Centre for Internet and Society

Pervasive Technologies Project in Hong Kong

praskrishna — 2017-03-20T16:09:22Z

Digital Asia Hub and the United Nations University Institute on Computing and Society (UNU-CS) held a new networking initiative. Digital Asia Hub and the United Nations University Institute on Computing and Society co-hosted a series of events aimed at fostering engagement and knowledge sharing at the intersection of technology, society, law, policy and international development.

CIS shared its insights on the Pervasive Technologies project.

For more details visit https://cis-india.org/a2k/news/pervasive-technologies-project-in-hong-kong

Pervasive Mobile Technologies: Meet Our Mobile Devices!

jdine — 2012-12-21T07:48:40Z

As a part of the Pervasive Technologies: Access to Knowledge in the Marketplace research project, the Centre for Internet & Society (CIS) is researching 12 mobile phone devices to generate a better understanding of the intellectual property (IP) implications of pervasive mobile technologies available in the Indian market. This post is an introduction to our 12 mobile phones.

As detailed in my introductory blog on Pervasive Technologies: Access to Knowledge in the Marketplace Research Initiative, CIS will be conducting research on mobile technologies as a small off-shoot of the overall project. Pervasive technologies that can be purchased for less than USD 100 play an integral role in bringing access to knowledge to those that routinely face barriers to the consumption of information. However, their legality, particularly in terms of their use of IP, is unclear. In order to better understand the legal environment in which these technologies exist, CIS purchased 12 mobile phones to study the patent implications of their hardware, software and content.

Through examination, research, interviews and consultancies, we hope to create an in-depth documentation of each device, an extensive database or account of the patents implicated, and a number of narrower research avenues on topics related to IP, patents, and mobile technologies.

This blog post will serve as a brief introduction to our mobile devices. The information that I have compiled was discovered through shallow interaction with the phones — turning a device on and exploring the interface and content — which is why the documentation is not particularly extensive at this point. I have had difficulty identifying certain features of some of the phones, like which media formats they support or whether or not they are EDGE[2] — enable, but I am confident that I will be able to ascertain these specifications in the near future; however, certain features, like what OS (operating system) they run on and what chip set they are using, will require collaboration with experts to identify. The exploration is on-going, and more information will be posted as it is discovered.

Aside from all of the usual functions of a mobile phone (making calls, receiving calls, saving numbers, etc.), each of our mobiles devices possess what I have termed the "basics": dual GSM SIM capabilities with dual standby, the ability to connect to 2G networks, GPRS, a WAP browser (except device 011), bluetooth capabilities, a microSD slot, a dual camera (a camera that takes still photos and records video), an FM radio receiver and the ability to play .mp3 audio files and .mp4 video files, record audio and view .jpg images. Each phone also has a handful of various "utilities" and "extras" applications (such as an alarm, a calculator, a calendar, etc.) as well as at least one game. The full specifications of each phone will be provided in the near future, along with further pictures of each device.

As much of the research in this project pertains to the IP implications of the devices, we have decided to withhold the make and model of each device to shield the producers from any negative repercussions that could be the result of our research inquiries. They have been assigned the numeric code names 001 to 012.

Without further ado, I'd like to introduce you to our mobile phones:

001 - The Classroom in a Box

Price: Rs. 6,300.00 / $113.00

KEY FEATURES

Pico-Projector
Analog TV Receiver
MS Office Document Viewer


This bar-design feature phone has all of the basics with a few added bonuses: an analog TV receiver, viewer, and a built-in pico-projector that projects the mobile's screen onto any surface. Though this phone does not technically fall into our definition of pervasive technologies because of its price, it was the first mobile phone with a built-in pico-projector as well as an analog TV receiver available on the Indian market for less than Rs. 10,000 when it was purchased more than a year ago. Since then, other sub-USD100 pico-projector mobile devices have made an appearance on the Indian market, but each of those devices appear to have been discontinued and 001 continues to be the cheapest pico-projector mobile phone available for purchase.

002 - The Supercharger

Price: Rs. 2,499.00 / $45.00

KEY FEATURES

Solar Panel
Hindi Keyboard

	002 is a sleek candybar feature phone with a particularly interesting innovation. While it uses a standard lithium-ion battery that can be recharged via connection to a wall socket or electrical device (such as a laptop), it also has a built-in solar panel that can generate some charge as well. The solar panel technology is not yet very efficient—the panel would have to be placed in direct sunlight for multiple hours to fully charge the battery—but it represents an important step towards untethering mobile phones and mobile phone users from costly electricity infrastructure, a development that would have significant implications for rural populations who have unreliable access to electricity.

003 - The Networker

Price: Rs. 1,250.00 / $22.00

KEY FEATURES

Wi-Fi
Optical Trackpad
Secondary Forward-facing Camera
Support for 8 Languages


With a boxy, QWERTY-keyboard design and relatively small screen, 003 does not appear, at first glance, to be anymore than an average feature phone — but appearances can be deceiving. With a highly responsive optical trackpad, an analog TV receiver, BlackBerry-esque interface and WiFi capabilities, this mobile device packs some sophisticated technologies and features. Further, it is the only phone in our collection that can connect to the internet using WLAN networks. Considering that some of the other devices are much more complex — and expensive — than 003, the wide-spread exclusion of WiFi capabilities in our collection is intriguing. Is the choice to include or exclude mobile technology a matter of economics? Are cellular WiFi components expensive, and producers are choosing to exclude WiFi as a method of cutting costs? Is it simply a response to patterns of consumer demand? The WiFi questions will be explored in more depth in up-coming blog posts.

004 - The Linguist

Price: Rs. 2,250.00 / $40.00

KEY FEATURES

Android-like OS
Support for 14 Languages
Secondary Forward-facing Camera
Large Number of Pre-loaded Apps


Though it may be hard to believe at first glance, this mobile device was purchased for less than Rs. 2500. With its large internal memory, support for 14 different languages (including Tamil, Bengali and Hindi), and its large array of pre-loaded games and social media applications already set it apart from the less sophisticated mobiles in our collection, 004 also runs on a mysterious Android-like operating system similar to the popular MIUI Android ROM developed by the Chinese-based company Xiaomi Tech. This give it a very sophisticated interface with the look and feel of a smartphone, though the device itself lacks many of the capabilities that are often considered as smartphone criteria (GPS, high-speed internet access, push/pull email, Wi-Fi, an app store, etc.). Because this device, and others like it in our collection, have more sophisticated hardware, software and content than a generic feature phone, but are not as capable as a smartphone, I have taken to calling these devices "semi-smart".

005 - TV on the Go

Price: Rs. 1,450.00 / $26.00

KEY FEATURES

Analog TV receiver
Arabic Keyboard
Secondary Forward-facing Camera


Though it doesn't have any particular innovation that sets it apart from the other devices, 005 is a hardy QWERTY-design feature phone with all of the basics as well as a good collection of social media applications and an analog TV receiver. Though its keyboard can be programmed to write in English, Tamil, Arabic and Hindi script, the buttons have the Arabic abjad on them, which brings up the question of which market this mobile was originally designed for.

006 - The Spy

Price: Rs. 1,680.00 / $30.00

KEY FEATURES:

Secondary “Spy” Camera
Ability to behave as a modem via USB connection

	006 is an interesting candy bar feature phone. On initial examination, this mobile appears to be a completely generic feature phones with all of the basics, but nothing auxiliary. However, a more careful inspection will reveal a secondary camera with an unusual placement — instead of being place at the top of the screen like all of the other secondary cameras found on our devices, this camera is situated on the right hand side of the phone.

The manufacturer of this device actually refers to this secondary camera as a "spy" camera, and it is truly an appropriate name; from a distance, it looks more like a headphone jack than a camera, and its placement allows for photo and video to be taken without any suspicious movement or positioning by the user. The secondary camera has 1.3 megapixels and can take relatively high resolution photos and videos.

007 - The Semi-Smartphone

Price: Rs. 2,150.00 / $39.00

KEY FEATURES

Android-like OS (maybe MIUI)
USB Tethering
Push Email


Device 007 is a semi-smart touchscreen phone, and by far the most sophisticated device in our collection. We believe that it uses MIUI OS, which gives it a very similar look to Android and a functionality that is reminiscent of iOSx. While it doesn't have an app store, 007 is jam-packed with pre-loaded applications and can support a wide variety of file formats. Further, while the phone cannot connect to WLAN networks on its own; it can connect to WiFi by tethering to a networked device via USB connection.

008 - The Trendy

Price: Rs. 2,350.00 / $42.00

KEY FEATURES

Android-like OS
Support for 9 languages


Another mainstream look-alike, 008 runs the same unidentified OS as device 004 and has similar capabilities. Its plastic casing is a bit flimsy, but its "back", "home" and "list" buttons are touch sensitive. Its sophisticated OS and pre-loaded applications make it a semi-smart device.

009 - The Boombox

Price: Rs. 1,420.00 / $26.00

KEY FEATURES

Huge built-in speaker
Android-like OS

	Though it is less recognizable than some of the other devices, this mobile may have one of the significant smartphone qualifiers that our other devices lack: an app store — or what appears to be an app store. The app store icon itself is actually the icon for the Android app store, but the interface is completely different, and the only thing available for download is a handful of games. Interestingly enough, many of these games also make appearances on some of the other mobile devices (like fishing joy and tear clothes). Further, I would not call this phone semi-smart, as its interface is not particularly any more sophisticated than some of the other feature phones in our collection.

009 also features a large built-in speaker, the Opera Mini mobile browser and an Android-like OS, though this OS is less sophisticated than that of 004 and 008.

010 - 3D

Price: Rs. 1,440.00 / $26.00

KEY FEATURES

Android-like OS
Pre-loaded Stereoscopic (3D) videos
Support for 13 languages


This semi-smart touchscreen phone also has an Android-like operating system. Though it lacks an app store and push-email, it comes pre-loaded with a veritable smorgasbord of games and social media applications and supports 13 different languages. It also comes with a pair of 3D glasses and two short, very basic pre-loaded stereoscopic videos.

011 - The Mighty Mini

Price: Rs. 750.00 / $14.00

KEY FEATURES

Dual GSM SIM support
Best bang-for-your-buck for a basic mobile phone


At Rs. 750, this little feature phone was the least expensive phone we could find that still had almost all of the basics. Even without any extra features, it is still almost Rs. 200 cheaper than the majority of the most basic GSM dual SIM mobiles available on the formal Indian market[3]— and, in most cases, 011 has more capabilities than most of those devices. With .mp3 and .mp4 file playback, a dual camera, colour display, a WAP browser, MMS messaging support, two charging ports and Urdu and Hindi language support, this mobile phone personifies affordable accessibility to knowledge and media.

012 - The Pianist

Price: Rs. 1,550.00 / $28.00

KEY FEATURES

Touch piano
Two charging ports
Support for a multitude of audio, video and image formats

	012 is a basic candy bar feature phone with a particularly novel innovation: a touch piano. It is quite sensitive to touch and has a one octave range.

013 - The Indian Experience

Price: Rs. 2,100.00 / $38.00

KEY FEATURES

India specific content
Proprietary App Store

	This little touchscreen mobile is chockfull of “Indian-specific” content, including an application that links directly to an online portal where consumers can download “Hungama” videos, music and movies onto the phone—for a price. Many of the games also charge a monthly user fee, though interestingly enough, Angry Birds and Talking Tom Cat are pre-loaded and free to play. This phone also has a proprietary app store with a limited amount of mBounce4] applications and games available for purchase. I am not yet sure if this app store can be remotely updated with new apps, but the device can receive data vis USB connection, so it is possible that new applications can be added through direct file transfer. It also has keyboard support for English, Hindi and Tamil, but the interface cannot be set it appear in anything other than English.

[2]. Enhanced Data rates for GSM Evolution, also known as Enchanced GPRS (EGPRS) is a mobile phone technology that also improved data transmission on GSM networks. It is considered a pre-3G radio technology. Read more about it here: https://en.wikipedia.org/wiki/Enhanced_Data_Rates_for_GSM_Evolution
[3]. Information retrieved from www.flipkart.com. The prices shown here have been verified as being the same or very similar (though never more expensive) to the prices offered by each brand's official distributors. See Flipkart search links:

Mircomax: http://bit.ly/UW3q0U

Spice Mobility: http://bit.ly/V0DK9i

Karbonn: http://bit.ly/10DKKbz

Lava: http://bit.ly/TSxUzQ

[4] mBounce Ltd is a Hong Kong-based company that performs a variety of mobile phone application support services like proprietary in-house billing infrastructure for app stores, the pre-loading of applications and app stores, and application creation. They are MediaTek-nominated key partner in providing MRE (Maui Runtime Environment) App Store Solutions, but mBounce applications and software can also be placed on other mobile operating systems. You can read more about mBounce here: http://www.mbounce.com/?lang=eng&module=ltrbox&menu=m1&content=home and here: http://developer.mediatek.com/mre/en/partner/335

For more details visit https://cis-india.org/a2k/blogs/pervasive-mobile-technologies-meet-our-grey-market-devices

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

rohini — 2015-06-01T02:13:14Z

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

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

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

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

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

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

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

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

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

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

Initiatives to improve diversity and encourage new contributors on Wikipedia

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

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

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

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

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

Questions-Answers

What is needed to meet Wikipedia's notability criterion?

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

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

References

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

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

[3]. Women and Wikimedia survey, 2011

[4]. Research: Communicating on Wikipedia while female

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

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

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

Patents and Mobile Devices in India: An Empirical Survey

rohini — 2017-03-29T04:03:03Z

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

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

Download the full paper here

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

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

Patented Games

sunil — 2012-03-08T12:14:22Z

Some prefer Steve Jobs, patron saint of perfection, others prefer Nicholas Negroponte, messiah of the masses. While Mr Jobs may be guilty of contributing to the digital divide, Mr Negroponte may have contributed to bridging it with his innovation: the One Laptop Per Child, also known as the $100 laptop or XO. Sunil Abraham's column was published in the Economic Times on 8 March 2012.

Much ink has been spilt celebrating the contributions of both, but if we were to judge them by utilising evidence from the market, their technologies are used by a rather thin section of the pyramid.

For this writer, however, the real heroes are entrepreneurs from China and Taiwan who make technology that is used by millions of Indians and other consumers across the globe. Sometimes it comes with domestic branding and with all the right peripherals - for example, in India, the Popkorn, which costs only Rs 6,699. It features support for two SIM cards, a receiver for analogue terrestrial television, a receiver for FM radio, a 3.2-megapixel camera, boom-box style internal speakers and, most impressively, a pica projector. It ships with a tripod stand, external speakers, a torch and a laser pointer. It is a classroom in a box. At other times, it comes as a Shanzhai clone of a branded product - for example, the Blackcherry, at one-sixth the price-point with twice the number of cameras as the Blackberry. Some Shanzhai phones support four SIM cards and ship with a spare battery.

