The ‘Emcure model’ of Foreign Investment and Joint-Ventures

Over the last few years, we’ve seen an increasing amount of co-operation between Big PhRMA companies and Indian generics, mostly in the form of acquisitions such as the Abbot-Piramal deal or the Ranbaxy-Diachi deal. The aim of these deals, for innovator companies, was to build up capacities in the generics sector to cater to the growing market for generic medicines. The growing investment led to a clamour for a ban on 100% foreign direct investment in generic pharmaceutical companies. Apart from such investment, I think (and I’m no expert in these deals) there have been a fair amount of contract manufacturing deals between innovator companies and generics for mostly off-patent ingredients or drugs. 

What we have not seen, in the past, is substantial co-operation between innovator companies and generic pharmaceuticals in the field of patented, high technology medicines and this is what makes the Roche-Emcure deal interesting since it is a deal for complex pharmaceuticals like Herceptin and Pegasys interesting. According to most reports Emcure is responsible for only packaging and tech-transfer does not appear to be a part of the deal. The deal is still interesting because pharmaceutical patentees are always very reluctant to enter into any kind of licensing agreement which involves either a sale or transfer of patented technology. Once a contract is entered into with a local Indian company, it creates a set of legal obligations and in the case of a dispute, if a Court were to order specific performance of a contract, a patentee could lose control of its technology to its licensee. Given the level of mistrust in the pharmaceutical space, any decision to enter into a licensing agreement involving patented drugs obviously attracts a lot of attention and this is precisely why the Emcure-Roche deal generated so much interest. 

In the specific case of the Roche-Emcure deal, it appears that the deal itself was prefaced by the appointment of Dr. Girish Telang, who is the Vice-President of Roche India, to the Board of Directors of Emcure Pharmaceuticals. I’m presuming that Dr. Telang’s appointment was meant to act as extra-insurance and a guarantee against any surprise moves by the management of Emcure Pharmaceuticals. 

Emcure is no stranger to deals with innovator pharmaceutical companies for the manufacture of patented technology. Earlier in February, 2006 Emcure entered into a similar deal with Bristol Myers Squibbs (BMS) for the manufacture of atanzanavir. The deal appeared to be a royalty-free licence but still involved technology transfer. This was part of the effort by BMS to make its drugs available at a cheaper cost in Africa and India and Emcure was one of its partners in the venture. 

So what insurance did BMS take out before striking the deal with Emcure? 

I’m not sure of the answer to that question but it is interesting to note that a few months after the announcement of the BMS deal, in July, 2006 Blackstone, one of the most reputed private equity firms in the world, announced that it was going to invest US $50 million or Rs. 225 crores in Emcure Pharmaceuticals. I’m no whiz kid on the subject of Private Equity but I’m surprised that Blackstone would make its very first investment in India in Emcure Pharmaceuticals when there were so many other good deals out there. Emcure’s profit for the previous year 2004-05 was Rs 18.94 crores, which is respectable but still peanuts for a PE firm like Blackstone. 

Eventually Blackstone did make an investment in Emcure, although according to the share-holding disclosure filed with the Registrar of Companies (RoC), it does not look like it invested a sum of Rs. 225 crores in Emcure. The shareholding breakup for the year 2010-11 indicates that Blackstone owns about 303035 equity shares at Rs. 10 per share and another 17931642 preferential shares at Rs. 10 per share. You can access the link over here. The total value of that investment comes up to a sum of Rs. 18,23,46,770 (Rs. 18.23 crores – less than U.S. $ 4 million). According to the 2010-11 filings with the RoC, foreign investors, of which Blackstone is the largest, own only 15.39% of Emcure, with the promoter family owning more than 50%.. This investment was enough to get Blackstone a position on the Board of Directors at Emcure. There has been some talk of Blackstone exiting the deal but I don’t think that ever happened.

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Patent Office makes public the feedback to the Draft Guidelines for Examination of Biotechnology Patents

Image of E.Coli Bacilli from here

In a welcome development, the Controller General has made public the feedback that his office received in response to his call for comments on the Draft Guidelines for Examination of Biotechnology Patents. The feedback can be accessed over here on the website of the IPO. Our earlier post on the topic can be accessed over here. 

