IPO vs IPAB: IT Prowess and Transparency?

In a post written around a month ago, we'd wailed our hearts out at a rather pitiable IPAB website:

"Any of you accessing the IPAB website will know how incredibly difficult it is to find orders! Clearly the IPAB website needs a lot of revamping if they are serious about transparency and ensuring that their pronouncements are made easily accessible to the public. Given that India is often touted as an IT super power, this is a shame and the government must immediately make resources available to the IPAB to revamp its shoddy website!"

Well it turns out that the website is on its way to becoming more user-friendly and accessible. Just two days prior to the inimitable Justice Sridevan retiring, the IPAB website has been given a much needed face lift. 

The homepage now states:

"IPAB is very glad to announce that a vibrant, user-friendly new website with the url www.ipabindia.in has been launched by the Hon’ble Chairman Smt. Justice Prabha Sridevan on 6th August, 2013. The new-look website packs in a lot of features including search string operations. The migration of data from the existing website is expected to take about a fortnight or so. In order to make the transition of the website smooth, IPAB will continue to host the existing website till the new website is fully loaded with the entire data available on the existing website. The new website will go a long way in fulfilling the expectations of the users with regard to finding the relevant information easily." 

Meanwhile, on the other side of the pond (well, not exactly, since they are meant to bat on the side of helping improve the IP ecosystem), the present Controller General Chaitanya Prasad continues to ignore email after email of mine pointing to several errors in his patent database. Forgetting that he answers to the term of "public servant", his rather "masterly" tone appears to suggest that he is doing us a big favour by even considering our request that he do his job well. To be fair to Prasad, he redressed some of the issues outlined in our petition that was submitted to him in January this year, but some of the major issues have gone unaddressed (such as decision date related errors or the fact that very few section 3(d) cases show up on a section search). He'd promised to come back on all of this by April, but my emails to him in April went unanswered. This apathy is particularly worrying, for these were a very focussed set of issues that we raised, amenable to easy and timely fixing. 

For those interested, here is the link to the petition we submitted in January, along with comments noting the various errors that have been fixed (as of today) by Prasad and his team. 

As we'd noted in a petition to the Prime Minister when we began our transparency campaign several years ago: "...a website detailing comprehensive patent information, including patent office decisions will create more transparency and make the IPO more accountable. It will also equip stakeholders with timely information on patents. This will in turn lead to a more informed use of the patent system and better policy suggestions."

Time to petition the PM again to take the patent database and transparency issue seriously! So for those of you peeved at the present state of affairs, please email me with your specific peeves, and we'll prepare a comprehensive petition. Given the fresh smell of looming elections and the vain hope that esoteric patent creatures might constitute enough of a vote bank threat, the time to knock is now. And we're not even asking for too much. Simply that the government live upto its reputation of an IT superpower and foster more accessible patent knowledge. 

ps: thanks much to Shouvik and Sai Vinod for their work on the petition and for checking the current status of errors as of today.

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Revisiting the Trans Pacific partnership agreement

Last week’s State of the Union address highlighted important aspects of President Obama’s second term agenda. President Obama identified Trans Pacific Partnership(TPP) agreement as a top trade priority and reaffirmed his commitment to conclude negotiations on the Trans Pacific Partnership agreement. To quote, “To boost American exports, support American jobs, and level the playing field in the growing markets of Asia, we intend to complete negotiations on a Trans-Pacific Partnership.”

Image from here

In an earlier article Swaraj had elucidated five major areas of concern in the TPP. The Trans Pacific partnership agreement started out as a four nation agreement between Brunei, Chile, New Zealand, and Singapore and gradually expanded to include Australia, Peru, Vietnam, United States,  Malaysia, Mexico and Canada. Japan was expected to join TPP negotiations, however as reported here, Japan may consider dropping support for TPP.If the ongoing negotiations between the member nations are successful, then the TPP would encompass USD 21 trillion in economic activity.

Some intellectual property provisions as detailed in leaked draft US IP chapter of TPP agreement can be found here and here. Readers may remember that Swaraj had posted a detailed analysis of the various provisions of TPP, which can be accessed here and here. I have only analyzed the provisions which were not discussed earlier.

Article 1 of TPP requires that “Each Party shall, at a minimum, give effect to this Chapter.”