Dual- and quad-SIM support is critical in developing countries, especially Africa, where regulation has failed to rationalise interconnection costs. Most of the global south is yet to harvest the digital dividend, so TV reception is very useful indeed. And the additional battery is invaluable for rural entrepreneurs who are not sure whether their next halt will sync with the local load-shedding schedule.

The same with the focus on audio capabilities, reflecting the communal usage patterns. Unlike many expensive big-brand phones that require purchase of additional software, these phones often have in-built support for a wide variety of proprietary and open file formats.

These products are unavailable in the US and Europe because they would be sued out of the market by rights-holders or snuffed out by enforcement activities. David Drummond, Google's chief legal officer, says "smartphones might involve as many as 2,50,000 (largely questionable) patent claims". But there are three important differences for the Indian consumer. One, many of these patents are registered in the US, Europe and Japan and, therefore, prevent others from securing those patents in other jurisdictions. But it does not prevent Indian or Chinese entrepreneurs from using the patents. Two, unlike the US patent law, the Indian Patent Act does not consider "mathematical or a business method or computer program per se or algorithms" as inventions. And three, Indian courts, unlike their US and European counterparts, are less likely to grant injunctions preventing sale or use of any device.

Patent pools are a century-old policy tool for reducing royalties and uncertainty for manufacturers and consumers. In 1917, the US government forced aircraft patent-holders, including the famous Wright Brothers, into a patent pool that allowed 60 firms to produce planes at reduced royalty costs without worrying about litigation. Since then, the US government has issued thousands of compulsory licences in many different domains. Patent pools do exist in some areas of mobile technologies such as GSM and video file formats, but more patent pools are needed.

The Chinese government has used standards policy in the past to reduce outgoing royalties on information and communication technologies. They promoted or mandated indigenous standards either as a negotiating tactic with rights-holders or to benefit from cross-licensing of domestic IP. Some standards include TD-SCDMA, as an alternative to Qualcomm's CDMA, EVD as an alternative to the DVD standard, and CBHD as an alternative to Sony's Blu-ray. The potential savings were quite significant. In the words of Ma Jun, Deutsche Bank's chief China economist, "There is almost no profit for Chinese DVD makers as they have to pay about $7 in licensing fees to foreign patent holders per DVD player, which are sold at around $20 only - both at home and abroad."

In addition to patent and standards policy, royalty caps have been used to ensure access to innovative technologies. Till the end of 2009, the Indian government had imposed a royalty cap of 5% on domestic sales and 8% on exports. If a company wanted to pay higher royalties, permission had to be secured from an inter-ministerial Project Approval Board. Between 1991 and 2009, only 8,062 approvals were granted, indicating our government was keen to reduce outgoing royalties. Policymakers could reconsider reintroducing such royalty caps for devices that cost less than $200.

(The author is with the Centre for Internet and Society)

Read the original published in the Economic Times

For more details visit https://cis-india.org/a2k/patented-games

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

rohini — 2017-10-13T04:32:49Z

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

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

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

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

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

Download the Paper

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

Patent Working Requirements and Complex Products

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

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

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

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

Introduction

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

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

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

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

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

I. Patent Working Requirements

A. History of Patent Working Requirements

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

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

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

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

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

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

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

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

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

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

2. The Patents Act, 1970

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

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

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

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

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

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

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

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

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

3. India’s Current Working Requirement

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

D. Form 27 and India’s Reporting Requirement

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

every patentee and every licensee (whether exclusive or otherwise) shall furnish in such manner and form and at such intervals (not being less than six months) as may be prescribed statements as to the extent to which the patented invention has been worked on a commercial scale in India.

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

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

The patented invention:

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

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

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

manufactured in India

imported from other countries (give country wise details)

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

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

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

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

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

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

E. Theory and Criticism of Form 27

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

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

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

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

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

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

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

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

A. Background: Existing Data and Studies

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

Table 1

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

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

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

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

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

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

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

B. Methodology

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

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

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

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

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

C. Limitations

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

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

III. Findings

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

A. Aggregated Data ñ Forms Found and Missing

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

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

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

Figure 1

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

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

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

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

Figure 2

Forms 27 (Identified and Missing) Per Assignee

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

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

B. Working Status

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

Figure 3

Working Status, by Assignee

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

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

C. Descriptive Responses

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

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

1. Working Status Not Disclosed

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

Table 1

Forms 27 Failing to Disclose Working Status

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

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

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

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

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

2. Patents Not Worked

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

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

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

3. Varied Interpretations of Working

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

4. Changes in Status

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

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

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

Table 2 Comparison of Working Status Descriptions

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

IV. Discussion and Analysis

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

A. Process Weaknesses

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

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

B. Non-Enforcement and Non-Compliance

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

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

C. Uncertainty Surrounding Working and Complex Products

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

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

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

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

D. Strategic Behavior

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

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

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

E. Opportunities for Further Study

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

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

Conclusion

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

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

But even among Forms 27 that were accessible, almost none contained useful information regarding the working of the subject patents or fully complying with the informational requirements of the Form and the Indian Patent Rules. Patentees adopted drastically different positions regarding the definition of patent working, some arguing that importation of products into India or licensing of Indian suppliers constituted working, while others even went so far as to argue that the granting of a worldwide license to a non-Indian firm constituted working in India. Several significant patentees claimed that they or their patent portfolios were simply too large to enable the provision of information relating to individual patents, and instead provided gross revenue and product sale figures, together with historical anecdotes about their long histories in India. And many patentees simply omitted required descriptive information from their Forms without explanation.

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

APPENDIX

TABLE A1

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

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

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

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

See id.

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

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

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

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

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

Id. at 495.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

See Trimble, supra note , at 494.

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

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

TRIPS Agreement, supra note , art. 27.1.

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

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

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

Champ & Attaran, supra note , at 380.

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

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

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

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

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

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

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

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

Ayyangar Report, supra note .

Ragavan, supra note , at 35.

Id. at 39-40.

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

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

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

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

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

The Patents Act, 1970 ß 84(1).

Id. ß 90(c).

Id.

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

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

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

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

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

Id. ß 85.

Id. ß 83(c).

Id. ß 83(d)-(f).

Id. ß 89.

Id. ß 84(1) (emphasis added).

Id.

Id. ß 84(6).

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

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

See Basheer, supra note , at 9.

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

Id. at 22.

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

Id. at 6.

Id. at 5.

Id.

Id. at 6.

Id.

Id. at 37.

Id.

Id. at 38.

Id. at 40-41.

Id. at 43.

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

Id. at 60.

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

Id.

Id. at 43.

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

Id.

Id. at 24.

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

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

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

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

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

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

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

Id.

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

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

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

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

Patents Rules, Form 27, 2003.

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

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

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

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

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

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

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

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

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

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

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

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

Id.

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

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

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

Basheer Writ Petition (2015), supra note .

Id. at 1, 8.

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

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

Basheer, supra note , at 17.

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

See supra note .

Basheer & Vinod, supra note .

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

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

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

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

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

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

Id. at 10.

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

Basheer, supra note , at 12-13.

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

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

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

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

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

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

Id.

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

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

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

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

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

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

See supra text accompanying note .

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

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

See supra text accompanying note .

See Basheer Writ Petition, supra note , at 10.

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

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

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

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

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

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

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

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

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

Id.

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

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

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

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

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

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

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

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

Id.

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

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

Id.

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

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

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

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

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

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

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

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

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

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

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

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

See supra text accompanying notes -84.

See supra Part III.C.3.c.

See supra Part III.C.3.d.

See supra Part III.C.3.e.

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

See supra Part III.B.

We thank Chris Cotropia for this insight.

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

101 Siemens patents expired prior to 1996.

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

Patent Valuation and License Fee Determination in Context of Patent Pools

vikrant — 2014-07-09T09:46:16Z

The focus of this research paper is on an extremely limited though important aspect of patent pools — that of patent valuation and license fee determination. It is important to bear in mind that the concept of patent valuation and license fee determination as it exists independently is modified when it is applied in context of patent pools.

I. Introduction

A patent pool is essentially “An agreement between two or more patent owners to aggregate (pool) their patents and to license them to one another or third parties. Pools usually offer standard licensing terms to licensees and allocate a portion of the licensing fees (royalties) to patent owners according to a pre-set formula or procedure.[1]

A patent pool particularly faces intense scrutiny by way of competition/ antitrust law and each step of structuring of a patent pool has to be done keeping the prevalent norms of antitrust law in context. This article merely brushes with the antitrust aspect, as a discussion on that topic is beyond the scope of this particular article. However, suffice is to say that like other aspects of structuring of a patent pool, patent valuation and licensing fee determination is also subject to antitrust law concerns.

Part II of this research paper is a discussion as regards factors which determine patent value in context of a patent pool. Similarly, Part III is a discussion as regards factors that determine license fee in context of a patent pool. Thereafter, Part IV discusses the methods which are applied for patent valuation and license fee determination. A number of these methods are independent evaluation methods and hence their dynamics when applied in context of patent pools may need to be altered in light of the discussion in Parts II and III. Part V discusses certain aspects of actual patent pools in the technological field to better understand the principles which have been discussed in Parts II-IV. Finally, Part VI concludes this research paper.

II. Determination of Patent Value in a Patent Pool

One of the prominent pillars of a patent pool is an appropriate patent valuation process. Patent valuation is a difficult and subjective task.[2] Moreover, the result of a patent valuation independently outside of a pool might be quite different from when it is part of a pool transaction. A “pool regularizes the valuation of individual patents - making, as the United States Supreme Court put it, ‘a division of royalties according to the value attributed by the parties to their respective patent claims’”.[3] However, this value attribution process is not an arbitrary one but incredibly dynamic, and constantly evolving. This difficulty is furthered by the fact that the term “patent value” itself is subject to interpretation. Patent value essentially comprises of the economic benefit that the patent can bestow.[4]

A number of factors as discuss hereinafter determine the value of a patent. It is not necessary though that all the factors would come into play in context of every exercise of valuation of a patent in a pool. The factors determining patent value can be largely classified into a discussion as regards the types of patents in a patent pool in context of their relative importance and other complementary factors which further affect such importance.

A. Categories of Patents in a Patent Pool

Patents in a pool can be classified based on their necessity and quality. Thus, arises the concept of essential and non-essential patents and strong and weak patents.

Essential and Non-Essential Patents
As the terms indicate, essential patents are those which are imperative for the success of pool creation and thus naturally have considerably more value. Non-essential patents on the other hand are patents which though not imperative may bring efficiency advantages to the pool. However, what exactly comprises an essential patent is a subjective and constantly evolving definition determined by each patent pool according to its commercial needs and capabilities. For example, the number of patents in the MPEG-2 pool, all of which are declared to be essential to the MPEG-2 standard, increased from 27 in 1997 to more than 900 in 2010.[5]

Essential patents naturally have more economic value than non-essential patents.[6] “A pool that includes non-essential patents can increase prices for some consumers, while decreasing prices for other consumers.”[7] Also, inclusion of inessential patents can raise potential concerns about foreclosure of alternative technologies and higher royalties for some licenses than would have occurred if these patents were excluded from the pool.[8] These concerns though should be balanced against the costs of excluding potentially essential patents from the pool.[9] Such concerns were raised in context of the DVD 3C patent pool.[10] Thus, it has to be decided on a case by case scenario as to whether the patent pool will include only essential patents or both essential as well as non-essential patents.

“Whether a patent pool improves a market’s transactional efficiency depends on the competitive characteristics of the patents included within the pool’s offering.”[11] Properly demarcating all required patents for a technology is important during patent pool formation. Otherwise it may create a “hold out” problem where a patent owner will “hold out” for higher royalties, “knowing that the manufacturer has individually negotiated for and already acquired the rest of the necessary … patent licenses, and that the value of all those licenses depends on obtaining a license to its own patent.”[12] Essentiality of a patent can be determined based on certain characteristics of patents:

a. Blocking Patents
Blocking patents comprise of improvement patents on an existing technology. Thus, the improvement patent is deemed to be “subservient” to the earlier, “dominant’ patent”[13] and the subservient and dominant patents are said to block one another.[14] This is so because, the subservient patent cannot be exploited without infringing upon the dominant patent.[15] Likewise, the dominant patent cannot be developed in the improved embodiment without permission from the subservient patentee.[16] For example, the Wright brothers patents for aeroplane wings were improved upon by Glenn Curtiss and Alexander Graham Bell by using a set of wing flaps, or ailerons. The Curtiss patent, however, was found to infringe upon the Wright patent. As a result, Curtiss had no legal right to make, use, or sell his ailerons without a license from the Wright brothers, and the Wright brothers had no legal right to make, use, or sell Curtiss's commercially successful form of the stabilizing device. Their patents mutually infringed and blocked one another and they had to form a patent pool.[17] Similarly, public key encryption method was devised and patented at Stanford University, and licensed to Cylink. Soon thereafter, a team of scientists at the Massachusetts Institute of Technology developed and patented an algorithm, and licensed its use to RSA. The RSA algorithm was successfully commercialized and became an industry standard. Cylink and RSA constituted blocking rival patents and the issue was resolved by formation of a patent pool.[18]

b. Complementary Patents
Complementary patents cover technologies that are largely lacking or inefficient absent a license to a separate patented product.[19] They occur as a consequence of independent invention. Thus, value of complementary patents increases when combined with a separate patented invention; they act synergistically, each increasing the value of the other.[20] “Two products or technologies are complements if an increase in the price of one of them reduces the demand for the other.”[21] For example, production of a light bulb requires patent rights to both the vacuum bulb as well as the filament.[22] A patent pool that only contains complementary patents may have substantial market power if the pool does not face competition from alternative or substitutable technology.[23] This though, could lead to the occurrence of royally stacking i.e. double-marginalization, which can occur when firms sell or license complementary products or technologies and demand is sensitive to price.[24] It refers to the addition of successive mark-ups by suppliers in a vertical relationship.[25]

c. Competing Patents

Competing patents result when there exist totally novel products or processes that provide market substitutes for patented goods, or when inventors sufficiently modify existing patented goods so that the original patent is deemed “invented around” and not infringed.[26] “Two products or technologies are substitutes if an increase in the price of one of them increases the demand for the other.”[27] A patent pool may obtain market power by obtaining control over substitutable patents too.[28] An individual who acquires the rights to a competing patent eliminates or significantly lessens his need for competing patents within or outside of the pool.[29] Thus, the value of a pool consisting of competing patents increases with acquisition of substitute patents.[30]

Strong and Weak Patents
A patent pool can comprise of strong as well as weak patents. The value accorded to the patents would naturally be in accordance with its “strength.” “‘Low patent quality’ is shorthand for such problems as overlapping claims, inappropriately broad claims, slow patent prosecution, and patents on obvious inventions.”[31] Patents are “probabilistic rights”[32] Their scope and extent often remains probabilistic until their claim determination which may often be done only upon adjudication. Similarly in situations of a patent flood,[33] the overall quality of patents may become lower.[34] The additional protection of the pool affords a weak patent enforcement rights that it may not have secured standing alone.[35] Thus, even weak and invalid patents become important and can be used to exclude competitors, for example for litigation threats.[36]

Some patent pools contain explicit agreements to support weak patents, such as covenants not to challenge patents, joint defense agreements, and allocation of patent rights to parties who are best able to defend them.[37] Some patent pools achieve a similar effect not by explicit agreements, but by creating an institutional environment where patentees find that it is mutually advantageous to recognize each other’s patents.[38]

B. Other Factors Determining Patent Value in Context of Patent Pool

Besides the patents themselves, other complementary criteria impact on patent value. These comprise of the holistic environment in which the patents subsist, as discussed hereinafter.

