Two years of continuing disappointment with the Madras High Court

Image from here

It has been exactly two years since the Madras High Court admitted two PILs challenging the constitutionality of the Intellectual Property Appellate Board (IPAB) and the Copyright Board; the first filed by Shamnad and the second by the South Indian Music Companies Association (SIMCA). 

While the petition against the Copyright Board was rendered infructuous when Parliament amended the provisions of the Copyright Act, 1957 last year, the petition challenging the constitutionality of the IPAB is very much alive since absolutely nothing has changed in the two years since the PIL was first filed. 

There have of course been minor victories, like the report of Justice Sridevan about the Central Govt.’s apathy towards the IPAB and the fact that the DIPP at least made an attempt to find new office space for the IPAB. But what about the qualification criteria of the members being appointed to the IPAB? What of the terms and conditions of their appointment? What of the support and infrastructure being provided to the IPAB? These were the main issues raised in the PIL. 

For reasons, which I can’t comprehend, this PIL is simply not making any progress before the Madras High Court. This unbelievably slow progress is in complete contrast to the lightning speed with which the Madras High Court heard and struck down large portions of the legislation creating the National Company Law Tribunal. That challenge was heard and disposed by the Madras High Court in less than year. On appeal, the Supreme Court took five years to hear and deliver judgment in the appeal. This is one of the reasons that the Madras High Court was chosen as the forum for the challenge against the IPAB. 

It is a full time job being an optimist in India these days but with the Indian judiciary even the most die-hard optimist will have to work over-time.

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Announcing the SpicyIP Fellows for 2013 - 2014!

After a great response to our call for applications for our first SpicyIP Fellowship, we are pleased to announce the selected Fellows for 2013 - 2014.

We'd like to thank all those who participated in the Fellowship application process and especially those who continued to send in multiple entries based on the feedback from previous submissions. We received about 40 submissions during the 6 week period from December 14th - January 25th. Of these, 18 were selected as guest posts and we have selected 3 Fellows from amongst the authors of these 18 posts. The criteria for selection included topic choice, research ability, analysis, clarity and language skills. The year long Fellowship begins on February 1st, 2013 and runs on till January 31st, 2014.

In no particular order the Fellows are:

1. Anubha Sinha

Anubha Sinha is a fourth year student at RML National Law University, Lucknow. Participating in a national IP moot kindled her interest in Intellectual Property where she had her first brush with software patenting. She finds IP fascinating because of its constantly evolving nature. Her interest in the field also emerges from the exciting interface between IP and technology. She is currently on the Board of Editors for her law school's RMLNLU Law Review and has a few paper publications too

Her posts for the fellowship included:

i) Bare Licensing in India

ii) Graphene - Indian Patent filings dismal compared to neighbours

iii) Looking at IPR Policy in Climate change action

2. L. Gopika Murthy

Gopika is a second year student at National Law School of India University, Bangalore. Her first exposure to Intellectual property law and SpicyIP was through the University Moot Rounds at NLSIU, Bangalore in her first year. She has been regularly following the developments in the field of IPR since then and she hopes to contribute to the reporting of such developments. Her areas of interest in IP include copyrights, open access, fair dealing and trademarks.

Her posts for the fellowship included:

i) The Unfair Competition Act, 2011 and its Implications on Indian Manufacturers
ii) Plain packaging laws for Tobacco products
iii) Copyright in Social Media - AFP v. Daniel Morel
iv) Madurai Malli is granted GI status

3. Aparajita Lath

Aparajita is a third year student at the WB National University of Juridical Sciences, Kolkata. Her curiosity in intellectual property rights was ignited much earlier at home, in an atmosphere of creativity and innovation of a professional artist and a design engineer- her mother and brother respectively. Her interest in this field deepened while participating in moot courts and through internships. It has now taken strong roots and she enjoy reading, thinking and discussing about issues related to this field. Her evolving interests include business methods and their patentability,  access to intellectual property rights (in developing countries), IP securitization and parallel imports of copyrighted works.

i) Why are Business Method Patents being granted?
ii) More GI news as Meerut Scissors granted GI status
iii) For whom is the Indian IPR Regime

New addition to the team

Aside from the above mentioned Fellows, we are also very happy to announce that we have a new member joining our team. 

