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The Competition Law Case Against Whatsapp’s 2021 Privacy Policy Alteration
https://cis-india.org/internet-governance/blog/the-competition-law-case-against-whatsapp2019s-2021-privacy-policy-alteration
<b>Having examined the privacy implications of Whatsapp's changes to its privacy policy in 2021, this issue brief is the second output in our series examining the effects of those changes. This brief examines the changes in the context of data sharing between Whatsapp and Facebook as being an anticompetitive action in violation of the Indian Competition Act, 2002. </b>
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<h3 style="text-align: justify;">Executive Summary</h3>
<p style="text-align: justify;" dir="ltr">On January 4, 2021, Whatsapp announced a revised privacy policy through an in-app notification. It highlighted that the new policy would impact user interactions with business accounts, including those which may be using Facebook's hosting services. The updated policy presented users with the option of either accepting greater data sharing between Whatsapp and Facebook or being unable to use the platform post 15th May, 2021. The updated policy resulted in temporarily slowed growth for Whatsapp and increased growth for other messaging apps like Signal and Telegram. While Whatsapp has chosen to delay the implementation of this policy due to consumer outrage, it is important for us to unpack and understand what this (and similar policies) mean for the digital economy, and its associated competition law concerns. Competition law is one of the sharpest tools available to policy-makers to fairly regulate and constrain the unbridled power of large technology companies.</p>
<p style="text-align: justify;" dir="ltr">While it is evident the Indian competition landscape will benefit from revisiting the existing law and policy framework to reign in Big technology companies, we argue that the change in Whatsapp’s privacy policy in 2021 can be held anti-competitive using legal provisions as they presently stand. Therefore, in this issue brief, we largely limit ourselves to evaluating the legality of Whatsapp’s privacy policy within the confines of the present legal system. </p>
<p style="text-align: justify;" dir="ltr">First, we dive into an articulation of the present abuse of dominance framework in Indian Competition Law. Second, we analyze whether there was abuse of dominance-bearing in mind an economic analysis of Whatsapp’s role in the relevant market by using tests laid out in previous rulings of the CCI</p>
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<p style="text-align: justify;" dir="ltr">The framework for determining abuse of dominance as per The Competition Act is based on three factors:</p>
<p style="text-align: justify;" dir="ltr">1. Determination of relevant market</p>
<p style="text-align: justify;" dir="ltr">2. Determination of dominant position</p>
<p style="text-align: justify;" dir="ltr">3. Abuse of the dominant position</p>
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<p style="text-align: justify;" dir="ltr">In two previous orders in 2016 and 2020, CCI has held that Whatsapp is dominant in its relevant market based on several factors which we explore. These include:</p>
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<p style="text-align: justify;" dir="ltr">Advantage in user base, usage and reach,</p>
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<p style="text-align: justify;" dir="ltr">Barriers to entry for other competitors</p>
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<p style="text-align: justify;" dir="ltr">Power of acquisition over competitors.</p>
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<p style="text-align: justify;" dir="ltr">However, in both orders, CCI held that Whatsapp did not abuse its dominance by arguing that the practices in question allowed for user choice. We critique these judgments for not reflecting the market structures and exploitative practices of large technology companies. We also argue that even if we use the test of user choice laid down by the CCI in its previous orders concerning Whatsapp and Facebook, the changes made to the privacy policy in 2021 did abuse dominance,and should be held guilty of violating competition law standards.</p>
<p style="text-align: justify;" dir="ltr">Our analysis revolves around examining the explicit and implicit standards of user choice laid out by the CCI in its 2016 and 2020 judgements as the standard for evaluating fairness in an Abuse of Dominance claim.We demonstrate how the 2021 changes failed to meet these standards. </p>
<p style="text-align: justify;" dir="ltr">Finally, we conclude by noting that the present case offers a crucial opportunity for India to take a giant step forward in its regulation of big tech companies and harmonise its rulings with regulatory developments around the world.</p>
<p style="text-align: justify;" dir="ltr">The full issue brief can be found <a href="https://cis-india.org/internet-governance/whatsapp-privacy-policy-2021-issue-brief-competition-law">here</a></p>
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For more details visit <a href='https://cis-india.org/internet-governance/blog/the-competition-law-case-against-whatsapp2019s-2021-privacy-policy-alteration'>https://cis-india.org/internet-governance/blog/the-competition-law-case-against-whatsapp2019s-2021-privacy-policy-alteration</a>
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No publisherAman Nair and Arindrajit BasuConsumer RightsDigital EconomyData ProtectionFacebookCompetitionWhatsAppCompetition Law2021-03-24T16:12:09ZBlog EntryRevisiting Per Se vs Rule of Reason in Light of the Intel Conditional Rebate Case
https://cis-india.org/internet-governance/blog/revisiting-per-se-vs-rule-of-reason-in-light-of-the-intel-conditional-rebate-case
<b>Recent developments in the European Union (EU) regarding the antitrust case against Intel have brought back into focus two rules of competition law analysis- the per se rule and the rule of reason. In light of the decision by the Court of Justice of the European Union in the matter, this Note examines the application of the two rules to the case in detail. Additionally, it analyzes the statutory and judicial basis for the rules in the context of the EU and Indian competition law regimes, and concludes by identifying some areas in which these concepts would be relevant.</b>
<p>Click on the link below to read the full article:</p>
<p><a class="external-link" href="https://cis-india.org/internet-governance/files/revisiting-per-se-vs-rule-of-reason-in-light-of-intel.pdf">Revisiting Per Se vs Rule of Reason in Light of the Intel Conditional Rebate Case </a></p>
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For more details visit <a href='https://cis-india.org/internet-governance/blog/revisiting-per-se-vs-rule-of-reason-in-light-of-the-intel-conditional-rebate-case'>https://cis-india.org/internet-governance/blog/revisiting-per-se-vs-rule-of-reason-in-light-of-the-intel-conditional-rebate-case</a>
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No publisherShruthi AnandInternet GovernanceCompetition2017-10-04T13:45:51ZBlog EntryComments on Department of Industrial Policy and Promotion Discussion Paper on Standard Essential Patents and their Availability on Frand Terms
https://cis-india.org/a2k/blogs/comments-on-department-of-industrial-policy-and-promotion-discussion-paper-on-standard-essential-patents-and-their-availability-on-frand-terms
<b>The Centre for Internet & Society gave its comments to the Department of Industrial Policy and Promotion. The comments were prepared by Anubha Sinha, Nehaa Chaudhari and Rohini Lakshané.</b>
<p><strong><a href="https://cis-india.org/a2k/blogs/dipp-comments.pdf" class="external-link">Download the PDF </a></strong><strong>To access other submissions to the DIPP Discussion Paper on SEP and FRAND, please <a class="external-link" href="http://cis-india.org/a2k/blogs/responses-to-the-dipps-discussion-paper-on-seps-and-their-availability-on-frand-terms">click here</a></strong><strong><br /></strong></p>
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<p style="text-align: justify; "><strong>Authors <a name="_ftnref1"></a> </strong></p>
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<p style="text-align: justify; "><strong>I. PRELIMINARY</strong></p>
<p style="text-align: justify; "><strong>1. </strong> This submission presents comments by the Centre for Internet and Society, India ("<strong>CIS</strong>") on the <i>Discussion Paper on Standard Essential Patents and their Availability on FRAND Terms</i> (dated 01 March, 2016), released by the Department of Industrial Policy and Promotion ("<strong>the</strong> <strong>DIPP</strong>"), Ministry of Commerce and Industry, Government of India (" <strong>the discussion paper/ discussion paper</strong>").</p>
<p style="text-align: justify; "><strong>2. </strong> CIS commends the DIPP for its efforts at seeking inputs from various stakeholders on this important and timely issue. CIS is thankful for the opportunity to put forth its views.</p>
<p style="text-align: justify; "><strong>3. </strong> This submission is divided into three main parts. The <i>first </i>part, 'Preliminary', introduces the document; the <i>second</i> part, 'About CIS', is an overview of the organization; and, the <i>third </i>part, 'Submissions on the Issues', answers the questions raised in the discussion paper. A list of annexures and their URLs is included at the end of the document.</p>
<p style="text-align: justify; "><strong>II. ABOUT CIS</strong></p>
<p style="text-align: justify; "><strong>4. </strong> CIS is a non-profit organisation <a name="_ftnref2"></a> that undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives. The areas of focus include digital accessibility for persons with diverse abilities, access to knowledge, intellectual property rights, openness (including open data, free and open source software, open standards, open access, open educational resources, and open video), internet governance, telecommunication reform, freedom of speech and expression, intermediary liability, digital privacy, and cyber-security.</p>
<p style="text-align: justify; "><strong>5. </strong> CIS values the fundamental principles of justice, equality, freedom and economic development. This submission is consistent with CIS' commitment to these values, the safeguarding of general public interest and the protection of India's national interest at the international level. Accordingly, the comments in this submission aim to further these principles. In addition, the comments are in line with the aims of the Make in India<a name="_ftnref3"></a> and Digital India <a name="_ftnref4"></a> initiatives of the Government of India.</p>
<p style="text-align: justify; "><strong>III. SUBMISSION ON THE ISSUES FOR RESOLUTION</strong></p>
<p style="text-align: justify; "><strong>6. </strong> The following sections provide CIS' views and recommendations on the issues enumerated in section 11 of the discussion paper:</p>
<p style="text-align: justify; "><strong> a) <i> Whether the existing provisions in the various IPR-related legislations, especially the Patents Act, 1970 and antitrust legislations, are adequate to address the issues related to SEPs and their availability on FRAND terms? If not, then can these issues </i> <i>be addressed through appropriate amendments to such IPR-related legislations? If so, what changes should be affected?</i> </strong></p>
<p style="text-align: justify; "><strong>A.1. </strong> The issues related to Standard Essential Patents ("<strong>SEPs</strong>") and their licensing on a fair, reasonable and non-discriminatory ("<strong>FRAND</strong>") basis lie at the intersection of intellectual property ("<strong>IP</strong>") law and competition law <a name="_ftnref5"></a>. As such, in India, the Patents Act, 1970 ("<strong>the Patents Act</strong>") and, the Competition Act, 2002 ("<strong>the Competition Act</strong>") are the relevant legislations to be studied. These have been recently discussed, most recently, by Justice Bakhru in his comprehensive order in<i>Telefonaktiebolaget LM Ericsson (Publ)</i> v. <i>Competition Commission of India and Another.</i> <a name="_ftnref6"></a></p>
<p style="text-align: justify; "><strong>A.2. </strong> It is our submission that at the moment, amendments to the Patents Act and the Competition Act may not be preferred. As Justice Bakhru has noted in the aforesaid decision,<a name="_ftnref7"></a> there is no conflict between the remedies in the Patents Act and in the Competition Act, and, the pursuit of rights and remedies under one of these legislations does not bar a party from pursuing rights and remedies in the other. Further, under both legislations, there are scenarios for the respective authorities - the Controller General of Patents, Designs and Trademarks ("<strong>the Controller</strong>") and the Competition Commission of India (" <strong>the CCI</strong>") for the Patents Act and for the Competition Act respectively - to seek inputs from each other.</p>
<p style="text-align: justify; "><strong>A.3. </strong> We also note that the CCI is a fairly nascent regulator; one whose jurisdiction is not yet a settled matter of law. While the judgment in the Ericsson-CCI case<a name="_ftnref8"></a> is indeed a good beginning, we do not believe that the matter has been conclusively decided. Accordingly, given the complex legal questions involved, over not just the interpretation of the Patents Act and the Competition Act, but also constitutional issues around the jurisdiction of regulators and the power of judicial review of the courts,<a name="_ftnref9"></a> we believe that it would be prudent to examine the ruling of the courts on these issues in some detail, before considering amendments.</p>
<p style="text-align: justify; "><strong>A.4. </strong> In addition, we are of the opinion that our IP law, and, our competition law, fully honor our international commitments, including the requirements under the TRIPS Agreement.<a name="_ftnref10"></a> As such, we would urge the Government of India to not enter into free trade agreements including, <i>inter alia,</i> the Regional Comprehensive Economic Partnership,<a name="_ftnref11"></a> that threaten our use of TRIPS flexibilities, and, impose 'TRIPS-plus' obligations.</p>