Subject matter of Invention
“Value is highly dependent upon the subject matter of the invention.”[39] Certain subject matter fields or innovations do not have sufficient commercial importance or market demand to warrant investments.

Scope of Invention
A particular subject where there is extensive minefield of patents already in existence is less likely to have considerable patent value due to the limited patent scope as opposed to a field where patents are relatively lacking and there is possibility of a broader patent scope. Analogously, “value of a patent is derived from an ability to preclude others from practicing the unique innovation described by the words of the patent’s claims.”[40] “Generalizing, a patent employing broad claim language is typically more valuable than a patent of narrowly written claims in the same technology arena.”[41]

Size of Patent Pool
The size of a patent pool i.e. the number of its members and their patents is an important facet in determining the value of patents involved. Greater the number more are the governance issues as well as royalty determination issues, which in turn affect the valuation of the patents. This though does not imply that pools should be of a specific size, only that their size should meet efficiency demands.

Value of Patent Pool
The patents under the purview of a patent pool determine the pool’s value which in turn determines the value of the patents within as well as out of the pool. Value of a patent pool may be limited if certain holders of essential patents are not members.[42] This may occur due to various reasons such as if it was perceived that the patent may have more value as an independent entity, or due to strategic interests, or choice of joining different pools.[43] Correspondingly, if the patent pool does not contain all the patents it cannot curtail royalty stacking issues for the users. For example, Alcatel-Lucent pursued infringement claims for patents that it alleged covered the MPEG-2 standard and were not in the pool.[44]

While it is evident that collecting all necessary patents where the end product or standards is determined is extremely difficult, it becomes considerably more difficult where there is no predetermined or identifiable end-product.[45]

Patent Portfolio
Certain academic studies are of the opinion that “the real value of patents lies not in their individual significance, but instead in their aggregation into a patent portfolio: a strategic collection of distinct-but-related individual patents that, when combined, confer an array of important advantages upon the portfolio holder.”[46] This theory has been applied to explain the patent paradox where the patent intensity, i.e. patents obtained per research and development dollar has risen dramatically even as the expected value of individual patents has diminished.[47] Thus, greater the control of an entity over a portfolio of patents, more would be its negotiation power in context of valuation.

Signaling
It has been opined that the value of patents inheres not so much in the exclusivity they confer upon inventors, but rather in their ability to serve as credible signals.[48] Firms use patents to credibly convey information about the invention to the market who otherwise might not be willing to expend the costs necessary to obtain the information.[49]

Defensive Aspect
Patent value is also ascertained based on its use to serve as an insurance, whereby competing firms use them as “bargaining chips” to negotiate and secure certain niches in the marketplace.[50] This is so especially from the negotiation as well as the litigation viewpoint.

Valuation Dynamics
In context of certain subject matters, inability of the patents to be valued or possibility of dynamic changes in value creates problems in structuring the patent pool, or it might lead to issues of according over-value or under-value. For example, in the process of biological research, where hypotheses are often adjusted and experimentation continually refined, it is impossible to anticipate the particular value of a given research tool for an investigative procedure.[51] Similarly, in context of the Human Genome Sciences, the patent for the gene that encodes CCR5 protein, was likely not valued very highly, because of unsurity of its utility, which changed when independent research established its importance in the fight against HIV.[52]

C. Role of Independent Evaluator

Often, independent experts in the relevant technology are employed for patent valuation purposes. Their role includes the responsibility of providing a mechanism for determining the market value of each participating patent for the purpose of setting appropriate royalty rates within the patent pool.[53] Also, they would evaluate the current state of the art and determine which patents are essential and which aren’t.[54] An evaluator’s is a continuing responsibility throughout the existence of the duration of the patent pool to monitor developments in the field so as to ensure each patent’s essentiality and incorporate additional patents if necessary.[55] Concerns though have been expressed as regards the expert’s ability and impartiality.[56]

III. Determination of License Fee for a Patent Pool

Theorists, have suggested criteria to gauge viability of patent pools.[57] The various elements involved in structuring of a patent pool do not function in a vacuum. Each has an impact on the other and ultimately they determine in totum, the licensing fees.

A. Pool Dynamics

The factors catalyzing pool creation impact on the licensing fee that is set. A patent pool may primarily be structured due to government influence,[58] court influence,[59] commercial and business perspective,[60] to achieve or pursuant to standard setting,[61] and social objectives.[62] Accordingly, riders may be placed on creation of the pool and setting of licensing fees.

Analogously, members comprising the patent pool affect royalty determinations. Different perspectives can be observed in commercial entities as opposed to research entities or voluntary organizations. Similarly, the negotiation capabilities are different for established commercial conglomerates as opposed to entrepreneurs, or smaller entities.[63] Similarly, patent pools may distinguish between patent contributing licensees and mere licensees in fixing royalty rates.[64]

Furthermore, pool governance as well as nature of the pool would have an impact on royalty determination. Pools can essentially be of two types based on regulation of members or licensing- open and closed.[65] Correspondingly, the patent holders themselves may have different perspectives or expectations of their rights.

The negotiating entity too has an impact on royalty determination. “Agreements between the members of the patent pool and third parties can be established directly through patentees and licensees or indirectly through an entity specifically created to administer the pool.”[66] There are a considerable number of business models involved in context of a patent pool that define the parameters of the relationship between what are primarily classified as IP creators and IP consumers.[67] These dynamics have considerably altered with the strong and prolific emergence of IP intermediaries; they in turn affect the royalty rate negotiations.[68]

B. Negotiation Dynamics

License negotiations involve complicated factors, such as uncertain outcomes, asymmetric information about the values of technologies and the contributions of licensees to a technology's value, the credibility of disagreements, differential bargaining power and skill, and the individual circumstances of licensors and licensees.[69] Royalty determination depends on “the bargaining skills of patentees, their licensing objectives, the qualities of their patents, opportunity costs that patentees may have if they choose not to license their patents, the likelihood of injunctions, and the methods that courts apply to calculate infringement damages.” [70] Pool members act strategically to maximize their share of the pool’s revenues.[71] “The defining characteristic of patent ownership has been described as the right to extract royalties ‘as high as [one] can negotiate with the leverage’ of exclusivity.”[72] “The patent holder can ask for a high starting price; the potential infringer can counter by pointing to potential substitute technologies; and ultimately the process should yield a price that accurately reflects the marginal advantages of the patented technology.”[73] Again, negotiation strategies include deploying a number of tactics by corporates to whittle down an independent inventor’s patience and his price, thus reducing the licensing fee from the desired amount.[74] Correspondingly, there is no average length of time or amount of money needed for successfully creating a patent pool; it depends on the number of members involved in the negotiations and their commitment and willingness to negotiate an appropriate price.[75]

Timing of the license negotiation too has an impact on determination of the royalty scheme. Licensing can occur in two primary settings: ex ante licensing, i.e. prior to pool formation; and ex post, i.e. post pool formation. In ex ante licensing, the manufacturer has a choice to alter existing products to incorporate the patented features, and can thus perform a rational cost-benefit analysis prior to making any product alterations.[76] Analogously, a holdout who demands royalties prior to the final organization of the pool can only demand a royalty that reflects the additional value that his new patent adds to the collection.[77] If he demands more than this value, the pool will work around the holdout’s patent by adopting a different standard, adjusting the patent pool to cover slightly different technology, or dissolving itself.[78] In ex post licensing, on the other hand, a holdout is in a stronger negotiating position, and can demand not only the marginal value of his patent, but also the switching costs that would be incurred if the established standard or licensing regime were limited by a court injunction.[79] Complicating this situation are licenses that are granted ex ante but negotiated ex post.

Furthermore, patent pools are generally voluntary collaborations; however, it is also possible to compel parties to join the pool or risk losing revenue from a large segment of the industry.[80] Depending on the situation, the negotiation dynamics and hence the royalty scheme would be affected.

Rules governing damages for patent infringement also affect patentees’ decision to join a pool or to license independently, as the threat of injunctive relief can provide a patentee with bargaining power that can be disproportional to the number of patents he owns.[81]

C. Terms of License

The terms of the license considerably influence royalty determination. These include, nature of licensed products,[82] character of license- whether exclusive or non-exclusive,[83] granting clause, geographic scope of the license, field of use governed by the license, provision of sublicensing, grantback provisions, future usage governance, non-assertion clauses, reach-through provisions, termination clause, and licensee’s ability to challenge patents in the pool.

Included herein too would be the treatment of after-acquired patents, which in turn can be classified into two types: (1) improvement patents based on a patented technology licensed by another member of the patent pool; and (2) patents unrelated to patented technologies licensed to the members of the patent pool.[84]

License governance in context of graduated and progressive licensing would also influence royalty determination. This would include “provisions for pool members to license their patents without licensing all the patents in a pool”[85] And the freedom “to license their patents bilaterally, i.e., outside of the pool structure.”[86]

IV. Methods for Patent Valuation and License Fee Determination

There are three basic methods of valuation: the cost method,[87] the market method,[88] and the income method.[89] In context of patent valuation, these methods find varied expressions. “A truly accurate assessment of patent value requires intensive legal and technical evaluation of individual patents.”[90] The economics literature, however, has also proposed several proxies for patent value based on objective and readily available information.[91]

In context of patent pools the dynamics of patent valuation methods is altered and they need to be viewed through the prism of factors discussed in Part II. This doesn’t imply that approaches to objective patent valuation are not relevant.[92] “However, such valuation approaches focus only on characteristics of patents at the time of issue and neglect to consider what happens afterwards.”[93] “Technology developments or price fluctuations, among many factors, may alter the relationship between two patents … In turn, this may decrease the value of any static analysis conducted by experts.”[94]

Determination of the licensing fee of a patent pool is based on the joint affect of certain transactions. Again, as with patent valuation, so also with licensing fee determination, in context of patent pools, the factors discussed in Part III need to be given heed. The transactions influencing licensing fee determination essentially comprise of valuation of the patent, which in turn is used to set a royalty rate pertaining to allocation of various fees received by licensing of the pool patents. Thus, royalty payment is comprised of two components: a royalty rate and a royalty base, upon which the rate is applied.[95]

A. Determining an Appropriate Royalty Base

The scope of the royalty base can be determined in two principal ways- apportionment and entire market value rule.

The apportionment principle implies that when a patent reads on the entirety of an infringing product, the royalty base should be the total value of the sales (or use) of that product.[96] When the patent at issue covers only a component of the infringing product, the value of the sales or uses of that item must be apportioned between the patented invention and the remaining unpatented components.[97] Thus, the principle aims at allocating awards in proportion to contribution, and is not based on any value attributable to the infringer’s or third parties’ inventions.[98] Thus, essentially, a licensor garners a royalty fee in proportion to the number of infringed patents owned by him.

The entire market value rule, recognizes that the economic value added to a product by a patented component may be greater than the value of the component alone.[99] Thus, this rule focuses on whether the patented component drives demand for the entire product, and if it is so, then the patentee may treat all revenue from the infringing product as an appropriate royalty base.[100]

B. Setting Royalty Rates

Royalty rates are typically a percentage rate and thus reflects the proportion of the base value that the patented technology contributes.[101] Various approaches have emerged in determining royalty rates; these could be adapted in context of patent pools.

Rule of Thumb
This approach suggests that the licensor should receive 25 percent of the licensee’s gross profit from the licensed technology.[102]Thus, this rule’s purpose is not the valuation of a technology per se, but rather the apportionment of a technology’s value between the licensor and licensee.[103] The percentage split between the licensor and licensee should be adjusted upwards or downwards to take into account the parties’ respective investment and risk in the licensed technology.[104]

Numerical Proportionality
According to this approach, royalty entitlement of the holder of patents essential to a standard should be calculated in light of the proportional contribution of that patent owner’s essential patents compared to the total contribution of all other essential patents reading on the standard.[105] This method rests on the proposition that every patent is of equal value.[106]

Industry Standards / Market or Comparable Technology Method
Under this approach, the worth of a patent is determined by examining the royalty rates garnered in similar past transactions.[107]

Discounted Cash Flow
This approach proposes that patent price can be expressed as the present value of the future stream of economic benefits derived from ownership, which includes projected sales of products (or components) based on the patent over its expected life or any increased share of sales as compared to competitors, net of any capital requirements of production.[108] To implement it, one must determine (1) the future cash flows generated by the patent in question and (2) an appropriate discount rate.[109]

Ranking
This approach compares the intellectual property asset to be valued to comparable intellectual property assets on a subjective or objective scale.[110] There are five components to a ranking method: (i) scoring criteria; (ii) scoring system; (iii) scoring scale; (iv) weighting factors; and (v) decision table; these components are used to calculate a composite score for an asset, which is then compared to the average score for a comparable intellectual property asset to determine the relative value.[111]

Cost-based Rate Setting
This approach proposes that the patent holder’s cost of obtaining the invention and its patent forms the basis of the royalty rate; a profit margin is simply tacked onto the innovation cost.[112]

Surrogate Measures
Surrogate measures value patents by reference to the patents themselves.[113] They can be largely categorized into: (1) the number of patents issued to a company; (2) payment of patent maintenance fees i.e. patents which are regularly renewed are more valuable; (3) prior art citations i.e. more a patent is cited, more is its value; (4) characteristics of litigated patents i.e. patents which are the subject matter of litigation are more valuable.[114]

Disaggregation Methods
There are two basic types of disaggregation methods - value disaggregation and income disaggregation.[115] The former apportions some fraction of total value to intellectual property assets by setting the value of intangible assets equal to the value of a firm minus the firm’s monetary and tangible assets from to determine the value of the intangible assets.[116] The latter apportions some fraction of total earnings of a firm, based upon various factors, to intellectual property assets.[117]