Madhulika Vishwanathan is a registered Indian patent agent and has a Masters in Pharmacology from ICT, Mumbai. She has previously completed a one year CSIR-TIFAC fellowship in IP law at URDIP, Pune and has worked in the IP cell of Panacea Biotech Ltd, Mumbai. She is currently working in Harris Shelton Hannover Walsh PLLC, a law firm based out of Memphis, Tennessee and hopes to go to law school someday! Her specific interests include issues involving pharmaceutical and biotechnology patent law, regulatory aspects like Hatch Waxman litigation and antitrust law. Apart from Intellectual property, she loves reading and sketching. 

We are very happy to have all these new additions to our team and with all their varied interests and perspectives, I'm sure that our readers can look forward to more spicy discussions being served to them!

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Guest Post: Looking at IPR Policy in Climate change action

To wrap up our SpicyIP Fellowship applicant series*, we bring you a final post by Anubha Sinha. In this post, she discusses the urgent need to involve and adapt our IPR policy to better address the fight against climate change. 

*Note: We are yet to review a few posts by authors that have fallen short of the three posts required for the fellowship. These will be reviewed and published in our normal guest series in the coming week. 

Climate Change and IPRs

Manmohan Singh recently unveiled the National Science, Technology and Innovation (NSTI) Policy 2013 at the 100th Indian Science Congress in Kolkata. The report says: 

“NSTI policy also strives to modify intellectual property rights (IPR) policy for co-sharing innovations under PPP and to launch new mechanisms for nurturing technology-business incubators and science-led entrepreneurship. For investing in such innovative and ambitious projects, a national science, technology and innovation foundation (NSTIF) will be established as a PPP initiative. 

.... Taking cue from the NSTIF, which will play an active role in the mission for a national action plan for climate change, the state government [Kerala] will focus on the mission,..” 

SpicyIP recently posted a comprehensive analysis of the policy. 

My focus in this post is the relationship between climate change action and IPRs. In this context, I think if the NSTI truly aims to achieve what it claims, there has to be a well defined plan of action for IPs concerning clean energy technology. 

While the policy does not show any intentions to link the two aspects, the world meanwhile has long woken up in this regard. The role of IPRs in any transformative technological landscape cannot be ignored and climate change is no different. It is the aim of climate change mitigation plans to rapidly develop and ensure diffusion of key technologies. Unfortunately there hasn’t been much headway in the same at a global level, and the role of IPRs remains a rather divisive issue. While I believe that ‘Patenting incentivises innovation’, the same is not a very popular belief shared in the clean energy sector. And I share the sentiment with protestors in this regard as an exception. We know that climate change is a ticking bomb and the repercussions are going to be severe. In mankind’s efforts to create mitigating and adaptive technologies, we have to possess a moral urgency and responsibility to ensure that the conventional regime of IPRs does not prove to be a detriment to the benefactors or the creators. The discussion below is not exhaustive in nature, it is an attempt at providing a macro view of the current scenario. 

There already exist several issues with the current regime: 

1. The role of IPRs is increasingly seen as a barrier to scaling down costs in order to make clean energy more affordable. The current system also locks in inventions for a long period which is not viable because waiting for 20 years can make a big detrimental impact to the environment. 

2. Technology transfer has always been one of the key pillars of the UNFCCC (read SpicyIP’s post), however the IPRs remain a story of disagreement between countries and stakeholders involved. 

3. Obviously, ignoring the worsening climate change scenario for only monetary gains is a heavy price to pay, and exceptions will have to be made in regard to clean energy technologies in terms of licensing rules particularly [to enable tech transfer]. 

4. Lack of sharing of technological advancements made in the field by each country, i.e. working towards creating transparency in the patent system.

Of course there are complex issues and several considerations attached to the solutions to each of these problems. For example, as this report states: 

“ Most patented technologies are already free of enforceable patent rights in the majority of developing countries, and this absence of patent protection doesn’t necessarily spur technology transfer. At best, it leaves open the prospect of using the technology disclosed in the patent document, but often without the partnership or involvement of the technology originator, and the transfer of valuable knowhow and other background technology that may be useful for the effective exploitation of the technology.” 