<p style="text-align: justify; "><strong>A.5. </strong> We also urge the Government of India to adopt a balanced National IPR Policy, and, a National Competition Policy, both of which has been in abeyance for a considerable amount of time. We believe that these policies are crucial to realize the objectives of the Make in India and Digital India initiatives. At the same time, we submit that these policies be balanced, taking into account the interests of all stakeholders, developed through an extensive consultative process, and, suitably modified based on feedback.</p>
<p style="text-align: justify; "><strong> <i> b) What should be the IPR policy of Indian Standard Setting Organizations in developing Standards for Telecommunication sector and other sectors in India where Standard Essential Patents are used? </i> </strong></p>
<p style="text-align: justify; "><strong>B.1.</strong> The discussion paper identifies four Standard Setting Organizations ("<strong>SSOs</strong>") in India, namely, the Telecom Standards Development Society of India ("<strong>TSDSI</strong>"), the Telecommunication Engineering Center ("<strong>TEC</strong>"), the Bureau of Indian Standards (" <strong>BIS</strong>"), the Global ICT Standardization Forum for India ("<strong>GISFI</strong>"), and, the Development Organization of Standards for Telecommunications in India ("<strong>DOSTI</strong>"). Comments on each of their policies have been made in the following paragraphs.</p>
<p style="text-align: justify; "><strong>B.2.</strong> The BIS does not have an intellectual property rights ("<strong>IPR</strong>") policy of its own. The BIS Act, 2016 <a name="_ftnref12"></a> does not include one either. As the discussion paper notes, the BIS refers to the IPR policies of the relevant international SSO in the context of technology implemented in India, that is the same or equivalent to the ones developed or maintained by the respective SSOs.We recommend that BIS adopt an IPR policy at the earliest, factoring in India specific requirements differences: a large and exponentially growing mobile device market makes it possible for manufacturers, patent owners and implementers alike to achieve financial gains even with a low margin ("<strong>India specific requirements</strong>"). In addition, our comments on the IPR policy of the TSDSI in paragraph <strong>B.4.</strong> of this submission (below), may also be considered for the content of the BIS' future policy on IPR.</p>
<p style="text-align: justify; "><strong>B.3</strong> . According to the discussion paper, the TEC considers the IPR policies of the International Telecommunication Union. We recommend that like the BIS, the TEC also adopt its own IPR policy, factoring in the India specific requirements detailed above. In addition, our comments on the IPR policy of the TSDSI in paragraph <strong>B.4.</strong> of this submission (below), may also be considered for the content of the BIS' future policy on IPR.</p>
<p style="text-align: justify; "><strong>B.4. </strong> The TSDSI, a relatively new standards body, has defined an IPR policy <a name="_ftnref13"></a>. In respect of this policy, the following observations are presented. <i>First, </i>this policy notes that IPR owners should be adequately and fairly rewarded.<i>Second, </i>it requires members to disclose essential IPRs in a "timely fashion." <a name="_ftnref14"></a> <i>Third, </i>as per its policy, the TSDSI can request the owner of an essential IPR to undertake, within three months, to license it irrevocably on FRAND terms. <a name="_ftnref15"></a> At the same time, the policy also states that the (aforesaid) ask may be subject to the condition that licensees agree to reciprocate. <a name="_ftnref16"></a> Should such an undertaking not be forthcoming, the TSDSI may suspend work on the standard or technical specification in question, or, adopt another course of action. <a name="_ftnref17"></a> <i>Fourth, </i>the policy identifies two scenarios for the non availability of licences prior to publication, <a name="_ftnref18"></a> based on the existence, or, the lack thereof, of alternative technologies. In the event of a lack of alternative technology, the policy requires a member to disclose in writing its reasons for not licensing its patents. Following this, it is submitted that there is no clarity on the concrete steps that the TSDSI would adopt in case the efforts to convince a member to license their essential IPRs, fail. The policy only states that "the TSDSI shall take further action as deemed fit."<a name="_ftnref19"></a> The same is also true where the IPR owner is not a member of the TSDSI. <a name="_ftnref20"></a> <i>Fifth, </i>the policy also envisages a scenario of non-availability post publication. <a name="_ftnref21"></a> The procedure for dealing with this is akin to the one detailed above, with the TSDSI asking for a written explanation, considering further action, including the possible withdrawal of the standard or technical specification in question. <i>Sixth, </i>it is observed that the policy does not require a commitment from its members to refrain from seeking injunctive relief. <i>Seventh, </i>it is accordingly recommended that the policy be suitably modified (a) to include India specific requirements discussed above; (b) to require a commitment from its members, that they refrain from seeking injunctive relief; (c) to delete the condition where FRAND negotiations may be subject to a condition of reciprocity; (d) to identify in detail the procedure to be followed in case of patent 'hold-ups' and patent 'hold-outs'; (e) to identify in detail the procedure to be followed in case of refusal to license by TSDSI members, and, non-members, both; and, (f) to include a detailed process on the declassification of a standard or technical specification.</p>
<p style="text-align: justify; "><strong>B.5. </strong> The IPR policy of GISFI<a name="_ftnref22"></a>, is substantially similar to the IPR policy of the TSDSI, discussed in paragraph <strong>B.4.</strong> of this submission (above). <i>Inter alia, </i> GISFI's IPR policy also does not indicate the specific steps to be taken in case an IPR owner refuses to license essential IPRs for which no alternative technology is available. This is true in the cases both, where the refusal is by a member, and, by a non-member. <a name="_ftnref23"></a>Our recommendations on the IPR policy of the TSDSI in paragraph <strong>B.4.</strong> of this submission (above), may also be considered for the GISFI's IPR policy.</p>
<p style="text-align: justify; "><strong>B.6. </strong> According to the discussion paper, the IPR policy of the DOSTI resembles that of the GIFSI. It is submitted that these policies are similar in the context of refusal to license by a member or non-member, and, like the TSDSI and the GISFI, the DOSTI also requires the patent holder to license its IPR irrevocably on FRAND terms. Accordingly, we reiterate our comments on the IPR policy of the TSDSI in paragraph <strong>B.4.</strong> of this submission (above). The aforesaid recommendations may also be considered to be relevant for the DOSTI's IPR policy.</p>
<p style="text-align: justify; "><strong>B.7.</strong> We are also of the opinion that it would be useful for Indian SSOs to consider recommending the use of royalty-free licenses for IPRs. Illustratively, the World Wide Web Consortium ("<strong>W3C</strong>") <a name="_ftnref24"></a> and the Open Mobile Alliance ("<strong>OMA</strong>") <a name="_ftnref25"></a> encourage royalty-free licensing.</p>
<p style="text-align: justify; "><strong> <i> c) Whether there is a need for prescribing guidelines on working and operation of Standard Setting Organizations by Government of India? If so, what all areas of working of SSOs should they cover? </i> </strong></p>
<p style="text-align: justify; "><strong>C.1. </strong> In our opinion, in a milieu where instances of SEP litigation are becoming increasingly complex, and, there is a tangible threat of the abuse of the FRAND process, it might be useful for the Government of India to make suggestions on the working of Indian SSOs.</p>
<p style="text-align: justify; "><strong>C.2. </strong> It is suggested that the Government of India develop Model Guidelines that may be adopted by Indian SSOs, taking into account India specific requirements, including the ones detailed in paragraph <strong>B.2.</strong> of this submission (above). We believe that this measure will also enable the fulfilment of the objectives of the Make in India and Digital India initiatives.</p>
<p style="text-align: justify; "><strong>C.3. </strong> We recommend that various stakeholders, including IP holders, potential licensees and users of IP, civil society organizations, academics, and, government bodies, including the the Indian Patent Office ("<strong>IPO</strong>"), the Department of Telecommunications, the DIPP, TRAI, and, the CCI be consulted in the creation of these Model Guidelines.</p>
<p style="text-align: justify; "><strong>C.4.</strong> In our opinion, the Model Guidelines may cover (a) the composition of the SSO; (b) the process of admitting members; (c) the process of the determination of a standard or technical specification; (d) the process of declassification of a standard or technical specification; (e) the IPR Policy; (f) resolution of disputes; (g) applicable law.</p>
<p style="text-align: justify; "><strong> <i> d) Whether there is a need for prescribing guidelines on setting or fixing the royalties in respect of Standard Essential Patents and defining FRAND terms by Government of India? If not, which would be appropriate authority to issue the guidelines and what could be the possible FRAND terms? </i> </strong></p>
<p style="text-align: justify; "><strong>D.1. </strong> In light of the inadequacies in the IPR policies (discussed above) of various SSOs in India, as well the the spate of ongoing patent infringement lawsuits around mobile technologies, we recommend that the Government of India intervene in the setting of royalties and FRAND terms.</p>
<p style="text-align: justify; "><strong>D.2. </strong> We propose that the Government of India initiate the formation of a patent pool of critical mobile technologies and apply a compulsory license with a five per cent royalty<a name="_ftnref26"></a>. Further details of this proposal have been enumerated in answer to question 'f' of the discussion paper (below).</p>
<p style="text-align: justify; "><strong>D.3.</strong> Our motivations for this proposal are many-fold.<i> </i>In our opinion, it is near-impossible for potential licensees to avoid inadvertent patent infringement. As a part of our ongoing research on technical standards applicable to mobile phones sold in India, we have found nearly 300 standards so far <a name="_ftnref27"></a>. It is submitted that carrying out patent searches for all the standards would be extremely expensive for potential licensees. Further, even if such searches were to be carried out, different patent owners, SSOs and potential licensees disagree on valuation, essentiality, enforceability, validity, and coverage of patents. In addition, some patent owners are non-practising entities ("<strong>NPEs</strong>") and may not be members of SSOs. The patents held by them are not likely to be disclosed. More importantly, home-grown manufacturers that have no patents to leverage and may be new entrants in the market would be especially disadvantaged by such a scenario. Budget phone manufacturers, standing to incur losses either as a result of heavy licensing fees, or, potential litigation, may close down. Alternatively, they may pass on their losses to consumers, driving the now-affordable phones out of their financial reach. With the objectives of Make in India and Digital India in sight, it is essential that Indian consumers continue to have access to devices within their purchasing power.</p>
<p style="text-align: justify; "><strong> <i> e) On what basis should the royalty rates in SEPs be decided? Should it be based on Smallest Saleable Patent Practicing Component (SSPPC), or on the net price of the Downstream Product, or some other criterion? </i> </strong></p>
<p style="text-align: justify; "><strong>E.1. </strong> It is our submission that royalty rates for SEPs should be based on the smallest saleable patent practising component ("<strong>SSPPC</strong>"). Most modern telecommunication and IT devices are complex with numerous technologies working in tandem. Different studies indicate that the number of patents in the US applicable to smartphones is between 200,000 and 250,000. <a name="_ftnref28"></a> A comprehensive patent landscape of mobile device technologies conducted by CIS reveals that nearly 4,000 patents are applicable to mobile phones sold in India. <a name="_ftnref29"></a> It is thus extremely difficult to quantify the exact extent of interaction and interdependence between technologies in any device, in such a way that the exact contribution of the patented technology to the entire device can be determined.</p>
<p style="text-align: justify; "><strong>E.2. </strong> The net cost of the device is almost always several times that of the chipset that implements the patented technology. Armstrong et al <a name="_ftnref30"></a> have found that the cost of a 4G baseband chip costs up to $20 including royalties in a hypothetical $400 phone sold in the US. One of the litigating parties in the ongoing patent infringement lawsuits in India has stated that one of the reasons for preferring to leverage its patents as downstream as possible in the value chain is that it will earn the company more royalties <a name="_ftnref31"></a>. In instances where patent exhaustion occurs much earlier in the value chain, such as in the case of the company's cross-licenses with Qualcomm (another company that owns patents to chip technologies), the company does not try to obtain royalties from the selling prices of devices for the cross-licensed technologies. It is submitted that such market practices could be detrimental to the government's objectives such as providing a mobile handset to every Indian by 2020 as a part of the Digital India programme <a name="_ftnref32"></a>. It is also worth noting in this context that the mobile device is the first and only medium of access to the Internet and telecom services for a large number of Indians, and, consequently, the only gateway to access to knowledge, information and critical services, including banking. <a name="_ftnref33"></a></p>