Option Methods
This approach views an investment in intellectual property as an option to develop the intellectual property further, or to abandon the intellectual property, depending upon future technical and market information.[118]

Competitive Advantage Valuation (R)
The major premise of the CAV method is that intellectual property assets have no inherent value; the value of intellectual property assets resides entirely in the value of the tangible assets which incorporate them.[119] The minor premise of the CAV method is that the value of a given intellectual property asset can best be measured by the competitive advantage which that asset contributes to a product, process, or service.[120] In its most general form, CAV method consists of following six basic steps[121]:

The intellectual property asset to be valued (IPA) is associated with a product and the product’s net present value is calculated.
The product's net present value is apportioned among tangible assets, intangible advantages and intellectual property assets. (There are three groups of intellectual property assets: technical [utility patents, functional software copyrights and technical trade secrets]; reputational [trademarks, service marks and brand names]; and operational [business method patents and proprietary business processes].
The product is associated with competition parameters which can be used to compare the product to substitute products and competition parameter weights are calculated. (There are three groups of competition parameters: technical [price and performance], reputational [recognition and impression], and operational [cost and efficiency]. Weights are calculated for each parameter group and for individual parameters within each group).
The IPA is associated with an individual competition parameter and the IPA's competitive advantage relative to substitute intellectual property assets is calculated. (Substitute intellectual property assets are assets which are incorporated in substitute products and associated with the same competition parameter as the IPA).
The IPA is associated with complementary intellectual property assets and the IPA's competitive advantage relative to complementary intellectual property assets is calculated. (Complementary intellectual property assets are assets which are incorporated in the same product and associated with the same parameter group as the IPA).
The value of the IPA is calculated by apportioning a share of the product's intellectual property asset value to the IPA based upon the IPA's competitive advantage contribution relative to substitute and complementary intellectual property assets. If the IPA is associated with multiple products, the IPA's relative competitive advantage contribution to each product is calculated and these contributions are summed to calculate the total value of the IPA. If the IPA is associated with multiple parameters, the IPA's relative competitive advantage contribution for each parameter is calculated and these contributions are summed to calculate the total value of the IPA.

Georgia Pacific
The fifteen factors enumerated in the Georgia Pacific case, several of which repeat approaches discussed above, are used in royalty rate determination:[122]

The royalties received by the patentee for the licensing of the patent in suit, proving or tending to prove an established royalty.
The rates paid by the licensee for the use of other patents comparable to the patent in suit.
The nature and scope of the license, as exclusive or non-exclusive; or as restricted or non-restricted in terms of territory or with respect to whom the manufactured product may be sold.
The licensor’s established policy and marketing program to maintain its patent monopoly by not licensing others to use the invention or by granting licenses under special conditions designed to preserve that monopoly.
The commercial relationship between the licensor and licensee, such as, whether they are competitors in the same territory in the same line of business; or whether they are inventor and promoter.
The effect of selling the patented specialty in promoting sales of other products of the licensee; the existing value of the invention to the licensor as a generator of sales of its non-patented items; and the extent of such derivative or convoyed sales.
The duration of the patent and the term of the license.
The established profitability of the product made under the patent; its commercial success; and its current popularity.
The utility and advantages of the patent property over the old modes or devices, if any, that had been used for working out similar results.
The nature of the patented invention; the character of the commercial embodiment of it as owned and produced by the licensor; and the benefits to those who have used the invention.
The extent to which the infringer has made use of the invention; and any evidence probative of the value of that use.
The portion of the profit or of the selling price that may be customary in the particular business or in comparable businesses to allow for the use of the invention or analogous inventions.
The portion of the realizable profit that should be credited to the invention as distinguished from non-patented elements, the manufacturing process, business risks, or significant features or improvements added by the infringer.
The opinion testimony of qualified experts.

The amount that a licensor (such as the patentee) and a licensee (such as the infringer) would have agreed upon (at the time the infringement began) if both had been reasonably and voluntarily trying to reach an agreement; that is, the amount which a prudent licensee-which desired, as a business proposition, to obtain a license to manufacture and sell a particular article embodying the patented invention-would have been willing to pay as a royalty and yet be able to make a reasonable profit and which amount would have been acceptable by a prudent patentee who was willing to grant a license.

Academics have prescribed modification to the approach towards these factors analyzing that the relevant questions in calculating a reasonable royalty fall into four basic categories: (1) whether the patentee in fact produces a product in the market; (2) the contribution made by the patented technology compared to the next best alternative; (3) the number and importance of other inputs necessary to make that technology work; and (4) evidence of how the market has actually valued the patent, to the extent it differs from the outcome of (1), (2), and (3).[123]

V. Patent Pool Examples

The following discussion highlights certain aspects of patent pools from real world examples. These examples are restricted to the technological field. Study of these aspects is of value in understanding the concepts discussed hereinbefore.

A. Manufacturers Aircraft Association (MAA)

The MAA was formed in 1917 in U.S.

Apart from the “foundational” patents of Glenn Curtiss and the Wright Brothers, which had substantial royalty rates, most licensing was conducted on a royalty-free basis, with mutual forbearance from infringement suits as the real payment for the exchange.[124]

The MAA was open to anyone who wished to use the Wright-Curtiss designs for a $1000 initiation fee and a licensing fee of $200 per aircraft built; these funds were to be distributed primarily between the Wright and Curtiss interests until each received a sum of $2,000,000 or their key patents expired.[125] MAA retained $ 25 (12.5%) to cover its administrative expenses, $ 135 (67.5%) was paid to the Wright-Martin Aircraft Corporation and $ 40 (20%) was paid to the Curtiss-Burgess Airplane & Motor Corporation.[126]

Patents added to the pool after its formation were divided into two classes- normal patents were licensed into the pool for all to use, with no special royalty payout going to the inventor or firm; exceptional patents earned ongoing royalties, in an amount determined by a formal arbitration procedure.[127]

The MAA also included a grant-back provision that applied to after-acquired patents.[128]

MAA’s members could license their patents to non-members if the terms were no more favorable than to members and any MAA member could withdraw at any time, but its patents in the pool at the time of withdrawal would remain.[129]

B. Moving Picture Experts Group (MPEG)

MPEG technology allows for transmission and storage of digital video and audio signals. It was formed by the Trustees of Columbia University, Fujitsu Limited, General Instrument Corp., Lucent Technologies Inc., Matsushita Electric Industrial Co., Ltd., Mitsubishi Electric Corp., Philips Electronics N.C., Scientific Atlanta, Inc., and Sony Corp. in 1997. The patent pool for the MPEG-2 standard is administered by a common license administrator- MPEG-LA

MPEG-LA is required to grant licenses to any potential licensees, without discrimination and at a reasonable royalty rate.

MPEG LA offers a portfolio of MPEG-2 systems licenses with a fixed royalty for each licensed mobile MPEG-2 systems signal receiver and a different fixed royalty for all other MPEG-2 systems devices.[130] Additional patents, not included in the portfolio, are available for specific implementations.[131]

The pool offers a standardized five-year license to all prospective licensees.[132] The licensing royalties do not change if patents are added to the portfolio during the five-year licensing period, although the royalty rate may increase by up to 25% in a license renewal.[133] Each patent in the pool is valued equally.[134]

The license has a grant-back provision that requires the licensee to grant to the licensor and other portfolio licensees a nonexclusive license, under fair and reasonable terms and conditions, on any essential patent that the licensee has a right to license.[135]

There exists a partial termination right given to licensors, who may request that MPEG-LA terminate the license of that licensor’s IPR to a particular licensee, if that licensee has sued the licensor for infringement of an MPEG-2 essential or “related” patent or refused to license a related patent on fair and reasonable terms.[136]

C. DVD

Sony, Philips and Pioneer organized the DVD3C patent pool in 1998 for the licensing of patents that are “essential” to comply with the DVD-Video or DVD-ROM standard specifications.

Royalty payments are allocated under guidelines set by the Ground Rules for Royalty

Allocation rather than on subjective analysis by an expert.[137] The royalty rate in standard licenses is not related to fluctuations in the market price of a licensed product; also, the royalty rate is not computed on a per-patent basis and does not fluctuate as patents are added or removed, therefore, the same royalty rate is payable when using one essential patent as when using several.[138]

Hitachi, Matsushita, Mitsubishi, Time Warner, Toshiba, and Victor organized the DVD6C patent pool in 1999 again for the licensing of patents that are “essential” to comply with the DVD-Video or DVD-ROM standard specifications.

The DVD6C pool is also governed by the “Ground Rules for Royalty Allocation” guidelines.[139] The royalties are 4% of the net selling price of the product or U.S. $4.00 per product, whichever is higher. Royalties for DVD decoders are 4% of the net selling price of the product or U.S. $1.00 per product, whichever is higher.[140]

The DVD6C agreement contains a grant-back clause, which, requires licensees to grant each of the licensing companies of DVD6C (and their licensees) a non-exclusive license on fair, reasonable and non-discriminatory terms to use any of their patents that are deemed essential for the manufacture, use or sale of DVD Products; this grantback is restricted only to those DVD products actually licensed to the licensee.[141]

D. 3G Mobile Telephony

The 3G Patent Platform Partnership was formed in 1999. The purpose of the 3G Patent Platform Partnership is to allow for “fair, reasonable, and nondiscriminatory” access to rights essential for implementing the W-CDMA 3GPP standard.[142]

There are three form contracts associated with the Platform: the Framework Agreement, the Standard License, and the Interim License.[143] The Framework Agreement gives each member the choice either to license its essential patents according to the Standard License or to negotiate terms directly with a licensee.[144] The Standard License prescribes standardized royalties for licenses, to be determined by an independent commission.[145] If the patent owner foregoes the Standard License and fails to come to terms in bilateral negotiations, the Interim License comes into effect which has the same royalty terms as the Standard License.[146]

E. Bluetooth Special Interest Group (SIG)

The Bluetooth SIG was formed in 1997 to provide a technology for interconnection of mobile phones, computers, laptops, printers, PDAs, and other devices via a short-range radio frequency band; SIG oversees the development of Bluetooth standards and its licensing.[147]

SIG’s member companies are divided into three different classes- (1) promoter company, which are intensely engaged in the strategic and technical development of Bluetooth wireless technology; they include Agere, Ericsson, Intel, Lenovo, Microsoft, Motorola, Nokia, and

Toshiba; (2) associate members, who are licensed to use Bluetooth specifications and trademarks; (3) adopted members, which use published specifications and trademarks, but do not influence the specification process, nor do they have early access to unpublished specifications.[148]

SIG licenses to member companies on a royalty-free basis, but, associate members pay an annual fee based on their company’s annual revenue, with “small” associates (less than $100 million USD/year) paying $7,500 USD/year and “large” associates (more than $100 million USD/year) paying $35,000 USD/year; adopted members are not required to pay an annual fee.[149]

VI. Conclusion

As is evident, patent valuation and license fee determination are extremely subjective and case based. Moreover, their dynamics alter according to the situation, as in the context of patent pools. This dynamism is furthered by the fact that there are no strict or universal formulas or procedures which can be applied in such determinations. Furthermore, such determinations cannot be made in a vacuum but are subject to the cascading effect of a multitude of factors comprised of the holistic technological environment that may not be just restricted to the innovation in question.

[1] Krista L. Cox, The Medicines Patent Pool: Promoting Access and Innovation for Life-Saving Medicines Through Voluntary Licenses 4 Hastings Sci. & Tech. L.J. 293 (Summer, 2012) citing IGWG Briefing Paper on Patent Pools: Collective Management of Intellectual Property--The Use of Patent Pools to Expand Access to Essential Medical Technologies, Knowledge Ecology International, (June 3, 2007) quoting Robert P. Merges, Institutions for Intellectual Property Transactions: The Case of Patent Pools, in Expanding the Boundaries of Intellectual Property, Innovation Policy for the Knowledge Society 123 (Rochelle Cooper Dreyfuss et al. eds., 2001).

[2] Jer Rutton Kavasmaneck v Gharda Chemicals Ltd. and Ors. (Suit No.2932 of 2011; Decided On: 20.03.2012) Bombay H.C. (Intellectual Property Rights (IPRs) including the patent right is valuable right for all the commercial purposes. These intangible assets play important role in any financial assessment of the trade/commercial or the market. It changes from time to time, market to market, person to person based upon the situations. If valuation is always a complex and flexible issue and a matter of discussion and debate in business strategies. The patent valuation involves many described and undescribed elements).

[3]Robert P. Merges, Contracting into Liability Rules: Intellectual Property Rights and Collective Rights Organizations 84 Calif. L. Rev. 1293 (October 1996) citing Standard Oil Co. v. United States, 283 U.S. 163, 171 (1931).

[4] Michael S. Kramer, Valuation and Assessment of Patents and Patent Portfolios Through Analytical Techniques 6 J. Marshall Rev. Intell. Prop. L. 463 (Spring, 2007).

[5] Richard J. Gilbert, Ties That Bind: Policies to Promote (Good) Patent Pools 77 Antitrust L.J. 1 (2010) MPEG LA Business Review Letter from Joel I. Klein, Ass’t Att’y Gen., U.S. Dep’t of Justice, to Garrard R. Beeney, Esq., Sullivan & Cromwell LLP (June 26, 1997), available at http://www.usdoj.gov/atr/public/busreview/215742.pdf; MPEG LA, MPEG-2 Patent Portfolio License Briefing (Aug. 4, 2010).

[6] See Kramer, supra n.4 at 463 (essential patents of technical standards are more valuable, on average, than the general population of patents).

[7] Gilbert, supra n.5.

[8] Id.

[9] Id.

[10] Id.citing DVD 3C Business Review Letter from Joel I. Klein, Ass't Att'y Gen., U.S. Dep't of Justice, to Garrard R. Beeney, Esq., Sullivan & Cromwell LLP (Dec. 16, 1998), available at http://www.usdoj.gov/atr/public/busreview/2121.pdf.

[11]R. Justin Koscher, A Patent Pool's White Knight: Individual Licensing Agreements And The Procompetitive Presumption 20 DePaul J. Art Tech. & Intell. Prop. L. 53 (Fall, 2009).

[12] Daniel Lin, Research versus Development: Patent Pooling, Innovation And Standardization In The Software Industry 1 J. Marshall Rev. Intell. Prop. L. 274 (2002).

[13] Steven C. Carlson, Patent Pools and the Antitrust Dilemma 16 Yale J. on Reg. 359 (Summer, 1999).

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Michael A. Sanzo, Antitrust Law And Patent Misconduct In The Proprietary Drug Industry 39 Vill. L. Rev. 1209 (1994).