Most of the replies were from mainly law firms, specializing in patent prosecution. Responses from these law firms like Anand & Anand and Remfry & Sagar indicate that these firms are clearly not happy with the guidelines proposed by the Patent Office. Other responses are from industry bodies like OPPI, ABLE, CropLife and the most important of them all – Biotechnology Industry Organization (BIO). Predictably, all three organizations are not very keen on the guidelines in their present form. 

Of the India based biotech companies, Amrita Therapeutics did reply. An interesting bit of trivia about this company – one of its scientific advisors is Dr. Ananda Chakrabarty, is THE Chakrabarty from the landmark case of Diamond v. Chakrabarty, which was decided by the U.S. Supreme Court back in 1980. The case held that micro-organisms altered/isolated by man, constituted patentable subject matter under S 101 of American Patent Law. The invention in the case, which was assigned to GE, was a modified bacterium which could be used break down oil and hence could be used to clean up oil spills. 

Perhaps the only institution to whole-heartedly support the guidelines was the National Biological Authority constituted under the Biological Diversity Act, 2002. 

The ball is now in the CG’s court. Will the guidelines be modified or will they be published as they stand?

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SpicyIP Announcement: Brainstorming Session on Traditional Knowledge & Biodiversity

Patent Gurukul and Pravin Gandhi College of Law at Mumbai are hosting a ‘brainstorming’ session on ‘Traditional Knowledge & Biodiversity’ on February 15, 2013. The session will focus on the recent 'Guidelines for Processing of Patent Applications Relating to Traditional Knowledge' and its implications on the Biodiversity Act & Rules. The objective of this exercise as outlined in the press release below: 

In view of the extreme approach adopted by the government which is highly detrimental to indigenous research, it is proposed to draft recommendations to the government based on views emerging in the brainstorming. The final recommendations are expected to provide impetus to value added research based on sustainable development of indigenous resources with practical benefit-sharing model. Professionals like Dr. D.B. Anantha Narayana are expected to participate. 

Experts in the field, researchers, innovators and students are likely to be mutually benefited by this brainstorming session. 

Registration Details: The registration fee for students (with IDs) is Rs. 200/- (incl. Patent Gurukul alumni) and for the rest it is Rs. 1,000/-. Press and media personnel are, however, exempted from registration fee. The last date for registration is February 13, 2013. Please note: spot registration will be subject to seat availability.

Date & Time: February 15, 2013 from 09.30 AM to 01:00 PM. 

Venue: Moot Court Room, Pravin Gandhi College of Law, 8th Floor, Mithibai College Building, Vile Parle (W), Mumbai - 400 056. 

Contact information: Call Sajeev at 022-40895454 or email at gopanair@gnaipr.com

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Locus standi and public interest under the GI Act – Analysing GI Registry Order in ‘Darjeeling Tea’ rectification application

[*Long post]  

We reported that a rectification application had been filed under Section 27 of Geographical Indications of Goods (Registration and Protection) Act, 1999 (“GI Act”) for removal of ‘Darjeeling Tea’ GI.  The Assistant Registrar vide Order dated 28.09.2012 (“Darjeeling TeaOrder”) rejected the application inter alia on the ground of absence of locus standi. I shall argue that the Darjeeling Tea Order is legally incorrect vis-à-vis the ground of locus standi. I shall analyse other issues in a later post. [For Hindu report on Darjeeling Tea Order, see here.]

[As you are aware of, Section 27 of the GI Act empowers the Registrar to cancel or vary any registration and thereby rectify the register. The provision gets triggered when an “aggrieved person” applies to the Appellate Board or to the Registrar.]

In ‘Filing rectification application under the GI Act, 1999’, I noted that Mr. Praveen Raj, representing public interest, filed the rectification application for removal of ‘Tirupati Laddu’ GI tag. [For background, see here.] The Assistant Registrar, vide his Order dated 30.07.2012 (“Tirupati Laddu Order”), rejected Mr. Praveen Raj’s petititon inter alia on the ground of absence of locus standi. According to the Order, “the rectification applicant never elucidates how he was wounded by the registration of the product. On the other hand, it is the duty of the rectification applicant to set out fully the nature of the applicant’s interest in the registered product. The rectification applicant was unsuccessful to satisfy this Tribunal on this issue of his interest towards the registered GI.” (paragraph 6) Further, it was held that the applicant was not involved in similar trade or manufacturing a similar GI product and therefore, had no locus standi. In the light of Supreme Court judgment in Hardie Trading Ltd. and Anr. v. Addisons Paint and Chemicals Ltd. (“Hardie Trading Ltd”) and IPAB order on Payyannur ring [covered here], I argued that Section 27 of GI Act allows filing of rectification application on the ground of public interest and therefore, the Tirupati Laddu Order was dubious vis-à-vis its merits on the issue of locus standi.