<p style="text-align: justify; "><strong>E.3. </strong> The discussion paper notes that J. Gregory Sidak, having studied the proceedings before the Delhi High Court, approved of the manner in which the court determined royalties.<a name="_ftnref34"></a> In his paper, Sidak(2015)<a name="_ftnref35"></a> notes that in determining royalties, the court relied, <i>inter alia, </i>on the decision of <i>CSIRO</i> v.<i>Cisco</i> ("<strong>the CSIRO case</strong>"), a 2015 decision of the US Court of Appeals for the Federal Circuit. 2015. <a name="_ftnref36"></a> We humbly disagree with the opinion of the Delhi High Court on the manner of determining royalties, and, with Sidak's approval of the same.</p>
<p style="text-align: justify; "><strong>E.4.</strong> It is our submission that the CSIRO case <a name="_ftnref37"></a> relied on a previous judgment, which we disagree with. The decision, a 2014 district court judgment, analogises the determination of royalties on SEPs to the determination of royalties on a copyrighted book. The court notes, "[b]asing a royalty solely on chip price is like valuing a copyrighted book based only on the costs of the binding, paper, and ink needed to actually produce the physical product. While such a calculation captures the cost of the physical product, it provides no indication of its actual value." In our opinion, this analogy is flawed. While a book is a distinct product as a whole, a mobile phone is a sum-total of its parts. If at all, a mobile phone could be compared with a book with several authors, as multiple technologies belonging to several patent holders are implemented in it. This judgement bases valuation for one set of technologies on the whole device, thus awarding compensation to the licensor even for those technologies implemented in the device that are not related to the licensed technologies. In our opinion, charging royalty on the net selling price of a device for one technology or one set of technologies is thus more like a referral scheme and less like actual compensation for the value added. Accordingly, royalties must be charged on the SSPPC principle.</p>
<p style="text-align: justify; "><strong> <i> f) Whether total payment of royalty in case of various SEPs used in one product should be capped? If so, then should this limit be fixed by Government of India or some other statutory body or left to be decided among the parties? </i> </strong></p>
<p style="text-align: justify; "><strong>F.1. </strong> CIS has proposed a compulsory licensing fee of five per cent on a patent pool of critical mobile technologies. The rationale for this figure is the royalty cap imposed by India in the early 1990s.</p>
<p style="text-align: justify; "><strong>F.2.</strong> As part of regulating foreign technology agreements, the (former) Department of Industrial Development (later merged with the DIPP) capped royalty rates in the early 1990s. Payment of royalties was capped at either a lump sum payment of $2 million, or, 5 percent on the royalty rates charged for domestic sale, and, 8 percent for export of goods pertaining to "high priority industries". <a name="_ftnref38"></a> Royalties higher than 5 percent or 8 percent, as the case may be, required securing approval from the government.</p>
<p style="text-align: justify; "><strong>F.3.</strong> While the early 1990s (specifically, 1991) was too early for the mobile device manufacturing industry to be listed among high priority industries, the public announcement by the government covered computer software, consumer electronics, and electrical and electronic appliances for home use. The cap on royalty rates was lifted by the DIPP in 2009. <a name="_ftnref39"></a></p>
<p style="text-align: justify; "><strong>F.4.</strong> It is submitted in the case of mobile device technology, we are witnessing a situation similar to that of the 1990s. In this sphere, most of the patent holders are multinational corporations which results in large royalty amounts leaving India. At the same time, in our opinion, litigation over patent infringement in India has limited the manufacture and sale of mobile devices of homegrown brands.</p>
<p style="text-align: justify; "><strong>F.5.</strong> We believe that the aforementioned developments are detrimental to the Make in India and Digital India initiatives of the Government of India, and, the government's aim of encouraging local manufacturing, facilitating indigenous innovation, as well as strengthening India's intellectual property regime. It is our submission, therefore, that the payment of royalties on SEPs be capped.</p>
<p style="text-align: justify; "><strong>F.6.</strong> We submit that such a measure is particularly important, given the nature of SEP litigation in India. While SEP litigation in India is indeed comparable to international SEP litigation on broader issues raised, specifically competition law concerns, but differs crucially where the parties are concerned. International SEP litigation is largely between multinational corporations with substantial patent portfolios, capable of engaging in long drawn out litigations, or engaging in other strategies including setting off against each other's patent portfolios. Dynamics in the Indian market differ - with a larger SEP holder litigating against smaller manufacturers, many of whom are indigenous, home-grown. <a name="_ftnref40"></a></p>
<p style="text-align: justify; "><strong>F.7.</strong> In June, 2013, we had recommended to the erstwhile Hon'ble Minister for Human Resource Development <a name="_ftnref41"></a> that a patent pool of essential technologies be established, with the compulsory licensing mechanism. Subsequently, in February, 2015, we reiterated this request to the Hon'ble Prime Minister.<a name="_ftnref42"></a> We propose that the Government of India initiate the formation of a patent pool of critical mobile technologies and mandate a five percent compulsory license. <a name="_ftnref43"></a> As we have stated in our request to the Hon'ble Prime Minister, we believe that such a pool would "possibly avert patent disputes by ensuring that the owners' rights are not infringed on, that budget manufacturers are not put out of business owing to patent feuds, and that consumers continue to get access to inexpensive mobile devices. Several countries including the United States issue compulsory licenses on patents in the pharmaceutical, medical, defence, software, and engineering domains for reasons of public policy, or to thwart or correct anti-competitive practices." <a name="_ftnref44"></a></p>
<p style="text-align: justify; "><strong>F.8.</strong> We believe that such a measure is not in breach of our international obligations under the TRIPS Agreement.</p>
<p style="text-align: justify; "><strong><i>g) Whether the practice of Non-Disclosure Agreements (NDA) leads to misuse of dominant position and is against the FRAND terms?</i></strong></p>
<p style="text-align: justify; "><strong>G.1.</strong> The issue of Non Disclosure Agreements ("<strong>NDAs</strong>") in SEP/FRAND litigation is a contentious one. Patent holders argue that they are essential to the license negotiation process to protect confidential information, whereas potential licensees submit that NDAs result in the imposition of onerous conditions.<a name="_ftnref45"></a></p>
<p style="text-align: justify; "><strong>G.2.</strong> In India's SEP litigation, the use of NDAs has been raised as an issue in at least two cases - separately by Intex<a name="_ftnref46"></a> and by iBall <a name="_ftnref47"></a>, in their cases against Ericsson. Intex and iBall have both claimed that the NDAs that Ericsson asked them to sign were onerous, and favoured Ericsson.</p>
<p style="text-align: justify; "><strong>G.3.</strong> According to Intex, the NDA in question would result in high legal costs for Intex, and, would render it unable to disclose crucial information to its vendors (who had agreed to supply to Intex on the condition that Intex was not infringing on any patents). <a name="_ftnref48"></a></p>
<p style="text-align: justify; "><strong>G.4.</strong> According to iBall, the parties had agreed to enter a global patent license agreement ("<strong>GPLA</strong>") but Ericsson insisted on an NDA. Upon receiving the terms of the NDA, iBall claimed before the CCI that Ericsson's refusal to identify the allegedly infringed SEPs; the threat of patent infringement proceedings; the attempt to coax iBall to enter into a "one-sided and onerous NDA"; the tying and bundling patents irrelevant to iBall's products by way of a GPLA; demanding unreasonably high royalties by way of a certain percentage value of handset as opposed to the cost of actual patented technology used all constituted abuse of Ericsson's dominant position under Section 4 of the Competition Act. <a name="_ftnref49"></a></p>
<p style="text-align: justify; "><strong>G.5.</strong> In India, the law on misuse (abuse) of dominant position by an 'enterprise' is found primarily in Section 4 of the Competition Act (read with Section 2(h) of the Competition Act, which defines 'enterprise'). In its recent decision in the Ericsson-CCI case <a name="_ftnref50"></a>, the Delhi High Court has found Ericsson to be an 'enterprise' for the purposes of the Competition Act, and hence subject to an inquiry under Section 4 of the same legislation. In the same decision, the court has also recognised the jurisdiction of the CCI to examine Ericsson's conduct for abuse of behaviour, based on complaints by Micromax and Intex. The use of NDAs is one of the grounds on which the parties have complained to the CCI.</p>
<p style="text-align: justify; "><strong>G.6.</strong> Pending a final determination by the CCI (and subsequent appeals), it would be premature to make an absolute claim on whether the use of NDAs results in an abuse of dominant position in <i>all</i> instances. However, the following submissions are made: <i>First, </i>the determination of misuse/abuse of dominant position is influenced by a number of factors <a name="_ftnref51"></a>, i.e., such a determination should be made on a case to case basis. <i>Second, </i>the market regulator, the CCI, is best situated to determine (a) abuse of dominance, and (b) whether the use of NDAs by an enterprise constitutes an abuse of its dominance. <i>Third, </i>the question of whether the use of NDAs constitutes misuse of dominance needs to be addressed in two parts - (a) whether the use of the NDA <i>itself </i>is abusive, irrespective of its terms and, (b) whether the use of certain specific terms renders the NDA abusive. <i>Fourth, </i>NDAs could potentially lead to the patent owner abusing its dominant position in the market, as well as result in an invalidation of FRAND commitments and terms. NDAs make it impossible to determine if a patent holder is engaging in discriminatory licensing practices. <i>Fifth, </i>NDAs are especially harmful in the case of NPEs-- companies that hold patents and monetise them but don't build or manufacture the components or devices that implement the technology associated with the patents.</p>
<p style="text-align: justify; "><strong> <i> h) What should be the appropriate mode and remedy for settlement of disputes in matters related to SEPs, especially while deciding FRAND terms? Whether Injunctions are a suitable remedy in cases pertaining to SEPs and their availability on FRAND terms? </i> </strong></p>
<p style="text-align: justify; "><strong>H.1.</strong> The licensing of SEPs on FRAND terms requires the parties to negotiate "reasonable" royalty rates in good faith, and apply the terms uniformly to all willing licensees. It is our submission that if the parties cannot agree to FRAND terms, they may enter into binding arbitration. Further, if all efforts fail, there exist remedies under the Patents Act and the Competition Act, 2002 to address the issues.</p>
<p style="text-align: justify; "><strong>H.2.</strong> Section 115 of the Patents Act empowers the court to appoint an independent scientific adviser " <i> to assist the court or to inquire and report upon any such question of fact or of opinion (not involving a question of interpretation of law) as it may formulate for the purpose. </i> "<a name="_ftnref52"></a> Such an independent adviser may inform the court on the technical nuances of the matter.</p>
<p style="text-align: justify; "><strong>H.3. </strong> Further<strong>, </strong>under the Patents Act, pending the decision of infringement proceedings the Court may provide interim relief, if the plaintiff proves <i>first, </i>a prima facie case of infringement; <i>second, </i>that the balance of convenience tilts in plaintiff's favour; and, <i>third, </i>that if an injunction is not granted the plaintiff shall suffer irreparable damage. <strong>H.4. </strong>However, it is our suggestion that courts adopt a more cautious stance towards granting injunctions in the field of SEP litigation. <i>First, </i>in our opinion, injunctions may prove to be a deterrent to arrive at a FRAND commitment, in particular, egregiously harming the willing licensee. <i>Second, </i>especially in the Indian scenario, where litigating parties operate in vastly different price segments (thereby targeting consumers with different purchasing power), it is difficult to establish that "irreparable damage" has been caused to the patent owner on account of infringement. <i>Third, </i>we note the approach of the European Court of Justice, which prohibited the patent holder from enforcing an injunction provided a willing licensee makes an offer for the price it wishes to pay to use a patent under the condition that it deposited an amount in the bank as a security for the patent holder. <a name="_ftnref53"></a> <i>Fourth, </i>we also note the approach of the Federal Trade Commission in the USA, which only authorizes patent holders to seek injunctive relief against potential licensees who have either stated that they will not license a patent on any terms, or refuse to enter into a license agreement on terms that have been set in the final ruling of a court or arbitrator. <a name="_ftnref54"></a> Further, as Contreras (2015)<a name="_ftnref55"></a> observes, that the precise boundaries of what constitutes as an unwilling licensee remains to be seen. We observe a similar ambiguity in Indian jurisprudence, and accordingly submit that courts should carefully examine the conduct of the licensee to injunct them from the alleged infringement.</p>