Several solutions have been put forth by stakeholders and countries to tackle the issues discussed above: 

1. Making international IP instruments flexible with regard to clean energy technology could be a significant step. ‘Exclusion from patentability’ need not be the de rigueur, and but we need to reconsider whether ‘green’ patents may be granted by only satisfying the current requirements: patentable subject matter + non-obviousness + novelty + utility. 

We’re witnessing a constant expansion of the term ‘patentable subject matter’ which is also slowly encroaching biotechnology and life sciences. This is a big impediment to sequential innovations. When we expect every stakeholder and country to build from an existing knowledge base, a strict and an all encompassing definition of patentable subject matter is a roadblock to innovation. 

The TRIPS agreement[Article 27.2] says that nations may create limited exceptions to patent rights on environmental grounds: 

“Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.” 

2. A licensing model can be created on the lines of compulsory licensing for drugs; after weighing the advantages and disadvantages accordingly. Of course establishing the criterion remains a challenge here. 

3. The industry is always hesitant to lend adequate support in terms of funding and equipment in ventures where the success is uncertain and markets are small. Thus the government needs to play a huge role in extending support of any kind. 

4. There is also the option of creating open patent pools, so that technology is easily licensed across parties, thereby increasing access and affordability. 

5. Creating an alternative patent system sounds rather ambitious, but academicians have proposed several steps in this regard. The idea is to establish an integrated platform for systems working in sync with each other to ensure transparency and harmony in the patent system. 

6. If a complete overhaul of the system is not viable, at least start implementing an expeditious procedure for examination and grant of ‘green patents’. 

Meanwhile this report gives a country-wise analysis on clean energy innovation. US leads the race by having an astounding 798 patent applications filed in the third quarter concerning clean energy. India has also a significant number of patents in this regard, keeping in mind the recent downturn in domestic patenting in India. Since technology has undone the environment, it is time to deploy the right clean technology to undo the damage. A well structured patent regime would propel research in clean energy technology to another level, which is the need of the hour

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Part I: Is decompilation of software legal under the Indian Copyright Act

In discussions with a few of my colleagues in software development related to mobile applications for Android, Windows, and iOS platforms, a question arose whether studying an existing application (already developed and available for a device) and using the existing application as a study tool is legal under the Indian Copyright Act?  At first glance the relevant provision (Section 52) under the Indian Copyright Act prescribes that studying software is legal.    

However, there are many practical issues that come up while analyzing the statute: As developers know, one cannot study software without first decompiling it.  Decompilation, ‘inter-operability’, are words that are not defined in the Act.  Decompilation may be equated to reverse engineering of a product – whether software or hardware.

This post analyzes Section 52 of the statute and in particular sub-sections 52(ab) and (ac), and find whether reverse engineering / decompilation of software applications is legal.  The answer to the question is not exactly clear – For Indian, maybe it is  - given  the way in which other jurisdictions have applied the similar statutes.  This post is divided into two parts.  Part I deals with the background information as relates to the development of decompilation / reverse engineering laws in US and Europe. Part II deals with the application of these laws to the Indian context.  Long post follows.

Because European law on copyright protection of computer programs is based on the counterpart American experience, American jurisprudence is discussed first.

REVERSE ENGINEERING IN US:

Under American law, until recently, there were no explicit provisions about decompilation or reverse engineering. The basic copyright law, that has been amended from time-to-time just provides fair use exceptions and courts are left free to interpret fair use.

In 2010, the Library of Congress with the US Register of Copyrights, provided six additional classes, that would not be considered infringement. See link.  Relevant to the issue of reverse engineering are the classes:

“..(2) Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.

...Emphasis added.

Case law sets out guidelines about reverse engineering.  And it was under the provisions of section 107 (fair use) that reverse engineering was addressed. 

The first case to be taken up by US Courts on the issue of reverse engineering was: Sega Enterprises Ltd. v. Accolade, Inc.: In Sega, Sega manufactured a video game console under a brand name Genesis.  The console contained a lock-out device (microchip) which looked for a particular code sequence in a game cartridge. This code sequence was provided only on Sega manufactured cartridges and no other.  Cartridges manufactured by other manufacturer did not have this code sequence, and could not function with the Sega console. 