GI Registrar’s Order on Darjeeling Tea (“Darjeeling Tea Order”) [For background, see here and here.]

Applicant did not enjoy locus standi

The applicant contended that he was a public spirited citizen. As registered GIs are enforceable against each and every citizen, it was contended that the applicant was an aggrieved person and therefore, within his right to file and initiate present proceedings.

The Assistant Registrar negated the contention and held that the “grievance of an applicant in rectification/cancellation petition must be legal and not sentimental and that common informers or persons who are interfering from merely sentimental notions are not persons aggrieved. Beyond a mere averment that the Applicant is a mere user of various kinds of tea, the Applicant has not shown the larger public that would be served and the mischief that would be remedied by the relief sought by him.” (paragraph 7)

According to the Darjeeling Tea Order, the averments of the rectification applicant “show that the Applicant is a mere common informer without any real interest in the Register being corrected.” A person cannot bring a rectification application challenging the registration unless the rectification applicant exhibits that he is harmed by the registration.  Further, “the rectification applicant never elucidates how he was wounded by the registration of the product. On the other hand, it is the duty of the rectification applicant to set out fully the nature of the applicant’s interest in the registered product. The rectification applicant was unsuccessful to satisfy this Tribunal on this issue of his interest towards the registered GI. The Applicant has miserably failed to prove his locus standi as a person aggrieved. The first issue of locus standi was decided against the rectification applicant.”(paragraphs 10 & 11)

Analysis

The Supreme Court, in Hardie Trading Ltd, dealt with Section 46 & Section 56 of  the Trade And Merchandise Marks Act, 1958 (“TM Act, 1958”). On drawing a comparison table, I pointed out that Section 56 of TM Act, 1958 and Section 27 of GI Act are almost identical provisions and therefore, the judgment in Hardie Trading was relevant vis-à-vis GI Act.

The Darjeeeling Tea Order cited Hardie Trading Ltd. It went a step further and cited the Supreme Court judgments in Kabushiki Kaisha Toshiba v. Tosiba Appliances Company & Ors. (“Kabushiki judgment”) and Infosys Technologies Ltd. v. Jupiter Infosys Ltd & Another (“Infosys judgment”) which affirmed Hardie Trading Limited. The Infosys judgment, citing paragraph 42 of Kabushiki judgment, categorically noted that Section 46 & Section 56 of TM Act, 1958 engrain private interest and public interest respectively.

The Darjeeling Tea Order seemed to lack clarity while setting out the ambit of “person aggrieved”under the GI Act. According to the Darjeeling Tea Order, the concept of “person aggrieved”under the GI Act is similar to that of Section 46 & Section 56 of TM Act, 1958. (paragraph 9). Further, “transplanted in the context of the GI Act, the expression “person aggrieved” must borrow its specific rationale and meaning from the express objective of the GI Act.”(paragraph 10). On one hand, the aforesaid order stated that the concept is similar to that of Section 46 & Section 56 of TM Act, 1958. On the other hand, it stated that the expression “must borrow its specific rationale and meaning from the express objective of the GI Act.” Read as a whole, it is evident that the Darjeeling Tea Order examined private interest rather than public interest for discerning the scope of “person aggrieved” under Section 27 of GI Act.

I disagree with the Darjeeling Tea Order.

Firstly, as pointed out earlier, Section 56 of TM Act, 1958 and Section 27 of GI Act are almost identical provisions. Both the provisions are titled ‘Power to cancel or vary registration and to rectify the register’. Section 46 of TM Act, 1958 is an altogether different provision titled ‘Removal from register and imposition of limitations on ground of non- use’. Section 27 of GI Act and Section 56 of TM Act, 1958 (not Section 46 of TM Act, 1958) are similar provisions.

