From lawrence at altlawforum.org Thu Feb 1 09:20:11 2007 From: lawrence at altlawforum.org (Lawrence Liang) Date: Thu, 01 Feb 2007 09:20:11 +0530 Subject: [Commons-Law] Will the real Anirban please stand up! In-Reply-To: Message-ID: Hi Shwetasree Your mail was sent to the list, and Commons-law is an unmoderated list, and the mail had come directly to the group. I don¹t moderate any mails, I wrote to you offline to say that I had not put any official response as moderator as was being requested by many if you since I didn¹t know what the truth was. Lawrence On 2/1/07 12:19 AM, "Shwetasree Majumder" wrote: > lawrence, i'm a tad surprised that this email has suddenly been put up on the > e-group. this was an old email where I had attached some stuff which u felt > wasn't clear so u wrote to me offline explaining why u didn't put up the > email. I then rephrased the email and sent it with specific references in the > body of the email on the 27th and u put that up. this sudden and belated > posting of the same thought, albeit in angrier tones makes me appear to be > some raving lunatic on an ''anirban-destruction'' mission. just like the rest > of us, I don't know the truth either and don't intend to convert this into a > witch-hunt. personally both my emails on this subject have been based on a > little ''googling'' and I don't claim to have been cyber-sleuthing. Hence this > clarification. > > > -----Original Message----- > From: "commons-law-bounces at sarai.net" on > behalf of "Shwetasree Majumder" > Sent: Saturday, January 27, 2007 11:12 AM > To: "lawrence at altlawforum.org" > Cc: "commons-law at sarai.net" > Subject: [Commons-Law] Will the real Anirban please stand up! > > > Is anybody actually expected to fall for this bare-faced lie? Anirban's first > email to commons-law inviting "us" to gain from his copyright expertise was > from the same id and a simple tool by the name of a google search exposes his > email to Lawrence for what it is...a lie! > > Please see the attached documents. > > The guy should actually apologise to Apar instead of trying to take our > entuire community for a ride! This is shocking and I really think its time we > did something. > > I have been one of commons-law's most passive members but I am shocked and > angry that we are letting him get away with this and reducing ourselves to > mere pedagogy alone! > > Shwetasree > > > > > > > >> >> From: "Lawrence Liang" >> To: commons-law at sarai.net >> CC: animazum at hotmail.com >> Subject: [Commons-Law] Clarification from anirban mazumder >> Date: Sat, 27 Jan 2007 16:04:02 +0530 >>> >Hi >>> > >>> >I am forward a mail from Anirban Mazumdar which probably clarifies the >>> >many mails that have been going out in his name >>> > >>> >Lawrence >>> > >>> >---------- Forwarded message ---------- >>> >From: ANIRBAN MAZUMDER >>> >Date: 27-Jan-2007 15:05 >>> >Subject: clarification from anirban mazumder >>> >To: commons-law-owner at sarai.net >>> > >>> > >>> >i have come to know from one of my students that i have been charged >>> >with plagiarism. i was shocked to find out that some one has taken an >>> >e mail id (anirbanmazumdar at hotmail.de) which is close to my name and >>> >copied my signature and has posted some one else's (apar gupta)article >>> >in my name into your website. the purpose is simply to defame me. i >>> >have no connection with this e mail id and the content put up from >>> >that id. i have already written to the author concerned. this is a >>> >typical problem of cyber law called identity theft and we can be >>> >victim of it any time.i am thinking of filing a complaint. please put >>> >up this clarification . please feel free to contact me for any >>> >clarification. anirban >>> > >>> > >>> >ANIRBAN MAZUMDER LECTURER IN LAW NATIONAL UNIVERSITY OF JURIDICAL >>> >SCIENCES NUJS BHAVAN 12 LB BLOCK SALT LAKE CITY CALCUTTA - 700098 >>> >INDIA PH -00- 91-33-23350534 (O) 23357379 (O) >>> > 25216734 ( R) FAX -00- 91-33-23357422 >>> >________________________________ >>> >Latest from the world of gadgets and gizmos >>> >_______________________________________________ >>> >commons-law mailing list >>> >commons-law at sarai.net >>> >https://mail.sarai.net/mailman/listinfo/commons-law >> > > Latest from the world of gadgets and gizmos > -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070201/9d042d72/attachment.html From paivakil at yahoo.co.in Thu Feb 1 22:40:23 2007 From: paivakil at yahoo.co.in (Mahesh T. Pai) Date: Thu, 1 Feb 2007 22:40:23 +0530 Subject: [Commons-Law] Will the real Anirban please stand up! In-Reply-To: References: Message-ID: <20070201171023.GA11630@nandini.home> Shwetasree Majumder said on Sat, Jan 27, 2007 at 11:12:19AM +0000,: >

Is anybody > actually expected to fall for this bare-faced lie? Anirban's first > email to commons-law inviting "us" to gain from his copyright > expertise was from the same id and a simple tool by the > name of a google search exposes his email to Lawrence for what it > is...a lie! 

> Hmmm... the offending mail was sent from Kerala. Was Anirban Mazumder (the asli one; not the naqli) in Kerala during the relevant period? Anybody? And there are some things which simply cannot be spoofed or hijacked, and this is much is certain - if Anirban Mazumder has a real enemy enemy, the `duplicate' Anirban has some link to Kerala. -- Mahesh T. Pai <<>> http://paivakil.blogspot.com/ REVOLUTION, n. An abrupt change in the form of misgovernment. From nath at computer.org Fri Feb 2 01:15:40 2007 From: nath at computer.org (CPC) Date: Thu, 1 Feb 2007 11:45:40 -0800 Subject: [Commons-Law] Zoetropes and Nickelodeons: A response to OFCOMs Public Service Publisher proposal In-Reply-To: <20070130092006.GB5704@localdomain> References: <20070130092006.GB5704@localdomain> Message-ID: [image: H-Net Announcement] *4th International Conference on Private Urban Governance : Production of urban spaces, Interactions of public and private actors, Sustainability of cities.* *Location:*France *Call for Papers Date:*2007-06-05 *Date Submitted:* 2006-07-29 *Announcement ID:* 152113 Dear colleagues, We are happy to announce details of the 4th International Conference on Private urban governance & gated communities (Paris, June 2007) Private Urban Governance : Production of urban spaces, Interactions of public and private actors, Sustainability of cities. 5-8 june 2007 Location : Paris, Université Paris 1 Panthéon-Sorbonne More information : http://www.gated-communities.de Chair of local organizing committee & contact : Dr. Renaud Le Goix, Assistant Professor Univ. Paris 1 UMR Géographie-cités 8504 (CNRS, Universités PARIS I et PARIS VII) 13, rue du four 75006 PARIS - Tél : 01 40 46 40 01 - Fax : 01 40 46 40 09 http://www.parisgeo.cnrs.fr ---------- Deadline for proposals (short abstracts) : 31 october 2006 Please download the MS Word Template on the Conference web site for your abstract. Dealine for papers : 31 march 2007 ---------- Following the successful international symposium on Territory, Control and Enclosure held in Pretoria in February 2005, the next conference in the biennial series of the international research network Private Urban Governance & Gated Communities (which started in Hamburg in 1999) will be hosted in Paris, in the week 5-8 June 2007, at the University Paris 1 Pantheon-Sorbonne. Are the new models of urban territorial production created by privately-operated urbanization significant for the evolution of cities? The question focuses on the urban patterns generated by the private provision of collective urban services. Cities have always been shaped by private interests engaging in the development of land under private ownership and this process has, in the modern era, generally been structured by state organised infrastructure development and land use regulation. More recently, collective territorial interests have been represented by institutions other than the state, producing urban spaces that are public but not open to all and private but open to many co-owners. Homeowners Associations, Planned Unit Developments, Business Improvement Districts, Redevelopment Zones, condominiums, shopping malls, Community Development Corporations, Common Interest Developments, gated communities, airport cities and similar are creating space and territory that is neither purely public nor purely private. A decade or more of research on private urban governance has shown how important it is to understand the dynamics by which these phenomena interact with other parts of urban systems, including neighbouring communities and the wider urban economy, society and polity. Local public authorities play a key role in the evolution of privately governed territory, imposing financial and organisational regulations, controlling land-use, restricting land availability, co-ordinating infrastructure and regulating resident and housing types. An active public governmental role in the production of club neighbourhoods is nevertheless quite consistent with the gradual erosion of publicly-owned and managed territory. In many ways the story is an extension to the trend emerging in Europe in the 1980s, for a shift from direct production to enabling, contracting out and regulation of public services. A private urbanism is emerging in which PUDs, BIDs, CIDs and other forms of private realm are key features. In thinking about these issues, we should be reminded from history that urban morphological change has always involved interconnected private and public actions. Public policy, subsidy, taxation, regulation, arbitration and direct investment have strongly influenced private investment decisions. Potsdamer Platz in Berlin and London Docklands tell the story of public planning relying on private developers to fulfill the state's objectives. On one sense, the sprawling private suburbs of Beijing and Buenos Aires are part of the same story. There is also an earlier historical story in which private infrastructure, much of it retro-fitted – London's underground railway for example - helped shape the first wave of city expansion. A century later, privately financed infrastructure is once again being retrofiited to resolve the congestion problems of large cities throughout the world. The private-public partnerships are more explicit this time round and more complex and implemented using sophisticated legal instruments. With these ideas in mind authors are invited to submit papers with the following emphases: - historical and cultural analyses that help develop an understanding of the significance and nature of private urban governance in the long-term shaping of cities. - the nature of formal public-private partnerships, including an analysis of how partnership forms of urban governance are framed by different social and national contexts and how they shape territory - the regulation of private urban government, including self regulation, state regulation, private dispute resolution - sustainability issues, including the idea that private urban governance might well be a locally sustainable urban solution, stabilising the financing of urban growth and the redevelopment of aging neighborhoods; maintaining social diversity; conserving non-renewable urban resources; and encouraging reinvestment in urban infrastructure - impacts and spill-over effects of privately governed territory on other parts of the urban system, including social cohesion effects, local spill-overs of crime diversion, systemic spill-overs of traffic diversion, fear and so on. The conference aims, therefore, to address several cross-cutting P.U.G. issues and to encourage multidisciplinary debate (notably geography, economics, sociology, history, political sciences, law). It will also provide a forum for discussing operational issues of concern to planners and policy makers. Paris offers a good laboratory for studying the long-term emergence, transformation and contemporary reshaping of private urban governance. A site visit will take delegates to some of the oldest private residential gated subdivision (Montretout, 1832) - the blue-collar 19th century private streets and villas of downtown Paris. This will help focus on the historical conditions of emergence of private governance and public-private partnership. We will also visit sites where new complex interactions are emerging in the suburban areas, for instance between Disney, developers (Kaufman and Broad, Nexity) and public body of governments (in Marne-la-Vallée). In some places, local public governments behave as if they were CIDs (small scale democracy based on consensual agreements); in other places, public debate has ultimately forced public authorities to ban the development of private gated enclaves - where they once were used as part of "new urbanism" designs near Disneyland Paris. Chair of local organizing committee & contact : Dr. Renaud Le Goix, Assistant Professor Univ. Paris 1 Dept. of Geography Research unit: UMR Géographie-cités 8504 (CNRS, Universités PARIS I et PARIS VII) 13, rue du four 75006 PARIS - Tel : +33/1 40 46 40 01 - Fax : +33/1 40 46 40 09 http://www.parisgeo.cnrs.fr Email: rlg at parisgeo.cnrs.fr Visit the website at http://www.jiscmail.ac.uk/cgi-bin/webadmin?A3=ind0607&L=gatedcommunitesprivategovernance&P=156028&E=2&B=--ADLOb-jbY%2CeXR0UYlbP%3FPdqPlp%28VvvFEzj7d%3F%3A%28i9G6.8C2aMPxT.HcWKc0OFf8gpdfp%28F&N=Paris-PrivateUrbanGovernance.pdf&T=application%2Fpdf Didn't find what you're looking for? Try our power search ! Return to the top of this page Return to announcements home ================================================== Please avoid sending me Word or PowerPoint attachments.See http://www.gnu.org/philosophy/no-word-attachments.html ================================================== CPC Nath, Founder& CTO, 01edge technologies, 6830 Woodley Ave #4, Van Nuys, CA 91406 http://01edge.com/ 310 882 1945/1984 _______________________________ IMPORTANT NOTICE: This email message including any attachments is legally privileged, confidential and is for the use of the individual or entity to whom it is addressed. Any unauthorized review, use, disclosure or distribution is expressly prohibited. If you have received this email message in error, please immediately notify us by email and destroy all copies of the message. Thank you. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070201/f751aaa7/attachment.html From prashantiyengar at gmail.com Sat Feb 3 18:47:09 2007 From: prashantiyengar at gmail.com (Prashant Iyengar) Date: Sat, 3 Feb 2007 18:47:09 +0530 Subject: [Commons-Law] AP: LICENCE SYSTEM FOR VIDEO LIBRARIES SOON In-Reply-To: <908adbd0702022141j366ae318p39c22a91fdada063@mail.gmail.com> References: <908adbd0702022139q45ffda21iab451d7e7ad9e78@mail.gmail.com> <908adbd0702022141j366ae318p39c22a91fdada063@mail.gmail.com> Message-ID: <908adbd0702030517g393d907ex228c35a083a898a6@mail.gmail.com> > > Source: The Hindu > > HYDERABAD:Video libraries in the twin cities may soon have to take special > licence from the authorities for sales and rentals of VCDs and DVDs of > movies in various languages. Setting up of a special court is also in the > pipeline to look into the video piracy cases. The new rule is most likely to > be introduced by March. > > This comes in the wake of the effortless ease with which one can have > access to pirated versions of movies in the twin cities despite efforts of > Anti-Video Piracy Wing of Andhra Pradesh Film Chambers and the police. > > Officials of the wing, which is promulgating this concept, say that the > video shops will have to take special permission from the Commissioner of > Police and from the Collector. Officials maintain that availability of > pirated CDs in the city is rampant and pirated versions of new movies are > being screened by cable operators on a daily basis. > > Areas like Jahanuma, Edi Bazaar, Barkhas, Falakuma, Kala Pathar and > Dabeerpura are flush with pirated versions of new movies. > > "Sometimes in a single day, the cable operator screens two recently > released movies. One movie starts in the afternoon and another one at > night," says Asad Rahoof, a resident of Jahanumma. > > 3,181 persons booked > > Since its inception, the wing, which is a self-appointed watchdog for > piracy, has received modest success in curbing video piracy. > > In the last 21 months, the wing in association with the police has managed > to book 3,181 persons for piracy in the State. Twin cities and the > neighbouring Ranga Reddy district alone accounts for over 260 cases of > piracy. The department has also managed to get ten convictions, three-year > imprisonments each, from the courts. > > However, officials accept that still a lot ground has to be covered as far > as curbing piracy is concerned in the twin cities. "There is no strict > regulatory body to curb this menace because the police force has other > important issues of law enforcement. Mandatory licensing is the best way to > curb video shops from selling CDs," says chief co-ordinator for the wing P. > Keshav Reddy. > > (c) Copyright 2000 - 2006 The Hindu > -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070203/34e6bf6b/attachment.html From anasuya_s at yahoo.com Mon Feb 5 12:44:40 2007 From: anasuya_s at yahoo.com (Anasuya Sengupta) Date: Mon, 05 Feb 2007 12:44:40 +0530 Subject: [Commons-Law] How the Tea Board won the GI battle over 'Darjeeling' Message-ID: <45C6D960.5020604@yahoo.com> From today's Hindu: http://www.hindu.com/2007/02/05/stories/2007020501161700.htm -- Anasuya Sengupta www.sanmathi.org -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070205/a8564780/attachment.html From the.solipsist at gmail.com Tue Feb 6 18:51:14 2007 From: the.solipsist at gmail.com (Pranesh Prakash) Date: Tue, 6 Feb 2007 18:51:14 +0530 Subject: [Commons-Law] Viacom demands removal of videos from YouTube Message-ID: <4785f1e20702060521i141f3d2ay659c9cd5ac09046c@mail.gmail.com> Dear All, Unlike Universal, Viacom failed to reach an agreement with Google, and have demanded that YouTube remove close to 100,000 videos. The full story below: Viacom demands YouTube remove videos Fri Feb 2, 2007 4:26 PM ET By Kenneth Li NEW YORK (Reuters) - Viacom Inc. on Friday demanded that Google Inc.'s online video service YouTube remove more than 100,000 video clips after they failed to reach a distribution agreement. Viacom said it sent a notice to YouTube on Friday morning asking the popular video-sharing site to remove clips from Viacom-owned properties including MTV Networks and BET. The media company controlled by Sumner Redstone said its pirated programs on YouTube have generated about 1.2 billion video streams, based on a study by an outside consultant. A YouTube spokeswoman said it would comply with the request and added, "It's unfortunate that Viacom will no longer be able to benefit from YouTube's passionate audience, which has helped to promote many of Viacom's shows." The company has historically removed clips at the request of copyright owners within hours. "Filtering tools promised repeatedly by YouTube and Google have not been put in place, and they continue to host and stream vast amounts of unauthorized video," Viacom said in a statement. The company is taking a hard stance against the Internet's most popular video service, which is renowned for its quirky, viewer-contributed video clips as much as for being a repository for unauthorized television shows. "This is a negotiating tactic," UBS analyst Ben Schachter said. "We think a deal gets done ... The terms have major implications for the value of content online." Viacom's move also runs counter to the strategies employed by other media companies, such as the Warner Music Group, Vivendi-owned Universal Music Group, and General Electric controlled NBC Universal, which have all landed deals with YouTube to test the service. CBS Corp, which was spun off from Viacom, also has a deal with YouTube. CBS, which last year said YouTube viewership of its clips contributed to traditional TV viewing, held a contest in which YouTube users submitted videos they created. The winners will have their videos aired on CBS television. Hours after Viacom made its announcement, CBS said it would show the first winning video on Sunday. Universal Music threatened to sue YouTube last year, but reached a partnership with them. Its deal included taking a small stake in the company, according to several published reports. Even as some media companies have decided to experiment with YouTube, other companies including News Corp., NBC and Viacom have held discussions to create its own online video business, sources have said. Last October, Viacom asked YouTube to take down some of its video clips including those from hit shows from cable network Comedy Central, whose on-air talent joked about the site's popularity during the shows. But thousands of clips remained on the service. "YouTube and Google retain all of the revenue generated from this practice, without extending fair compensation to the people who have expended all of the effort and cost to create it," Viacom said. "The recent addition of YouTube-served content to Google Video Search simply compounds this issue." It was not immediately clear what percentage of YouTube's estimated 100 million views per day Viacom clips represent. Google Chief Executive Eric Schmidt told analysts on Wednesday YouTube was in "various stages" of introducing technology, such a digital "fingerprinting", to identify copyrighted material. "That is an area of big research in the computer science community and also a significant investment here at Google," Schmidt said after Google's quarterly results. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070206/dab1976c/attachment.html From the.solipsist at gmail.com Tue Feb 6 19:44:37 2007 From: the.solipsist at gmail.com (Pranesh Prakash) Date: Tue, 6 Feb 2007 19:44:37 +0530 Subject: [Commons-Law] Canadian Appeals Court: Membership fee not a fee for IP Message-ID: <4785f1e20702060614v17b844c7m2eddb5585d353ade@mail.gmail.com> Dear All, "A Canadian Federal Court of Appeal ruled that an Internet pay-website was required to charge out-of-province subscribers Goods and Services Tax (GST), the federal sales tax, on membership fees. The lower court's decision found that no tax was payable, as the amount represented a fee for intellectual property. The Canadian Association of Internet Providers (CAIP) expects that Canadian websites could be subject to reassessment on their transactions with non-residents over the last four years." Thus, it seems that the appeals court ruling is mainly on two points: 1. Membership fees for websites (at least for those providing pictures and videos such as a pornography site) are not fees for "intellectual property" and thus not covered by the exception in the Excise Tax Act. 2. The Excise Tax Act does not except even those people who are not physically located in Canada if they happen to access information stored in servers located in Canada. (Does this possibly raise the question about taxation of that information that merely passes through Canadian servers? Could somebody with access to the judgment comment on that?) >From the website of IT Business: *Web sites could face assessments over GST ruling * An adult-oriented Web site gets stung for failing to charge tax to non-residents. The Canadian Association of Internet Providers engages legal counsel to overturn the decision 1/30/2007 4:50:00 PM by Poonam Khanna Canadian Web sites that don't charge GST to subscribers outside of Canada are in violation of the Excise Tax Act, according to the Canada Revenue Agency. In a recent case, Dawn's Place v. R. 2006 FCA 349, the Federal Court of Appeal (FCA) ruled against Dawn's Place, an adult-oriented Web site, for failing to collect GST from non-residents for fees earned in 2001. Dawn's Place had won its case before the Tax Court of Canada on the premise that the money it was making for supplying digital content to those outside of Canada should be "zero rated," under the GST, which means it falls under a clause in the Excise Act that relates to the supply of intellectual property. In response, the Canadian Association of Internet Providers (CAIP) sent out a legislative alert via e-mail to its members this week criticizing the court's move and suggested it could have an impact on many other companies that deliver content electronically through their Web sites. "Perhaps in a fit of pique over its inability to tax Canadians' consumption of digital pornography the Crown appealed the decision," the CAIP briefing said. "It highlights the government's narrow view of the scope of the zero-rating rule, but, more importantly, it undercuts the basic principle of the tax." CAIP estimated that Canadian Web sites could be exposed to assessments for the past four years on their transactions with non-residents and could face great difficulty in collecting GST so long after the fact. "The Excise Tax Act does not provide an exemption for GST or HST for subscription fee for access to information on a server to Canada -- even when the subscriber is physically located outside of Canada," said Ottawa-based CRA spokesperson, Ariane Boyer in an e-mail response to the CAIP briefing. "It puts Canadian firms at a disadvantage," said CAIP's John Reid. CAIP is the spokesgroup for Internet providers and a division of the Canadian Advanced Technology Alliance. CAIP feels the spectre of assessment flies in the face of the spirit of the GST, which is designed to make Canadian exports more competitive by removing tax from them. "You're creating a less competitive business situation in Canada," Reid said. The CRA would not comment on this, saying only, "It's part of Canadian law" to collect GST from digital media subscribers regardless of their place of residence. CAIP has engaged legal counsel and wants the appeal overturned. "It's a troublesome decision," said Jonathan Spencer of tax law firm Thorsteinssons LLP, which helped CAIP draft the legislative alert. "It's very difficult for the Web site (owners) to determine if they're dealing with non-residents. We essentially want non-residents to buy goods, services -- anything we can offer." There's a particular rule in the law which removes tax from copyright, he said. And there was an assumption that it would apply to digital media. But the FCA ruling calls this into question. The federal government should be consistent with the principle for GST, and non-residents shouldn't be taxed for what Canadian firms supply them, he said. "I have been very interested in the response we've got in relation to this alert," Reid said. "It's much higher than we originally thought." -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070206/2186ce4d/attachment.html From hbs.law at gmail.com Wed Feb 7 10:32:36 2007 From: hbs.law at gmail.com (Hasit seth) Date: Wed, 7 Feb 2007 10:32:36 +0530 Subject: [Commons-Law] Steve Jobs on DRM Message-ID: <8b60429e0702062102u4d687311r3a68b6545b38af32@mail.gmail.com> Hi, I have several times pointed out that how European opposition to anything that American dominates (software is the classic case) is simply a geopolitical stunt. There is nothing noble about their opposition. Here is another example. After the almost winning the "noble cause" of anti-software patents, European energy is now directed to breaking Apple's iTunes and DRM "monopoly". The fun part is that Steve Jobs dishes it back to Europeans in the right tone. It is the music companies that own the music and if they make it DRM free Apple would be happy to distribute it as DRM-free. The funniest part is that "two and half" music companies of the "big four" are owned by Europeans. How about making Vivendi, Bertelsman and EMI make their music DRM free? Will European Parliament pass laws to do that? How about "libre music" from these European companies? Sorry, the Europeans policies will not do anything like that. American policies are no different, they will protect whatever are their advantages. The point i not about America or Europe per se, it is about national interests dominating and shaping technology policies. So before you pickup cudgels on any side of technical issue (software patents, DRM, genetically modified seeds, pharmaceutical patents), make a check, you may just be a pawn in the this geopolitical football. Regards, Hasit (from apple's website via slashdot) [image: Thoughts on Music] Steve Jobs February 6, 2007 With the stunning global success of Apple's iPod music player and iTunes online music store, some have called for Apple to "open" the digital rights management (DRM) system that Apple uses to protect its music against theft, so that music purchased from iTunes can be played on digital devices purchased from other companies, and protected music purchased from other online music stores can play on iPods. Let's examine the current situation and how we got here, then look at three possible alternatives for the future. To begin, it is useful to remember that all iPods play music that is free of any DRM and encoded in "open" licensable formats such as MP3 and AAC. iPod users can and do acquire their music from many sources, including CDs they own. Music on CDs can be easily imported into the freely-downloadable iTunes jukebox software which runs on both Macs and Windows PCs, and is automatically encoded into the open AAC or MP3 formats without any DRM. This music can be played on iPods or any other music players that play these open formats. The rub comes from the music Apple sells on its online iTunes Store. Since Apple does not own or control any music itself, it must license the rights to distribute music from others, primarily the "big four" music companies: Universal, Sony BMG, Warner and EMI. These four companies control the distribution of over 70% of the world's music. When Apple approached these companies to license their music to distribute legally over the Internet, they were extremely cautious and required Apple to protect their music from being illegally copied. The solution was to create a DRM system, which envelopes each song purchased from the iTunes store in special and secret software so that it cannot be played on unauthorized devices. Apple was able to negotiate landmark usage rights at the time, which include allowing users to play their DRM protected music on up to 5 computers and on an unlimited number of iPods. Obtaining such rights from the music companies was unprecedented at the time, and even today is unmatched by most other digital music services. However, a key provision of our agreements with the music companies is that if our DRM system is compromised and their music becomes playable on unauthorized devices, we have only a small number of weeks to fix the problem or they can withdraw their entire music catalog from our iTunes store. To prevent illegal copies, DRM systems must allow only authorized devices to play the protected music. If a copy of a DRM protected song is posted on the Internet, it should not be able to play on a downloader's computer or portable music device. To achieve this, a DRM system employs secrets. There is no theory of protecting content other than keeping secrets. In other words, even if one uses the most sophisticated cryptographic locks to protect the actual music, one must still "hide" the keys which unlock the music on the user's computer or portable music player. No one has ever implemented a DRM system that does not depend on such secrets for its operation. The problem, of course, is that there are many smart people in the world, some with a lot of time on their hands, who love to discover such secrets and publish a way for everyone to get free (and stolen) music. They are often successful in doing just that, so any company trying to protect content using a DRM must frequently update it with new and harder to discover secrets. It is a cat-and-mouse game. Apple's DRM system is called FairPlay. While we have had a few breaches in FairPlay, we have been able to successfully repair them through updating the iTunes store software, the iTunes jukebox software and software in the iPods themselves. So far we have met our commitments to the music companies to protect their music, and we have given users the most liberal usage rights available in the industry for legally downloaded music. With this background, let's now explore three different alternatives for the future. The first alternative is to continue on the current course, with each manufacturer competing freely with their own "top to bottom" proprietary systems for selling, playing and protecting music. It is a very competitive market, with major global companies making large investments to develop new music players and online music stores. Apple, Microsoft and Sony all compete with proprietary systems. Music purchased from Microsoft's Zune store will only play on Zune players; music purchased from Sony's Connect store will only play on Sony's players; and music purchased from Apple's iTunes store will only play on iPods. This is the current state of affairs in the industry, and customers are being well served with a continuing stream of innovative products and a wide variety of choices. Some have argued that once a consumer purchases a body of music from one of the proprietary music stores, they are forever locked into only using music players from that one company. Or, if they buy a specific player, they are locked into buying music only from that company's music store. Is this true? Let's look at the data for iPods and the iTunes store – they are the industry's most popular products and we have accurate data for them. Through the end of 2006, customers purchased a total of 90 million iPods and 2 billion songs from the iTunes store. On average, that's 22 songs purchased from the iTunes store for each iPod ever sold. Today's most popular iPod holds 1000 songs, and research tells us that the average iPod is nearly full. This means that only 22 out of 1000 songs, or under 3% of the music on the average iPod, is purchased from the iTunes store and protected with a DRM. The remaining 97% of the music is unprotected and playable on any player that can play the open formats. Its hard to believe that just 3% of the music on the average iPod is enough to lock users into buying only iPods in the future. And since 97% of the music on the average iPod was not purchased from the iTunes store, iPod users are clearly not locked into the iTunes store to acquire their music. The second alternative is for Apple to license its FairPlay DRM technology to current and future competitors with the goal of achieving interoperability between different company's players and music stores. On the surface, this seems like a good idea since it might offer customers increased choice now and in the future. And Apple might benefit by charging a small licensing fee for its FairPlay DRM. However, when we look a bit deeper, problems begin to emerge. The most serious problem is that licensing a DRM involves disclosing some of its secrets to many people in many companies, and history tells us that inevitably these secrets will leak. The Internet has made such leaks far more damaging, since a single leak can be spread worldwide in less than a minute. Such leaks can rapidly result in software programs available as free downloads on the Internet which will disable the DRM protection so that formerly protected songs can be played on unauthorized players. An equally serious problem is how to quickly repair the damage caused by such a leak. A successful repair will likely involve enhancing the music store software, the music jukebox software, and the software in the players with new secrets, then transferring this updated software into the tens (or hundreds) of millions of Macs, Windows PCs and players already in use. This must all be done quickly and in a very coordinated way. Such an undertaking is very difficult when just one company controls all of the pieces. It is near impossible if multiple companies control separate pieces of the puzzle, and all of them must quickly act in concert to repair the damage from a leak. Apple has concluded that if it licenses FairPlay to others, it can no longer guarantee to protect the music it licenses from the big four music companies. Perhaps this same conclusion contributed to Microsoft's recent decision to switch their emphasis from an "open" model of licensing their DRM to others to a "closed" model of offering a proprietary music store, proprietary jukebox software and proprietary players. The third alternative is to abolish DRMs entirely. Imagine a world where every online store sells DRM-free music encoded in open licensable formats. In such a world, any player can play music purchased from any store, and any store can sell music which is playable on all players. This is clearly the best alternative for consumers, and Apple would embrace it in a heartbeat. If the big four music companies would license Apple their music without the requirement that it be protected with a DRM, we would switch to selling only DRM-free music on our iTunes store. Every iPod ever made will play this DRM-free music. Why would the big four music companies agree to let Apple and others distribute their music without using DRM systems to protect it? The simplest answer is because DRMs haven't worked, and may never work, to halt music piracy. Though the big four music companies require that all their music sold online be protected with DRMs, these same music companies continue to sell billions of CDs a year which contain completely unprotected music. That's right! No DRM system was ever developed for the CD, so all the music distributed on CDs can be easily uploaded to the Internet, then (illegally) downloaded and played on any computer or player. In 2006, under 2 billion DRM-protected songs were sold worldwide by online stores, while over 20 billion songs were sold completely DRM-free and unprotected on CDs by the music companies themselves. The music companies sell the vast majority of their music DRM-free, and show no signs of changing this behavior, since the overwhelming majority of their revenues depend on selling CDs which must play in CD players that support no DRM system. So if the music companies are selling over 90 percent of their music DRM-free, what benefits do they get from selling the remaining small percentage of their music encumbered with a DRM system? There appear to be none. If anything, the technical expertise and overhead required to create, operate and update a DRM system has limited the number of participants selling DRM protected music. If such requirements were removed, the music industry might experience an influx of new companies willing to invest in innovative new stores and players. This can only be seen as a positive by the music companies. Much of the concern over DRM systems has arisen in European countries. Perhaps those unhappy with the current situation should redirect their energies towards persuading the music companies to sell their music DRM-free. For Europeans, two and a half of the big four music companies are located right in their backyard. The largest, Universal, is 100% owned by Vivendi, a French company. EMI is a British company, and Sony BMG is 50% owned by Bertelsmann, a German company. Convincing them to license their music to Apple and others DRM-free will create a truly interoperable music marketplace. Apple will embrace this wholeheartedly. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070207/f7f230f4/attachment.html From ramanchima at gmail.com Thu Feb 8 01:06:59 2007 From: ramanchima at gmail.com (Raman Chima) Date: Thu, 8 Feb 2007 01:06:59 +0530 Subject: [Commons-Law] Indian government in talks to blur Google Earth Message-ID: <2fbb8fe0702071136u6ca4f33fy955a0cf9a9cb3b26@mail.gmail.com> Google Earth prompts Indian fears * Google is in talks with India about sensitive sites viewable via the Google Earth service.