<p style="text-align: justify; "><strong><i>i) What steps can be taken to make the practice of Cross-Licensing transparent so that royalty rates are fair & reasonable?</i></strong></p>
<p style="text-align: justify; "><strong>I.1.</strong> The Patents Act requires patentees and licensees to submit a statement on commercial working of the invention to the Controller every year. <a name="_ftnref56"></a> Form 27 under section 146(2) of the Act lists the details necessary to be disclosed for compliance of the requirement of "working". A jurisprudential analysis reveals the rationale and objective behind this mandatory requirement. Undeniably, the scheme of the Indian patent regime makes it amply clear that "working" is a very important requirement, and the public as well as competitors have a right to access this information in a timely manner, without undue hurdles. <a name="_ftnref57"></a> Indeed, as the decision in <i>Natco Pharma</i> v. <i>Bayer Corporation</i> <a name="_ftnref58"></a> reveals, the disclosures in Form 27 were crucial to determining the imposition of a compulsory license on the patentee. Thus, broadly, Form 27 disclosures can critically enable willing licensees to access patent "working" information in a timely manner.</p>
<p style="text-align: justify; "><strong>I.2.</strong> However, there has been little compliance of this requirement by the patentees, despite the IPO reiterating the importance of compliance through the issuance of multiple public notices <a name="_ftnref59"></a> (suo motu and in response to a public interest litigation filed in 2011 <a name="_ftnref60"></a>), and, reminding the patentees that non-compliance is punishable with a heavy fine. <a name="_ftnref61"></a> Findings of research submitted by one of the parties<a name="_ftnref62"></a> in the writ of the<a></a><a></a><a>2011</a><a name="_msoanchor_1"></a><a name="_msoanchor_2"></a><a name="_msoanchor_3"></a> public interest litigation<i>Shamnad Basheer </i>v. <i>Union of India and others</i><a name="_ftnref63"></a> reveal as follows. <i>First, </i>a large number of Form 27s are unavailable for download from the website of the IPO. This possibly indicates that the forms have either not been filed by the patentees with the IPO, or have not been uploaded (yet) by the IPO. <i>Second, </i>a large number of filings in the telecom sector remain incomplete.</p>
<p style="text-align: justify; "><strong>I.3. </strong> In 2015, CIS queried the IPO website for Form 27s of nearly 4,400 patents. CIS' preliminary research (ongoing and unpublished) echoes findings <a name="_ftnref64"></a> similar to the ones disclosed in the case discussed in paragraph <strong>I.2.</strong> of this submission (above).</p>
<p style="text-align: justify; "><strong>I.4.</strong> In view of the submissions above, CIS makes the following recommendations to make the practice of cross-licensing transparent so that royalty rates are fair & reasonable: <i>first, </i>that there be a strict enforcement of the submission of Form 27s on a regular and timely basis by the patentees; and, <i>second, </i>that guidelines may be drawn up on whether it was discriminatory to charge no royalties (whether on the SSPPU or on the whole device) for a patent holder in a cross-licensing arrangement with another, when it charges royalty on the selling price of the device from a non-cross-licensor.</p>
<p style="text-align: justify; "><strong><i>j) What steps can be taken to make the practice of Patent Pooling transparent so that royalty rates are fair & reasonable?</i></strong></p>
<p style="text-align: justify; "><strong>J.1.</strong> Patent pools can be understood as an agreement between two or more patent owners to license one or more of their patents to one another or to third parties.<a name="_ftnref65"></a> Thus, the creation of a patent pool makes use of the legal instrument of licensing, similar to the practice of cross-licensing. Insofar, we reiterate our recommendations made in paragraph <strong>I.3. </strong>of this submission (above), which apply to the answer to the instant question.</p>
<p style="text-align: justify; "><strong>J.2.</strong> In furtherance of the recommendation above, we also propose the alteration of the Form 27 template <a name="_ftnref66"></a> to include more disclosures. Presently, patentees are required to to declare number of licensees and sub-licensees. We specifically propose that the format of Form 27 filings be modified to include patent pool licenses, with an explicit declaration of the names of the licensees and not just the number.</p>
<p style="text-align: justify; "><strong>J.3. </strong> It is also our submission that patent pools be required to offer FRAND licenses on the same terms to both members and non-members of the pool.</p>
<p style="text-align: justify; "><strong> <i> k) How should it be determined whether a patent declared as SEP is actually an Essential Patent, particularly when bouquets of patents are used in one device? </i> </strong></p>
<p style="text-align: justify; "><strong>K.1.</strong> We submit that several studies on the essentiality of SEPs indicate that only a small percentage of SEPs are actually essential. A study conducted by<i>Goodman </i>and <i>Myers </i>(2004) showed that only 21% of SEPs pertaining to the 3G standard in the US were deemed to be actually essential. <a name="_ftnref67"></a> Another study conducted by the same authors in 2009 for WCDMA patents showed that 28% SEPs were essential. <a name="_ftnref68"></a></p>
<p style="text-align: justify; "><strong>K.2.</strong> In our opinion, <i>first, </i>the methodology adopted by <i>Goodman </i>and <i>Myers</i> <a name="_ftnref69"></a><i> </i>could be replicated to determine the "essential" nature of an SEP. <i>Second, </i>while adopting their methodology, it would be useful to address some of the issues over which these studies were critiqued. <a name="_ftnref70"></a> Accordingly, we suggest that (a) laboratory tests may be conducted by an outside expert or by a commercial testing laboratory, and not at an in-house facility owned by either parties, so as to eliminate in the lab results; and, (b) expert opinions may be considered in order to determine essentiality.</p>
<p style="text-align: justify; "><strong> <i> l) Whether there is a need of setting up of an independent expert body to determine FRAND terms for SEPs and devising methodology for such purpose? </i> </strong></p>
<p style="text-align: justify; "><strong>L.1.</strong> In our opinion, there is no need for an independent expert body to determine FRAND terms for SEPs and devising the methodology for such a purpose. The existing legal and regulatory framework is reasonably equipped to determine FRAND terms. A more detailed submission on the existing framework and suggested changes has been made in our answer to question 'a' of the discussion paper (above).</p>
<p style="text-align: justify; "><strong>L.2.</strong> However, we observe that Indian courts, tribunals and the CCI are yet to endorse a methodology for making FRAND determinations. The judgments of the Delhi High Court do not provide a conclusive rationale or methodology for the imposition of royalty rates in the respective matters. <a name="_ftnref71"></a> <strong> </strong></p>
<p style="text-align: justify; "><strong>L.3. </strong> We submit that<strong> </strong>in the absence of definitive Indian jurisprudence for determination of FRAND terms, American jurisprudence provides certain guidance. Contreras<a name="_ftnref72"></a> (2015) informs us about the various case law American courts and regulators have developed and adhered to whilst making such determinations.The dominant analytical framework for determining "reasonable royalty" patent damages in the United States today was set out in 1970 by the District Court for the Southern District of New York in <i>Georgia-Pacific Corp. </i>v. <i> U.S. Plywood Corp <a name="_ftnref73"></a> </i> . While this may be used as a guiding framework, the question of methodology remains far from settled.</p>
<p style="text-align: justify; "><strong> <i> m) If certain Standards can be met without infringing any particular SEP, for instance by use of some alternative technology or because the patent is no longer in force, what should be the process to declassify such a SEP? </i> </strong></p>
<p style="text-align: justify; "><strong>M.1. </strong> In our opinion, if a standard can be met without infringing a patent declared to be "essential" to it, then the patent is not actually "essential". In this instance, the methods suggested in response to question 'k' of the discussion paper (above) could be used to declassify the SEP.</p>
<p style="text-align: justify; "><strong>M.2. </strong> We further submit that if a patent is no longer in force, that is, if it has expired, then it ceases to be patent, and therefore an SEP. The process to declassify such an SEP could be simply to declare it an expired patent.</p>
<p style="text-align: justify; "><strong>M.3. </strong> In addition, if it is possible to implement a certain standard by using an alternative technology, then the SEP for such a standard is not actually an SEP. However, the scale of operations and that of mass manufacturing and compatibility requirements in devices and infrastructure mean that it is unlikely to have different methods of implementing the same standard.</p>
<p style="text-align: justify; "><strong>M.4.</strong> In general, it is our submission that an Indian SSO could maintain a publicly accessible database of SEPs found to be invalid or non-essential in India.</p>
<p style="text-align: justify; "><strong>7. </strong> We reiterate our gratitude to the DIPP for the opportunity to make these submissions. In addition to our comments above, we have shared some of our research on this issue, in the 'Annexures', below.</p>
<p style="text-align: justify; "><strong>8. </strong> It would be our pleasure and privilege to discuss these comments with the DIPP; and, supplement these with further submissions if necessary. We also offer our assistance on other matters aimed at developing a suitable policy framework for SEPs and FRAND in India, and, working towards the sustained innovation, manufacture and availability of mobile technologies in India.</p>
<p style="text-align: justify; "><strong>On behalf of the Centre for Internet and Society, 22 April, 2016</strong></p>
<p style="text-align: justify; ">Anubha Sinha - <a>anubha@cis-india.org</a> | Nehaa Chaudhari - <a>nehaa@cis-india.org</a></p>
<p style="text-align: justify; ">Rohini Lakshané - <a>rohini@cis-india.org</a></p>
<p style="text-align: justify; "><strong>___________________________________________________________________________</strong></p>
<p style="text-align: justify; ">___________________________________________________________________________</p>
<p style="text-align: justify; "><strong>ANNEXURES</strong></p>
<p style="text-align: justify; "><strong>___________________________________________________________________________</strong></p>
<p style="text-align: justify; ">● Anubha Sinha, Fuelling the Affordable Smartphone Revolution in India, available at <a href="http://cis-india.org/a2k/blogs/digital-asia-hub-the-good-life-in-asias-21-st-century-anubha-sinha-fueling-the-affordable-smartphone-revolution-in-india"> http://cis-india.org/a2k/blogs/digital-asia-hub-the-good-life-in-asias-21-st-century-anubha-sinha-fueling-the-affordable-smartphone-revolution-in-india </a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Nehaa Chaudhari, Standard Essential Patents on Low-Cost Mobile Phones in India: A Case to Strengthen Competition Regulation?, available at <a href="http://www.manupatra.co.in/newsline/articles/Upload/08483340-C1B9-4BA4-B6A9-D6B6494391B8.pdf"> http://www.manupatra.co.in/newsline/articles/Upload/08483340-C1B9-4BA4-B6A9-D6B6494391B8.pdf </a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Nehaa Chaudhari, Pervasive Technologies:Patent Pools, available at <a href="http://cis-india.org/a2k/blogs/patent-pools">http://cis-india.org/a2k/blogs/patent-pools</a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Nehaa Chaudhari, The Curious Case of the CCI:Competition Law and SEP Regulation in India, presented at the 4th Global Congress on Intellectual Property and the Public Interest, <span>available </span>at <a href="http://cis-india.org/a2k/blogs/the-curious-case-of-the-cci-competition-law-and-sep-regulation-in-india"> http://cis-india.org/a2k/blogs/the-curious-case-of-the-cci-competition-law-and-sep-regulation-in-indi </a> <a href="http://cis-india.org/a2k/blogs/the-curious-case-of-the-cci-competition-law-and-sep-regulation-in-india">a</a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Nehaa Chaudhari, Letter for Establishment of Patent Pool for Low Cost Access Devices through Compulsory Licences, available at <a href="http://cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices"> http://cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices </a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Prof Jorge L. Contreras and Rohini Lakshané, Patents and Mobile Devices in India: An Empirical Survey, available at <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2756486">http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2756486</a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Rohini Lakshané, CIS, List of technical standards and IP types (Working document), available at <a href="https://drive.google.com/file/d/0B8SgjShAjhbtaml5eW50bS01d2s/view?usp=sharing"> https://drive.google.com/file/d/0B8SgjShAjhbtaml5eW50bS01d2s/view?usp=sharing </a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Rohini Lakshané, Open Letter to Prime Minister Modi, February 2015, available at <a href="http://cis-india.org/a2k/blogs/open-letter-to-prime-minister-modi">http://cis-india.org/a2k/blogs/open-letter-to-prime-minister-modi</a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Rohini Lakshané, FAQ: CIS' proposal to form a patent pool of critical mobile technology, September 2015, available at <a href="http://cis-india.org/a2k/blogs/faq-cis-proposal-for-compulsory-licensing-of-critical-mobile-technologies"> http://cis-india.org/a2k/blogs/faq-cis-proposal-for-compulsory-licensing-of-critical-mobile-technologies </a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Rohini Lakshané, Joining the dots in India's big-ticket mobile phone patent litigation, May 2015, last updated October 2015, available at <a href="http://cis-india.org/a2k/blogs/joining-the-dots-in-indias-big-ticket-mobile-phone-patent-litigation"> http://cis-india.org/a2k/blogs/joining-the-dots-in-indias-big-ticket-mobile-phone-patent-litigation </a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Rohini Lakshané, Compilation of Mobile Phone Patent Litigation Cases in India, March 2015, last updated April 2016, available at <a href="http://cis-india.org/a2k/blogs/compilation-of-mobile-phone-patent-litigation-cases-in-india"> http://cis-india.org/a2k/blogs/compilation-of-mobile-phone-patent-litigation-cases-in-india </a> , (last accessed April 22, 2016).</p>