Secondly, Section 27 of GI Act engrains the same ethos as that of Section 56 of TM Act, 1958. The objective of the GI Act “is to provide for the registration and better protection of geographical indications relating to goods.” As stated by House of Lords in the matter of Powell's Trade Mark 1894 (11) RFC 4 (which is cited in Hardie Trading Limited), “it is undoubtedly of public interest that they should not be unduly limited, inasmuch as it is a public mischief that there should remain upon the Register a Mark which ought not to be there, and by which many persons may be affected, who, nevertheless, would not be willing to enter upon the risk and expense of litigation.” If the objective is to preclude public mischief, maintain the correctness of register and thereby protect geographical indications relating to goods, the ambit of “person aggrieved” cannot be limited to those who are in the same trade. It should engrain public interest. Therefore, Section 27 of GI Act and Section 56 of TM Act, 1958 cannot be treated differently.

According to the Darjeeling Tea Order, “Beyond a mere averment that the Applicant is a mere user of various kinds of tea, the Applicant has not shown the larger public that would be served and the mischief that would be remedied by the relief sought by him.” (paragraph 7) I do not agree. It was averred that the Tea Board did not have the locus standi to file the application for ‘Darjeeling Tea’ GI for the reason that a mere representation as a representative of stakeholders of Darjeeling Tea would not be enough. It is to be noted that maintaining the purity of the register by itself engrains public interest. A registration in favour of the wrong representative does affect the purity of the register. Thus the aforesaid averment engrained the element of public interest. I am, however, disinclined to opine further as the extent of assertion made by the applicant vis-à-vis the public interest component involved in removal of GI tag is not clear. Irrespective of the aforesaid position, the Darjeeling Tea Order is legally incorrect as it emphasized on pegging the private interest component rather than the public interest component. [On a related note, Prashant argued [here and here] that more than 50% of all G.I. registrations are secured by the government/governmental bodies none of whom comply with the definition of ‘producers’ under the G.I. Act, 1999.]

Conclusion

Even though the Darjeeling Tea Order cited the relevant Supreme Court judgments, it adopted an approach oblivious of the principles set out by the aforesaid judgments. It evidently negated the aforesaid judgments when it held “the rectification applicant never elucidates how he was wounded by the registration of the product. On the other hand, it is the duty of the rectification applicant to set out fully the nature of the applicant’s interest in the registered product.” (paragraph 11) In other words, the Order emphasized on pegging the private interest rather than public interest and thereby, negated the relevant Supreme Court judgments. Irrespective of the extent of assertion made by the applicant vis-à-vis the public interest component involved in removal of GI tag, the Darjeeling Tea Order is legally incorrect as it emphasized on pegging the private interest component rather than the public interest component.  

As evident from the above discussion, both the Tirupati Laddu Order and Darjeeling Tea Order are legally incorrect orders. While the Tirupati Laddu Order completely overlooked the relevant Supreme Court judgments, the Darjeeling Tea Order cited the same! It may be a sheer coincidence that the conclusions in both the orders are couched in identical terms.. (See the highlighted portions of this post.) 

 

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Spicy IP Weekly Review: January Weeks 2-3

Image from here

This week, we come to the readers with the review slightly late and will be covering all the posts in the past 2 weeks since the January Week 1 Review by Sai Vinod. Given the higher number of blog posts to reminisce about, this weekly review won’t have a separate section referring to the global IP happenings this week.

It all started with Mathews carrying a detailed and incisive post in 2 parts (here and here) introducing the much-discussed Science, Technology and Innovation Policy, 2013, which was recently unveiled at the 100th Indian Science Congress. He subsequently came up with a superb analytical post on various facets of the Policy, which has already drawn praise from several quarters.

This was followed by a post drawing the readers’ attention to a blog post at Indiacorplaw regarding whether independent directors and minority shareholder voting can provide a solution to MNCs taking advantage of the relaxation of norms for royalty payment by their Indian subsidiaries.