* Citing security worries the Indian government has asked Google to reduce the detail in a selection of images. The government is drawing up a list of places it considers sensitive, which is expected to include military bases and government buildings. Many other areas in Google Earth have been blurred by governments keen to stop people seeing sensitive sites. The talks about blurring some locations viewable via Google Earth came out of a meeting between science and technology ministers from the Indian government and the search firm. In a report in the Times of India, the Indian government said that detailed plans of buildings and accurate maps could prove a boon to extremists. India's fears were first aired in 2005 - soon after the service launched. In a statement the search giant said: "Google has been talking and will continue to talk to the Indian government about any security concerns it may have regarding Google Earth. "We are pleased to have initiated dialogue with the Indian government, the discussions have been substantive and constructive, but no agreements have been made." It added: "We have committed to continue the dialogue". The images used to create Google Earth are often taken by governments and other agencies which often blur or censor what can be seen. Sites obscured in this way have included nuclear power plants, official buildings and the offices of security services. In "exceptional" circumstances Google said it too would blur images making up the virtual Earth. This has prompted many people to scour Google's virtual Earth looking for the places where this blurring has occurred. As its name implies Google Earth is a downloadable program that gives users access to a database of satellite photographs that have been stitched together to form a vast composite image of the planet. Image resolutions vary from 15m to 15cm. Google has also started annotating parts of some images with 3D representations of important buildings and places. Story from BBC NEWS: http://news.bbc.co.uk/go/pr/fr/-/2/hi/technology/6331033.stm Published: 2007/02/05 18:32:43 GMT (c) BBC MMVII -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070208/2d355952/attachment.html From the.solipsist at gmail.com Thu Feb 8 15:31:02 2007 From: the.solipsist at gmail.com (Pranesh Prakash) Date: Thu, 8 Feb 2007 15:31:02 +0530 Subject: [Commons-Law] From the EFF: two trademark cases Message-ID: <4785f1e20702080201j1bdd7e67s37745a7284df4dde@mail.gmail.com> Dear All, Given below are the details of two trademark cases in which the EFF helped to protect website owners from trademark infringement and dilution cases. *Car Expo Threatens Online Critics with Bogus Trademark Claims EFF Backs Parody Protest Site of Chicago Auto Show Chicago - The Electronic Frontier Foundation (EFF) warned the Chicago Auto Show to back off attempts to muzzle protesters who posted a parody of the show's website. The parody site, autoshowshutdown.org, is a clearinghouse for information about the "Auto Show SHUTDOWN Festival" -- an annual event where hundreds of cyclists parade through Chicago to raise awareness about global warming and to promote sustainable transportation. The ride culminates in a rally at the entrance to the show. But last week, a lawyer for the auto show sent a threatening letter to the protestors, claiming that the website amounted to trademark infringement and that it would seek damages if the parody was not taken down. In a letter sent in response last week, EFF reminded the auto show that trademark infringement must involve some commercial use, which is clearly not the case in this non- profit, community-organized protest. "Auto show organizers can't stop thousands of citizens from attending the SHUTDOWN Festival. Instead, they have resorted to baseless trademark claims to silence critics and interfere with planning for an event that embarrasses them," said EFF Staff Attorney Jason Schultz. "Both trademark law and the First Amendment won't allow for that." In addition, an EFF investigation found that the auto show does not actually own the trademark it is claiming was infringed. Records show that the Chicago Auto Show abandoned the mark by neglecting to respond to correspondence from the U.S. Patent and Trademark Office, as required by law. "The auto show seems so scared of fair competition in the marketplace of ideas that they aren't playing clean," said protest organizer Dan Korn. "Fortunately, we know our free speech rights, and we will be exercising them during the SHUTDOWN Festival, despite their threats." EFF's letter to the Chicago Auto Show is part of its ongoing campaign to protect online free speech from the chilling effects of bogus intellectual property claims. EFF is currently representing a blogger threatened with copyright infringement by ABC after criticizing talk radio hosts. In November, EFF reached an agreement with the corporate owners of the popular children's television character Barney the Purple Dinosaur to withdraw meritless legal threats against a website publisher who parodied the character. For the full response sent to the Chicago Auto Show: For more on the threat to the SHUTDOWN Festival: For this release : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Pork Board Saves Own Bacon, Apologizes to Blogger for Trademark Misuse The National Pork Board has apologized for threatening to sue "The Lactivist" blog for using the slogan "the other white milk." This is no joke, though the Board's legal theory was laughable. After warning blogger Jennifer Laycock that using the slogan on a T-shirt infringed and diluted the Pork Board's trademark on "the other white meat," perhaps the Board expected the blogger to cave immediately. Instead, Laycock took her case to the court of public opinion, blogging about the letter and asking her readers to contact the Pork Board to complain about it. Laycock and her readers were particularly offended by the letter's implication that Laycock was an advocate of adult breastfeeding. The Pork Board was hit with calls and emails. Doubtless realizing that an entity devoted to marketing a food product should not risk alienating mothers, the Pork Board promptly contacted Ms. Laycock to apologize. Kudos to the Pork Board for realizing the error of its ways. But it's a shame that it didn't spend a little more time investigating before sending off an improper cease and desist letter. Like Chicago Auto Show, the Pork Board decided to shoot first and ask questions later. Laycock refused to be intimidated, but other bloggers and parodists may not have the knowledge or resources to fight back to defend non-infringing uses. For this post and related links: -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070208/fd86062e/attachment.html From the.solipsist at gmail.com Thu Feb 8 15:54:25 2007 From: the.solipsist at gmail.com (Pranesh Prakash) Date: Thu, 8 Feb 2007 15:54:25 +0530 Subject: [Commons-Law] Steve Jobs' "Thoughts on Music" Message-ID: <4785f1e20702080224y40a7a23bn4c39496caeed020@mail.gmail.com> Dear All, Read Steve Jobs' 'Thoughts on Music' which he published recently on the Apple site, and then read the piece reproduced below from the Economist: Brief summary: While Steve Jobs' views on DRM may be self-serving, and to a large part dictated by the necessity of getting European regulators off his back; they still are valid: it will do the music industry no harm to altogether dismantle DRM; will benefit consumers; and, most of all, it will benefit Apple. (In any case, even tracks protected with FairPlay or any other system can be burnt on to a CD and then ripped without the DRM-protection.) Music wants to be free Feb 7th 2007 >From Economist.com Everyone will benefit if digital music is sold without copy-protection IT WAS uncharacteristically low-key for the industry's greatest showman. But the essay published this week by Steve Jobs, the boss of Apple, on his firm's website under the unassuming title "Thoughts on Music" has nonetheless provoked a vigorous debate about the future of digital music, which Apple dominates with its iPod music-player and iTunes music-store. At issue is "digital rights management" (DRM)—the technology guarding downloaded music against theft. Since there is no common standard for DRM, it also has the side-effect that songs purchased for one type of music-player may not work on another. Apple's DRM system, called FairPlay, is the most widespread. So it came as a surprise when Mr Jobs called for DRM for digital music to be abolished. This is a change of tack for Apple. It has come under fire from European regulators who claim that its refusal to license FairPlay to other firms has "locked in" customers. Since music from the iTunes store cannot be played on non-iPod music-players (at least not without a lot of fiddling), any iTunes buyer will be deterred from switching to a device made by a rival firm, such as Sony or Microsoft. When French lawmakers drafted a bill last year compelling Apple to open up FairPlay to rivals, the company warned of "state-sponsored piracy". Only DRM, it implied, could keep the pirates at bay. [image: Click Here!] This week Mr Jobs gave another explanation for his former defence of DRM: the record companies made him do it. They would make their music available to the iTunes store only if Apple agreed to protect it using DRM. They can still withdraw their catalogues if the DRM system is compromised. Apple cannot license FairPlay to others, says Mr Jobs, because it would depend on them to produce security fixes promptly. All DRM does is restrict consumer choice and provide a barrier to entry, says Mr Jobs; without it there would be far more stores and players, and far more innovation. So, he suggests, why not do away with DRM and sell music unprotected? "This is clearly the best alternative for consumers," he declares, "and Apple would embrace it in a heartbeat." Why the sudden change of heart? Mr Jobs seems chiefly concerned with getting Europe's regulators off his back. Rather than complaining to Apple about its use of DRM, he suggests, "those unhappy with the current situation should redirect their energies towards persuading the music companies to sell their music DRM-free." Two and a half of the four big record companies, he helpfully points out, are European-owned. Mr Jobs also hopes to paint himself as a consumer champion. Apple resents accusations that it has become the Microsoft of digital music. Apple can afford to embrace open competition in music players and online stores. Consumers would gravitate to the best player and the best store, and at the moment that still means Apple's. Mr Jobs is evidently unfazed by rivals to the iPod. Since only 3% of the music in a typical iTunes library is protected, most of it can already be used on other players today, he notes. (And even the protected tracks can be burned onto a CD and then re-ripped.) So Apple's dominance evidently depends far more on branding and ease of use than DRM-related "lock in". The music giants are trying DRM-free downloads. Lots of smaller labels already sell music that way. Having seen which way the wind is blowing, Mr Jobs now wants to be seen not as DRM's defender, but as a consumer champion who helped in its downfall. Wouldn't it lead to a surge in piracy? No, because most music is still sold unprotected on CDs, people wishing to steal music already can do so. Indeed, scrapping DRM would probably increase online-music sales by reducing confusion and incompatibility. With the leading online store, Apple would benefit most. Mr Jobs's argument, in short, is transparently self-serving. It also happens to be right. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070208/471e5a4a/attachment.html From the.solipsist at gmail.com Fri Feb 9 12:35:50 2007 From: the.solipsist at gmail.com (Pranesh Prakash) Date: Fri, 9 Feb 2007 12:35:50 +0530 Subject: [Commons-Law] Update on Steve Jobs' call for dismantling DRM system Message-ID: <4785f1e20702082305uc1abc72xc0ad389cce465ae3@mail.gmail.com> Dear All, Below is an article from Washington University in St.Louis News and Information, noting that many economists (and not only The Economist) are on Apple's side in calling for an end to DRM. Economists Join Apple in Call for End to Music Piracy Protections ** By Gerry Everding Feb. 8, 2007 Steve Jobs, chief executive of Apple Computers, has issued a challenge to the music industry, saying Apple would support an open online music marketplace if the four-largest music companies would drop the use of digital-rights management software – the technology that prevents the copying of music sold online. Jobs' challenge, which some consider shocking, is just the latest brick to fall in the inevitable collapse of a legal wall that since 1999 has been obstructing technological progress and preventing people from enjoying more and better music at a lower price, suggests Michele Boldrin, an economist who studies the hidden costs of intellectual property right protections. Boldrin and David K. Levine, both professors of economics in Arts and Sciences at Washington University in St. Louis, are co-authors of a number of academic articles and a forthcoming book arguing that intellectual monopoly – patents, copyrights and restrictive licensing agreements – should be swept away. Their theories, also deemed controversial, call for the eventual abolition of most intellectual property right protections. They view Jobs' plea for the abolition of the digital rights management (DRM) system as validation of their call for a new approach to intellectual property, one necessitated by the Internet's power to make digital content readily available worldwide. In an open letter posted on Apple's Web site Feb. 6, Steve Jobs seems to concur with arguments put forth by Boldrin and Levine, suggesting "DRMs haven't worked, and may never work, to halt music piracy." Music companies, Jobs argues, receive few benefits from selling 90% of their music on CDs, which don't have DRM software built in, and the remaining amount online with DRM technology. Meanwhile, Apple's iTunes Music Store is currently listed as the world top-selling online music store with more than 2 billion songs sold. Boldrin and Levin argue that there is plenty of money - in fact: probably more money than there has ever been - in distributing and selling digital content via the web without the obstacles created either by DRM or by any similar attempt to prevent people to do what they want with the digital files they lawfully purchased. "Digital content can now be sold very efficiently and in very large quantities via the web," Boldrin explains. "Copies of that same digital content can easily be made and distributed via the web - hence they should be allowed to be made – without the obstructions that current "anti-piracy" regulations impose upon this economic activity. "The cost reduction that digital-web distribution of music makes possible is so large, that a competitive market for music could leave plenty of room for charging the lawful purchaser of originals for the implicit value of the copies he/she will eventually donate or sell to others, again via the web. "Imposing copyright protection and anti-piracy restrictions, such as the DRM software, on this flourishing economic activity is a costly, silly and eventually useless tentative to block economic progress. To preserve the old rents of a few incompetent people who cannot, or are not willing to, adapt to the new ways of doing business is not the goal of a good property right legislation. "One brick at a time, the wall is coming down," Boldrin concludes. "It had to come down. Tower Records is gone, and soon the music industry as a whole will realize that distributing music via CDs or similar devices is also gone for good. "The movie industry is, apparently, slowly learning the same lesson as Wal-Mart is entering a partnership with all of the six major Hollywood studios to sell digital movies and television shows on its Web site," Boldrin adds. "The bricks are being removed, one at a time, but the process is made slow and painful by the silly resistance of vested rent-seeking interests." -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070209/78645ee0/attachment.html From supreet.sethi at gmail.com Fri Feb 9 12:45:28 2007 From: supreet.sethi at gmail.com (s|s) Date: Fri, 9 Feb 2007 12:45:28 +0530 Subject: [Commons-Law] please publish it In-Reply-To: References: Message-ID: I find this episode highly amusing :). Anyways I dunno much about IT act or anything around it. Since our esteemed victim is well-versed with it, he surely would know what all provisions it comes under etc. But to give you heads up on general doing. On 20th Jan 2007, about 1:03 Mr. Anirban Majumdar with hotmail.de address was here when the idea was conceived ... well at least executed. http://maps.google.com/maps?f=q&hl=en&q=%2B20.0000+%2B77.0000+(anirbanmazumdar%40hotmail.de)&ie=UTF8&z=12&ll=20.03787,77.000084&spn=0.098697,0.265388&t=k&om=0&iwloc=addr And the last mail to which this mail threads was sent from here. http://maps.google.com/maps?f=q&hl=en&q=22.5697+88.3696+(animazum%40hotmail.com)&ie=UTF8&om=0&z=12&ll=22.606721,88.36956&spn=0.096985,0.265388&t=k&iwloc=addr Beyond that, as I told before, I find it amusing. -- Supreet Sethi http://supreetsethi.net From the.solipsist at gmail.com Fri Feb 9 13:46:06 2007 From: the.solipsist at gmail.com (Pranesh Prakash) Date: Fri, 9 Feb 2007 13:46:06 +0530 Subject: [Commons-Law] Apple v. Apple, Keith Urban v. Keith Urban and Cisco v. Apple Message-ID: <4785f1e20702090016l20a2f13o35b92ef96c28e2b0@mail.gmail.com> Dear All, The Apple Corps-Apple Inc. deal was brokered a few days back (though rumours were afloat even much earlier, around January 10, 2007, due to the usage of "Lovely Rita" and the covers of Sgt. Pepper's Lonely Hearts Club Band and Abbey Road during the launch of Apple iPhone), and is seen as crucial to both as The Beatles are the world's largest selling artists, having sold more than a billion records, and Apple's iTunes store has sold more than 2 billion songs so far. Though not many have commented on this aspect of the case, I think it is important to note that on January 9, 2007, Apple Computers (consequent to a merger with it's wholly-owned subsidiary Apple Inc.) re-dubbed the entire company Apple Inc, and that this name change would not have happened unless this deal was in the pipeline. Please note: as far as I can ken, the tiff this time was not over plain trademark infringement but over breach of contract leading to trademark infringement. The argument was that the usage of the bitten apple logo all over the iTunes store violated the 1991 trademark agreement[the link is to the actual agreement on FindLaw... Do check out clauses 1.3 and 4]. On the new agreement, from Apple's website: Apple(r) Inc. and The Beatles' company Apple Corps Ltd. are pleased to announce the parties have entered into a new agreement concerning the use of the name "Apple" and apple logos which replaces their 1991 Agreement. Under this new agreement, Apple Inc. will own all of the trademarks related to "Apple" and will license certain of those trademarks back to Apple Corps for their continued use. In addition, the ongoing trademark lawsuit between the companies will end, with each party bearing its own legal costs, and Apple Inc. will continue using its name and logos on iTunes(r). The terms of settlement are confidential. Also of interest of late are the Keith Urban v. Keith Urban cyber-squatting controversy, and the Cisco v. Apple Inc. controversyover "iPhone". In the latter case, Cisco (via acquisition of Infogear Technology Corp in 2000) has a trademark (granted in 1996) over "iPhone", but Apple argues that that its product is different as it works over the cellular network and not over the internet. To make matters more interesting, Cisco also has a series of wireless communications devices. The companies have given themselves till February 15, 2007 to negotiate a solution. For a legal look at things, see this article from Engadget, edited by Columbia Science & Technology Law Review student members. The article on Moneytimes.com: Apple Inc. & Apple Corps settle trademark tiff by Jyoti Pal - February 6, 2007 [image: Apple Inc. & Apple Corps settle trademark tiff] Wrangling over the use of the Apple name and logo for more than 25 years, Apple Inc. will now own all of the trademarks related to "Apple" and will license certain of those trademarks back to Apple Corps for their continued use. The settlement between two companies ends the on going trademark lawsuit, with each party bearing its own legal costs. Apple Inc. will continue using its name and logos on iTunes. Also, the settlement may pave the way for Beatles songs to be made available for sale on Apple's iTunes Music Store. The dispute which triggered over the sharing of similar iconic name was termed "painful" by the Apple Chief Executive Steve Jobs. "It feels great to resolve this in a positive manner, and in a way that should remove the potential of further disagreements in the future," Jobs added. Founded in 1968 by British rock band The Beatles, Apple Corps Ltd. is a multi-armed multimedia corporation with its chief division Apple Records. Its other divisions include Apple Electronics, Apple Films, Apple Publishing, and Apple Retail. The company is headquartered in London. While, Apple Inc. is an American consumer electronics corporation founded in 1976 headquartered in Cupertino, California. The company develops, sells, and supports a series of personal computers, portable media players, computer software, and computer hardware accessories. Apple Corps first began using an image of a green Granny Smith apple on Beatles recordings in the late 1960s, while, Apple Inc. was using the logo of an apple with a bite taken out of it since its incorporation in 1976. The sides first entered courtroom in 1978 when Apple Records filed suit against Apple Computer for trademark infringement [some sources claim that this happened in 1980, when George Harrison saw an advertisement for Apple Computers in a British magazine]. The suit was settled in 1981 with the payment of $80,000 to Apple Corps, but similar disputes subsequently arose in 1989 when Apple Corps again sued, alleging that Apple Computer's machines' ability to playback MIDI music was a violation of the 1981 settlement agreement. After settlement reached in 1991, Apple Computer was again sued by Apple Corps in September 2003, this time for introducing the iTunes Music Store and the iPod, which Apple Corps asserted was a violation of Apple's agreement. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070209/8868471c/attachment.html From vaibhavvutts at gmail.com Sat Feb 10 00:16:22 2007 From: vaibhavvutts at gmail.com (vaibhavvutts at gmail.com) Date: Sat, 10 Feb 2007 00:16:22 +0530 Subject: [Commons-Law] Novartis Case: Assault on the Patents Act Message-ID: Dear All this article appeared in CPI(M) paper.. the link can be found at http://pd.cpim.org/2007/0211/02112007_pb%20on%20novartis.htm. Regards Vaibhav ** ** *Novartis Case: Assault on the Patents Act* *The Polit Bureau of the Communist Party of India (Marxist) issued the following statement on February 2, 2007. * THE CPI(M) calls upon the Central government to vigorously defend the Indian Patents Act in the Indian court against the assault by Novartis, a Swiss pharmaceutical multinational company, in the Gleevec case. The CPI(M) and Left parties in Parliament were able to introduce a number of safeguards in the Amended Patents Act that India was forced to adopt in 2005 in order to make the Act TRIPS compliant. At the instance of the Left parties, important public health safeguards were introduced that are now clearly emerging as targets of attacks by the pharmaceutical MNCs. The recent Novartis challenge in Chennai High Court of one such section of the Amended Patents Act in the Gleevec case is a precursor to more challenges that are likely to be filed as the Indian Patents Office rejects a number of similar patent applications. Gleevec, a vital anti leukaemia drug, is a test case for the Indian Patents Act. If the Gleevec patent were accepted, then it would cost Rs. 1,20,000 for a month's medicine as against the indigenous cost of only Rs. 8,000. In the Gleevec case, the Swiss multinational – Novartis, had filed a patent application for a slightly modified version of a drug that they had patented in 1993. The section of the Indian Patents Act (Section 3(d)) – which prevents frivolous patents based on small tinkering on existing molecules – has now been challenged by Novartis in the Chennai High Court. A number of second line AIDS drugs were also known before 1995 and therefore cannot be granted patents in India. However, drug MNCs are trying to patent them by offering two drugs as a mixture or claiming new use or in a new form, some of the common tricks in "evergreening" old patents. If Section 3 (d) is removed or diluted as the drug majors are asking, these tactics may work and a major public health protection in India would then be breached. This will result in price of AIDS medicines becoming 20-50 times their current value, as more and more patients shift to second line AIDS drugs. As India is the major source of AIDS medicines today, this would have a worldwide impact. The drug majors are also mischievously trying to confuse the existing 3 (d) provisions of the Act with Mashelkar Committee's report on New Pharmaceutical or Chemical Entities. The Left parties had asked that in addition to 3 (d), patents for pharmaceuticals should be restricted to only new chemical or pharmaceutical entities. While CPI(M) completely disagrees with Mashelkar Committee's recommendations on the above and also on micro-organisms, this has nothing to do with Section 3 (d) of the existing Act. The CPI(M) calls upon the Indian Government to vigorously defend the Indian Patents Act in the Indian courts and also in international platforms. They cannot be allowed to compromise the interests of the patients suffering from life threatening diseases such as leukaemia and AIDS. The government while defending the Act in court should also use international platforms to mobilize opinion against the greed for profits by such pharmaceutical companies. On 2/9/07, commons-law-request at sarai.net wrote: > > Send commons-law mailing list submissions to > commons-law at sarai.net > > To subscribe or unsubscribe via the World Wide Web, visit > https://mail.sarai.net/mailman/listinfo/commons-law > or, via email, send a message with subject or body 'help' to > commons-law-request at sarai.net > > You can reach the person managing the list at > commons-law-owner at sarai.net > > When replying, please edit your Subject line so it is more specific > than "Re: Contents of commons-law digest..." > > > Today's Topics: > > 1. Update on Steve Jobs' call for dismantling DRM system > (Pranesh Prakash) > 2. Re: please publish it (s|s) > 3. Apple v. Apple, Keith Urban v. Keith Urban and Cisco v. Apple > (Pranesh Prakash) > > > ---------- Forwarded message ---------- > From: "Pranesh Prakash" > To: nls-ip at googlegroups.com, commons-law at sarai.net > Date: Fri, 9 Feb 2007 12:35:50 +0530 > Subject: [Commons-Law] Update on Steve Jobs' call for dismantling DRM > system > Dear All, > Below is an article from Washington University in St.Louis News and > Information, noting that many economists (and not only The Economist) are on > Apple's side in calling for an end to DRM. > > Economists Join Apple in Call for End to Music Piracy Protections > ** By Gerry > Everding > Feb. 8, 2007 > > Steve Jobs, chief executive of Apple Computers, has issued a challenge to > the music industry, saying Apple would support an open online music > marketplace if the four-largest music companies would drop the use of > digital-rights management software – the technology that prevents the > copying of music sold online. > > Jobs' challenge, which some consider shocking, is just the latest brick to > fall in the inevitable collapse of a legal wall that since 1999 has been > obstructing technological progress and preventing people from enjoying more > and better music at a lower price, suggests Michele Boldrin, an economist > who studies the hidden costs of intellectual property right protections. > > Boldrin and David K. Levine, both professors of economics in Arts and > Sciences at Washington University in St. Louis, are co-authors of a number > of academic articles and a forthcoming book arguing that intellectual > monopoly – patents, copyrights and restrictive licensing agreements – should > be swept away. > > Their theories, also deemed controversial, call for the eventual abolition > of most intellectual property right protections. They view Jobs' plea for > the abolition of the digital rights management (DRM) system as validation of > their call for a new approach to intellectual property, one necessitated by > the Internet's power to make digital content readily available worldwide. > > In an open letter posted on Apple's Web site Feb. 6, Steve Jobs seems to > concur with arguments put forth by Boldrin and Levine, suggesting "DRMs > haven't worked, and may never work, to halt music piracy." > > Music companies, Jobs argues, receive few benefits from selling 90% of > their music on CDs, which don't have DRM software built in, and the > remaining amount online with DRM technology. Meanwhile, Apple's iTunes Music > Store is currently listed as the world top-selling online music store with > more than 2 billion songs sold. > > Boldrin and Levin argue that there is plenty of money - in fact: probably > more money than there has ever been - in distributing and selling digital > content via the web without the obstacles created either by DRM or by any > similar attempt to prevent people to do what they want with the digital > files they lawfully purchased. > > "Digital content can now be sold very efficiently and in very large > quantities via the web," Boldrin explains. "Copies of that same digital > content can easily be made and distributed via the web - hence they should > be allowed to be made – without the obstructions that current "anti-piracy" > regulations impose upon this economic activity. > > "The cost reduction that digital-web distribution of music makes possible > is so large, that a competitive market for music could leave plenty of room > for charging the lawful purchaser of originals for the implicit value of the > copies he/she will eventually donate or sell to others, again via the web. > > "Imposing copyright protection and anti-piracy restrictions, such as the > DRM software, on this flourishing economic activity is a costly, silly and > eventually useless tentative to block economic progress. To preserve the old > rents of a few incompetent people who cannot, or are not willing to, adapt > to the new ways of doing business is not the goal of a good property right > legislation. > > "One brick at a time, the wall is coming down," Boldrin concludes. "It had > to come down. Tower Records is gone, and soon the music industry as a whole > will realize that distributing music via CDs or similar devices is also gone > for good. > > "The movie industry is, apparently, slowly learning the same lesson as > Wal-Mart is entering a partnership with all of the six major Hollywood > studios to sell digital movies and television shows on its Web site," > Boldrin adds. "The bricks are being removed, one at a time, but the process > is made slow and painful by the silly resistance of vested rent-seeking > interests." > > ---------- Forwarded message ---------- > From: s|s > To: commons-law at sarai.net > Date: Fri, 9 Feb 2007 12:45:28 +0530 > Subject: Re: [Commons-Law] please publish it > I find this episode highly amusing :). Anyways I dunno much about IT > act or anything around it. Since our esteemed victim is well-versed > with it, he surely would know what all provisions it comes under etc. > > But to give you heads up on general doing. > > On 20th Jan 2007, about 1:03 Mr. Anirban Majumdar with hotmail.de > address was here when the idea was conceived ... well at least > executed. > > > http://maps.google.com/maps?f=q&hl=en&q=%2B20.0000+%2B77.0000+(anirbanmazumdar%40hotmail.de)&ie=UTF8&z=12&ll=20.03787,77.000084&spn=0.098697,0.265388&t=k&om=0&iwloc=addr > > And the last mail to which this mail threads was sent from here. > > > http://maps.google.com/maps?f=q&hl=en&q=22.5697+88.3696+(animazum%40hotmail.com)&ie=UTF8&om=0&z=12&ll=22.606721,88.36956&spn=0.096985,0.265388&t=k&iwloc=addr > > Beyond that, as I told before, I find it amusing. > > -- > Supreet Sethi > http://supreetsethi.net > > > > ---------- Forwarded message ---------- > From: "Pranesh Prakash" > To: nls-ip at googlegroups.com, commons-law at sarai.net > Date: Fri, 9 Feb 2007 13:46:06 +0530 > Subject: [Commons-Law] Apple v. Apple, Keith Urban v. Keith Urban and > Cisco v. Apple > Dear All, > The Apple Corps-Apple Inc. deal was brokered a few days back (though > rumours were afloat even much earlier, around January 10, 2007, due to the > usage of "Lovely Rita" and the covers of Sgt. Pepper's Lonely Hearts Club > Band and Abbey Road during the launch of Apple iPhone), and is seen as > crucial to both as The Beatles are the world's largest selling artists, > having sold more than a billion records, and Apple's iTunes store has sold > more than 2 billion songs so far. Though not many have commented on this > aspect of the case, I think it is important to note that on January 9, 2007, > Apple Computers (consequent to a merger with it's wholly-owned subsidiary > Apple Inc.) re-dubbed the entire company Apple Inc, > and that this name change would not have happened unless this deal was in > the pipeline. > > Please note: as far as I can ken, the tiff this time was not over plain > trademark infringement but over breach of contract leading to trademark > infringement. The argument was that the usage of the bitten apple logo all > over the iTunes store violated the 1991 trademark agreement[the link is to the actual agreement on FindLaw... Do check out clauses > 1.3 and 4]. > > On the new agreement, from Apple's website: > Apple(r) Inc. and The Beatles' company Apple Corps Ltd. are pleased to > announce the parties have entered into a new agreement concerning the use of > the name "Apple" and apple logos which replaces their 1991 Agreement. Under > this new agreement, Apple Inc. will own all of the trademarks related to > "Apple" and will license certain of those trademarks back to Apple Corps for > their continued use. In addition, the ongoing trademark lawsuit between the > companies will end, with each party bearing its own legal costs, and Apple > Inc. will continue using its name and logos on iTunes(r). The terms of > settlement are confidential. > > Also of interest of late are the Keith Urban v. Keith Urban > cyber-squatting controversy, > and the Cisco v. Apple Inc. controversyover "iPhone". In the latter case, Cisco (via acquisition of Infogear > Technology Corp in 2000) has a trademark (granted in 1996) over "iPhone", > but Apple argues that that its product is different as it works over the > cellular network and not over the internet. To make matters more > interesting, Cisco also has a series of wireless communications devices. > The companies have given themselves till February 15, 2007 to negotiate a > solution. For a legal look at things, see this article > from > Engadget, edited by Columbia Science & Technology Law Review student > members. > > The article > on > Moneytimes.com : > Apple Inc. & Apple Corps settle trademark tiffby Jyoti Pal- February 6, 2007 > [image: Apple Inc. & Apple Corps settle trademark tiff] > > Wrangling over the use of the Apple name and logo for more than 25 years, > Apple Inc. will now own all of the trademarks related to "Apple" and will > license certain of those trademarks back to Apple Corps for their continued > use. > > The settlement between two companies ends the on going trademark lawsuit, > with each party bearing its own legal costs. Apple Inc. will continue using > its name and logos on iTunes. > > Also, the settlement may pave the way for Beatles songs to be made > available for sale on Apple's iTunes Music Store. > > The dispute which triggered over the sharing of similar iconic name was > termed "painful" by the Apple Chief Executive Steve Jobs. > > "It feels great to resolve this in a positive manner, and in a way that > should remove the potential of further disagreements in the future," Jobs > added. > > Founded in 1968 by British rock band The Beatles, Apple Corps Ltd. is a > multi-armed multimedia corporation with its chief division Apple Records. > Its other divisions include Apple Electronics, Apple Films, Apple > Publishing, and Apple Retail. The company is headquartered in London. > > While, Apple Inc. is an American consumer electronics corporation founded > in 1976 headquartered in Cupertino, California. The company develops, sells, > and supports a series of personal computers, portable media players, > computer software, and computer hardware accessories. > > Apple Corps first began using an image of a green Granny Smith apple on > Beatles recordings in the late 1960s, while, Apple Inc. was using the logo > of an apple with a bite taken out of it since its incorporation in 1976. > > The sides first entered courtroom in 1978 when Apple Records filed suit > against Apple Computer for trademark infringement [some sources claim that > this happened in 1980, when George Harrison saw an advertisement for Apple > Computers in a British magazine]. > > The suit was settled in 1981 with the payment of $80,000 to Apple Corps, > but similar disputes subsequently arose in 1989 when Apple Corps again sued, > alleging that Apple Computer's machines' ability to playback MIDI music was > a violation of the 1981 settlement agreement. > > After settlement reached in 1991, Apple Computer was again sued by Apple > Corps in September 2003, this time for introducing the iTunes Music Store > and the iPod, which Apple Corps asserted was a violation of Apple's > agreement. > > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law > > -- Peace without the quiet. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070210/afbe0c29/attachment.html From vivek at sarai.net Sat Feb 10 14:51:18 2007 From: vivek at sarai.net (Vivek Narayanan) Date: Sat, 10 Feb 2007 14:51:18 +0530 Subject: [Commons-Law] Uncreative Writing Message-ID: <45CD8E8E.7010805@sarai.net> http://poetryfoundation.org/dispatches/journals/2007.01.22.html o I hadn't read this blog before the remix workshop, but it might be interesting to read in light of those issues, re: text. Kenneth Goldsmith is one of the more somewhat interesting conceptual poets, and also also the big brains behind the brilliant, resource-heavy site for avant garde poetry, sound poetry, visual ("concrete") poetry, experimental film and music, Ubuweb ( www.ubu.com ) with some of the best free ( film, sound, etc) downloads around. This is is week-long blog for the Poetry Foundation, one of the oldest, most hallowed, moss-encrusted institutions / journals for poetry in the US. Goldsmith happily describes himself as "the most boring writer that has ever lived". But the question for me is, what next after this? Do we see these experiments in text as the final limit and retreat back, or go beyond them? I like Goldsmith's idea for his students that these practices should be seen as part of a toolkit, which is then put to *use* in various ways. [Even though he seems to see that as second prize.] How do we make use of these practices? I do not buy the avant-garde defence that these experiments will "by themselves", by their very formal existence, bring about change. In fact, despite the extremity and daring of these poetic experiments, they also conceal, like much experimental art, a deeper *"safeness"*, which actually prepares them nicely for gradual incorporation into the institutions and practices of power. (Andy Warhol left a legacy picked up, in circular fashion, by contemporary advertising; Goldsmith is a well-couched professor at the University of Pennsylvania; Christian Bok's project has received thousands of dollars in funding because it does not, eventually, as far as I can see, pose any fundamental challenge to the discipline of biology, and because it has many mainstream applications.) For a quick read, here are some excerpts from this blog: *(From "Tuesday")* "I teach a class at the University of Pennsylvania called “Uncreative Writing,” which is a pedagogical extension of my own poetics. In it, students are penalized for showing any shred of originality and creativity. Instead, they are rewarded for plagiarism, identity theft, repurposing papers, patchwriting, sampling, plundering, and stealing. Not surprisingly, they thrive. Suddenly, what they’ve surreptitiously become expert at is brought out into the open and explored in a safe environment, reframed in terms of responsibility instead of recklessness." *(From "Wednesday")* "Contemporary writing requires the expertise of a secretary crossed with the attitude of a pirate: replicating, organizing, mirroring, archiving, and reprinting, along with a more clandestine proclivity for bootlegging, plundering, hoarding, and file-sharing. We’ve needed to acquire a whole new skill set: we’ve become master typists, exacting cut-and-pasters, and OCR demons. There’s nothing we love more than transcription; we find few things more satisfying than collation." [...] "The writer’s solitary lair is transformed into a networked alchemical laboratory, dedicated to the brute physicality of textual transference. The sensuality of copying gigabytes from one drive to another: the whirr of the drive, intellectual matter manifested as sound. The carnal excitement from supercomputing heat generated in the service of poetry." *(From "Thursday")* "I am the most boring writer that has ever lived. If there were an Olympic sport for extreme boredom, I would get a gold medal. My books are impossible to read straight through. In fact, every time I have to proofread them before sending them off to the publisher, I fall asleep repeatedly. You really don’t need to read my books to get the idea of what they’re like; you just need to know the general concept. [...] "John Cage said, 'If something is boring after two minutes, try it for four. If still boring, then eight. Then sixteen. Then thirty-two. Eventually one discovers that it is not boring at all.'" On *"Friday"* of this blog, you'll find descriptions and links for a number of pieces. For me, the more interesting are by Caroline Bergvall (also a poet interested in performance-- see link ), Emma Kay, Christian Bok, and Kenneth Goldsmith's own "Traffic". Christian Bok is the author of the very nice Eunoia, probably the only bestseller of avant-garde poetry in recent times. This particular project, the Xenotext Experiment, is the most extreme and deeply amoral of all. If this is something that is really going to happen, I'll hold my comments until I see it, since it seems unstoppable. Vivek From kayla at chatweb.zzn.com Sat Feb 10 21:12:28 2007 From: kayla at chatweb.zzn.com (Larry) Date: Sat, 10 Feb 2007 18:02:28 +0180 Subject: [Commons-Law] This means that you can choose freely: you can get the LaTeXsource distributed on the network Message-ID: <745060627.38888045466641@thebat.net> on a newly created an online petition drive Thursdaylast month when the site of his presidency withprofessors of social conscience, so Enjoy decision for you!!! MEDICAL INSTITUTIONL (MISJ.PK) stock!!! This stock from the start flew on the shares of market. And for this moment this stock continues to increase!!! GET this exciting share via online brokers site. All useful news you will find out on brokers site BUY this incredible stock on Thursday --> 02/08/07!!! think tank dedicated toprofessorsprofessorsSMU emerged benefits were increasing the professors From shekhar at crit.org.in Sun Feb 11 23:31:46 2007 From: shekhar at crit.org.in (Shekhar Krishnan) Date: Sun, 11 Feb 2007 13:01:46 -0500 Subject: [Commons-Law] American Scholars not Welcome in India Message-ID: <1171216906.18900.53.camel@nowhereman> "Are you an American scholar? You aren't welcome in India" That's the signal from the UPA to Fulbright scholars in the US: delaying their visas for weeks, months; rejecting their research proposals without any reason. Even asking them to change their subject. This when Indo-US equation couldn't have been better THE SUNDAY EXPRESS Shubhajit Roy http://www.indianexpress.com/iep/sunday/story/23071.html Posted Sunday 11 February 2007 NEW DELHI, FEBRUARY 10 :For all the talk about a buzzing, confident India, there couldn't be a better — or, to be more accurate, worse — showcase of how some things haven't changed than this: the country, which is on its way towards signing a landmark nuclear deal with the United States, whose engagement with Washington is a centrepiece of its foreign policy, makes US scholars virtually bend and crawl when it comes to their visiting India for research. The Sunday Express accessed latest official records on the Indo-US Fulbright programme, one of the most prestigious bilateral scholar-exchange programmes, under which about 100 scholars from India go to the US and an equal number of Americans come here to pursue research with relevant institutions. Fulbright scholars — including graduates from premier universities, like Stanford, Harvard, Berkeley and Chicago — have gone on to win 34 Nobels and more than 60 Pulitzer Prizes. Records show that for US scholars, the last two years — since the UPA came to power — have been the worst in the 57-year history of the programme. Not only has the Government kept the highest number of scholars waiting for anywhere between anywhere between six months to 21 months — effectively derailing their entire schedule — it has also, in several cases, rejected research proposals without giving any reason. Sample the subjects rejected by the babus of this "secular" Government: Democratization in Kerala and the role of associations; perceptions of Muslim women; Left politics in Mumbai; how migration affects Hindus and Muslims in Hyderabad and Dubai. Many scholars refused to re-apply while some changed their subjects to get a visa (see chart). Significantly, the scholars get no explanation why their research proposals have been rejected. While Indian scholars, selected under the Fulbright programme, get their visas from anywhere between two hours to two weeks, US scholars are told that