[21] Gilbert, supra n.5.

[22] Carlson, supra n.13.

[23] Philip B. Nelson, Patent Pools: An Economic Assessment Of Current Law And Policy 38 Rutgers L. J. 539 (Winter, 2007).

[24] Gilbert, supra n.5.

[25] Id.

[26] Carlson, supra n.13.

[27] Gilbert, supra n.5.

[28] Nelson, supra n.23.

[29] David S. Taylor, The Sinking Of The United States Electronics Industry Within Japanese Patent Pools 26 GW J. Int'l L. & Econ. 181 (1992).

[30] Id.

[31] Michael J. Meurer, Business Method Patents and Patent Floods 8 Wash. U. J.L. & Pol'y 309 (2002).

[32] Mark A. Lemley & Carl Shapiro, Frontiers of Intellectual Property: Patent Holdup and Royalty Stacking 85 Tex. L. Rev. 1991 (June, 2007).

[33] Meurer, supra n.31 (A patent flood occurs when many inventors apply for patents on similar inventions during an interval of a few years).

[34] Id.

[35] Robert P. Greenspoon and Catherine M. Cottle, Don't Assume A Can Opener: Confronting Patent Economic Theories With Licensing And Enforcement Reality 12 Colum. Sci. & Tech. L. Rev. 194 (2011).

[36] Meurer, supra n.31.

[37] Gilbert supra n.5 citing the cross-licensing arrangement between the Singer Manufacturing Company and Gegauf, contained provisions by which each of the parties agreed not to bring any infringement action against the other. United States v. Singer Mfg. Co., 374 U.S. 174, 178 (1963).

[38] Gilbert supra n.5.

[39] Kramer, supra n.4.

[40] Id.

[41] Id.

[42] Jorge L. Contreras, Standards, Patents, and the National Smart Grid 32 Pace L. Rev. 641 (Summer Issue, 2012).

[43] Gilbert, supra n.5 (To the extent that a patent pool successfully lowers total royalties relative to independent licensing, this leaves ‘headroom’ available for an independent licensor outside the pool to charge a high royalty for its patent).

[44] Id. citing Multimedia Patent Trust v. Microsoft Corp., et al., 525 F. Supp. 2d 1200 (S.D. Cal. 2007).

[45] Chase A. Marshall, A Comparative Analysis: Current Solutions To The Anticommons Threat 12 J. High Tech. L. 487 (2012); Damien Geradin and Anne Layne-Farrar, Patent Value Apportionment Rules for Complex, Multi-Patent Products 27 Santa Clara Computer & High Tech. L.J. 763 (2010 / 2011) (the typical semiconductor chip likely involves hundreds, perhaps more, patents. In turn, that chip may be intended for use in a laptop computer, the other components of which involve hundreds, or more, patents. Without knowing how many patents actually read on a product, and how many have holders who will actively seek licensing fees, it can be exceedingly difficult to assign the contributed value to those that are known).

[46] Gideon Parchomovsky and R. Polk Wagner, Patent Portfolios 154 U. Pa. L. Rev. 1 (November, 2005); Elizabeth M. Bailey, Gregory K. Leonard and Mario A. Lopez, Making Sense Of “Apportionment” In Patent Damages 12 Colum. Sci. & Tech. L. Rev. 255 (2011) (combining patented technologies typically creates value that is greater than the sum of the parts. For example, patent pools often bring together various technologies that are necessary to create the product in question. The stand-alone value of any one patent in the pool may be low or close to zero unless combined with the other patents in the pool).

[47] Parchomovsky and Wagner, supra n.46.

[48] Id.

[49] Id.

[50] Id.

[51] Scott Iyama, The USPTO's Proposal of a Biological Research Tool Patent Pool Doesn't Hold Water 57 Stan. L. Rev. 1223 (March, 2005).

[52] Bradley J. Levang, Evaluating the Use of Patent Pools For Biotechnology: A Refutation to the USPTO White Paper Concerning Biotechnology Patent Pools 19 Santa Clara Computer & High Tech. L.J. 229 (December, 2002).

[53] Courtney C. Scala, Making the Jump From Gene Pools to Patent Pools: How Patent Pools Can Facilitate the Development of Pharmacogenomics 41 Conn. L. Rev. 1631 (July, 2009).

[54] Id.

[55] Id.

[56] R. Justin Koscher, A Patent Pool's White Knight: Individual Licensing Agreements And The Procompetitive Presumption 20 DePaul J. Art Tech. & Intell. Prop. L. 53 (Fall, 2009) citing DVD-6 Business Review Letter from Joel I. Klein, Assistant Attorney General, to Carey R. Ramos, Esq., of Paul, Weiss, Rifkind, Wharton & Garrison (June 10, 1999), available at http://www.usdoj.gov/atr/public/busreview/2485.htm.

[57] Alexander Lee, Examining the Viability of Patent Pools for the Growing Nanotechnology Patent Thicket, 3 Nanotechnology L. & Bus. 317 (2006) suggests that to determine the viability of using a patent pool in a market, companies should ponder the following list of nine criteria: (1) product development driven by standards; (2) moderate fragmentation of patent landscape; (3) at least five pool members; (4) each member working on specific subcomponent of a product; (5) willingness of patent holders to negotiate; (6) commitment by members to create the pool; (7) an industry that is in the later stages of product development; (8) certainty of patent ownership; and (9) a patent pool clear of potential antitrust violations.

[58] See Gilbert, supra n.5 discussing the Manufacturers Aircraft Association, where the U.S. government used the threat of compulsory licensing to compel the pioneers of the aircraft industry to form a patent pool in 1917. The industry was enmeshed in litigation over the scope and validity of patents, and some patentees, particularly the Wright-Martin Company, were demanding royalties that the government and other aircraft manufacturers deemed excessive. Creation of the Manufacturers Aircraft Association patent pool resolved the litigation chaos. The government negotiated a portfolio license from the pool with a royalty of $ 200 per aircraft, which was a fraction of the royalty that Wright-Martin was demanding for a single patent ($ 1,000 per aircraft).

[59] See Carlson, supra n.13 discussing that pool agreements are frequently employed as a means of settling existing litigation, and citing examples including patent pools in the laser eye surgery, and the public key encryption industries;

also see Lemley & Shapiro, Frontiers of Intellectual Property, supra n.32 discussing that the average royalty rate granted in all reasonable-royalty cases is 13.13% of the price of the infringing product, which is much higher than that of patent licenses negotiated without litigation.

[60] See Greenspoon and Cottle, supra n.35 discussing the value of patents as a form of currency that can be used to further goals unrelated to market creation or entry. Such goals can be to improve a firm's competitive position when trying to acquire start-up funds, to improve negotiating terms when licensing other patents, and to reduce the chance of paying excessive royalties to external patent owners;

also see, Gilbert, supra n.5 discussing how different business strategies can cause firms to pool their patents with some firms, but not with others, citing the example of emergence of two pools to license DVD patents as a consequence of differing approaches to industry standards. One explanation offered for the existence of two separate pools is that the two groups could not reach an accord about their respective shares of joint royalty payments.

[61] See Gilbert, supra n.5 discussing how some pools license their patents royalty-free or at royalties that are deliberately held below profit-maximizing levels in an effort to promote adoption of new technologies covered by their patents, citing the example of the Bluetooth Special Interest Group and the Multimedia Home Platform. The article also discusses patent pools formed to license patents that are necessary to implement a defined standard, such as MPEG encoding, DVDs, or mobile telephony.

[62] See Gilbert, supra n.5 discussing pools that limit royalties to promote social objectives rather than to profit from new products citing examples of companies, universities, and research organizations such as Syngenta- an agricultural technology company, the Public Intellectual Property Resource for Agriculture, the SARS IP Working Group, and the UNITAID pool for AIDS medications.

[63] Yuichi Watanabe, Patent Licensing And The Emergence Of A New Patent Market 9 Hous. Bus. & Tax L.J. 445 (2009) (The current state of affairs shows that the patent licensing market strongly favors larger corporations over smaller ones, enabling the larger corporations to reap much of the market opportunities and benefits while limiting them to smaller patentees).

[64] Roger B. Andewelt, Practical Problems In Counseling And Litigating: Analysis Of Patent Pools Under The Antitrust Laws 53 Antitrust L.J. 611 (October 11, 1984/October 12, 1984) (Pools typically contain restrictions on those who join the pool by contributing patents and/or those who take licenses under the pooled patents).

[65]Chase A. Marshall, A Comparative Analysis: Current Solutions To The Anticommons Threat 12 J. High Tech. L. 487 (2012).

[66] Ann Weilbaecher, PSY.D., Diseases Endemic in Developing Countries: How to Incentivize Innovation 18 Ann. Health L. 281 (Summer, 2009).

[67] Greenspoon and Cottle, supra n.35 identify five general types of entities that license and enforce patents: (1) Individual inventors with a single patent; (2) Individual serial inventors; (3) Non-Practicing Entities; (4) Operating companies who practice inventions acquired from others; and (5) Operating companies who practice inventions developed in-house.

[68] See, Raymond Millien and Ron Laurie, A Survey Of Established & Emerging IP Business Models 9 Sedona Conf. J. 77 (2008) discussing various models, viz. Patent Licensing and Enforcement Companies, Institutional IP Aggregators/Acquisition Funds, IP/Technology Development Companies, Licensing Agents, Litigation Finance/Investment Firms, IP Brokers, IP-Based M&A Advisory Firms, IP Auction Houses, On-Line IP/Technology Exchanges, Clearinghouses, Bulletin Boards, and Innovation Portals, IP-Backed Lending, Royalty Stream Securitization Firms, Patent Rating Software and Valuation Services, University Technology Transfer Intermediaries, IP Transaction Exchanges & Trading Platforms/IP Transaction Best Practices Development Communities, Defensive Patent Pools, Funds and Alliances, Technology/IP Spinout Financing, and Patent-Based Public Stock Indexes.

[69] Richard J. Gilbert, Deal or No Deal? Licensing Negotiations In Standard-Setting Organizations 77 Antitrust L.J. 855 (2011).

[70] Gilbert, supra n.5

[71] Merges, Contracting into Liability Rules, supra n.3.

[72] Alan Devlin, Standard-Setting And The Failure Of Price Competition 65 N.Y.U. Ann. Surv. Am. L. 217 (2009) citing Brulotte v. Thys Co., 379 U.S. 29, 33 (1964).

[73]Doug Lichtman, Understanding The Rand Commitment 47 Hous. L. Rev. 1023 (2010).

[74] Peter N. Detkin, Leveling The Patent Playing Field 6 J. Marshall Rev. Intell. Prop. L. 636 (Summer, 2007).

[75] Lee, infra n.57.

[76] Kelce Wilson, The Four Phases of Patent Usage 40 Cap. U.L. Rev. 679 (Summer, 2012).

[77]Gavin D. George, What is Hiding in the Bushes? eBay's Effect on Holdout Behavior in Patent Thickets, 13 Mich. Telecomm. Tech. L. Rev. 557 (2007).

[78] Id.

[79] Id

[80]Daniel R. Cahoy and Leland Glenna, Private Ordering and Public Energy Innovation Policy 36 Fla. St. U.L. Rev. 415 (Spring, 2009).

[81] Gilbert, supra n.5; See for example, Merges, Contracting into Liability Rules, supra n.3 describing how in the airplane cross-licensing agreement, it provides that a board of arbitrators may decide in any case what reward should be paid to individual patent owners and this is based not upon the official determination of patentability by the Patent Office, but upon the unofficial determination of the importance of the invention by a board of arbitrators.

[82] See Andewelt, supra n.64 (The scope and variety of patents included vary considerably from pool to pool. Some pools are limited to patents covering a single commercial device. Others contain numerous and diverse patents relating to different devices in different markets).

[83] See, Scala, supra n.53 discussing how the non-exclusive character of a license is particularly important for those firms holding patents whose full utility is unascertainable at the time of the formation of the pool.

[84] Dustin R. Szakalski, Progress In The Aircraft Industry And The Role Of Patent Pools And Cross-Licensing Agreements 2011 UCLA J.L. & Tech. 1 (Spring 2011).

[85] Ed Levy, et. al, Patent Pools And Genomics: Navigating A Course To Open Science? 16 B.U. J. SCI. & TECH. L. 75 (Winter, 2010).

[86] Id.

[87] Ted Hagelin, Technology and Legal Practice Symposium Issue: Valuation of Intellectual Property Assets: An Overview 52 Syracuse L. Rev. 1133 (2002) (The cost method of valuation measures the value of an asset by the cost to replace the asset with an identical or equivalent asset. The assumption underlying the cost method of valuation is that the cost to purchase or develop a new asset is commensurate with the economic value that the asset can provide during its life).

[88] Id. (The market method values an asset based upon comparable transactions between unrelated parties).

[89] Id. (The income method values an asset based upon the present value of the net economic benefit (net future income stream) expected to be received over the life of the asset).

[90] Sannu K. Shrestha, Trolls Or Market-Makers? An Empirical Analysis Of Nonpracticing Entities 110 Colum. L. Rev. 114 (January, 2010).

[91]Id.

[92]Colleen V. Chien, From Arms Race to Marketplace: The Complex Patent Ecosystem and Its Implications for the Patent System 62 Hastings L.J. 297 (December, 2010).

[93] Id.

[94]R. Justin Koscher, A Patent Pool's White Knight: Individual Licensing Agreements And The Procompetitive Presumption 20 DePaul J. Art Tech. & Intell. Prop. L. 53 (Fall, 2009).

[95] Geradin and Layne-Farrar, supra n.45.

[96] Id.

[97] Id.

[98] Id.

[99] Id.

[100] Id.

[101] Id.

[102] Hagelin, supra n.87; also see, Geradin and Layne-Farrar, supra n.45.

[103] Id.

[104] Id.

[105] Geradin and Layne-Farrar, supra n.45.

[106] Id.

[107] Hagelin, supra n.87; also see, Geradin and Layne-Farrar, supra n.45.

[108] Geradin and Layne-Farrar, supra n.45.

[109] Malcolm T. "Ty" Meeks & Charles A. Eldering, PhD, Patent Valuation: Aren’t We Forgetting Something? Making the Case for Claims Analysis in Patent Valuation by Proposing a Patent Valuation Method and a Patent-Specific Discount Rate Using the CAPM 9 Nw. J. Tech. & Intell. Prop. 194 (Fall, 2010).

[110] Hagelin, supra n.87.

[111] Id.

[112] Geradin and Layne-Farrar, supra n.45.

[113] Hagelin, supra n.87.

[114] Id.; Meeks & Eldering, supra n.109.

[115] Hagelin, supra n.87.

[116] Id.