Article 8.2 of TPP requires that patents for inventions pertaining to plants and animals should be made patent eligible. The TPP agreement also requires that therapeutic, diagnostic and surgical methods for treatment of humans and animals should be eligible for patent protection.

In addition TPP article 8.1 requires that new forms, uses, or methods of using a known product; may satisfy the criteria for patentability, even if such invention does not result in the enhancement of the known efficacy of that product. I believe this provision was incorporated keeping in mind India’s controversial Section 3(d).

It should be noted that Article 8.10 of TPP states that “disclosure of a claimed invention shall be considered to be sufficiently clear and complete if it provides information that allows the invention to be made and used by a person skilled in the art, without undue experimentation, as of the filing date.” However this provision does not expressly mandate disclosure of best mode, thus leaving open the possibility that an inventor may withhold the best mode for himself and subsequently patent the best mode as a distinct invention altogether.

Other TRIPS plus provisions included in the text of US IP chapter of TPP include:

• Patent linkage provisions, thus allowing presumption of validity of patent (article 9.5) 

• Elimination pre-grant opposition of patents (article 8.7) 

• Patent term extensions and /or adjustments: Extension of patent terms beyond 20 years to compensate for delays in regulatory approval and/or delays on the part of patent office [Articles 8.6(b) and article 8.6(c)] 

• Data exclusivity provisions: Five-year data exclusivity for a new chemical entity (never registered before) and three years data exclusivity provisions for new indications of pharmaceutical drugs whenever new clinical trial data is submitted [Articles 9.2(b) and 9.2(c)] 

Furthermore, Article 13.1 expressly mandates expedited grant of preliminary injunctions and specifies a time period of ten days to execute such requests barring exceptional cases.

Although Article 10 of TPP agreement states that, “In recognition of the commitment to access to medicines that are supplied in accordance DOHA declaration this Chapter does not and should not prevent the effective utilization of the TRIPS/health” , the TRIPS plus provisions and directive text of TPP and might hinder effective implementation of DOHA declaration.

Why should we bother? It is highly likely that TPP will affect other countries apart from those currently involved in negotiations. Countries that are not parties may be coerced into becoming members by imposing TPP agreement as a precondition for other bilateral trade agreements .Alternatively countries that are not members may be evaluated against TPP standards in the annual Special 301 process administered by the USTR.

The next round of negotiations i.e. the sixteenth round is scheduled to be held In Singapore from March 4th -13th and will play a major role in determining the pace and direction for future negotiations.

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The G.I. Registry digitizes all G.I. records: Transparency zindabad! Controller-General zindabad!

Finally, after years of agony that we have experienced while attempting to access information related to the grant of geographical indications in India, the Controller General Chaitanya Prasad has issued a public notice informing the general public that all public records pertaining to the G.I. Registry have now been made available on the website of the G.I. Registry. I have checked the new website and I kid you not, my eyes actually welled up with tears of joy when I saw the excellent job done by the G.I. Registry. You can actually access all records, unlike other government projects which do a terrible job with digitization of records. This one little step by the G.I. Registry comes as a huge relief, at least for us at SpicyIP because the G.I. Registry has been the last black-hole of inaccessible information.

Last year, Sumathi and I had filed a series of Right To Information applications seeking information related to the Basmati G.I.  from APEDA (the govt. agency which has filed an application for the same) and Darjeeling Tea G.I. 

APEDA, flat out denied our request, on the grounds that some files were missing and that other files could not be provided to us because the 'basmati' case was sub-judice. We had filed an appeal at the time informing APEDA that sub-judice was no grounds to retain documents. Faced with precedents of the Central Information Commission on the point, APEDA introduced new grounds to deny us information at the appellate stage. The other grounds mentioned in APEDA's reply, as explained by Sumathi in one of her posts are as follows:

" 1. APEDA also claimed that I had failed to demonstrate any "public interest" that warranted the disclosure of such information. (This is an issue that has come up time and again in my encounters of the RTI kind, and appears to be a safe harbour defence for government. I am tempted to advise that future information seekers should demonstrate "public interest" in their RTI application itself, if only as a pre-emptive measure. Note that nothing in RTI practice or rules requires that public interest be demonstrated at the time of making an application, or indeed defending a request.) APEDA added that the information was held in fiduciary relationship with third parties.

