From priti.radhakrishnan at gmail.com Wed Aug 1 03:49:46 2007 From: priti.radhakrishnan at gmail.com (Priti Radhakrishnan) Date: Tue, 31 Jul 2007 18:19:46 -0400 Subject: [Commons-Law] The Chinese Harry Potter Message-ID: http://www.iht.com/articles/2007/07/31/news/china.php -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070731/62c9fa13/attachment.html From sunil at mahiti.org Wed Aug 1 09:36:40 2007 From: sunil at mahiti.org (Sunil Abraham) Date: Wed, 1 Aug 2007 09:36:40 +0530 Subject: [Commons-Law] Bootleg Azkaban Message-ID: Bootleg Azkaban - Aniruddha Shankar http://www.tehelka.com/story_main33.asp?filename=hub280707Bootleg_azkaban.asp A scanner, a web page and a world-wide plot: this is Potter piracy they just can't stop, says Aniruddha Shankar Strangers came together and destroyed their own property in a carnival of reading You stand in line for hours to be one of the first to get your hands on a copy of the latest Potter book. You gladly pay the large sum required to buy the heavy, hardbound tome. You rush home and settle down. You then tear each page out. If the events I witnessed on July 16, 2005, when The Half-Blood Prince was released, are any indication, a band of determined, quixotic purchasers of the book will destroy their copies on Saturday, the day the final Potter book launches. On one of lakhs of live discussion forums on the Internet, people gather from around the world as the word spreads. Each page is fed into a scanner, which takes an extremely detailed image. Using software which can recognise the shape of letters in images in a process called Optical Character Recognition (OCR), the picture of the page is automatically converted in a few seconds into digital text. Since this is never error-free, OCR programs correct spellings and allow you to proofread as you go along. The scanning of each chapter is announced to avoid duplication of work. As people join the forum, volunteers increase. Those with fast connections volunteer to proofread, a difficult task as page images are very large. As each chapter is proofread, it is converted into a text file, a web page or a pdf document, a format designed for easy printing. As chapters finish, people upload them to their own web servers, giving the entire Internet access to them. The mood on the forum last time was raucous, with people exhorting the scanners, proofers and uploaders. Many were reading each chapter eagerly online, and were discussing the series. Spoilers (persons who revealed details of the plot to people who had not read as far) were reviled and one particularly egregious individual was ejected and banned. Some uploaders complained that their sites were being hacked and, indeed, some sites did mysteriously disappear. More sprang up to replace them. But nothing would interrupt the sacred objective: to rip, scan, OCR, proofread, edit, convert and upload the entire book, all 652 pages, in a single day. As the hours passed and chapters were uploaded, tired scanners and proofers took a break or stopped working. Replacements arrived and so did more volunteers. Like revellers late to a party, they were loud, enthusiastic and determined to do, and be seen doing. Their whoops and cheers seemed to energise the veterans. Those who spotted editorial mistakes and typos in the original text were cock-a-hoop at having outdone Rowling's editors. In the middle of it all, "CheezeDawg", who was to do Chapter 8, fell silent. Chapters 9, 10, 11 and 14 had been uploaded by the mob but 8 remained missing. Those who had finished Chapter 7 and couldn't bear the wait wailed. CheezeDawg then lamented that he'd put the pages into the scanner in the wrong order and would have to re-scan. With gleeful cackles, Chapter 8 was divided into small sets by volunteers with scissors ready and scanners warm. Like the rest, it was torn, scanned, converted to text, proofed, edited, made into a web page and uploaded in minutes. Within 18 hours of the launch, the book was done. A compressed file containing the book was tiny, the size of a large web page. It spread explosively, forever, via email attachment, floppy, cd, pen drive, printout and website. Curious, I cornered some of the participants in the forum and quizzed them. From countries such as the US, Britain, Germany, Mexico, Sri Lanka, South Africa and Holland, with no leader and no agreed plan, students, accountants, housewives and college lecturers, all strangers before and after one crazy night came together and literally destroyed their own property in, as one called it "a carnival of and for reading", in order to provide the book, free, to other fans. The South African said, simply, that she and her friends just could not afford the book and would never have been able to buy it in the first place. Some did it for fun, others for the challenge or for a sense of personal satisfaction. One claimed that the world had changed but publishers hadn't. Since the cost of making a digital copy is almost nil, he claimed that if digital books were sold at an appropriate price, he'd buy them unhesitatingly. While most people will shun a 600-page book they have to read on a monitor, publishers will scream blue murder and might force a crackdown, disregarding the legal nightmare that transnational, distributed bootlegging constitutes. If the actual progress against music and video piracy is any indication, such a crackdown would be futile. People queue to gloat to friends about having read the Potter book. But some, without hope of recompense or recognition, rip up their new copies so that others, too, may read. From chansoobak at yahoo.com Thu Aug 2 12:52:20 2007 From: chansoobak at yahoo.com (chan park) Date: Thu, 2 Aug 2007 00:22:20 -0700 (PDT) Subject: [Commons-Law] ET: Novartis Not to Plead Novartis Case (misleading headline) Message-ID: <754692.17719.qm@web50708.mail.re2.yahoo.com> http://economictimes.indiatimes.com/News/News_By_Industry/Novartis_not_to_plead_Glivec_case/articleshow/2249607.cms MUMBAI: Triggering a fresh legal wrangle, Swiss drug major Novartis on Wednesday filed a writ petition with the Madras High Court contesting the Intellectual Property Appellate Board (IPAB)’s decision to let former Patent Controller General S Chandrasekaran hear its appeal for Glivec. “We expect the opportunity to explain our case clearly to an objective board. Because the current technical member of the appellate board was responsible for the original rejection of the Glivec patent, and was a party in the patent appeal in the high court, where he filed an affidavit on behalf of the offices of the Controller General of Patents, we believe he cannot act as an impartial member of the Appellate Board,” a Novartis’ spokesperson said on Wednesday. Novartis had filed a petition with the IPAB last month insisting that the newly appointed technical member to the board had refused its patent for anti-cancer drug Glivec in the first place, and should therefore not hear its appeal. However, the IPAB dismissed Novartis’ objection. “I honestly do not understand the stand of the IPAB,” said Novartis’ vice chairman and MD Ranjit Shahani. “Novartis is not against the IPAB. On the contrary we believe that its creation is a great step towards setting up a strong IP regime in the country,” he said. In a separate case, the Delhi High Court recently held that Mr Chandrasekaran could not hear Magotteaux International’s appeal to the patent office decision to reject one of its patent’s application. Following the rejection of its patent application by the Delhi Patent office, Magotteaux International — a Belgian company — had filed an appeal with the Delhi High Court. The case was then transferred to the IPAB. However, like Novartis, Magotteaux filed a petition with the high court, insisting that Mr Chandrasekaran should not hear its appeal as it was under his tenure that its patent application was rejected in the first place. “It is for the same reasons that Novartis is today opposed to Mr Chandrasekaran hearing our appeal on Glivec,” said Mr Shahani. Novartis hopes that the Madras High Court will, like the Delhi High Court did for Magotteaux, rule in its favour. The Madras Patent Office rejected Novartis’ patent application for Glivec in January 2006, arguing that the Basel-based drug maker’s innovation was obvious and did not meet the requirements of section 3(d) —a legal clause specific to the Indian patent law, which stipulates that modifications of already-known medicines cannot be patented unless they make the drug significantly more effective. While Glivec is a new medicine, patented in over 40 countries around the world, Novartis is seeking patent protection in India for a crystalline form of the drug, as the original molecule was invented prior to 1995, and is therefore not eligible for a patent in India. Novartis has last year filed a petition with the Madras High Court challenging the constitutionality of Section 3(d). -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070802/dbb894cd/attachment.html From pnnhindi at gmail.com Sat Aug 4 21:04:09 2007 From: pnnhindi at gmail.com (pnn hindi) Date: Sat, 4 Aug 2007 21:04:09 +0530 Subject: [Commons-Law] NEWS- WITHER JUDICIAL ACCOUNTABILITY? THE CASE OF JUSTICE SABHARWAL Message-ID: Click Here To See The Documents, Concerning The Facts WITHER JUDICIAL ACCOUNTABILITY? THE CASE OF JUSTICE SABHARWAL: DISQUIETING FACTS, DISTURBING IMPLICATIONS Minakshi PNN: 3, Aug. The issue of accountability of the higher judiciary has long been troubling all sections of society so at a press conference held in Press Club of India the former Law minister Shanti Bhushan and sr. advocate Supreme court Prashant Bhushan among others highlighted a grave case of judicial misconduct at the Apex of Indian Judiciary on behalf of campaign for Judicial Accountability and Reforms. Prashant Bhushan exposed that on 16'" February 2006, the then Chief Justice of India, Y.K. Sabharwal passed a detailed order setting into motion the process of sealing of properties in designated residential areas of Delhi, being used for commercial purposes, forcing to buy or rent premises in shopping malls and commercial complexes.. The Court's orders were ostensibly made to implement the rule of law as embodied by the Delhi Master Plan 2001, which had designated the land use of those areas as residential. Despite the new master 2021 the court ordered the sealing to continue, despite the fact that the new master plan permitted the owners to use their premises for commercial purposes. He further added the prices of shops and offices in the shopping malls and commercial complexes doubled and tripled almost overnight making many people question whether the sealing drive was being undertaken for the benefit of the Mall and Commercial complex developers. De facto these orders were being made by Justice Sabharwal, his two sons, Chetan and Nitin who until then had small export import businesses, had entered into partnerships with big Mall and Commercial complex developers Kabul Chawla of the BPTP group and , Purshottam Bagheria and had become big Commercial complex developers themselves. Till 2004, the Sabharwals owned 3 companies ostensibly doing small time export import business, Pawan Impex, Sabs exports and Sug exports. their officially settled at the Sabharwals' family home at 3/81 Punjabi Bagh. In January 2004 they were shifted to Justice Sabharwal's official residence at 6 Moti Lal Nehru Marg and on 7 May 2004, Justice Sabharwal had ordered the sealing of properties where industries had been running in residential areas? but his official residence could hardly be sealed. Just after the order of sealing his sons were well on their way to entering the business of Malls and commercial complexes in a big way, having sewn up partnerships with two of the biggest Commercial estate developers in Delhi business of the Sabharwals really took off thereafter. On 22/8/06, Pawan Impex was given a loan of 28 Crores by the Union Bank of lndia, Connaught Place on the security of imaginary plant, machinery and other assets" lying at plot Nos A 3, 4, &, 5 in Sector 125, Noida, nothing in actual, only a huge 1.T. park (5 lac Sq Ft, worth hundreds of crores. Interestingly, these 3 huge plots of 12,000 Sq. Metres in a prime sector of Noida were allotted to Pawan Impex on 29 Dec 2004 by the Mulayam Singh/Amar Singh government of U.P. at a rate of only Rs. 3,700/sq Metre, another huge commercial plot of 12,000 sq metres (plot 12A, in Sector 68, which appears to have been carved out later as an afterthought) on 10 November 2006, at a price of 4000 Rs/sq metre, 3 plots (C1033, lO4 and 105) of 800 Sq M each in Sector 63 at a rate of Rs. 2, I 00 each, other in Sector 8 Noida, the CBI investigation into the allotments ordered by the Allahabad High Court was immediately stayed by Justice B.P. Singh of the Supreme Court moreover the publication of the infamous Amar Singh tapes, was stayed by Justice Sabharwal himself on the matter being merely mentioned before him. Thus, the Sabharwals in just two years time, got into the business of developing Commercial complexes and appear to be rolling in money during the time when Justice Sabharwal was a senior judge and then Chief Justice, dealing with the sealing cases and passing orders. Former law minister Shanti Bhushan also said that the conduct of Justice Sabharwal and his sons appear to involve offences and misdemeanors beyond the Income Tax Act. His orders are against the principles of natural justice, which say that no judge can hear a case in which he is personally interested. It is in fact arguable that his dealing with this case in such circumstances involves an offence under the Prevention of Corruption Act. He and other senior Judges and advocates demanded the need to be thoroughly probed, particularly to see how and to what extent they funded the activities and acquistion of assets of the Sabharwals. whether their acquisition can be legitimately explained. A call was made to the society to pressurize the Parliament and the government to bring a suitable Constitutional Amendment Bill for this purpose. 011 22756796, 9211530510 PNN , Delhi-91 -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070804/7f75c6a7/attachment.html From siddharth.narrain at gmail.com Fri Aug 3 19:45:57 2007 From: siddharth.narrain at gmail.com (siddharth narrain) Date: Fri, 3 Aug 2007 19:45:57 +0530 Subject: [Commons-Law] Films of Desire in Bangalore - TOMORROW Message-ID: <1773a06d0708030715y6a484a7bn6ac9a13dc7ef7082@mail.gmail.com> Creating Resources for Empowerment in Action, The South and Southeast Asia Resource Centre on Sexuality, Good As You & Swabhava INVITE YOU TO A SELECTION FROM *Films of Desire: Sexuality and the Cinematic Imagination *** *IN * *Bangalore* *August 04, 2007* * * * * *The Event* *Films of Desire: Sexuality and the Cinematic Imagination *, focuses on Southeast Asian Cinema and will feature *screenings *of features, short films, documentaries, and experimental films that engage with ideas ofsexuality in South and Southeast Asia. It is the travelling off-shoot of a larger event held in Neemrana, near Delhi, in March 2007. *The Venue* *Alliance** Francaise de Bangalore* No. 108, Thimmaiah Road, Vasanthnagar, Bangalore Tel.: 80-41231340** *Timings* *2pm - 9:30 pm* * * *The Film Schedule: * First Session: 2 pm – 3pm - SEA IN THE BLOOD, Richard Fung, 26 minutes / English / 2000 / Canada. - LOCUST, Victric Thng, 4 minutes/ Cantonese with English subtitles/2003/Singapore - CUT, Royston Tan, 12 minutes/ Singaporean English/ 2004/ Singapore - THE LAST FULL SHOW, Mark V. Reyes, 18 minutes/ Tagalog with English subtitles /2004/The Phillipines ** * * *Second Session: ** 3:15**- ** 5:25 pm*** - THE MATCHMAKER, Cinzia Puspita Rini, 10 minutes/ Indonesian with English subtitles /2006/Indonesia ** - LOVE FOR SHARE, Nia Dinata, 120 minutes/ Bahasa Indonesia with English subtitles/ 2006/ Indonesia. *Third Session: 5:30- 7:15 pm* - ONE WIFE TO ANOTHER/ Namita Malhotra/ 2007/ 4 mins/ India/ English** - BLOSSOMING OF MAXIMO OLIVEROS, Auraeus Solito, 100 minutes/ Tagalog with English subtitles/ 2005/ Philippines * Final Session: 7:30- 9:30pm * · BEAUTIFUL BOXER, Ekachai Uekrongtham, 118 minutes / Thai with English subtitles/ 2003/ Thailand *The Organizers and Partners* · Creating Resources for Empowerment in Action (CREA) ( www.creaworld.org) is a women's human rights organization based in New Delhi. · The South and Southeast Asia Resource Centre on Sexuality ( www.asiasrc.org) enhances scholarship on sexuality in the region and is based at TARSHI in New Delhi. *Bangalore** Partners* · Good As You is an informal support group and a safe space for people identified as lesbian, gay, bisexual, transgendered or others. Email: goodasyoublr at yahoo.co.in · Swabhava is an NGO providing access to support services for lesbian, gay, bisexual and transgendered persons. Email: swabhava_trust at hotmail.com *About the Films:* · BEAUTIFUL BOXER, Ekachai Uekrongtham, 118 minutes/ Thai with English subtitles/ 2003/ Thailand Based on the real life story of Parinya Charoenphol, a Muaythai boxer who underwent a sex change operation to become a woman. The movie chronicles her life from a young boy who likes to wear lipstick and wear flowers to her sensational career as kickboxer whose specialty is ancient Muaythai boxing moves which she can execute expertly with grace and finally her confrontation with her own sexuality which led to her sex change operation. - CUT, Royston Tan, 12 minutes/ Singaporean English/ 2004/ Singapore * * Royston Tan's *Cut* comes almost a year after his feature film * 15 *which was labeled by Singapore authorities 'threat to national security' and released locally with 27 cuts. In true Singaporean fashion, *Cut* responds to the issue of censorship with a heady blend of tongue-in-cheek humour and music. * * - LOCUST, Victric Thng, 4 minutes/ Cantonese with English subtitles/ 2003/ Singapore A momentary encounter evokes both a sense of fondness and bitterness of the heart. Moving and lyrical, the film's backdrop of Hong Kong heightens the emotive narration. - LOVE FOR SHARE , Nia Dinata, 120 minutes/ Bahasa Indonesia with English subtitles/ 2006/ Indonesia.