Centre for Internet and Society

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

rohini — 2015-09-27T11:51:50Z

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

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

Prof. Eben Moglen on FOSS and entrepreneurship

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

Prof. Eben Moglen on Digital India

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

Keith Bergelt on the Open Invention Network

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

Panel Discussion

Patent Wars and Innovation

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

Prof. Eben Moglen on Facebook:

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

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

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

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

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

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

rohini — 2017-09-10T15:11:38Z

Dataset of the first comprehensive and systematic analysis of 4,916 valid Statements of Working (Form 27) corresponding to 3,126 patents pertaining to mobile technology in India. Licensed CC-BY-SA 4.0.

Dataset for "Patent Working Requirements and Complex Products: An Empirical Assessment of India's Form 27 Practice and Compliance" (.xlsx)

Dataset for "Patent Working Requirements and Complex Products: An Empirical Assessment of India's Form 27 Practice and Compliance" (.ods)

The dataset has been released under the Creative Commons-Attribution-Share Alike 4.0 License (CC-BY-SA 4.0) as a part of the Pervasive Technologies project.

For the detailed methdology used for this study, refer to Methodology: Statements of Working (Form 27) of Indian Mobile Device Patents. For information on how to read this dataset, refer to the section "Detailed legend and process of logging the results" in the methodology.

A paper titled Patent Working Requirements and Complex Products: An Empirical Assessment of India's Form 27 Practice and Compliance authored by Prof. Jorge Contreras and Rohini Lakshané, published in July 2017 presents an analysis of the dataset.

The patents chosen to be included in this dataset are a subset of the patents found in another study by the same authors, Patents and Mobile Devices in India: An Empirical Survey [PDF]. The dataset for the patent landscaping study is available under the CC-BY-SA 4.0 license.

License terms

Data is provided AS-IS, without warranty as to accuracy or completeness.

All uses of the accompanying data and modifications and derivatives thereof must contain the following attribution: "Data provided by Jorge L. Contreras and Rohini Lakshané (2017)"

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

Report: Global Intellectual Property Convention 2015

rohini — 2015-06-21T13:36:18Z

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

Conference Schedule [PDF]

National IPR Policy Recommendations [PDF]

Harshvardhan Lale, Price Waterhouse Coopers (PWC)

Digital piracy in India

Special 301 Report:

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

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

Video piracy:

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

Broadcast piracy:

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

Online piracy:

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

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

Software piracy:

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

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

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

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

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

Omesh Puri, Senior Associate, LexOrbis

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

Copyright enforcement challenges in the digital world:

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

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

Why are John Doe orders so popular?

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

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

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

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

Whose identities fall within the scope of action?

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

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

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

Challenges:

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

James Martin, Director, Fieldfisher

Online Infringement In the European Union

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

The Svensson case:

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

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

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

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

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

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

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

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

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

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

Bestwater ruling:

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

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

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

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

Database rights (AutoTrack v. GasPedaal)

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

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

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

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

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

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

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

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

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

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

What are the effects of this judgement?

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

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

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

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

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

National IP Trends

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

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

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

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

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

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

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

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

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

Dr. Stefan V. Steinbrener, Consultant, Bardehle Pagenberg

Patentability of Computer-Implemented Inventions at the EPO

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

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

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

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

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

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

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

Are computer-implemented innovations patent eligible under the EPC?

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

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

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

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

Ravi Bhola, Partner, KnS Partners

Patent Valuation and its Interplay with FRAND Terms

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

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

Ericsson v. Micromax:

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

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

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

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

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

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

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

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

What constitutes reasonableness?

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

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

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

Patents as Catalysts to Economic Growth

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

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

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

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

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

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

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

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

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

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

Questions-Answers

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

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

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

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

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

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

D.P. Vaidya (Lakshmikumaran Sreedharan)

Computer Related Inventions and Indian Patent Law

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

What are CRIs?

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

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

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

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

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

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

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

Embedded Computer-Implemented Inventions:

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

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

5G Technologies Workshop by IEEE

rohini — 2015-08-29T14:10:03Z

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

Download the programme schedule

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

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

rohini — 2018-05-06T03:51:49Z

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

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

View paper on SSRN.

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

Women's Safety? There is an App for That

rohini — 2017-01-10T02:48:34Z

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

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

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

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

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

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

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

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

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

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

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

Tweak the Make in India Recipe

rohini — 2016-06-04T04:02:01Z

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

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

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

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

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

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

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

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

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

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

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

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

Sub$-100 Phones: Browser Compatibility Tests

rohini — 2017-02-16T16:47:02Z

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

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

Research Question:

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

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

Method:

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

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

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

adb shell screencap -p $1
adb pull $1

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

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

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

Standards and capabilities tested:

Browser Network Support

HTTP/1.1
HTTP/2
SSL

Acid Tests

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

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

Image Formats

JPEG
GIF
PNG

Results

View as .ods; View as .xls

Reading the results:

User-agent string

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

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

Linux: Linux kernel

Android 4.4.2: Operating system, version number

Micromax A091: Device ID

Build/A091: Build number.

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

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

like Gecko: A browser that behaves like a Gecko browser

Chrome/34.0.1847.114: Chrome for Android browser, version number

Mobile: Either mobile browser or mobile device, or both

Safari/537.36: Apple Safari browser, version number

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

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

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

Observations:

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

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

Screenshots or photos of results:

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

Limitations:

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

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

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

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