<p style="text-align: justify; ">● Rohini Lakshané, Patent landscaping in the Indian Mobile Device Marketplace, presented at the 4th Global Congress on Intellectual Property and Public Interest, December 2015, available at <a href="https://drive.google.com/open?id=0B8SgjShAjhbtME45N245SmowOGs">https://drive.google.com/open?id=0B8SgjShAjhbtME45N245SmowOGs</a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Vikrant Narayan Vasudeva, Patent Valuation and Licence Fee Determination in the Context of Patent Pools, available at <a href="http://cis-india.org/a2k/blogs/patent-valuation-and-license-fee-determination-in-context-of-patent-pools"> http://cis-india.org/a2k/blogs/patent-valuation-and-license-fee-determination-in-context-of-patent-pools </a> (last accessed 22 April, 2016).</p>
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<hr size="1" width="33%" align="left" />
<div id="ftn1">
<p><a name="_ftn1"></a> This submission has been authored by (alphabetically) Anubha Sinha, Nehaa Chaudhari and Rohini Lakshané, on behalf of the Centre for Internet and Society, India.</p>
</div>
<div id="ftn2">
<p><a name="_ftn2"></a> See The Centre for Internet and Society, available at <a href="http://cis-india.org/">http://cis-india.org</a> (last accessed 22 April, 2016) for details of the organization, and, our work.</p>
</div>
<div id="ftn3">
<p><a name="_ftn3"></a> Make in India, available at <a href="http://www.makeinindia.com/home">http://www.makeinindia.com/home</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn4">
<p><a name="_ftn4"></a> Digital India, available at <a href="http://www.digitalindia.gov.in/">http://www.digitalindia.gov.in/</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn5">
<p><a name="_ftn5"></a> See Nehaa Chaudhari, The Curious Case of the CCI:Competition Law and SEP Regulation in India, presented at the 4th Global Congress on Intellectual Property and the Public Interest, available at <a href="http://cis-india.org/a2k/blogs/the-curious-case-of-the-cci-competition-law-and-sep-regulation-in-india"> http://cis-india.org/a2k/blogs/the-curious-case-of-the-cci-competition-law-and-sep-regulation-in-india </a> (last accessed 21 April, 2016) for further details on relevant provisions.</p>
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<div id="ftn6">
<p><a name="_ftn6"></a> In the High Court of Delhi, W.P.(C) 464/2014 & CM Nos. 911/2014 & 915/2014, judgment delivered on 30 March, 2016. Hereafter referred to as the Ericsson-CCI judgment.</p>
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<div id="ftn7">
<p><a name="_ftn7"></a> Id.</p>
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<div id="ftn8">
<p><a name="_ftn8"></a> Id.</p>
</div>
<div id="ftn9">
<p><a name="_ftn9"></a> Under Articles 226 and 227 of the Constitution of India, and, under Article 32 of the Constitution of India, for the High Courts and the Supreme Court, respectively.</p>
</div>
<div id="ftn10">
<p><a name="_ftn10"></a> Agreement on Trade-Related Aspects of Intellectual Property Rights, available at <a href="https://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm">https://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn11">
<p><a name="_ftn11"></a> KEI Staff, 2015 October 15 version: RCEP IP Chapter, available at <a href="http://keionline.org/node/2472">http://keionline.org/node/2472</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn12">
<p><a name="_ftn12"></a> BIS Act, 2016, available at <a href="http://www.bis.org.in/bs/bsindex.asp">http://www.bis.org.in/bs/bsindex.asp</a> (last accessed 21 April, 2016).</p>
</div>
<div id="ftn13">
<p><a name="_ftn13"></a> TSDSI, Intellectual Property Rights Policy, available at <a href="http://www.tsdsi.org/media/Help/2014-12-17/TSDSI-PLD-40-V1.0.0-20141217.pdf"> http://www.tsdsi.org/media/Help/2014-12-17/TSDSI-PLD-40-V1.0.0-20141217.pdf </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn14">
<p><a name="_ftn14"></a> Id at Clause 3.1.</p>
</div>
<div id="ftn15">
<p><a name="_ftn15"></a> Id at Clause 5.1.</p>
</div>
<div id="ftn16">
<p><a name="_ftn16"></a> Id at Clause 5.2.</p>
</div>
<div id="ftn17">
<p><a name="_ftn17"></a> Id at Clause 5.5.</p>
</div>
<div id="ftn18">
<p><a name="_ftn18"></a> Id at Clauses 7.1. and 7.2.</p>
</div>
<div id="ftn19">
<p><a name="_ftn19"></a> Id at Clause 7.2.1.a (iii).</p>
</div>
<div id="ftn20">
<p><a name="_ftn20"></a> Id at Clause 7.2.1.b(iii).</p>
</div>
<div id="ftn21">
<p><a name="_ftn21"></a> Id at Clause 7.3.</p>
</div>
<div id="ftn22">
<p><a name="_ftn22"></a> GISFI, Intellectual Property Rights Policy, available at <a href="http://www.gisfi.org/ipr_policy/gisfi_intellectual_property_righ.htm"> http://www.gisfi.org/ipr_policy/gisfi_intellectual_property_righ.htm </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn23">
<p><a name="_ftn23"></a> Id at Clauses 6.2.1.a(iii) and 6.2.1.b(iii).</p>
</div>
<div id="ftn24">
<p><a name="_ftn24"></a> See W3C, Patent Policy, available at <a href="https://www.w3.org/Consortium/Patent-Policy-20040205/">https://www.w3.org/Consortium/Patent-Policy-20040205/</a> (last accessed 22 April, 2016) for more details on their royalty-free licences.</p>
</div>
<div id="ftn25">
<p><a name="_ftn25"></a> See OMA, Use Agreement, available at <a href="http://openmobilealliance.org/about-oma/policies-and-terms-of-use/use-agreement/"> http://openmobilealliance.org/about-oma/policies-and-terms-of-use/use-agreement/ </a> (last accessed 22 April, 2016) for more details on their royalty-free licences.</p>
</div>
<div id="ftn26">
<p><a name="_ftn26"></a> See Rohini Lakshané, Open Letter to PM Modi, available at <a href="http://cis-india.org/a2k/blogs/open-letter-to-prime-minister-modi">http://cis-india.org/a2k/blogs/open-letter-to-prime-minister-modi</a> (last accessed 22 April, 2016) for further details of CIS' proposal.</p>
</div>
<div id="ftn27">
<p><a name="_ftn27"></a> Rohini Lakshané, CIS, List of Technical Standards and IP Types (Working document), available at <a href="https://drive.google.com/file/d/0B8SgjShAjhbtaml5eW50bS01d2s/view?usp=sharing"> https://drive.google.com/file/d/0B8SgjShAjhbtaml5eW50bS01d2s/view?usp=sharing </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn28">
<p><a name="_ftn28"></a> Mark Lemley and Carl Shapiro, Patent Holdup and Royalty Stacking,<i> 85 Tex. L. Rev. at 2015</i>; See also, for e.g., RPX Corporation, Amendment No. 3 to Form S-l, 11 Apr. 2011, at 59, available at <a href="http://www.sec.gov/Archives/edgar/data/1509432/000119312511101007/ds1a.htm"> http://www.sec.gov/Archives/edgar/data/1509432/000119312511101007/ds1a.htm </a> (last accessed 22 April, 2016), quoting - <i>"Based on our research, we believe there are more than 250,000 active patents relevant to today's smartphones…"</i>.; See further Steve Lohr, Apple- Samsung Case Shows Smartphone as Legal Magnet,<i> </i>New York Times, 25 Aug. 2012, available at <a href="http://www.nytimes.com/2012/08/26/technology/apple-samsung-case-shows-smartphone-as-lawsuit-magnet.html"> http://www.nytimes.com/2012/08/26/technology/apple-samsung-case-shows-smartphone-as-lawsuit-magnet.html </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn29">
<p><a name="_ftn29"></a> Jorge L. Contreras and Rohini Lakshané, Patents and Mobile Devices in India: An Empirical Survey, available at <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2756486">http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2756486</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn30">
<p><a name="_ftn30"></a> Ann Armstrong, Joseph J. Mueller and Timothy D. Syrett, The Smartphone- Royalty Stack:Surveying Royalty Demands for the Components Within Modern Smartphones, available at <a href="https://www.wilmerhale.com/uploadedFiles/Shared_Content/Editorial/Publications/Documents/The-Smartphone-Royalty-Stack-Armstrong-Mueller-Syrett.pdf"> https://www.wilmerhale.com/uploadedFiles/Shared_Content/Editorial/Publications/Documents/The-Smartphone-Royalty-Stack-Armstrong-Mueller-Syrett.pdf </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn31">
<p><a name="_ftn31"></a> Florian Mueller,<i> </i>Ericsson Explained Publicly why it Collects Patent Royalties from Device (Not Chipset) Makers, available at <a href="http://www.fosspatents.com/2014/01/ericsson-explained-publicly-why-its.html"> http://www.fosspatents.com/2014/01/ericsson-explained-publicly-why-its.html </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn32">
<p><a name="_ftn32"></a> Romit Guha and Anandita Singh Masinkotia, PM Modi's Digital India Project:Government to Ensure that Every Indian has a Smartphone by 2019, available at <a href="http://articles.economictimes.indiatimes.com/2014-08-25/news/53205445_1_digital-india-india-today-financial-services"> http://articles.economictimes.indiatimes.com/2014-08-25/news/53205445_1_digital-india-india-today-financial-services </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn33">
<p><a name="_ftn33"></a> Nehaa Chaudhari,<i> </i>Standard Essential Patents on Low-Cost Mobile Phones in India: A Case to Strengthen Competition Regulation?, available at <a href="http://www.manupatra.co.in/newsline/articles/Upload/08483340-C1B9-4BA4-B6A9-D6B6494391B8.pdf"> http://www.manupatra.co.in/newsline/articles/Upload/08483340-C1B9-4BA4-B6A9-D6B6494391B8.pdf </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn34">
<p><a name="_ftn34"></a> See part 10.2.2. of the Discussion Paper, at page 25.</p>
</div>
<div id="ftn35">
<p><a name="_ftn35"></a> J.Gregory Sidak, FRAND in India:The Delhi High Court's Emerging Jurisprudence on Royalties for Standard-Essential Patents, available at <a href="http://jiplp.oxfordjournals.org/content/early/2015/06/11/jiplp.jpv096.full"> http://jiplp.oxfordjournals.org/content/early/2015/06/11/jiplp.jpv096.full </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn36">
<p><a name="_ftn36"></a> Appeal from the United States District Court for the Eastern District of Texas in No. 6:11-cv-00343-LED, decided on 03 December, 2015, available at. <a href="http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1066.Opinion.12-1-2015.1.PDF"> http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1066.Opinion.12-1-2015.1.PDF </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn37">
<p><a name="_ftn37"></a> Id.</p>
</div>
<div id="ftn38">
<p><a name="_ftn38"></a> Kumkum Sen, News on Royalty Payments Brings Cheer in New Year, available at <a href="http://www.business-standard.com/article/economy-policy/news-on-royalty-payment-brings-cheer-in-new-year-110010400044_1.html"> http://www.business-standard.com/article/economy-policy/news-on-royalty-payment-brings-cheer-in-new-year-110010400044_1.html </a> (last accessed 21 April, 2016).</p>
</div>
<div id="ftn39">
<p><a name="_ftn39"></a> See Sanjana Govil, Putting a Lid on Royalty Outflows- How the RBI Can Help Reduce India's IP Costs<i>, </i>available at <a href="http://cis-india.org/a2k/blogs/lid-on-royalty-outflows">http://cis-india.org/a2k/blogs/lid-on-royalty-outflows</a> (last accessed 21 April, 2016), for a discussion on the introduction of royalty caps in the early 1990s, and its success in reducing the flow of money out of India.</p>
</div>
<div id="ftn40">
<p><a name="_ftn40"></a> Supra note 33.</p>
</div>
<div id="ftn41">
<p><a name="_ftn41"></a> Nehaa Chaudhari, Letter for Establishment of Patent Pool for Low-cost Access Devices through Compulsory Licenses, available at <a href="http://cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices"> http://cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices </a> <span> </span> (last accessed 21 April, 2016).</p>
</div>
<div id="ftn42">
<p><a name="_ftn42"></a> Supra note 26.</p>
</div>
<div id="ftn43">
<p><a name="_ftn43"></a> Rohini Lakshané, FAQ: CIS' proposal to form a patent pool of critical mobile technology, September 2015, available at <a href="http://cis-india.org/a2k/blogs/faq-cis-proposal-for-compulsory-licensing-of-critical-mobile-technologies"> http://cis-india.org/a2k/blogs/faq-cis-proposal-for-compulsory-licensing-of-critical-mobile-technologies </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn44">
<p><a name="_ftn44"></a> Id.</p>
</div>
<div id="ftn45">
<p><a name="_ftn45"></a> See the Ericsson-CCI case, supra note 6, for Intex's submissions as discussed by Justice Bakhru.</p>
</div>
<div id="ftn46">
<p><a name="_ftn46"></a> Id.</p>
</div>
<div id="ftn47">
<p><a name="_ftn47"></a> Rohini Lakshané, Compilation of Mobile Phone Patent Litigation Cases in India, available at <a href="http://cis-india.org/a2k/blogs/compilation-of-mobile-phone-patent-litigation-cases-in-india"> http://cis-india.org/a2k/blogs/compilation-of-mobile-phone-patent-litigation-cases-in-india </a> (last accessed 21 April, 2016).</p>
</div>
<div id="ftn48">
<p><a name="_ftn48"></a> See the Ericsson-CCI case, supra note 6, at paragraph 19.2.</p>
</div>
<div id="ftn49">
<p><a name="_ftn49"></a> Supra note 47.</p>
</div>
<div id="ftn50">
<p><a name="_ftn50"></a> See the Ericsson-CCI judgment, supra note 6, at paragraphs 88-105.</p>
</div>
<div id="ftn51">
<p><a name="_ftn51"></a> Section 19(4) of the Competition Act. See also <i>Competition Commission of India</i> v. <i>Steel Authority of India and Another</i>, (2010) 10 SCC 744.</p>
</div>
<div id="ftn52">
<p><a name="_ftn52"></a> Section 115 of the Patents Act, 1970.</p>
</div>
<div id="ftn53">
<p><a name="_ftn53"></a> <i>Huawei Technologies Co. Ltd </i> v.<i> ZTE Corp. and ZTE Deutschland</i>, Judgment of the Court (Fifth Chamber) of 16 July 2015 in GmbH C-170/13.</p>
</div>
<div id="ftn54">
<p><a name="_ftn54"></a> Third Party United States Fed. Trade Commission's Statement on the Public Interest, <i>In re Certain Wireless Communication Devices, Portable Music and Data Processing Devices, Computers and Components Thereof</i>, U.S. Int'l Trade Comm'n, Inv. No. 337-TA-745 (Jun. 6, 2012).</p>
</div>
<div id="ftn55">
