for full-time curation of independent channels, a sentiment expressed by Nikhil Udupa from MTV Indies. This panel's conversation also touched upon a sense of entitlement which independent artists held, in which audience member Guru Somayji of Bangalore-venue CounterCulture expressed his agreement. This echoed the comment from an audience member earlier in the day who stated "musicians do not deserve to be paid... venue spaces do not deserve to make money. There is no entitlement. You only make money when people are breaking down the door to listen to you."

Amidst a crowd of independent musicians and artists hoping to devote their lives to creating their art in a financially feasible way, there was an understandably ill response from the audience. The main criticism was the lack of broadcasters' efforts in finding quality content, and allowing independents a chance to perform in large venues and mass media channels. Verhnon Ibrahim, consultant and industry expert on the Making Space for Culture Panel attempted to explain that radio, television, and other traditional forms of media and communication was a mass-market game, whose purpose was to ultimately to sell ads. He cited radio's high cost of royalty payments to explain the need to curate for the majority so advertisers will get the most reach. Ibrahim stressed the need to demonstrate quantifiable forms of "deserving" - number of Facebook likes, YouTube views etc. to demonstrate virality and fan following, so the media would have to pick up on ones' popularity.

"It's public knowledge that vast sums of money in royalties have not been collected... [due to a] situation of buying out rights, but even labels and rights holders say hundreds of thousands of pounds are not making their way back." - Terry Mardi, Managing Director, Asian Music Publishing¹³

Although several independent musicians raised grievances about the lack of avenues to perform in, and the reoccurring problem of being paid on time, there seemed to be a hesitancy when discussing business strategies and the challenges of copyright due to technological innovation. In the independent space, this was anecdotally demonstrated by one panelists' response when asked about the impact of technology on the distribution strategies for their art, and on financial returns for their livelihood. He responded: "Those are two separate things... one is about making money and making a living. The other is about making an art form. These are two separate things." Within the larger industry conference MRMC, there seemed to be a lack of representation by musicians and content creators. Yet, one particularly vocal audience member, and later panel member of the UK Exchange was Terry Mardi, Managing Director of Asian Music Publishing. Numerous times throughout both conferences, he raised the controversial issue of missing royalty payments in India, and the absence of royalty collection and distribution by unregistered copyright societies IPRS and PPL. In MRMC, this issue was ever so briefly touched upon in a panel when Bollywood playback singer Natalie Di Luccio who's worked closely with A.R. Rahman mentioned that she had never received a contract outlining her rights and her royalty dues. Although there was very little curated conversation about this issue, coffee breaks demonstrated a clear gravitation towards those vocal and concerned about the issue, while many stakeholders, particularly the few musicians in the room seemed to find this a significant gap in voices not heard and expressed in MRMC. At IndiEarth, Vivek Ragpolan, representative of the Music Composers Association of India briefly commented as an audience member about the need to take collective action regarding composers and overall musicians' rights, stressing the importance of independent artists also being included within the new provisions of the Copyright Amendment Act. Though this issue of royalty licensing will be reviewed in a future post, this brief mention demonstrates the challenge of monetization and livelihood at multiple levels -- significantly for content creators, but also for the music platforms themselves.

"It seems like the pricing model is wrong... it's the only way to explain the drop in revenue" - Tarun Malik, Apps & Content Strategy, Samsung ¹⁴

Across different platforms, panels, conferences, and countries, one particular question seemingly common to all was that of price points band business model viability. Tarun Malik, Apps & Content Strategy of Samsung in Biggies Give Their View commented on the growth of the industry. Despite an increase in overall consumption, he noted - "It seems like the pricing model is wrong...it is the only way to explain the drop in revenue". Atul Charumani, formerly Head of Content with OnMobile and currently Managing Director of Turnkey Music stated that "in no other industry where the content is produced at such a high cost, is the product given away for free." In the Global Mobile and Music Panel at the San Francisco Music Tech Summit, the moderator asked a panel of music distribution service providers - "What is the value of music? Does music have intrinsic value at this point? Or is it just how it is presented?" In response, Dean Bolte, Managing Director of Omniphone expressed that the value of music was different for every person, and that some people were willing to pay more for access than others. The priority is to ensure that those who value music more have the opportunity to express through payment, since anything was better than zero. Beyond competition between music service apps, Bolte noted that the competition for funds also occurred across app categories, noting a generation of youth conditioned to acquire music for free through Napster, yet pay for additional levels in games. He closed the panel with the insight that "the product needs to be better than the sword".