Prashant, while referring to a post by Abantika Ghosh of the Indian Express on the Department of Industrial Policy and Promotion (DIPP) having started to issue compulsory licences for three commonly used anti-cancer drugs (Herceptin, Ixabepilone and Dasatinib), went on to distinguish between the CLs issued u/s 84 and 92 of the Patents Act, 1970 respectively and also wondered about the possible impact of such a move on the Big Pharma companies. Subsequently, Madhulika Vishwanathan, who’s now a part of the Spicy IP team, carried on a post examining the possible legal provisions that could have been used in pursuing this decision, and also how generics may follow up on this decision by noting the differences in approach that they will have to take regarding small molecule drugs and biologics. Soon after, Prashant carried another brilliant post revealing the political economy and interplay behind the generic lobbying efforts that might have culminated into such an action by the Indian government and role played by Yusuf Hamied, the head of Cipla.

Prashant followed this up with a rather interesting post on whether there exists a possibility that the mandatory royalty-sharing provisions introduced by the Copyright (Amendment) Act, 2012 can be bypassed by the parties to the contract choosing a foreign jurisdiction as the applicable law and then ensuring that the copyright flowing from such foreign law is respected in India vide S. 40 of the Copyright Act.

A lively debate ensued in the blog following the unfortunate demise of Aaron Swartz, the young activist involved in issues surrounding copyright policy and technology freedom. Swaraj came up with a moving post about Swartz’s achievements and speculating whether available information may indicate that the legal and prosecutorial pressures being piled on Swartz by the US Department of Justice were in any way responsible for his suicide. Shortly after this, Prashant made a strong argument about the need to ensure that Swartz’s death is not used as a rallying cry for those who would like nothing better than to hack into the computer networks and trespassing into private property, thereby flouting the laws of the land in the process. Prashant’s post attracted a lot of heated remarks both in the blog as well as other fora like twitter and the unfortunate and repeated ad hominem attacks directed against him finally led him to make his rebuttal known in a best possible logical manner in another post. Sometime later, Shamnad himself commented on the legacy that Swartz left for us and emphasized upon the need to have open access to resources and information, especially in sectors like education, drawing on instances such as DU Copyright controversy. In the same lines, Swaraj posted a while later looking into the genesis and evolution of the Open Access Movement, especially the UK stance relating thereto.

Prashant then came up with a report on how Mark Lynas, former anti-GM activist has surprisingly and publicly reversed his stance on genetically modified food and given the latter his approval in a conference down at Oxford.

Meanwhile, a post was carried on as a Spicy IP event about Patracode's workshop on January 21 that sought to introduce various solutions which can simplify researching and managing IP for a business organization and support its IPR, R&D and Legal Department.

Then it was the turn of one of the applicants for the Spicy IP Fellowship, L. Gopika Murthy, to present a refreshing outlook on the copyright infringement and issues over terms of service relating to social media, as were highlighted in Agence France Presse v. Daniel Morel, concerning copyright of content posted on Twitter and Twitpic and the Indian position regarding such matters. Gopika carried on another post in the Fellowship series on Madurai Malli, the jasmine flower known for its fragrance and its distinctive petal colour, having become the first horticultural product from Tamil Nadu to have been granted a GI status.

The Delhi High Court’s order endorsing the concept of international exhaustion under the trademark law had been appealed against by Samsung at the Supreme Court, which formed the subject of the next post by Shamnad, wherein he also provided a succinct explanation of the concept of exhaustion itself.

A guest post by Snigdha Roy, another applicant for the Fellowship, about the upcoming trend of patenting mobile apps that had started with the mobile company Lava having applied for the patents for 100 such apps, was next in line. Snigdha’s next post was meant to take the readers behind the scenes of online piracy in India and the funding mechanisms there for.

The next post was again a guest post, this time by Anubha Sinha, another Fellowship applicant, who touched upon the unusual topic of bare licensing, its treatment under the Indian and foreign jurisdictions and whether it can lead to abandonment of trademark. Anubha’s next post looks at the research and patents behind Graphene (labeled the world’s thinnest material), the tremendous patent activity surrounding it in the rest of the world and the manner in which Indian research centers have been left far behind in terms of patent applications, despite important research being carried out in Indian universities. In her 3rd post, Anubha ventured into hitherto little-explored territory, arguing about the urgent need to involve and adapt our IPR policy to better address the fight against climate change.