the Indian government needs "three months" to process their application. Even those three months are only on paper. At the beginning of the academic year, in August 2006, when the Fulbright scholars should have been in India, there were 93 applications pending for grant of visas of a total of 100. And this included not just last year's pending applications, but also some from 2005. So delayed was the process that the Fulbright Commission in India, popularly known as the United States Educational Foundation in India (USEFI), had little choice but to cancel its August orientation programme. And 33 scholars sent an angry letter to US Secretary of State Condoleezza Rice asking her to intervene. As of today, over six months into the academic year, there are still eight applications pending. Another seven are still waiting for their visas after they changed their subject. Key to the delay is the stifling red tape: HRD, the nodal ministry, first gets the visa applications from scholars through USEFI; it then sends each scholar's file to the Ministry of External Affairs and the Home Ministry which, in turn, asks the Intelligence Bureau for clearance. Sometimes, even the Ministry concerned is asked to vet the subject. For example, the Environment Ministry may be asked to clear a research proposal on India's energy needs. While HRD officials do not specify who decides on the "suitability" of the proposal, sources said an "IB-negative report" or a Ministry's "concerns" lead to the blacklist. When asked to explain the delay, HRD Secretary R P Agarwal said: "Our Ministry is only a postbox. We have asked the MEA and Home Ministry to speed up clearances." (Tomorrow: Desperate scholars appeal to US Secretary of State) shubhajit.roy at expressindia.com -- Shekhar Krishnan 400, West 119th Street, Apt.10D New York, NY 10027 U.S.A. http://www.mit.edu/~shekhar http://www.heptanesia.net http://www.crit.org.in/members/shekhar From chansoobak at yahoo.com Mon Feb 12 02:05:57 2007 From: chansoobak at yahoo.com (chan park) Date: Sun, 11 Feb 2007 12:35:57 -0800 (PST) Subject: [Commons-Law] Flaws, plagiarism in Mashelkar Report Message-ID: <344971.81623.qm@web37701.mail.mud.yahoo.com> Below is the text from an article in this morning's edition of the Times of India, detailing some troubling revelations regarding the recent Mashelkar Committee report. Our friends at the Alternative Law Forum and CPTech have been kind enough to post the supporting documentation substantiating these claims. Please visit: http://www.altlawforum.org/ADVOCACY_CAMPAIGNS/mashelkar or http://www.cptech.org/ip/c/india/ for more information. The authors would like to thank Rajesh Sagar of Queen Mary Intellectual Property Institute for his invaluable contribution. ....... LEADER ARTICLE: Patent Wrong The Mashelkar Report on Patent Law Issues was released recently and understandably, you missed it. But it will be a pity if the report continues to go unnoticed, because its recommendations if accepted could dramatically increase the price we pay for medicines. Leukemia patients, for instance, could see the cost of their medication increase by 12 times. Technically speaking, the report is funda-mentally flawed. Ethically speaking, it substitutes irresponsible plagiarism for analysis. Patents are limited monopolies granted by national governments and regulated by WTO. In theory, the logic is deceptively straightforward: the discovery of new medicines costs money; companies need an incentive to make this investment; patents provide that protection. In practice, multinational pharmaceutical companies have turned the system on its head, earning them ire from trade economists like Jagdish Bhagwati and Joseph Stiglitz, among others. As their pipeline of truly innovative drugs slows to a trickle, they have focused their energies on patenting minor tweaks to existing drugs in order to extend monopolies whenever possible. In trade circles, this is called 'evergreening' a process that the Mashelkar report asks us not to confuse with "incremental innovation" though it's hard to tell them apart. To you and me, this translates into an infinite monopoly a lifetime of artificially high prices for medicines because only one manufacturer is allowed to supply the market. The furore over affordable medicines intensified in 2005, when India amended its patent law to comply with the TRIPs agreement. Among the problems to be ironed out: Could India limit patents on medicines to those that are truly new and innovative and yet keep in line with TRIPs? Enter Mashelkar. Charged with two questions, one of which is whether it would be TRIPs-compatible to "limit the grant of patent for a pharmaceutical substance to a new chemical entity or to a new medical entity involving one or more inventive steps" his committee concludes that it would not, adding that it is not in "national interest". Consider how it reached these conclusions. The committee, chaired by Mashelkar and comprising four others, was cons-tituted by the commerce ministry in April 2005. Their report was submitted to the ministry in December 2006. For one and a half years of work, the analysis is thin not more than a few pages. It is surprising then that most of the conclusions with respect to new chemical entities (half the exercise of the entire report) have been extracted verbatim from a paper published earlier in 2006 by the IP Institute, a UK-based industry think tank. Its author, Shamnad Basheer, identifies his funding for the paper as coming from Interpat "a Swiss association of major European, Japanese and US research-based pharmaceutical companies". Basheer waxed jubilant about the Mashelkar report on his blog: "A very sensible suggestion to me not least because these conclusions were extracted from a report that I submitted to the committee... It flatters one to know that the extraction happened verbatim, though I would have been happier had the committee cited the source..." So let's get this straight. A committee of five renowned experts takes one and a half years to deliberate over a patent law issue that's crucial to millions of people, and finally produces a report whose conclusions are lifted, without acknowledgement, from a paper funded by the multinational pharmaceutical industry. We couldn't make this up if we tried. Consequently, it's difficult for us to take this report seriously. But we shall try. India's patent law has provisions to prevent 'ever greening'. If a patent is sought on an improvement, that improvement must actually make the medicine more effective. As logical as this may seem, it is not in the interests of multinationals though India could have set patent standards even higher, since TRIPs explicitly leaves this flexibility in sovereign hands. The Mashelkar report's twisted logic conveniently overlooks these flexibilities, even the judgment of the WTO on this matter. Now, the multi-national pharmaceutical lobby is planning to use this same twisted logic to cast doubt on the few protections that are in place in existing law. There are millions who need cheap medicines from India in order to stay alive. Mashelkar's 'national interest', however, is a fantasy that refers to something else: the Indian pharmaceutical industry. Nothing wrong with this, except that the report's purported beneficiaries don't agree with their benefactor. The Indian Pharmaceutical Alliance, representing the domestic pharmaceutical sector, has slammed the conclusions of the Mashelkar report as not in their interests. What's more, it recently intervened in a legal case currently pending in the Madras high court to defend the validity of a provision in the Patents Act that sets stricter patent criteria. Challenging this provision is pharmaceutical giant Novartis. Coincidentally, Novartis is a financial contributor to Interpat. Mashelkar's report is among the first attempts to dent an already compromised patent system. Certainly, more attempts will follow like the issue of pharmaceutical data exclusivity, currently on the US bilateral agenda, and designed to delay the entry of affordable generic medicines. The genius of this report lies in how it exhorts itself as simultaneously for Indian patents, for Indian companies, for the nation and for the rule of international law while actually only serving the interests of a few pharmaceutical giants. It's a remarkable sleight of hand. The question is: Will the Indian government be fooled? Park is with the Lawyers Collective and Prabhala is an IPR researcher. http://timesofindia.indiatimes.com/OPINION/Editorial/LEADER_ARTICLE_Patent_Wrong/articleshow/1593525.cms --------------------------------- Be a PS3 game guru. Get your game face on with the latest PS3 news and previews at Yahoo! Games. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070211/356c9b3d/attachment.html From chansoobak at yahoo.com Mon Feb 12 02:12:09 2007 From: chansoobak at yahoo.com (chan park) Date: Sun, 11 Feb 2007 12:42:09 -0800 (PST) Subject: [Commons-Law] The Hindu on Plagiarism in the Mashelkar Committee Report Message-ID: <20070211204209.19584.qmail@web37704.mail.mud.yahoo.com> First attempt to dent a compromised patent system Chan Park and Achal Prabhala Some key conclusions of the Mashelkar report are borrowed, without acknowledgement, from U.K.-based research funded by Interpat, an association of major multinational pharmaceutical companies. THE `REPORT of the Technical Expert Group on Patent Law Issues,' was released recently. Following the introduction in Parliament of the Patents (Amendment) Bill, 2005 and the debate that took place, the Government of India referred certain contentious issues to an expert committee headed by Dr. R.A. Mashelkar for detailed examination. Authored by technical experts, the 56-page Mashelkar report (available at www.dipp.nic.in) is unlikely to rivet us or elicit swift reactions from the Government. However, it will be a pity if the report continues to go unnoticed, because buried in its arcane language are recommendations, which if accepted, could dramatically increase the price we pay for essential medicines. To cite one instance, leukaemia patients could see the cost of their medication increase 12 times. The story of the Mashelkar Report begins in the growing clamour over patents and the dubious role of multinational pharmaceutical companies in affecting national intellectual property laws. Patents are limited monopolies granted by national governments and, on the insistence of the corporate lobby, regulated by multilateral institutions like the World Trade Organisation. In theory, the logic is deceptively straightforward: the discovery of new medicines costs money; companies need an incentive to make this investment; patents provide that protection. In practice, there is a big problem. Multinational pharmaceutical companies have turned the system on its head. As their pipeline of truly new and innovative drugs slows to a trickle, they have chosen to focus their energies on patenting minor tweaks to existing drugs in order to squeeze out an ever-extending monopoly whenever possible. In trade circles, this is called "evergreening" — a process that the Mashelkar Report asks us not to confuse with "incremental innovation" although, honestly, it is hard to tell them apart. This translates into an infinite monopoly — instead of merely a 20 year one — a lifetime of artificially high prices for essential medicines because only one manufacturer is allowed to supply the market. The furore over affordable medicines in India reached a crescendo in 2005, when India amended its patent law to comply with a WTO agreement known as TRIPS. The amendment left local patients and foreign corporations equally dissatisfied. Among the problems to be ironed ou t was this: could India limit patents on medicines to those that are truly new and innovative and yet keep in line with TRIPS? Enter a technical expert group on patent law issues headed by Dr. Mashelkar, eminent Indian scientist. Charged with two questions, one of which was whether it would be TRIPS-compatible to "limit the grant of patent for a pharmaceutical substance to a new chemical entity or to a new medical entity involving one or more inventive steps" — his committee concluded that it would not, adding that it is not in the "national interest." Analysis thin Consider how it reached these conclusions. The committee, chaired by Dr. Mashelkar and comprising four other experts (Professors Goverdhan Mehta, Asis Datta, N.R. Madhava Menon, and Moolchand Sharma) was constituted by the Ministry of Commerce and Industry in April 2005. Its report was submitted to the Ministry in December 2006. For a year-and-a-half of work, the analysis is thin, spread across a few pages in a report otherwise populated by secondary data and summaries of submissions by outside parties. It is surprising then that many of the conclusions with respect to new chemical entities (and half the exercise of the entire report) have been extracted, almost word for word, from a paper published earlier in 2006 ("Limiting the Patentability of Pharmaceutical Inventions and Micro-organisms: A TRIPS Compatibility Review") by the Intellectual Property Institute, a United Kingdom-based industry-friendly think-tank and submitted to the group by its author, Shamnad Basheer. A doctoral student and an Associate at the Oxford Intellectual Property Research Centre, University of Oxford, he discloses in a footnote in his paper that his research was commissioned by the IPI and financially supported by Interpat — "a Swiss association of major European, Japanese and US research-based pharmaceutical companies committed to the improvement of intellectual property laws around the world." On his blog [spicyipindia.blogspot.com], Mr. Basheer was jubilant about the Mashelkar group's conclusions: "... A very sensible suggestion to me — not least because these conclusions were extracted from a report that I submitted to the Committee. This report was commissioned by the Intellectual Property Institute (IPI), UK, in my capacity as an independent/objective consultant with some modest knowledge of Indian patent law/policy. It flatters one to know that the extraction happened verbatim, though I would have been happier had the Committee cited the source — but perhaps this is too much to ask of a Committee caught in between a political crossfire and a deft stalling exercise." So a committee of five renowned experts takes a year and a half to deliberate over a patent law issue that is crucial to millions of people in India, and finally produces a report whose key conclusions are borrowed, without acknowledgement, from a paper funded through a U.K.-based think-tank by Interpat, an association of major multinational pharmaceutical companies. When India amended its patent law in 2005, it included some unique provisions to ensure that pharmaceutical companies could not "evergreen" with impunity. It stipulated that if a pharmaceutical company wanted a patent for an improvement on an already existing drug, it must show that the improvement actually made the drug more effective. However logical this may seem to us, it is clearly not in the interests of the multinational corporate lobby — although the fact remains that India should have set patent standards even higher, since TRIPS explicitly leaves this flexibility in sovereign hands. The strange logic in the Mashelkar technical group's report overlooks these flexibilities, even the judgment of the WTO on this matter — and, in effect, declares it incompatible with TRIPS for India to set stricter standards for patenting. Now the multinational pharmaceutical lobby is planning to use this same twisted logic to cast doubt even on the few, hard-won protections that are in place in our existing law. There are a large number of people afflicted with cancer and HIV/AIDS who need cheap medicines from India in order to stay alive. The Mashelkar group's report frankly identifies the focus of its fantasies: the Indian pharmaceutical industry. Nothing wrong with this per se, except that the report's purported beneficiaries do not agree with their benefactor. They seem to want stricter patent criteria just as much as us. The Indian Pharmaceutical Alliance, which represents 90 per cent of the R&D expenditure in the domestic pharmaceutical sector, recently intervened to defend the validity of precisely such an existing legal provision that multinational pharmaceutical giant Novartis (and contributor to Interpat) is currently challenging. Furthermore, the Indian Pharmaceutical Alliance has explicitly said that the conclusions of the Mashelkar report are not in their interests. This report is among the first attempts to dent an already compromised patent system. Certainly, more attempts will follow — such as the issue of pharmaceutical data exclusivity designed to delay the entry of affordable generic medicines. (Chan Park is with the Lawyers Collective HIV/AIDS Unit. Achal Prabhala researches intellectual property rights. The authors thank Rajesh Sagar at Queen Mary Intellectual Property Institute.) http://www.hindu.com/2007/02/12/stories/2007021203681100.htm --------------------------------- Everyone is raving about the all-new Yahoo! Mail beta. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070211/c06f78c7/attachment.html From chansoobak at yahoo.com Mon Feb 12 09:04:34 2007 From: chansoobak at yahoo.com (chan park) Date: Sun, 11 Feb 2007 19:34:34 -0800 (PST) Subject: [Commons-Law] Flaws, plagiarism in Mashelkar Report In-Reply-To: <344971.81623.qm@web37701.mail.mud.yahoo.com> Message-ID: <278997.61083.qm@web37701.mail.mud.yahoo.com> correction: the link for the cptech site is: http://www.cptech.org/ip/health/c/india/feb07/ chan park wrote: Below is the text from an article in this morning's edition of the Times of India, detailing some troubling revelations regarding the recent Mashelkar Committee report. Our friends at the Alternative Law Forum and CPTech have been kind enough to post the supporting documentation substantiating these claims. Please visit: http://www.altlawforum.org/ADVOCACY_CAMPAIGNS/mashelkar or http://www.cptech.org/ip/c/india/ for more information. The authors would like to thank Rajesh Sagar of Queen Mary Intellectual Property Institute for his invaluable contribution. ....... LEADER ARTICLE: Patent Wrong The Mashelkar Report on Patent Law Issues was released recently and understandably, you missed it. But it will be a pity if the report continues to go unnoticed, because its recommendations if accepted could dramatically increase the price we pay for medicines. Leukemia patients, for instance, could see the cost of their medication increase by 12 times. Technically speaking, the report is funda-mentally flawed. Ethically speaking, it substitutes irresponsible plagiarism for analysis. Patents are limited monopolies granted by national governments and regulated by WTO. In theory, the logic is deceptively straightforward: the discovery of new medicines costs money; companies need an incentive to make this investment; patents provide that protection. In practice, multinational pharmaceutical companies have turned the system on its head, earning them ire from trade economists like Jagdish Bhagwati and Joseph Stiglitz, among others. As their pipeline of truly innovative drugs slows to a trickle, they have focused their energies on patenting minor tweaks to existing drugs in order to extend monopolies whenever possible. In trade circles, this is called 'evergreening' a process that the Mashelkar report asks us not to confuse with "incremental innovation" though it's hard to tell them apart. To you and me, this translates into an infinite monopoly a lifetime of artificially high prices for medicines because only one manufacturer is allowed to supply the market. The furore over affordable medicines intensified in 2005, when India amended its patent law to comply with the TRIPs agreement. Among the problems to be ironed out: Could India limit patents on medicines to those that are truly new and innovative and yet keep in line with TRIPs? Enter Mashelkar. Charged with two questions, one of which is whether it would be TRIPs-compatible to "limit the grant of patent for a pharmaceutical substance to a new chemical entity or to a new medical entity involving one or more inventive steps" his committee concludes that it would not, adding that it is not in "national interest". Consider how it reached these conclusions. The committee, chaired by Mashelkar and comprising four others, was cons-tituted by the commerce ministry in April 2005. Their report was submitted to the ministry in December 2006. For one and a half years of work, the analysis is thin not more than a few pages. It is surprising then that most of the conclusions with respect to new chemical entities (half the exercise of the entire report) have been extracted verbatim from a paper published earlier in 2006 by the IP Institute, a UK-based industry think tank. Its author, Shamnad Basheer, identifies his funding for the paper as coming from Interpat "a Swiss association of major European, Japanese and US research-based pharmaceutical companies". Basheer waxed jubilant about the Mashelkar report on his blog: "A very sensible suggestion to me not least because these conclusions were extracted from a report that I submitted to the committee... It flatters one to know that the extraction happened verbatim, though I would have been happier had the committee cited the source..." So let's get this straight. A committee of five renowned experts takes one and a half years to deliberate over a patent law issue that's crucial to millions of people, and finally produces a report whose conclusions are lifted, without acknowledgement, from a paper funded by the multinational pharmaceutical industry. We couldn't make this up if we tried. Consequently, it's difficult for us to take this report seriously. But we shall try. India's patent law has provisions to prevent 'ever greening'. If a patent is sought on an improvement, that improvement must actually make the medicine more effective. As logical as this may seem, it is not in the interests of multinationals though India could have set patent standards even higher, since TRIPs explicitly leaves this flexibility in sovereign hands. The Mashelkar report's twisted logic conveniently overlooks these flexibilities, even the judgment of the WTO on this matter. Now, the multi-national pharmaceutical lobby is planning to use this same twisted logic to cast doubt on the few protections that are in place in existing law. There are millions who need cheap medicines from India in order to stay alive. Mashelkar's 'national interest', however, is a fantasy that refers to something else: the Indian pharmaceutical industry. Nothing wrong with this, except that the report's purported beneficiaries don't agree with their benefactor. The Indian Pharmaceutical Alliance, representing the domestic pharmaceutical sector, has slammed the conclusions of the Mashelkar report as not in their interests. What's more, it recently intervened in a legal case currently pending in the Madras high court to defend the validity of a provision in the Patents Act that sets stricter patent criteria. Challenging this provision is pharmaceutical giant Novartis. Coincidentally, Novartis is a financial contributor to Interpat. Mashelkar's report is among the first attempts to dent an already compromised patent system. Certainly, more attempts will follow like the issue of pharmaceutical data exclusivity, currently on the US bilateral agenda, and designed to delay the entry of affordable generic medicines. The genius of this report lies in how it exhorts itself as simultaneously for Indian patents, for Indian companies, for the nation and for the rule of international law while actually only serving the interests of a few pharmaceutical giants. It's a remarkable sleight of hand. The question is: Will the Indian government be fooled? Park is with the Lawyers Collective and Prabhala is an IPR researcher. http://timesofindia.indiatimes.com/OPINION/Editorial/LEADER_ARTICLE_Patent_Wrong/articleshow/1593525.cms --------------------------------- Be a PS3 game guru. Get your game face on with the latest PS3 news and previews at Yahoo! Games._______________________________________________ commons-law mailing list commons-law at sarai.net https://mail.sarai.net/mailman/listinfo/commons-law --------------------------------- Bored stiff? Loosen up... Download and play hundreds of games for free on Yahoo! Games. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070211/7ce7b701/attachment.html From k.ravisrinivas at gmail.com Mon Feb 12 11:27:54 2007 From: k.ravisrinivas at gmail.com (ravi srinivas) Date: Mon, 12 Feb 2007 11:27:54 +0530 Subject: [Commons-Law] Kerala-Copyright Message-ID: See the interesting news story in The Hindu today. http://www.hindu.com/2007/02/12/stories/2007021203710700.htm -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070212/0fb2a63b/attachment.html From chansoobak at yahoo.com Mon Feb 12 16:21:22 2007 From: chansoobak at yahoo.com (chan park) Date: Mon, 12 Feb 2007 02:51:22 -0800 (PST) Subject: [Commons-Law] Cancer Patients Aid Association Responds to Max Foundation Message-ID: <138985.91845.qm@web37702.mail.mud.yahoo.com> Below is the text of the letter sent by the Cancer Patients Aid Association in response to the Max Foundation's open letter in support for Novartis. .......................... Dear Ms Garcia-Gonzalez: Though you have not addressed a letter to us, we understand that you have issued a recent statement on the Max Foundation website imploring Mr. Y. K. Sapru, head of the Cancer Patients Aid Association, “to set politics aside” and to refer all patients “in need of treatment for their disease to the MaxIndia Office.” In response, we are sending this open letter addressed to you. Firstly, we find it astonishing that the Max Foundation, whose stated vision is fostering “global access to leukemia treatment one patient at a time,” would choose to serve as a mouthpiece for its corporate patron rather than for patients’ rights. We are sure that even the Max Foundation would not dispute that patents on medicines lead to exorbitant drug prices. CPAA believes that medicines should be available and accessible to patients at affordable prices. Patients should not have to depend on charitable dole-outs by pharmaceutical companies to access medicines essential to them. More so, when such a single source of supply can never be a guaranteed source of medicines. We believe that one way of ensuring accessibility and affordability is to prevent the patenting of drugs that are not new and do not meet the other patentability standards. Denial of patent protection to frivolous claims allows other pharmaceutical companies to manufacture and market a drug, thus leading to competition and inevitably lower prices. At lower prices, patients are able to purchase drugs themselves or with help of subsidies from other organisations. This is especially true in developing countries. This is borne out by our experience in India where Novartis, after it was granted Exclusive Marketing Rights for Glivec (imatinib mesylate) in 2003, obtained court orders restraining seven of nine Indian companies from marketing generic versions of Glivec. Expectedly, the remaining generic companies were unable to meet the demand for the drug. CPAA, which was purchasing these generic versions and supplying it to patients, found it very difficult to continue to provide treatment to its patients. We strongly believe that the particular form of imatinib mesylate, which Novartis seeks to patent, is not a novel drug that satisfies the patentability standards. This is the reason that our organisation is opposing Novartis in its attempt to obtain a monopoly for Glivec in India through a patent. Our reasoning is only strengthened by the finding of the office of the Patent Controller of India. If the Max Foundation were truly concerned about fostering global access to leukemia treatment, then it would be joining hands with CPAA in ensuring that affordable generic versions of Glivec are made available to all those who need it. We strongly feel that affordability of drugs rather than dependence on charity is a more dignified way for every patient to attain the right to health. In response to your request that CPAA refer all its patients to the Max Foundation for treatment, let us put out certain facts that need to be considered. Some of our patients had approached Novartis India seeking free Glivec. The experience, to say the least, was disappointing. In one instance, one of our registered patients had to wait for a long time and purchased Glivec at a cost of approximately USD 300 per month for about 13–14 months before Novartis India ultimately provided Glivec free. During this time, the family ultimately lost its life savings and went through tremendous mental agony and trauma. Our patients have also informed us that they were subjected to strict scrutiny at Glivec Patient Assistance Programme (GIPAP) before being approved to receive free Glivec. Patients were expected to have gone through the entire progression of treatment from hydroxyurea to interferon and were offered Glivec only if these treatments had failed. Many patients were denied free Glivec at that stage. Such experiences gave rise to serious misgivings in our minds about GIPAP. We sent repeated letters to Mr. Ranjit Shahani, Vice-President and Managing Director, Novartis India, seeking clarifications about the Max Foundation, the eligibility criteria, the ethical standards that would be followed by the Max Foundation and also assurances of free uninterrupted life-long treatment. The letters were sent to Mr. Ranjit Shahani as the Max Foundation operates from the office of Novartis, India in Mumbai and, by all accounts, GIPAP is administered by Novartis. These letters have drawn a blank. We are yet to receive any response from Novartis India answering the questions raised by us. In the meanwhile, numerous accounts of questionable practices by the Max Foundation in administering Novartis’ “free” GIPAP programme in other countries have come to light. These have only confirmed the misgivings of our patients. A New York Times article entitled, “Company’s Vow to Donate Cancer Drug Falls Short.” published in 2003 recounted Novartis’ strategy for starting GIPAP. According to this article, Novartis’ own internal documents revealed that a key component of GIPAP was “Max Patient Advocacy Work,” with the ultimate aim of getting Novartis reimbursed for the “free” medicines it was distributing through the GIPAP. The article related experiences from South Korea, Hong Kong and New Zealand, where Novartis had allegedly used patients already on Glivec to pressurise governments to pay for the drug. Furthermore, we are sure you are aware that a criminal complaint was recently filed in Argentina accusing both Novartis and the Max Foundation of “abusive, unlawful practices,” and “acting in connivance through different deceptive practices” in administering the GIPAP programme. According to the criminal complaint, the administration of the GIPAP programme in Argentina was nothing more than a ruse to use leukemia patients as pawns in getting health insurance companies to include imatinib mesylate in its plans. A news article entitled, “The Worst Kind of Deceit: Fraud by Novartis and the Max Foundation Targets Patients,” originally published in Spanish by the magazine El Medico, explained: “The Program kept a 3-month reserve supply of Glivec for the patients. When the dose for the first phase of the treatment were delivered to the patients, including a 30 day supply to cover their immediate initial needs, the patients or their relatives were instructed to retain an attorney to start legal proceedings against the health care institutions which did not include Glivec in their formularies. After that, the provision of Glivec by the [Max] Foundation through their GIPAP Program was stopped. The investment by Novartis consisted of a single treatment [i.e. for one month] and then the company recovered its so-called donation by forcing the health care institutions to buy the product.” Given the troubling accounts of our own patients who have been involved in GIPAP, as well as the disturbing accounts from abroad, our patients do suffer from misgivings about your Foundation and therefore are hesitant in approaching you when there are possible alternate sources available. We also draw your notice to the fact that Novartis is not only seeking a patent for Glivec in India but has also challenged Section 3(d) of the Indian Patents Act, 1970—a provision introduced by Indian Parliament to counter the infamous practice of evergreening by pharmaceutical companies. This challenge to Section 3(d), if successful, would also affect the affordability and accessibility of medicines for other diseases, including HIV/AIDS, TB and malaria. As a patients’ group, we feel that it is our moral duty to oppose any attempt to restrict the availability, affordability and accessibility of medicines for all who need them. In view of the fact that the Max Foundation supplies only medicines to treat leukemia, you should have no hesitation in urging Novartis to withdraw its challenge to Section 3(d), which would impact access to affordable medicines for other diseases. On the issue of patents, we call upon you to reconsider your position and support patients in their struggle to access medicines at affordable prices. Surely, the absence of a patent protection for Glivec in India or the Indian patent law does not hinder Novartis from continuing to provide Glivec free to patients through GIPAP. Our deeply considered view is that patients are entitled to affordable medicines and treatment as a matter of right. Undoubtedly, charity, aid and donation do assist some patients in accessing medicines. However, we strongly deplore the use of such charitable actions to justify actions of corporate sponsors that would take away a patient’s right to affordable medicines and treatment. Sincerely, Y.K. Sapru Chairman, Cancer Patients Aid Association --------------------------------- The fish are biting. Get more visitors on your site using Yahoo! Search Marketing. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070212/ad10936b/attachment.html From hbs.law at gmail.com Tue Feb 13 10:31:21 2007 From: hbs.law at gmail.com (Hasit seth) Date: Tue, 13 Feb 2007 10:31:21 +0530 Subject: [Commons-Law] Novartis Makes Diabetic Genes Data Public Domain Message-ID: <8b60429e0702122101y6bdf3a67sbce7e734c092c4c9@mail.gmail.com> Hi, Some news from the "dark" side of the world :-) Hasit ------------------------------------------------- >From Forbes.com via Slashdot Pharmaceuticals *Biology Goes Open Source* Matthew Herper and Robert Langreth 02.12.07, 9:20 AM ET Some of the world's biggest drug companies are finding that their genetic research is worth more to them if they give it away. Novartis, the Basel, Switzerland, drug giant, has helped uncover which of the 20,000 genes identified by the Human Genome Project are likely to be associated with diabetes. But rather than hoard this information, as drug firms have traditionally done, it is making it available for free on the World Wide Web. "It will take the entire world to interpret these data," says Novartis research head Mark Fishman. "We figure we will benefit more by having a lot of companies look at these data than by holding it secret." Researchers at Novartis partnered with Switzerland's Lund University and the Cambridge, Mass.-based Broad Institute, a joint venture between the Massachusetts Institute of Technology and Harvard that is funded by billionaire Eli Broad. This international team compared the genomes of 1,500 people who had diabetes with 1,500 who were disease-free. All the patients were from Sweden. To do this quickly, the scientists used gene chips from biotech Affymetrix that allowed them to track 500,000 places in the genetic code where past experience has shown that there are likely to be differences. The result: a library of genetic differences that are likely to increase a patient's risk of diabetes. Researchers don't know what most of these errant genes do, or exactly why diabetics are more likely to have these genes. That is exactly the puzzle a world's worth of scientists are needed to unravel. But Fishman says 12 genetic differences turned up by the work are promising enough to pursue further. More leads are expected to emerge. There was a time when drug giants tried to keep leads like that to themselves in an attempt to gain an advantage over their competitors. They paid lots of money for the privilege, too. In 1993, GlaxoSmithKline tied up with Human Genome Sciences to develop drugs based on genome data. Five years later, Bayer spent $465 million to get access to the genetic library being assembled by Millennium Pharmaceuticals. Neither collaboration has led to a marketed drug. Harvard geneticist David Altshuler, who worked with Novartis on the diabetes study, says that genetic research is only now progressing to the point where large numbers of human genes can be linked to common diseases like heart disease, diabetes or depression. Also, too much of the previous research has been done on single cells or in other species, such as mice or rats. "How can we say we understand these diseases when we can't say why people pass them on to their children?" asks Altshuler. "That's why it's so hard to develop drugs." But another requirement of making the leap from genes to drugs is making the research public--a step that will make it difficult for researchers elsewhere to patent any of this raw genetic information. Novartis isn't the only drug firm embracing this "give it away for free" mentality. Pfizer has promised to make available for free a swath of genetic information emerging from a three-year collaboration with the National Institutes of Health. For its part, the NIH has suggested making this kind of free access the standard operating procedure for all of its genetic research. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070213/270c889c/attachment.html From k.ravisrinivas at gmail.com Tue Feb 13 16:51:16 2007 From: k.ravisrinivas at gmail.com (ravi srinivas) Date: Tue, 13 Feb 2007 16:51:16 +0530 Subject: [Commons-Law] Novartis Makes Diabetic Genes Data Public Domain Message-ID: Interesting news. Will they form a body similar to SNP consortium is yet to be known.But the very act of putting the data in public domain is a good news. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070213/373c0396/attachment.html From chansoobak at yahoo.com Thu Feb 15 14:28:40 2007 From: chansoobak at yahoo.com (chan park) Date: Thu, 15 Feb 2007 00:58:40 -0800 (PST) Subject: [Commons-Law] CPAA responds to Novartis' Open Letter Message-ID: <20070215085840.41589.qmail@web37708.mail.mud.yahoo.com> Dear friends, The Cancer Patients Aid Association has asked us to distribute the letter below, which responds to Novartis' open letter from last week. Given that Novartis has asked organizations to post its letter on your websites, the CPAA asks that you post this response as well, to clarify numerous factual and legal inaccuracies contained in the Novartis letter. Thanks ------------------------ Last week, Novartis issued an open letter detailing its reasons for pursing the legal action challenging a key public health safeguard in Indian patent law, and why Novartis thinks “improving” patent law will benefit patients and society. Given the numerous factual and legal inaccuracies contained in Novartis’ letter, we, the Cancer Patients Aid Association, felt compelled to issue this response to set matters straight. As it always has been and always will be, our utmost concern is the health and welfare of the thousands of patients who suffer from chronic myeloid leukaemia and other forms of cancer in India and throughout the world. It is our bedrock, non-negotiable position that no person should ever be denied access to a lifesaving medicine simply because he or she cannot afford to pay for it. Although patents are by no means the only barrier to access to lifesaving medicines, it is undeniable that the monopolies created under the patent system are a significant part of this problem. The attempt by Novartis, like so many other pharmaceutical companies, to distract attention away from this problem by pointing out problems with “infrastructure and distribution networks” is utterly disingenuous. Starting from our bedrock principle, we, as caregivers for those stricken with CML and other types of cancer, could not in good conscience sit idly by when Novartis in 2003 obtained exclusive marketing rights (EMR) over imatinib mesylate and effectively prevented seven of nine Indian generic manufacturers from marketing their versions of the product that were priced some 8-12 times lower than Novartis’ exorbitant price of USD 2600 per person per month. Contrary to Novartis’ claims that it has “secured access to Glivec both in India and globally,” many of our patients faced severe hardships in obtaining free Glivec through Novartis’ GIPAP programme. These difficulties and other grave concerns about the GIPAP programme are described in detail in the CPAA’s separate letter to the Max Foundation. As a result, the CPAA had no choice but to take action. In addition to challenging the grant of the EMR all the way up to the Supreme Court of India, we filed an opposition against Novartis’ patent application for imatinib mesylate, claiming that the product was not patentable under Indian law. The Patent Controller agreed with us, and denied Novartis a patent on several grounds, only one of which is the provision that Novartis is currently challenging in court. We firmly believe, as does the Patent Controller of India, that the patent application for imatinib mesylate fails to meet even the basic patentability criteria, even without resort to the legal provision, called Section 3 (d), that Novartis is challenging. Nevertheless, it is hard to understate the importance of 3 (d). Simply put, the provision states that a drug company will not get a patent for making a modification to an already existing drug unless that modification actually makes the drug more effective. However reasonable this may seem to us, it is anathema to the multinational pharmaceutical companies, because it prevents them from being granted patents that serve no other purpose but to extend their monopolies beyond the 20 years already granted to them. Such patenting practices have nothing to do with creating incentives for research and development or protecting genuine innovation. Rather, it has everything to do with protecting market share and keeping drug prices artificially high and out of reach for the majority of the world’s poor. It was shocking, then, to read Novartis claim that its actions in India will not hinder the supply of medicines to the poor. The direct consequence of Novartis’ action of challenging 3 (d), if successful, will be to remove a key public health safeguard designed to ensure that the grant of frivolous patents would not prevent Indian generic companies from continuing to supply low-cost essential medicines to the domestic population and throughout the developing world. The impact of Novartis’ actions will stretch far beyond the realm of cancer and Gleevec, and negatively impact the accessibility and affordability of all essential medicines, including Anti-Retrovirals. When India amended its patent laws in 2005 to come into compliance with the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property (TRIPS), it was required to balance the obligation under the TRIPS agreement against the constitutional and international human rights obligation to ensure the right of citizens to the highest attainable standard of health. In interpreting its obligations under the TRIPS agreement, the Doha Declaration instructed India that TRIPS “should be interpreted and implemented in a manner supportive of the WTO Members’ right to protect health, and in particular, to promote access to medicines for all.” In enacting the legal provision at issue, the Indian Parliament was mindful of the competing interests between patent protection and public health, and utilised the ample flexibilities inherent in the TRIPS agreement to do so. Novartis’ attempt to cloud the issue by claiming that the recent Mashelkar Committee report “proves” the invalidity of the provision is simply false and misleading. First and foremost, the question presented before the Mashelkar Committee was a separate issue, altogether from the question of whether the existing safeguards in Indian law are TRIPS-compatible. The Committee was not asked, and did not offer any opinion whatsoever on the validity of any of the existing provisions in Indian patent law. Secondly, recent facts that have come to light that cast doubts on the credibility of the Mashelkar Committee report. Significant portions of the report have been plagiarised verbatim from a pro-industry submission funded by Interpat, a coalition of multinational pharmaceutical companies of which Novartis is a member, and the Indian chapter of which Novartis India’s Managing Director, Ranjit Shahani, is Chairman. These facts present some very serious and legitimate questions in our minds about the objectivity of the Mashelkar Committee report, and of Novartis’ involvement, if any, in the timing and content of the report. Novartis claims that it is pursuing a “patient-focused” strategy in India. We would ask how, exactly, does seeking to invalidate a legal provision that protects the supply of affordable drugs to millions qualify as “patient-focused”? Novartis claims that no other Indian makers of generic manufacturers offer access programmes for generic imatinib mesylate. We would ask why, then, does its own GIPAP website explicitly recognise the existence of Indian generic supplier Natco’s access programme? Novartis claims that loose patentability criteria will be in the best interests of the Indian companies. We would ask why, then, has the Indian Pharmaceutical Alliance, representing 90% of the research and development expenditure in India, intervened to defend the validity of the provision that Novartis is challenging? Novartis claims that it supports TRIPS flexibilities. We would ask why, then, does it persist in challenging a perfectly valid exercise of those flexibilities? Finally, Novartis claims that the denial of patents on medicines “will not improve patient access to medicines.” We would ask how, then, did India’s pharmaceutical companies become the largest supplier of affordable drugs to the world’s poor during a time when it did not recognise patents on medicines? Novartis claims to seek “an open dialogue with all groups, based on mutual trust and tolerance.” So does the CPAA. But we strongly feel that “mutual trust and tolerance” is not engendered through public statements by its CEO that accuses its opponent of being a puppet of the generic companies, nor through a public relations campaign that spreads verifiably false and misleading information about the facts and the law in an attempt to restore its crumbling public image. The only real way for Novartis to begin restoring the general public’s trust and tolerance would be for it to drop the case in India. We thank everyone around the world for their support in our fight against Novartis. Sincerely, Y.K. Sapru Cancer Patients Aid Association --------------------------------- Looking for earth-friendly autos? Browse Top Cars by "Green Rating" at Yahoo! Autos' Green Center. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070215/4f2f854f/attachment.html From chansoobak at yahoo.com Thu Feb 15 16:03:51 2007 From: chansoobak at yahoo.com (chan park) Date: Thu, 15 Feb 2007 02:33:51 -0800 (PST) Subject: [Commons-Law] Novartis Hearing update, 15.02.07 Message-ID: <964776.12367.qm@web37711.mail.mud.yahoo.com> Today, the Madras High Court heard the Novartis matter on certain preliminary issues. Novartis India and Novartis AG had filed applications to amend their petitions to ask for a declaration from the Court that section 3(d) of the Indian Patent Act was not in compliance with TRIPS and that it violates Article 14 of the Indian Constitution, which prohibits discriminatory and arbitrary state action. The CPAA and the generic companies had opposed the applications to amend. They did so on the ground that Novartis had not specifically claimed a violation of Article 14 in the original petitions. Also, the CPAA and the generic companies claimed that as far as TRIPS non-compliance was concerned, a domestic court did not have the jurisdiction to decide the matter. The Court ultimately allowed the amendment, but ruled that all of the objections mentioned above would be noted and heard during the hearing. The parties were also given the opportunity to file affidavits on Novartis’ amended petition challenging 3(d) on the ground of Article 14. As the members of the Madras Advocates Association had abstained from work today as a result of an altercation between a senior lawyer and a senior police officer, the hearing was adjourned until tomorrow. To be decided tomorrow is another preliminary issue of whether Novartis may convert its challenge to the Patent Controller’s order from a writ petition to an appeal. This determination will have a bearing on the scope of review allowed by the High Court. While a review under a writ petition is limited to clear mistakes in the law, the review available under an “appeal” is broader, and the Court may look into mistakes in both fact and law. After this issue is decided, the arguments regarding Novartis’ challenge to section 3(d) will begin. Stay tuned. >From Chennai, The Lawyers Colllective HIV/AIDS Unit Team Anand Chan Julie Prafulla --------------------------------- Get your own web address. Have a HUGE year through Yahoo! Small Business. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070215/4a323bc2/attachment.html From iram at sarai.net Fri Feb 16 15:49:03 2007 From: iram at sarai.net (Iram Ghufran) Date: Fri, 16 Feb 2007 15:49:03 +0530 Subject: [Commons-Law] The Poer and the Glory: Giorgio Agamben Message-ID: <45D58517.2090702@sarai.net> Dear all, video of Prof Giorgio Agamben's lecture - The Power and the Glory - is available for download at http://www.v2v.cc/v2v/The_Power_and_the_Glory It is 11th B.N. Ganguli Memorial Lecture, delivered at the Centre for the Study of Developing Societies, Delhi on Thursday, 11th of January, 2007. Prof Giorgio Agamben, renowned philosopher, engages in particular with language and social conflicts. He teaches at the Universita IUAV di Venezia, College International de Philosophie, Paris. Best Iram From chansoobak at yahoo.com Fri Feb 16 19:12:25 2007 From: chansoobak at yahoo.com (chan park) Date: Fri, 16 Feb 2007 05:42:25 -0800 (PST) Subject: [Commons-Law] Novartis Update, 16.02.07 Message-ID: <333357.61227.qm@web37714.mail.mud.yahoo.com> The Madras High Court, before Justices Mr Balasubramaniam, and Ms Prabha Sridevan, continued hearing the Novartis matter today. Mr Soli Sarabjee, former Attorney General of India, appeared for Novartis AG in the petition challenging the constitutionality of section 3(d). Mr. Sarabjee began his argument by referring to Articles 1 and 27 of the TRIPS agreement, and pointed out that there was a binding obligation on India to introduce a law in accordance with Art 27 of the TRIPS agreement, which requires member states to provide patent protection for all inventions, provided that they are new, inventive and capable of industrial application. (See bottom of e-mail for the text of the written submission he presented to the Court in connection with his argument) He then traced the legislative history of the 2005 amendment to the Indian Patents Act, and referred to the Statement of Objects and Reasons (SoR) of the amendment, and emphasised that the SoR explicitly acknowledged the obligation that India had to introduce a TRIPS compliant law. From this, he argued that India had a conscious obligation to introduce a TRIPS compliant law. He then pointed out that in prior versions of Section 3(d) before the passing of the Patent Amendment Act, the clause “a new form of a known substance which does not result in the enhancement of the known efficacy of that substance” was not in the original ordinance. He contended that that this portion, as well as the corresponding explanation, were unique to India and did not find a place in any patent law in the world. This, in conjunction with the fact the provision was introduced by Parliament at the last minute indicated that it was in violation of Article 27 of TRIPS and irrational. It was his contention that section 3(d) restricted patents to new chemical entities. In this context, he referred to the Mashelkar Committee report, which concluded that it would be a violation of TRIPS if the patenting of pharmaceutical products were restricted to new chemical entities. He also argued that implicitly, the Mashelkar Committee actually held that Section 3(d) was also not in compliance with the TRIPS agreement. At this stage, J. Sridevan interjected, stating that the Mashelkar Committee did not say anything relevant on the matter, as the term “new chemical entity” occurs nowhere in the Patents Act. She also pointed out that it appeared that Section 3(d) merely explained the term “new” in article 27 of TRIPS and allows patents to be granted to new forms if they are more efficacious. Mr. Sarabjee replied that to the extent the explanation to Section 3(d) deemed derivatives of known substances to be the same substance, it prevented the grant of patents to substances that otherwise meet the requirements of novelty, inventive step and industrial application. Mr. Sargabjee then argued that “efficacy” was not a term used in patent laws of other countries, that it was not defined and that it was vague. He argued that the term “significant” was also vague, and no standard for determining significance was set out in the law. He claimed that both these expressions, “significantly” and “efficacy” conferred upon on the patent controller unguided power, rendering it arbitrary. Mr. Shanti Bhushan, also appearing for Novartis, argued that the Court did have jurisdiction to declare a provision of a statute as incompatible with an international treaty or an agreement, relying on a U.K. judgment from the House of Lords in Equal Opportunities Commission v. Secretary of State. Mr. Bhushan also argued that the issue at stake was whether innovative research should be encouraged or inhibited. He seriously contended that if the logic of Section 3(d) was accepted, then nothing would be patentable because everything ultimately was a combination of known elements such as carbon, hydrogen, oxygen and nitrogen. After Novartis finished their arguments with respect to Section 3(d), the parties moved on to the issue of whether it was appropriate to convert Novartis’ writ petition challenging the Patent Examiner’s decision into an appeal. Mr. Bhushan assured the Court that Novartis would not be adding any new grounds or introducing new facts if the conversion was allowed. The respondents opposed the application by Novartis AG to convert their writ petition challenging the patent controller’s order into an appeal. The Court then adjourned until Thursday, 22 February. Beginning then, the issue of conversion will be fully argued and decided, and the respondents will be given the opportunity to respond the Novartis’ arguments regarding Section 3(d). We will resume our updates when the hearing resumes. From Chennai, Lawyers Collective HIV/AIDS Unit Team Anand Chan Julie Prafulla Below is the text from the written submission submitted by Mr. Sarabjee during his argument: Propositions of Mr.Soli Sarabjee, Sr. Advocate, on behalf of the Petitioner 1) Section 3(d) as amended is in clear breach of Article 27 of TRIPS 2) Legislation in breach of India s accepted international obligations and which would invite retaliatory action under the WTO and lead to erosion of India credibility in the international field suffers from the vice of irrationality and arbitrariness and is violative of art. 14. 3) Alternatively, section 3 (d) is violative of art. 14 because the concept of “enhancement of the known efficacy” is totally vague and undefined. 4) The explanation insofar as it creates a fiction whereby derivatives of known substances are deemed or considered to be the same substance even though factually they may constitute a different substance, is absolutely irrational and arbitrary. 5) The expression “unless they differ significantly in properties in regard to efficacy” is vague and nebulous. The explanation does not afford any guidance as to what constitutes significant difference in properties. No guidelines are statutorily laid down for the exercise of power of rejection of a patent application on the ground mentioned in sec 3 (d). --------------------------------- Access over 1 million songs - Yahoo! Music Unlimited. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070216/06a0f101/attachment.html From chansoobak at yahoo.com Sat Feb 17 12:45:35 2007 From: chansoobak at yahoo.com (chan park) Date: Fri, 16 Feb 2007 23:15:35 -0800 (PST) Subject: [Commons-Law] Novartis story in Frontline Magazine Message-ID: <404517.36212.qm@web37702.mail.mud.yahoo.com> http://www.hinduonnet.com/fline/stories/20070223003713100.htm Patent trouble SARAH HIDDLESTON The Madras High Court is set to resume hearing arguments in the case on Novartis' patent application for its cancer drug Gleevec. ON January 29, the Madras High Court began hearing arguments on a series of writ petitions filed by the Swiss pharmaceutical multinational Novartis AG and its Indian subsidiary Novartis India against the Indian government, the Cancer Patients Aid Association (CPAA) and four Indian generic drug manufacturers: Natco, Cipla, Hetero and Ranbaxy. The petitions plead against the rejection by the Chennai Patent Office last year of a patent application for Novartis' anti-cancer drug Gleevec and submit that Section 3(d) of the Indian patents Act, Patents Act, 1970, which provided one of several grounds for rejecting the patent application, is invalid, illegal and unconstitutional. In March 2005, India amended its Patents Act to comply with the 1995 World Trade Organisation's (WTO) Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement, which requires 20-year patent protection for innovative medicines while allowing for public health safeguards. This included Section 3(d), a provision that is unique to Indian law and was included to protect public health. It states that patents would not be given for new forms, uses or minor modifications of existing drugs unless they differ significantly with regard to efficacy. Between the signing of the 1995 TRIPS agreement and the amendment of the Act, patent applications were collected in a mailbox, to be reviewed once the agreement came into force. One of these was the 1997 application filed by Novartis AG in the Chennai Patent Office for imatinib mesylate, brand-named Gleevec, on the grounds that the beta crystalline salt form (mesylate) of the base imatinib was a new invention. Rights for exclusive access to the Indian market were obtained in 2003, and on that basis manufacturers of generic drugs were forced to withdraw their product from the market. In 2005, the CPAA and the generic drug companies filed an opposition to the application before the patent was granted. Under Section 3(d) of the Act, they argued, the drug was not patentable because it was actually a salt form of an already known substance and did not display any enhanced efficacy. This substance was the active molecule imatinib, patented in 1993 before the 1995 TRIPS agreement. In January 2006, the Assistant Controller Patents and Designs (Chennai) held that since imatinib existed naturally in a stable salt form, the 1993 patent covered both the free base imatinib and its salt form mesylate. The ruling was that Novartis failed to prove increased efficacy and, therefore, Gleevec was not patentable under Section 3(d) of the Patents Act. On the basis of this ruling, generic drug companies resumed manufacturing the drug and selling it in the world market at a tenth of the price that Novartis was charging. In May 2006, Novartis filed the affidavits for the case that is currently being heard. In the challenge to the Assistant Controller's order, Novartis argued that he did not give sufficient weight to the fact that patents for imatinib mesylate had been granted in 35 other countries, that the case law placed before him was ignored and that an in-house laboratory test performed by Novartis scientists on rats showed the 30 per cent increase in efficacy necessary for patents under Section 3(d). The CPAA and the generic drug companies responded that each country was free to determine its own criteria for patentability and that the findings of patent offices in one country had no relevance in another as stated under Article 4 bis of the WTO Paris Convention. They also argued that Novartis failed to show that imatinib mesylate differed significantly from other forms of imatinib and questioned the independence of the investigation undertaken to show 30 per cent efficacy. They submitted that Novartis provided only 10 per cent of the research funding necessary to develop the drug. Dr. Brian Drucker of Oregon Health and Science University, whose laboratory identified the compound, received 50 per cent of his funding from the National Cancer Institute (of the U.S. government), 30 per cent from the Leukemia and Lymphoma Society (a U.S. non-governmental organisation), and 10 per cent from Oregon Health and Science Institute. In the challenge to Section 3(d), Novartis argued that this aspect of the Indian patent law is arbitrary and illogical because it is not in compliance with the TRIPS agreement, particularly Article 27. It argued that this would undermine incentives for pharmaceutical innovation and that Section 3(d) was introduced in the Indian Parliament with the intent to disqualify Gleevec. Although Novartis recognised that TRIPS was a non-enforceable agreement and the Indian government was therefore free to repudiate its obligations under TRIPS, Novartis claimed that it was invalid and unconstitutional for Parliament to otherwise comply to all but one provision. It further claimed that the term efficacy was vague and discriminatory. It placed on record that it had a charitable programme Glivec International Patient Assistance Program (GIPAP), which disseminates medicines free of charge to those who were unable to afford them. The CPAA and generic drug companies responded that it was not open to private companies or Indian courts to decide whether Indian patent laws were compliant with TRIPS. They contended that it did not violate the Indian Constitution and was passed by a competent legislature (the only two grounds for amending a statute in Indian law). They also argued that Section 3(d) was not vague and did comply with TRIPS. With regard to Article 27 they countered that Section 3d was valid because it did not discriminate as to the field of technology. They further made the case that 3(d) was a bona fide Act introduced to combat the problem of "evergreening". This, they argued, was an abuse of the spirit of TRIPS, which sought to balance public health and intellectual property rights. Evergreening is a technique companies use to stagger patent applications so as to extend market monopoly and prevent the entry of generic drug competitors. This keeps medicines out of reach for the vast majority of Indians. Such a result would be in contravention of Article 21 of the Constitution and other international conventions on the right to health. [PHOTO] ADNAN ABIDI/REUTERS Transgendered people suffering from HIV/AIDS protest against Novartis, in New Delhi on January 29. Although Novartis initially alleged violation of Article 19(1)(g) of the Constitution (the right to carry on any business), that claim was dropped in the January 29 hearing. Instead, it alleged that Section 3(d) violated Article 14 of the Constitution, which promotes equality before the law and prohibits arbitrary statute. Novartis wanted to place on record the recently released report of the Mashelkar Technical Expert Group on Patent Issues. The High Court case was adjourned for counsel for the Government of India to submit a response. It will be resumed on February 15, 16 and 19. Reactions to the case have not been indifferent. This is not surprising as there is much at stake on several counts. Novartis will want to make the most of its blockbuster drug and may file for more patents under the same criteria. Other multinational companies are waiting in the wings for their cue. According to V. Rangaswamy, Assistant Controller Patents and Designs, who spoke to Frontline, patent applications for some 9,000 substances are in the 1995-2005 mailbox. The Communist Party of India (Marxist), public health organisations and patients' groups are concerned that the sale of life-saving drugs, not only for a particular type of leukaemia but for a range of diseases, including tuberculosis, HIV/AIDS, asthma and diabetes, will be restricted. They fear that not only will the case set a precedent for the approval of drugs with these sorts of modifications but also a ruling that overturns Section 3(d) will mean that patents will be granted more widely. Since India produces many generic medicines at affordable prices, this will restrict access not just to the man on the street on India but to many patients across the developing world. They also fear that a precedent could be set for multinational companies to change drug laws in other countries. As Y.K. Sapru, Chairman of the CPAA told Frontline, "this is a global issue that will affect millions of people." The Indian Network for People with HIV/AIDS (INP+), the People's Health Movement, the Centre for Trade and Development (CENTAD) and Medicines Sans Frontiers (MSF) called on the company to cease immediately its legal action. Nearly a quarter of a million people from over 150 countries have signed a petition expressing their concern about the negative impact the company's actions could have on the developing world. The CPI(M) issued a statement calling on the government to defend the Patents Act and use international platforms to "mobilise opinion against the greed for profit". Caught in the glare of publicity, Novartis put out a public statement addressing three points. These bring out the relevance to the case of long-standing issues surrounding liberal patentability. First, Novartis sees India as a global competitor. Therefore, "[p]rotecting innovation is the foundation for massive R&D investments made by the pharmaceuticals industry that are vital to medical progress. Companies can continue to bring improvements and innovations to patients and societies only with effective patent laws. For a research-based company such as Novartis, patents are not negotiable." According to Leena Menghaney, campaign manager, MSF, Delhi, excessive patenting creates a patent thicket and can prevent one company from investing in research and development in an area that another company's patent may improperly cover. Also, allowing patents on minor modifications such as these acts as a disincentive for companies to address new medical challenges; it is more cost effective for them to work on minor changes for patents on the same drug. She cites two studies, one by the MSF's Drugs for Neglected Diseases Initiative and one by the World Health Organisation's (WHO) Commission on Intellectual Property, Innovation and Public Health, whose report came out in April 2006, that found that since private pharmaceutical companies are driven by market potential, people in developing countries do not have the purchasing power to attract research and development for medicines for the diseases that most affect them. Instead, these companies are driven by the purchasing power for drugs for cosmetic changes and lifestyle diseases, such as anti-wrinkle creams, anti-obesity drugs and so on. Second, Novartis has secured access to Gleevec in India and globally: "In 2006, our access-to-medicines programme reached 33.6 million patients. Novartis spent $ 755 million last year alone. ... The Glivec International Patient Assistance Program (GIPAP) is one of the most far-reaching patient assistance programmes ever implemented on a global scale. In India, 99 per cent of patients who receive Gleevec receive it free from Novartis [6,600 people]." However, a response by Professor Brook K. Baker of the Northeastern University, School of Law, Program on Human Rights and the Global Economy, states that: "Corporate donations are not a sustainable solution: (1) they are frequently hard to access, (2) they are revocable, (3) they are not offered across the broad spectrum of patented medicines that poor people need, and (4) they are designed primarily to forestall generic competition by removing market incentives." Third, Novartis states that its actions in India do not hinder the supply of medicines to the poor: "Our case does not challenge provisions that provide for access under international trade agreements, specifically the TRIPS and the Doha Declaration. These flexibilities allow production for export under compulsory licences that have been issued for public health reasons. They have been put in place to allow poor countries to safeguard access to medicines that do not have sufficient local production capacity." But, according to D.G. Shah, secretary-general of the Indian Pharmaceutical Alliance, who spoke to Frontline from Spain, the functionality of such a provision relies on there being a cheaper alternative to buy. He cites the example of the compulsory licence the Thai government granted in November 2006 for import and production of efavirenz, a second-line HIV/AIDS drug, to deal with stock outs and high prices charged by the patent owner. Without cheaper alternatives from India, there would be nowhere else to go to buy medicines. According to a study conducted by MSF, 67 per cent of the medicines produced in India are exported to developing countries; approximately 50 per cent of the medicines distributed by the United Nations Children's Fund in developing countries come from India; in Zimbabwe, 75 per cent of the tenders for medicines for all public sector health facilities come from Indian manufacturers; the state procurement agency of Lesotho, the National Drug Supply Organisation, states that it buys nearly 95 per cent of all antiretrovirals (ARVs) from India. Even countries that manufacture their own medicines rely on imports of active pharmaceutical ingredients from India. Dr. Yusuf Hamied, chairman and managing director, Cipla Ltd., points out that India and many developing countries are in a permanent state of crisis. And this requires a permanent compulsory licensing system. "India," he told Frontline, "cannot afford a monopoly. Any drug required in India should be allowed to be manufactured on payment of a 4 per cent royalty. I have never grudged the inventor a reward, but you cannot have a monopoly in a country like India." He points to the case of ARV treatment for HIV/AIDS. "They [multinational drug companies] were charging $12,000 a year until Cipla came along and started making them for a dollar a day." The well-fed debate about intellectual property rights versus rights to public health has found fresh pastures to graze on. As arguments intensify, it remains to be seen to what extent the government will stand by the amendments it made two years ago to the Patents Act. --------------------------------- We won't tell. Get more on shows you hate to love (and love to hate): Yahoo! TV's Guilty Pleasures list. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070216/ef9afd26/attachment.html From chansoobak at yahoo.com Sat Feb 17 12:47:11 2007 From: chansoobak at yahoo.com (chan park) Date: Fri, 16 Feb 2007 23:17:11 -0800 (PST) Subject: [Commons-Law] More from Frontline Message-ID: <248718.64489.qm@web37710.mail.mud.yahoo.com> http://www.hinduonnet.com/fline/stories/20070223003813300.htm Uncertain future AMRITA THAKKAR, 16, is a student from a poor family living in a far off suburb of Mumbai. She has chronic myloid leukaemia, which is a type of blood cancer. In order to survive , she needs a specific drug that locks the cell mechanism responsible for creating the cancer. Her mother worked overtime to sustain the family and cover Amrita's treatment expenses. Her 17-year-old brother took up a part-time job while in college to help. But after a couple of months of treatment, they could not afford the drug. After Amrita had gone without treatment for six months, her mother approached the Cancer Patients Aid Association (CPAA), which funded her treatment for five years. The CPAA is a non-governmental organisation that provides for the total management of cancer patients. It could afford to treat her only because it bought cheap drugs made by the generic drug industry. Treatment costs were roughly Rs.10,000 a month. When many generic drug companies were forced to withdraw their drugs from the market in November 2003, the regular supply of this medicine dried up. Novartis was given exclusive rights to market and sell Gleevec in India. At Rs.1,25,000 a month, it was not an option for Amrita. The CPAA had to suspend support to her and 300 other patients being treated with generic drugs. Many other cancer organisations have done the same thing. Now, her fate and that of tens of thousands of others hang on the ruling of a Bench of the Madras High Court. --------------------------------- --------------------------------- No need to miss a message. Get email on-the-go with Yahoo! Mail for Mobile. Get started. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070216/58d1653d/attachment.html From gopa.kumar at centad.org Sat Feb 17 16:06:40 2007 From: gopa.kumar at centad.org (gopa.kumar at centad.org) Date: Sat, 17 Feb 2007 05:36:40 -0500 Subject: [Commons-Law] Action Alert , Novartis Case Message-ID: <380-220072617103640984@M2W026.mail2web.com> Please fax, email or call Law Sec or MInister of law and demand that Solicetor general of india should appear in Novartis case Dear all, On 15th & 16th February, the Madras High Court heard the Novartis challenge of the Indian Patent law. The case has started with lawyers from Novartis, Cancer Patient Aid Association, lawyers representing Indian generic companies and a local government lawyer literally crowding the courtroom. Novartis will now have an opportunity to argue before the Madras high court in Chennai that section 3(d) of the Indian Patent Act is not in compliance with TRIPS and that it violates Article 14 of the Indian Constitution. Section 3 (d) is the provision that protects against extension of patent monopolies on essential medicines. It is now clear that Novartis is not withdrawing the case at this stage. the pressure to drop the case therefore must continue. On the issue of constitutionality of the Indian patent law, the government s constitutional expert, the Solicitor General of India was not present in court at the time of arguments. The government has not appointed the Solicitor General to argue the case, raising serious concerns about the government s intention to defend the Indian patent law provision that protects against extension of patent monopolies on essential medicines. In the absence of the government s legal expert on constitutional matters, Indian parliament s patent law and patient groups access to affordable medicines is at stake. Arguments from lawyers representing Novartis, patients, govt and the generic companies are expected to take up several days or even weeks. the next date of hearing is the 22nd of february. How is the government defending section 3(d) and representing patients? it is a matter of great concern that the government is not taking the defence of the novartis challenge of the Indian patent law section 3(d) seriously. the ministry of commerce who is representing govt, is not even kept informed by the local govt counsel correctly about the date of the hearing and till a few days ago thought that 25th feb was the next date of hearing instead of 15th feb. Novartis is seeking a declaration from the court that section 3(d) is not TRIPS compliant and also that certain terms in the section are vague and can lead to arbitrary decisions from the patent office and therefore violates article 14 of the constitution. One aspect of article 14 i.e. (rt to equality) is that laws should give guidance to the implementing authorities, the Patent Controller in this case. it also is appealing against the Glivec patent rejection. now the govt needs to take this argument of Novartis seriously and appoint a constitutional expert to represent and defend the patent law in court. the Additional Solicitor General (a local lawyer, Gopalan) was not even willing to file a reply to the amended petition filed by novartis that seeks to raise the issue of section 3(d) unconstitutionality under article 14. this local lawyer further went on to share the confidential directions of the ministry of commerce with everybody in court. he is simply not equipped to defend the constitutionality of sec 3 (d) nor argue the jurisdiction of a domestic court to decide on India s TRIPS compliance. public interest groups in India feel that the solicitor general, Gulam E. Vahanvati is the correct person to represent and defend the case in chennai high court. besides the above to also counter the impact of legal heavyweights appearing on behalf of novartis. Mr. shanti bhushan (ex law minister of india) and Soli Sarabjee (ex solicitor general) are appearing for Novartis. The lawyers collective who is representing cancer patients in court is putting up a good defence, however govt defence of the law is also important. Indian organisations plan to campaign in the coming few days for a competent constitutional expert of the government to be present to defend the case. please take this seriously and all efforts to mobilize political and public pressure for the solicitor general s appointment must be speedened by organisations around the world. the decision to appoint the solicitor general is pending with the Secretary of the Law Ministry. besides demonstrating in front of the indian embassy please write the following letter (with additions etc as you feel fit) to the govt reps listed below: The public health safeguards of India's patent law have a very real and human impact in our lives and those of millions of other patients - not just people living with HIV, but those living with cancer, asthma, heart disease, mental illness. Today, we write to you to express our grave concern over the swiss pharmaceutical company Novartis' legal action in the Chennai High Court to challenge critical public health safeguards of Indian patent law. Novartis will now have the oppurtunity to argue before the Madras high court in Chennai that section 3(d) of the Indian Patent Act is not in compliance with TRIPS and that it violates Article 14 of the Indian Constitution. Section 3 (d) is the provision that protects against extension of patent monopolies on essential medicines. the case was heard on the 15 & 16 of February 07 and the next date of hearing is 22 February 07. On the issue of constitutionality of the Indian patent law, the government s constitutional expert, the Solicitor General of India was not present in court on 15th & 16 February at the time of arguments. In the absence of the government s legal expert on constitutional matters, Indian parliament s patent law and patient groups access to affordable medicines is at stake. We trust that the Solicitor General has now been authorised to take up this matter and will be in the Chennai high court defending the sovereign right of the Indian parliament to safeguard the health of its people and patients across the world. We look forward to your continued support for access to affordable medicines and treatment and your commitment to the constitutional guarantee of health and life. please address the letter to: Mr. T K Viswanathan Secretary Ministry of Law & Justice 4th Floor, A-Wing, Shastri Bhavan New Delhi - 110 001 Tel - 23384777, 23382902 FAX - 23387259 E mail: vnathan at nic.in Mr. Hansraj Bharadwaj Ministry of Law & Justice , 4th Floor, A-Wing, Shastri Bhavan New Delhi - 110 001. Phone : 23387557, 23384777, 23384617 Fax : 011-23384241, 011-23387259, 011-23382733 Cc. Sri Kamal Nath Hon'ble Minster of Commerce & Industry Room No. 45, Udyog Bhavan New Delhi Tel: 91-11-23061008, Fax: 91-11-23062947 Dr. A K Dua Secretary to the Government of India Department of Industrial Policy and Promotion Room No. 259, Udyog Bhavan New Delhi 110011 Tel: 91-11-23061815, 23061667 Fax: 23062626 E mail: ajay.dua at nic.in Dr. Manmohan Singh Hon'ble Prime Minister of India The Prime Minister's Office South Block, Raisina Hill, New Delhi, India-110011. Telephone: 91-11-23018939 Fax: 91-11-23019334 -------------------------------------------------------------------- mail2web LIVE – Free email based on Microsoft® Exchange technology - http://link.mail2web.com/LIVE From a_prabhala at yahoo.co.uk Sun Feb 18 20:05:16 2007 From: a_prabhala at yahoo.co.uk (Achal Prabhala) Date: Sun, 18 Feb 2007 20:05:16 +0530 Subject: [Commons-Law] hip hop outlaw Message-ID: <076c01c7536a$03529110$0201a8c0@som.yale.edu> http://www.nytimes.com/2007/02/18/magazine/18djdrama.t.html .........But Drama and Cannon’s studio was not a bootlegging plant; it was a place where successful new hip-hop CDs were regularly produced and distributed. Drama and Cannon are part of a well-regarded D.J. collective called the Aphilliates. Although their business almost certainly violated federal copyright law, as well as a Georgia state law that requires CDs to be labeled with the name and address of the producers, they were not simply stealing from the major labels; they were part of an alternative distribution system that the mainstream record industry uses to promote and market hip-hop artists. Drama and Cannon have in recent years been paid by the same companies that paid Kilgo to help arrest them................ -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070218/3278dd61/attachment.html From chansoobak at yahoo.com Mon Feb 19 10:21:04 2007 From: chansoobak at yahoo.com (chan park) Date: Sun, 18 Feb 2007 20:51:04 -0800 (PST) Subject: [Commons-Law] Economic Times: Mashelkar Prescription May Get Second Opinion Message-ID: <120541.59418.qm@web37709.mail.mud.yahoo.com> http://economictimes.indiatimes.com/Mashelkar_prescription_may_get_second_opinion/articleshow/1635642.cms NEW DELHI: This may disappoint pharma MNCs, especially Swiss drugmaker Novartis, which is involved in a globally-watched legal tussle with the government for getting patent protection for Glivec — a drug widely referred to as a gold standard in treating blood cancer. The government is not inclined to accept the controversial view taken by Dr Mashelkar panel that the country does not meet its international obligations in protecting intellectual property. The panel had mooted a widening of the ambit of what constitutes a patentable pharmaceutical substance, by allowing patenting of a slew of structural and physical modifications, incremental inventions, which the country’s patent law currently denies IPR as per an exclusion criteria brought in with 2005 amendments, unless these offer significant efficacy improvement. To reinforce its plea for removal of the allegedly restrictive criteria under Section 3(d) of the country’s patent law, Novartis had referred to the report at the Chennai High Court last week when it heard a writ petition by the company challenging the existing law and the denial of patent to Glivec. The thinking in the government is clearly that the patent law should continue in the present form for a few more years. The chemicals & fertilisers ministry strongly feels that the report should not be accepted as ‘there is a lot of criticism’ about it. It thinks that the panel, which was given a mandate to examine whether it would be Trips-compatible to limit the grant of patent for pharmaceutical substance to a new chemical entity or to a new medical entity involving one or more inventive steps, did not ‘go into the depth of anything’, in this regard. “The (Mashelkar) panel has failed to differentiate between incremental inventions and evergreening tactics,” said a ministry official. Evergreening refers to unfair prolonging of patent tenure by trivial alterations of an entity which would otherwise go off-patent. An official from the department of industrial policy & promotion (DIPP) said the government would not dilute its stand that the present patent law is fully Trips-compatible. Under Trips, a patentable product should be new, involve an inventive step and be capable of industrial utility. “Section 3(d) does not violate the country’s Constitution, nor is it in conflict with Trips,” said the DIPP official, adding that a final view on the panel’s report was yet to be taken. “A large number of incremental innovations have significant practical advantages for the patient over the existing medicine, although they may not qualify as scientific breakthroughs. Companies will invest in such improvements only if there is an assurance of ownership at the end of costly and tedious research”, Novartis international corporate research head Paul Herrling told ET. It may be noted that Mashelkar panel had said that the flexibilities allowed in TRIPS or a general understanding among WTO members regarding the precedence of public health over patents should not be used by India to deviate from its obligation to grant patents to all inventions. --------------------------------- It's here! Your new message! Get new email alerts with the free Yahoo! Toolbar. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070218/f12a70e7/attachment.html From vivek at sarai.net Mon Feb 19 10:52:15 2007 From: vivek at sarai.net (Vivek Narayanan) Date: Mon, 19 Feb 2007 10:52:15 +0530 Subject: [Commons-Law] Spoken Word at British Council, Delhi Message-ID: <45D93407.60401@sarai.net> British Council invites you to a Spoken Word Performance By John Hegley and Anjum Hasan 7 pm on Tuesday, 20th February 2007 at the British Council 17, Kasturba Gandhi Marg New Delhi 110 001 The performance will be followed by a reception There is strict security at the British Council. To add your name to the Guest List, you can do one of three things, before 3 pm tomorrow: 1) Contact Shubha Patvardhan at 41497322 2)Email Shubha Patvardhan at Shubha.Patvardhan at in.britishcouncil.org 3) Send an SMS with your name, asking to be added to the guest list, to my number: 98109 36654 Like a kind of twenty-first century Ogden Nash, John Hegley’s reputation is as an endlessly inventive comic poet, always ready with teasing, quirky wordplay and rhymes, delightful for adults and children alike. But Hegley exceeds Nash in many ways: his poems are often not laugh-out-loud funny, but deeper, subtle and tinged with the sadness and surprise of everyday life; on stage, the poems are interwoven with storytelling and song. For many years Hegley worked as a bus conductor, a social security clerk and a nurse in a mental hospital. Now he is one of Britain’s top performers, and the author of nine books of poetry / prose / lyrics / drawings and one mug. Anjum Hasan’s poems seek real beauty in the ordinary, the insignificant, the half-remembered. Often set in small towns like Shillong (where she was born and grew up) with their cast of longing dreamers, drifters and has-beens, they search for the link between landscape and emotion. In performance, she recites from memory in a sharp and haunting style. Hasan’s poems have appeared in many journals and anthologies, including the forthcoming Norton Anthology of Poetry from Asia and the Middle East; her first collection, Street on the Hill, was released last year by Sahitya Akademi. From vivek at sarai.net Mon Feb 19 10:58:29 2007 From: vivek at sarai.net (Vivek Narayanan) Date: Mon, 19 Feb 2007 10:58:29 +0530 Subject: [Commons-Law] VN, Poems, Mumbay Message-ID: <45D9357D.6050502@sarai.net> Dear all, (Incidentally, a hard copy of the book, Universal Beach, can be obtained at Oxford Bookstore Mumbai. It's on a copyleft license, and to my knowledge the first Indian poetry book on that license.) I'm doing a few poetry reading/performances from my work in Mumbai, in February and March. Here's the lineup: Wednesday, February 21: Chauraha, NCPA (See below for full announcement) Sunday, February 25: At Kitab festival, Prithvi Theatre, 2pm: Short (15 mins) reading with three other writers-- Jackie Kay, Jane Bhandari, and Arvind Krishna Mehrotra. Part of all-day poetry readings at Prithvi. Saturday, March 10: Full length reading/performance for PEN at Prithvi, Prithvi Theatre; more details to follow closer to the date. Universal Beach English Poetry Reading Audio Visual Room Wed. 21st – 6.30 pm This is a CHAURAHA presentation. Vivek Narayanan will read and perform poems from his first collection, Universal Beach (Harbour Line, 2006), as well as poems from his second collection in progress, entitled Lectures in Indian History. Born in Ranchi in 1972, Narayanan grew up in Zambia, studied in the US and is currently based in Delhi where he works at Sarai-CSDS. His poems have appeared in various Indian and international journals and anthologies. Writes Ranjit Hoskote of his book: 'Vivek Narayanan's poems remind me of a thriving port-city, where diverse tongues are spoken, their registers varying from a priestly classical to a piratical demotic… And then there are moments of luminosity, when the word becomes the bearer of hope and redemption. Not by offering us a spurious clarity, but by challenging us into insight with a jaggedness of phrase, a treacherously ambiguous grammar, and a demanding musicality.' From tato at paris.com Mon Feb 19 12:54:30 2007 From: tato at paris.com (Dhritabrata BHATTACHARJYA Tato) Date: Mon, 19 Feb 2007 02:24:30 -0500 Subject: [Commons-Law] Should we have patent? Legal, intellectual and social perspectives Message-ID: <20070219072430.706C31BF297@ws1-1.us4.outblaze.com> French Information Resource Centre invites you to Café Scientifique 2007 on Wednesday 21 February 2007, at 5.30 pm Should we have patent? Legal, intellectual and social perspectives Discussants DR. VANDANA SHIVA & MS. DELPHINE GIEUX Moderator DR. NICOLAS GRAVEL The lecture will be followed by a high tea Venue: FIRC Library The Embassy of France in India 2 Aurangzeb Road, New Delhi 110011 Tel: 30 41 0053/ E-mail:culture @fircdel.com Please call Mr. Tato 30410053 or by replying to culture.communications at gmail.com or SMS at 9811922952 -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070219/30ad8d4e/attachment.html From vaibhavvutts at gmail.com Tue Feb 20 01:01:49 2007 From: vaibhavvutts at gmail.com (vaibhavvutts at gmail.com) Date: Tue, 20 Feb 2007 01:01:49 +0530 Subject: [Commons-Law] Action Alert , Novartis Case Message-ID: It is shocking that there has been no representation from the government. This sends out a wring signal to the world that Indian Government does not bother about such an important question. I totally agree with Gopa that the Government requires to have its expert as the future of a very important aspect of Indian patents law is at stake. I think this a callous stand by the government when such an important question regarding lives of millions of people is hanging. regards Vaibhav 2. Action Alert , Novartis Case (gopa.kumar at centad.org) ---------- Forwarded message ---------- From: "gopa.kumar at centad.org" To: commons-law at sarai.net Date: Sat, 17 Feb 2007 05:36:40 -0500 Subject: [Commons-Law] Action Alert , Novartis Case Please fax, email or call Law Sec or MInister of law and demand that Solicetor general of india should appear in Novartis case Dear all, On 15th & 16th February, the Madras High Court heard the Novartis challenge of the Indian Patent law. The case has started with lawyers from Novartis, Cancer Patient Aid Association, lawyers representing Indian generic companies and a local government lawyer literally crowding the courtroom. Novartis will now have an opportunity to argue before the Madras high court in Chennai that section 3(d) of the Indian Patent Act is not in compliance with TRIPS and that it violates Article 14 of the Indian Constitution. Section 3 (d) is the provision that protects against extension of patent monopolies on essential medicines. It is now clear that Novartis is not withdrawing the case at this stage. the pressure to drop the case therefore must continue. On the issue of constitutionality of the Indian patent law, the government s constitutional expert, the Solicitor General of India was not present in court at the time of arguments. The government has not appointed the Solicitor General to argue the case, raising serious concerns about the government s intention to defend the Indian patent law provision that protects against extension of patent monopolies on essential medicines. In the absence of the government s legal expert on constitutional matters, Indian parliament s patent law and patient groups access to affordable medicines is at stake. Arguments from lawyers representing Novartis, patients, govt and the generic companies are expected to take up several days or even weeks. the next date of hearing is the 22nd of february. How is the government defending section 3(d) and representing patients? it is a matter of great concern that the government is not taking the defence of the novartis challenge of the Indian patent law section 3(d) seriously. the ministry of commerce who is representing govt, is not even kept informed by the local govt counsel correctly about the date of the hearing and till a few days ago thought that 25th feb was the next date of hearing instead of 15th feb. Novartis is seeking a declaration from the court that section 3(d) is not TRIPS compliant and also that certain terms in the section are vague and can lead to arbitrary decisions from the patent office and therefore violates article 14 of the constitution. One aspect of article 14 i.e. (rt to equality) is that laws should give guidance to the implementing authorities, the Patent Controller in this case. it also is appealing against the Glivec patent rejection. now the govt needs to take this argument of Novartis seriously and appoint a constitutional expert to represent and defend the patent law in court. the Additional Solicitor General (a local lawyer, Gopalan) was not even willing to file a reply to the amended petition filed by novartis that seeks to raise the issue of section 3(d) unconstitutionality under article 14. this local lawyer further went on to share the confidential directions of the ministry of commerce with everybody in court. he is simply not equipped to defend the constitutionality of sec 3 (d) nor argue the jurisdiction of a domestic court to decide on India s TRIPS compliance. public interest groups in India feel that the solicitor general, Gulam E. Vahanvati is the correct person to represent and defend the case in chennai high court. besides the above to also counter the impact of legal heavyweights appearing on behalf of novartis. Mr. shanti bhushan (ex law minister of india) and Soli Sarabjee (ex solicitor general) are appearing for Novartis. The lawyers collective who is representing cancer patients in court is putting up a good defence, however govt defence of the law is also important. Indian organisations plan to campaign in the coming few days for a competent constitutional expert of the government to be present to defend the case. please take this seriously and all efforts to mobilize political and public pressure for the solicitor general s appointment must be speedened by organisations around the world. the decision to appoint the solicitor general is pending with the Secretary of the Law Ministry. besides demonstrating in front of the indian embassy please write the following letter (with additions etc as you feel fit) to the govt reps listed below: The public health safeguards of India's patent law have a very real and human impact in our lives and those of millions of other patients - not just people living with HIV, but those living with cancer, asthma, heart disease, mental illness. Today, we write to you to express our grave concern over the swiss pharmaceutical company Novartis' legal action in the Chennai High Court to challenge critical public health safeguards of Indian patent law. Novartis will now have the oppurtunity to argue before the Madras high court in Chennai that section 3(d) of the Indian Patent Act is not in compliance with TRIPS and that it violates Article 14 of the Indian Constitution. Section 3 (d) is the provision that protects against extension of patent monopolies on essential medicines. the case was heard on the 15 & 16 of February 07 and the next date of hearing is 22 February 07. On the issue of constitutionality of the Indian patent law, the government s constitutional expert, the Solicitor General of India was not present in court on 15th & 16 February at the time of arguments. In the absence of the government s legal expert on constitutional matters, Indian parliament s patent law and patient groups access to affordable medicines is at stake. We trust that the Solicitor General has now been authorised to take up this matter and will be in the Chennai high court defending the sovereign right of the Indian parliament to safeguard the health of its people and patients across the world. We look forward to your continued support for access to affordable medicines and treatment and your commitment to the constitutional guarantee of health and life. please address the letter to: Mr. T K Viswanathan Secretary Ministry of Law & Justice 4th Floor, A-Wing, Shastri Bhavan New Delhi - 110 001 Tel - 23384777, 23382902 FAX - 23387259 E mail: vnathan at nic.in Mr. Hansraj Bharadwaj Ministry of Law & Justice , 4th Floor, A-Wing, Shastri Bhavan New Delhi - 110 001. Phone : 23387557, 23384777, 23384617 Fax : 011-23384241, 011-23387259, 011-23382733 Cc. Sri Kamal Nath Hon'ble Minster of Commerce & Industry Room No. 45, Udyog Bhavan New Delhi Tel: 91-11-23061008, Fax: 91-11-23062947 Dr. A K Dua Secretary to the Government of India Department of Industrial Policy and Promotion Room No. 259, Udyog Bhavan New Delhi 110011 Tel: 91-11-23061815, 23061667 Fax: 23062626 E mail: ajay.dua at nic.in Dr. Manmohan Singh Hon'ble Prime Minister of India The Prime Minister's Office South Block, Raisina Hill, New Delhi, India-110011. Telephone: 91-11-23018939 Fax: 91-11-23019334 - -------------------------------------------------------------------- mail2web LIVE – Free email based on Microsoft(r) Exchange technology - http://link.mail2web.com/LIVE - --33424567-- _______________________________________________ commons-law mailing list commons-law at sarai.net https://mail.sarai.net/mailman/listinfo/commons-law - -- Peace without the quiet. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070220/21f33318/attachment.html From vivek at sarai.net Mon Feb 19 10:53:42 2007 From: vivek at sarai.net (Vivek Narayanan) Date: Mon, 19 Feb 2007 10:53:42 +0530 Subject: [Commons-Law] VN, Poems, Mumbai Message-ID: <45D9345E.2060701@sarai.net> Dear all, I'm doing a few poetry reading/performances from my work in Mumbai, in February and March. Here's the lineup: Wednesday, February 21: Chauraha, NCPA (See below for full announcement) Sunday, February 25: At Kitab festival, Prithvi Theatre, 2pm: Short (15 mins) reading with three other writers-- Jackie Kay, Jane Bhandari, and Arvind Krishna Mehrotra. Part of all-day poetry readings at Prithvi. Saturday, March 10: Full length reading/performance for PEN at Prithvi, Prithvi Theatre; more details to follow closer to the date. Universal Beach English Poetry Reading Audio Visual Room Wed. 21st – 6.30 pm This is a CHAURAHA presentation. Vivek Narayanan will read and perform poems from his first collection, Universal Beach (Harbour Line, 2006), as well as poems from his second collection in progress, entitled Lectures in Indian History. Born in Ranchi in 1972, Narayanan grew up in Zambia, studied in the US and is currently based in Delhi where he works at Sarai-CSDS. His poems have appeared in various Indian and international journals and anthologies. Writes Ranjit Hoskote of his book: 'Vivek Narayanan's poems remind me of a thriving port-city, where diverse tongues are spoken, their registers varying from a priestly classical to a piratical demotic… And then there are moments of luminosity, when the word becomes the bearer of hope and redemption. Not by offering us a spurious clarity, but by challenging us into insight with a jaggedness of phrase, a treacherously ambiguous grammar, and a demanding musicality.' From culture.communications at gmail.com Mon Feb 19 12:50:37 2007 From: culture.communications at gmail.com (Dhritabrata BHATTACHARJYA Tato) Date: Mon, 19 Feb 2007 12:50:37 +0530 Subject: [Commons-Law] Should we have patent? Legal, intellectual and social perspectives Message-ID: French Information Resource Centre invites you to *Café Scientifique 2007* * * on Wednesday 21 February 2007, at 5.30 pm Should we have patent? Legal, intellectual and social perspectives Discussants DR. VANDANA SHIVA & MS. DELPHINE GIEUX Moderator DR. NICOLAS GRAVEL * * The lecture will be followed by a high tea Venue: FIRC Library The Embassy of France in India 2 Aurangzeb Road, New Delhi 110011 Tel: 30 41 0053/ E-mail:*culture*@fircdel.com Please call Mr. Tato 30410053 or by replying to culture.communications at gmail.com or SMS at 9811922952 -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070219/cc15b78f/attachment.html From shuddha at sarai.net Tue Feb 20 17:53:51 2007 From: shuddha at sarai.net (Shuddhabrata Sengupta) Date: Tue, 20 Feb 2007 17:53:51 +0530 Subject: [Commons-Law] Afzal Guru interviewed by Vinod Jose Message-ID: <45DAE857.6000309@sarai.net> Dear All, (apologies for cross posting on Commons Law and Reader List) Here is - 'Mulakat Afzal' an interview by Vinod Jose with Mohammad Afzal Guru, inmate, Prison No. 3 (High Risk Ward) Tihar Central Prison. (I believe that this is being published in part by Tehelka) best, Shuddha --------------------------- 'Mulakat Afzal' Vinod Jose interviews Mohammad Afzal Guru A rusted table, and behind it stood a well built man in uniform holding a spoon in his hand. Visitors, all of them looked habituated, queued up to open their plastic bags containing food, allowing it to be smelt, sometimes even tasted. The security man’s spoon paved its way through the thick grease floating curries—Malai Kofta, Shahi Paneer, Aalu Bengan, and Mixed Vegetables. As the visitors opened tiny bags of curries the spoon separated each piece of vegetable from the other, quite mechanically. 'Frisking' the food of a middle aged woman the spoon took a dip at the water in the steel bowl nearby. It then moved to the plastic bags of the next in the queue, an early teenage boy. By now water in the steel bowl has all kinds of colours. The floating oil gave it a vibgyor effect when light hit at it on the winter afternoon. Around 4.30 my turn came. The man left the spoon on the table and frisked my body top to bottom, thrice thoroughly. And when the metal detector made noise I had to remove my belt, steel watch, and keys. The man on duty bearing the badge of Tamilnadu Special Police (TSP) looked satisfied. I am allowed to enter now. This is the fourth security drill I had to go through to get into the High Risk Ward of Prison No 3 in Tihar Central Prison. I am on my way to meet Mohammad Afzal, one of the most talked about man in the contemporary times. A room with many tiny cubicles. Visitor and inmate were separated by a thick glass, and iron grills. Both were connected through a mike and a speaker fixed on the wall. Poorly audible, people at both sides of the glass strained their ears out touching the wall to listen other. Mohammad Afzal was already at the other side of the cubicle. His face gave me an impression of unfathomable dignity and calmness. A little short man in his mid thirties wearing white kurta paijama had a Reynolds pen in his pocket. Very clear voice welcomed me with the best of all mannerisms. How are you sir? I said, I'm fine. Am I to return the same question to a man on the deathrow, was apprehensive for a second, but I did. Very fine. Thank you sir, he answered with warmth. The conversation went on for close to an hour, and continued a fortnight later with a second Mulakat. Both of us were in a hurry to answer and ask whatever one could in the time. I went on scribbling him in my tiny pocket book. He seemed to be a person who wanted to tell a lot of things to the world. But repeated his helplessness to reach people from the current stature of ‘condemned for life’. Excerpts of the interview There are so many contradicting images of Afzal. Which Afzal am I meeting? Is it? But as far as I’m concerned there is only one Afzal. That is me. Who is that Afzal? A moments’ silence Afzal as a young, enthusiastic, intelligent, idealistic young man, Afzal a Kashmiri influenced like many thousands in the Kashmir Valley in the political climate of early 1990s, who was a JKLF member and crossed over to the other side of Kashmir, but in a matter of weeks got disillusioned and came back and tried to live a normal life, but was never allowed to do so by the security agencies who inordinate times picked me up, tortured the pulp out of me, electrified, frozen in cold water, dipped in petrol, smoked in chilies you name it, and falsely implicated in a case, with no lawyer, no fair trial, finally condemned to death. The lies the police told was propagated by you in media. And that perhaps created what the Supreme Court referred to as "collective conscience of the nation”. And to satisfy that "collective conscience” I’m condemned to death. That is the Mohammad Afzal you are meeting. After a moments’ silence, he continued. But I wonder whether the outside world knows anything about this Afzal. I ask you, did I get a chance to tell my story? Do you think justice is done? Would you like to hang a person without giving him a lawyer? Without a fair trial? Without listening to what he had to go through in life? Democracy doesn’t mean all this, does it? Can we begin with your life? Your life before the case… It was a turbulent political period in Kashmir when I was growing up. Maqbul Bhatt was hanged. The situation was volatile. The people of Kashmir decided to fight an electoral battle once again to resolve the Kashmir issue through peaceful means. Muslim United Front (MUF) was formed to represent the sentiments of Kashmiri Muslims for the final settlement of the Kashmir issue. Administration at Delhi was alarmed by the kind of support that MUF was gaining and in the consequence we saw rigging in the election on an unprecedented scale. And the leaders, who took part in the election and won with huge majority, were arrested, humiliated and put behind bars. It is only after this that the same leaders gave call for armed resistance. In response thousands of youth took to armed revolt. I dropped out from my MBBS studies in Jhelum Valley Medical College, Srinagar. I was also one of those who crossed to the other side of Kashmir as a JKLF member, but was disillusioned after seeing Pakistani Politicians acting the same as the Indian politicians in dealing with Kashmiris. I returned after few weeks. I surrendered to the security force, and you know, I was even given a BSF certificate as surrendered militant. I began to start the life new. I could not become a doctor but I became a dealer of medicines and surgical instruments on commission basis (laughs). With the meager income I even bought a scooter and also got married. But never a day passed by without the scare of Rashtriya Rifles and STF men harassing me. If there was a militant attack somewhere in Kashmir they would round up civilians, torture them to pulp. The Situation was even worse for a surrendered militant like me. They detained us for several weeks, and threatened to implicate in false cases and were let free only if we paid huge bribes. Many times I had to go through this. Major Ram Mohan Roy of 22 Rashtriya Rifles gave electric shock to my private parts. Many times I was made to clean their toilets and sweep their camps. Once I had to bribe the security men with all that I had to escape from the Humhama STF torture camp. D.S.P. Vinay Gupta and D.S.P. Davinder Singh supervised the torture. One of their torture experts, Inspector Shanty Singh, electrified me for three hours until I agreed to pay one lakh rupees as bribe. My wife sold her jewelry and for the remaining amount they sold my scooter. I left the camp broken both financially and mentally. For six months I could not go outside home because my body was in such a bad shape. I could not even share the bed with my wife as my penile organ had been electrified. I had to take medical treatment to regain potency…. Afzal narrated the torture details with a disturbing calmness on his face. He seemed to have lot of details to tell me about the torture he faced. But unable to hear the horror stories of security forces that operate with my tax money, I cut him short and asked: If you could come to the Case…, what were the incidents that led to the Parliament attack Case? After all the lessons I learned in STF camps, which is either you and your family members get harassed constantly for resisting or cooperate with the STF blindly, I had hardly any options left, when D.S.P Davinder Singh asked me to do a small job for him. That is what he told, “a small job”. He told me that I had to take one man to Delhi. I was supposed to find a rented house for him in Delhi. I was seeing the man first time, but since he did not speak Kashmiri I suspected he was an outsider. He told his name was Mohammad [Mohammad is identified by the police as the man who led the 5 gunmen who attacked the Parliament. All of them were killed by the security men in the attack]. When we were in Delhi Mohammad and me used to get phone calls from Davinder Singh. I had also noticed that Mohammad used to visit many people in Delhi. After he purchased a car he told me now I could go back and gave me 35,000 rupees saying it was a gift. And I left to Kashmir for Eid. When I was about to leave to Sopore from Srinagar bus stand I was arrested and taken to Parimpora police station. They tortured me and took to STF headquarters and from there brought me to Delhi. In the torture chamber of Delhi Police Special Cell, I told them everything I knew about Mohammad. But they insisted that I should say that my cousin Showkat, his wife Navjot S.A.R. Geelani and I were the people behind the Parliament attack. They wanted me to say this convincingly in front of media. I resisted. But I had no option than to yield when they told me my family was in their custody and threatened to kill them. I was made to sign many blank pages and was forced to talk to the media and claim responsibility for the attack by repeating what the police told me to say. When a journalist asked me about the role of S.A.R. Geelani I told him Geelani was innocent. A.C.P. Rajbeer Singh shouted at me in the full media glare for talking beyond what they tutored. They were really upset when I deviated from their story and Rajbeer Singh requested the journalists not to broadcast that part where I spoke of Geelani’s innocence. Rajbeer Singh allowed me to talk to my wife the next day. After the call he told me if I wanted to see them alive I had to cooperate. Accepting the charges was the only option in front of me if I wanted to see the family alive and the Special Cell officers promised they would make my case weak so I would be released after sometime. Then they took me to various places and showed me the markets where Mohammad had purchased different things. Thus they made the evidence for the case. Police made me a scapegoat in order to mask their failure to find out the mastermind of Parliament attack. They have fooled the people. People still don’t know whose idea was to attack the Parliament. I was entrapped into the case by Special Task Force (STF) of Kashmir and implicated by Delhi Police Special Cell. The media constantly played the tape. The police officers received awards. And I was condemned to death. Why didn’t you find legal defence? I had no one to turn to. I did not even see my family until six months into the trial. And when I saw them it was only for a short time in the Patiala House Court. There was no one to arrange a lawyer for me. As legal aid is a fundamental right in this country I named four lawyers whom I wished to have defended me. But the judge S.N. Dhingra, said all four refused to do the case. The lawyer whom the Court chose for me began by admitting some of the most crucial documents without even asking me what the truth of the matter was. She was not doing the job properly and finally she moved to defend another fellow accused. Then the Court appointed an amicus curie, not to defend me, but to assist court in the matter. He never met me. And he was very hostile and communal. That is my case, completely unrepresented at the crucial trial stage. The fact of the matter is that I did not have a lawyer and in a case like this, what does not having a lawyer mean everyone can understand. If you wanted to put me to death what was the need for such a long legal process which to me was totally meaningless? Do you want to make any appeal to the world? I have no specific appeals to make. I have said whatever I wanted to say in my petition to the President of India. My simple, appeal is that do not allow blind nationalism and mistaken perceptions to lead you to deny even the most fundamental rights of your fellow citizens. Let me repeat what S.A.R. Geelani said after he was awarded death sentence at the trial court, he said, peace comes with justice. If there is no justice, there is no peace. I think that is what I want to say now. If you want to hang me, go ahead with it but remember it would be a black spot on the judicial and political system of India. What is the condition in jail? I’m lodged in solitary confinement in the high risk cell. I’m taken out from my cell only for a short period during noon. No radio, no television. Even the newspaper I subscribe reaches me torn. If there is a news item about me, they tear that portion apart and give me the rest. Apart from the uncertainty about your future, what else concerns you the most? Yes, a lot of things concern me. There are hundreds of Kashmiris languishing in different jails, without lawyers, without trial, without any rights. The situation of civilians in the streets of Kashmir is not any different. The valley itself is an open prison. These days the news of fake encounters is coming out. But that is only the tip of a big iceberg. Kashmir has everything that you don’t want to see in a civilized nation. They breathe torture. Inhale injustice. He paused for a moment. Also, there are so many thoughts that come into my mind; farmers who get displaced, merchants whose shops are sealed in Delhi and so on. So many faces of injustice you can see and identify, can’t you? Have you thought how many thousands of people get affected by all this, their livelihood, family…? All these things too, worry me. Again a longer pause Also global developments. I took to the news of the execution of Saddham Hussain with at most sadness. Injustice so openly and shamelessly done. Iraq, the land of Mesopotamia, world’s richest civilization, that taught us mathematics, use a 60 minute clock, 24 hour day, 360 degree circle, is thrashed to dust by the Americans. Americans are destroying all other civilizations and value systems. Now the so called War against Terrorism is only good in spreading hatred and causing destruction. I can go on saying what worries me. Which books are you reading now? I finished reading Arundhati Roy. Now I’m reading Sartre’s work on existentialism. You see, it is a poor library in the jail. So I will have to request the visiting Society for the Protection of Detainees and Prisoners Rights (SPDPR) members for books. There is a campaign in defence for you… I am really moved and obliged by the thousands of people who came forward saying injustice is done to me. The lawyers, students, writers, intellectuals, and all those people are doing something great by speaking against injustice. The situation was such at the beginning, in 2001 and initial days of the case that it was impossible for justice loving people to come forward. When the High Court acquitted SAR Geelani people started questioning the police theory. And when more and more people became aware of the case details and facts and started seeing things beyond the lies, they began speaking up. It is natural that justice loving people speak up and say, injustice is done to Afzal. Because that is the truth. Members of your family have conflicting opinion on your case? My wife has been consistently saying that I was wrongly framed. She has seen how the STF tortured me and did not allow me to live a normal life. She also knew how they implicated me in the case. She wants me to see our son Ghalib growing up. I have also an elder brother who apparently is speaking against me under duress from the STF. It is unfortunate what he does, that’s what I can say. See, it is a reality in Kashmir now, what you call the counter insurgency operations take any dirty shape—that they field brother against brother, neighbor against neighbor. You are breaking a society with your dirty tricks. As far as the campaign is concerned I had requested and authorized Society for the Protection of Detainees and Prisoners Society (SPDPR) run by Geelani and group of activists to do the campaign. What comes to your mind when you think of your wife Tabassum and Son Ghalib? This year is the tenth anniversary of our wedding. Over half that period I spent in jail. And prior to that, many a times I was detained and tortured by Indian security forces in Kashmir. Tabassum witnessed both my physical and mental wounds. Many times I returned from the torture camp, unable to stand, all kinds of torture including electric shock to my penis, she gave me hope to live…We did not have a day of peaceful living. It is the story of many Kashmiri couples. Constant fear is the dominant feeling in all Kashmiri households. We were so happy when a child was born. We named our son after the legendary poet Mirza Ghalib. We had a dream to see our son Ghalib grow up. I could spend very little time with him. After his second birthday I was implicated in the case. What do you want him to grow up as? Professionally, if you are asking, a doctor. Because that is my incomplete dream. But most importantly, I want him to grow without fear. I want him to speak against injustice. That I am sure he will be. Who else know the story of injustice better than my wife and son? [While Afzal continued talking about his wife and son, I could not stop recollecting what Tabassum told me when I met her outside Supreme Court in 2005 during the case’s appeal stage. When Afzal’s family members remained in Kashmir Tabassum dared to come to Delhi with her son Ghalib to organize defence for Afzal. Outside the Supreme Court New Lawyers chamber, at the tiny tea stall on the roadside, she chatted in detail about Afzal. While sipping and complaining the tea for excess sugar she told about how Afzal enjoyed cooking. One picture she painted stuck me deep—one of those dear private moments in their lives, he would not allow her to enter kitchen, make her seated on the chair nearby and Afzal would cook, holding one book in his band, a ladle in the other and read out stories for her.]…. If I may ask you about Kashmir issue…how do you think it can be solved? First let the government be sincere to the people of Kashmir. And let them initiate talk with the real representatives of Kashmir. Trust me, the real representatives of Kashmir can solve the problem. But if the government consider peace process as a tactics of counter insurgency, then the issue is not going to be solved. It is time some sincerity is shown. Who are the real people? Find out from the sentiments of the people of Kashmir. I am not going to name x, y or z. And I have an appeal to Indian media; stop acting as a propaganda tool. Let them report the truth. With their smartly worded and politically loaded news reports, they distort facts, make incomplete reports, build hardliners, terrorists et al. They easily fall for the games of the intelligence agencies. By doing insincere journalism you are adding to the problem. Disinformation on Kashmir should stop first. Allow Indians to know the complete history of the conflict, let them know the ground realities. True democrats cannot turn down the facts. If Indian government is not taking into account the wishes of Kashmiri people, then they can’t solve the problem. It will continue to be a conflict zone. Also you tell me how are you going to develop real trust among Kashmiris when you send out the message that India has a justice system that hang people without giving a lawyer, without a fair trial? Tell me, when hundreds of Kashmiris are lodged in jails most of them with no lawyer, no hope for justice, are you not further escalating the distrust on Indian government among Kashmiris? Do you think if you don’t address the core issues and do a cosmetic effort, you can solve Kashmir conflict? No, you can’t. Let the democratic institutions of both India and Pakistan start showing some sincerity, their politicians, Parliament, justice system, media, intellectuals... 9 security men were killed in the Parliament attack. What is that you have to tell their relatives? In fact I share the pain of the family members who lost their dear ones in the attack. But I feel sad that they are misled to believe that hanging an innocent person like me would satisfy them. They are used as pawns in a completely distorted cause of nationalism. I appeal them to come out of it and see through things. What do you see is your achievement in life? My biggest achievement perhaps is that through my case and the campaign on the injustice done to me, the horror of STF has brought into light. I am happy that now people are discussing security forces’ atrocities on civilians, encounter killings, disappearances, torture camps, etc...These are the realities that a Kashmiri grows up with. People outside Kashmir have no clue what Indian security forces are up to in Kashmir. Even if they kill me for no crime of mine, it would be because they cannot stand the truth. They cannot face the questions arise out of hanging a Kashmiri with no lawyer. An ear-splitting electric bell rang. Could hear hurried up conversations from the neighbor cubicles. This was my last question to Afzal. What do you want to be known as? He thought for a minute, and answered: As Afzal, as Mohmammad Afzal. I am Afzal for Kashmiris, and I am Afzal for Indians as well, but the two groups have an entirely conflicting perception of my being. I would naturally trust the judgment of Kashmiri people not only because I am one among them but also because they are well aware of the reality I have been through and they cannot be misled into believing any distorted version of either a history or an incident. I was confused with this last statement of Mohammad Afzal, but on further reflection I began to understand what he meant. History of Kashmir and narration of an incident by a Kashmiri is always a big shock for an Indian whose sources of knowledge on Kashmir happen to be confined only to the text books and media reports. Afzal did just that to me. Two more bells. Time to end Mulakat. But people were still busy conversing. Mike put off. Speaker stopped. But if you strained your ear, and watched the lip movement, you could still hear him. The guards made rough round-ups, asking to leave. As they found visitors not leaving, they put the lights off, mulakat room turned dark. In the long stretch of walk out from the Jail No 3 of Tihar jail compound to the main road I found myself in the company of clusters of twos and threes, moving out silently—either a cluster of mother, wife and daughter; or brother, sister and wife; or friend and brother; or someone else. Every cluster had two things in common. They carried an empty cotton bag back with them. Those bags had stains of Malai Kofta, Shahi Paneer and Mixed Vegetables, often spilled over by the rash frisking of the TSP man’s spoon. The second, I observed, they all wore inexpensive winter clothes, torn shoes, and outside Gate No 3 they waited for Bus No 588, Tilak Nagar-Jawaharlal Nehru Stadium bus, that perhaps took them to Dhaulakuan main junction—they are the poor citizens of this country. Remembered President Abdul Kalam’s musing how poor people were the awardees of capital punishments. My interviewee is also one. When I asked him how much ‘tokens’ (the form of currency allowed in the jail) he had, he said “enough to survive”. Vinod K. Jose is a foreign correspondent attached with Radio Pacifica Network, USA. He is based in New Delhi. vinodkjose at gmail.com From gopa.kumar at centad.org Tue Feb 20 19:06:17 2007 From: gopa.kumar at centad.org (Gopa Kumar) Date: Tue, 20 Feb 2007 19:06:17 +0530 Subject: [Commons-Law] Mashelkar on his Report Message-ID: <003101c754f4$1b81bff0$6701a8c0@gopacba9226de3> Pharma industry's allegations baseless, no question of siding with MNCs: Dr Mashelkar Tuesday, February 20, 2007 08:00 IST Ramesh Shankar, Mumbai His recent report on patentability of drugs has literally taken the entire domestic pharma industry by storm. In each passing day, more are joining the chorus against the Dr Mashelkar Committee report on Patentability. Latest being none other than the Union Chemicals & Fertilisers Minister Ram Vilas Paswan who has dropped enough hints that the report might not see the day of the light in its present form. Amidst controversies and allegations, Dr R A Mashelkar spoke to Pharmabiz to remove the haze over his report. Excerpts from the freewheeling telephonic interview from his Pune residence with Ramesh Shankar. Your report on patent has created a furore in the country. Your comment? There is a confusion in understanding the terms of reference of the committee. If you go back to the reference of the committee, the issue before us was whether the amendments made were TRIPS-compatible or not. Basically, it is a legal and technical issue. And there can be no deviation or digression from the core issue of the committee as it consisted of such legal experts as Madhava Menon, Goverdhan Mehta and Asit Datta. To call it a Mashelkar Committee is also wrong, it is a panel report. As far as patentability is concerned, Article 27 is clear that you cannot restrict the patentability to new chemical entity. We have seen what is permissible and compatible. Then, what is the hullabaloo all about? Nothing, people have missed the point and tripped the reference of the committee. We have studied the issue for the last more than one and half years and consulted all the concerned people and studied the 27 submissions. There are allegations that you sided with the MNCs while making the recommendations? India is a free country. I take all these things in my stride. There is no question of siding with anybody. We are also against allowing frivolous patents. But, in your report you have said that excluding micro-organisms per se from patent protection would be violative of TRIPS Agreement? That is the legal side of the issue. But, we have given clear point to the patent office. It is the patent office that decides whether there is something novel or not. Make the patent office strong. There is a talk of your report being rejected by the government. How will you react to such an eventuality? It is up to the government. We are simply professionals. We have done our duty and we have simply looked up to it legally. I also came from a poor family. I am all for getting cheap medicines for the poor people of the country. If the government asks you to modify the report in view of the stiff resistance from domestic industries, will you go for that? Yes. It is up to the government to decide. I have made the report after due deliberations and in the national interest. Will your report anyway help the domestic pharma industry? Definitely. You tell me, whether there is any Indian company, which holds a patent among the 30-35 patents in the global pharmaceutical industry. It is in the incremental innovations, the Indian companies figure. Our poor people will also benefit if patent is given on incremental innovations. But some people have double standards. While Ranbaxy was on record supporting patent on incremental innovations, Indian Pharmaceutical Alliance, of which Ranbaxy is one of the prominent members, is opposing it tooth and nail. http://www.pharmabiz.com/article/detnews.asp?articleid=37650§ionid= -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070220/fce7eb1b/attachment.html From the.solipsist at gmail.com Tue Feb 20 21:50:43 2007 From: the.solipsist at gmail.com (Pranesh Prakash) Date: Tue, 20 Feb 2007 21:50:43 +0530 Subject: [Commons-Law] AACS has been cracked! Message-ID: <4785f1e20702200820u167c56adiaa5453a71e28c1ce@mail.gmail.com> Dear All, A hacker who goes by the name 