<p><a name="_ftn55"></a> Jorge L. Contreras, A Brief History of FRAND: Analyzing Current Debates in Standard Setting and Antitrust Through a Historical Lens<i>,</i> 80 Antitrust Law Journal 39 (2015), available at <span>h</span><a href="http://ssrn.com/abstract=2374983">ttp://ssrn.com/abstract=2374983</a><span> or</span> <a href="http://dx.doi.org/10.2139/ssrn.2374983">http://dx.doi.org/10.2139/ssrn.2374983</a><a href="http://dx.doi.org/10.2139/ssrn.2374983"> </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn56">
<p><a name="_ftn56"></a> Section 146(2) of the Patents Act, 1970..</p>
</div>
<div id="ftn57">
<p><a name="_ftn57"></a> Sai Vinod, Patent Office Finally Takes Form 27s Seriously, available at <a href="http://spicyip.com/2013/02/patent-office-finally-takes-form-27s.html"> http://spicyip.com/2013/02/patent-office-finally-takes-form-27s.html </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn58">
<p><a name="_ftn58"></a> Order No. 45/2013 (Intellectual Property Appellate Board, Chennai), available at <a href="http://www.ipab.tn.nic.in/045-2013.htm">http://www.ipab.tn.nic.in/045-2013.htm</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn59">
<p><a name="_ftn59"></a> Intellectual Property India, Public Notice, available at <a href="http://www.ipindia.nic.in/iponew/publicNotice_Form27_12Feb2013.pdf">http://www.ipindia.nic.in/iponew/publicNotice_Form27_12Feb2013.pdf</a> (last accessed 22 April, 2016) <i>and</i> Intellectual Property India, Public Notice, available at <a href="http://ipindia.nic.in/iponew/publicNotice_24December2009.pdf">http://ipindia.nic.in/iponew/publicNotice_24December2009.pdf</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn60">
<p><a name="_ftn60"></a> Supra note 57.</p>
</div>
<div id="ftn61">
<p><a name="_ftn61"></a> Id.</p>
</div>
<div id="ftn62">
<p><a name="_ftn62"></a> See research findings available at <a href="http://spicyip.com/wp-content/uploads/2015/05/FORM-27-WP-1R-copy.pdf"> http://spicyip.com/wp-content/uploads/2015/05/FORM-27-WP-1R-copy.pdf </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn63">
<p><a name="_ftn63"></a> In the High Court of Delhi, W.P.(C) 5590/2015. This litigation is currently ongoing. See, illustratively, Mathews P. George, <i>Patent Working in India: Delhi HC issues notice in Shamnad Basheer </i>v<i>. Union of India & Ors. - I</i>, available at <a href="http://spicyip.com/2015/09/patent-working-in-india-delhi-hc-issues-notice-in-shamnad-basheer-v-union-of-india-ors-i.html"> http://spicyip.com/2015/09/patent-working-in-india-delhi-hc-issues-notice-in-shamnad-basheer-v-union-of-india-ors-i.html </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn64">
<p><a name="_ftn64"></a> In response to an RTI request made to the IPO in Mumbai for forms unavailable on the website, CIS received a reply stating, "As thousand [sic] of Form -27 are filed in this office, it is very difficult to segregate Form-27 for the patent numbers enlisted in your RTI application as it needs diversion of huge official staff/ manpower and it will affect day to day [sic] work of this office." This research is ongoing and unpublished. Please contact us for a copy of the RTI application and the response received.</p>
</div>
<div id="ftn65">
<p><a name="_ftn65"></a> WIPO Secretariat<i>, </i>Patent Pools and Antitrust - A Comparative Analysis, available at <a href="https://docs.google.com/viewer?url=http%3A%2F%2Fwww.wipo.int%2Fexport%2Fsites%2Fwww%2Fip-competition%2Fen%2Fstudies%2Fpatent_pools_report.pdf"> https://docs.google.com/viewer?url=http%3A%2F%2Fwww.wipo.int%2Fexport%2Fsites%2Fwww%2Fip-competition%2Fen%2Fstudies%2Fpatent_pools_report.pdf </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn66">
<p><a name="_ftn66"></a> Form 27, The Patents Act, available at <a href="http://ipindia.nic.in/ipr/patent/manual/HTML%20AND%20PDF/Manual%20of%20Patent%20Office%20Practice%20and%20Procedure%20-%20html/Forms/Form-27.pdf"> http://ipindia.nic.in/ipr/patent/manual/HTML%20AND%20PDF/Manual%20of%20Patent%20Office%20Practice%20and%20Procedure%20-%20html/Forms/Form-27.pdf </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn67">
<p><a name="_ftn67"></a> David J. Goodman and Robert A. Myers, 3G Cellular Standards and Patents, available at <a href="http://patentlyo.com/media/docs/2009/03/wirelesscom2005.pdf">http://patentlyo.com/media/docs/2009/03/wirelesscom2005.pdf</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn68">
<p><a name="_ftn68"></a> Darien CT, Review of Patents Declared as Essential to WCDMA through December, 2008, available at <a href="http://www.frlicense.com/wcdma1.pdf">http://www.frlicense.com/wcdma1.pdf</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn69">
<p><a name="_ftn69"></a> Supra note 67.</p>
</div>
<div id="ftn70">
<p><a name="_ftn70"></a> Donald L. Martin and Carl De Meyer, Patent Counting, a Misleading Index of Patent Value: A Critique of Goodman & Myers and its Uses, available at <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=949439">http://papers.ssrn.com/sol3/papers.cfm?abstract_id=949439</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn71">
<h5><a name="h.b6s0l5evilsq"></a> <a name="_ftn71"></a> Rohini Lakshané, Joining the Dots in India's Big-Ticket Mobile Phone Patent Litigation<i>,</i> available at <a href="http://cis-india.org/a2k/blogs/joining-the-dots-in-indias-big-ticket-mobile-phone-patent-litigation"> http://cis-india.org/a2k/blogs/joining-the-dots-in-indias-big-ticket-mobile-phone-patent-litigation </a> (last accessed 22 April, 2016). See also supra note 47 for more details.</h5>
</div>
<div id="ftn72">
<p><a name="_ftn72"></a> Supra note 55.</p>
</div>
<div id="ftn73">
<p><a name="_ftn73"></a> 318 F. Supp. 1116, 1120 (S.D.N.Y. 1970), modified and aff'd, 446 F. 2d 295 (2d Cir. 1971), cert. denied, 404 U.S. 870 (1971).</p>
</div>
</div>
<div style="text-align: justify; ">
<hr size="1" width="33%" align="left" />
<div>
<div id="_com_1"><a name="_msocom_1"></a>
<p>2015</p>
</div>
</div>
<div>
<div id="_com_2"><a name="_msocom_2"></a>
<p>They filed it in 2011</p>
</div>
</div>
<div>
<div id="_com_3"><a name="_msocom_3"></a>
<p>The 2011 filing only includes pharma, BTW: http://spicyip.com/docs/Form%2027s.pdf. Also, this writ is from May 2015: http://spicyip.com/wp-content/uploads/2015/05/FORM-27-WP-1R-copy.pdf Anyway, I'll leave it as it is.</p>
</div>
</div>
</div>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/comments-on-department-of-industrial-policy-and-promotion-discussion-paper-on-standard-essential-patents-and-their-availability-on-frand-terms'>https://cis-india.org/a2k/blogs/comments-on-department-of-industrial-policy-and-promotion-discussion-paper-on-standard-essential-patents-and-their-availability-on-frand-terms</a>
</p>
No publisherAnubha Sinha, Nehaa Chaudhari and Rohini LakshaneAccess to KnowledgePervasive TechnologiesCompetitionFeaturedPatents2016-05-03T02:30:15ZBlog EntryStandard Essential Patents on Low-Cost Mobile Phones in India: A Case to Strengthen Competition Regulation?
https://cis-india.org/a2k/blogs/the-socio-legal-review-nehaa-chaudhari-standard-essential-patent-on-low-cost-mobile-phones-in-india
<b>The realization of the promise of the sub hundred dollar mobile device as a facilitator of access to knowledge is contingent inter alia on its availability in the market place. In turn, the market availability of the sub hundred dollar mobile device is influenced by the existence of an enabling environment for producers to produce, and consumers to consume. From a regulatory perspective, the enabling environment itself is a function of existing laws and policies, and the ‘developmental effects’ of certain laws and policies (Saraswati, 2012).</b>
<p style="text-align: justify; ">This article seeks to examine one such legal and policy lever and the role of a regulator in the development of an enabling environment for access to sub hundred dollar mobile devices. This paper is founded on four assumptions: first, that access to sub hundred dollar mobile devices is influenced by their price; second, that the question of access necessitates conversation between the intellectual property regime and several other actors, sites and tools; third, that one of the fundamental goals of regulatory reform is the creation of a ‘stable, open and future- proof environment’ (Guermazi and Satola, 2005) that encourages access to these devices; and fourth, that there exist public law implications of intellectual property that justify the involvement of State actors and regulators in matters that may arise out of private transactions.</p>
<p style="text-align: justify; ">This article will examine whether there is a role to be played by competition law in this narrative of innovation, intellectual property and access to sub hundred dollar mobile devices. In light of increasing litigation around standard essential patents, and the inability of FRAND and International Standard Setting Organizations to find a comprehensive solution, this paper will question the efficacy of competition law as an ex post solution to a problem that might be better addressed by ex ante regulation from a specialized body.</p>
<p style="text-align: justify; ">In an attempt to address these questions, this article will examine the role of the Competition Commission of India and the Indian Judiciary. Orders of the Competition Commission will be studied from its inception till March, 2015, in order to draw conclusions about the role that the Commission identifies for itself and the nature of disputes it adjudicates. This article will also examine the role of similarly placed institutions in the United States of America as well as some member states of the European Union.</p>
<p style="text-align: justify; ">It will be argued that while Competition Law might address some of the issues arising out of litigation around standard essential patents, and might be a tool to increase access to sub hundred dollar mobile devices, its efficacy as a long term solution in light of its nature as an ex post solution, is questionable. Consequently, it might be prudent to have a conversation leaning towards exante regulation of the market place by a specialized regulator.</p>
<hr />
<p>The paper was published by <a class="external-link" href="http://www.sociolegalreview.com/standard-essential-patents-on-low-cost-mobile-phones-in-india-a-case-to-strengthen-competition-regultion/">Socio Legal Review</a> (National Law School of India University). Download the PDF <a href="https://cis-india.org/a2k/blogs/Standard-Essential-Patents-on-Low-Cost-Mobile-Phones-in-India-A-Case-to-Strengthen-Competition-Regulation.pdf" class="internal-link">here</a>.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/the-socio-legal-review-nehaa-chaudhari-standard-essential-patent-on-low-cost-mobile-phones-in-india'>https://cis-india.org/a2k/blogs/the-socio-legal-review-nehaa-chaudhari-standard-essential-patent-on-low-cost-mobile-phones-in-india</a>
</p>
No publishernehaaPatentsCompetition LawCompetitionAccess to Knowledge2016-04-24T04:42:52ZBlog EntryA Study of J. Sai Deepak's Comments on Competition Law in India
https://cis-india.org/a2k/blogs/a-study-of-j-sai-deepaks-comments-on-competition-law-in-india
<b>In his blog, 'The Demanding Mistress', J. Sai Deepak has commented on the competition law in India, using provisions of different acts, case judgments and amendments to these acts. He has also included a comment on India’s patent law. This review studies his comments to the Competition Act, 2002 (“Competition Act”) and the Patents Act, 1970 (“Patents Act”).</b>
<p>Read J. Sai Deepak - The Demanding Mistress<a href="#fn1" name="fr1">[1]</a>. Nehaa Chaudhari provided inputs and edited this blog post.</p>
<hr />
<h2>The Nexus Between the Competition Act and the Patents Act</h2>
<p style="text-align: justify; ">Sai Deepak explains the nexus between the Competition Act and the Patents Act<a href="#fn2" name="fr2">[2] </a>using two positions. Firstly, by using two situations to explain which of these two acts will apply under different circumstances. Secondly, by explaining the overlap that is apparent in cases of abuse of power.</p>
<p style="text-align: justify; ">Under the first issue, the two situations are thus. In a case where a patentee's patent over a technology allows him to acquire a position of dominance, Competition Act will be applied if he abuses this dominance. In case a patentee imposes a high license fee on his product, many players cannot afford it and get ejected from the market. Here, both the acts would apply, thereby indicating an overlap.</p>
<p style="text-align: justify; ">Under the second issue, it is stated that abuse of power could also happen if a patentee sets an "unfair price". Therefore, Sai Deepak argues that for ensuring fair or affordable price, there should be harmony between Competition Act and Patents Act. He has derived harmonized interpretations of "unfair price" under the Competition Act and "reasonably affordable price" under the Patents Act. He explains that the price under each law is measured according to the price for the licensee and not the price demanded or the value of the licensed technology. He further, argues that such a harmonization is possible since "price" under these two acts is essentially used in the same context. It is necessary to harmonize the two acts since the overriding effect of Section 60 of the Competition Act can be effective only when an inconsistency is proved with the other provisions or laws.</p>
<h3 style="text-align: justify; ">Patents and Competition "Arrangements"</h3>
<p>An arrangement<a href="#fn3" name="fr3">[3] </a>or collusion may exist between two market players if their activities can be foreseeably linked, even if there is no express act or formal arrangement between these parties. This has been explained through an example.</p>
<p>A sells a patented drug in the market. B sells another patented drug which is similar to the drug sold by A. A also has some share in B's company. When C introduces a similar drug at a much cheaper price, B is forced to reduce his the price of his drug. A follows suit.</p>
<p style="text-align: justify; ">It may be noted that since there were similarities between the drugs being sold by A and B, and, therefore the patent, it may have been possible for B to challenge A’s patent on prior art and eject A from the market, thereby reducing competition.</p>
<p style="text-align: justify; ">Since he did not challenge A's patent which was closest to that of B in terms of prior art, there may be an arrangement between A and B. This shows that A and B decided to divide the market and not encroach upon each other's trading space. In addition to this, the fact that A was a shareholder in B's company, points in the direction of a collusive activity.</p>