[117] Id.

[118] Id.

[119] Id.

[120] Id.

[121] Id.

[122] Georgia-Pacific Corp. v. U.S. Plywood Corp., 318 F. Supp. 1116 (S.D.N.Y. 1970).

[123] Daralyn J. Durie and Mark A. Lemley, A Structured Approach To Calculating Reasonable Royalties 14 Lewis & Clark L. Rev. 627 (Summer, 2010).

[124] Merges, Contracting into Liability Rules, supra n.3.

[125] Michael Mattioli, Communities Of Innovation 106 Nw. U.L. Rev. 103 (Winter, 2012).

[126] Szakalski, supra n.84.

[127] Merges, Contracting into Liability Rules, supra n.3.

[128] Mattioli, supra n.125.

[129] Szakalski, supra n.84.

[130] Gilbert, supra n.5.

[131] Carlson, supra n.13.

[132] Id.

[133] Id.

[134] Id.

[135] Lin, supra n.12.

[136] Dorothy Gill Raymond, Benefits and Risks Of Patent Pooling For Standard-Setting Organizations 16 Antitrust ABA 41 (Summer, 2002).

[137] David Serafino, Survey of Patent Pools Demonstrates Variety of Purposes and Management Structures, KEI Research Note 2007:6, Knowledge Ecology International, 4 June 2007.

[138] Id.

[139] Id.

[140] Id.

[141] Id.

[142] Id.

[143] Michael R. Franzinger, Latent Dangers in a Patent Pool: The European Commission's Approval of the 3G Wireless Technology Licensing Agreements 91 Calif. L. Rev. 1693 (December, 2003).

[144] Id.

[145] Id.

[146] Id.

[147] David Serafino, Survey of Patent Pools Demonstrates Variety of Purposes and Management Structures, KEI Research Note 2007:6, Knowledge Ecology International, 4 June 2007.

[148] Id.

[149] Id.

For more details visit https://cis-india.org/a2k/blogs/patent-valuation-and-license-fee-determination-in-context-of-patent-pools

Panaji: DKA organizes two day Konkani Wikipedia workshop

praskrishna — 2013-11-18T08:33:09Z

In order to showcase Romi Konknni on a global platform, Dalgado Konknni Akademi (DKA) organized a two day Konkani Wikipedia workshop November 16 and November 17 for Romi Konknni writers in collaboration with Centre for Internet and Society’s Access to Knowledge Programme, Bangalore.

This was published in Daijiworld.com on November 18, 2013.

The workshop which was held at Krishnadas Shama Central Library was attended by 30 Romi Konknni writers including editors of Romi Konknni periodicals.

The workshop was conducted by enthusiastic Nitika Tandon, Goa incharge and Programme Manager of Centre for Internet and Society’s Access to Knowledge Programme.

Among those who attended the Romi Konknni Wikipedia Workshop were young writers Nevena Furtado, Frank Fernandes, Venisha Fernandes, Anselmo Fernandes, tiatrist Mario Menezes, Konkani scholar and researcher Fr Pratap Naik, besides editor of ‘Gulab’ and ‘The Goan Review’ Fausto V da Costa, newly appointed editor of ‘Vavraddeancho Ixtt’ Fr Eusebio Gomes and editor of ‘Amcho Avaz’ weekly Tomazinho Cardozo.

DKA President Premanand A Lotlikar while welcoming the participants explained the importance of building up Romi Konknni Wikipedia. Treasurer Walter Menezes proposed the vote of thanks, and secretary Jose Salvador Fernandes co-ordinated the two days workshop.

For more details visit https://cis-india.org/news/daijiworld-november-18-2013-dka-organizes-two-day-konkani-wikipedia-workshop

Our Endangered Languages

subha — 2015-03-10T01:41:37Z

My op-ed (in Odia) about the endangered languages was published in the Samaja this 21st on the International Mother Language Day.

Excerpt

Even though we have hundreds of languages in India, only 22 are recognized as scheduled languages in our constitution. People speaking in the non-scheduled languages deserve all the rights to express their opinion in their native languages and stopping them would be against the freedom of expression. In most cases, the dominant class of a society represses the rest and the languages of minorities fall victim to the political and societal inequality. By UNESCO's survey, 197 Indian languages (which are part of 2471 world endangered languages) are in the verge of extinction. For migration from their original places in search of job, speaking others' languages and living in a hetero-cultural society often make aboriginals forget about their own language and cultural heritage. In this column, I have discussed about many such challenges for aboriginals to retain their native languages and some of the possibilities for external interventions to document and preserve the dying languages.