* * The film is an intriguing portrait of polygamous lifestyles in contemporary Jakarta. A gynecologist Salma discovers, to her shock, that her husband has taken a second wife. She tolerates successive wives as 'a good Muslim wife' should, until an incident forces her to cater to everyone in his circle. Siti, a country girl, realizes too late that her uncle, who has moved her to Jakarta with the promise of sending her to beauty school, has other intentions. In a packed household, Siti's hope for survival rests in her growing intimacy with one of her uncle's other wives. And Ming, a waitress and material girl, contrives to become her Catholic boss' second wife. The lives of these three women from different classes and ethnic backgrounds intersect as the similarities in their stories are revealed. * * - ONE WIFE TO ANOTHER, Namita Malhotra, 4 minutes/ English/2007/ India. The film is the erotic exploration of the conversation between two women. The film is based on a poem in Pali with the same title, part of collection of works in 'The Absent Traveler' translated by Arvind Krishna Mehrotra. The stage of the poem is the conversation between two women about their husbands and their sexual proclivity, and the film is about the words ofthis conversation written on the body. - SEA IN THE BLOOD, Richard Fung, 26 minutes/ English/ 2000/ Canada . An intensely moving personal essay about living in the shadow of illness, *Sea in the Blood* explores two of Fung's closest relationships — with his late sister Nan, who died in 1977 of a rare blood disorder called thalassemia (which literally means 'sea in the blood'), and with his lifelong lover, Tim, who has been living with HIV since 1980. ** - BLOSSOMING OF MAXIMO OLIVEROS , Auraeus Solito, 100 minutes/ Tagalog with English subtitles/ 2005/ Philippines Maximo is a preteen boy who lives a feminine life, loved and cared for by his widowed father and two teenage brothers who all lead lives of petty crime. He cooks, cleans, and sews for his family, and entertains his neighbours in the squalid slum by improvised fashion parades. Helped one day by a new neighbour, Victor, his life takes a drastic turn: he falls in love with the young, good-looking cop. Moreover, Victor angers the family by encouraging Maximo to aspire to a better life. - THE LAST FULL SHOW, Mark V. Reyes, 18 minutes/ Tagalog with English subtitles/ 2004/ The Phillipines A young man, just beginning to explore his sexuality, learns a painful first lesson about love after meeting an older, more experienced man at an underground Manila movie theatre. - THE MATCHMAKER, Cinzia Puspita Rini, 10 minutes/ Indonesian with English subtitles/ 2006/ Indonesia A simple story about Kay, an eclectic girl with both beauty and sweetness and a guy who seems to fall for her. Their eyes locked and she had him besotted since the first second he saw her, in his bookstore. The simple yet charming guy, named Darren owns a bookstore and she is quite a regular customer. A conversation over the book she ordered actually begins what we think as a start of a romantic journey. While, Kay is cooking a master plan which involves Darren in her own mind, they enjoy their times together. A week after their first meeting, Kay decides to launch her master plan. * * * For more information on the films and their directors please see: www.filmsofdesire.org* -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070803/8e671563/attachment.html -------------- next part -------------- A non-text attachment was scrubbed... Name: image001.jpg Type: image/jpeg Size: 57772 bytes Desc: not available Url : http://mail.sarai.net/pipermail/commons-law/attachments/20070803/8e671563/attachment.jpg From chansoobak at yahoo.com Mon Aug 6 12:54:36 2007 From: chansoobak at yahoo.com (chan park) Date: Mon, 6 Aug 2007 00:24:36 -0700 (PDT) Subject: [Commons-Law] Reuters: Chennai court rejects Novartis patent challenge Message-ID: <687252.81991.qm@web50704.mail.re2.yahoo.com> [Note: We will issue a comment and post the judgment online as soon as it becomes available] http://in.reuters.com/article/businessNews/idINIndia-28840920070806 CHENNAI, India (Reuters) - An Indian court rejected on Monday a challenge by Swiss drug firm Novartis to Indian law that denied patents for minor improvements to known drugs. The court in Chennai rejected the challenge saying it had no jurisdiction on whether Indian patent laws complied with intellectual property rules set by the WTO, as Novartis had questioned. A Novartis spokeswoman said the firm would make a statement soon. Novartis has said that the Indian patent system stifles innovation. Critics of Novartis say changes to the law would affect the supply of affordable anti-AIDS drugs from India, one of the biggest makers of generic drugs. Novartis had gone to the Madras High Court in Chennai against a law that blocks the patenting of minor improvements in known molecules. The Swiss pharmaceutical firm argues that a tightening of intellectual property laws would increase investment for developing more drugs. India is a key source of cheap generic medicines, and advocacy groups worry that millions of poor people could lose access to key drugs if Novartis succeeds in its challenge. Health Minister Anbumani Ramadoss said in April that the government was "very concerned" that the challenge by Novartis could restrict the global supply of cheap anti-AIDS drugs. India is home to the world's third largest population living with HIV after South Africa and Nigeria, with an estimated 2.5 million infected people. (Additional reporting by Jonathan Allen in New Delhi) -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070806/1f552526/attachment.html From prabhuram at gmail.com Mon Aug 6 14:44:45 2007 From: prabhuram at gmail.com (Prabhu Ram) Date: Mon, 6 Aug 2007 14:44:45 +0530 Subject: [Commons-Law] Indian court rejects Novartis patent challenge Message-ID: <68752c9f0708060214id668f52p7ceeaed7ff07e1f3@mail.gmail.com> Indian court rejects Novartis patent challenge By S. Murari CHENNAI, India, Aug 6 (Reuters) - An Indian court rejected on Monday a challenge by Novartis to Indian law that denies patents for minor improvements to known drugs, and the Swiss drug giant said it was unlikely to appeal. The court in the southern city of Chennai rejected the challenge, saying it had no jurisdiction on whether Indian patent laws complied with intellectual property rules set by the World Trade Organisation, as Novartis had questioned. "We disagree with this ruling, however we likely will not appeal to the Supreme Court," a Novartis spokeswoman said by phone from Basel, in Switzerland. "We await the full decision to better understand the court's position." A statement from Novartis in India said that the ruling would "have long-term negative consequences for research and development into better medicines for patients in India and abroad". Novartis says the Indian patent system stifles innovation. Critics of Novartis say changes to the law would affect the supply of affordable anti-AIDS drugs from India, one of the biggest makers of generic drugs. Novartis had gone to the Madras High Court in Chennai to challenge a law that blocks the patenting of minor improvements in known molecules. "Novartis brought this case forward because it firmly believes this was the right thing to do for patients," the statement said. "Effective patent systems ensure incentives are in place that stimulate long-term research and development efforts critical for medical progress." ADVOCACY GROUPS JUBILANT In April, the same court had also ordered that another challenge by Novartis to a January decision that rejected its patent application for a cancer drug, Glivec, be referred to an appellate board. That patent application was turned down because the drug was a new form of a known substance. India is a key source of cheap generic medicines, and advocacy groups worry that millions of poor people could lose access to key drugs if Novartis succeeds in its challenge. Aid agency Medecins Sans Frontieres (MSF) said the court order confirmed exactly what it had been saying, that Indian courts were not the proper forum to raise this issue and Novartis should settle it at the WTO. "We absolutely welcome this court order," said Leena Menghaney of MSF in India, which has been campaigning against the Novartis challenge. "It means patents will only be granted based on research and development and not just tinkering around with the old molecule to make a new form of an old drug." "It basically means fewer patents will be granted by the Indian patent office, and that means more affordable drugs can be produced by Indian manufacturers." Indian Health Minister Anbumani Ramadoss said in April that the government was "very concerned" that the challenge by Novartis could restrict the global supply of cheap anti-AIDS drugs. India is home to the world's third largest population living with HIV after South Africa and Nigeria, with an estimated 2.5 million infected people. (Additional reporting by Jonathan Allen in New Delhi) From chansoobak at yahoo.com Mon Aug 6 15:48:24 2007 From: chansoobak at yahoo.com (chan park) Date: Mon, 6 Aug 2007 03:18:24 -0700 (PDT) Subject: [Commons-Law] MADRAS HIGH COURT DISMISSES NOVARTIS' CHALLENGE TO THE INDIAN PATENT LAW Message-ID: <896370.31496.qm@web50707.mail.re2.yahoo.com> 6 August 2007 A division bench of the Madras High Court today dismissed a challenge to section 3(d) of the Indian Patents Act, 1970 filed by Swiss pharmaceutical multinational Novartis AG and its Indian subsidiary, Novartis India . These petitions challenged the validity of a key provision in the Indian law, which seeks to prevent ever greening and which provided one of several grounds on which the Patent Controller rejected Novartis AG's patent application for the beta-crystalline of Imatinib Mesylate, brand name Glivec (Gleevec). In March 2005, with retrospective effect from 1 January 2005, the Indian Parliament amended its patent law to protect product patent protection. A significant and important provision was introduced to prevent every greening and granting of frivolous patents, section 3(d). In May 2006, Novartis filed writ petitions before the Madras High Court, claiming that the Patent Controller erred in rejecting its patent application, and further claiming that section 3(d) was, among other things, vague, ambiguous, and contrary to the requirements of the TRIPS Agreement. In the challenge to section 3(d), Novartis argued that this provision is not in compliance with the TRIPS Agreement and that it is in violation with the government's (non-enforceable) constitutional duty to harmonise its domestic laws with its international obligations. Recognising the fact that the TRIPS agreement is non-self executing and provides no private right of enforcement (unlike the rights created under Chapter 11 of NAFTA and many subsequent FTAs), Novartis advanced a somewhat novel claim that while it is open for the Indian Parliament to repudiate its international obligations altogether, it is somehow invalid and unconstitutional for Parliament to otherwise comply with TRIPS except for one particular provision. The Government of India, CPAA and the generic companies argued that neither could private companies such as Novartis challenge a law as being TRIPS non-compliant nor could an Indian court decide whether the Indian patent law is TRIPS compliant or not. The appropriate forum, they argued, is the WTO Disputes Settlement Body. Upholding this argument, the Madras High Court held that it was not the proper forum to decide whether the Indian patent law was TRIPS compliant or not. The other ground of challenge raised by Novartis was that the use of the term "efficacy" in section 3(d) is vague and ambiguous, and therefore violates the equality provision (Article 14) of the Indian Constitution. During the arguments, while conceding that the meaning of the term "efficacy" is known, Novartis contended that because there was no clarity as to what constituted "enhancement of efficacy" and "significant enhancement of efficacy" as required by section 3(d), the law was vague and lent itself to arbitrary decisions by the Patent Controller. The Government of India, CPAA and generic companies argued that section 3(d) is not in violation the equality provision of the Indian Constitution as the concept of efficacy is well-known to persons in the pharmaceutical industry and it is impossible to lay down a "one size fits all" standard to determine what constitutes a significant enhancement of efficacy. Dismissing the petition, the Madras High Court held that section 3(d) was not vague or arbitrary and therefore did not violate the Indian Constitution. The full text of the judgment will be made available shortly on our website ( www.lawyerscollective.org) as soon as it becomes available from the Court. Novartis' challenge to the Patent Controller's decision, which was filed before the Madras High Court, has been subsequently transferred to and is pending before the Intellectual Property Appellate Board. Brief background of the Gleevec case In 1997, Novartis AG filed a patent application in the Chennai ( Madras) Patent Controller's office for the beta-crystalline of Imatinib Mesylate, brand name Glivec (Gleevec) on the ground that they invented the beta crystalline salt form (imatinib mesylate) of the free base, imatinib. In 2003, it was granted Exclusive Marketing Rights (EMR) for marketing Gleevec in the Indian market. On the basis of the EMR, Novartis AG obtained orders preventing some of the generic manufacturers from generic equivalents of Gleevec. Novartis was selling Gleevec at USD 2666 per patient per year. Generic companies were selling their generic versions at USD 177 to 266 per patient per month. In 2005, the CPAA and the other generic companies filed a pre-grant opposition against Novartis' patent application for imatinib mesylate, claiming, among other things, that Novartis' alleged "invention" lacked novelty, was obvious to a person skilled in the art, and that it was merely a "new form" of a "known substance" that did not enhance the substance's efficacy, and was thus not patentable under section 3(d) of the Patents Act. These arguments were based on the fact that Novartis had already been granted a patent in 1993 for the active molecule, imatinib, and that the present application only concerned a specific crystalline form of the salt form of that compound. The CPAA and the generic companies contended that the 1993 patent effectively disclosed both the free base, imatinib, and the acid-addition salt, imatinib mesylate. Further, the CPAA and generic companies argued that different crystalline forms of imatinib mesylate did not differ in properties with respect to efficacy, and thus the various forms of imatinib mesylate must be considered the "same substance" under section 3(d) of the Patents Act. In January 2006, the Patent Controller in Chennai, in a landmark decision, refused to grant Novartis a patent, agreeing with the contentions of the CPAA and generic companies that the subject application lacked novelty, was obvious, and was unpatentable under section 3(d) of the Act. The patent rejection meant that generic companies could manufacture and market their drug, both in India and abroad, who make available the generic imatinib mesylate priced at less than one-tenth the price that Novartis was charging (USD 166 to 266 instead of 2666 per person per month). -------------- next part -------------- A non-text attachment was scrubbed... Name: not available Type: application/defanged-60891 Size: 13986 bytes Desc: not available Url : http://mail.sarai.net/pipermail/commons-law/attachments/20070806/49a17d91/attachment.bin From chansoobak at yahoo.com Tue Aug 7 16:38:18 2007 From: chansoobak at yahoo.com (chan park) Date: Tue, 7 Aug 2007 04:08:18 -0700 (PDT) Subject: [Commons-Law] Joint Statement by CPAA, MSF, DNP+ and Lawyers Collective on Novartis Judgment Message-ID: <736123.81559.qm@web50706.mail.re2.yahoo.com> Mumbai/New Delhi, 7 August 2007 – The landmark decision by the Madras High Court upholding India’s Patents Act in the face of the challenge by Swiss pharmaceutical company Novartis is a major victory for patients’ access to affordable medicines in developing countries, stated the Cancer Patients Aid Association (CPAA), the Lawyers Collective HIV/AIDS Unit, the Delhi Network for Positive People (DNP+) and international medical humanitarian organisation Médecins Sans Frontières (MSF). Novartis took the Indian government and cancer patients to court over critical public health safeguards included in the 2005 amendments to India’s Patent law. Novartis claimed that India’s Patents Act did not comply with the TRIPS Agreement and was in violation of the Indian Constitution. All of Novartis’ claims were rejected by the High Court. “We fought for patients' rights in this litigation, and we are greatly relieved that the Court has ruled in our favour, and recognised that patients need protecting more than patents,” said Y. K. Sapru, founder and Chairman of the CPAA. “The issue is not merely of providing affordable drugs to patients in India, but also to patients in other countries, as India is the source of generic drugs to over hundred countries. This landmark victory will help avoid many deaths from life-threatening diseases in India and other countries.” In 2005 India amended its patent law to comply with WTO rules, but designed its law with safeguards so that patents can only be granted for real innovations. This means that companies seeking a patent for modifications to a molecule already invented, in order to extend their monopolies on existing drugs, would be unsuccessful in India. The particular amendment in question – Section 3(d) ­– was enacted to this end and it was this aspect of the law that Novartis was seeking to have removed. A ruling in favour of the company would have drastically restricted the production of affordable medicines in India that are crucial for the treatment of diseases throughout the developing world. “Novartis went to the Madras High Court claiming that India's Patents Act did not meet rules set down by the World Trade Organization and was in violation of the equality provision of the Indian constitution,” said Anand Grover, Director of the Lawyers Collective HIV/AIDS Unit, who argued the case for the CPAA. “The Madras High Court ruled that it had no jurisdiction to examine if there was any violation of the WTO rules and it was for the WTO dispute settlement mechanism to determine this. The Court also upheld the constitutional validity of section 3(d). The Court clearly recognized that Section 3(d) was enacted by the Indian Parliament to provide easy access to life saving drugs and to meet its constitutional obligation to provide good healthcare to its citizens,” he added. Developing countries and international agencies like UNICEF and the Clinton Foundation rely heavily on importing affordable drugs from India, and 84% of the antiretrovirals that MSF prescribes to its patients worldwide come from Indian generic companies. The judgment means that India will continue to be the ‘pharmacy of the developing world.’ “This decision means that safe, effective and affordable generic medicines will continue to be produced in India. The majority of drug patent applications before the Indian patent office are for new forms or new uses of already known drugs. Section 3(d) will ensure that frivolous patents will not be granted at the cost of public health,” added Chan Park of the Lawyers Collective HIV/AIDS Unit. “This is really exciting news for activists in India and across the world who rallied together to support India’s public health safeguards. The decision gives me and many others fresh hope for life,” said Loon Gangte of DNP+. “Many of us need newer HIV drugs which are still far too expensive. I now expect generic competition to change that and bring prices down. The case has also shown us that the Government is clearly taking patients lives seriously by its defense of the public health safeguards in the Indian Patents Act.” “The judgment means patients around the developing world can continue to look to India for life saving medication,” said Leena Menghaney, MSF Campaign for Access to Essential Medicines. “The statement by Novartis that the Court’s ruling will hinder innovation is false. Despite the fact that patent protection has increased world-wide in the last two decades, pharmaceutical innovation has actually declined. We encourage Novartis to contribute to international discussions on alternative incentive systems for health needs driven R&D that ensure both the availability and the affordability of new drugs and vaccines.” Nearly half a million people worldwide voiced their concern about the impact Novartis’s case could have on access to medicines in the developing world. Among them were the Indian Health Minister Anbumani Ramadoss, Archbishop Desmond Tutu, Global Fund Director Michel Kazatchkine, members from the European Parliament and the US Congress, former Swiss President Ruth Dreifuss, former UN Special Envoy for AIDS in Africa Stephen Lewis, German Development Minister Heidemarie Wieczorek-Zeul, Norwegian Development Minister Erik Solheim, as well as authors John Le Carré and Naomi Klein. An MSF petition urging Novartis to drop the case gathered over 420,000 signatures. Contact: Lawyers Collective: Anand Grover: +91.9820184788; Chan Park: + 91.9899452377 DNP+: Loon Gangte +91.9871029514 CPAA: Mr YK Sapru + 91.9821061571 MSF: Leena Menghaney: +91.9811365412; Anjolie Singh: + 91.9871875574 -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070807/d24a30af/attachment.html From julie.george at lawyerscollective.org Tue Aug 7 10:50:25 2007 From: julie.george at lawyerscollective.org (Julie) Date: Tue, 7 Aug 2007 10:50:25 +0530 Subject: [Commons-Law] Text of Madras High Court judgment Message-ID: <000001c7d8b2$ab846f70$9d00a8c0@Lawyer.local> The text of the Madras High Court judgment dismissing Novartis' challenge to the Indian patent law is now available on the website of Lawyers Collective. It can be downloaded from http://www.lawyerscollective.org/%5Eamtc/current_issues/Judgement.pdf In solidarity, Lawyers Collective HIV/AIDS Unit -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070807/f47d7ff2/attachment.html From gopa.kumar at centad.org Wed Aug 8 11:18:33 2007 From: gopa.kumar at centad.org (gopa kumar) Date: Wed, 8 Aug 2007 11:18:33 +0530 Subject: [Commons-Law] Swiss govt not to take Novartis case to WTO Message-ID: <008501c7d97f$c72d57a0$f001a8c0@yourc7d1088de8> Swiss govt not to take Novartis case to WTO BS Reporter / New Delhi August 8, 2007 The government of Switzerland will not be taking up the allegation by Novartis that Indian patent law is incompatible with the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement at the dispute settlement board of the World Trade Organisation (WTO). "We accept any case settled in India. It is normal litigation, in which one party happens to be a company and another is a country," said Doris Leuthard, federal councillor, department of economic affairs of the Swiss Confederation, here today. Leuthard was in Delhi to sign a memorandum on cooperation in international property rights with India. Leuthard was responding to the Madras High Court verdict on Monday rejecting a Novartis petition that questioned the constitutional validity of Section 3(D) of the Indian Patents Act, which restricts patenting of minor improvements of known molecules. In its judgement, the court had advised Novartis to approach the dispute settlement forum of the WTO on TRIPS compliance, for which the Swiss company would have had to approach its government (only countries, and not companies, can approach the WTO on matters of trade policy). "We must have a reliable TRIPS system and the one in India is good enough," said Leuthard, adding, "The Swiss government never gets involved in any judicial pronouncements of other countries." However, Leuthard also said the impact of the verdict on prospective Swiss investors in India remained to be seen. "I do not know how Swiss companies will react to it. Maybe they will have a closer look at the verdict. Some of them may find that investing in India may not be attractive," she said. Commerce Minister Kamal Nath said the Indian Patents Law was compatible with TRIPS. "It has been two years since the Indian Patents Act has been passed and no country has filed any complaint in the WTO yet. This Act is compliant with TRIPS," said Nath, who was present on the occasion. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070808/6901d2be/attachment.html From chansoobak at yahoo.com Wed Aug 8 14:49:13 2007 From: chansoobak at yahoo.com (chan park) Date: Wed, 8 Aug 2007 02:19:13 -0700 (PDT) Subject: [Commons-Law] Synopsis of Novartis Judgment Message-ID: <384583.94719.qm@web50704.mail.re2.yahoo.com> [Note: We will be posting the offical certified copy of the Madras High Court's judgment on our website (www.lawyerscollective.org) later today or tomorrow. The certified copy contains corrections to a few clerical errors that were contained in the advance copy that we obtained and posted on our website yesterday. Please refer to the certified copy for any official purposes.] A brief synopsis of the 89-page judgment follows: “We have borne in mind the object which the Amending Act wanted to achieve, namely to provide easy access to the citizens of this country to life saving drugs and to discharge their Constitutional obligation of providing good health care to its citizens.” With this bold affirmation of the State’s fundamental duty to ensure access to medicines for all, a division bench of the Madras High Court dismissed a challenge to section 3(d) of the Indian Patents Act, 1970 filed by Swiss pharmaceutical multinational Novartis AG and its Indian subsidiary, Novartis India. These petitions challenged the validity of a key provision in the Indian law, which seeks to prevent ever greening and which provided one of several grounds on which the Patent Controller rejected Novartis AG's patent application for the beta-crystalline form of Imatinib Mesylate, brand name Glivec (Gleevec). In March 2005, with retrospective effect from 1 January 2005, the Indian Parliament amended its patent law to protect product patent protection. A significant and important provision was introduced to prevent evergreening and the granting of frivolous patents, section 3(d). In May 2006, Novartis filed writ petitions before the Madras High Court, claiming that the Patent Controller erred in rejecting its patent application, and further claiming that section 3(d) was, among other things, vague, ambiguous, and contrary to the requirements of the TRIPS Agreement. In the challenge to section 3(d), Novartis argued that this provision is not in compliance with the TRIPS Agreement and that it is in violation with the government's (non-enforceable) constitutional duty to harmonise its domestic laws with its international obligations. Recognising the fact that the TRIPS agreement is non-self executing and provides no private right of enforcement, Novartis advanced a somewhat novel claim that while it is open for the Indian Parliament to repudiate its international obligations altogether, it is somehow invalid and unconstitutional for Parliament to otherwise comply with TRIPS except for one particular provision. The Government of India, CPAA and the generic companies responded that neither could private companies such as Novartis challenge a law as being TRIPS non-compliant nor could an Indian court decide whether the Indian patent law is TRIPS compliant or not. The appropriate forum, they argued, is the WTO Disputes Settlement Body. The Madras High Court agreed with the respondents, holding that “when a domestic law is challenged on the ground of it being in violation of an International Treaty, domestic courts have no jurisdiction.” The Court also noted that the sole and exclusive forum for determining TRIPS-compliance was, by the terms of the TRIPS Agreement itself, the WTO Disputes Settlement Body. The Court found “no compelling reasons” to disregard the express and exclusive choice of forum negotiated and agreed to by the member states of the WTO. Because it found that it lacked jurisdiction to decide such issues, the Court declined to address the issue of whether section 3(d) was in compliance with the TRIPS Agreement. In an alternative prayer, Novartis had asked the Court in the event that it determined that it lacked the power to strike down section 3(d), to simply issue a declaration that section 3(d) was not in compliance with the TRIPS Agreement. Again, in an exercise of judicial restraint, the Court declined to do so, noting that even if it had the power to grant such a declaration, such relief would be meaningless, as it “would be only on paper, on the basis of which the petitioner cannot claim any further relief in the Indian courts.” The other ground of challenge raised by Novartis was that the use of the term "efficacy" in section 3(d) is vague and ambiguous, and therefore violates the equality provision (Article 14) of the Indian Constitution. Novartis contended that because there was no clarity as to what constituted "enhancement of efficacy" and "significant enhancement of efficacy" as required by section 3(d), the law was vague and lent itself to arbitrary decisions by the Patent Controller. The Government of India, CPAA and generic companies argued that section 3(d) is not in violation the equality provision of the Indian Constitution as the concept of efficacy is well-known to persons in the pharmaceutical industry and it is impossible to lay down a "one size fits all" standard to determine what constitutes a significant enhancement of efficacy. Again, the Madras High Court agreed with the respondents, holding that the concept of “enhancement of efficacy” had clear meaning in the field. “Therefore it is a simple exercise for any Patent applicant to place on record what is the therapeutic effect/efficacy of a known substance and what is the enhancement in that known efficacy.” The Court further held that the fact that the term “significant” was left undefined was insufficient to render the provision vague and ambiguous, and that it was a perfectly valid exercise of the legislative powers of Parliament to use broad, undefined terms to be interpreted and applied across a myriad of factual circumstances by the Patent Offices and ultimately, the courts. Rejecting Novartis’ contention that the lack of guidelines for determining enhanced efficacy would result in arbitrariness, the Court found that “there are in-built materials in [section 3(d)] which would control/guide the discretion to be exercised by the [Patent Controller].” Having thus disposed of Novartis’ contentions, the Madras High Court dismissed the writ petitions challenging the validity of section 3(d) in their entirety. Novartis' challenge to the Patent Controller's decision, which was filed before the Madras High Court, has been subsequently transferred to and is pending before the Intellectual Property Appellate Board. Lawyers Collective HIV/AIDS Unit -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070808/e76baa3d/attachment.html From prashantiyengar at gmail.com Wed Aug 8 11:37:14 2007 From: prashantiyengar at gmail.com (Prashant Iyengar) Date: Wed, 8 Aug 2007 11:37:14 +0530 Subject: [Commons-Law] Text of Madras High Court judgment In-Reply-To: <000001c7d8b2$ab846f70$9d00a8c0@Lawyer.local> References: <000001c7d8b2$ab846f70$9d00a8c0@Lawyer.local> Message-ID: <908adbd0708072307o4c92059fveb947ced9410a66e@mail.gmail.com> Better formatted version attached. On 8/7/07, Julie wrote: > > The text of the Madras High Court judgment dismissing Novartis' challenge > to the Indian patent law is now available on the website of Lawyers > Collective. It can be downloaded from > http://www.lawyerscollective.org/%5Eamtc/current_issues/Judgement.pdf > > > > In solidarity, > > Lawyers Collective HIV/AIDS Unit > > > > > > > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law > > -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070808/106077b6/attachment.html -------------- next part -------------- A non-text attachment was scrubbed... Name: novartis.pdf Type: application/pdf Size: 119784 bytes Desc: not available Url : http://mail.sarai.net/pipermail/commons-law/attachments/20070808/106077b6/attachment.pdf From prabhuram at gmail.com Fri Aug 10 11:20:42 2007 From: prabhuram at gmail.com (Prabhu Ram) Date: Fri, 10 Aug 2007 11:20:42 +0530 Subject: [Commons-Law] India may patent small changes Message-ID: <68752c9f0708092250g8a37053ob6d739de776232c1@mail.gmail.com> Govt may patent small changes NEW DELHI: Even as the government waits for Dr RA Mashelkar committee to correct 'technical inaccuracies' in its report on patent issues, it seems to have accepted the panel's key recommendation to encourage incremental innovation. Government officials say they are convinced that encouraging incremental innovation will benefit Indian pharma companies as well as patients. "It may not be prudent to award patent only for a new molecule discovery, something which requires billion dollars of R&D investment. No Indian companies can afford it. So we are looking for ways to award patent for discovery of a new form of a known substance which results in the enhancement of the known efficacy of that substance," says a senior government official. The government is also working to evolve norms, which may guide patent examiners understand what constitutes 'enhancement of the known efficacy' of a substance. Currently, with no such guideline in place, most 'incremental innovations' are unlikely to be accepted for patents by the patent office. A wider consultation involving the industry and intellectual property experts is being held and norms could be ready by the end of the next month, said the official. "A new form of drug, which involved no new molecule, but brought a significantly faster recovery to a patient could be considered for patent," says the official explaining what 'enhancement of efficacy' may possibly mean. With the 'enhancement of efficacy' guideline in place, the examiners can easily distinguish between 'incremental innovation' and what is commonly referred to as 'evergreening'. Distinguishing the two, Mashelkar report says, "While evergreening refers to extension of a patent monopoly achieved by executing trivial and insignificant changes to an already existing patented product, 'incremental innovations' are sequential developments that build on the original patented product and may be of tremendous value in a country like India." Recently, Swiss drug maker Novartis' attempt to obtain patent for its anti-cancer drug Glivec failed after the Indian patent office rejected its plea citing Section 3(d) of the Indian patent law, which does not allow patent for incremental improvement on the existing product. Once the norms are in place, an order to grant or reject a patent would be more convincing to all parties concerned. Besides, it would make it difficult for applicants such as Novartis to challenge patent office orders, as there would be much more clarity over what makes the grade for patent. Following the Madras High Court's rejection of Novartis' challenge of the law, Dr Mashelkar had said on Monday that disputes like Novartis' can be avoided if a clear guideline distinguishing 'incremental innovation' from 'evergreening' was in place. Dr Mashelkar panel had submitted its report last December but withdrew its report two months later citing 'technical inaccuracies' following allegations of plagiarism. Source: http://economictimes.indiatimes.com/News/News_By_Industry/Healthcare__Biotech/Pharmaceuticals/Govt_may_patent_small_changes/articleshow/2266811.cms From prabhuram at gmail.com Fri Aug 10 11:21:50 2007 From: prabhuram at gmail.com (Prabhu Ram) Date: Fri, 10 Aug 2007 11:21:50 +0530 Subject: [Commons-Law] =?windows-1252?q?Proceedings_on_Novartis=92_appeal_?