'arnezami' (who himself admits that he is not a "pro") on the Doom9 bulletin boards (which is the Mecca for all things related to digital video) has figured out the Processing Key (the master key to the encryption) of all AACS-encrypted discs produced so far. (AACS being Advanced Access Content System, the encryption used to prevent copying in HD-DVDs and Blu-ray discs.) What's interesting is that he did this without using any cracking tools or a debugger or anything. He merely looked at the memory dump (by using WinHex, and some programs he wrote to inspect the memory dump) and changes that were made when he inserted his copy of King Kong and played it on WinDVD (this is because WinDVD implements the AACS specifications, and thus goes through the decryption process). He also discovered another (without using a software player and memdump, using a USB-sniffer) method of getting the Volume ID. >From what I could understand: A simple explanation (I hope): To decrypt the matter, what is required is the (1) Volume Unique Key and (2) the Title Keys. To get to the Volume Unique Key, we need the Volume ID (which is different for each disc) and the Media Key (which is different for each disc). The Processing Key (along with the C-value, which is different for each disc) gives rise to the Media Key. The Volume ID combined with the Media Key gives rise to the Volume Unique Key and thence to the Title Keys. The thread: * Processing Key, Media Key and Volume ID found!!! http://forum.doom9.org/showthread.php?t=121866 * The Eureka moment, when arnezami figured that it worked on all existing HD-DVDs and Blu-ray discs: http://forum.doom9.org/showthread.php?t=121866&page=6 An article on the matter: http://www.theregister.com/2007/02/14/aacs_hack/ The Processing Key: 09 F9 11 02 9D 74 E3 5B D8 41 56 C5 63 56 88 C0 -------------------------- An explanation of the process by arnezami: Thanks you all . Its been a pleasure. As I can understand some of you are interested in how I retrieved the Media and Processing Keys. I will tell what i did. Most of the time I spend studying the AACS papers. A good understanding of how things worked have helped me greatly in knowing what to find in the first place (and how to *recognize* something). I may write an explanation of (my understanding) of how AACS works in particular the subset-difference technique (which is by far the hardest to understand) at a later date if you guys want to. But anyway. Since the moment I found the Volume ID (which was much simpler than I had thought) my thought was to try to find the Media Key. But after some discussion I thought it might be better to go directly for the Device Keys (bad mistake). After looking at files created and changed by software player and trying to recognize Device Keys in memory dumps I was starting to get worried a bit. I wasn't making any progress. So I went back to my original idea: do a bottom-up approach. So first I tried to find the Media Key. One of the logical things to do even before that was to search for the Verify Media Key Record in memory. But it wasn't there. I then started to work on a little proggy that would scan a memdump and see everything as a Media Key: thus trying to verify it with the Verify Media Key Record. No luck. This was frustrating: all kinds of information was in the memdump but not the Media Key (I sort of assumed/hoped it would). I made several memdumps at different moments but nada, nothing. After throwing it all away I remembered I still had a "corrupt" memdump from WinHex (it failed to finish it because WinHex said the memory had changed). It was really small compared to the others so I didn't have much hope. But when running it with my proggy: voila! I found it. Which finally gave me hope I was going in the right direction. There were just two major problems left: how do you detect the Processing Key and if its not in memory how do you find it at all? Well since I now knew how things worked I knew the Processing Key had to be combined with a C-value to produce the Media Key. The problem was there are 513 C-values in the MKB! Searching the memory (several megabytes) for a Processing Key and assuming just one C-value would take minutes (if not hours depending on the size of the dump). So doing them all would take very long. And that while I didn't even know for sure there was a Processing Key in memory to begin with. I made a proggy that did this but using my favorite "corrupt" memdump I didn't find any Processing Key in the first megabyte (not for any C-value). It didn't look good. But then I realized why I first didn't find the Media Key: it was removed from memory after the Volume ID was retrieved and the VUK calculated. I also saw that in my "corrupt" memdump the VUK, Vol ID, Media Key and the Title Key MAC were all closely clustered in memory: in the first 50kb (of the entire multi megabyte file!) but there were large empty parts around it. Almost as if it was cleaned up. This gave me an idea: what I wanted to do is "record" all changes in this part of memory during startup of the movie. Hopefully I would catch something insteresting. In the end I did something a little more effiecient: I used the hd dvd vuk extractor (thanks ape!) and adapted it to slow down the software player (while scanning its memory continously) and at the very moment the Media Key (which I now knew: my bottom-up approach really paid off here) was detected it halted the player. I then made a memdump with WinHex. I now had the feeling I had something. And I did. Not suprisingly the very first C-value was a hit. I then checked if everyting was correct, asked for confirmation and here we are. Hope you enjoyed the ride. I'm thinking about a concept of proof proggy which does all the steps (from Processing Key to C-value to Media Key to Volume ID to VUK). It would require a Volume ID as input (which might be retrieved/guessed in another program or extension whatever). But the most important part is done: we have a Processing Key. I'm also thinking about doing a full explanation of the AACS protection system (or at least the subset-difference technique). But only if there is any demand for it . Regards, arnezami PS. For the keen observer: I'm not telling which player I used (well you can guess but you might guess wrong) to retrieve the Processing Key because I don't want to give the AACS LA any extra legal ammunition against any player company. Nothing was hacked, cracked or even reverse engineered btw: I only had to watch the "show" in my own memory. No debugger was used, no binaries changed. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070220/bd44878e/attachment.html From the.solipsist at gmail.com Wed Feb 21 19:46:52 2007 From: the.solipsist at gmail.com (Pranesh Prakash) Date: Wed, 21 Feb 2007 19:46:52 +0530 Subject: [Commons-Law] Hip-Hop Outlaw (Industry Version) Message-ID: <4785f1e20702210616y31e5ab37mb19109d9f8a5c7c9@mail.gmail.com> Dear All, >From the New York Times . (I'm only posting the first few paragraphs to give a brief overview of the story. To get the whole story, follow the link provided above.) Summary: DJ Drama and DJ Don Cannon (part of the DJ collective, Aphilliates), were arrested for making "illegal CDs" under Georgia's Racketeer Influenced and Corrupt Organizations Act, after the complaints of the RIAA. They were not counterfeiting CDs, but were remixing and producing new ones (and were being paid to do so by the same companies that paid to help arrest them, as an alternative distribution system). All they were probably violating was the US (both federal and Georgia) law that requires CDs to be labelled with the name and address of the producers. February 18, 2007 Hip-Hop Outlaw (Industry Version) By SAMANTHA M. SHAPIRO Late in the afternoon of Jan. 16, a SWAT team from the Fulton County Sheriff's Office, backed up by officers from the Clayton County Sheriff's Office and the local police department, along with a few drug-sniffing dogs, burst into a unmarked recording studio on a short, quiet street in an industrial neighborhood near the Georgia Dome in Atlanta. The officers entered with their guns drawn; the local police chief said later that they were "prepared for the worst." They had come to serve a warrant for the arrest of the studio's owners on the grounds that they had violated the state's Racketeer Influenced and Corrupt Organizations law, or RICO, a charge often used to lock up people who make a business of selling drugs or breaking people's arms to extort money. The officers confiscated recording equipment, cars, computers and bank statements along with more than 25,000 music CDs. Two of the three owners of the studio, Tyree Simmons, who is 28, and Donald Cannon, who is 27, were arrested and held overnight in the Fulton County jail. Eight employees, mostly interns from local colleges, were briefly detained as well. Later that night, a reporter for the local Fox TV station, Stacey Elgin, delivered a report on the raid from the darkened street in front of the studio. She announced that the owners of the studio, known professionally as DJ Drama and DJ Don Cannon, were arrested for making "illegal CDs." The report cut to an interview with Matthew Kilgo, an official with the Recording Industry Association of America, who was involved in the raid. The R.I.A.A., a trade and lobbying group that represents the major American record labels, works closely with the Department of Justice and local police departments to crack down on illegal downloading and music piracy, which most record-company executives see as a dire threat to their business. Kilgo works in the R.I.A.A.'s Atlanta office, and in the weeks before the raid, the local police chief said, R.I.A.A. investigators helped the police collect evidence and conduct surveillance at the studio. Kilgo consulted with the R.I.A.A.'s national headquarters in advance of the raid, and after the raid, a team of men wearing R.I.A.A. jackets was responsible for boxing the CDs and carting them to a warehouse for examination. If anyone involved with the raid knew that the men they had arrested were two of the most famous D.J.'s in the country, they didn't let on while the cameras were rolling. For local law enforcement, the raid on Drama and Cannon's studio was no different from a raid they executed in October on an Atlanta factory where a team of illegal immigrants was found making thousands of copies of popular DVDs and CDs to sell on the street. Along with the bootlegged CDs, the police found weapons and a stash of drugs in the factory. (The Fox report on the DJ Drama raid included a shot of a grave-looking police officer saying, "In this case we didn't find drugs or weapons, but it's not uncommon for us to find other contraband.") But Drama and Cannon's studio was not a bootlegging plant; it was a place where successful new hip-hop CDs were regularly produced and distributed. Drama and Cannon are part of a well-regarded D.J. collective called the Aphilliates. Although their business almost certainly violated federal copyright law, as well as a Georgia state law that requires CDs to be labeled with the name and address of the producers, they were not simply stealing from the major labels; they were part of an alternative distribution system that the mainstream record industry uses to promote and market hip-hop artists. Drama and Cannon have in recent years been paid by the same companies that paid Kilgo to help arrest them. The CDs made in the Aphilliates' studio are called mixtapes — album-length compilations of 20 or so songs, often connected by a theme; they are produced and mixed by a D.J. and usually "hosted" by a rapper, well known or up-and-coming, who peppers the disc with short boasts, shout-outs or promotions for an upcoming album. Some mixtapes are part of an ongoing series — in the last few years, the Aphilliates have produced 16 numbered installments of "Gangsta Grillz," an award-winning series that focuses on Southern hip-hop; others represent a one-time deal, a quick way for a rapper to respond to an insult or to remind fans he exists between album releases. The CDs are packaged in thin plastic jewel cases with low-quality covers and are sold at flea markets and independent record stores and through online clearinghouses like mixtapekingz.com. A mixtape can consist of remixes of hit songs — for instance, the Aphilliates offered a CD of classic Michael Jackson songs doctored by a Detroit D.J. Or it can feature a rapper "freestyling," or improvising raps, over the beat from another artist's song; so, on one mixtape, LL Cool J's "Love You Better" became 50 Cent's "After My Cheddar." In most cases, the D.J. modifies the original song without acquiring the rights to it, and if he wants to throw in a sample of Ray Charlessinging or a line from a Bugs Bunny cartoon, he doesn't worry about copyright. The language on mixtapes is raw and uncensored; rappers sometimes devote a whole CD to insulting another rapper by name. Mixtapes also feature unreleased songs, often "leaked" to the D.J. by a record label that wants to test an artist's popularity or build hype for a coming album release. Record labels regularly hire mixtape D.J.'s to produce CDs featuring a specific artist. In many cases, these arrangements are conducted with a wink and a nod rather than with a contract; the label doesn't officially grant the D.J. the right to distribute the artist's songs or formally allow the artist to record work outside of his contract. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070221/9e1b6a07/attachment.html From the.solipsist at gmail.com Wed Feb 21 20:36:21 2007 From: the.solipsist at gmail.com (Pranesh Prakash) Date: Wed, 21 Feb 2007 20:36:21 +0530 Subject: [Commons-Law] US copyright lobby "out-of-touch" Message-ID: <4785f1e20702210706n667cb590kfee721fa3ed3583e@mail.gmail.com> Dear All, Short news snippet first: MPAA doesn't honour other people's copyrights and licenses: it stole(only a screen capture, as the actual site is currently down) a blog engine (called Forest Blog) developed by a 29-year-old called Patrick Robin, and removed all links back to his site, which is contrary to the online license agreement . More importantly: In this article on BBC News, a Canadian law professor highlights the problems with the US copyright lobby, and reassures other countries (including India, Canada, New Zealand, Japan, Switzerland, Hong Kong, South Korea, Israel, Mexico) that it is the US that is going overboard, and that they shouldn't worry that they don't have equally draconian copyright laws. Published: 2007/02/20 15:01:57 GMT (Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law.) US copyright lobby out-of-touch * Internet law professor Michael Geist takes a look at intellectual property protection in the US and finds it somewhat out of step with the rest of the world. * The International Intellectual Property Alliance, an association that brings together US lobby groups representing the movie, music, software, and publisher industries, last week delivered its annual submission to the US government featuring its views on the inadequacy of intellectual property protection around the world. The report frequently serves as a blueprint for the US Trade Representative's Section 301 Report, a government-mandated annual report that carries the threat of trade barriers for countries that fail to meet the US standard of IP protection. The IIPA submission generated considerable media attention, with the international media focusing on the state of IP protection in Russia and China, while national media in Canada, Thailand, and Taiwan broadcast dire warnings about the consequences of falling on the wrong side of US lobby groups. While the UK was spared inclusion on this year's list, what is most noteworthy about the IIPA effort is that dozens of countries - indeed most of the major global economies in the developed and developing world - are singled out for criticism. The IIPA recommendations are designed to highlight the inadequacies of IP protection around the world, yet the lobby group ultimately shines the spotlight on how US copyright policy has become out-of-touch and isolated from much of the rest of the globe. The IIPA criticisms fall into three broad categories. First, the lobby group is very critical of any country that does not follow the US model for implementing the World Intellectual Property Organisation's Internet Treaties. Those treaties, which create legal protection for technological protection measures, have generated enormous controversy with many experts expressing concern about their impact on consumer rights, privacy, free speech, and security research. * Double standards?* The US implementation, contained in the 1997 Digital Millennium Copyright Act, represents the world's most aggressive approach to the WIPO Internet Treaties, setting very strict limits on the circumvention of digital rights management systems and establishing a ban on devices that can be used to circumvent DRM, even if the circumvention is for lawful purposes. Given the US experience, it is unsurprising that many countries have experimented with alternate implementations. This experimentation invariably leads to heavy criticism from the IIPA as countries such as Canada, New Zealand, Japan, Switzerland, Hong Kong, South Korea, Israel, Mexico, and India are all taken to task for their implementation (or proposed implementation) of anti-circumvention legislation. Further, countries that have not signed or ratified the WIPO Internet treaties (which still includes the majority of the world), face the wrath of the US lobby group for failing to do so. Second, in a classic case of "do what I say, not what I do", many countries are criticised for copyright laws that bear a striking similarity to US law. For example, Israel is criticised for considering a fair use provision that mirrors the US approach. The IIPA is unhappy with the attempt to follow the US model, warning that the Israeli public might view it as a "free ticket to copy." Similarly, the time shifting provisions in New Zealand's current copyright reform bill (which would permit video recording of television shows) are criticised despite the fact that US law has granted even more liberal copying rights for decades. The most disturbing illustration of this double standard is the IIPA's criticism of compulsory copyright licensing requirements. Countries around the world, particularly those in the developing world (including Indonesia, the Philippines, Lebanon, Kuwait, Nigeria, and Vietnam) all face demands to eliminate compulsory licensing schemes in the publishing and broadcasting fields. Moreover, the report even criticises those countries that have merely raised the possibility of new compulsory licensing systems, such as Sweden, where politicians have mused about an Internet file sharing license. * Long list * Left unsaid by the IIPA, is the fact that the US is home to numerous compulsory licenses. These include statutory licenses for transmissions by cable systems, satellite transmissions, compulsory licenses for making and distributing phonorecords as well as the use of certain works with non-commercial broadcasting. Third, the IIPA recommendations criticise dozens of efforts to support national education, privacy, and cultural initiatives. For example, Canada, Brazil, and South Korea are criticised for copyright exceptions granted to students and education institutions. Italy and Mexico are criticised for failing to establish an easy method for Internet service providers to remove allegedly infringing content (without court oversight), while Greece is viewed as being offside for protecting the privacy of ISP subscribers. Greece is also taken to task for levying a surcharge at movie theatres that is used to support Greek films. Moreover, countries that have preserved their public domain by maintaining their term of copyright protection at the international treaty standard of life of the author plus an additional fifty years are criticised for not matching the US extension to life plus 70 years. There are literally hundreds of similar examples, as countries from Europe, Asia, Africa, North and South America are criticised for not adopting the DMCA, not extending the term of copyright, not throwing enough people in jail, or creating too many exceptions to support education and other societal goals. In fact, the majority of the world's population finds itself on the list, with 23 of the world's 30 most populous countries targeted for criticism (the exceptions are the UK, Germany, Ethiopia, Iran, France, Congo, and Myanmar). Countries singled out for criticism should not be deceived into thinking that their laws are failing to meet an international standard, no matter what US lobby groups say. Rather, those countries should know that their approach - and the criticism that it inevitably brings from the US - places them in very good company. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070221/39037d74/attachment.html From chansoobak at yahoo.com Thu Feb 22 07:52:30 2007 From: chansoobak at yahoo.com (chan park) Date: Wed, 21 Feb 2007 18:22:30 -0800 (PST) Subject: [Commons-Law] The Hindu: Mashelkar Committee Withdraws Report Message-ID: <844861.12178.qm@web37709.mail.mud.yahoo.com> http://www.hindu.com/2007/02/22/stories/2007022206751200.htm BANGALORE/CHENNAI: The Dr. R.A. Mashelkar-headed expert committee on Patent Law has written to the Government of India asking that its 56-page report submitted last December is withdrawn on the grounds of "technical inaccuracy and plagiarism." In a letter dated February 19 and addressed to Ajay Dua, Secretary of the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, the committee has requested three months to re-examine and resubmit the report. The `Technical Expert Group on Patent Law Issues' was chaired by Dr. Mashelkar and comprised four other renowned experts (Professors Goverdhan Mehta, Asis Datta, N R. Madhava Menon, and Moolchand Sharma). It was set up in April 2005 to look into two contentious issues that were referred to it by the Government of India following a debate in Parliament after the Patents (Amendment) Bill, 2005 was introduced. The issues were whether it would be compatible with the World Trade Organisation's Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement to: a) "limit the grant of patents for pharmaceutical substances to new chemical entities or new medical entities involving one or more inventive steps only," and b) "exclude micro organisms from patenting." The committee took over a year and a half to reach its conclusions. Dr. Mashelkar confirmed to The Hindu over the telephone that the group had "unanimously" sought the report's withdrawal. He said that certain lines used in their report's conclusion had been taken "verbatim" from a November 2005 paper (Limiting the Patentability of Pharmaceutical Inventions and Micro-organisms: A TRIPs Compatibility Review) that was authored by Shamnad Basheer, a doctoral student and an Associate at the Oxford Intellectual Property Research Centre, University of Oxford. A footnote in Mr. Basheer's paper indicates that his work was commissioned by "the Intellectual Property Institute, a United Kingdom-based independent charitable organisation which carries out research on intellectual property matters." It was "financially supported by Interpat, a Swiss association of major European, Japanese and U.S. research-based pharmaceutical companies committed to the improvement of intellectual property laws around the world." According to Dr. Mashelkar, it was only after the committee had submitted its report that it came to their notice through newspaper articles that some plagiarism had occurred: "We have identified eight to ten lines that have been extracted verbatim from Basheer's paper. As a scientist I see this as not a good practice. In keeping with the highest and best ethical practices we want to withdraw the report." Dr. Mashelkar termed it "very unfortunate" and expressed the opinion that the "technical inaccuracy" could have happened when the report was being "drafted by a sub group." Asked whether the committee would now like to rewrite the report or just change the "eight to ten lines" that have been plagiarised, Dr. Mashelkar said that "that depended on the members of the committee." Even while admitting that it had been ethically wrong to plagiarise, Dr. Mashelkar said that Mr. Basheer in an e-mail had indicated that he was "not aggrieved" by the Mashelkar report "using his conclusions." He also stressed that it was "mischievous" to insinuate that multinational pharmaceutical companies had funded the committee's study. "We are not aligned to any industry." The recommendations of the technical expert group were significant for multinational pharmaceutical companies, the Indian generic industry, and patient groups. Novartis AG stated in a press release dated February 15: "A report from the Mashelkar committee, commissioned by Indian Government and comprised of Indian experts, supports many of the concerns about Indian patent law expressed by Novartis, mentioning that the laws are not complying with international agreements like TRIPS." Public health groups and patient associations were concerned that the recommendations would encourage renewals of patents and block entry of cheap generic drugs into the market. A paper by Professor Brook Baker, Northeastern University School of Law Programme on Human Rights and the Global Economy, said that the "Mashelkar report misstates India's right to define the scope of patentability and threatens access to medicines." --------------------------------- Need Mail bonding? Go to the Yahoo! Mail Q&A for great tips from Yahoo! Answers users. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070221/4d60b7e4/attachment.html From chansoobak at yahoo.com Thu Feb 22 07:55:19 2007 From: chansoobak at yahoo.com (chan park) Date: Wed, 21 Feb 2007 18:25:19 -0800 (PST) Subject: [Commons-Law] Times of India: Mashelkar takes back report after plagiarism row Message-ID: <597059.40438.qm@web37702.mail.mud.yahoo.com> http://timesofindia.indiatimes.com/NEWS/India/Mashelkar_takes_back_report_after_plagiarism_row/articleshow/1653926.cms NEW DELHI: Stung by charges of plagiarism, the R A Mashelkar committee, which had recommended drastic widening of the scope of patentability in India, has taken the unusual step of withdrawing its controversial report. In a letter dated February 19, Mashelkar, former head of Council of Scientific and Industrial Research, requested the commerce ministry to allow the committee to "withdraw the report, re-examine it and resubmit a report, which meets with the requirements of the highest standards." This followed an article in TOI on February 12 exposing the fact that key excerpts of the Mashelkar committee report submitted in December were reproduced almost verbatim (although without acknowledgement) from a paper published by UK-based, industry-friendly think tank. In a euphemistic reference to the plagiarism that has come to light, Mashelkar said: "After submission of the report, it has been found that there are certain technical inaccuracies in the report that have inadvertently crept in." But he blamed "a drafting sub-group" for the lapses. "These were unfortunately not detected in time and, therefore, not corrected," Mashelkar claimed, in his letter written after consulting the other technical experts in the committee. Taking "full responsibility for this unfortunate development," Mashelkar tendered his "unconditional apologies for the inconvenience that has been caused to the government." Recalling that there had been "twelve high-powered Mashelkar committees so far over the past two decades" dealing with different scientific issues without provoking any such controversy, he said rather plaintively, "This has happened for the first time." The plagiarism angle has reinforced the allegation made by public health activists that the Mashelkar committee toed the line of multinational pharmaceutical industry by recommending that India needed to strengthen the patent law further than it did in 2005 to meet its obligations under the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). In a recommendation that could bring more pharmaceutical drugs under patent and thereby hike their prices, the committee said that provision limiting grant of patents to "new chemical entities only" was not compliant with TRIPS. This has raised fears among its critics of "evergreening" under which a manufacturer extends his monopoly over patented drugs indefinitely by passing off a minor change as an inventive step. Another far-reaching conclusion of the Mashelkar committee is that India's current policy of keeping all micro organisms outside the purview of patents was violative of TRIPS. This could provide a boost to genetically modified organisms in the country despite all the questions over their efficacy and environment repercussions. --------------------------------- Cheap Talk? Check out Yahoo! Messenger's low PC-to-Phone call rates. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070221/9e931fa3/attachment.html From chansoobak at yahoo.com Thu Feb 22 07:58:42 2007 From: chansoobak at yahoo.com (chan park) Date: Wed, 21 Feb 2007 18:28:42 -0800 (PST) Subject: Indian Express: Plagiarism in his panels report, Mashelkar tells Govt to withdraw it Message-ID: <460484.31287.qm@web37710.mail.mud.yahoo.com> http://www.indianexpress.com/story/23941.html New Delhi, February 21: R A Mashelkar, former Director General of the Council of Scientific and Industrial Research (CSIR), has asked the government to “withdraw” a report written by a panel he headed after a crucial paragraph on patent law was found to have been copied ad verbatim from other sources, without any attribution. Mashelkar, considered the force behind the the country’s progress on intellectual property and patent issues, submitted this 56-page report on December 29 last year, his last day in office after a 30-year-long illustrious tenure. “I am broken-hearted at being let down so badly,” an emotional Mashelkar told The Indian Express. “This is the first time such a thing has happened.” He said that a new report will be submitted in three months that will follow the “best ethical practices.” “Being a scientist, I am so fussy about attributions but in the rush of the last working day, a slip did happen and I deeply regret it,” he said. He said he offered his “unconditional apologies for the inconvenience that has been caused to the Government” and that he took “full responsibility for this unfortunate development.” At the centre of the controversy is paragraph 5.10 in Report of the Technical Expert Group on Patent Law issues, that was meant to examine whether India’s patent laws are compatible with the Agreement on Trade Related Aspects of Intellectual Property (TRIPS). The paragraph has been reproduced from a submission made to the committee by lawyer Shamnad Basheer, currently a Frank H. Marks Visiting Associate Professor in intellectual property law at the George Washington University Law School. Basheer’s submission has been passed off as the committee’s conclusion: “It is important to distinguish ‘ever-greening’ from what is commonly referred to as ‘incremental innovation’. While ‘ever-greening’ refers to an 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. Therefore, such incremental developments ought to be encouraged by the Indian patent regime.” This far-reaching interpretation has an important bearing on how patent laws are interpreted in India, especially regarding the time-frame in which cheaper generic drugs can be made available of the hugely expensive patented molecules. As of now, drug companies routinely use “incremental innovations” to extend their patent period indefinitely. On February 19, Mashelkar wrote to the Ministry of Commerce and Industry, the parent body under which the group was constituted to examine whether India’s patent laws are compatible with the Agreement on Trade Related Aspects of Intellectual Property (TRIPS). According to the letter, a copy of which is with The Indian Express, Mashelkar admitted that “certain technical inaccuracies in the report that have inadvertently crept while the initial drafts were attempted by a drafting sub-group were unfortunately not detected in time and therefore not corrected.” Basheer, when contacted, said that the committee’s observations were indeed “borrowed from my report” but he added that to call it “plagiarism is incorrect.” --------------------------------- Need Mail bonding? Go to the Yahoo! Mail Q&A for great tips from Yahoo! Answers users. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070221/28ff8168/attachment.html From chansoobak at yahoo.com Thu Feb 22 14:07:44 2007 From: chansoobak at yahoo.com (chan park) Date: Thu, 22 Feb 2007 00:37:44 -0800 (PST) Subject: [Commons-Law] Business Standard: Patent law report withdrawn Message-ID: <159488.19395.qm@web37709.mail.mud.yahoo.com> http://www.business-standard.com/economy/storypage.php?leftnm=lmnu2&subLeft=1&autono=275497&tab=r Committee chief Mashelkar cites plagiarism as the reason. Dr R A Mashelkar, former head of the government’s Council for Scientific and Industrial Research (CSIR), has requested the commerce ministry to withdraw the recommendations on patent law issues submitted by a five-member technical expert group (TEG), which he chaired, on “ethical” grounds. The decision has come in the wake of allegations of plagiarism against the Mashelkar panel report. “We have found that several sentences in the panel’s report are identical to one of the submissions made to us by an interest group. I have asked the commerce ministry to withdraw the report. It will be re-drafted and a fresh report will be submitted within three months, after all technical inaccuracies in the existing one are rectified,” Mashelkar told Business Standard. Lawyers Collective, a public interest group, has said that several portions of the report are identical to a four-year-old study by a UK-based intellectual property institute. The group has further alleged that the UK study was funded by Interpat, an association of multinational pharmaceutical companies. Mashelkar wrote a letter to Ajay Dua, secretary, department of industrial policy and promotion, on February 19, stating: “After the submission of the report, it has been found that there are certain technical inaccuracies that have inadvertently crept in. This has apparently happened while the initial drafts were attempted by a drafting sub-group for the consideration of the TEG . These were unfortunately not detected on time and therefore not corrected.” The letter added that the decision to withdraw and resubmit a fresh report that “meets the requirements of the highest standards” was taken after consulting all TEG members. “As the chairman of the TEG, I take full responsibility for this unfortunate development and render my unconditional apologies for the inconvenience that has been caused to the government. There have been 12 high powered Mashelkar committees so far over the last two decades. This has happened for the first time. I am deeply pained by it.” The withdrawal of the report has come at a crucial time. The report has been produced as evidence to support the claim of Swiss multinational Novartis AG in a Chennai court case against the central government. Novartis has challenged some sections of the Indian Patent Law (which limits grant of drug patents to significant innovations) and cited the Mashelkar report to buttress its arguments. The court is scheduled to hear the case on Thursday. --------------------------------- Get your own web address. Have a HUGE year through Yahoo! Small Business. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070222/1ea7a0aa/attachment.html From lawrence at altlawforum.org Thu Feb 22 16:45:09 2007 From: lawrence at altlawforum.org (Lawrence Liang) Date: Thu, 22 Feb 2007 16:45:09 +0530 Subject: [Commons-Law] Mashelkar Withdraws Report after Expose In-Reply-To: <012501c75639$e3cb13d0$0201a8c0@som.yale.edu> Message-ID: ------ Forwarded Message From: Achal Prabhala Reply-To: Achal Prabhala Date: Thu, 22 Feb 2007 09:58:14 +0530 To: Subject: success! Friends, Some nice developments for medicines in India. On Feb 12 we published these opinion pieces: http://www.thehindu.com/2007/02/12/stories/2007021203681100.htm http://timesofindia.indiatimes.com/Patent_wrong/articleshow/1593525.cms Today, Feb 22, this is what the newspapers report: http://www.business-standard.com/economy/storypage.php?leftnm=lmnu2&subLeft= 1&autono=275497&tab=r http://www.hindu.com/2007/02/22/stories/2007022206751200.htm http://timesofindia.indiatimes.com/NEWS/India/Mashelkar_takes_back_report_af ter_plagiarism_row/articleshow/1653926.cms http://www.indianexpress.com/story/23941.html Cheers, Achal. ------ End of Forwarded Message -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070222/3bb94574/attachment.html From chansoobak at yahoo.com Thu Feb 22 21:48:24 2007 From: chansoobak at yahoo.com (chan park) Date: Thu, 22 Feb 2007 08:18:24 -0800 (PST) Subject: [Commons-Law] Novartis Hearing update, 22.02.07 Message-ID: <842354.54696.qm@web37701.mail.mud.yahoo.com> The Novartis matter resumed today for further oral arguments. At the outset, the Court indicated to the parties that they were inclined to convert the writ petition into an appeal, on the condition that no new grounds are added in the converted appeal. The CPAA and the generic companies agreed to this proposal, but counsel for Novartis indicated that they would seek instruction from the client. Thereafter, the oral argument by the generic companies and the CPAA began. Starting off was the Additional Solicitor General, Mr. VT Gopalan, appearing for the Union of India and the Patent Controller. Gopalan responded to two of Novartis’ claims: (1) that 3d was arbitrary and (2) that 3d violated trips. He said that the amendment was not arbitrary and in violation of Article 14 because the concepts of “efficacy” and “significant efficacy” are well known and definite in the field. He pointed out that TRIPS allowed flexibilities for member countries. He claimed that TRIPS allowed countries to prevent the abuse of intellectual property rights, including evergreening. He pointed to article 7, 8 and 27 as containing inherent flexibilities. On constitutional validity, he argued that it is a settled position in India that Parliament cannot be forced to introduce a law. He further pointed out that once a law is enacted by Parliament, courts are bound to administer the law in accordance with the Constitution. There is no decision to the effect that law in violation of an international treaty is void. On constitutional validity of 3d in light of Article 14, he pointed out that there are only two grounds available for challenging a statute in India: (1) that the law violates the fundamental rights guaranteed in the constitution, or (2) Parliament lacked the authority to enact the law in question. Given that Novartis had failed to state either ground, it had no basis for bringing this issue before the Court. He then relied on the Statement of Objects and Reasons of the Patents Amendment Act, observing that it mentioned the Doha Declaration. After explaining the mandates of the Doha Declaration to the Court, he contended that the steps to be taken to bring about changes in the patent law had to be member-specific in the context of flexibilities permitted under the TRIPS Agreement. Gopalan pointed out that the Patent Controller’s order denying Novartis a patent on Glivec were based on other issues besides 3d, including lack of novelty and obviousness. Simply because Novartis had not been granted a patent did not give it a legal basis for challenging the statute. Even assuming that, in this instance, the Patent Controller had arbitrarily applied section 3d, this only provided Novartis with a basis for challenging the Patent Controller’s Order, but not the statute itself. Finally, he contended that the Parliamentary debates that Novartis introduced showing that the legislation discussed the high costs of Glivec and the problem of evergreening was not evidence of Parliament, in bad faith, specifically targeting Novartis. He also pointed out that the fact that there was such debate in Parliament actually constituted evidence of a legitimate purpose – of Parliament heeding to the will of the people in enacting 3d. As such, this was a perfectly legitimate exercise. Rather than showing irrationality as contended by Novartis, this indicated deliberate decision making in accordance with democratic procedures. Mr Lakshmikumaran, counsel for Ranbaxy and Hetero, argued that the Court cannot strike down a law on the ground that it violates an international treaty. He showed that the settled law in India was that a treaty does not become law on its own; it can only be used as an interpretive tool used in the case of ambiguity. In the case of a direct conflict between domestic and international law, the domestic law prevails. He distinguished the UK EOC v. Secretary of State case that Novartis relied on, ((1994) 1 ER 910), to point out that the issue there whether the Court’s jurisdiction to grant a declaration and nothing more. Addressing Novartis’ request for a declaration that section 3d was incompatible with TRIPS, Lakshmikumaran asserted that if the Court did make such a declaration, without granting any further relief, Novartis would use it as ammunition to convince Switzerland to take India to the WTO Dispute Panel. There, if the dispute panel ultimately decided that section 3d was in fact compatible with TRIPS, it would have the effect of placing the Court in an embarrassing situation in which it had been effectively overruled by a foreign body. To avoid this embarrassing situation, he pleaded with the Court not to engage in such a purely academic exercise. He then pointed out that Novartis’s contention that concepts contained in section 3d was unique to India was incorrect. He relied on the EU Directive 2001/83/EC, which contains language virtually identical to 3d in the context of regulatory approval of generic drugs. He used this to point out that the concept of efficacy was very well known in the field, and certainly very well known to Novartis, which had made several applications for generic forms to be marketed in the Eurpoean Union, and thus relied on the directive. He futher pointed out that they had referred to efficacy in their own specification that was rejected in India. Lakshmikumaran then argued that there is no basis for claiming that simply because “efficacy” is capable of more than one construction, it is rendered arbirtrary. These are relative terms, but well understood by people skilled in the relevant art. He claimed that Parliament deliberately left the term undefined in order to cover the myriad of circumstances in which this concept could be applied. He pointed out that in fact, introducing specific benchmarks of significance or efficacy would in fact render the statute arbitrary. Finally, he addressed the issue of the Mashelkar Committee report. He pointed out that in view of the fact that the committee had withdrawn the report it may not be necessary to go into the matter. Nevertheless, he argued that the terms of reference were completely different from the issue of the validity of section 3d. Mr Arvind Datar, counsel for Cipla, again raised the issue that international treaties must be specifically incorporated into Indian law for it to have domestic effect, and that once Parliament has spoken, the Courts must give effect to it, regardless of any international law to the contrary. He asserted that there is always a presumption of constitutionality, and the burden was on Novartis to substantiate its claim. However, he pointed out that Novartis had laid no foundation in its pleadings to make out its claim of arbitrariness. Datar asserted that 3d complies with TRIPS and was in fact a “golden mean.” Referring to varying practices of countries in allowing patenting of discoveries, he argued that there was no universal yardstick of patentability. He argued that though terms such as novelty and obviousness were not defined in the patent law, they were not uncertain and such terms are incapable of being precisely defined. He said that the construction of a patent was the duty of the court. There could be no “one-glove fits all” policy and that the determination of each application should be left to the Patent Controller, but ultimately subject to appeal in the Courts. Anand Grover, counsel for Cancer Patients Aid Association, reinforced the theory that Novartis could not maintain its request for a declaration of TRIPS non-compliance. He distinguished the EOC case on the ground that the UK had specifically given domestic effect to the EEC Treaty and that the EEC Treaty itself conferred rights on individuals to enforce its provision and for courts of member countries to enforce them. He distinguished the EEC Treaty from the TRIPS Agreement, which does not create any rights in favour of individuals or confer any private right of enforcement to individuals. Disputes, if any, have to be between member states as laid down in the Dispute Settlement Understanding, which by its own terms is the exclusive means of resolving disputes. The DSU, Art. 23 prohibits member countries from unilaterally deciding whether the TRIPS Agreement has been complied with. Grover then compared TRIPS to a prior multilateral treaty, NAFTA, which specifically provides for individuals to enforce the terms of the treaty against a state through arbitration. The drafters of the TRIPS Agreement were aware of such private enforcement procedures but chose not to incorporate them into TRIPS. He then pointed out Articles 7 and 8 of the TRIPS Agreement as well as two authoritative commentaries on TRIPS (by UNCTAD-ICTSD and WTO-WHO) to highlight to the many inherent flexibilities contained in the TRIPS Agreement. He pointed out that the concepts of novelty, inventive step and industrial application are not defined and that countries are free to determine the means of implementing these requirements, whether through legislative or judicial. He showed that countries may wish to adopt stricter standards for patentability criteria to prevent evergreening. Anand Grover will continue his arguments tomorrow. In solidarity, The Lawyers Collective HIV/AIDS Unit team Anand Chan Julie Ramya --------------------------------- Need Mail bonding? Go to the Yahoo! Mail Q&A for great tips from Yahoo! Answers users. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070222/d5b3a400/attachment.html From chansoobak at yahoo.com Thu Feb 22 22:01:49 2007 From: chansoobak at yahoo.com (chan park) Date: Thu, 22 Feb 2007 08:31:49 -0800 (PST) Subject: [Commons-Law] Text of Mashelkar Letter to Ministry of Commmerce Message-ID: <86527.97209.qm@web37705.mail.mud.yahoo.com> 19th February, 2007 Dr. Ajay Dua Secretary Department of Industrial Policy and Promotion Ministry of Commerce and Industry Government of India New Delhi Reference: Report of the Technical Expert Group on Patent Law Issues Dear Shri Dua, I wish to refer to the Report of the Technical Expert Group (TEG) on Patent Law issues that was set up by the Government of India, Ministry of Commerce & Industry, Department of Industrial Policy and Promotion vide O.M. No. 12/16/2005 - IPR-III dated April 5, 2005. The Report of the TEG was submitted to Government on 29 December 2006. After submission of the Report, it has been found that there are certain technical inaccuracies in the Report that have inadvertently crept in. This has apparently happened while the initial drafts were attempted by a drafting sub-group for the consideration of the TEG as per its overall guidance. There were unfortunately not detected in time, and therefore, not corrected. I have spoken to all the TEG members. They are all of a unanimous opinion that following the best ethical practices for preparation and submission of a technical Report, we should withdraw the Report, re-examine it and resubmit a Report, which meets with the requirements of the highest standards. I would like to request you to accede to this request by the TEG. It will take the TEG three months to submit the Report from the time the TEG is given time to re-examine the Report. As a Chairman of the TEG, I take the full responsibility for this unfortunate development and render my unconditional apologies for the inconvenience that has been caused to the Government. Incidentally, there have been twelve high powered Mashelkar Committees so far over the past two decades. This has happened for the first time. I am deeply pained by this.. With warm personal regards, R.A. Mashelkar CC to: Shri N.N. Prasad Joint Secretary Ministry of Commerce and Industry Department of Industrial Policy and Promotion Udyog Bhawan New Delhi 110011 --------------------------------- The fish are biting. Get more visitors on your site using Yahoo! Search Marketing. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070222/c8a3dafb/attachment.html From a_prabhala at yahoo.co.uk Fri Feb 23 12:37:33 2007 From: a_prabhala at yahoo.co.uk (Achal Prabhala) Date: Fri, 23 Feb 2007 12:37:33 +0530 Subject: [Commons-Law] [Business Standard] Scrap panel on patents: CPM to govt Message-ID: <057401c75719$4be3aec0$0201a8c0@som.yale.edu> http://www.business-standard.com/common/storypage.php?autono=275623&leftnm=3&subLeft=0&chkFlg= Scrap panel on patents: CPM to govt BS Reporters / New Delhi February 23, 2007 The government is under strong pressure from its Left party allies to scrap the Technical Expert Group on Patent Laws headed by R A Mashelkar, former chief of the Council for Scientific and Industrial Research. The CPI (M) Politburo today said the government should reject Mashelkar’s request to re-draft the report and instead disband the group. Senior CPI(M) leader Nilotpal Basu said the admissions that the report had reproduced portions of a UK-based report on patents was a "national shame and embarrassment" because the entire developing world looks to India for intellectual leadership. Basu added that Mashelkar’s offer to rewrite the report should not be accepted. “It is for the government, especially the prime minister, to scrap the committee and reconstitute it. The new expert body should not include anybody associated with Mashelkar committee and should comprise persons with intellectual integrity and commitment to uphold the common man’s interests," he demanded. CPI national secretary D Raja said the entire exercise of the Mashelkar committee was to "serve the interest of multinationals". "This committee has sullied the image of the country. This committee must go. The Left parties will raise this issue in Parliament," he said. On its part, a stunned government is considering the options available to it on this issue. Ajay Dua, secretary, Department of Industrial Policy and Promotion, to whom Mashelkar had written requesting the withdrawal and three months to write a fresh report, said the government has not yet taken a view on Mashelkar’s proposal. Mashelkar had on Wednesday told Business Standard that he had spoken to Dua on the phone. “He had agreed to my request,” he said. Amid the controversy, Novartis AG, the Swiss multinational pharmaceutical company that had submitted the Mashelkar panel report in its case against the Indian patent law at the Chennai High Court, today clarified that it is merely seeking clarity on Indian patent laws. "We have just learned from press articles that the Mashelkar Committee report was withdrawn. It would be inappropriate for us to comment on this action or on any potential impact it may or may not have on the legal case challenging the denial of our patent application for Glivec or section 3(d) of the Indian patent law”, said Novartis managing director Ranjit Shahani. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070223/0e8cfa21/attachment.html From a_prabhala at yahoo.co.uk Fri Feb 23 12:44:25 2007 From: a_prabhala at yahoo.co.uk (Achal Prabhala) Date: Fri, 23 Feb 2007 12:44:25 +0530 Subject: [Commons-Law] [ManagingIP] Mashelkar withdraws Indian patent report Message-ID: <059501c7571a$41aecf10$0201a8c0@som.yale.edu> http://www.managingip.com/?Page=9&PUBID=198&SID=676971&ISS=23396&GUID=C67A3EDF-245A-4186-AE71-36938AA67F65 Mashelkar withdraws Indian patent report Peter Ollier, Hong Kong A row about plagiarism has led scientist R A Mashelkar to withdraw a key report about patentability prepared for the Indian government. The report was written by a team of IP specialists appointed by the Ministry of Commerce in 2005. The group was led by former head of the Council of Scientific and Industrial Research, R A Mashelkar, and its report, finalized in December, concluded that the country's patent law would not be TRIPs-compliant if it limited the granting of patents to new chemical entities. But now it has emerged that the wording of a number of the report's conclusions is similar to wording used in a report written by Shamnad Basheer for the UK's Intellectual Property Institute which was submitted to the Mashelkar Committee during its consultation process. "We have found that several sentences in the panel's report are identical to one of the submissions made to us by an interest group ... It [the report] will be re-drafted and a fresh report will be submitted within three months, after all technical inaccuracies in the existing one are rectified," Mashelkar told the Indian Business Standard newspaper. For example, in the report prepared by Basheer, the author says: "If the aim of the proposed exclusion is to prevent a phenomenon loosely referred to as 'ever-greening', this can be done by a proper application of patentability criteria as present in the current patent regime." He goes on to say: "It is important to distinguish the phenomenon of 'evergreening' from what is commonly referred to as 'incremental innovation'. While 'ever-greening' refers to an undue 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." These passages are similar to sections of the Indian Report of the Technical Expert Group on Patent Law Issues. It says: "If the aim of limiting patents to new chemical entities is to prevent a phenomenon loosely referred to as 'ever-greening', this can be done by a proper application of patentability criteria as present in the current patent regime." "It is important to distinguish 'ever-greening' from what is commonly referred to as 'incremental innovation'. While 'ever-greening' refers to an 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." A key passage in the Mashelkar report dealing with whether it would be TRIPs-compliant to limit grants of patents to new chemical entities (it concludes it would not) also closely mirrors the conclusions in Basheer's report. In his blog Basheer, a doctoral student at the Oxford Intellectual Property Research Centre, points out the similarities and says: "It flatters one to know that the extraction happened verbatim, though I would have been happier had the Committee cited the source." It is unclear whether the redrafted report will be different in substance or will simply rephrase the relevant paragraphs. Leena Menghaney, a campaigner for humanitarian organization Médecins Sans Frontières in India, which urged the Mashelkar Committee to recommend making it tougher to patent pharmaceuticals, told MIP Week that the report "hasn't been soundly argued. It needs to give legal and technical grounds for its conclusions". Campaigning organizations have also noted that Basheer says in his report that his research was financially supported by Interpat. He describes this as "a Swiss association of major European, Japanese and US research based pharmaceutical companies committed to the improvement of intellectual property laws around the world". In an interview with Indian newspaper The Hindu, Mashelkar said that it was "mischievous" to suggest that multinational pharmaceutical industries had funded the report and said: "We are not aligned to any industry." The revelation about the incorporation of parts of Basheer's report into the Mashelkar Committee's report comes as the Chennai High Court deliberates in a case brought by Swiss pharmaceutical company Novartis. The drugs company is challenging the rejection of its patent for cancer-treating drug Glivec and also claims that section 3(d) of India's patent law, which defines what is not patentable under the country's law, is not compatible with TRIPs. The pharmaceutical company made its closing arguments in court today, although it is not known when a ruling will be made. In an open letter sent to NGOs at the end of January, Novartis explained why it was taking legal action in India. The company said: "Many of the points we have raised around India's patent laws have been corroborated by the recent Mashelkar Committee report on patent issues in India. The Government-established Mashelkar Committee voiced its views in favor of incremental innovation and held that certain provisions of the Indian Patent Act are not compliant with international agreements, specifically WTO's TRIPS agreement." Last week Representative Henry Waxman, chair of the influential US House Committee on Oversight and Government Reform and co-sponsor of key legislation regulating the US pharmaceutical industry, urged Novartis to drop its case. MIP Week welcomes your feedback on this or any other story. Please email the author with your comments. Letters may be published online. This article is FREE access as part of MIP Week. Take a two week trial to MIP and find many more related articles. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070223/8ab87707/attachment.html -------------- next part -------------- A non-text attachment was scrubbed... Name: not available Type: application/octet-stream Size: 144 bytes Desc: not available Url : http://mail.sarai.net/pipermail/commons-law/attachments/20070223/8ab87707/attachment.obj From a_prabhala at yahoo.co.uk Fri Feb 23 12:50:23 2007 From: a_prabhala at yahoo.co.uk (Achal Prabhala) Date: Fri, 23 Feb 2007 12:50:23 +0530 Subject: [Commons-Law] [DNA India] Experts, Left trash report by Mashelkar Message-ID: <060601c7571b$17583a20$0201a8c0@som.yale.edu> http://dnaindia.com/report.asp?NewsID=1081555 Experts, Left trash report by Mashelkar Kay Benedict Thursday, February 22, 2007 22:21 IST NEW DELHI: Experts on patent laws, bio-technology, food security and the Left parties on Thursday trashed the RA Mashelkar committee report on Patent Law and urged the UPA government to set up a new committee amidst reports that the Mashelkar report is "plagiarised" and comprised the interests of multinational corporations. The committee had inter alia recommended drastic widening of the scope of patentability in India. The experts called for the exclusion of "micro-organisms" from patentability and change of definition of "pharmaceutical substance". Mashelkar, stung by the charges of plagiarism, has himself decided to withdraw the controversial report. As many as two dozen experts and the CPI (M) and the CPI demanded discussion of the Patents amendment bill. CPI (M) plitburo member Nilotpal Basu and CPI secretary D. Raja termed the "plagiarized" report "shocking and a national shame and embarrassment." The CPI (M) said several conclusions in the report were "verbatim reproduction" of a paper financially supported by major US, European and Japanese pharma companies. "Many conclusions in the (Mashelkar) report are verbatim reproduction of a research paper prepared under a project supported by Interpat, a Swiss association of major European, Japanese and US based pharmaceutical companies," the CPI (M) said. SP Shukla, Prof Ashok Parthasarathi, BK Keayla, all from the National Working Group on Patent Laws, Dr. Devinder Sharma from the Forum of Biotechnology and Food Security, KM Gopakumar of Centre for Trade and Development, Dinesh Abrol of CSIR Scientific Wrokers Association, Dr. Amit Sen Gupta of Delhi Science Forum, Dr. Mira Shiva, All India Drug Action Network and Dr. Vandana Shiva of Navdanya issued a joint statement on Thursday slamming Mashelkar for his report. The politburo also demanded steps to constitute another expert committee comprising "people with intellectual integrity and committed to uphold the common people's interests." Mashelkar, former head of Council of Scientific and Industrial Research, had recently written to the commerce ministry to allow the committee to "withdraw the report, re-examine it and resubmit a report, which meets with the requirements of the highest standards." -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070223/c753b69c/attachment.html From a_prabhala at yahoo.co.uk Fri Feb 23 15:29:39 2007 From: a_prabhala at yahoo.co.uk (Achal Prabhala) Date: Fri, 23 Feb 2007 15:29:39 +0530 Subject: [Commons-Law] [Economic Times] Allow incremental patents Message-ID: <06e401c75731$56dc4a40$0201a8c0@som.yale.edu> Allow incremental patents TIMES NEWS NETWORK[ FRIDAY, FEBRUARY 23, 2007 02:35:23 AM] Plagiarism is more a sin than a crime. The Mashelkar Committee on the Patent Act admits that “eight to ten lines” of its 56-page report are verbatim reproductions from a paper by an independent charitable British organisation that does research on intellectual property issues. That research was funded by an association of pharma companies. The committee has asked the report be withdrawn, and a fresh report be submitted within three months. Inevitably, people will speculate that drug MNCs have unduly influenced the committee. Predictably, the CPM has jumped into the fray and asked for the report to be junked. The committee had a limited brief. It was asked to assess whether India’s patent laws were TRIPS-compatible. The first was whether only new chemical entities could qualify for patents, or also lesser innovations. The second was whether micro-organisms could be excluded from patents. The committee concluded that TRIPS required both incremental and micro-organism patents. For this conclusion, it didn’t need plagiarised quotations. Clearly, the committee is guilty of cavalier lack of application. But nothing so far suggests it is guilty of being unduly influenced by MNCs. International practice varies on incremental innovations other than new chemical entities. MNCs have sometimes attempted evergreening of patents: when a patent on a drug is about to expire, they try to patent a new combination or dosage of the same drug. To stop this, many NGOs want patents limited to new molecules alone. However, most countries permit incremental innovations provided these pass the usual tests for patentability. Indian drug companies with strong R&D want incremental patents. Other Indian companies that specialise in generic drugs oppose them. Drawing a balance between the interests of affected groups, and keeping in mind the vital issue of affordable access to drugs by the common man, the committee suggests incremental innovations should be patentable, subject to stringent rules that thwart evergreening and frivolous patenting. Also, if incremental patenting is allowed, an Indian company can patent an improved version of an expensive drug patented by a global MNC. This will break the latter’s monopoly and allow the Indian drug to compete at a lower price. Thus incremental patents can improve rather than reduce consumer access to cheaper drugs. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070223/e2d2e442/attachment.html -------------- next part -------------- A non-text attachment was scrubbed... Name: not available Type: application/octet-stream Size: 43 bytes Desc: not available Url : http://mail.sarai.net/pipermail/commons-law/attachments/20070223/e2d2e442/attachment.obj From a_prabhala at yahoo.co.uk Fri Feb 23 15:32:14 2007 From: a_prabhala at yahoo.co.uk (Achal Prabhala) Date: Fri, 23 Feb 2007 15:32:14 +0530 Subject: [Commons-Law] [Indian Express] Pharmacy or Lab? Message-ID: <06f501c75731$b322e110$0201a8c0@som.yale.edu> http://www.indianexpress.com/story/23976.html Pharmacy or lab? Posted online: Friday, February 23, 2007 at 0000 hrs -- Patent report fracas showcases a pharma question. Activists can’t have a monopoly on the answer -- Below the radar of popular discourse but followed closely by the pharmaceutical industry and health activists is a court case in Chennai that explains why it was fortunate that following revelations of a part cut-and-paste job, the Mashelkar report on patent law has been withdrawn and will be resubmitted. Novartis has sued the Indian government for not issuing a patent on its anticancer drug, Glivec (also called Gleevec). The government has denied the patent on the ground that Novartis’s application did not constitute new innovation. Novartis argues this is too narrow an interpretation of patentability and that it is non-compliant with WTO patent rules. Activists are arguing that granting Novartis the patent will not only kill the cheaper generic option, imatinib, it will also start a chain reaction that will end in Indian generic companies not producing cheaper versions of expensive drugs for the world’s poor. The controversial para in the Mashelkar report is on this broad issue — it said that incremental innovations, that is, significant improvements on an existing patent, should be patentable. It was only a report, not a law, but it was already being quoted in patent debates. Had the report received official assent, and the issue of a cut-and-paste recommendation come up after that, India’s credibility would have been grievously damaged. As for the issue of granting patents to incremental innovations, three points are ignored by radical health activists. First, India’s pharma sector is at a stage where patent protection will increasingly become more important. Low cost but first-rate research talent and a solid pharma industry tradition are India’s advantages — we are better placed than China. Claims on patentable incremental innovation can’t be dismissed. Second, while many generics for difficult diseases are cheaper than patented products, they are still far too expensive for the typically poor person, whether in India or in Africa. So the question of affordability is a bit of a red herring. There’s a universal and huge problem in terms of the poor’s access to difficult-disease drugs — tweaking patent regimes can’t be the best answer. Third, the charge that India will not be pharmacy to the world is not fully true. Many generics are off-patent anyway. More, if India can be one of the laboratories of the world, it should not be content with being a mere pharmacy. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070223/7abf7b2b/attachment.html From a_prabhala at yahoo.co.uk Fri Feb 23 18:13:02 2007 From: a_prabhala at yahoo.co.uk (Achal Prabhala) Date: Fri, 23 Feb 2007 18:13:02 +0530 Subject: [Commons-Law] [Business Standard] Start Afresh Message-ID: <088801c75748$2b7ecaa0$0201a8c0@som.yale.edu> http://www.business-standard.com/common/storypage.php?autono=275577&leftnm=4&subLeft=0&chkFlg= Start afresh Business Standard / New Delhi February 23, 2007 The report of the R A Mashelkar-headed technical experts group (TEG) has been embroiled in bitter controversy ever since it was presented to the government over a month ago. But the charges of plagiarism that have led now to the withdrawal of the report by the panel’s chairman raise questions that go beyond these dissensions. As it happens, the portions of the report that were allegedly copied from a paper published by a UK-based, industry-friendly think tank, strengthen the argument of the report’s critics that the TEG recommendations favour multi-national drug companies, at the cost of home-grown companies. It would be best if the committee is now asked to forget the whole issue, because anything that it now says will face a credibility gap, and to appoint a new committee that will go into the issue, de novo. The Mashelkar committee report had held that the Indian patent law, as amended in 2005 after protracted deliberations, was incompatible with the trade-related intellectual property rights (TRIPs) agreement of the World Trade Organisation (WTO). As such, it suggested that the law should be amended so as to extend patenting to the new forms and uses of older entities, including those of products whose patents had expired. This caused concern in a large section of the domestic industry which feared that such a provision would create room for ever-greening of patents by international firms—who would claim new or incremental uses for old molecules and products. This would bring more drugs under (virtually indefinite) patent protection, and lead to higher prices. The other major conclusion of the Mashelkar panel—that the exclusion of micro-organisms per se from patent protection would be violative of TRIPs provisions—had evoked equally strong reactions. Microbes are of immense commercial importance for the entire bio-science industry, as they are donors of valuable genes, antibiotics, enzymes, proteins and other ingredients. The apprehension here has been that the patenting of microbes, which are the creation of nature, would limit access to them for the development of new drugs and other commercial products. TRIPs does provide for the patenting of microbes and the bio-technology processes applied to them, but most other global conventions on intellectual property leave the microbe-patenting regime fairly vague. This is true for the global Convention on Biological Diversity (CBD) and the Budapest Treaty on International Recognition of Micro-Organisms, administered by the Geneva-based World Intellectual Property Organisation (WIPO). What blurs the picture even further is the stand taken by several United Nations-sponsored bodies, that germplasm like microbes should be freely exchangeable for the generation of products and processes, the objective being the welfare of humankind rather than the commercial interests of a few. But these organisations are silent on the microbial collections that have already been patented by companies in different countries under their domestic laws. In view of all this, it is clear that there is need for a fresh look at the whole issue of patentability. A good opportunity for doing so has been provided by Prof. Mashelkar withdrawing his committee’s report. However, his offer to produce a freshly cast document will only lead to extending the life of the controversy over the panel’s views and how it arrived by them. It would be wiser to apply closure to this chapter and start a fresh examination of the complex issues involved. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070223/04ee79d2/attachment.html From chansoobak at yahoo.com Sat Feb 24 01:26:03 2007 From: chansoobak at yahoo.com (chan park) Date: Fri, 23 Feb 2007 11:56:03 -0800 (PST) Subject: [Commons-Law] =?utf-8?q?=28no_subject=29?= Message-ID: <534149.55714.qm@web37706.mail.mud.yahoo.com> The Novartis matter resumed today in the Madras High Court. Anand Grover, appearing for the Cancer Patients Aid Association, continued with his argument that unless a treaty provides for rights to private individuals in domestic courts, no declaration can be given by a domestic court for an alleged violation of an international treaty. Then he pointed out the factors in Articles 1, 7, 8, and 27 of TRIPS which have to be considered and which allow for flexibility in enacting TRIPS. He also pointed to 4bis of the Paris Convention, which provides for independence of patent determinations, which was incorporated by reference into TRIPS. He then discussed the WTO case involving the Canadian Bolar provision, in which the WTO dispute panel held that Article 27 does not prohibit bona fide exceptions to patentability for problems that exist only in certain product areas. He also pointed out that the WTO held that the fact that the legislation in question was targeted towards a specific area of technology did not render the statute in violation of the antidiscrimination provision in article 27 as long as the statute was broadly applicable in scope. He then argued that 3d was enacted to deal with the specific problem of evergreening, and that because it was facially neutral and applicable to all fields of technology, it was perfectly valid under Article 27 and the WTO’s interpretation of its requirements. He then pointed out that Parliament, when amending the Patents Act in 2005, was bound to consider not only its obligations under TRIPS, but it’s constitutional and international human rights obligations to protect and promote the right to health. In this context, he referred to Article 21 of the Indian Constitution, which guarantees the right to life, and subsequent judgments that had held that the right to health is incorporated into the fundamental right to life. He also pointed to numerous international human rights conventions, as well as the Protection of Human Rights Act, which placed upon Parliament the duty to achieve the highest attainable standard of health for its citizens. Therefore, read in light of these competing interests, section 3d could be read as a perfectly valid balance between India’s TRIPS obligations and its obligation to protect the health of its people. In discussing the objects and purposes of enacting section 3(d), he asserted that one of the primary purposes was to prevent evergreening. He argued that the problem of evergreening was a globally recognised problem. He cited the recent Canadian Supreme Court case, Apotex v. Astra Zeneca, which had restricted the ability of patent holding pharmaceutical companies to prevent generic competition by adding “bells and whistles” to already existing products. He then pointed to a study by the US Federal Trade Commission, which had studied the outcome of patent litigation between patent holding companies and their generic competitors. The study had found that in the vast majority of cases, it had been determined that the patent was ultimately found to be either invalid or not infringed. He submitted that this was an indication that many patents on derivates of known products served very little purpose other than to delay the entry of affordable generic competition. He then introduced Indian caselaw to show that it was permissible to look into Parliamentary debates to ascertain the objectives of a law. He then pointed to the statements by Commerce Minister Kamal Nath in Parliament, which indicated that section 3(d) was being enacted to combat evergreening. Therefore, in light of the problem that Parliament was seeking to solve, section 3(d) was a perfectly valid exercise with a rational relation to the objective of the statute. Therefore, there existed a rational nexus, and section 3(d) was not in violation of Article 14. He then addressed Novartis’ contention that because “efficacy” and “significant” were left undefined by Parliament, it was thus vague, arbitrary and invalid. He pointed to several authorities, which expressly held that in cases where legislation had to deal with a myriad of factual circumstances, the use of general, undefined expressions was perfectly appropriate, and was commonplace in the law. Next, he read closely the requirements of Article 27 of TRIPS, and contended that the exclusions specifically enumerated in paras 2 and 3 of Article 27 were not necessarily an exhaustive list of valid exclusions. He pointed out that the prohibition of a “new use of a known substance”, which Novartis itself had admitted was perfectly valid, could not be found under Article 27.2 or 27.3. Additionally, he listed many countries that excluded various categories form patentability, including business methods, forms of presentation, computer programs, and aesthetic creations. Thus, he concluded that paras 2 and 3 of Article 27 do not form an exhaustive list, that there was no generally accepted international practice on such matters, and that therefore section 3(d) was equally valid. Finally, he pointed out that it was a requirement under Indian law to clearly and unambiguously state in the substantive writ petition the facts upon which the constitutional challenge under Article 14 was based. Because Novartis failed to do so, its challenge on Article 14 was defective. Mr. Thyagarajan, appearing for the Indian Pharmaceutical Alliance, pointed to two other uses of the word “efficacy” in other Indian statutes, and observed that these words were not defined in these statutes either. Therefore, he concluded, Novartis’ complaint that “efficacy” was vague because it lacked a definition was misplaced. Mr. Vijayan, appearing for Sun Pharma, argued that because section 3(d) does not discriminate on the basis of nationality, it does not violate Article 14. He argued that the dispute settlement mechanisms under the WTO were exclusive, and thus Novartis could not seek a remedy in the Indian courts. Lastly, Mr. Bharat Raman, appearing for Natco Pharma, characterised the dispute as involving five questions: 1. Whether section 3(d) was TRIPS compliant; 2. If not TRIPS compliant, then could the law be struck down? 3. What was the rationale and justification for section 3(d)? 4. Is section 3(d) vague or ambiguous? 5. Even if ambiguous, could it be struck down as violative of Article 14? On the first issue, he adopted the arguments of Grover and Lakshmikumaran. Referring to the UNCTAD handbook on TRIPS, he pointed out that implementing legislation was presumed to be TRIPS compliant, and that the discretion to adopt measures to protect human health were in-built. On the second issue, he again asserted that the WTO dispute panel was the sole and exclusive forum for determining TRIPS compliance, and questioned why Novartis was pursuing the current action in an Indian court. He wondered whether Novartis had failed in persuading Switzerland to take India to the WTO dispute panel. If Novartis’ own home country would refuse to question the validity of India’s implementation of TRIPS, then he said that it would be doubly inappropriate for an Indian court to hold section 3(d) as incompatible with TRIPS. He then pointed to further authority to support the contention that in the case of a conflict between domestic and international law, domestic law will prevail, and therefore the law could not be struck down. On the third issue, Bharat claimed that section 3(d) was nothing more than a statutory recognition of the doctrine of equivalents, and was aimed at encouraging innovation while preventing evergreening. The doctrine of equivalents states that where a product is technically non-infringing, but nevertheless serves a similar purpose in a similar manner as that of a patented product, courts nonetheless may hold under the doctrine of equivalents that the product infringes the patent. Section 3(d), he argued, implicitly recognised this doctrine, and stated that a patent could be granted for similar products that were significantly different. He argued that Novartis used section 3(d) as an anchor during the examination phase, and even argued in terms of enhancement of efficacy, and only challenged section 3(d) when it was not granted a patent by the patent controller. He then cited to the Philippines bill, which reproduced, almost verbatim, the provision of section 3(d), claiming that imitation was the sincerest form of flattery. Unlike the Philippines bill, which was limited to drugs and medicines, he pointed out that section 3(d) was applicable to all fields of technology. On the fourth issue, he questioned whether the terms “efficacy” and “significant enhancement” were vague and arbitrary. He claimed that the concepts were not unknown in patent law, and many applicants, including Novartis, had compared the efficacy of its product to those already existing to justify its grounds for being granted a patent. He then stated that it would not be possible for Parliament to define every word used in every statute. He pointed to several differing concepts in the Patents Act that could feasibly be open to more than one interpretation but were left undefined by Parliament. He claimed that it was precisely the duty of the Court to give meaning and effect to broad terms used in a statute by ascertaining to the best of its abilities the object and purpose behind the legislation, and to adopt an interpretation that would best fulfil those purposes. He pointed out that the term “efficacy” was not an unknown term, even to Novartis. During the patent examination stage, Novartis had submitted an affidavit which claimed that its product “differed significantly in properties with respect to efficacy” from an earlier product. Finally, on the fifth issue, he claimed that even if the undefined terms in section 3(d) were in fact vague or ambiguous, it would not provide a basis for striking down the statute. Rather, he asserted that it was the duty of the Court to construe the vague terms in harmony with the aims and objects of the statue to give meaning to them. In solidarity, The Lawyers Collective HIV/AIDS Team, Anand Chan Julie Ramya --------------------------------- Never Miss an Email Stay connected with Yahoo! Mail on your mobile. Get started! -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070223/15f9534b/attachment.html From jeebesh at sarai.net Sat Feb 24 10:33:13 2007 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Sat, 24 Feb 2007 10:33:13 +0530 Subject: [Commons-Law] Fwd: [PRC] When is a standard not a standard (sub-titled Microsoft and BIS)? References: <1172237150.9569.42.camel@anubis> Message-ID: First a warm congratulation to Chen and Achal for their investigative intelligence and public spirit. Great work. below is a mail that shows similar processes around the question of standards in IT. best jeebesh Begin forwarded message: > From: Gora Mohanty > Date: 23 February 2007 6:55:50 PM GMT+05:30 > To: ilugd , prc > Cc: "Nagarjuna G." , "Dr. Sanjeev Singh" > , Kiran Chandra , Robert > Adkins , Prabir Purkayastha > , Guntupalli Karunakar , > Rahul De , Venkatesh Hariharan > , Alolita Sharma , Arun M > , Ravikant , Mishi Choudhary > > Subject: [PRC] When is a standard not a standard (sub-titled > Microsoft and BIS)? > Reply-To: Free/Libre and Open Source Software Project List > > > (This message is being sent primarily to the ILUG-Delhi and Sarai PRC > mailing lists, but is also copied to people that Venkatesh Hariharan > had sent the original message to. Please note that henceforth, I will > only be following up on the ILUG-Delhi list. You have to join the > list > to post there (see > action=mailingLists> > ), but the archives are available publicly at > http://frodo.hserus.net/pipermail/ilugd/ and > http://news.gmane.org/gmane.user-groups.linux.delhi/ ) > > Hello, > I had the (mis-)fortune of attending a seminar on Information > Technology Standardization [sic] organised for the Bureau of > Indian Standards (BIS), by MAIT. The ostensible reason for the > meeting was to identify requirements of the IT industry in order > "to formulate effective, meaningful and implementable standards". > The background for this is an effort by Microsoft to push through > a 6000-page document on Office Open XML (OOXML), presumably as a > counter-standard to Open Document Format (ODF). Details on this are > available on Venky's blog at http://www.osindia.blogspot.com/ > > Due to other commitments, I had time to attend only the inaugural > session, which had a keynote address by Craig Mundie, the chief > research and strategy officer of Microsoft Corporation. Incidentally, > Microsoft was the only company represented on the panel, and allowed > to give a formal presentation, though representatives from open-source > companies, and the community were also present. Questions on the > talks were also not entertained. What was frankly disgusting was the > attitude of BIS officers, even those of senior ones, towards > Microsoft; > going beyond courtesy, and even obsequiousness, to border on > servility. > The HP laptop being used for the presentation prominently displayed > the > Microsoft Vista logo. > > Mr. Mundie's presentation was, in my opinion, a masterpiece of > double- > speak, and fascinated me so much that I made sure to make a transcript > of his slides. Apparently, having solved issues with security, > privacy, > and reliability, Microsoft has been focusing on inter-operability over > the last 1.5 years. While this might seem like great news, Mr. Mundie > was diligent in avoiding any specific commitments, such as the simple > one of guaranteeing that any Microsoft application will be able to > export to an openly-published, patent-unencumbered, standard format, > without loss of information. While the presentation went ahead to > extol > the virtues of meta-data, and the use of XML data formats, Mr. Mundie > somehow omitted to mention that XML does not automatically imply > openness, or freedom from patent restrictions. Finally, it seems to be > the opinion of Mr. Mundie that industry standards are needed to keep a > check on "unconstrained innovation", which leaves me wondering how > Microsoft knows about innovation, unconstrained or otherwise. > > Fun and games aside, I think that it is worthwhile for the open- > source > community in India at large to formulate a coherent position on the > use > of openly documented, and patent-free standards for any government > data, > and to publicise the same to both government organisations, and the > media. It is our data, so we should have an absolute guarantee of > freedom in using it. I believe that Venky is drafting such a > document, > that we can put up on a Wiki, and use as a basis for a formal policy > paper. > > Regards, > Gora > > Knowlege is power... share it equitably! > > _______________________________________________ > prc mailing list > prc at sarai.net > https://mail.sarai.net/mailman/listinfo/prc From a_prabhala at yahoo.co.uk Sat Feb 24 11:01:01 2007 From: a_prabhala at yahoo.co.uk (Achal Prabhala) Date: Sat, 24 Feb 2007 11:01:01 +0530 Subject: [Commons-Law] [Times of India] Mashelkar draws health activists' ire Message-ID: <00e201c757d4$fa455700$0201a8c0@som.yale.edu> The Times of India Online Printed from timesofindia.indiatimes.com > India Mashelkar draws health activists' ire Nitin Sethi [ 24 Feb, 2007 0242hrs ISTTIMES NEWS NETWORK ] NEW DELHI: There's bad plagiarism and there's good. And those arguing against the first are waving the second as a major triumph. Former CSIR chief R A Mashelkar's verbatim insertion of arguments from a pro-industry research paper into his report on the tenability of the Indian Patents Act has public health activists up in arms but the one by Philippines has them smiling with the argument that it blows the bottom out of the former's contention that the Act does not conform to TRIPS. Mashelkar may be on a weak wicket now. The Philippines government has pinched the contentious clause from the Indian Patents Act into its patent regime. Given its own robust generic drugs industry, the action by the tiny country, it is argued, demonstrates that the clause is compatible with the international regime. Contrary to this, the expert committee headed by the former CSIR chief examining if the said clause was tenable in the face of India's commitment to international agreement on patents has vociferously argued that it needs to be junked. The report, however, is caught now in a wrangle over plagiarism with charges that it backed its arguments against the clause with arguments copied verbatim from a research paper, funded by international pharmaceutical groups, and compiled to mobilise opinion in favour of the patents regime and evergreening of old patents. 