ଆମ ଦେଶରେ କେଇ ହଜାର ଭାଷା ପ୍ରଚଳିତ, ଯହିଁରୁ କେବଳ ୨୨ଗୋଟି ସମ୍ବିଧାନରେ ପାହିଆଟିଏ ପାଇଛନ୍ତି । ତେବେ ବାକି ଭାଷାମାନ ମଧ୍ୟ ଭାଷା ଓ ସେ ଭାଷାମାନ କହୁଥିବା ଲୋକଙ୍କର ଆମ ଭଳି ନିଜ ଭାଷାରେ ସାହିତ୍ୟ ରଚିବା, ଶାସନ କରିବା କିମ୍ବା ପଢ଼ିବାର ଅଧିକାର ରହିଛି । ସେ ଅଧିକାର ଛଡ଼ାଇନେବା ମାନବିକତାର ବିରୁଦ୍ଧାଚରଣ । ଅଥଚ ବର୍ଷବର୍ଷ ଧରି ଛାମୁଆ ବୋଲାଇ ଭାଷାମାନ ଅଳ୍ପ କଥିତ ଭାଷାମାନଙ୍କୁ ଏକ ପ୍ରକାର ଚାପିରଖିଛନ୍ତି । କେତେକ ଭାଷା ଏ ଚାପରୁ ମୁକୁଳି ନିଜ ପତିଆରା ଜାହିର କରିବାବେଳେ ଆଉ କେତେକ ଆମ ଆଖି ଆଗରେ ଜୀବନ୍ତ ସମାଧି ନେଇଛନ୍ତି । ଏଇ କେତେବର୍ଷ ତଳେ "ବୋଆ' ନାମକ ଆଣ୍ଡାମାନୀ ଭାଷାଟି ସେ ଭାଷାର ଶେଷ ବ୍ୟବହାରୀ ବୋଆ ଜୁନିଅରଙ୍କ ଦେହାନ୍ତ ପରେ ଲୋପ ପାଇଗଲା । ମିଳିତ ଜାତିସଂଘର ରିପୋର୍ଟ ଅନୁସାରେ ୧୯୭ ଭାରତୀୟ ଭାଷା ସମେତ ଜଗତର ୨୪୭୧ ଗୋଟି ଭାଷା ଧରାରୁ ଲିଭିବା ଉପରେ । ତେବେ ଏ ଭାଷା ସବୁ ଲିଭିଗଲେ ଏ ଜଗତ କ'ଣ କ'ଣ ନ ହରେଇବ ସତେ? ଭାଷାଟିଏ ଏକ ଜନସମାଜ ଓ ସଭ୍ୟତାର ଦୁଆରମୁହଁ । ଏକ ସମାଜର ଚଳଣି, ଚିନ୍ତା, ଚେତନା, ବିଧି ବ୍ୟବହାର, କଳା-କୌଶଳ ଓ ବାକି ସବୁକିଛି ଭାଷା ମାଧ୍ୟମରେ ସେ ସମାଜରେ ଆଗକୁ ବଞ୍ଚେ ଆଉ ସମାଜ ବାହାରକୁ ଯାଏ । ଯା'ର ଭାଷାଟି ଯେଡ଼େ ଦମ୍ଭିଲା, ସେ ବାହାର ସମାଜରେ ସେତେ ପରିଚିତ । ଓଡ଼ିଆ ଉଇକିାଠାଗାର ପାଇଁ ଭୁବନେଶ୍ୱରର କିସ୍‍ଠାରେ ଓଡ଼ିଶାର ୬୨ଟି ଜନଜାତି ପିଲାଙ୍କ ସଙ୍ଗେ ମିଶି ତିନି ମାସ ଧରି କାମ କରିବାର ଅନୁଭୂତିରୁ ଲେଖକ ଜୋରଦେଇ କହିାରନ୍ତି ଯେ ଆଦିବାସୀ ବୋଲି ଚିହ୍ନଟ କରାଯାଇଥିବା ସମାଜର ଲୋକ ଅନ୍ୟ ସାଧାରଣ ସମାଜଠାରୁ ବେଶି ବା ସମାନ ଚତୁର, ଚିନ୍ତାଶୀଳ ଓ ଉଚ୍ଚ-ବିଚାରସମ୍ପନ୍ନ । ତେବେ ସେମାନଙ୍କ ସମାଜର ବିକାଶମୁଖୀ ଦିଗଟି ତାଙ୍କ ଭାଷାର ଦମ୍ଭିଲାପଣର ଅଭାବ ସକାଶେ ଯେ ଦୁନିଆ ସାମନାରେ ପହଞ୍ଚିପାରୁ ନାହିଁ, ଏକଥା କହିବା ବାହୁଲ୍ୟ । ୧୯୫୨ ମସିହାର କଥା । ପାକିସ୍ତାନ କବଳରେ ପୂର୍ବବଙ୍ଗଳା । ରାଜନୈତିକ ଚାପରେ ପଞ୍ଜାବୀ, ସିନ୍ଧି ଆଦି ଅନେକ ଭାଷାକୁ ପଦଦଳିତ କରି ନବୀନ ଉର୍ଦ୍ଧୁଭାଷାକୁ ପାକିସ୍ତାନ ନିଜ ଜାତୀୟ ଭାଷା ଘୋଷଣା କଲାବେଳକୁ ପୂର୍ବ ବଙ୍ଗରେ ବଙ୍ଗଳାଭାଷାକୁ ଛାଡ଼ିବାପାଇଁ ସେଠାର ବଙ୍ଗାଳୀଙ୍କ ଭୀଷଣ ଅରାଜି । ବଙ୍ଗଳାଭାଷାକୁ ପୂର୍ବବଙ୍ଗର ଜାତୀୟ ଭାଷା କରିବା ଲାଗି ଢାକା ବିଶ୍ୱବିଦ୍ୟାଳୟ ଓ ମେଡ଼ିକାଲ କଲେଜରେ ପଢ଼ୁଥିବା ଅନେକ ଛାତ୍ରଙ୍କ ଦେଇ ତେଜିଲା ଜନଆନେ୍ଦାଳନ । ଫେବୃୟାରୀ ୨୧ ତାରିଖ ଦିନ ପୁଲିସ ଗୁଳିରେ ଆହୁତି ଦେଇଥିଲେ ଏ ପଢ଼ାଳିଗଣ । ଦାବି ଥିଲା ନିଜ ଭାଷାକୁ ଛାଡ଼ି ବିଦେଶୀ ଉର୍ଦ୍ଧୁ ଭାଷା ଆଦରିବେ ନାହିଁ । ଜଗତରେ ଭାଷା ପାଇଁ ଏ ପ୍ରାଣବଳି ବିରଳ । ଆଜି ବଙ୍ଗଳାଭାଷା ଜଗତର ୨୦ଟି ଛାମୁଆଁ ଭାଷା ଭିତରେ ଗୋଟିଏ ହେବାପାଇଁ ଏ ଥିଲା ନିଅଁପୋତା । "ଭାଷାସବୁ ଭାଷାଙ୍କୁ ମାରନ୍ତିନି; ଭାଷାଭାଷୀମାନେ ମାରନ୍ତି' କହିଥିଲେ ,ସାଲିକିକ ମୁଫଉଇନ (ଜଣାଶୁଣା ଭାଷାବିଦ୍‍) । ଅନେକ ଡରନ୍ତି ଆଜି ଜିଇଥିବା ୬,୭୦୦ଭାଷା ମରିମରି ଆଉ ଶହେବର୍ଷ ପରେ ୨୦୦ ହୋଇସାରିଥିବ । ଭାଷା ତଳେ ଭାଷାର ସମାଧି ଲଭିବାର ମୂକସାକ୍ଷୀ ନିକଟ ଅତୀତ । ଅନେକ ଭାଷା ରାଜଭାଷା, ରାଜନୈତିକ ପୃଷ୍ଠପୋଷକତା ପାଇଥିବା ଭାଷାର ମଙ୍ଗ ଧରିଥିବା ମୁଣ୍ଡିଆଳମାନଙ୍କ ଅଦଉତିରେ ମୁଣ୍ଡଟେକି ଭବିଷ୍ୟତର ଆଲୋକ ଦେଖିାରିନାହାନ୍ତି । ଅଳପ ଧନ ପାଇଁ ବିକଳମନ ଘର ଛାଡ଼ି ବିଦେଶ ଦାଦନ ଯାଏ । ଆଉ ବିଦେଶର ପାଣି ଲାଗିଗଲେ ନିଜ ଲୋକ, ନିଜ ଭାଷା, ନିଜ ଚଳଣିସବୁ ଇଚ୍ଛାରୁ ହେଉ କି ଅନିଚ୍ଛାରୁ ହେଉ ଦୂରେଇ ଯାଏ । ପିଲାଏ ଅଜା କୋଳେ ବସି ବୁଢ଼ାଚକୁଳି ଖାଇପାରନ୍ତି ନାହିଁ କି ଆଈର ଉଷୁମ ପଣତ ଘୋଡ଼ିହୋଇ ବୁଢ଼ୀ ଅସୁରୁଣୀ ଗପ ଶୁଣିବାକୁ ପାଆନ୍ତି ନାହିଁ । ଆଦିବାସୀ ବୋଲି ସମାଜ ଯେଉଁମାନଙ୍କୁ ଗୋଟେ କଣକୁ ଠେଲିଦେଇଛି ଅୟୁତ କାଳରୁ, ସେମାନେ ଯେ ନାନାଦି ଭାଷାରେ କଥାବାର୍ତ୍ତା କରନ୍ତି ତାହା ଅନେକଙ୍କୁ ଅଗୋଚର । ଭାଷାଟିଏ ଚିରକାଳ ବୋଲି ବା କଥିତ ଭାଷା ହୋଇ ରହେନାହିଁ । ତା'ର ଲିପି ଗଢ଼ା ହୁଏ, ସାହିତ୍ୟ, ଇତିହାସ ଲେଖାହୁଏ, ଲୋକେ ସେ ଭାଷାରେ ପଢ଼ାଲେଖା ଆଉ ଶାସନ କରନ୍ତି । ତେବେ ସବୁ ଭାଷା ପାଇଁ ରଘୁନାଥ ମୁର୍ମୁମାନେ ଜନମି ନଥା'ନ୍ତି । ଓଡ଼ିଶାରେ ୬୨ରୁ ଅଧିକ ଆଦିମ ଜନଜାତି, ତାଙ୍କ ତୁଣ୍ଡରେ ୧୫ରୁ ଅଧିକ ନିଆରା ଭାଷା । ତେବେ କେବଳ ସାନ୍ତାଳୀକୁ ଛାଡ଼ି ଆଉ କୌଣସି ଆଦିବାସୀ ଭାଷା ସମ୍ବିଧାନର ୮ମ ପରିଚ୍ଛେଦରେ ସ୍ଥାନ ପାଇନାହିଁ କି ଗୋଟେ ଯୋଡ଼େ ଭାଷାକୁ ଛାଡ଼ି ଆଉ ଭାଷାରେ ବୋଧେ ବହି ଛପା ହୋଇନାହିଁ । ଏଣେ ଓଡ଼ିଆ ଓଡ଼ିଶାର ମୁଖ୍ୟଭାଷା ହୋଇ, ଶାସ୍ତ୍ରୀୟମାନ୍ୟତା ଲଭି ସୁଦ୍ଧା ଦମ୍ଭ ଧରି ନିଜର ଶାସନବ୍ୟବସ୍ଥା ଓ ଦମ୍ଭିଲା ମିଡ଼ିଆଟିଏ ନିଜେ ପ୍ରତିଷ୍ଠା କରିାରିଲା ନାହିଁ । ଦିନ ଥିଲା ଭାଷା-ସାହିତ୍ୟ ଥିଲା ଭାଷା ପାଇଁ ବାବଦୂକ । ହେଲେ ବହିର କଳେବରରୁ ବାହାରି ଭାଷା ଶାସନ, ସମ୍ବାଦ ପରିବେଷଣ, ମନୋରଞ୍ଜନର ଅନେକ ମାଧ୍ୟମ, ଗବେଷଣା ଓ ବିଜ୍ଞାନର କଥା ପରିବହନ କରିବା ଆରମ୍ଭିଲା । ଆଉ ଭାଷା ପାଇଁ ସଜ ତିଆରିବା ଲୋଡ଼ା ପଡ଼ିଲା । ଭାଷାଟି କିରି ସହଜରେ ଛପାରେ, କମ୍ପ୍ୟୁଟରରେ, ମୋବାଇଲରେ ଏବଂ ଆଉ କୌଣସି ମାଧ୍ୟମରେ ଲେଖାଯାଇପାରିବ ତା'ଲାଗି ଗହନ ମନ-ଚାଷ ଚାଲିଲା । ଓଡ଼ିଆ ସମେତ ଅନେକ ଭାରତୀୟ ଭାଷାରେ କେବଳ ସାହିତ୍ୟ-ଚାଷ ହୋଇଛି । ଭାଷା- ପ୍ରସାରର ବାକି ସଜତକ ଏ ଯାଏ ଗଢ଼ା ହୋଇନାହିଁ । ଆଜି ସମାଜ ଏତେ ତ୍ୱରିତ୍‍ ଗତିରେ ବଦଳୁଛି ଯେ, କାରିଗରୀ ଜ୍ଞାନରୁ ଆରମ୍ଭ କରି ସମ୍ବାଦ ଜାଣିବାଯାଏ ସବୁ କିଛି ଆଜିସଜ କାଲିବାସି ହୋଇଯାଉଛି । ଆଉ ଭାଷାଟିଏ ଯଦି ଏ ଗତି ସଙ୍ଗେ ତାଳମିଳାଇ ଚାଲି ନ ପାରେ, ତା'ହେଲେ ସେ ଅଲୋଡ଼ା, ଅଖୋଜା ହୋଇଯାଏ । ଅନେକ ଭାଷାଭାଷୀ ଲୋକେ ତାଙ୍କ ମୋବାଇଲ କି କମ୍ପ୍ୟୁଟରରେ ନିଜ ଭାଷାରେ ଲେଖିବା ଜାଣନ୍ତି ନାହିଁ । ଫଳରେ ସେମାନେ ଇଂରାଜୀ କିମ୍ବା ବାକି ଜଣାଶୁଣା ଭାଷାରେ ଲେଖିବାକୁ ବାଧ୍ୟ ହୁଅନ୍ତି । କିଛିିଢ଼ି ଏଇ ବାଟ ମାଡ଼ିଗଲା ପରେ ନିଜ ଭାଷାଟି ପୂରା ଅମଡ଼ାବାଟ । ଆଉ ଯେଉଁ ଭାଷା ସାଧାରଣ ଲୋକଙ୍କ ଦେଇ ଯେତେ ଅଧିକ ବ୍ୟବହାରରେ ଲାଗେ ସେ ଭାଷାର ଖାଦି ସେତେ । ଅନେକ ଆଦିବାସୀ ନିଜ ଗାଁ' ଛାଡ଼ି ସହରରେ ଆସି ବିଶାଳ ଜନସାଗରରେ ମିଶିଗଲାପରେ ନିଜ ମାଟିର ଗନ୍ଧ ତାଙ୍କ ପିନ୍ଧାଲୁଗାରୁ ଯେ ଆଉ ବାହାରୁ ନାହିଁ ଏକଥା କହିବା ବାହୁଲ୍ୟ । ତେବେ ରାଜ୍ୟ ବା ଦେଶରେ ଭିନ୍ନଭିନ୍ନ ଭାଷାଭାଷୀ ଲୋକଙ୍କ ଭିତରେ ଭାବ ଦିଆନିଆ ଲାଗି ଏକ ମିଶାମିଶି ଭାଷା ବା "ଲିଙ୍ଗୁଆ ଫ୍ରାଙ୍କା' ମଧ୍ୟ ଲୋଡ଼ା । ଓଡ଼ିଆର ପୁରୁଣା ରୂଟି ଯଦି ଆମେ ଖୋଜି ପାଇବା, ତେବେ ସେ ବତେଇବ ସମଗ୍ର କଳିଙ୍ଗ ଭୂଖଣ୍ଡରେ କଥିତ ଭାଷାର ରୂା ଶାସନର ଭାଷା ଥିଲା ସେ ଭାଷା । ଆଉ କଳିଙ୍ଗ ଲମ୍ବିଥିଲା ଗଙ୍ଗାରୁ ଗୋଦାବରୀଯାଏ । ଏଡ଼େ ବଡ଼ ଭୂଖଣ୍ଡରେ ଲୋକେ ଭିନ୍ନଭିନ୍ନ ଭାଷାରେ କଥା ହେଉଥିବେ ସତ । ହେଲେ ସେ ସବୁ ଆଞ୍ଚଳିକ ଭାଷାରୁ ଶବ୍ଦ, ବ୍ୟାକରଣ ଆହରି ମିଶା ଭାଷାଟିଏ ଗଢ଼ା ହୋଇଥିଲା । ଆଜି ବାଲେଶ୍ୱରରୁ ରାୟଗଡ଼ା ଯାଏ ଚାଲିଗଲେ ଓଡ଼ିଆର ଅନେକ ରୂ ଆଖିରେ ପଡ଼େ । ହେଲେ ଆମେ କ'ଣ ଅହମିୟା ଆଉ ବଙ୍ଗଳା ବୁଝିାରୁନା? ନିଜକୁ ପଚାରିଲେ ଉତ୍ତରଟି ହୁଁ ଆସିବ । ଛତିଶଗଡ଼ି କି ମୈଥିଳୀ ପୁଣି କେତେ ନିଜର ନିଜର ଲାଗେ । ଲେଖକ ବଙ୍ଗଳାଦେଶର ଅନେକଙ୍କ ସଙ୍ଗେ ଓଡ଼ିଆ-ବଙ୍ଗଳା ମିଶେଇ କଥା ହୋଇଛି । ହେଲେ ବ୍ୟାପକ ଭାବେ ଦେଖିଲେ ବିହାର, ଝାଡ଼ଖଣ୍ଡ, ବଙ୍ଗଳାରୁ ଓଡ଼ିଶା ଆସୁଥିବା ହଜାର ହଜାର ଛାତ୍ର, ନା ଓଡ଼ିଆ ଶିଖନ୍ତି ନା ନିଜ ଭାଷାରେ ଏଠା ଲୋକଙ୍କ ସଙ୍ଗେ କଥା ହୁଅନ୍ତି । ସେମାନେ କଥା ହୁଅନ୍ତି ହିନ୍ଦୀରେ । ଏଇଠି କଥା ଆସେ ଭାଷାର ଖାଦି କଥା । ଆମ ଦେଶରେ ଓଡ଼ିଆ, ବଙ୍ଗଳା, ଅହମିୟା ବା ଆଉ କେଉଁ ଭାଷାର ଛାମୁଣିଆ ନାହିଁ । ହେଲେ ରହିଛି ହିନ୍ଦୀ ଭଳି ଏକ ନୂଆ ଭାଷାର । ୪୦ରୁ ଅଧିକ ଭାଷା ହିନ୍ଦୀର ଉପଭାଷା ଭାବେ ଆଜି ଜଣା । ହେଲେ ସେ ଭାଷାସବୁ ନିଆରା, ହିନ୍ଦୀଠାରୁ ମଧ୍ୟ ପୁରୁଣା । ରାଜନୀତିର ବାଜି ଚଳିଲେ କିସ ଅବା ଘଟେ, ତେବେ ସାଲିକିକ ମୁଫଉଇନଙ୍କ ସେଇ ଉକ୍ତିଟି ଏଇଠି ପୁଣି ଆସେ ଯେ ଭାଷା ନୁହେଁ, ଲୋକେ ଭାଷାକୁ ମାରିଦିଅନ୍ତି । ଯଦି ଲୋକେ ନିଜ ଭାଷାକୁ ସାହିତ୍ୟର ଚଉହଦୀରୁ ଶାସନ, ଗଣମାଧ୍ୟମ, ଶିକ୍ଷାଦୀକ୍ଷା, ଧର୍ମ, କଳା, ବିଜ୍ଞାନ ବା ଚାଷବାସ ଯାଏ ଲମ୍ବାଇ ପାରିଥା'ନ୍ତେ, ତା'ହେଲେ ଇତିହାସର ଚକ ଓଲଟା ଗଡ଼ିଥା'ନ୍ତା । ତେବେ ସାଧାରଣ ଲୋକେ ଏକାମ ଯେଡ଼େ ଦହଗଞ୍ଜ ହୋଇ କରି ନ ପାରନ୍ତି, ସରକାର ଓ ପାରିବା ଲୋକେ ଏ କାମ ତେଡ଼େ ସୁରୁଖୁରୁରେ କରିାରନ୍ତି । ରାଜନୀତିର ପଶାଖେଳରେ ଜିତାପଟ ହୋଇଥିବା ଲୋକେ କେମିତି ନିଜ ଭାଷାକୁ ନାହିଁରୁ କାହିଁ କରନ୍ତି ତାହା ଇଂରେଜଙ୍କଠାରୁ ଶିଖିବା କଥା । ଆଜି ଇଉନାଇଟେଡ଼ କିଙ୍ଗଡମ୍‍ ସିନା ପତିଆରା ହରାଇ ସାରିଲାଣି, ହେଲେ ପତିଆରା ଥିବାବେଳେ ନୂଆ ଅପ୍ରାକୃତିକ ଭାଷାଟେ ତିଆରି ସେମାନେ ଯେ ସାରା ଦୁନିଆରେ ନିଜ ପତିଆରା ରଖିାରିଲେ ତାହା କ'ଣ କମ୍‍ ବଡ଼ କଥା? ତେବେ ଇଂରାଜୀ ଭାଷା ତିଆରିବା ଥିଲା ଗୋଟେ କଳା, ଲାଟିନ ଅକ୍ଷରରେ ଅନେକ ଇଉରୋପୀୟ ତଥା କିଛି ଓରିଏଣ୍ଟାଲ ଶବ୍ଦ ମିଶାଇ ଏ ଭାଷା ତିଆରିବାବେଳେ ଅନେକ ଦେଶରୁ ମୂଳଶବ୍ଦ ସବୁ ଆହରିଥିଲେ ସେମାନେ । ଆମ ଦେଶରେ ଏ ଯାଏ ଏ କାମଟି ହୋଇପାରିଲା ନାହିଁ । ସଭିଙ୍କୁ ସମ୍ମାନ ଦେଇ ତାଙ୍କ ଭାଷାକୁ କିଛିକିଛି ଆହରି ଭାଷାଟିଏ ତିଆରିଲେ ସିନା ସେ ସବୁରି ତୁଣ୍ଡରେ ପଇଟନ୍ତା । ଖାଲି ଜୋର ଜବରଦସ୍ତି ଗୋଟେ ଭାଷା ପଛରେ ପୁଳାପୁଳା ପଇସା ଖରଚ କଲେ ସେ କି ଜନାଦର ଲଭିବ? ତେବେ ଭାଷା କ୍ଷେତ୍ରରେ ଦୁଇଟି ଜିନିଷ ଜଳଜଳ ଦିଶେ । ଆଜି ଯାହାର କାଟତି ଅଛି ସେ ଯେ କାଲି ରହିବ ତା' କହିବା ଦୁରୂହ । ବ୍ରିଟିଶ ଇଂରାଜୀ ଆଦି ଖୁବ୍‍ କମ୍‍ ଅଞ୍ଚଳରେ କଥିତ । ହେଲେ ସେ ଥିଲା ମୂଳ ଇଂରାଜୀ । ଗବେଷଣା ହେଉଥିଲେ ହେଁ ମୂଳ ଭାଷାଭାଷୀଙ୍କ ତୁଣ୍ଡରେ ବୋଲାଯାଉ ନ ଥିଲେ ଭାଷାଟି ଧୀରେଧୀରେ ମରିଯାଏ । ୨୦୧୦ ମସିହାରେ ବୋଆ ସିନିଅରଙ୍କ ଦେହାନ୍ତ ପରେ ଗ୍ରେଟ ଆଣ୍ଡାମାନୀ ଭାଷାଟି ତାଙ୍କ ସଙ୍ଗେ ମରଣ ଲଭିବା ଭଳି ଦୁଃଖଦ ଘଟଣା ଏହାର ମୂକସାକ୍ଷୀ । ଆଜି ଅଧିକ ହେଉ କି ଅଳପ, ସବୁରି ଭାଷା ପାଇଁ ଲୋଡ଼ା କିଛି ଦରକାରୀ ସଜ । ନିଜ ଭାଷାରେ ମୋବାଇଲ ଓ କମ୍ପ୍ୟୁଟରରେ ଲେଖାପଢ଼ାର ସୁବିଧା, ସାରା ଜଗତରେ ଜଣାଶୁଣା ବିଭିନ୍ନ ମନୋରଞ୍ଜନର ସମକକ୍ଷ ଉପାଦାନ, ଆନ୍ତର୍ଜାତିକ ମାନର ପାଠପଢ଼ା ଆଉ ଶେଷରେ ଭାଷାକୁ ଶାସନର ଭାଷା କରିାରିଲେ ଯେ ସେ ଭାଷାରେ ଜୀବନ ଲାଗିବ । ଆଉ ଏ ସାରାଜଗତ ପାଇଁ ଗୋଟେ ନୁହେଁ ଅନେକ ଭାଷା ଲୋଡ଼ା, ନିଜ ମଣିଷଙ୍କ କଥା, ତାଙ୍କ ଚଳଣି ଆଉ ଜନଜୀବନର ଗାଥା ଆଉ କେଉଁ ଭାଷା କି ସରସେ ଲେଖିହେବ?