Accolado, a game maker, also provided games on cartridges.  To be able to use a game cartridge from Accolado with the Genesis console, Accolade disassembled the Genesis console and found the chip containing the code reader, and found out the specific code sequence which Sega put in their cartridges.  This made it possible for Accolade to manufacture cartridges compatible with the Genesis console.  During the process of reverse engineering Accolado made several copies of Sega’s micro code and thereby infringing Sega’s copyright.

Sega suited for this infringement of their copyright to the specific microcode system and Accolado claimed fair use.  The District court in the Northern District of California found for Sega, that an infringement had taken place and it “could not be seen as a fair use because of the commercial nature of the reverse engineering.”  The Court of Appeal found otherwise and reversed the district court.  Decompilation was an infringement of Sega’s copyright but was found to be fair use. The court stated that if "disassembly provides the only means of access to those elements of the code not protected by copyright and the copier has a legitimate reason for seeking such access" is a fair use of the copyrighted work.

The court stated that reverse engineering is a fair use if the purpose is to achieve compatibilitybetween an original (i.e. not copied from another) computer program, and a device for using this program.

The second case taken up by US Courts about reverse engineering also involved video game consoles, and was Atari Games corp. v. Nintendo of America, Inc.  In Atari, the consoles were manufactured by Nintendo.  However, Nintendo also had a patent on the security lock-out device. 

Atari had tried to reverse engineer the microchip but failed.  However, Atari obtained the information related to the microchip from the US Copyright Office (Library of Congress), claiming they needed this information in a litigation with Nintendo.

Atari thereafter created a program that emulated the Nintendo lock-out microchip, and this made it possible for Atari’s game cartridges to be used on Nintendo consoles.  The district court specifically ruled that Atari had, when creating the compatible program used more than necessary to get compatibility.

Nintendo filed for copyright and patent infringement and was successful at the district court − Atari’s claim for fair use was not accepted.  The Court of Appeal for the Federal Circuit (CAFC) came to the same conclusion and ruled, “reverse engineering was fair use only when the original product had been purchased legally.”  Getting the information from the US Copyright Office on false grounds destroyed any possibility for Atari to successfully claim fair use.  However, before these questions were tested the case was settled.

This case showed that copying a program to understand and copy unprotected underlying ideas would have been probably been alright if Atari had achieved information legally. 

In a third case, in Vault Corp. v. Quaid Software Ltd., the court decided that a Louisiana Software License Enforcement Act clause permitting a copyright holder to prohibit software decompilation or disassembly was preempted by the Copyright Act, and was therefore unenforceable.

REVERSE ENGINEERING IN Europe:

In EU copyright protection of computer programs is an outcome of computer program Directive.  See link.

The concept of reverse engineering was not unique to EU law. Before it, Art. 15 of the EC semiconductor chip protection Directive permitted reverse engineering of the layout of a semiconductor microchip.  This semiconductor related directive was similar to that of the US Semiconductor Chip Act of 1980 where provisions relating to decompilation were explicitly provided.

The computer programs Directive (hereafter Directive) contains two different provisions relating access to interface information. Article 5(3) deals with reverse analysis techniques other than decompilation, (also known as black box method).  Article 6 deals with decompilation methods themselves.  

Black Box Method (or passive monitoring method):

An engineer starting to develop a product with a particular standard may start work from published documentation about the interface information with that standard.  Usually because source code is not published, and available documentation is often incomplete or out dated, it is necessary to conduct reverse analysis to ascertain the interface information required to provide an interoperable product.

Generally, this information may be learned from "black box" reverse engineering  techniques. These techniques merely involve monitoring the activity of an existing product and are passive in nature – i.e. there is no active monitoring of do not involve translation of the analyzed program’s object code into the original source code.  Examples of information that may be obtained through black box techniques are test runs, line traces, storage data dumps and screen rendering.

Article 5(3) of the Directive provides

3. The person having a right to use a copy of a computer program shall be entitled, without the authorisation of the right­holder, to observe, study or test the functioning of the program in order to determine the ideas and principles which underlie any element of the program if he does so while performing any of the acts of loading, displaying, running, transmitting or storing the program which he is entitled to do.  Emphasis added.