The targeting of youth and young adults was also conveyed by the somewhat surprising pervasiveness of brands, who had a larger than anticipated presence for a music industry conference. The UK Exchange demonstrated the potential of partnerships in its Brands & Music - When They Combine Forces panel. MRMC panel The Brand Sponsor also invited the Taj hotel (who seem like an unlikely sponsor) an opportunity to express its interest in supporting the discovery of new talent. Aditya Swami from MTV & MTV Indies said that brands can communicate through music, and create conversations with their consumers. Subramaniam, CEO of Sony Music mentioned the importance of funding through brands and advertising in the MRMC keynote How the Industry Stands Today, while IndiEarth's Taking it Live panel opened the day with a conversation about live venues seeking sponsorship from alcohol, clothing and other 'lifestyle' companies. Even the MCNs in the MRMC Indian MCNs panel discussed one of its main services as the securing of brand sponsorship.

"Independent music in India would not exist if it weren't for alcohol sponsorships" - Tej Brar, Artist Manager, Only Much Louder ¹⁵

Music platform MixRadio, the title sponsor of MRMC was an understandably suitable partner, since it closely correlated to the main music product. Yet, particularly in India, it soon became apparent that alcohol brands have a very significant role in financing the music industry. This was highlighted when liquor-brand Bacardi received an award during MRMC for 'excellent brand association'. It was later learned in an interview that liquor and cigarette brands are not legally able to advertise in India, hence the popularity of alcohol sponsorships for live music festivals, venues, and club nights. Tej Brar, EDM Artist Manager for Only Much Louder believed that independent music would not exist in India if it weren't for alcohol brands. This is an interesting phenomenon considering just a decade ago, the idea of synchronizing ones' music with a corporate brand would be akin to "selling out". However, in today's increasingly digital world, especially in India where non-film musicians don't have much of a presence, brand sponsorship is one of the main 'monetization strategies' for music production. The last important significant financier to mention are investors, showcased in the MRMC panel Of All Things Finance. These "angel investors" play an instrumental role in backing many of the technology start-ups and other streaming services while experimenting with various business models. Yet whether these investment decisions are one that would reap sustainable returns is still a question to be answered.

Conclusion

It seems in this mobile first market, India has the opportunity to lead the way in developing business models that grow the industry through multi-tiered windowing of music streaming. Strategically, in an ecosystem still rampant with piracy, moving consumers towards legal access to music can facilitate new sources of revenue. This opportunity has also given rise to new intermediaries like YouTube and multi-channel networks. time will tell whether their contribution will legitimately grow the industry or simply take away more pieces of what seems to be a shrinking profit pie. Independent artists are able to use new direct-to-fan distribution platforms such as YouTube, amongst others to share their works. Yet, it is clear that the sustenance of a livelihood off of digital sales and distribution is extremely difficult. It is interesting to note that the bulk of financing for music seems to be trending towards live shows and brand sponsorship. However, despite increase in digital music consumption, the distribution of the revenue needs to be further studied and understood. Given the ease of replication, this will require a further in-depth understanding of licensing and copyright management in India today.

1 See the research methodology here: http://cis-india.org/a2k/blogs/copyright-management-in-age-of-mobile-music last accessed Jan 22, 2015

2 All of the panels from this conference can be found online here: http://musicconnects.indiantelevision.com/y2k14/videos.php last accessed Jan 20^th 2015

3 See here for the IndiEarth website: http://www.xchange14.indiearth.com/ last accessed Jan 20 ^th 2015

4 Watch and/or listen to the Future of Music Coalition panels here:https://futureofmusic.org/events/future-music-summit-2014 last acccesed Jan 19 ^th 2014

5 All data in this solely from public conference panels; including quotes, etc. Does not include any individual interview data.

6 As quoted from the MixRadio Music Connects Keynote panel:

7 Though it was not mentioned in the speech, it is useful to understand the initail demand for CRBTs was not necessarily genuine, for the fall in revenue was due to the crackdown by the Telecom Regulatory Authority of India to prevent false billing by telecom and value-added-service providers.

8 See http://blogs.wsj.com/digits/2014/12/19/messaging-app-lines-first-acquisition-music-streaming-service-mixradio/

9 As heard in the MixMusic Radio Connects panel Indian MCNs on Nov 5^th 2014

10 According to Samir Bhangra in MixRadio Music Connects' Indian MCNs panel on Nov 5^th 2014

11 As heard at the IndiEarth Xchange conference in the Driving Your Career with Social Media panel on Dec 5^th 2014

12 Stated at IndiEarth Xchange Conference in the Making Space for Culture panel on Dec 4^th 2014

13 As heard at UK The Exchange Submerge conference on Nov 7^th 2014

14 As stated on the MixRadio Music Connects panel Crystal Ball Gazing: Bigges Give Their View on Nov 5^th 2014

15 In a conversation at the IndiEarth Music Xchange Conference on Dec 5^th, 2014

For more details visit https://cis-india.org/a2k/blogs/beyond-alcohol-and-angel-investors