Above: A scanned version of the article originally published by the Samaja

For more details visit https://cis-india.org/openness/blog-old/our-endangered-languages

Otago Southland are the Coolest

praskrishna — 2015-12-15T08:06:13Z

LIANZA Otago Southland are delighted to announce our speaker, Subhashish Panigrahi (@subhapa), from the Centre for Internet and Society’s Access To Knowledge programme, will be tuning in via the interwebs from India to share his vision of Guerilla GLAM, describe case studies of these initiatives in India, as well as touching on the creation of documentaries, learning resources and promotional material from acquired content.

This was published by Library and Information Association of New Zealand. The submission was accepted for Wikimania 2015.

Subha believes “this presentation will be useful for those who can mobilize a small team of volunteers equipped with digital camera, access to local cultural institutions and some level of expertise of curating data.”

Read more about Subha and the abstract for his talk here https://blogs.otago.ac.nz/openotago/2015/10/06/how-to-do-guerilla-glam/

Please share this event with your other GLAM networks!

Event Details

How to do Guerilla GLAM / Subhashish Panigrahi @subhapa <https://twitter.com/subhapa>Tuesday 20 October, 3.00pm NZDT In Dunedin: Conference Room 3, 1st floor University of Otago Central Library, 65 Albany Street, Dunedin<http://www.otago.ac.nz/library/locations/#central>

Online: via Adobe Connect<https://connect.otago.ac.nz/sarah/?launcher=false>. [No software required, just click the link and sign in as a guest. Please ensure you are logged in before 3pm and have read the participant notes on screen] The session will be recorded.

Pre - presentation preparation - entirely optional

If you’re planning on attending Subhashish’s webinar and want to know more about using Wikipedia in your GLAM, you might be interested in watching this first.

This blog post from Alex Stinson<https://twitter.com/sadads> from the Wikimedia Foundation<https://wikimediafoundation.org/wiki/Home>, entitled "Librarian as Teacher: ways to use Wikipedia"<http://interlibnet.org/2015/10/07/librarian-as-teacher-ways-to-use-wikipedia/>, specifically regarding her discussion about GLAM-wiki
A recording of the September webcast by Phoebe Ayers<http://if%20you%E2%80%99re%20planning%20on%20attending%20subhashish%E2%80%99s%20webinar%20and%20want%20to%20know%20more%20about%20using%20wikipedia%20in%20your%20glam%2C%20you%20might%20be%20interested%20in%20watching%20this%20first./>, a librarian at MIT and former member of the Wikimedia Foundation’s Board of Trustees about the basics of editing Wikipedia especially for Librarians.https://join.onstreammedia.com/play/sparc/7087-edit-a-thon-training-09.30

How to do Guerilla GLAM

Open Access Week (19-25 October) is fast approaching and we have a number of events in store – one I’m keen to tell you about now is a webinar we have planned entitled, “How to do Guerilla GLAM”.

Our speaker, Subhashish Panigrahi @subhapa, from the Centre for Internet and Society’s Access To Knowledge programme will be tuning in via the interwebs from India to share his vision, case studies of Guerilla GLAM initiatives in India, as well as touching on the creation of documentaries, learning resources and promotional material from acquired content.

GLAM = Galleries Libraries Archives and Museums
Guerilla Glam = “getting the most out from cultural institutions where collaboration and long term engagement has high cost and time implications.”

Details of the event

How to do Guerilla GLAM / Subhashish Panigrahi @subhapa
Tuesday 20 October, 3.00pm NZDT
Conference Room 3, 1st floor University of Otago Central Library, 65 Albany Street, Dunedin
Or join us via Adobe Connect. [Please ensure you are logged in before 3pm and have read the participant notes on screen]

We will be recording this session and Subha has given permission for us to make the recording and his slides available here on the blog. We encourage participants to ask questions via the chat facility in Adobe Connect, or to tweet questions using #OAWeek #AOASG.

Abstract
Building partnership with galleries, libraries, archives and museums (collectively known as GLAM institutions) is a great way of funneling the cultural content acquisition and bringing open access to such valuable data. But it is not that easy given the complications each country has in terms of formal agreement, organizational framework, etc. This presentation will detail about the learning curve of institutional partnership building, leveraging personal contacts in small scale GLAM projects and bringing in several indie-projects to cut implication cost, and execute low-cost models.

During this presentation I will present two case studies of contrasting nature: India’s first GLAM project at the National Crafts Museum, New Delhi, and various small-scale collaborative projects. Where the first one would have learning from the six months long project, the second one will draw inspirations from many initiatives that have really no cost or low cost implication and less implementation time involved.

At times, institutional collaborations become liabilities and labor intensive with low Return on Investment. Training staff and implementing GLAM projects are not always easy and retaining contributors is a challenge. Alternatively Guerrilla GLAM could be thought of when having a Wikimedian-in-Residence is not feasible. This presentation will be useful for those who can mobilize a small team of volunteers equipped with digital camera, access to local cultural institutions and some level of expertise of curating data.

Making documentaries and building narratives based on acquired content to creating learning resources and promotional materials will be another aspect of this presentation. Building partnerships with many federal or private institutions also needs sustained long-term engagement and volunteer time is not always enough to devote for a long term GLAM project. This presentation will detail about going the guerrilla way to acquire data from GLAM institutions. This will involve low cost models, leveraging various factors, and getting the most out from cultural institutions where collaboration and long term engagement has high cost and time implications.

About Subhashish

Subhashish Panigrahi is an India based educator, author, blogger, Wikimedian, language activist and free knowledge evangelist. Earlier with Wikimedia Foundation’s India Program and currently at the Centre for Internet and Society‘s Access To Knowledge program, Panigrahi works on building partnership with universities, language research and GLAM (Gallery, Library, Archive and Museums) organizations for bringing more scholarly and encyclopedic content under free licenses, designing outreach programs for South Asian language Wikipedia/Wikimedia projects and communities.

The other hats he wears are as the Editor for Global Voices Odia, Community Moderator of Opensource.com, and Ambassador for India in OpenGLAM Local, Juror of 2015 American Alliance of Museum Muse Awards, and member of OER 2016 Standing Committee. He has presented in various Indian and international conferences on the free knowledge, GLAM and Open Access movement. Panigrahi has authored of “Rising Voices: Indigenous language Digital Activism” in Digital Activism in Asia Reader and was winner of the 2015 Opensource.com People’s Choice Award. Subhashish is available on Twitter at @subhapa and over email at psubhashishatgmaildotcom for more discussion.

For more details visit https://cis-india.org/openness/news/guerilla-glam

OSOD 2013: International Workshop on Open Science and Open Data

praskrishna — 2013-10-22T11:02:49Z

Nehaa Chaudhari was a panelist at the International Workshop on Open Science and Open Data, 2013, held on October 07, 2013 at the Indian Statistical Institute. She gave a presentation on "Government Copyright and the Open Access Conundrum"

Parts of this presentation draw from Pranesh Prakash's views on Government Copyright. Special thanks to Bhairav Acharya for his valuable inputs and feedback.

Documentation Research and Training Centre, Indian Statistical Institute along with Creative Commons USA held this workshop. The main objective of this workshop was to bring together international experts, practitioners and advocates of Open Access to information to discuss and contemplate on key issues contributing to Open Science. The workshop also aimed to serve as a platform for institutions, academicians, scientists and researchers interested in Open Science to exchange thoughts and processes 'How To' create Open content within legal framework.

Key Speakers

Puneet Kishor (Policy Coordinator for Science and Data, Creative Commons)
ARD Prasad (DRTC, Indian Statistical Institute, India)
Devika P. Madalli (DRTC, Indian Statistical Institute, India)
Giridhar Manepalli (CNRI, USA)
Usha Munshi (Indian Institute of Public Administartion, India)
Subbiah Arunachalam (Information Scientist, India)
Sridhar Parishetty (Centre for Inclusive Governance, Bangalore)
Nehaa Chaudhari (Centre for Internet and Society, Bangalore)
R. Prabhakar (India Biodiversity Portal, Bangalore)
Nisha Thompson (Arghyam)
Yashas Shetty (Srishti, Centre For Experimental Media Arts, Bangalore)

Read the agenda here
Download Nehaa's presentation titled Government Accessibility and Copyright Conundrum here

For more details visit https://cis-india.org/news/international-workshop-open-science-and-open-data

Orientation programme, Wikipedia workshop & Action Plan meeting in PAH Solapur University

subodh — 2019-08-05T15:21:16Z

CIS-A2K representatives visited PAH Solapur University, Solapur (PAHSUS) to finalise the action plan and MoU for the year 2019-20.

The collaborative project was launched with orientation programme and Wikipedia workshop for the selected students and faculty on 18 & 19 July 2019. The detailed discussions with Vice Chancellor, Registrar, Head of the departments, faculty and administrative staff were held to finalise the terms of collaboration, operational framework and action plan for the academic year. The deliberations are given in the following sections.

Collaborative open knowledge creation by PAHSUS and CIS-A2K

The MoU was done because CIS and PAHSUS have found common cause in free and open knowledge generation and dissemination. This MoU stipulates the scope of collaboration between these two entities and terms and conditions of conducting the collaborative activities.

Terms of Collaboration

To promote content generation in Indian language, especially Marathi Wikimedia projects (projects such as Wikipedia, Wikisource, Wikimedia Commons, Wikidata etc. https://www.wikimedia.org/) among the institutions under University affiliation.
To organise awareness programs and training workshops to achieve this. For consistent and dedicated efforts, mechanism of subject experts and coordinators will be developed.
To integrate the academic assignments, projects etc. with knowledge building in Wikimedia projects e.g. Wikipedia, Wikisource, Wikidata, Wikimedia Commons.
To facilitate content donation in the form of published thesis, University publications to free library - Wikisource. To write well referenced articles based on these research work.
To develop platform in University for outreach programs on Digital knowledge, Language & technologies, FOSS, Unicode etc. To involve other stakeholders in knowledge business like publishers, writers, printers, designers in these programs.
To take lead in accommodating open knowledge concepts, locally relevant content generation practices while designing the courses.

Operational Framework

A core team shall be constituted by representatives of this MoU for realization of the objectives of this MoU.
The core team shall prepare an action plan with specific goals for achieving the objectives of the proposal and the MoU. They shall take into consideration the academic, commercial and legal aspects of this co-operation. The action plan or work plan may be modified or improved during the academic year according to the needs-assessment of the students, and the core team’s analysis.
The proposed action plan shall be reviewed and approved by representatives of both parties.
The core team shall be supported and authorised by the University Administration to take all necessary actions to implement the action plan in an effective, speedy and dynamic manner.
Program expense sharing shall be decided on a case to case basis by the core team.

Some highlights of proposed action plan

Each department of PAHSUS will facilitate creation of 10 Wikipedia articles related to their course by the students. This activity will be taken up in first semester. The articles will be created on user sandbox or on Google Docs. After review, the articles will be moved to Wikipedia mainspace.
The projects on museum, library and archives will be taken up in the second semester by the groups of students. The photos and other media will be uploaded on Wikimedia Commons and other sister projects after analysing encyclopedic quality of these content.
PAHSUS will issue a circular for selected affiliated colleges in Maharashtra to participate actively in free knowledge creation and the Wikimedia movement. The technical support will be arranged by both the parties.
The digitisation of copyright free books in the library will be taken up under ‘Earn & Learn Scheme’. The books will be uploaded in free library - Wikisource.

Orientation Programme

The orientation programme on Wikimedia projects was conducted on 18 July for faculty and students from 4 departments. The objective was to give perspective of content generation in Wiki projects along with academics. Marathi Wikipedian Arvind Bagale shared his Wiki experiences in this session. Around 50 participants attended this session.

Wikipedia Workshop

The Wikipedia workshop for selected students of 3 departments and faculty was organised on 19 July 2019 in the Mass Communication department. Total 15 participants actively contributed to Wikipedia & Commons. Marathi Wikipedian Arvind Bagale facilitated the training process.

Media Coverage

News in Lokmat Newspaper

See the report on Wikipedia page

For more details visit https://cis-india.org/a2k/blogs/subodh-kulkarni-july-19-orientation-programme-wikipedia-workshop-and-action-plan-meeting-in-pah-solapur-university

Orientation Program at Kannada University, Hampi

Gopalakrishna A. — 2017-10-24T13:01:25Z

A Kannada Wikipedia Orientation Program was conducted at Kannada University Hampi on 31 August and 1 September 2017.

A Kannada Wikipedia orientation program was conducted at the Kannada University in Hampi recently wherein the participants where introduced to the various Wikimedia projects in Kannada. The participants were doctoral research students of the Dravida Samskruti Adhyayana Kendra of which 5 were male and 1 female.

Working on Wiktionary, the students added 3300 words to their sandboxes, which will be moved to the main space on Wiktionary.

The meta page of the event can be found here.

For more details visit https://cis-india.org/a2k/blogs/orientation-program-at-kannada-university-hampi

Orientation & Training session of Jalbiradari Activists

Subodh Kulkarni — 2017-04-16T11:30:24Z

An Orientation & Training session of Jalbiradari Activists was held on 4 January, 2017

A Marathi Wikipedia orientation and training session was conducted for Jalbirdari activists on 4 January, 2017 at the Kokale District, Sangli, Cooperative Society Hall. The event was keeping in line with CIS-A2K's attempts at engaging with communities of interest. The Jalbiradari water conservationists were introduced to Wikipedia and its projects. They were given an orientation on Marathi Wikipedia as a knowledge resource and encouraged to write about their village, water and environmental issues on Marathi Wikipedia.

The participants were involved in an open interaction with the community on local issues and cultivation and preservation of local knowledge. With 30 members taking part in the three-hour-long event, four articles were created and edited on Marathi Wikipedia.

The meta page for the event can be found here.

For more details visit https://cis-india.org/a2k/blogs/orientation-training-session-of-jalbiradari-activists