There are multiple aspects to this article in the Directive: First the person invoking the Article must have a right to use a copy of a computer program.  Hence this is the first hurdle that is passed by legitimate software licensees or owners (no pirates please).

Most developers who intend to develop interoperable products would be licensed users of the original product for which the new product is being developed.  As an example, consider various tools created by different third party developers for Adobe™ Photoshop™ software.   All such developers are usually licensed users for the Photoshop™ software.  Hence it is permissible for them to analyze a copy legitimately.

Second, Article 5(3) permits a developer to observe study or test the functioning of the program.  This is what a developer does when conducting black box analysis.

Third and most importantly, Article 5(3) permits the developer to determine the "ideas and principles" underlying any element of the computer program. This includes determining interface specifications which being the rules and methods by which a program interacts with other products, constitutes "ideas and principles".

Fourth, Article 5(3) permits the developer to observe, study and test the functioning of the program while "loading, displaying, running, transmitting or storing" the program.

Finally, Article 5(3) provides that for the analysis to be allowed, one must be "entitled to do" the underlying operation involved.  Accordingly, this is tied to the first part in the article, and is a second tier protection against use of this article illegitimately to expand permitted use of a program.

Decompilation:

In some cases techniques permitted by Article 5(3) do not yield enough interface information required. It then becomes necessary to decompile a program –i.e. active monitoring is required.  Article 6 of computer program Directive provides the required freedom for decompilation.

Article 6 of the Directive:

Decompilation

1. The authorisation of the rightholder shall not be required where reproduction of the code and translation of its form within the meaning of points (a) and (b) of Article 4(1) are indispensable to obtain the information necessary to achieve the interoperability of an independently created computer program with other programs, provided that the following conditions are met:

(a) those acts are performed by the licensee or by another person having a right to use a copy of a program, or on their behalf by a person authorised to do so;

(b) the information necessary to achieve interoperability has not previously been readily available to the persons referred to in point (a); and

(c) those acts are confined to the parts of the original program which are necessary in order to achieve interoperability.

2. The provisions of paragraph 1 shall not permit the information obtained through its application:

(a) to be used for goals other than to achieve the interoper­ability of the independently created computer program;

(b) to be given to others, except when necessary for the inter­operability of the independently created computer program; or

(c) to be used for the development, production or marketing of a computer program substantially similar in its expression, or for any other act which infringes copyright.

From Article 6, it seems that decompilation of a program may not be done solely to research its underlying ideas unrelated to interoperability and then implement those ideas in a program that competes with the decompiled program.

The word indispensable has been used in Article 6.  This word suggests that it is not a mere wish but rather is required (grammatical construct: Air is required for breathing). 

In practice, because decompilation requires great sophistication, time and expense and will not be conducted lightly: accordingly if a developer decompiles software then the reasons for decompilation would play a great role, most probably in the developer’s favor.  This then becomes an economic standard for indispensability.  * Hence the usage of reports, and the initial pilot study to confirm data theft – are economically justified and decompilation is indispensable.

Under Article 6(a), the act of decompilation is done by a legitimate user.  Compare this provision to the Ataricase discussed above – where Atari lost on both grounds and fair use exception under US law was not available to it.

Under Article 6(b), necessary interface information must not have been previously been readily available to the developer.  This provision should be interpreted according to the the economic hardship theory – i.e. economically justified and indispensable.

Under Article 6(c), decompilation must be confined to the parts of a program that are necessary to ensure interoperability.   This seems to be a grey area: it is not entirely clear how only a specific part of a program can be decompiled, leaving the rest untouched.  In software, either a program is decompiled or not – there are no mid-level choices available. In addition, software code is not written as a text book that has a page number to start and end with.  Software is written in parts – where one part may invoke another and vice-versa. 

Article 6, paragraph 2 limits the scope of Article 6 – and accordingly limits what may be done with the decompilation.  The limitation is with regard to interoperability : information gained through decompilation may be used only to achieve the interoperability of the independently created program.

Article 5(3) therefore, is very different from Article 6, and has no such restriction.