Aparajita Lath, another applicant, started her fellowship contention strongly with an incisive post on business method patents, the manner in which they are still being granted in India subverting the express statutory exclusion of the same and the policy considerations involved therein. Aparajita’s next post dealt with the application that had been filed to obtain GI status for Meerut Scissors and the status of GIs in India in general. Aparajita then went on to carry a post addressing the concern whether the Indian IPR regime has attained the maturity to cater to the needs of the creative average and low-income Indian innovators yet.

It was Swaraj’s turn next to come up with a post, wherein he’d reproduced the annual calendar of the International Trademark Association’s various events, conferences and meetings for the benefit of the readers.

Prashant then rued the lack of progress of the 2 PILs filed at the Madras High Court challenging the constitutionality of the IPAB, one of which had been filed by Shamnad himself, but scarcely any development has taken place regarding them in the past 2 years.

Shamnad then sought to look into whether Big Pharma is using the RTI route to ambush the generic pharma companies in pre-emptive lawsuits, many of which seem to be lacking in substance.

An extremely relevant and important post was then put forth by Rajiv examining in great details the legality of decompilation of software under the Indian Copyright Act and the issues pertaining thereto, including a jurisdictional comparison with the US and EU laws. (see here and here)

Finally, this review ends with extending a warm welcome to our 3 new Fellows, Anubha, Gopika and Aparajita, all bright young minds from NLUs, as well as Madhulika Vishwanathan, the new Spicy IP team member, all of whom would undoubtedly prove to be invaluable assets to the team in the days to come.

That’s all for now, readers. We’ll get back to you with loads of new developments and news throughout this week and at the end of it vide our next review. Till then, happy reading!

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Pirates of the Carribean: Retaliating Against IP

As expected, the WTO recently authorised Antigua, a tiny Carribean island, to "cross retaliate" against intellectual property belonging to the United States. 

What this effectively means is that Antigua qualifies as a "legal" pirate of the Carribean i.e. it can pirate music and movies belonging to US copyright holders, without violating any international norm. (I deliberately use the term "legal" pirate, if only to evoke a strong paradox)."...

As the US threatened Antigua with dire consequences for this purported "IP theft", Antigua quoted Bob Dylan: "When you ain't got nothing, you got nothing to lose". Certain to go down in trade history as a classic!
 
Several articles cover this interesting development which will no doubt have significant ramifications for our discourse on the "fairness' of free trade, egregious breaches by the world's largest trader, and of course, our rather deep rooted belief in the sanctity of intellectual property.

I extract from one such article:

"Antigua may be the first country to have a government-run torrent site, effectively legalizing Internet piracy. The World Trade Organization has given approval for the tiny Caribbean nation to suspend United States copyrights, allowing the government to run a torrent site that will host and sell movies and other intellectual properties without compensating American studios or creators."

Another article offers some background to this interesting WTO dispute between the world's leading super power and a tiny island nation that many may not have heard of. 

"Antigua's reasons for pursuing sanctions against the US are related to the countries' once-flourishing online gambling industry. Over a decade ago, the US outlawed Antigua-based gambling sites, and the two countries have been embroiled in a dispute ever since. 

The online gambling industry contributed $3.4 billion per year to the Antiguan economy at its height, and employed over four percent of the country's citizens. After the US instigated the ban, Antigua sought help from the WTO to rectify the situation. In 2004, the WTO ruled in Antigua's favor, but even after a 2005 US appeal fell on deaf ears, the US still refused to reverse its decision."

For those interested, the concept of cross retaliation was covered by me in previous SpicyIP posts, here and here. 

In particular, I have a full length paper in a special issue of the Law and Development Review discussing a viable model for cross retaliation. This paper details the Antigua dispute and proposes an elaborate IP suspension model that Antigua could comfortably deploy in its bid to ensure compliance with the WTO framework (it bears noting that Antigua can retaliate only to a limited extent, in that the losses caused to the US by Antigua's IP suspension cannot exceed USD 21 million each year).

Clearly, the US is upset! In their report to the WTO, they rail against Antigua's "misplaced decision to abandon constructive settlement discussions" and issue a rather stern warning:

"if Antigua does proceed with a plan for its government to authorize the theft of intellectual property, it would only serve to hurt Antigua’s own interests. Government-authorized piracy would undermine chances for a settlement that would provide real benefits to Antigua. It also would serve as a major impediment to foreign investment in the Antiguan economy, particularly in high-tech industries."