= =?windows-1252?q?before_IPAB_stayed?= Message-ID: <68752c9f0708092251u74c22616m462cc20853a64fd7@mail.gmail.com> Proceedings on Novartis' appeal before IPAB stayed Special Correspondent CHENNAI: All further proceedings on the statutory appeals filed by Novartis, challenging the rejection of its patent application, pending before the Intellectual Property Appellate Board (IPAB) were stayed by the Madras High Court on Thursday. The First Bench comprising Chief Justice A.P. Shah and Justice P. Jyothimani granted the interim relief on a writ petition filed by Novartis AG stating that the IPAB had erred in dismissing its plea to exclude its Technical Member S. Chandrasekaran from hearing its statutory appeals. Hearing on September 10 The Bench has posted the matter to September 10 for further proceedings. Novartis' application to patent the beta crystalline form of imatinib mesylate was rejected by Chennai Patent Office in January 25, 2006. In April 2007, the High Court transferred the statutory appeals to the IPAB after a Technical Member was appointed and the Board became functional. When the IPAB took up the appeal for hearing, Novartis sought to exclude Mr. Chandrasekaran from the Bench, on the ground that he had filed a counter-affidavit in support of the Union of India and the Controller-General of Patents and Designs and hence he would be biased against Novartis. In July 2007, the IPAB rejected the objections. The present writ petition challenges the rejection of its objections. Describing the timing of appointment of Mr. Chandrasekaran as significant, the company said the IPAB had erred in rejecting its plea to request the Centre to appoint another member in lieu of Mr. Chandrasekaran. The January 25, 2006 order rejecting Novartis' patent application was passed by the Assistant Controller under the aegis of the erstwhile Controller-General Chandrasekaran, the petitioner said, adding that he had deposed an affidavit against Novartis in High Court before becoming a Technical Member of the IPAB. It said he would "suffer from a prejudiced mindset and would not be able to apply his mind in an independent fashion." It said: "It is well nigh impossible to expect that a person with an indelible mindset will be able to serve as an unbiased Technical Member (Patent)." It sought to quash the IPAB order and consequently direct the Board to remove Mr. Chandrasekaran from acting as a Technical Member (Patent) to hear the appeal and direct the Centre to appoint another Technical Member in his place. Source: http://www.hindu.com/2007/08/10/stories/2007081061841800.htm From prabhuram at gmail.com Fri Aug 10 11:23:45 2007 From: prabhuram at gmail.com (Prabhu Ram) Date: Fri, 10 Aug 2007 11:23:45 +0530 Subject: [Commons-Law] Novartis: do Indian patent laws stifle research? Message-ID: <68752c9f0708092253w18ac3041rc2efa83f3c8f001@mail.gmail.com> Novartis: do Indian patent laws stifle research? FEROZ ALI K The story of Novartis' challenge to a particular provision of the Indian Patents Act 1970 goes much beyond its interest in the patent application for its life-saving cancer drug 'Gleevec' (imatinib mesylate). It is a story involving many powerful players each trying to wrest the initiative and many conflicting interests each trying to influence the development of patent law in this country. India's unique pharmaceutical past and the growth of a vibrant generic pharmaceutical industry can be attributed to the privileges enjoyed by the industry. Many decades ago, India took the conscious decision of confining monopoly rights in the field of pharmaceuticals by granting 'process patents'. Under the Patents Act 1970, pharmaceutical companies were free to devise a non-infringing process to manufacture a drug even if the same was protected by a process patent in India. This situation changed when India agreed to switch over to the product patent regime. By being a founding member of the WTO, India had to bring into effect the obligations under the TRIPS Agreement which required every member country to provide product patent protection for pharmaceuticals. Though India became a member of the WTO in 1995, it was given a 10-year transition period to bring into effect the change in regime from granting process patents to product patents for drugs. At the heart of the matter is the issue of the standard of patentability under the Indian Patents Act. The TRIPS Agreement being a minimum standard agreement requires its members to grant patents for inventions in all fields of technology for a period of 20 years if it satisfies the universally accepted criterion of patentability. The first notable external interference into the Indian patent law came in when U.S. and EU filed a complaint against India before the WTO dispute settlement panel alleging that it had not complied with its obligation under the TRIPS. That case was decided against India and the Patents Act had to be amended to introduce provisions for accepting patent applications through a 'mail-box' and for granting a patent-like right known as the Exclusive Marketing Rights (EMR) pending consideration of the patent application in certain cases. Caught in transition The time that Novartis chose to enter India was the one in which rampant changes were made to the Indian law. It filed its application in 1998 before three critical amendments were made in 1999, 2002 and 2005. The Novartis case (the patent application for its anti-cancer drug Gleevec) had many firsts to its credit. It signified the first instance of grant of a patent-like right known as the Exclusive Marketing Right (EMR), which led to the world's first contentious case of EMR. It was also the first time a foreign multinational questioned the constitutional validity of a provision of the Indian Patents Act. As soon as the law changed in India, Novartis preferred an application for beta crystalline form of imatinib mesylate (Gleevec) in 1998. Gleevec offers cure to life threatening form of cancer, chronic myeloid leukaemia. Imatinib as a free base molecule was invented by Novartis in 1992 and patented in the U.S. and other countries in 1993. Novartis however chose not to apply for a patent for the imatinib free base in India as India did not offer product patent protection in 1993. It is pertinent to note that the 1993 U.S. patent of imatinib disclosed the salt imatinib mesylate. But in 1998, Novartis came up with an application for a beta crystalline form of imatinib mesylate which was, in the terms of section 3(d) of the Patents Act 1970, a new form of a known substance. Section 3(d) of the Act states that "the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance" shall not be treated as an invention within the meaning of the Act. Phrased differently, it meant that the new form of a known substance will be entitled for a patent if it results in the enhancement of the known efficacy of that substance. Knowing full well about this requirement of the Indian law, Novartis tried to demonstrate before the Controller how there was an enhancement of efficacy and submitted that there was an enhanced bioavailability of 30 per cent in studies conducted on rats. Bioavailability is one of the indicators of efficacy of a drug. The Controller rejected this submission and held that Novartis had failed to demonstrate the enhancement in efficacy as required under the Act. Efficacy enhancement The case failed as Novartis failed to discharge the burden of showing the enhancement of efficacy. Section 3(d) has an in-built guideline for determining the enhancement of efficacy. It states that with 'known efficacy' as the benchmark, the person seeking patent has to show the enhancement of efficacy. The explanation to section 3(d) requires such enhancement to be significant. Novartis' case suffered as they had produced a bioavailability study conducted on rats while the drug was admittedly in the market for many years and was consumed by humans. Then again, it was not shown how the 30 per cent increase was critical in the performance of the drug and how the increase in enhancement of efficacy made a difference when compared to known efficacy. Aggrieved by the order of the Controller, Novartis approached the Madras High Court with two batches of writ petitions: one challenging the constitutional validity of section 3(d) and the other challenging the order of the Controller with the request for quashing the same as the appeal mechanism (appeal from a Controller's order to the Intellectual Property Appellate Board — IPAB) under the Patents Act has not come into force by then. In the writ petition challenging the constitutional propriety of section 3(d), Novartis took a contradicting plea that the provisions section 3(d) was vague and arbitrary despite trying its best to plead its case on the lines of section 3(d) before the Controller. Though the Madras High Court had dismissed the writ petitions filed by Novartis challenging section 3(d), the High Court had directed the transfer of the other batch to the IPAB questioning the order of the Controller after converting the same into a statutory appeal. Impact of decision Though the prophets of doom had signalled the end of research activities and innovation in this country, the judgment of the Madras High Court and the impact of section 3(d) must be understood better by knowing what it permits and what it prohibits. Patents for pharmaceutical substances today fall into two broad categories: Original inventions and incremental innovation. Incremental innovation is a grey area; what actually amounts to incremental innovation and the extent to which such innovations should be protected is debatable. In any case, the language of section 3(d) permits incremental innovation. But it is for the applicant to demonstrate why a fresh patent should be granted to a known substance. For this the applicant has to demonstrate an increase in efficacy of the substance over the known efficacy. It would be misleading to state that section 3(d) stifles innovation. What section 3(d) actually does is to allow genuine improvements and at the same time bar frivolous 'tweaking' which are passed under the garb of incremental innovation. In this regard, section 3(d) is trendsetting provision as it is the first legal provision in the world not to be found in the patent legislation of any country, which provides a check on frivolous patenting. Any country whose laws are in the state of transition will see casualties who run the risk of testing it for the first time. But then, Novartis took a calculated risk of not applying for an Indian patent in 1993 and did so when the laws did change to permit the grant of product patents. Having taken this route, which is without doubt a risky one, it will not be proper to denigrate the laws of this country merely because it could not achieve what it wanted. (The author is a Chennai-based advocate and the author of the recent book "The Law of Patents – With a Special Focus on Pharmaceuticals in India") Source: http://www.hinduonnet.com/thehindu/thscrip/print.pl?file=2007080950161500.htm&date=2007/08/09/&prd=seta& From mrinalinikpillai at gmail.com Tue Aug 14 02:49:41 2007 From: mrinalinikpillai at gmail.com (Mrinalini Kochupillai) Date: Mon, 13 Aug 2007 17:19:41 -0400 Subject: [Commons-Law] The Novartis Patent Dispute: Of "Spins" and Empty Rhetoric Message-ID: The SpicyIP Blog has been covering the Novartis issue. Here's the latest post: The Novartis Patent Dispute: Of "Spins" and Empty Rhetoric (By Shamnad Basheer) A couple of days back, in a legal dispute involving the patentability of Novartis's famed anticancer drug, Gleevec, the Madras High Court ruledthat section 3(d) of the Indian Patents Act was constitutional. It also held that it lacked jurisdiction to rule on whether or not section 3(d) contravened TRIPS--and that the appropriate forum to adjudicate this issue was the WTO. I'd hinted at the excessive spin on this judgment by interested stakeholders in an earlier blog posting. Let me develop this further by starting with a statement from Novartis to ETthat strategically uses the "C" word: "Multinational drug makers would prefer China for investments in pharmaceutical research so long as India keeps the bar for patenting a drug so high, warns drug major Novartis on Monday after the Madras High Court turned down the company's challenge to the country's patent law." Evoking the name of China is a clever move and one aimed at jolting our Ministers and bureaucrats into action. I couldn't help being amused at the paradox though. China's IP regime being lauded by an MNC?? The sun must have risen in the West today!! Just a few months back, the US initiated WTO consultations with China over its poor IP enforcement record. In fact, a recent news itemreveals what Novartis really thinks of the Chinese record on IP: "The apprehension among industry players regarding IPR protection struck feverish high after a widely publicized incident involving the detention of Chinese employees from three pharmaceutical companies in France last October. They were accused of allegedly violating the intellectual property of a Sanofi-Aventis drug when showcasing an active pharmaceutical component. Cases like this do ring the alarm bell over China's inefficient IPR policies. Yi Yang, associate director of Novartis Pharmaceuticals Corporation cautioned earlier this month of a budding concern among MNCs that Chinese employees at mainland utilities would leave and establish their own companies using unauthorized duplicates of pharmaceutical expertise." The interesting question to pose is: why are Novartis and other MNC's still investing in China, despite it's not so glitzy IP regime. Are we missing something here? Or is it reflective of the simple truth that IP is not the sole or even a substantial determinant of FDI (foreign direct investment) inflow. Rather, R&D will be outsourced to countries like India and China, when such countries offer key advantages, such as low costs, highly skilled personnel, infrastructure, a good science/technology base etc. In short, as SpicyIPhas often been reiterating, strong IP cannot by itself lead to "innovation"--rather it has to be combined with several other non IP factors. The fact that, of the emerging economies, China continues to attract the maximum FDI would seem to suggest that the non IP factors play a critical role in inducing more FDI. Unfortunately, we don't have any concrete data as yet that conclusively demonstrates the extent to which strong IP regimes spur the flow of increased FDI. Till we have such data, engaging in rhetoric of this sort is not going to help. And in a world that is coming to be more sensitive to the "butterfly effect ", getting to this data "holy grail" may prove more complicated than one thinks. More importantly perhaps, the Novartis case does not stand for the proposition that India disfavours incremental innovation. Quite the contrary.... the Madras High Court decision supports the constitutionality of section 3(d)-- a section that incentivises "incremental innovations" (innovations that are more effective improvements over what existed before), as opposed to mere trivial variants. In essence, section 3(d) aims to prevent a phenomenon commonly referred to as "ever-greening" by requiring that, in order to patentable, new forms of existing pharmaceutical substances should demonstrate increased "efficacy". The underlying assumption is that derivatives that are structurally similar to known pharmaceutical substances (such as salt forms, polymorphs etc), will, by and large, be functionally equivalent as well--and if this is not the case and the new form of an existing substance works better than the old