Article 6, paragraph (2)(c) provides that information obtained through decompilation may not be used for the development production or marketing of a computer program substantially similar in its expression, or for any other act which infringes copyright. * Here it may be argued that an employee is restricted from decompiling a program created for his employer’s purpose, AND cannot use a decompiled program to create a competing program as that of his employer.

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Part II: Is decompilation of software legal under the Indian Copyright Act

The previous post discussed the development of the US and European laws as applicable to reverse engineering.  This post compares the Indian provisions with the European and US counterpart legislation.  

One important aspect is the growing number of application developers in India for the Android, iOS, Blackberry, Windows platforms.    Usually application developers do not start development of applications from scratch.  A mish-mash of existing and new code is used.  For example, all four of the platforms discussed above provide tutorials and common libraries for their platform.  Developers then add to the existing libraries and build their unique applications.  However, developers also like to see, if possible, existing  best selling applications and their code, and apply the teachings of the best selling applications to their application development.  A recent study by Flurry analytics showed  that India is a major adopter of the new platforms and there are quite a large number of application developers in India.   

INDIAN LAW in view of US / European provision:

Section 52 of the Indian Copyright Act follows the European Directive (or more appropriately, the development of the European directive before its formal adoption).  Certain provisions are verbatim to the Directive, while there is marked difference in some.  The provision relevant to reverse engineering are highlighted below and compared with the Articles in the directive / and US law:

52. Certain acts not to be infringement of copyright. (1) The following acts shall not constitute an infringement of copyright, namely:

…"(ab) the doing of any act necessary to obtain information essential for operating inter-operability of an independently created computer programme with other programmes by a lawful possessor of a computer programme provided that such information is not otherwise readily available;

(ac) the observation, study or test of functioning of the computer programme in order to determine the ideas and principles which underline any elements of the programme while performing such acts necessary for the functions for which the computer programme was supplied; 

  

Indian law	EU Directive	US law
Section 52, paragraph ab	Article 6	Section 1201 – rule making
the doing of any act necessary to obtain information essential for operating inter-operability of an independently created computer programme with other programmes by a lawful possessor of a computer programme provided that such information is not otherwise readily available;	where reproduction of the code and translation of its form … are indispensable to obtain the information necessary to achieve the interoperability of an independently created computer program with other programs, provided that the following conditions are met: (a) those acts are performed by the licensee or by another person having a right to use a copy of a program, or on their behalf by a person authorised to do so; (b) the information necessary to achieve interoperability has not previously been readily available to the persons referred to in point (a); and (c) those acts are confined to the parts of the original program which are necessary in order to achieve interoperability.	“..(2) Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.

Indian law	EU Directive	US law
Section 52, paragraph ac	Article 5(3)	Section 1201 – rule making
the observation, study or test of functioning of the computer programme in order to determine the ideas and principles which underline any elements of the programme while performing such acts necessary for the functions for which the computer programme was supplied;	The person having a right to use a copy of a computer program shall be entitled, without the authorisation of the right­holder, to observe, study or test the functioning of the program in order to determine the ideas and principles which underlie any element of the program if he does so while performing any of the acts of loading, displaying, running, transmitting or storing the program which he is entitled to do.	“..(2) Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.

Based upon the above comparison between EU, US and Indian laws, the following conclusion may be drawn:  Indian law is much broader than counterpart EU legislation and allows for reverse engineering (both black box and active decompilation) without major restrictions on the reasons for decompilation.  The actual implementation / interpretation by courts remains to be seen.

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Correction: Meerut scissors GI still in application phase.

Recently we had a guest post stating that Meerut scissors had in fact been granted GI status. After cross checking a comment we received from Shailendra, we would like to note that we made an error with this post and it is in fact still in the 'new application' status.

According to the author of that post, the following reports led to the confusion: 

The Hindu states: 

"For the first time, a handmade tool from micro and small and medium enterprises in India has been registered for a geographical indicator (GI) tag, an official of a body promoting this sector said on Wednesday. Mr. Saluja said the GI tag was given to products based on certain information submitted to the Geographical Indication Registry, Chennai: proof of origin, the GI map, the statement of case and the history of the product."