The icing on the cake, in my opinion, was this line that had my eyes popping out: "disclosure of such information could lead to unwarranted public debate which in turn could prejudice or unduly influence the outcome of these proceedings." The last time I checked we were proud residents of a democracy, where at least we enjoyed a semblance of free speech. Was I wrong?"

APEDA's actions at the time were a blatant abuse of power and something which I will remember for a very long time to come. There are some minimum courtesies that you expect from government officers rejecting information under the RTI Act and APEDA along with its lawyers broke each and every rule. For instance, they lied to us about a missing file but the moment we asked them whether they had filed a police complaint as required by the law, they backtracked and suddenly found the file. 

Similarly, when we filed a RTI application with the G.I. Registry, they agreed to give us information but at the cost of Rs. 10 per page instead of the Rs. 2 per page mandated by the R.T.I. rules. When we informed the G.I. Registry about the Rs. 2 rule, they refused to change their mind. Paying Rs. 10 per page was a problem for us because we were asking for more than a thousand pages in information and we simply didn't have money to pay Rs. 10 per page. At the time, we were faced with a bill of close to Rs. 20,000. 

When we appealed, Dr. Kardam who was the appellate officer, threw a new googly our way - out of the blue, he informed us that the RTI Act did not even apply! We asked him to review the decision since he had earlier informed us that the RTI Act did apply to information held by the patent office. He refused. The pains through which Kardam put himself through to deny us this information caught us by surprise because there is no government office which has gone to such lengths to hold back information pertaining to another public body i.e. APEDA.  

Sumathi did a wonderful post highlighting our troubles with both offices over here. 

So today when the Controller General makes available all information related to the G.I. records I'm a very, very happy man. As I had discussed earlier on this blog, the G.I. Registry has been entertaining and granting some ridiculous G.I.s and it is time for us to begin a debate on improving the process.  

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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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Off-topic: Press Release Journalism by the Times of India in the ESG-Monsanto case

Image from here

Earlier this year, on the 10 of May, 2010 one of India’ national newspapers, Hindu carried a first of its kind story alleging that its rival competitor and the largest selling English newspaper in the world, the Times of India was publishing advertisements for Monsanto’s Bt cotton crop as ‘news’ without informing its readers that the same was an advertisement – a phenomenon known as ‘paid news’ in India. I won’t get into the accuracy of Hindu’s reporting but you can read that report by P. Sainath over here. 

I don't know whether this is worse or better but while writing the post on the PIL by the Environmental Support Group (ESG), which I just blogged about over here, I was amazed to notice that the entire news report in the Times of India, on ESG’s PIL, was a word for word reproduction of the press release put out by ESG, save for the last two and a half paragraphs of the press release which were not reproduced in the ToI report. 

The ToI report can be read over here and the ESG press release can be read over here. 

Reproducing press releases, in their entirety, as news reports, is bad journalism but what makes it worse is when the news report does not even state that it is quoting from a press release or in this case just reproducing the entire press release. Not once does the ToI news report state that the facts were being reproduced from a press release put out by the petitioner and the fact that the report ran with the byline of a ToI reporter – Saswati Mukherjee, makes the normal reader assume that the report was independently researched by the journalist in question. Why even run a byline on such a report which is a complete reproduction from a press release? 

ESG’s press release gave only its version of the story and while ESG is completely entitled to do so, it is up to journalists like the ones at ToI to investigate and authenticate the story instead of borrowing each and every adjective and pejorative used by ESG in its press release. There is also the question of non-attribution of the source of the lifted text i.e. the press-release in this case. Non-attribution almost cost Fareed Zakaria his job and the poor chap had just lifted a few words here and there. 

I’m surprised that the ToI has dealt with this story in this manner – I’ve seen them in action before when Shamnad had filed the PIL against the IPAB and in that instance the journalists from the ToI grilled him thoroughly before publishing a story on the PIL. 

According to this Guardian story available over here - the practice of reproducing press releases as news is quite a rampant problem in the U.K. Be that as it may, stories like the present one involving Monsanto, ESG and the High Court of Karnataka should be researched thoroughly before being reported on. This is just too important an story to be treated in such a cavalier manner and certainly the Times of India can do better than this. 

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