<h2 style="text-align: justify; ">Legality of Pay-for-Delay Settlement Payments</h2>
<p style="text-align: justify; ">This post, as written by Amshula Prakash, refers to J. Sai Deepak's comments on the topic. She has described a Pay-For-Delay settlement <a href="#fn4" name="fr4">[4] </a>as a patent settlement wherein the patentee pharmaceutical company pays the generic manufacturer to remain ejected from the market for a certain period of time.</p>
<p style="text-align: justify; ">She justifies these agreements by relying on the case of <i>Federal Trade Commission v. Actavis</i> <a href="#fn5" name="fr5">[5]</a>,which upheld that such agreements are lawful as long as their anti-competitive activities are covered under the exclusive patent granted to them. She opines that entering late into the market is better than not entering at all, and such a deal would anyway not go beyond the life of the patent. She concludes by reiterating J. Sai Deepak's statement that the exact impact of the agreement cannot be ascertained, as no such cases of Pay-For-Delay agreements have arisen in the Indian market yet.</p>
<h2 style="text-align: justify; ">Collective Bargaining</h2>
<p style="text-align: justify; ">J Sai Deepak has addressed two issues under this post. Firstly, the relation between collective bargaining and cartel-like conduct. Secondly, whether any defense under S.3(3) <a href="#fn6" name="fr6">[6]</a> of the Competition Act is available against cartel-like conduct.</p>
<p style="text-align: justify; ">In first issue, <a href="#fn7" name="fr7">[7]</a> J. Sai Deepak suggests that collective bargaining is a joint venture as it increases efficiency of entities in providing services. Similarly, an agreement to reduce such efficiency is also a joint venture, since it may ensure competitiveness in the market and control over prices. He specifies grounds to determine the purpose of a collective act which helps ascertain whether it will be covered under "collective bargaining". These include the nature of business, parity between parties, past negotiations etc. He has relied on foreign sources to justify cartel-like behavior of smaller entities, like Australia's Dawson Committee and Taiwan's efforts to integrate smaller enterprises into the mainstream market to increase efficiency and competitiveness. Hence he suggests that an amendment should be made in law to permit small businesses to make an exception to cartel-like conduct and collective bargaining.</p>
<p style="text-align: justify; ">Under the second issue, <a href="#fn9" name="fr9">[9]</a> he opines that a strict assumption of the presence of any anticompetitive nature or agreement is counter productive to the intention of the law. The available defenses under S.3(3) for parties accused of cartel-like conduct can be justified using the proviso<a href="#fn10" name="fr10">[10]</a> under this section. He explains that collective bargaining may be seen as a "joint venture" under the proviso of S.3 if it is not anti-competitive. He has further supported this argument by relying on <i>FICCI - Multiplex Association of India v. United Producers/ Distributors Forum</i>, <a href="#fn11" name="fr11">[11] </a>where "collective bargaining" was accepted as a valid defense to cartel-like behavior.</p>
<h2 style="text-align: justify; ">Power of Competition Commission with Respect to Abuse of Powers</h2>
<p>J. Sai Deepak has explained the powers of the Competition Commission of India (CCI),<a href="#fn12" name="fr12">[12] </a>firstly, with respect to abuse of powers and secondly, in terms of imposing liability.</p>
<h3>With Respect to Abuse of Powers</h3>
<p style="text-align: justify; ">With respect to abuse of powers, he refers to Section 4 of the Competition Act. It refers to a situation wherein a dominant player in the market sets a discriminatory (including predatory price) or unfair price in the sale of his good. Predatory pricing is explained in this section and not discriminatory or unfair price. J. Sai Deepak argues that since they are capable of having different meanings, there might be different forms of abuse which a dominant entity can exercise.</p>
<p style="text-align: justify; ">He relies on a test laid down in a case on unfair price, namely <i>United Brands Company v. Commission of the European Communities.</i><a href="#fn13" name="fr13">[13]</a> A question arising under this test was whether the regulator is expected to fix prices if they are found to be unfair. To show that the CCI has the power to fix prices, S.27 and 28 of the Act have been compared. Section 27(d) empowers the CCI to direct that agreements which are in contravention of Section. Furthermore, Section 27 (g) allows the CCI to pass orders 'it may deem fit'. Section 28(2)(a) empowers the CCI to vest property rights, which creates licenses for third parties. The CCI can set future commercial terms in agreements remove complexities of the market in the interest of equity and justice. This shows the abundant powers the Competition Commission of India has to set prices.</p>
<h3 style="text-align: justify; ">In Terms of Imposing Liability</h3>
<p style="text-align: justify; ">To answer whether these decisions of the CCI are <i>in rem </i><a href="#fn14" name="fr14">[14]</a>, he explains that the CCI can regulate market transactions and the finding of an abusive practice would be applied to other enterprises with similar practices. This shows that CCI lays down rules prescribing acceptable practices in the market.</p>
<h2>Review of the Competition Amendment Bill, 2012</h2>
<p style="text-align: justify; ">This post discusses the proposed amendments in the Bill <a href="#fn15" name="fr15">[15] </a>regarding three issues. Firstly, in regards to joint dominance, i.e. position of dominance enjoyed by one or more enterprises, J. Sai Deepak argues that the Bill recognizes an oligopolistic market's collusive activities, thereby providing a legal method of identifying it. He argues that it is not yet time to introduce it into the Indian industrial arena, since S.3 which regards anti-competitive agreements, is too rigorous to harmonize the concept of joint dominance with it.</p>
<p>Secondly, another proposed change is to render the decision taken under S.21<a href="#fn16" name="fr16">[16] </a>appeal-able under S.53A of the Act. He criticizes this by saying that an appeal on S.21 while adjudicating on S.53A may lead to a multiplicity of legislations and jurisdiction issues.</p>
<p style="text-align: justify; ">Lastly, the amendment of S.5A, empowers the government to specify the values of any assets or turnovers based on the class of enterprises. The government may consult the CCI, but the consultation is not binding or of mandatory assent, which shows that the CCI might turn into a tool which furthers the powers of the executive.</p>
<h2 style="text-align: justify; ">Conclusion</h2>
<p style="text-align: justify; ">On reading J. Sai Deepak's comments on the competition law in India, I have concluded that several provisions under legislations regulating competition in Indian markets might still not be comprehensive. This may be because many scenarios for which these provisions have been made have not yet arisen in India. Hence a few outcomes of these legislations remain to be mere speculations and as several developments in the market are still underway, laws like the Competition Act should adopt to these if and when they arise.</p>
<hr />
<p style="text-align: justify; ">[<a href="#fr1" name="fn1">1</a>]. http://thedemandingmistress.blogspot.in/</p>
<p style="text-align: justify; ">[<a href="#fr2" name="fn2">2</a>]. http://thedemandingmistress.blogspot.in/2013/09/the-overlap-between-patents-and.html#links</p>
<p style="text-align: justify; ">[<a href="#fr3" name="fn3">3</a>]. http://thedemandingmistress.blogspot.in/2011/10/patents-and-competition-need-for.html#links</p>
<p style="text-align: justify; ">[<a href="#fr4" name="fn4">4</a>]. http://thedemandingmistress.blogspot.in/2013/06/legality-of-pay-for-delay-settlement.html#links</p>
<p style="text-align: justify; ">[<a href="#fr5" name="fn5">5</a>]. 570 U. S. ____ (2013)</p>
<p style="text-align: justify; ">[<a href="#fr6" name="fn6">6</a>]. Defines the type of agreements which would qualify as anti-competitive</p>
<p style="text-align: justify; ">[<a href="#fr7" name="fn7">7</a>]. http://thedemandingmistress.blogspot.in/2012/01/collective-bargaining-and-cartel-like.html#links</p>
<p style="text-align: justify; ">[<a href="#fr8" name="fn8">8</a>]. Committee of Inquiry for the Review of the Trade Practices Act of the Australian Parliament</p>
<p style="text-align: justify; ">[<a href="#fr9" name="fn9">9</a>]. http://thedemandingmistress.blogspot.in/2012/01/competition-act-is-collective.html#links</p>
<p style="text-align: justify; ">[<a href="#fr10" name="fn10">10</a>]. Refers to “any agreement entered into by way of joint ventures”.</p>
<p style="text-align: justify; ">[<a href="#fr11" name="fn11">11</a>]. Case No. 01 Of 2009</p>
<p style="text-align: justify; ">[<a href="#fr12" name="fn12">12</a>]. http://thedemandingmistress.blogspot.in/2015_01_01_archive.html</p>
<p style="text-align: justify; ">[<a href="#fr13" name="fn13">13</a>]. C-27/76 [1978]</p>
<p style="text-align: justify; ">[<a href="#fr14" name="fn14">14</a>]. http://thedemandingmistress.blogspot.in/2014/07/are-decisions-of-competition-commission.html#links</p>
<p style="text-align: justify; ">[<a href="#fr15" name="fn15">15</a>]. http://thedemandingmistress.blogspot.in/2015/03/a-review-of-competition-amendment-bill.html#links</p>
<p style="text-align: justify; ">[<a href="#fr16" name="fn16">16</a>]. Reference by Commission to statutory authority in case of contravention with the Act</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/a-study-of-j-sai-deepaks-comments-on-competition-law-in-india'>https://cis-india.org/a2k/blogs/a-study-of-j-sai-deepaks-comments-on-competition-law-in-india</a>
</p>
No publisherAarushi BansalCompetitionAccess to KnowledgePervasive Technologies2015-11-21T06:18:42ZBlog EntryDoes the Social Web need a Googopoly?
https://cis-india.org/openness/blog-old/does-the-social-web-need-a-googopoly
<b>While the utility of the new social tool Buzz is still under question, the bold move into social space taken last week by the Google Buzz team has Gmail users questioning privacy implications of the new feature. In this post, I posit that Buzz highlights two privacy challenges of the social web. First, the application has sidestepped the consensual and contextual qualities desirable of social spaces. Secondly, Google’s move highlights the increasingly competitive and convergent nature of the social media landscape. </b>
<p></p>
<p>Last week, and for many a surprise, Google launched its new
social networking platform, Buzz. The
new service is Google’s effort to amplify the “social nature” of their services
by integrating them under one platform, and adding some extra social utility. The social application runs from the Gmail
interface, but also links other Google accounts a user may have, including
albums on Picasa, and Google Reader. The service also allows for the sharing from
external sources, such as photos on Flickr, and videos from YouTube. The service also allows users to post, like,
or dislike the status updates of others which may be publicly searchable if the
user opts. Before a Gmail user may fully
participate in Google Buzz service, a unique Google Personal Profile must be
created. </p>
<p><strong>User Consent</strong></p>
<p>Much of the buzz surrounding the new social networking
service last week wasn’t paying much lip service to the new application. Instead, an uproar of privacy concerns continued
to dominate the Buzz scene, with many critics quickly labeling Buzz a “<a href="http://news.cnet.com/8301-31322_3-10451428-256.html">privacy nightmare</a>”. A <a href="http://digitaldaily.allthingsd.com/20100216/epic-files-ftc-complaint-over-google-buzz/?mod=ATD_rss">formal
complaint</a> has been already filed with the US Federal Trade Commission in
response to Google’s new privacy violating service. A
second-year Harvard Law student has also filed a <a href="http://abcnews.go.com/Technology/google-buzz-draws-class-action-suit-harvard-student/story?id=9875095&page=1">class-action
suit</a> against the company for its privacy malpractices. </p>
<p>Much of the privacy talk thus far has focused on issues of
consent, or lack thereof, in this case. Upon
Buzz’s launch, Gmail users were automatically subscribed as “opting in” for the
service. Google has used the private
address books of millions of Gmail accounts to build social networks from the
contacts users email and chat with most.
To entice users into using the service, Gmail users were set to
auto-follow all of their contacts, and in turn, to be followed by them,
too. Furthermore, all new Buzz users had
been set to automatically share all public Picasa albums and Google Reader items
with their new social graph. It is
argued that social network services should be <a href="http://jonoscript.wordpress.com/2010/02/20/buzz-off-google-social-networks-should-always-be-opt-in-not-opt-out/">opt-in,
rather than opt-out</a>, and that Buzz has violated the consensual nature of
the social web. </p>
<p>Illuminating the complications of building a social graph
from ones inbox is the story of an Australian women, who remains anonymous. As she claims, most of the emails currently received
through her Gmail account, are those from her abusive ex-boyfriend. Due to Google’s assumption that Gmail users
would like to be “auto-followed” by their Gmail contacts (mirroring Twitters friendship
protocol), items shared between herself and new boyfriend through her Google
reader account had become public to her broader social graph, including her
ex-boyfriend and his harassing friends.</p>
<p>In a <a href="http://www.gizmodo.com.au/2010/02/fck-you-google/">blog response</a>
directed to Google’s Buzz team, the woman scornfully wrote- “<em>F*ck you, Google. My privacy concerns are
not trite. They are linked to my actual physical safety, and I will now have to
spend the next few days maintaining that safety by continually knocking down
followers as they pop up. A few days is how long I expect it will take before
you either knock this shit off, or I delete every Google account I have ever
had and use Bing out of f*cking spite</em>”.