Bengaluru.com states: 

"Scissors made of metal scrap by a community in Meerut, which is “the only scissor cluster in India”, has been registered for a geographical indicator (GI) tag. This was confirmed by Karamjeet Singh Saluja, Deputy Director- Intellectual Property Rights, Federation of Indian Micro and Small and Medium Enterprises (FISME), IP Facilitation Centre, told reporters on the sidelines of an IPR awareness programme held in Mangalore."

However, it turns out that application for Meerut Scissors (Application Number 389) had been filed on December 20th, 2012 and is still in "New Application" status.  We apologize for the error and thank Shailendra for bringing this to our notice. 

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Guest Post: Graphene - Indian Patent filings dismal compared to neighbours

Anubha Sinha, a 4th year student from Dr RML National Law University, brings us her 2nd post for our SpicyIP Fellowship applicant series. In this post, she looks at the research and patents behind a fascinating new material that has been making waves in the science and technology world. After taking note of the tremendous patent activity surrounding this material in the rest of the world, she points out that Indian research centers have been left far far behind in terms of patent applications, despite important research being carried out in Indian universities. Her previous post is available here. 

[Edit: Correction, Anubha is a 4th year student at Dr RML National Law University and not GNLU as previously published.] 

Graphene: Caught in the eye of a patent filing storm

What is Graphene ? 

Projects aiming at developing the world’s ‘thinnest materials’ have always been at the forefront of cutting edge research in science. Currently occupying this exalted position is Graphene - a single layer of carbon atoms described as the world’s thinnest material. It was initially identified by two Russian researchers in UK, which won them the Nobel Prize in 2004. “The material - described as being far stronger than diamond, much more conductive than copper and as flexible as rubber - is now at the heart of a worldwide contest to exploit its properties and develop techniques to commercialise it,” reports David Shukman for the BBC News. 

How do flexible transparent
touchscreens sound to you?

What is so marvellous about it? 

The potential application of graphene’s inherent properties has obviously opened up huge vistas for various technology companies. Its strength and conductivity combined with high tensility makes it rather uniquely suited for use as a semiconductor(which run every gadget you own). Graphene outstrips silicon(a standard industry semiconductor material) easily by possessing an electron mobility 200 times that of silicon. So when Samsung Electronics emerged with the biggest portfolio of graphene patents held by any R&D unit, it was not much of a surprise. 

When you were marvelling at Samsung’s latest press conference unveiling the Youm display- which is the next big thing on the horizon for the smartphone and tablet industry, it was graphene actually working the magic. For the uninitiated, Youm display is the first underway commercial technology to have enabled flexible touchscreens. Touchscreens are LED displays which essentially consist of semiconductors. And graphene happens to be the best one around to lend a characteristic flexibility to LED displays. 

The Patent race that has followed..

CambridgeIP reports that there has been a huge surge in graphene patent applications around the world in 2012. Moreover, the maximum number of applications has been filed from China, US and South Korea. The figures from each are country are 1500 plus published applications, whereas UK, where Graphene was first identified trails with a meagre figure of 54. Does this mean that UK has already lost the race? Experts think otherwise. Quentin Tancock (Chairman of CambridgeIP) in a recent interview said that a huge number of patents don’t necessarily translate into high quality patents, however stressed on the pressing need of the UK industry to buck up in this regard. Take note, India. 

So while the world has been fanatically filing patent applications in relation to this wonder material, what have Indian inventors been up to? 

This is an excellent analysis published by the British Patent Office on worldwide patent filings related to graphene. It just reiterates that there exists a direct positive correlation between the number of patents filed in a country and healthy industry-academia collaboration. 

There is important research being conducted at IITs, IIScs and other universities with significant results. However, no patent application relating to graphene has yet been granted by the Indian Patents Office yet. There are six patent applications filed by IIT-M which are still pending. Only three applications made by Indian Universities have been published by the Patent Office Journal in 2012. This cuts a dismal figure in comparison to the worldwide race to grant patents and conduct R&D on the same. More alarmingly it is yet another indication of our falling standards to keep up even with our Asian neighbours in developing a rich and dynamic research community. As much as our leaders rue about the need for more research and scientific inventions to keep up with the world, it is high time policy makers formulated policies to develop industry-academia collaborations and encourage research with adequate facilities and funding at our universities. Enough said.

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