form, it is up-to the patent applicant to demonstrate this and claim a patent. In much the same way as the rest of the world, India is keen on incentivising more R&D and attracting more FDI --but in areas where it matters. By introducing section 3(d) in its patent regime, India demonstrates a clear preference for R&D and FDI flows that are likely to spur genuine "incremental" advances and not the creation of trivial derivatives that do not provide any added "efficacy" over and above what existed before. Therefore, reading the Novartis case to suggest that India does not support innovation is unwarranted. In the same way, viewing the Madras High Court judgment as something that will cure all our public health woes is misguided. Just as "patents" alone are not sufficient to enhance our innovative capabilities, "patents" are not the sole reason for lack of access to important medication. Rather, some very substantial "non" IP factors contribute to our access crunch. This is more than borne out by the fact that, despite the absence of a product patent regime till 2005, and the existence of some of the most well known generic companies that supply low medications to the rest of the world, we have an atrociously low level of "access" to HIV medication. Interestingly, a recent news item states that CIPLA is being castigated for charging higher prices for its HIV drugs in India than in Africa. This is not to suggest that Novartis ought to be granted a patent without further examination on merits. Rather, it is to suggest that pharmaceutical patents are not "bad" per se, as some of the statements in the press would have us believe—rather, as with most other things in life, they are susceptible to "abuse". In this regard, it is important to strike a distinction between the grant of a patent and the regulation of its "use". Our fears of a prospective abuse of a patent and excessively high prices should not cause us to deny patent protection to an invention that otherwise merits it--particularly since we've already created a fairly high threshold in the form of section 3(d). In the specific context of Gleevec, let's rationally assess the prospective (ex-post) impact of the patent, without caving in to emotional rhetoric: 1. Gleevec was and is being supplied for free by Novartis in India to most patients--of course, one may argue that there is some mismatch between the theory and practice of doling out free medicines--as the administrative hassles can prove quite onerous in some cases. But surely, there are still a substantial number of cases where this medicine does get supplied for free and with more "press", we can get Novartis to completely close the gap between theory and practice!!. In a recent conversation with a reputed doctor from the All India Institute of Medical Sciences (AIIMS), I was informed that all of AIIMS' supplies are from Novartis (free of charge). 2. More importantly, the issuance of a patent covering Gleevec does not stop generic supplies. Rather, under the Indian patent regime, generic companies, such as Natco and Ranbaxy that were manufacturing the drug before the advent of the product patent regime in 2005 can continue doing so--provided they pay a "reasonable royalty" to Novartis. The next round of patent litigations will likely hinge around what is "reasonable"--funny that in a case dripping with rhetoric, we will soon engage with what it means to be "reasonable"!! 3. Apart from the above "compulsory licensing" provision, the government can deploy "government use" provisions to manufacture and supply the drug at low costs. In the wake of the bird flu scare (a hype to which I very easily succumbed), I co-authored a paperdetailing the various compulsory licensing and government use provisions that the government could invoke to ensure a cheap and affordable supply of Tamiflu, a drug that was expected to work well in those circumstances. If the recent enthusiasm of the NPAA (National Pharmaceutical Pricing Authority) is anything to go by, price controls are likely to get stronger in India. 4. Most importantly perhaps, the patent only covers the beta crystalline form of Imatinib Mesylate--one of the many polymorphic forms in which Imatinib Mesylate exists. Generic manufacturers are free to use other polymorphic forms--and indeed, I've been informed by a friend who works in a leading Indian generic company that Hetero seems to have a version of the drug that relies on such a different polymorphic form. Also, amidst all the euphoria around the Madras High Court judgment, it bears reiteration that the case hasn't been finally decided as yet i.e. it is still possible that Novartis might be awarded the patent (though I think it unlikely). All the High court did was to defend the constitutionality of section 3(d). The IPAB (Intellectual Property Appellate Board) will still have to decide whether Novartis' claimed invention entails some "added efficacy" over an earlier known substance under section 3(d) and therefore merits a patent. Unfortunately, this new IP appellate body has been mired in controversy owing to the appointment of Chandrasekharan, who, as the Controller of Patents, had filed an affidavit before the High Court, supporting the initial rejection of Novartis' patent by the Patent Office. As SpicyIPhas been reiterating, this violation of a cardinal principle of natural justice creates a hole in an otherwise strong case for the government!! The Novartis case should be permitted to run its course before the IPAB/courts. What credibility do we have left as a country if we introduce terms such as "efficacy" not known to any other patent regime and then expect interested stakeholders to desist from agitating the issue before courts, hoping to gain clarity on how such terms are to be interpreted? Amidst all the "spinning" generated by the Novartis case, it is heartening to see that the government has not succumbed to rhetoric and is beginning to constructively engage with the "real" issue that this dispute raises. An ET report notes: *While lawyers would battle it out as Novartis' appeal continues, the government is working on a new patents manual that is expected to reduce subjectivity in deciding what is "significantly more effective that the already known". * Drawing out guidelines for determining "efficacy" is indeed the need of the hour. While the Madras High Court judgment is being celebrated, it does come with certain problems--it wishes away the 'efficacy" problem as something to be defined in each specific fact situation. And interestingly enough, it states that the term "enhancement of known efficacy" is not "indeterminate", since Novartis, being a pharmaceutical company knows what this means and can determine its import. That strikes me as a puzzling proposition. Novartis thought that it knew what "efficacy" and "enhancement of known efficacy" meant---and alleged before the patent office that its new beta crystalline form had an increased bio-availability of 30% and was therefore more "efficacious". Guess what--the patent office didn't agree!! Unfortunately, apart from a categorical statement that it did not agree, the patent office did not really tell us as to what they thought the term "efficacy" meant and why Novartis' alleged invention did not demonstrate enhanced efficacy. Given this background, isn't it only fair for Novartis for plead that they are clueless as to what the term means. In all fairness, the court wasn't expected to rule on the ambit of "efficacy"--but was merely addressing a constitutional issue i.e. did the introduction of a term such as "efficacy", without corresponding guidelines elucidating its scope, make section 3(d) vague, inherently "arbitrary" and almost always prone to an "uncanalised" exercise of discretion? Was section 3(d) therefore likely to violate the "equality" clause enshrined in Art 14 of the Constitution? Drawing on earlier case law and ignoring the bard's dictum that "brevity is the soul of wit", the court held that Parliament may introduce undefined terms such as "efficacy" and leave it to the administrative agencies to flesh it out. To this extent, there is a distinction between "discretion" conferred on an administrative agency and an "arbitrary" exercise of such discretionary power and one does not automatically follow from the other. There are two safeguards that could rein in any potential abuse of discretion. Firstly, the wordings of section 3(d) and its explanation provide some clues on how to interpret "efficacy" and thereby control/guide the "discretion". I've read and re-read section 3(d) and am at a loss to understand how the wordings of this convoluted section could help anyone!! Secondly, the possibility of an appeal serves as an important safeguard against the potential for abuse of discretionary power. In short, the court held that since section 3(d) did not confer "uncanalised" discretionary power on the patent controller, it was constitutionally valid. The above dictum is sound from constitutional law perspective. However, from the perspective of a patent office that is faced with a term ("efficacy") that does not find mention in any other patent regime in the world, wouldn't it be more sensible if the scope for subjectivity were reduced by laying down some broad guidelines. Such guidelines would also have the added advantage of providing some amount of legal certainty to patent applicants who needn't litigate each time to determine the ambit of this term. So how exactly do we define the term "efficacy"? Given that India borrowed a large part of section 3(d) from a drug regulatory directive in Europe, should we define this in a drug regulatory sense? Doing so would not only impose an extremely high patentability hurdle, but also make a patent applicant run into serious problems with the "novelty" test--one of the cardinal pre-requisites for obtaining a patent. Since the drug would have been administered to volunteers during clinical trials, there is likelihood that it will be construed as "known" substance at the time of submitting a patent application. Interestingly enough, the Madras High Court judgment relied on a medical dictionary definition to hold that the term "efficacy" in section 3(d) meant "therapeutic" efficacy. Would increased "bioavilability" (which is what Novartis claims for its beta crystaline form) count as "therapeutic" efficacy? What about salt forms that provide more heat stability and enable the drug to be transported to various parts of rural India without refrigeration? It seems that under the Madras High Court's "therapeutic" efficacy construction, this may not count. But should this be the case? If the intention behind section 3(d) is to provide incentives to new forms of pharmaceutical substances that come with genuine advantages, then ought not heat stable forms to qualify? The US and EU provide that salt forms with "unexpected properties" are "inventive" and therefore merit patent protection--and such unexpected properties would include not just "therapeutic" efficacy, but any other other significant advantage as well, such as heat stability. Should India be interpreting section 3(d) to reach a similar result? Clearly, defining "efficacy" is no easy task--but we have to begin somewhere. Let not the various spins put on the case by interested stakeholders blind us. Spins should be deployed where we need it most---to help improve our international record in cricket!! -------------- next part -------------- A non-text attachment was scrubbed... Name: not available Type: application/defanged-6 Size: 20015 bytes Desc: not available Url : http://mail.sarai.net/pipermail/commons-law/attachments/20070813/3e571e0f/attachment.bin From mayur.suresh at gmail.com Tue Aug 14 17:05:11 2007 From: mayur.suresh at gmail.com (Mayur) Date: Tue, 14 Aug 2007 17:05:11 +0530 Subject: [Commons-Law] Author(iz)ing Yoga: Discussion this Friday, 17th August In-Reply-To: <98bea7e00708140432t68e3ca85tdc24acbbc4938038@mail.gmail.com> References: <98bea7e00708140432t68e3ca85tdc24acbbc4938038@mail.gmail.com> Message-ID: <4def3c470708140435s4933476elc11455f6a4640dfd@mail.gmail.com> Please join us this Friday, 17th August, 2007, for a discussion led by Allison Fish in Intellectual Property and Yoga. The discussion will begin at 5:30 pm at the (Old) ALF office, at 122/4 Infantry Road, Opposite Infantry Wedding House. A brief abstract of the presentation is given below. Hope to see you all this friday Mayur * Author(iz)ing Yoga* Issues surrounding the protection and exploitation of traditional knowledge through intellectual property rights (IPR) are increasingly debated and the legal frameworks developing in response will have wide ranging impacts. One such strategy, a project initiated and funded by the Indian central government, is the Traditional Knowledge Digital Library (TKDL). The discussion this Friday at ALF will explore the unfolding of the TKDL with a focus on the section of the library that intends to document yogic knowledge and practices. The talk will begin with an overview of how the practice of yoga has become a highly profitable global commercial industry and how this phenomenon provides a space for the innovative application and experimentation with traditional IP management tools by different parties. As part of this discussion I am interested in those experiments that are successful and produce valid IP claims. However, I want to be clear here that I am also, if not primarily, interested in the novel and untested proprietary claims that have a good possibility of failure or the potential to produce unanticipated effects. In analyzing these unintended effects, unanticipated consequences, and failures I look to the work of Hugh Raffles (2002), Anna Tsing (2004), Kim Fortun (2003), Rosemary Coombe (1998), Julia Elyachar (2005), Bill Maurer (2005), Adriana Petryna (2002), and Cori Hayden (2003). The talk will begin by introducing the concept of commercial yoga and explore how it; 1. Has arisen from modern and transnational variants of the practice beginning in the mid-20th century, 2. Has emerged in the legal and ethical framework of global capitalism, 3. Has developed into a valuable, competitive market commodity where rival actors secure financial interests through novel application of traditional IP claims, and 4. These events have caused the Indian state to respond, through the inclusion of yoga into the TKDL, to what it claims is the continued piracy of its national-cultural heritage, In charting this flow, the talk will address how yoga, as a controversial entity, has provided the impetus for different actors to develop tools to convert this distinctive type of information-knowledge into a manageable and proprietary object. Moreover, on a broad theoretical level, the discussion will address how taking commercial yoga seriously contributes to new directions in both socio-legal and anthropological knowledge making ventures. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070814/8873ff86/attachment.html From sunil at mahiti.org Thu Aug 16 10:16:31 2007 From: sunil at mahiti.org (Sunil Abraham) Date: Thu, 16 Aug 2007 10:16:31 +0530 Subject: [Commons-Law] Call for Proposals "Accessing Patented Knowledge for Innovation" Message-ID: <1187239591.5359.12.camel@localhost> Please see: http://www.idrc.ca/intellectual-property/ Intellectual Property Rights Activities at ITS Call for Proposals "Accessing Patented Knowledge for Innovation" The ITS program is issuing a Call for Proposals on the subject "Accessing Patented Knowledge for Innovation". Proposals should address how developing countries can access technologies and information contained in existing patents to enhance innovative research at the national level. Closing date is November 30, 2007. Click here to go to the Call for Proposals. __________________________________________________________ Intellectual Property Rights and Research The global expansion of IPRs has influenced the setting of research priorities and increased the private ownership of research outputs. There is concern that IPRs may be obstacles to the development of local research capacities and to accessing research results vital to human development. As IDRC was created in response to the research needs of developing countries, it is appropriate for its Innovation Technology and Society (ITS) program to focus on the effect of IPRs on research, as both an inducement and an inhibitor of innovation. This area of interest in ITS is part of the program's regular activities. You can access more information following this link. From dwijenr at gmail.com Tue Aug 14 12:38:20 2007 From: dwijenr at gmail.com (Dwijen Rangnekar) Date: Tue, 14 Aug 2007 12:38:20 +0530 Subject: [Commons-Law] Economic Times 10 Aug 2007: After Chennai HC riposte, Novartis should introspect Message-ID: <005001c7de41$f9b815e0$ed2841a0$@com> Economic Times After Chennai HC riposte, Novartis should introspect 10 Aug, 2007, 0534 hrs IST,Dwijen Rangnekar, Earlier this week, the Chennai High Court, in the Novartis case, observed that international treaties are akin to contracts, and where they possess a comprehensive dispute settlement forum there is “no compelling reason to deviate from such a judicial approach when we consider the choice of forum”. This was in response to the writs filed by Novartis claiming that India’s patent laws, in particular section 3(d) inserted in the third amendment, was not in compliance with the TRIPS Agreement. This raised the difficult question of whether an Indian court is the appropriate forum to test the validity of domestic law on the grounds that is allegedly in violation of an obligation to an international treaty. The court recognised that the TRIPS Agreement - as part of a comprehensive single undertaking setting up WTO - is also bound by the dispute settlement undertaking. The latter is well-recognised as a key achievement of the Uruguay Round in bringing security and predictability to the multilateral trading system. There is political ingenuity to this sound legal reasoning of differing judgement on TRIPS-compliance to the WTO’s dispute settlement forum. It raises the threshold of resources to be mobilised to mount a challenge to domestic law, in the absence of which willy-nilly challenges to domestic law in the South can be mounted. Thus, no surprise that Novartis is left out in the rain having to listen to a Swiss government official in India expressing no interest in taking India to WTO. Maybe, Novartis should have initially listened to its shareholders in the March 2006 AGM when they expressed their dissatisfaction with the writs filed in Chennai. The central issue of the case revolved around Novartis’ claim that section 3(d) was vague, arbitrary and granted uncanalised powers to the patent controller which, without clear guidance, generates excessive discretionary space. It also pleaded with the court to direct the patent controller to grant a patent for its application for the crystalline form of imatinib mesylate (Glivec), earlier rejected in January 2006 on the basis of section 3(d). As a result, the grant of an EMR for Glivec in November 2003 stands terminated. Though, Novartis withdrew this part of the appeal, the matter remains in front of the newly constituted Intellectual Property Appellate Board. Section 3(d) has a highly-debated genealogy. Introduced in the third amendment, it raises the threshold for patentability by excluding “the mere discovery of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant”. Novartis argued that in the absence of guidelines from Parliament, this gives “unguided discretion” to the patent controller. It also claimed that the parliamentary debate indicates that the section is unfairly directed at drugs. The judgement makes for interesting reading here. It reminds us that intention in law making is not to be exclusively derived from the transcripts of parliamentary debate. Noting case law in England, the decision notes that the English language is not an instrument of mathematical precision; thus statutes agreed by parliament present the “object and purpose” which are to be interpreted by courts. However, every discretionary power is not necessarily discriminatory. Novartis had failed to establish the point. Moreover, the judges find that the Patent Act has in-built mechanisms and institutions to appeal and remedy an error. It is also useful to note that, parliamentary debate aside, the contested section is written in a technologically neutral manner and applies to other fields of technology. Though the issue of discrimination between fields of technology is a matter that even the WTO dispute settlement panel has refused to define when it arose in the Canada-Generics dispute. This still leaves the matter of section 3(d)’s threshold of patentability which requires demonstration of ‘efficacy’. The courts found that the text is eminently clear in its requirements and sided with those opposing the writs in that Novartis is not “a novice to the pharmacology field...[and] cannot plead that they do not know what is meant by enhancement of a known efficacy”. Little doubt that section 3(d) seeks to raise the threshold - and there is wide speculation in the media that some 2,000 pending patent applications will fall foul of this requirement. In fact, Novartis India MD Ranjit Shahani is quoted as saying that this is a “sad day for innovation and that there will be “long-term negative consequences” while others from Novartis have threatened that investments will move to China. For that matter, this newspaper headlined its report of the judgement as “Long Live Copy Cats”! While Novartis’ reaction is predictable, the paper’s reporting is unfortunate. Section 3(d) is not an unambiguous prohibition, instead it is qualified by a requirement of demonstrating increased efficacy. Thus, it seeks to weed out among the many patent applications - all of which are not necessarily genuine - and permit only those meeting this standard; thus, expose the many frivolous patent applications that seek to extend control over a molecule. For that matter, it can be argued that incremental advances demonstrating increased efficacy will qualify. Thus, Novartis’ public expressions are baseless. No doubt, it remains to be seen whether the company would actually look at relocating its interests to China. With India’s pharma expertise and the recent global ranking of IITs in the top three technology institutes by the Times Higher such a decision is unlikely. Notwithstanding the articulations of the company’s directors, better sense will surely prevail among their shareholders - as it did in March 2006. (The author is academic fellow, School of Law & the Centre for the Study of Globalisation and Regionalisation, University of Warwick, UK) About Us | Advertise with Us | Careers @ TIL | Terms of Use | Privacy Policy | Feedback | Sitemap Copyright © 2007 Times Internet Limited. All rights reserved. For reprint rights: Times Syndication Service This site is best viewed in 1024x768 resolution. http://timeslog.indiatimes.com/timeslog.dll/pgnoscr?CHUR=economictimes.indiatimes.com&logmviewed=1&msid=2269903 -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070814/0866e814/attachment.html -------------- next part -------------- A non-text attachment was scrubbed... Name: not available Type: image/gif Size: 43 bytes Desc: not available Url : http://mail.sarai.net/pipermail/commons-law/attachments/20070814/0866e814/attachment.gif From mayur at altlawforum.org Tue Aug 14 17:02:27 2007 From: mayur at altlawforum.org (Mayur Suresh) Date: Tue, 14 Aug 2007 17:02:27 +0530 Subject: [Commons-Law] Author(iz)ing Yoga: Discussion this Friday, 17th August Message-ID: <98bea7e00708140432t68e3ca85tdc24acbbc4938038@mail.gmail.com> Please join us this Friday, 17th August, 2007, for a discussion led by Allison Fish in Intellectual Property and Yoga. The discussion will begin at 5:30 pm at the (Old) ALF office, at 122/4 Infantry Road, Opposite Infantry Wedding House. A brief abstract of the presentation is given below. Hope to see you all this friday Mayur *Author(iz)ing Yoga* Issues surrounding the protection and exploitation of traditional knowledge through intellectual property rights (IPR) are increasingly debated and the legal frameworks developing in response will have wide ranging impacts. One such strategy, a project initiated and funded by the Indian central government, is the Traditional Knowledge Digital Library (TKDL). The discussion this Friday at ALF will explore the unfolding of the TKDL with a focus on the section of the library that intends to document yogic knowledge and practices. The talk will begin with an overview of how the practice of yoga has become a highly profitable global commercial industry and how this phenomenon provides a space for the innovative application and experimentation with traditional IP management tools by different parties. As part of this discussion I am interested in those experiments that are successful and produce valid IP claims. However, I want to be clear here that I am also, if not primarily, interested in the novel and untested proprietary claims that have a good possibility of failure or the potential to produce unanticipated effects. In analyzing these unintended effects, unanticipated consequences, and failures I look to the work of Hugh Raffles (2002), Anna Tsing (2004), Kim Fortun (2003), Rosemary Coombe (1998), Julia Elyachar (2005), Bill Maurer (2005), Adriana Petryna (2002), and Cori Hayden (2003). The talk will begin by introducing the concept of commercial yoga and explore how it; 1. Has arisen from modern and transnational variants of the practice beginning in the mid-20th century, 2. Has emerged in the legal and ethical framework of global capitalism, 3. Has developed into a valuable, competitive market commodity where rival actors secure financial interests through novel application of traditional IP claims, and 4. These events have caused the Indian state to respond, through the inclusion of yoga into the TKDL, to what it claims is the continued piracy of its national-cultural heritage, In charting this flow, the talk will address how yoga, as a controversial entity, has provided the impetus for different actors to develop tools to convert this distinctive type of information-knowledge into a manageable and proprietary object. Moreover, on a broad theoretical level, the discussion will address how taking commercial yoga seriously contributes to new directions in both socio-legal and anthropological knowledge making ventures. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070814/50e3cad1/attachment.html From tahirmamin at gmail.com Fri Aug 17 01:36:24 2007 From: tahirmamin at gmail.com (Tahir Amin) Date: Thu, 16 Aug 2007 21:06:24 +0100 Subject: [Commons-Law] I-MAK Challenges Patents on Lifesaving HIV Drug Combination in Europe, India In-Reply-To: References: Message-ID: <87609e2b0708161306u137e9a10safb99be307532425@mail.gmail.com> August 16, 2007 New York – Today, a U.S.-based non-profit organization, the Initiative for Medicines, Access & Knowledge (I-MAK) announced its filings of critical patent challenges on the HIV drug combination Lopinavir/Ritonavir. This drug combination is manufactured and sold by U.S. drug company Abbott Laboratories under the brand name Aluvia(r). I-MAK's patent submissions were filed at the European Patent Office and the Indian Patent Office. For more information on the filing, please visit www.i-mak.org/i-mak-news-updates/. For a summary of key arguments or the documents, please visit www.i-mak.org/lopinavirritonavir. * * * * -- Tahir Amin Initiative for Medicines, Access & Knowledge (I-MAK) +44 771 853 9472 -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070816/71ac5aa5/attachment.html From chansoobak at yahoo.com Fri Aug 17 15:23:09 2007 From: chansoobak at yahoo.com (chan park) Date: Fri, 17 Aug 2007 02:53:09 -0700 (PDT) Subject: [Commons-Law] CARE, UNAIDS and Lawyers Collective HIV/AIDS Unit at ICAAP 8 Message-ID: <316112.81384.qm@web50710.mail.re2.yahoo.com> Media Advisory CARE, UNAIDS and Lawyers Collective, India organize ICAAP 8 panel to underscore need for Effective Access to HIV/AIDS Treatment for the Poor In Asia, the majority of people living with HIV do not access treatment. Often, they cannot afford to travel to a treatment centre or a laboratory that will determine their CD4 level. Even when they can receive free ARV from a government programme, they struggle to pay for treatment of opportunistic infections and biological tests -Lawyers Collective, CARE and UNAIDS call for action to ensure access to effective and affordable treatment for poor and marginalized communities in Asia. The three organizations are sponsoring a special panel at the 8th International Congress on AIDS in Asia (ICAAP8) being held in Colombo Sri Lanka looking at this issue. Panel Discussion: Access, Medicines, Treatment: The Impact of Price and Distance on treating HIV/AIDS in Asia Date: August 22, 2007 Time: 6:30-8:00 PM Venue: Room C, Bandaranaike Memorial International Conference Center, Colombo, Sri Lanka. Panelists include: Dr. Denis Broun, UNAIDS Country Coordinator, India (Chair); Anand Grover, Head, Lawyers Collective (HIV Unit), India; D. G. Shah, Secretary General, Indian Pharmaceutical Alliance; Dr. Adeeba Kamarulzaman, Head, Malaysian AIDS Council; Chan Park, Snr. Technical and Policy Advisor, Lawyers Collective, India; Madhu Deshmukh, director HIV/AIDS Unit, CARE USA; Khun Jon Ungphakorn, Founder, AIDS Access Foundation of Thailand. For more information contact: Amelia Andrews, CARE +919313869174 amelia at careindia.org Manisha Mishra, UNAIDS +91-9810882273, mishram at unaids.org Chan Park, Lawyers Collective +919899452377 chan.park at lawyerscollective.org UNAIDS is an innovative joint venture of the United Nations, bringing together the efforts and resources of the UNAIDS Secretariat and ten UN system organizations in the AIDS response. Coherent action on AIDS by the UN system is coordinated in countries through UN theme groups, and the joint programmes on AIDS. UNAIDS’ Cosponsors include UNHCR, UNICEF, WFP, UNDP, UNFPA, UNODC, ILO, UNESCO, WHO and the World Bank. Lawyers Collective was established in 1981 and is one of the leading public interest service providers in India with a proven record of setting high standards in human rights advocacy, legal aid and litigation. CARE fights root causes of poverty in the world’s poorest communities in 66 countries. It focuses on working with poor women through its community-based efforts to improve education, prevent the spread of HIV, increase access to water and sanitation, expand economic opportunity and protect natural resources. -------------- next part -------------- A non-text attachment was scrubbed... Name: not available Type: application/defanged-4 Size: 14187 bytes Desc: not available Url : http://mail.sarai.net/pipermail/commons-law/attachments/20070817/92a001f4/attachment.bin From gopa.kumar at centad.org Fri Aug 17 16:11:39 2007 From: gopa.kumar at centad.org (gopa kumar) Date: Fri, 17 Aug 2007 16:11:39 +0530 Subject: [Commons-Law] Repository on Trade and Public Health Message-ID: <020301c7e0bb$371b7140$f001a8c0@yourc7d1088de8> Repository on Trade and Public Health Centre for Trade and Development (Centad www.centad.org ) is an independent, not-for-profit organisation that carries out policy research and advocacy on issues around trade and development, with a focus on South Asia. Enclosed is brief profile of Centad for your reference. As part of our work on trade and public health, in the past Centad has worked on issues like IPRs and access to medicines, data exclusivity and consumer drug information. Centad is currently working on building up a repository on Trade & Health publications. This work is part of WHO's ongoing project of creating a virtual library on Trade and Health related articles related to India. This virtual library would be helpful for researchers, academicians, policy makers and others in their research work. In this regard, we are looking for the books, thesis, articles and presentations on Trade & Health (in Indian context) from published and unpublished sources on the following topics: 1.Intellectual Property 2.Pharmaceutical Industry 3.Drug Pricing 4.Pharma policy 5.Regulatory Framework 6.Access to Medicines 7.Health services 8.Sanitary and Phytosanitory Standards (SPS) & Technical Barriers to Trade (TBT) agreements 9.Food standards We would like to request you to kindly share with us copy of the publications of your organisation on the above mentioned topics. The details of those publications along with the copy of the same or abstract (in case of any copyright issue), would be added to this WHO's virtual library. We would be grateful if you can kindly send us the same latest by 15 September 2007. Kindly acknowledge the receipt of this mail. Should in case you need any further clarification, please contact us at centad at centad.org. Looking forward to your valued cooperation, Centad Team -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070817/c9323c15/attachment.html From anirudhwadhwa at nls.ac.in Sat Aug 18 21:56:51 2007 From: anirudhwadhwa at nls.ac.in (Anirudh Wadhwa) Date: Sat, 18 Aug 2007 21:56:51 +0530 Subject: [Commons-Law] Launch of businesslawyer.in - Interesting Read In-Reply-To: <726dd8b40708180911s5b44b1c7oafc67ae0596c5dda@mail.gmail.com> References: <726dd8b40708180911s5b44b1c7oafc67ae0596c5dda@mail.gmail.com> Message-ID: <726dd8b40708180926w87301edva9a8ca3ae998ee3f@mail.gmail.com> Stay *Informed. *Stay *Ahead…* * * *What is businesslawyer.in?* We are a web based magazine focussed on: - *News* on the latest laws, regulations and legal/policy developments having a bearing on business. - *Analysis *on the latest events and developments in commercial laws in India as well as looking at the interface between law and business. - *Market intelligence * on Indian law firms and foreign law firms with interests in India, in-house lawyers, Legal Process Outsourcing companies and practicing commercial law advocates. *How will it help you?* - Information on the most important commercial law developments written in a reader friendly, lucid style (without * any * footnotes!!!). - Looking at business developments from a *legal *point of view, something that the financial press does not do. - Making you aware and preparing you to deal with the 'real' world of commercial law practice. * * *What's in the first issue?