 Antigua responds with a telling counter:

"For nearly a decade, Antigua has sought to resolve the dispute with the United States Government over the US failure to abide by American treaty obligations with regard to remote gaming.
 

..The economy of Antigua and Barbuda has been devastated by the United States Government's long campaign to prevent American consumers from gambling on-line with offshore gaming operators. These aggressive efforts to shut down the remote gaming industry in Antigua has resulted in the loss of thousands of good paying jobs..

As a result of the US failure to comply with international law, the Antiguan economy and our citizens have suffered. In previous statements, the United States has indicated there could be possible adverse consequences for Antigua and its citizens for resorting to this WTO-sponsored remedy. We assume this is just rhetoric for public consumption, and we look forward to the United States putting aside these tactics and focusing their future efforts on thoughtful negotiation rather than on hyperbole and intimidation.."

But what takes the cake is Antigua's witty recourse to a sentiment expressed by one of the most famous US musicians ever. In a statement to the WTO, Antiguan High Commissioner to the UK, Carl Roberts paraphrased Bob Dylan: “[As] an American musician once said, ‘When you have nothing, you have nothing to lose’”.

Many predict that this pirate haven in the Carribean will never come to pass, as the US will now quickly move to settle.  And settle it did, when Brazil raised a similar war cry some years ago...

ps: Thanks to Malavika Jayaram for pointing me to this hilarious image. 

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Delhi High Court clarifies the notification re patent agent examination

In a previous post, we had mentioned that the DIPP had notified the changes in the patent agent examination that prescribed a lower weightage to viva than the written examination.  Based on this notification, candidates like Renu Rampal (post) could have applied to become patent agents.  However, the patent office faced a few practical difficulties in implementing the decision of the Delhi High Court (DHC).  

The practical difficulty was that if the notification was applied retrospectively, a few candidates (~20) who had passed based on the earlier examination pattern (100 marks for Paper 1, paper II, and viva) would fail if the notification was applied retrospectively. 

In view of this, Renu Rampal approached the High Court and filed an application for directions – asking for the notification to be retrospectively applied only to those candidates who had failed in the viva voce examination but had passed (obtained more than 60% in the written papers I, and II).  The division bench comprising Justice Sanjay K. Kaul and Justice Indermeet Kaur, in a reasoned order (January 22, 2013 in W.P. (Civil): 3333/2012) allowed the prayer of Ms. Renu Rampal – and ordered:

“In any case, we find no difficulty in implementation as learned counsel for the respondents states that the amended rules now prescribe minimum aggregate of 60% marks in both written examination and the viva voce with no minimum marks prescribed in viva voce and the weightage for the viva voce marks has been reduced from 100% to 50% with the weightage of the written examination being 100 marks. Thus, all that the respondents had to do was to re-calculate the marks in terms of the amended rules for the examination in question and apply the same to the petitioner.

…

Learned counsel for the respondents expresses an apprehension that since the results were declared under the earlier rules, some people who were declared successful, would be affected by the amendment to the rules. It is trite to say that these amended rules were not to apply to the persons who had already been declared successful but the question of application of the amended rules would arise only qua persons who were aggrieved by the prescription of minimum 50% marks in the interview. There is no difficulty in this since there is no limitation on the number of candidates who could be declared successful.”  Emphasis added.

As an immediate effect – this decision is applicable to those candidates who had passed in the written examination (obtained more than 60%), but failed in the viva voce examination - in the 2011 patent agent examination.  To my knowledge there are eleven such candidates who pass based on the issued notification.  These candidates are Anvita Singh(M0290); Renu Bala (D0379); Ravish Jain (D0293); R.N. Rawal (D0367); Sachin Ghorpade (D0369); Usha R. Malik (D0619); Deepak K. Pawar (M0195); and Ahila Wani (M0367), and three others.  However, this may not be the exact list.  We suggest those candidates who obtained more than 60% in the written exam – but failed in the viva in the 2011 examination, should contact the patent office in their zone re their candidature and apply for registration as a patent agent.

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