As this case demonstrates, the people we mail most often may not be our
closest friends. As email has replaced
the telephone for many as the dominate mode of communication--some contacts may
be friends, however, many others may not be. </p>
<p>In response to the uproar, tweaks to Buzz’s privacy features
have since been made. Todd Jackson,
Buzz’s product manager, has also posted a <a href="http://gmailblog.blogspot.com/2010/02/millions-of-buzz-users-and-improvements.html">public
apology</a> to the official Gmail Blog late last week for not “getting
everything quite right”. The service will
now assume the more user-centric “auto-suggest” model, allowing users to selectively
choose the contacts they wish to follow, and will also no longer auto-link Picasa
and Reader content. However, as the <a href="http://digitaldaily.allthingsd.com/20100216/epic-files-ftc-complaint-over-google-buzz/?mod=ATD_rss">EPIC’s
complaint notes</a>, many are still unsatisfied with the opt-out nature of the
service, arguing that users should be able to opt-into the service if they so
choose, rather than having to delist themselves for a service they didn’t necessarily
sign up. Ethical quandaries also still
loom over Google’s misuse of the users’ private contact lists to jumpstart
their new service. </p>
<p><strong>Contextual Integrity </strong></p>
<p>The attacks on personal privacy resulting from Google’s model
are vast. As the case of the Australian
woman illuminates, the concept of the “online friend” has completely taken out
of context with Buzz’s initial auto-follow model. Many of the contacts we make on a daily basis
need not be made public through the Google profile. For most, this Buzz’s privacy breach may be
benign or annoying at most. However, those who are engaged in sensitive social
or political relationships via their Gmail chat or email accounts, the revelation
of common contact could have been potentially damaging for many. A reporter from CNET has cleverly labeled
Buzz’ as a “<a href="http://news.cnet.com/8301-17939_109-10451703-2.html">socially
awkward networking</a>”, as bringing diverse contacts under one umbrella
doesn’t exactly make the most social sense. In response, Gmail users are
required to sort through and filter their Buzz followers according, or choose
to disable the service all together.</p>
<p>Besides questions of who is stalking whom, the assumptive
and public nature of Google’s new move
has cast a shadow of doubt among Gmail users regarding the ability of Google to
maintain the privacy and contextual integrity of the Gmail account. Should one account be the place to socialize,
and “do business”? Gmail is, and should remain, an email
service. However, Buzz takes the email
experience into new and questionable grounds.
Do Gmail users feel entirely comfortable having their personal email,
social graph, and chat functions all coming under the auspices of one platform?
Many users felt they had been lured
into using a social networking service that they didn’t sign up for in the
first place. </p>
<p><strong>Social Media Competition</strong></p>
<p>In addition to Google’s attempt to integrate their various
service offerings, Buzz is seen as an obvious attempt to bolster
competitiveness in the social media market.
In 2004, Google released Orkut. While the service has become big in
countries such as Brazil and India, it has been overshadowed by sites such as
Facebook in other jurisdictions, and has not been able to prove itself as a mainstream
space for networking. In the past year, Google
had also launched Google Wave, a tool that mixes e-mail, with instant messaging
and the ability for several people to collaborate on documents. However, the application failed to completely
win over audiences, and was considered one of the <a href="http://www.readwriteweb.com/archives/top_10_failures_of_2009.php">top
failures of 2009</a>. </p>
<p>With Google unable to effectively saturate the social media
ecosystem, Buzz is an attempt to compete with the searchable and real time
experiences provided by social media giants, Facebook and Twitter. Increased competition within the social media
market could be a positive development for privacy, as social media companies
could arguably be compete on their ability to provide users with preferable privacy
architectures. To the contrary, however,
such competition has thus far had negative ramifications for user privacy, as
the recent Buzz and Facebook moves illustrates.
Facebook’s loosened privacy settings were a <a href="http://www.economist.com/specialreports/displaystory.cfm?story_id=15350984">competitive
knee-jerk</a> to Twitters searchable and real time experience. Through a Twitter search, individuals can
come to know what people are saying about a certain topic, event, or product,
and as a result, the service has received a great deal attention from users,
and non-users such as advertisers, alike.
</p>
<p>In an attempt to one-up, their competition, the “Twitterization”
of Facebook followed in two distinct stages.
First was with the implementation of the Facebook News Feed, which gave
users a real time account of actions their friends on the site. Many argued that this feature invaded user
privacy. However, it was argued by
Facebook that they only were making available information that was already
accessible through individual profile pages.
The News Feed, as it happens, effectively took user information and
actions on the site out of original context by streaming this information live
for others easy viewing. Information
users once had to rummage for had become accessible in real time on the
homepage of the service. </p>
<p>Secondly, Facebooks’ recent <a href="http://www.eff.org/deeplinks/2009/12/facebooks-new-privacy-changes-good-bad-and-ugly">privacy
scandal</a> was a step towards making profile information more searchable and accessible
to third parties, as is most often the case with the more public feeds on Twitter. As <a href="https://cis-india.org/openness/blog-old/•%09http:/www.simplyzesty.com/twitter/unrelenting-twitterization-facebook-continues/">one
commentator notes</a>, “<em>Facebook used to be very private but private
is not great for search, to have great search you need all of the data to be
publicly available as it mostly is on Twitter. Facebook have not quite nailed
real time search yet but they are getting there and it will soon be a great way
of examining sentiment across different demographics</em>”. As a result, information on Facebook, such as
name, profile picture, friends list, location and fan pages have become open
access information. In addition, users
on Facebook have been subjected to new privacy regime without notice, leaving
their profile pages generally more open, and searchable through Google. </p>
<p><strong>Converging the Online
Self</strong></p>
<p>The impact Buzz alone can make on the social media landscape
remains questionable (Gmail heralds only 140 million accounts, which is a deficient
cry from Facebooks’ 400+ million dedicated users). However, despite Googles’ in/ability to
become claim hegemony over the social web landscape, the abuse of private information
to launch a new service has raised serious debate over the privacy and the
future of social networking. The Buzz
service marks more than yet another new social networking service that brushes
aside the privacy of users. As user control
and privacy becomes an increasingly peripheral concern, Google’s shift toward privacy
decontrol also signifies a worrisome supply-side shift towards the
“convergence” of online identity.</p>
<p>Within this new dominant paradigm, privacy concerns are
often interpreted as antithetical to competitiveness in the social media
marketplace. Instead of an imagined ecosystem
based on user control and privacy preference, it can now be inferred that the
competiveness of social networking services will continue to disrupt the
delicate balance between the public and private online. Regardless that greater
visibility and searchability of the social profile may not be in the public
interest, Google’s recent move works to reinforcement of the new status quo of
“openness”. Furthermore, it is
questionable as to how concentrated and integrated a user may want their online
activities to become. A critical
discourse of online privacy must, therefore, take into account the ways in
which the social web has renders the user increasingly transparent through networks
of networking services. </p>
<p>Google’s Buzz illustrates this point quite well. Initially, Gmail was a straightforward email
service. Next, the AdWords advertising service
and Gmail chat had become integrated into the Gmail experience. Because Google was using the confidential
emails of its Gmail users, privacy concerns began to mount upon the launch of
the the AdWords service. However,
turmoil surrounding AdWords died down, notably as Google continues to reassert
that is is bots, not humans, that are scanning the emails in order to provide
the AdWords service. Next, there gradually
occurred a convergence of Google services under the single social profile, or
“email address”. A single Gmail account
potentially includes use of with Google reader, calendar, chat, groups and an Orkut
account. In terms of behavioral targeted
advertising, Google has recently announced that they will be providing
personalized search results even to users who have not signed up for Google
services. This will be done through the
placement a cookie on all machines to provide targeted advertising seamlessly
through each Google search and browsing session. </p>
<p>While many argue that the collection of non-personally
identifiable information poses no privacy harm, this assumption needs
reassessment. As Google comes to offer
us more, they also come to learn more, and Buzz signifies this trend towards a Googopolized
social web. To add another layer of
complexity to Googles hegemony, users of the Buzz service are also required to create
a “Google Profile”, which is searchable online and displays real time status
updates, comments, and connections from other social network services, such as
Facebook and Twitter. As Google recently
launched the beta version of the new <a href="http://googleblog.blogspot.com/2009/10/introducing-google-social-search-i.html">Social
Search</a>, Buzz was just the service required to increase the relevance to the
new service by encouraging Gmail users to publish even more personal
information. The creation of a personal
Google profile, which is indexed and searchable, raises many concerns about
privacy and identity, and doubts are continually raised over <a href="http://www.businessinsider.com/hey-google-thi-i-why-privacy-matter-2010-2">how
much Google should come to know</a> about us.</p>
<p>While Google’s services have arguably made the online social
experience more seamless and tailored, it is questionable as to how relevant,
or even desirable, such a shift may be.
At present, it may appear that Google is wearing far too many hats, and
users should be wary of placing all eggs into one basket. As
the launch of Buzz has shown us, user consent and the contextual integrity of
private personal information can be compromised when a diverse number of online
services are integrated and given a social spin. When competition among social web providers
drives users to lose control of the private information which is inherently theirs,
critical questions surrounding competition, convergence and privacy require
critical exploration. </p>
<p>
For more details visit <a href='https://cis-india.org/openness/blog-old/does-the-social-web-need-a-googopoly'>https://cis-india.org/openness/blog-old/does-the-social-web-need-a-googopoly</a>
</p>
No publisherrebeccaPrivacySocial NetworkingCompetitionGoogle Buzz2011-08-18T05:06:37ZBlog EntryIJLT-CIS Law Essay Competition
https://cis-india.org/a2k/blogs/ijlt-cis-law-essay
<b>The Indian Journal of Law and Technology and CIS are conducting a legal essay competition to encourage law students across India to think critically about the techno-legal issues facing us today. Students can write on any of the four themes, with the top prize being Rs. 7500 and an internship at CIS.</b>
<p>The <a class="external-link" href="http://www.ijlt.in">Indian Journal of Law and Technology</a> (IJLT) is an annual law journal published by the Law and Technology Committee of the National Law School of India University, Bangalore. IJLT aims to provide a platform for promoting discussion on issues relating to the interface between law and technology, particularly from the perspective of the developing world.</p>
<p>The Centre for Internet and Society (CIS) is a leading research organisation that engages with issues of digital pluralism, public accountability and pedagogic practices, in relation to the field of Internet and Society, with special emphasis towards South-South dialogue and exchange. IJLT and CIS are proud to announce the 1st IJLT-CIS Annual Law Essay Competition 2009, which is a competition open to undergraduate law students across India. The competition seeks to encourage creative thinking and promote research and writing about crucial legal issues in the field of Information Technology and the Internet.</p>
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<p align="center"><a href="http://www.nls.ac.in/ijlt.pdf"><img src="http://dl.dropbox.com/u/2350052/Essay%20competition%20header.jpg" alt="IJLT ESSAY COMPETITION" height="104" width="379" /></a></p>
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<h3>Themes</h3>
<ol><li>Criminality and Second Life: Dr. Jekyll and Mr. Hyde</li><li>Trademark and the Internet: Cybersquatting and the Google Adwords-Consim Controversy -- Reasonable Limits to Trademark Protection</li><li>3G Services and Spectrum Allocation: Fair Competition, Welfare and Freedom of Speech and Commerce on the Airwaves</li><li>Easier to Be Criminals: Judicial and Legislative Responses to Cyber Crime in India.</li></ol>
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<h3>Judging</h3>
<p>The winning law essays shall be determined through a blind review by a panel of eminent academicians in the field of law and technology.</p>
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<h3>Prizes</h3>
<p>Ist Prize: Rs. 7500 and an internship at CIS</p>
<p>2nd Prize: Rs. 5000</p>
<p>3rd Prize: Rs. 4000</p>
<p>Please note that the terms of the above internship shall be decided by CIS on its own initiative, and as such shall not be negotiable. The winning law essay shall be considered for publication in the next issue of IJLT in accordance with the Editorial Policy of IJLT.</p>
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<h3>Eligibility</h3>
<p>The competition is open to all undergraduate law students in any college/law school in India.</p>
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<h3>Submission Guidelines</h3>
<ul><li>The entries must be between 5000-7500 words inclusive of all footnotes. The entries that fall short of or exceed the above word limit shall be penalised.</li><li>Substantive footnoting is not permitted and shall be penalised. The use of endnotes or other citation methods is not permitted.</li><li>The entries should be accompanied by a 150-word abstract. The abstract is not counted towards the word limit.</li><li>All entries should be in Times New Roman, size 12, 1.5 line spacing. The footnotes used should be in Times New Roman, size 10, single line spacing.</li><li>The footnotes used should follow a uniform and complete system of citation. However, the use of the Harvard Blue Book (18th edition) system of citation is encouraged.</li><li>The entries must be submitted in the Microsoft Word format and with all identifying information removed from the text of the entries and the file properties. The covering e-mail should contain the name, e-mail address, postal address, institution, course and year of study of the author.</li><li>The entries must be submitted via e-mail to essay@ijlt.in.</li><li>The deadline for entries is 11:59 P.M., 23rd January, 2010.</li></ul>
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<p>For any clarifications, please send an e-mail to editorialboard@ijlt.in.</p>
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For more details visit <a href='https://cis-india.org/a2k/blogs/ijlt-cis-law-essay'>https://cis-india.org/a2k/blogs/ijlt-cis-law-essay</a>
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No publisherpraneshIntellectual Property RightsCompetition2011-08-04T04:35:20ZBlog Entry