* - *OP-ED COLUMNS* by * Mr. V. Umakanth*, ex-partner, AMSS, Bangalore; Dr. *N.L. Mitra*, Partner, Fox Mandal; *Mr. Jonathan Blake, *Senior Partner, SJ Berwin LLP, London and *Rahul Singh*, Associate Professor of Law, NLSIU, Bangalore. - *CURRENT NEWS* covering the recent *Novartis *and *Morgan Stanley *cases and proposed changes to securities, broadcasting and data exclusivity laws. - *FEATURED ARTICLES * on legal ramifications of the Indo-U.S. nuclear deal; the options backdating scandal; the idea of a publicly traded law firm; international commercial arbitration and legal process outsourcing in India. - *PROFILES *on Clifford Chance LLP, London *and lots more…* Just log on to www.businesslawyer.in. Happy Reading! -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070818/82a767dc/attachment.html From sunil at mahiti.org Fri Aug 24 12:04:02 2007 From: sunil at mahiti.org (Sunil Abraham) Date: Fri, 24 Aug 2007 12:04:02 +0530 Subject: [Commons-Law] Fwd: [India-egov] India Starts E-filing of Patent and Trademark Applications In-Reply-To: References: Message-ID: ---------- Forwarded message ---------- From: Sameer Sachdeva Date: Aug 24, 2007 9:48 AM Subject: [India-egov] India Starts E-filing of Patent and Trademark Applications To: India-egov at yahoogroups.com India Starts E-filing of Patent and Trademark Applications http://www.ag-ip-news.com/GetArticle.asp?Art_ID=4835&lang=en NEW DELHI - With the participation of notable Intellectual Property (IP) agents, practitioners and lawyers, a meeting was organized by the Indian Office of the Controller General of Patents, Designs and Trademarks on August 22, 2007, to familiarize them with the newly launched e-filing system for trademark and patent applications in India, according to a press release by Abu-Ghazaleh Intellectual Property (AGIP). Throughout the meeting, an overview of the new system has been provided and a number of issues have been discussed including the challenges that may be encountered while filing online applications. "With the introduction of this user-friendly system, India joins the USA, Japan, South Korea, China and the European Patent Office in offering online filing for trademark and patent applications," AGIP India office Manager, Khalid Al-Khalidi, stated. "Applicants would now be able to file their patent and trademark applications from anywhere in the world at any time at their convenience through the Internet," he added. The e-filing system was launched last month by the Indian Union Minister of Commerce and Industry, Kamal Nath, in order to make the filing of patent and trademark applications more smoothly and user- friendly. Though this system is still in its infancy, it is likely that in the near future processing of the applications (examination, correspondence, opposition, hearing, registration, renewal and assignment, etc.) will be done electronically. This will provide a transparent, error- free and round the clock services. Presently, the Indian Office of the Controller General of Patents, Designs and Trademarks is accepting the new applications through e- filing; the subsequent filing (e.g. request for examination, recordal of assignment, etc.) are to be continued in physical form. To ensure the security and authenticity of the documents filed, a person who is filing the application must have a digital signature. This requirement is in accordance with the provisions of Indian Information Technology Act of 2000. For more information, please visit: www.patentoffice.nic.in - -- Sunil Abraham, sunil at mahiti.org http://www.mahiti.org Director - International Relations Mahiti Infotech Pvt. Ltd. "Vijay Kiran" IInd Floor, 314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA Ph/Fax: +91 80 51150580. Mob: (91) 9342201521 http://www.linkedin.com/in/sunilaabraham From skjha at iitb.ac.in Sat Aug 25 15:58:23 2007 From: skjha at iitb.ac.in (Shishir K Jha) Date: Sat, 25 Aug 2007 15:58:23 +0530 (IST) Subject: [Commons-Law] Supachai says compulsory licensing of drugs acceptable In-Reply-To: References: Message-ID: <2137.10.127.133.2.1188037703.squirrel@gpo.iitb.ac.in> [August 24, 2007] http://ipcommunications.tmcnet.com/news/2007/08/24/317396.htm?p=ims Thailand: Supachai says compulsory licensing of drugs acceptable under WTO rules The use of compulsory licences for drugs is a practical step developing countries can take to exercise their rights under the World Trade Organisation's intellectual property rules, according to Supachai Panitchpakdi, the secretary-general of the United Nations Conference for Trade and Development (Unctad). Dr Supachai said the WTO agreement on trade-related aspects of intellectual property rights (Trips) allowed members to invoke compulsory licences to manufacture drugs or import them from cheaper sources if necessary. ''There are two options in times of constraint or crisis,'' he said. ''They can either manufacture drugs themselves or import them from other sources that are cheaper. Unctad has not opposed the idea.'' Earlier this week the Thai government said it would import generic versions of the popular heart disease drug Plavix from India. Officials had already issued compulsory licences for the Aids drugs Efavirenz and Kaletra. Dr Supachai, who before joining Unctad was secretary-general of the World Trade Organisation, said he was glad Thailand's compulsory licences on Aids and heart drugs had triggered global price reductions. However, he said, the pharmaceutical industry should be more co-operative toward Thailand after it had invoked the compulsory licence. ''Drug manufacturers should negotiate with Thailand. They are not right that they are not co-operative with us. There are many countries which want to invoke the right before us, but they have hesitated to do so. A compulsory licence is the only measure that the WTO permits,'' he said on August 23 in Bangkok. Dr Supachai also said developing countries should better utilise intellectual property rights over their biodiversity. He said the outlook for the current WTO round was more positive on the issue of farm subsidies, although the US president's fast-track authority to negotiate trade deals has expired. The Doha trade round has stalled over disagreements on farm subsidies and opening the agricultural and manufacturing sectors. The round is currently handled by the WTO in Geneva. ''The progress has been good. There have been clear figures as to what extent the US can decrease its domestic support. There hasn't been much talk on manufacturing. This will require a rather long talk,'' he said. Dr Supachai said the US has proposed cutting $18-20 billion in farm subsidies, while developing countries had come up with $10-12 billion and the EU $11-12 billion in the medium range. He said the WTO could utilise agreements regarding developmental aspects to benefit poor nations even though trade aspects had not been finalised. Unctad plans to focus on the impact of globalisation on developing and least developed countries at its next meeting in Ghana, he said. On the agenda will be job losses and welfare benefits, he said. In addition, Unctad would discuss ways to create rules for financial aspects of globalisation such as the accounting of hedge funds, for example. ''We have clear rules on trade globalisation and IP, but we have none for financial aspects. Hedge funds have high leverage in risky assets, yet they don't report that to anybody,'' he said. Dr Supachai said developing countries must strengthen science education curriculums and R&D if economic growth is to be sustainable. He said trade and investment among developing countries has gained more importance, accounting for one third of world trade, which has grown two-fold during the past five years. Dr Supachai also warned the Bank of Thailand to appropriately set priorities on an inflation-targeting monetary policy framework. He said worldwide inflation had been subdued in the past due to the emergence of a huge labour force in China, but inflation has began to rise during the past few years as Asian energy demand has risen. ''We need to take care of inflation, but we should not exaggerate it. This is because the economy otherwise would not be going in the direction we want,'' he said. Dr Supachai said the strengthening baht against the US dollar should be considered an opportunity for local firms to expand overseas, just as Malaysian firms have done. The business sector should remember that the baht has actually depreciated against certain currencies. He said the central bank's capital control measures could be used as a tool to handle volatility in the financial markets. Copyright 2007 Thai News Service, Source: The Financial Times Limited Shishir K. Jha From sollybenj at yahoo.co.in Sun Aug 26 18:12:29 2007 From: sollybenj at yahoo.co.in (solomon benjamin) Date: Sun, 26 Aug 2007 13:42:29 +0100 (BST) Subject: [Commons-Law] piracy or spreading the message Message-ID: <448063.17474.qm@web8903.mail.in.yahoo.com> Hi, I listened to a particularly interesting radio program (Cand. Broadcasting Corporaton CBC1) on the history of rock n role and Elvis (this is presumbly avaliable in a few days at: http://www.randysvinyltap.com/main.php?ch=1 Randy ___ (?) the RJ showed how R&R borrowed heavily from the earlier Blues, and Elvis in particular. In several cases, 'copying' songs but changing their rythem, and bringing in a particular swing or styization. This also happened when the common practice was, when youths visiting their grandparents houses, would take along their fav. records and through the week end play these continously over and over again. I presume the grandparents were a bit hard of hearing. That was a big influence, and Randy was able to trace out Elvis's fav. records and used them to show how these shaped his own music. He then made an interesting point to say that rather than 'copy' he preferred to term it as 'spreading the message'. I thought that here was a interesting example of how 'piracy' can spur a 'creative culture'. There are wider issues of property in the way such copy culture relates to forms of capital. Perhaps 3 years BBC world that ran a series on how the Blues music 'moved up' through the depression from the Southern states to the Chicago area. They had wonderful excertps from Muddy Waters, and that lineage. They also mentioned that when the 'market' for White communities in the US began to boom, in a industry flavored by racial overtones, the recording companies sought to tone down the radical and political, and re-package it. Certain playing styles and tones whch conveyed a sort of hard life --a sharp steel metallic twang made way for a softer and smoother form more appropriate for (white?) dance music -- furthermore, they did refer to a role played by Elvis in this process. This will always be the case with art, finance, and politics so intertwined. And perhaps the radical remains in art is its' ability to be inspired or copy or messaged: as many would aggree, there is no one author or artist, we are all part of creative common. For sure some forms of big business get their way at times, but then, just look at the Elvis Lookalikes that we had congregating 10 days back the world over. The king lives among the commons. Solly DELETE button is history. Unlimited mail storage is just a click away. Go to https://edit.india.yahoo.com/config/eval_register From the.solipsist at gmail.com Tue Aug 28 22:27:50 2007 From: the.solipsist at gmail.com (Pranesh Prakash) Date: Tue, 28 Aug 2007 22:27:50 +0530 Subject: [Commons-Law] On the iPhone crack Message-ID: <4785f1e20708280957y7cfc8d17h51bfe4892336711c@mail.gmail.com> Dear All, Lawyers from AT&T have threatened to a Belfast-based company (UniquePhones) to refrain from posting code that could unlock Apple's iPhone. Meanwhile, a New Jersey teen, George Hotz (who goes under the name Geohot) unlocked it (on August 23rd) on his own, and traded it for three other iPhones and a sports car! and iPhoneSIMFree.com did the same (unlocking, that is) on August 24th. Can AT&T actually prevent UniquePhones from releasing the code? Would the answer change if they are not doing so for commercial benefit? --------------------------------- A quick primer found on Engadget.com, in light of the iPhone being unlocked: Is it illegal to unlock my iPhone ? No! Really? Well, no, but... I knew it. Look, there are a lot of legal issues surrounding unlocking, but the most applicable law in the US is everyone's favorite piece of legislation, the DMCA. Just like any other piece of code, the iPhone's firmware is protected by the Copyright Act, and circumventing the access controls in place to get at that code is a violation of the DMCA. However, the Copyright Office issued six exemptions to the DMCA last year, one of which allows consumers to unlock their cellphones "for the sole purpose of lawfully connecting to a wireless telephone communication network." That's great! What's the "but?" There are a lot of "buts," actually. For example, it's most likely not legal to unlock iPhones and sell them on eBay, because your "sole purpose" wouldn't be to connect to a cell network -- it would be to profit from the sale of unlocked phones. TracFone has been suing resellers that unlock its phones and getting settlements, even though this exemption exists. So you might want to put those dreams of being the exclusive iPhone supplier to the Saudi royal family to bed -- for now. Well, that's not so bad. A: There's more. Just because Apple and AT&T can't sue you for violating the DMCA, there's nothing saying they can't sue you under some other law. Remember, all the ruling says is that cellphone firmware isn't protected under the DMCA when you unlock to lawfully connect to a wireless network. That's a pretty narrow rule, and it's most certainly not the same as a rule saying it's legal to unlock your cellphone. Wow, lame. A: Still more. Under the DMCA, the Copyright Office is allowed to make these exemptions, but they only last for three years. Since the unlocking rule was published in November of last year, that means it'll expire in November of 2009. Of course, we'll probably be on the third generation of the iPhone by then, but it still doesn't bode well for that unlocking business you were about to start. Wait, I thought you said this was legal? A: Well, the truth of the matter is that unlocking your iPhone probably isn't going to get you in any trouble, as long you're only doing it for your personal benefit. If that's what you intend to do, go right ahead. Just be aware of the risks, and keep in mind that you've probably hosed your warranty, and that Apple might well stop supporting your phone. Since when has Engadget cared about warranties? (Whistles, walks away.) -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070828/27ecd0c1/attachment.html From monica at sarai.net Wed Aug 29 14:23:45 2007 From: monica at sarai.net (Monica Narula) Date: Wed, 29 Aug 2007 14:23:45 +0530 Subject: [Commons-Law] Fwd: Ethiopia's loss in the Starbucks affair References: <46D52EB7.4080601@kein.org> Message-ID: Thought this might be of interest. best M Monica Narula Raqs Sarai-CSDS 29 Rajpur Road Delhi 110 054 www.raqsmediacollective.net www.sarai.net Begin forwarded message: > From: Soenke Zehle > Date: 29 August 2007 2:00:47 PM GMT+05:30 > To: incom > Subject: Ethiopia's loss in the Starbucks affair > > I became interested in the Starbucks issue a while ago when it was > still > looking like a possible example of how the IPR-logic could be turned > around by one of the weaker players; the assessment below is quite > sobering, Soenke > > -------- Original Message -------- > TITLE: Ethiopia's loss in the Starbucks affair > AUTHOR: Wondwossen Mezlekia > PUBLICATION: Addis Fortune > DATE: 19 August 2007 > URL: > http://www.addisfortune.com/Vol%208%20No%20381%20Archive/ > ecconomic_commentary.htm > NOTE FROM GRAIN: The conflict between the Ethiopian government and > Starbucks over trademark rights to Ethiopian coffee names has > generated > a tremendous amount of controversy, campaigning and reporting since it > broke out last year. Yet the recent signing of a joint agreement > between > the two parties has not put the fires out. The below is one take on > the outcome. > ________________________________________________________ > > Addis Fortune | 19 August 2007 > > Why did Ethiopia sign an agreement critics say is favoring Starbucks? > Wondwossen Mezlekia, an Ethiopian working and living in Seattle, > Washington -- where Starbucks is also headquartered -- has been > following the trademark dispute through his well-read blog, > http://www.poorfarmer.blogspot.com. In his contribution to a series of > articles that appeared on this newspaper, Wondowssen sheds some > light on > the issue. > > ETHIOPIA'S LOSS IN THE STARBUCKS AFFAIR > > Ethiopia, one of the ancient civilisations in the world, collided > with a > symbol of globalisation and, to some extent, challenged the status-quo > without success. The outcome should serve third-world countries as a > reminder of the harsh reality that they have a long way to go to get > control of their intellectual property rights. > > Although Ethiopian coffees command a premium price in foreign markets, > particularly the United States (US), farmers who grow the beans often > live in extreme poverty. The Ethiopian coffee sector's strategy to > trademark the famous coffee brands in all major international markets > was an eye-opener for many of the coffee growing nations in Africa. > But > that effort hit a dead end in the US, home of Starbucks Corporation > and > this led to several months of conflict between the two. > > On June 20, 2007, Starbucks and Ethiopia declared that they have both > emerged as winners. But analyses of documented facts suggest that > there > is more to the affair than what either side claims. The bizarre and > mysterious ending of the dispute warrants further scrutiny of the > accord. > > Whether and how the terms of the truce will benefit the Ethiopian > coffee > sector and the trademark project remains to be seen. What is > unquestionable is that, because of Starbucks and the National Coffee > Association (NCA), Ethiopia has lost the trademark for Sidamo in > the US. > Sadly, Ethiopia has also surrendered the moral high ground that had > won > it support all over the globe; it has very little to show for it. > Besides, all the windfall economic opportunities that might have > changed > the lives of the poor farmers, who, for centuries, have been taken > advantage of, have vanished into thin air. > > The conflict began in March 2005, when Ethiopia filed with the US > Patent > and Trademark Office (USPTO) to trademark the country's most valued > brands Harar, Sidamo, and Yirgacheffe. Starbucks had filed an > application to trademark "Shirkina Sun-Dried Sidamo" in 2004, > making it > impossible for Ethiopia to go forward with its own application > until the > two applicants reached an agreement to drop one. The Ethiopian > government asked Starbucks to drop its claim. > > Kassahun Ayele, the former Ethiopian Ambassador to the US, now serving > in the same position in Berlin, made the initial effort to engage > Starbucks in discussions to resolve the matter. But his letter to > Howard > Schultz, chairman of Starbucks, went unanswered for over a month. When > it did get answered, Starbucks' response was condescending. > > He received on April 21, 2005, a short and dismissive reply from a > company lawyer, and a short time later, a note from a Corporate Vice > President inviting him to attend the award event for Mr. Schultz, > and to > contribute 600 dollars for the 'privilege.', according to the Embassy. > > In October 2006, Oxfam launched an international campaign to force > Starbucks to come to the table and discuss with Ethiopia for > resolution. > The campaign was framed to depict Starbucks as a company exploiting > its > coffee producers. The theme, "For every cup of Ethiopian coffee > Starbucks sells, Ethiopian farmers earn 3¢", proved to be Starbucks' > irritant. > > Arrogance combined with a desire to counteract Oxfam's unexpected > campaign actions might have blinded Starbucks' management into making > several ridiculous assertions. > > First, the company claimed that Ethiopia's coffee brands cannot be > trademarked because they are generic terms for coffee, rather than > distinctive marks. They then asserted that the trademarks are against > the interests of Ethiopian farmers. At the peak of its charges, the > company went on to say that Ethiopia's attempt to trademark the coffee > brands was illegal. They exhausted all their fabricated allegations > before running out of charges to publicly discredit Ethiopia's > trademark > project. > > Ultimately, forced by mounting public pressure, Starbucks senior > management resorted to a different strategy without losing sight of > their goals. They hired the Washington-based lobbying firm, The > Whitaker > Group, and travelled to Ethiopia to convince government authorities by > employing alternative negotiating tricks. > > On the lead-up to the company executives' second trip to Ethiopia in > February 2007 -- first trip was in November 2006 -- Starbucks > announced > its donation of half a million dollars to CARE International, a US- > based > charity organisation, for its social work in the coffee growing > regions > of Ethiopia. In addition, the company issued a press release with > promises to build a farmer support centre and to double the volume of > coffee the company buys from East Africa. > > During their meetings held in Addis Abeba, Starbucks succeeded in > convincing Ethiopian authorities to divert their attention to what > they > called a "value-added" process. Empty promises, such as the > possibility > of cooperation with the country's tea and textile sector, and implied > support through the African Growth and Opportunity Act (AGOA), were > used > to entice state ministers from ministries of Agriculture and Rural > Development, Trade and Industry, Finance and Economic Development, and > others, including Getachew Mengistie, director general of the > Ethiopian > Intellectual Property Office (EIPO). > > Noneof those sectors are as vital as the most exploited coffee > sector, > which continues to be the backbone of the Ethiopian economy. In > spite of > that, the authorities were swayed and subsequently signed on > Starbucks' > press release announcing their agreement to "work together". Four > months > after that agreement and deafening secret negotiations, the government > representatives and Starbucks declared their signing of a "marketing, > licensing, and distribution" agreement on June 20, 2007. > > The devil, however, is in the details. > > As a global company that fights to secure its grip over the sources of > its coffee, it is evident that Starbucks' opposition to Ethiopia's > trademark initiative stems from three basic elements: Royalty fees, > monopoly over the brands and traceability. > > As long as Starbucks will not be expected to pay royalty fees, and so > long as Ethiopia does not legally own the Sidamo brand, which is the > most important brand to Starbucks -- Starbucks does not hold Harar and > Yirgacheffe coffees in many of its stores -- signing some sort of weak > licensing agreement, with secret details that do not mention financial > resources to help promote Ethiopian coffee, offers a safe exit. > Therefore, a negotiated settlement outside of administrative rights to > own the trademarks is a viable option for Starbucks. > > Starbucks' concern about Ethiopia monopolising the brands is already > non-existent, at least in the US, as Sidamo is not a registered mark. > Also, because Starbucks buys most of its coffees through third > parties, > the concern about tracing the beans to the origin is automatically > taken > care of. > > Starbucks' obligations in the agreement, if any, are confidential. The > signatories imply that Ethiopia's obligations are uncomplicated and > the > benefits flowery. > > Getachew Mengistie said Ethiopia's obligation is not to impose a > royalty > fee of any nature during the contract period whereas its benefits > include a contractual provision, which recognises Ethiopia's common > law > rights where applicable. > > According to available information, however, Ethiopia's benefits > are not > as impressive as the words. Although common law is a valid form of > trademark rights in the US as rights stem from use rather than > registration in this country, not all countries have the same > system as > the US. In some countries, Ethiopia does not have any rights at all > unless the mark is registered. > > In addition, enforcement of trademarks is expensive and probably not > practical in every instance of infringement. That is why the > conventional rights of registration are important -- they help prevent > infringement and consequently avoid expensive enforcement before it > occurs. > > Strikingly, the negotiation process did not fully address the promises > made by Starbucks during the February 2007 meeting, which Getachew > proudly refers to as the turning point that led to the resolution. > Only > the promotion of the output of other sectors is mentioned in the > contract. Even that is not listed as enforceable. > > The government representatives failed to follow through on the rest of > the promises, such as building a farmers support centre and > doubling the > amount of coffee Starbucks would buy from Ethiopia, which is > believed to > be only two per cent. The centre was not even a negotiating point, > if we > go by what Samuel Assefa (PhD), Ethiopia's ambassador to the US, said. > > "Starbucks is a private company; we cannot ask them to open a farmer > support centre in Ethiopia," he told the media. > > But another African country leader did just that: reached out to > private > companies such as Starbucks, Google and Costco to attract business > investment. His name is Paul Kagame, the president of Rwanda. > > Starbucks invited Mr. Kagame to deliver a corporate endorsement at the > company's annual shareholder meeting on March 21, 2007, -- a key > moment > when Starbucks executives needed an African leader to paint a picture > different from what the shareholders have come to read in the media > as a > result of the trademark dispute. > > Recent reports indicate that Starbucks eyes Rwanda for setting up the > Farmer Support Centre. > > Another widely publicised promise was that Starbucks would increase > its > Ethiopian coffee purchases. As of this day, there is no indication > that > Starbucks bought more Ethiopian coffee; nor is there any way to > substantiate this claim in the future as Starbucks buys most of its > coffee through third parties, mainly from Germany. > > How else Ethiopia benefits from the agreement is either not > defined, or > undisclosed. > > "Having the commitment and support of Starbucks will help enhance the > quality of Ethiopian fine coffees and improve the income of farmers > and > traders," Getachew, told the media. > > But Starbucks' executives do not acknowledge any such commitment. > > In an interview with the Seattle PI, Sandra Taylor, Starbucks senior > vice president of Corporate Social Responsibility, said that the deal > was not intended to set prices. > > "Starbucks pays based on the quality and marketplace," she said. "If > this works right, it will lead to better pricing for high > quality . . . > For Starbucks, we have long paid premium prices." > > Starbucks would work with Ethiopian farmers to improve quality and > crop > yield, but not dedicating any new financial resources, according to > the > paper's report. The status-quo is conserved. > > What did Ethiopia lose? Everything it tried to gain, and then some. > > Starbucks succeeded in preventing Ethiopia from gaining permanent > control of the mark Sidamo in the US market, effectively eliminating > Ethiopia's opportunity to move beyond its cycle of poverty. > > In addition, the long fought battle to this ruinous end was > exasperated > by Ethiopia's loss of dignity in the process. Oxfam's approach of > using > images of poor farmers, the victims of Starbucks' insensitivity, was > meant to coerce the company into changing the way they do business; > but > instead, Ethiopia once again garnered a reputation reminiscent of > 1984. > The country was dishonoured in front of the world while its Ambassador > was disrespected. The trademark initiative was discredited and the > project was delayed by over two years. As if that was not enough, > Ethiopia was deceived by empty promises. > > Starbucks has still not admitted any of its wrong doings: its > misleading > statements, which unlawfully undermined the people's rights, and its > disrespect to a sovereign country's Ambassador, much less apologise > for > trying to publicly discredit the country's efforts. To this day, the > company has not expressed regret for its opposition that cost Ethiopia > the opportunity to trademark Sidamo. > > The trademark dispute which carried the hopes of over 15 million > people > was concluded with a reprehensible remark by Ambassador Samuel: > "Ethiopia salutes Starbucks for its exemplary display of global > corporate citizenship. This alliance highlights the significance of > visionary entrepreneurs in creating space for win-win engagements > between corporations that operate globally and developing countries > such > as ours." > > And Oxfam celebrated "resolution" of the dispute between Starbucks and > Ethiopia. > > Starbucksrecently increased its coffee prices in the US by nine > cents a > cup, which further widens the income gap between Starbucks and coffee > farmers. But, the equation still remains the same: "For every cup of > Ethiopian coffee Starbucks sells, Ethiopian farmers earn three cents." > > ________________________________________________________ > > GOING FURTHER (compiled by GRAIN) > > Oxfam, "Oxfam celebrates win-win outcome for Ethiopian coffee farmers > and Starbucks", press release, Washington DC, 21 June 2006. > http://www.oxfam.org/en/news/2007/pr070621_win-win-outcome-for- > ethiopian-coffee-farmers-and-starbucks.html > > Government of Ethiopia and Starbucks Coffee, "Joint statement: > Starbucks > and Ethiopian Intellectual Property Office (EIPO) partner to promote > Ethiopia's coffee and benefit the country's coffee farmers", Addis > Ababa > and Seattle, 20 June 2007. > http://www.starbucks.com/aboutus/pressdesc.asp?id=779 > > Amy Goodman (host), "Following public campaign for trademark efforts, > coffee giant Starbucks signs licensing deal that could bring > millions to > Ethiopian farmers", Democracy Now!, New York, 9 May 2007. > http://www.democracynow.org/article.pl?sid=07/05/09/1515200 > > Anton Foek, "Trademarking coffee: Starbucks cuts Ethiopia deal", > CorpWatch, Oakland, 8 May 2007. > http://www.corpwatch.org/article.php?id=14474 > > David Bollier, "Starbucks, trademarks and coffee colonialism", On the > commons, 6 March 2007. > http://onthecommons.org/node/1108 > > Joshua Gallu, "Starbucks, Ethiopia, and the coffee branding wars", Der > Spiegel, 16 November 2006. > http://www.spiegel.de/international/0,1518,448191,00.html > > Light Years IP > http://www.lightyearsip.net/ > > Ethiopian Trademarking and Licensing Initiative > http://www.ethiopiancoffeenetwork.com/ > _______________________________________________ > incom-l mailing list > incom-l at incommunicado.info > http://mail.kein.org/mailman/listinfo/incom-l From the.solipsist at gmail.com Fri Aug 31 18:37:45 2007 From: the.solipsist at gmail.com (Pranesh Prakash) Date: Fri, 31 Aug 2007 18:37:45 +0530 Subject: [Commons-Law] Russian music piracy Message-ID: <4785f1e20708310607s43b4a39aia07b6ac7cd9f183d@mail.gmail.com> Dear All, A judge in Russia rules that "piracy" of American copyrighted music by a Russian company does not violate Russian laws. -------------- >From the Beeb: Russian music site to 'relaunch' * The contentious Russian music download site allofmp3.com looks set to resume business after a Moscow court ruled it was legal under the country's law. * A statement on the website, shut down in July, said the service would resume "in the foreseeable future". Before it closed, the cut-price music site claimed to be the second biggest seller of downloads after iTunes. It was the subject of countless lawsuits from UK and US record labels that claimed it violated copyright law. A representative of the music industry said if it started trading again it would still be in "clear violation of copyright laws". * No response * The most recent case involving the service was a criminal prosecution against Denis Kvasov, head of Mediaservices, the owner of the website. He was tried for intellectual property infringement after record labels put pressure on Russian prosecutors to bring the case to court. But the court ruled that Mr Kvasov operated within Russian law. "The prosecution did not succeed in presenting persuasive evidence of his involvement in infringing copyright law," said District Judge Yekaterina Sharapova. During the trial, Mr Kvasov successfully argued that although the site had paid no music industry royalties, it had paid 15% of its profit to a local organisation, the Russian Multimedia and Internet Society (Roms) in accordance with Russian law. "We pay royalties to those who sign up with us and ask for them. But none of the majors, among them I mean labels like EMI and Universal, want their money," Oleg Nezus of Roms told Reuters. "I've been sending them letters since November of 2005, stating there's a dividend. The labels don't respond." * Questionable status * Although, the prosecutors in the case are expected to make an appeal against Mr Kvasov, the site looks set to relaunch. A statement on the site, dated 31 August, said: "The service will be resumed in the foreseeable future. We are doing our best at the moment to ensure that all our users can use their accounts, top up balance and order music." But Tim Smith legal expert at the International Federation of the Phonographic Industries (IFPI) said "The failure of the court to convict Denis Kvasov yet has no impact whatsoever on the legality of Allofmp3 itself. "If it were to resume trading as it was before, it would be in clear violation of copyright laws both within and outside Russia by reproducing and making available music it has no right to sell." Members of the IFPI are currently suing the site in both the UK and the US. * Stark warning * Allofmp3.com was closed in early July ahead of a summit between the Russian and American presidents. The closure was the result of increasing pressure from both industry and governments. During talks on Russian membership of the World Trade Organisation in 2006, Susan Schwab, the US Trade Representative, said that the site must be closed before entry. However, within days of the site being shut down MediaServices opened a new service called mp3Sparks.com where allofmp3 credit could be used to purchase music. A warning on Mp3Sparks.com reads: "You should not download audio files from Mp3Sparks.com if the terms are in conflict with the laws of your country of residence. "Mp3Sparks.com does not attempt to control the actions of its users, who bear sole responsibility for any illegal use." Allofmp3.com is not currently selling music. Story from BBC NEWS: http://news.bbc.co.uk/go/pr/fr/-/2/hi/technology/6967172.stm Published: 2007/08/28 16:49:02 GMT -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070831/7b6dd0e8/attachment.html