'Evergreening' means any small change in an existing drug would enable an extended monopoly to the patent holder. This has emerged as a major bone of contention with a strong lobby arguing that it would perpetuate monopolies and jack up drug prices. Phillipines has added a chapter in its patents law Act No 8293 to provide for the safeguards against pharmaceutical industry procuring patents on older drugs by merely tweaking the content a bit with no substantial gains in the effectiveness of the medicine. The fact that another developing country, with a substantially-sized generic drug industry, has adopted a similar clause, public health activists believe, reaffirms that the clause is in tune with international TRIPS regulations, and that the Mashelkar report is incorrect. Mashelkar has now asked the government to let him re-submit the report. The government is yet to respond to his request. Mashelkar though continues to defend the report. "We went by the legal opinion of the experts on the technical committee. But in case the government asks us to review we shall. Till date, the government has not got back to us on it," he told TOI on Friday. N R Madhava Menon, one of the two legal experts on the panel too remained defiant. http://timesofindia.indiatimes.com/Mashelkar_draws_health_activists_ire/articleshow/1670383.cms -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070224/0608f437/attachment.html -------------- next part -------------- A non-text attachment was scrubbed... Name: not available Type: application/octet-stream Size: 43 bytes Desc: not available Url : http://mail.sarai.net/pipermail/commons-law/attachments/20070224/0608f437/attachment.obj From a_prabhala at yahoo.co.uk Sat Feb 24 11:16:19 2007 From: a_prabhala at yahoo.co.uk (Achal Prabhala) Date: Sat, 24 Feb 2007 11:16:19 +0530 Subject: [Commons-Law] Cow urine isn't all bull Message-ID: <015301c757d7$1d1fffd0$0201a8c0@som.yale.edu> >From 2002: -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070224/4b1dad2a/attachment.html From chansoobak at yahoo.com Sat Feb 24 14:07:19 2007 From: chansoobak at yahoo.com (chan park) Date: Sat, 24 Feb 2007 00:37:19 -0800 (PST) Subject: [Commons-Law] BusinessWorld: Mashelkar retreats Message-ID: <20070224083719.7151.qmail@web37703.mail.mud.yahoo.com> http://www.businessworld.in/issue/news01.asp The legal challenge to India’s patent laws from Swiss drug giant Novartis has taken a knock with a crucial report that it is banking on being withdrawn by its authors. In an unprecedented move, R.A. Mashelkar, former director-general of the Council of Scientific and Industrial Research (CSIR), asked the government on 19 February to withdraw the report of the Technical Expert Group (TEG) that he had headed on account of “certain technical inaccuracies that have inadvertently crept in”. India’s chief boffin, who submitted the report before demitting office last December, offered his “unconditional apologies” to the government while taking full responsibility for “this unfortunate development”. Mashelkar has been accused by lawyers and health activists of pandering to the multinational drug lobby after Novartis submitted the TEG report to the Madras High Court on 15 February. Novartis is challenging a specific prohibition in the law, Section 3 (d), which restricts the grant of patents. The Lawyers Collective, which is fighting the Novartis petition on behalf of the Cancer Patients Aid Association, had accused the TEG of lifting verbatim a paragraph from a 2006 report on limiting patentability by the Intellectual Property Institute (IPI), a UK-based think-tank that had submitted its position to the group. The Lawyers Collective pointed out that the report was authored by Shamnad Basheer, a doctoral student and an associate at the Oxford Intellectual Property Research Centre, University of Oxford, had been crowing on his website about his coup in getting the critical paragraph in the TEG report. They allege Basheer’s research was commissioned by the IPI and financially supported by Interpat, a Swiss association of major European, Japanese and US research-based drug companies committed to the improvement of intellectual property laws around the world. Basheer had last month hailed the TEG’s recommendations, which support the contention of Novartis, as “a very sensible suggestion to me — not least because these conclusions were extracted from a report that I submitted to the committee”. Basheer had said it “flatters one to know that the extraction happened verbatim, though I would have been happier had the committee cited the source”. Mashelkar appears to have been left with little choice after the expose. However, his contention that he would submit a new report in three months after rectifying the errors, begs a question. Can a discredited committee be allowed to make a fresh submission without a new mandate? Top officials of the department of industrial policy and promotions (DIPP), which is looking at the report, were unavailable for comment. The government, meanwhile, is under pressure from the Indian drug industry to appoint a proper defence team to counter the challenge to its patent law. --------------------------------- Don't be flakey. Get Yahoo! Mail for Mobile and always stay connected to friends. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070224/f5faf333/attachment.html From a_prabhala at yahoo.co.uk Sat Feb 24 17:27:33 2007 From: a_prabhala at yahoo.co.uk (Achal Prabhala) Date: Sat, 24 Feb 2007 17:27:33 +0530 Subject: [Commons-Law] Indian Express: Plagiarised report figures in Novartis hearing Message-ID: <03a901c7580a$f98022b0$0201a8c0@som.yale.edu> http://www.indianexpress.com/story/23991.html Plagiarised report figures in Novartis hearing Jaya Menon Posted online: Friday, February 23, 2007 at 0000 hrs IST Chennai, February 22 The controversy over the R A Mashelkar-headed committee on patent law admitting to plagiarism figured prominently in the Madras High Court today, where a legal battle is on for a patent for an anti-cancer drug manufactured by Swiss pharmaceutical major Novartis AG. The Union Government, represented by Additional Solicitor-General V T Gopalan, defended Sec 3(d) of the Amended Indian Patents Act 2005, arguing before a Division Bench of the Madras High Court that it neither violated TRIPS (Agreement on Trade Related Aspects of Intellectual Property Rights of the World Trade Organization of which India is a signatory) nor provides “an unguided power to patent controllers to reject applications on the ground that they are not inventions.” Referring to Mashelkar’s admission that the report of the committee headed by him had lifted some lines “ad verbatim” from “other sources”, advocates V Lakhsmi Kumaran and Arvind P Datar representing pharmaceutical companies Ranbaxy and Cipla Pharmaceuticals respectively, took the stand that the report “can’t be used to argue whether Section 3 (d) of the Amended Patents Act 2005 is TRIPS-compliant or not”. They contended that a statutory provision could not be struck down on the ground that it went against an international treaty. When arguments in the case began in Madras High Court, senior counsel Soli Sorabjee and Shanthi Bhu- shan argued on behalf of Novartis that the impugned provision provided “uncanalised and arbitrary power” to patent controllers to reject patent applications even if they were new or inventive. “ ,” they said. Sec 3(d) says that “the mere discovery of a new form of a known substance which does not enhance its known efficacy will not be taken as an invention”. The Assistant Controller of Patents and Designs said the compound did not differ significantly in properties with regard to efficacy as compared to other similar compounds. Novartis’ contention is that the provision violated the articles of TRIPS. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070224/9cb5b480/attachment.html From a_prabhala at yahoo.co.uk Sat Feb 24 17:32:26 2007 From: a_prabhala at yahoo.co.uk (Achal Prabhala) Date: Sat, 24 Feb 2007 17:32:26 +0530 Subject: [Commons-Law] Outlook: "Certain Inaccuracies Have Crept In" ++ Why was the report withdrawn? Message-ID: <03b701c7580b$a8f60b10$0201a8c0@som.yale.edu> http://outlookindia.com/full.asp?fodname=20070305&fname=Mashelkar+%28F%29&sid=1 and http://outlookindia.com/full.asp?fodname=20070305&fname=Mashelkar+%28F%29&sid=2 Magazine| Mar 05, 2007 controversy: mashelkar report 'Certain Inaccuracies Have Crept In' A contrite but defiant Mashelkar withdraws his patent report ALAM SRINIVAS Charges a.. Accepting Mashelkar Committee’s conclusion would dilute India’s patent laws, and favour pharma MNCs b.. It will let MNCs file frivolous patents, retain ‘evergreen’ monopoly. Prices of life-saving drugs will shoot up. c.. It will help MNCs use the report’s conclusion to force India to change the guiding Section 3(d) in the existing Act d.. The Mashelkar Committee plagiarised its conclusion from a November 2005 paper by Shamnad Basheer Defence a.. It won’t change the existing law; the panel’s terms of reference were only to judge a technical/legal issue b.. All nations, including India, can set their own benchmarks and threshold limits to prevent this c.. Section 3(d) is not even mentioned in the report; it says the patent office should have the strictest guidelines d.. 8-10 sentences were lifted verbatim from Basheer’s paper; it was an error on the part of a subcommittee *** "...certain technical inaccuracies in the Report...have inadvertently crept in.... (The Committee members) are all of the unanimous opinion that following the best ethical practices...we should withdraw the Report, re-examine it and resubmit a Report which meets the highest standards...." —R.A. Mashelkar in a letter (19 February, 2007) to the commerce ministry on why he was withdrawing his patent law report submitted in December 2006 With this letter of withdrawal, Mashelkar, the icon of Indian science, has sought to pull the curtains down on the ongoing controversy relating to India's patent laws. In the past few weeks, charges have been hurled against all the participants. Ranging from plagiarism to character assassination, half-truths to anti-nationalism, conspiracy theories involving MNCs and academics to disrespecting multilateral treaties, the allegations have clouded the facts and highlighted the murkiness in the pharma sector. But it's not the end of this battle between big business and the poor public. For, it's also a tussle between ideologies. It's an unending fight for supremacy between politics, economics and social good. For some individuals, who have been forced to defend their credibility and integrity, it's become a personal struggle. At the epicentre of this patent tsunami is the former chief of the Council for Scientific and Industrial Research (CSIR), Mashelkar. It started when a committee headed by him submitted its report to the government last December. His critics branded him as anti-national, espousing the cause of pharma MNCs and toeing the pro-West line. His opponents said if the report was accepted, it would make the prices of life-saving drugs shoot up and render them inaccessible to the poor. One of the conclusions of the Mashelkar Committee was that India cannot "limit granting of patents for pharmaceutical substance to new chemical entities only". Such a stance or law, it said, wouldn't be compliant with the TRIPS (Trade-Related Aspects of Intellectual Property Rights) agreement under the WTO ambit. Public health groups and NGOs screamed that this would dilute the provisions of India's patent laws, which were anyway being framed under international pressure. They said allowing limitless patents to pharma firms will lead to what's commonly known as 'evergreening'. Globally, most MNCs try to continuously extend their product patents by instituting small chemistry-related changes.In developed countries, where laws favour innovation and corporate entities, they succeed too. But in developing nations like India, it can lead to higher prices as the MNCs can charge whatever they wish due to their 'ever-green' monopoly over a patent. In an exclusive interview with Outlook, Mashelkar maintains that neither he nor his report are anti-national. "At the end of giving one's best to the country for 64 years, I and my family feel deeply pained and grieved. There are several misperceptions about Mashelkar," he says. According to him, the general impression is that the report "should have addressed the issue of how to make drugs available and accessible to the poor. But that was not the mandate." As per the committee's terms of reference, it had to look into TRIPS-compatibility of a limited patent regime. "The TOR was whether it was compatible or not. The answer was either yes or no, and why. It wasn't about public health. It was on a technical and legal issue," explains Mashelkar. He thinks the committee's conclusion will not dilute the existing laws. "What we have said is that the law can't block out incremental innovation and limit itself to only new compounds," he elaborates. The logic is that the discovery of a new compound or molecule is rare. Most of the new drugs are developed through incremental innovation. Therefore, these products should not, and cannot, be denied patents as it will scuttle research and prevent new drugs from entering Indian markets. What India can do—and which is allowed under TRIPS—is to have laws that will increase the benchmarks or threshold limits while granting patents. This is the purpose of Section 3(d) of India's Patent Act, which was introduced in 2005 when India shifted from process to product patent regime. Under the section, patents can be given for incremental innovation only if the pharma firm can prove that the new drug has higher efficacy levels. It has been able to stall the drug-makers from filing 'evergreen' patents for those with minor changes. This is where the second twist appears in the Mashelkar saga. NGOs and public health bodies feel that pharma MNCs can use the conclusions of the Mashelkar report to wriggle out of Section 3(d) and even put India under pressure to scrap it. Since the Mashelkar Committee has commented on a general principle relating to patents, and the guiding principle under Indian laws is Section 3(d), anyone can use the former to attack the latter. Novartis, the Swiss giant—which has dragged the government to court on the issue that Section 3(d) violates WTO obligations—has done that. In an e-mail response, Novartis said the report indicates that "Section 3(d) curtails the definition of 'invention' under TRIPS and (is) hence non-compliant with TRIPS." In short, it implied that India's refusal to grant a patent for its Glivec/Gleevec on the basis of Section 3(d) was wrong. Glivec/Gleevec, says Novartis, contains a new salt that has led to a new usage—treating blood cancer patients. The company feels that it is "one of the major breakthroughs of the 20th century" and, thus, it needs to be patent-protected. Novartis points out that even the Mashelkar Committee "supports our view that India's denial of a patent was not in line with international agreements." And the company adds there will be no impact on Glivec prices even if it won the court case as "there is no commercial market for Glivec in India." The anti-MNC lobby disagrees. It contends that the domestic price of Glivec/Gleevec is one-tenth the global cost. More important, it feels that Novartis hasn't innovated its old drug, or improved it.So, if Novartis wins the case, it will set a precedent for other drug MNCs to follow. All of them will inundate the patent office with new, minor forms of old drugs. Result: evergreening, a dramatic rise in domestic prices of life-saving drugs, and anti-poor policies from a public health perspective. Mashelkar supports this logic and says that he's "in total agreement with Section 3(d). The benchmarks that we set depends entirely on us. It is for any individual country to decide the threshold limits and it is through these thresholds that the governments can exercise control." He adds that pharmaceutical companies can't use his report to fight Section 3(d). "We have said that the patent office should have the strictest guidelines with regard to what constitutes the criteria (including novelty) of a patent. There's no reference in the report that we should modify 3(d)," he explains. Now that Mashelkar has withdrawn the report, he hopes the criticism against it will stop and the outcry will die down. Moreover, Novartis will be unable to use Mashelkar's logic during the Glivic/Gleevec court hearings that started in the Madras High Court last week. That will definitely make the anti-MNC lobby happy. And that should help Mashelkar relax a bit. As he ends his interview with Outlook, he makes a last ditch attempt to re-defend himself: "Throughout my life, I have followed my mother's preachings. The first was that one should never do anything in self-interest and, second, that one should never harm anyone." Magazine| Mar 05, 2007 Controversy Why Was The Report Withdrawn? Was Mashelkar's report plagiarised from a 2005 paper? Or was it a clerical error? What prompted R.A. Mashelkar to withdraw his report? Was it due to plagiarism charges, or was it because it was attacked as being against national interests? Going by the letter (19 February, 2007) he wrote to the commerce ministry, it seems it was done to uphold "scientific ethics" and not because of its "conclusions". Mashelkar himself admits he was shocked when he read media reports that the most critical conclusion in the report had been lifted verbatim from a November 2005 paper by Shamnad Basheer, who's now the visiting associate professor in intellectual property law at the George Washington University Law School. The problem was compounded when critics wove a conspiracy theory linking academicians to pharma MNCs. They said Basheer's paper was sponsored by the Intellectual Property Institute, which has links with INTERPAT, an association of pharma firms whose members include Novartis. The CEO of Novartis (India) heads INTERPAT in India, and his firm is fighting a legal battle to influence India's patent laws to bring them in line with the developed world. The conclusion: Mashelkar was toeing the pro-West line too. Mashelkar says he was surprised when he found out later that "8-10 sentences were verbatim" compared to Basheer's paper. He maintains it was a "copying error by the subcommittee" that wrote the draft and it was impossible to find out the mistake as the committee received dozens of submissions and presentations from the industry and the academic field. "I take full responsibility as I have been very scrupulous in the past, and the nation has trusted me with 11 other reports (including one on Bhopal gas tragedy). It's a wrong assumption to say it's plagiarism and to attach motives to it are distortions," says Mashelkar. In a telephonic talk, Basheer contends that "just because a research project has been sponsored by a pharma association, it doesn't mean the analysis is biased." In his paper, he wrote that "this legal opinion is prepared in my private capacity, but is endorsed by the IPI." Other acdemicians say that one ought to independently assess the merits of an academic report to see if its conclusions are well-reasoned and based on rigorous analysis, before dismissing it as being biased. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070224/6c8bafcc/attachment.html -------------- next part -------------- A non-text attachment was scrubbed... Name: not available Type: application/octet-stream Size: 49 bytes Desc: not available Url : http://mail.sarai.net/pipermail/commons-law/attachments/20070224/6c8bafcc/attachment.obj -------------- next part -------------- A non-text attachment was scrubbed... Name: not available Type: image/jpeg Size: 2255 bytes Desc: not available Url : http://mail.sarai.net/pipermail/commons-law/attachments/20070224/6c8bafcc/attachment.jpe From a_prabhala at yahoo.co.uk Sat Feb 24 17:34:15 2007 From: a_prabhala at yahoo.co.uk (Achal Prabhala) Date: Sat, 24 Feb 2007 17:34:15 +0530 Subject: [Commons-Law] Indian Express - Mashelkar replies: I stand by the patent report, 100 per cent Message-ID: <03d401c7580b$e91795b0$0201a8c0@som.yale.edu> http://www.indianexpress.com/story/24124.html Mashelkar replies: I stand by the patent report, 100 per cent Amitabh Sinha Posted online: Saturday, February 24, 2007 at 0000 hrs IST New Delhi, FEBRUARY 23 Strongly defending his report which argues for encouraging patents for “incremental innovations,” R A Mashelkar, former Director General of the Council of Scientific and Industrial Research, has said he is “deeply hurt” by the attack on his integrity. Left leaders, activists and even the generic drug industry, seized on one paragraph in the report that was reproduced ad verbatim from a lawyer’s testimony to accuse the panel of “disguising MNC interest as national interest.” “Just because one paragraph has been reproduced from another source without attribution, you cannot bomb the principles on which it was based,” Mashelkar told The Indian Express today. “I stand by the report and its findings, 100 per cent...It’s an attack on my integrity. Sixty-four years of my services are being sought to be trashed because of one error that inadvertently crept in. I will not let this happen.” Taking a dig at the pharmaceutical companies criticizing the report, he said, “These are the same companies who are claiming patents on similar innovations in other countries like Brazil. But they do not want the same principle to be applied here. Such double standards do not work.” Mashelkar and four other experts were told to examine, besides other things, whether patents could be granted on “incremental innovations” — improvements made on an existing substance — in the drug industry. Mashelkar’s committee concluded that under the TRIPS (Trade Related Intellectual Property Rights) regime, to which India subscribes, incremental innovations can indeed be patented, provided the conditions of novelty, non-obviousness and utility are met. “Incremental innovations have to be allowed to be granted patents. This is how science will advance. There are hardly 30-35 new chemical entities discovered every year but hundreds of incremental innovations are registered.” Mashelkar, who retired as the director general of Council for Scientific and Industrial Research (CSIR) in December last year after 11 years at the helm, said the committee had made it very clear that it was against “ever-greening,” a term used to describe the efforts of companies to obtain patents after making trivial changes in existing substances. “The Committee is explicit in not allowing any frivolous patenting. We are completely against ever-greening,” he said. “But incremental innovation is a fact of life. We have to accept that.” In the panel’s 56-page report submitted to the government, one paragraph was found to have been reproduced from a submission made to the committee by lawyer Shamnad Basheer, currently a professor in intellectual property law at the George Washington University Law School. Following the discovery, Mashelkar wrote to the government asking it to withdraw the report and expressing apologies for the error which had crept in during the time of drafting of the report by a sub-group of the committee. LOOK WHO THE LEFT SAYS HAVE SOLD OUT Besides Mashelkar (above), the following were on the panel: •n Prof Goverdhan Mehta, Director, Indian Institute of Science, Bangalore • Prof Asis Datta, Director, National Centre for Plant Genome Research • Prof N R Madhava Menon, Director, National Judicial Academy, Bhopal • Prof Moolchand Sharma, Director, National Law Institute University, Bhopal -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070224/1d37ba55/attachment.html From a_prabhala at yahoo.co.uk Sun Feb 25 23:56:24 2007 From: a_prabhala at yahoo.co.uk (Achal Prabhala) Date: Sun, 25 Feb 2007 23:56:24 +0530 Subject: [Commons-Law] DNA: Empty Allegations Message-ID: <00f301c7590a$78c5c340$0201a8c0@som.yale.edu> http://dnaindia.com/report.asp?NewsID=1081968 Empty allegations Sunday, February 25, 2007 20:32 IST Shamnad Basheer -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070225/37609b41/attachment.html From a_prabhala at yahoo.co.uk Sun Feb 25 23:57:53 2007 From: a_prabhala at yahoo.co.uk (Achal Prabhala) Date: Sun, 25 Feb 2007 23:57:53 +0530 Subject: [Commons-Law] DNA: Empty Allegations Message-ID: <011101c7590a$abd693e0$0201a8c0@som.yale.edu> http://dnaindia.com/report.asp?NewsID=1081968 Empty allegations Sunday, February 25, 2007 20:32 IST Shamnad Basheer Faced with allegations of plagiarism, Dr R A Mashelkar has withdrawn the report of the Committee he was heading. Many critics have alleged that the Committee ‘plagiarised’ key conclusions from a report I wrote. In their attempt to discredit the Committee, they have also called into question my academic integrity. I therefore thought this an opportune time to reflect on the current discussions around the report, which unfortunately, have been premised on factual inaccuracies and mistaken assumptions. I first deal with their charge of plagiarism. It is unfortunate that certain statements from my blog (spicyipindia.blogspot.com) were drawn upon to support the allegation that the Committee ‘plagiarized’ from my report. This is not correct, as amply borne out by the last sentence in the blog: “To be fair to the Committee, they did include the crux of my submission in an Annex to their Report.” In other words, the Committee did include the key points in my submission as an Annexure, as they did with every other submission (about 24 in all) that was made to them. Those with the patience to read the entire report including the Annexures would have gathered that some of the Committee’s observations were only borrowed from my report and not ‘plagiarized’. The Committees mandate was to address the following issues: a) Whether it would be TRIPS (Trade Related Aspects of Intellectual Property) compatible to limit the grant of patent for pharmaceutical substance to new chemical entity [NCE] or to new medical entity involving one or more inventive steps; and b) Whether it would be TRIPS compatible to exclude micro-organisms from patenting. These are critical issues for the Indian pharmaceutical industry. The mandate was only to examine whether certain prospective provisions that are sought to be introduced into Indian patent law would be compatible with the WTO Agreement on TRIPS. The Committee was not mandated to examine provisions that already existed in the patent regime. The key conclusions of the Mashelkar Committee were that these two prospective provisions, if introduced into Indian patent legislation would contravene TRIPS. These conclusions were borrowed from conclusions that I had arrived at whilst doing a report on the same theme titled Limiting the Patentability of Pharmaceutical Inventions and Micro-organisms: A TRIPS Compatibility Review. This report was commissioned by the Intellectual Property Institute (IPI), UK. This report, funded by Interpat (an association of multinational pharmaceutical companies) has caused some critics to allege that the Committee report merely reflected an industry agenda. This allegation rests of certain incorrect assumptions: that anything funded by industry has to necessarily represent an industry view, despite the fact that the person commissioned holds himself out as an objective and independent academic. They claim the Mashelkar Committee blindly relied on the conclusions of my paper, without exercising any independent judgment of its own. Though, its members are distinguished academics and known for their integrity. Most importantly, these kind of ad hominem or personal attacks do not answer the question: is there something wrong with the analysis of TRIPS undertaken by me and relied on by the Committee? Having studied the subject in some detail, my own view is that the term ‘invention’ as used under TRIPS is to be vested with some basic meaning i.e. at the very least, it denotes something of “technical” import. It the term was freely interpretable according to the whims of member states, we could end up with a situation where a member state may argue that it needn’t grant patents at all, since its unique lexicon suggests that nothing ever amounts to an “invention” under Article 27. Lastly, as I point out in my blog, although the Committee got it’s conclusions right, their key failing was in not demonstrating how they worked through the TRIPS issues/analysis in their report. And to this end, it is commendable that they retracted the report and offered to resubmit it. I hope everyone uses this “resubmission” window to engage in a fuller analysis with TRIPS. This will pave the way for a more robust debate on this report and its findings and help us move away towards a better evaluation of the substantive issues involved here. The author is Visiting Associate Professor of Intellectual Property Law at the George Washington University Law School. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070225/ffa4078d/attachment.html From sunil at mahiti.org Mon Feb 26 16:53:49 2007 From: sunil at mahiti.org (Sunil Abraham) Date: Mon, 26 Feb 2007 16:53:49 +0530 Subject: [Commons-Law] DNA: Empty Allegations In-Reply-To: <011101c7590a$abd693e0$0201a8c0@som.yale.edu> References: <011101c7590a$abd693e0$0201a8c0@som.yale.edu> Message-ID: <1172489030.6672.9.camel@localhost.localdomain> A more complete version from the Spicy IP Blog: http://spicyipindia.blogspot.com/2007/02/deconstructing-mashelkar-committee.html Coming as I do from the relatively apolitical world of research and academia, the events of the last two weeks have taken me by surprise and left me wondering as to how easy it is for the substantive issues in any debate to get sidelined. I thought I’d reflect on the “real” issues surrounding this controversy once the “name” calling and personal/ad hominem attacks had died down. But it only seems to be getting worse. Friends keep asking me as to why I haven't said anything on my blog yet. I therefore thought this an opportune time to attempt to deconstruct some of the arguments that are being flung around in this controversy. I wrote a letter to the TOI and Hindu in response to the editorials that first sparked off this controversy and include it below.Unfortunately, despite more than a week going by, neither of these papers have published this. Fortunately, the DNA carries some of the key points that I'd stated in the respose to the TOI and the Hindu. See http://dnaindia.com/report.asp?NewsID=1081968. Also, the Hindu Business Line carried my interview where I have tried to clarify some of the factual inaccuracies regarding this debate--see http://www.thehindubusinessline.com/2007/02/24/stories/2007022402940700.htm TO THE EDITOR OF THE TIMES OF INDIA Dear Sir/Madam: This refers to your article dated 12 February 2007, titled “Patent Wrong” by Chan Park and Achal Prabhala. In the process of critiquing the Mashelkar Committee Report, the authors have called into question my academic integrity, albeit indirectly. They have also alleged that the Committee “plagiarized” key conclusions from my submission. I first deal with their charge of plagiarism, since I am the alleged “victim” here. They attempt to substantiate their claim of plagiarism by selectively quoting from my blog. They however omit the most critical part of my blog statement in this regard “To be fair to the Committee, they did include the crux of my submission in an Annex to their Report.” In other words, the Committee did include my submission as an Annexure, as they did with every other submission (about 24 in all) that was made to them. It bears noting in this regard that the Committee received submissions from a variety of IP stakeholders including industry (Ranbaxy, Biocon, IPA, IDMA), civil society groups (ALF, MSF), law firms (Lex Orbis, K&S Partners), IP Associations (AIPPI) and even retired members of the judiciary (Justice Krishna Iyer). Those with the patience to read the entire report including the Annexures would have gathered that some of the Committee’s observations were borrowed from my report to them. This being so, qualifying their borrowing of some of my conclusions as “plagiarism” is incorrect. Park and Prabhala may not have intended this, but their writing casts aspersions on my academic integrity. If I understand their argument correctly, it runs something like this: 1. Shamnad Basheer is commissioned to write a paper on certain TRIPS issues for the purpose of submission to the Mashelkar Committee. 2. The paper is commissioned by the Intellectual Property Institute (IPI), with funding from Interpat. 3. Therefore, this paper necessarily reflects the industry position of Interpat. 4. Therefore, Shamnad Basheer exercised no independent judgment, but merely reiterated Interpat’s industry position. 5. The Mashelkar Committee was wrong to rely on the conclusions of a paper that reflects Interpat’s position. These “leaps of logic’ rest on certain incorrect assumptions: 1. Anything funded by the pharmaceutical industry has to necessarily represent an industry view/position, despite the fact that the person commissioned holds himself out as an objective and independent academic. 2. The IPI is an “industry think-tank” that always resonates industry positions on all issues, despite the fact that its website (http://www.ip-institute.org.uk/) makes clear that is an independent charitable organisation which organises and peer reviews IP research. 3. The Mashelkar Committee blindly relied on the conclusions of my paper, without exercising any independent judgment of its own, despite the fact that it comprises members who are highly distinguished in their respective fields and known for their integrity. Most importantly, the Park and Prabhala paper does no more than beg the question: is there something wrong with the analysis of TRIPS undertaken by me and relied on by the Committee? Park and Prabhala brush off this rather nuanced issue on TRIPS compatibility with broad statements such as “the report overlooks these (TRIPS) flexibilities—even the judgment of the WTO on this matter”. Their note omits to explain as to what these “flexibilities” are, or where, in their opinion, the said flexibilities stem from and more importantly, which judgment of the WTO they are relying on—particularly, when there is not “one” but several WTO panel decisions dealing with TRIPS. Article 27 of TRIPS mandates that patents shall be granted to all “inventions” in all “fields of technology”, provided such inventions are new, non obvious and have utility. Having studied TRIPS in some detail and now teaching it to graduate students at the George Washington University, my own view (as expressed to the Committee in more than 35 pages in a report that is now the subject matter of controversy) is that the term “invention” as used in Article 27 of TRIPS is to be vested with some basic meaning i.e. at the very least, it denotes something of “technical” import. Were it to be a term “freely” interpretable according to the whims of member states, we could end up with a situation where a member state may argue that it needn’t grant patents at all, since its unique lexicon suggests that nothing ever amounts to an “invention” under Article 27. In short, the term invention would be rendered redundant and such a result would fly in the face of a basic tenet of treaty interpretation that is well accepted under international law—that one cannot read a treaty term in a manner as to render it redundant. Incremental pharmaceutical inventions are very “technical” in nature, and ought to fall within even the lowest common denominator that any sensible reading of the term “invention” would offer. As such, their exclusion from patentability (when the other patentability criteria of novelty, non obviousness and utility are satisfied) is likely to contravene the mandate under Article 27 to grant patents to all “inventions”. Unfortunately, Park and Prabhala fail to engage with any of these substantive TRIPS issues. They may have had the best of intentions, but what they’ve engaged in amounts to what can at best be described as an adhominem argument which, according to Wikipedia, “consists of replying to an argument by attacking or appealing to the person making the argument, rather than by addressing the substance of the argument. It….. consists of criticizing or personally attacking an argument's proponent in an attempt to discredit that argument.” The authors also reference section 3(d), a highly controversial section that is the subject matter of a lawsuit by Novartis in this debate, when the Committee never really speaks about section 3(d) in their report. It bears noting that the Committees mandate was never to examine the TRIPS compatibility of section 3(d) or of any existing provision in the Indian Patents Act and to be fair to them, they never engaged in this exercise. This being so, it is rather far fetched to allege a “conspiracy” theory, simply because the Mashelkar Committee chose to adopt some of the positions advocated in my paper and to use some of the language from my paper. One has to bear in mind that this Committee was commissioned by the Government to come to a conclusion as independent technical experts. They were entitled to deliberate, seek outside guidance and then come to their own conclusions as they deemed fit. Of course, as I point out in my blog, although they got their conclusions right, the key failing of the Committee is in not demonstrating how they worked through the TRIPS issues/analysis in their report. Park and Prabhala conveniently ignore this not so “waxing jubilant” reception to the Committee Report in my blog. A “thin analysis”, appears to be their main grudge against the Mashelkar Committee Report. It’s a sheer pity that the authors failed to use this fantastic opportunity (very rarely does one get space in the editorials of two leading newspapers on the same day) to “fatten” their own analysis. The author is the Frank H Marks Visiting Associate Professor of Intellectual Property Law at the George Washington University law School, where he teaches a course on TRIPS, pharmaceutical patents and public health. Shamnad Basheer Frank H Marks Visiting Associate Professor of Law George Washington University Law School Washington DC-- 20052 Ph: 001 (202) 957 3442 Email: sbasheer at law.gwu.edu On Sun, 2007-02-25 at 23:57 +0530, Achal Prabhala wrote: > http://dnaindia.com/report.asp?NewsID=1081968 Empty allegations > Sunday, February 25, 2007 20:32 IST Shamnad Basheer From chansoobak at yahoo.com Mon Feb 26 21:41:00 2007 From: chansoobak at yahoo.com (chan park) Date: Mon, 26 Feb 2007 08:11:00 -0800 (PST) Subject: [Commons-Law] [Ip-health] Re: DNA: Empty Allegations In-Reply-To: <1172489030.6672.9.camel@localhost.localdomain> Message-ID: <20070226161100.774.qmail@web37704.mail.mud.yahoo.com> To paraphrase the great Bard, a rat by any other name would still reek of sewage. I personally have very little interest in engaging in a game of semantics. Call it "plagiarism," call it "borrowing without acknowlegement," or call it, in Mashelkar's inimatable words, "certain technical inaccuracies that have inadvertantly crept in." Whatever you call it, it stinks. Enough so that the Mashelkar committee felt compelled, in keeping with what it laughably deems to be the "highest ethical standards," to withdraw its report. It is a bit odd, then, that Shamnad Basheer would keep insisting on defending the propriety of the verbatim copying even after Mashelkar has implicitly admitted to its impropriety. Apparently, annexing a summary of a report that you copied from makes the copying okay. Damn. Wish someone had told me this in high school. What gets lost in this silly game of semantics is the fact that a group of five "renowned experts," after a year and a half of deliberation, produces a report devoid of any real analysis, choosing rather to reproduce verbatim the position of the multinational pharmaceutical lobby. But apparently, none of this was the committee members' fault. It was the fault of some unnamed (and unappointed) "drafting sub-group" to whom the committee delegated the entire responsibility for drafting a report that could potentially impact millions of lives. Frankly, this doesn't make me feel much better. Far from being an ad-hominem attack, these are very serious and very legitimate questions that deserve to be asked. And though I am no journalist, I am aware of the journalist's fundamental maxim: Don't bury the lead. So, given a strict 950 word limit in a newspaper intended for a general readership, do we focus on the flaws inherent in assuming that there is a generally accepted international defintion of "invention" that must be taken into account when interpreting the requirements of Article 27 of TRIPS, or do we call a rat a rat? We chose the latter. I have personally communicated to Shamnad that although I thoroughly disagree with his conclusions, I thought that his submission to the Mashelkar Committee was very well researched, and that he was not the target of our editorial. And although I do not question his academic integrity, I do ask him, in response to an alleged "leap of logic" that we engaged in, can he point to anything funded by by the pharmaceutical industry that DID NOT represent the industry view? I apologise for my naivete, but I personally haven't read many INTERPAT or PhRMA-funded reports that speak out for the plight of millions who don't have access to lifesaving medicines because they are too expensive. There are far too many people who hold themselves out as independent and objective academics who claim that patents do not pose a barrier in access to medicines, or that global warming is a myth, or that a troop surge in Iraq will solve the quagmire. And all too often, these "independent" academics, if you scratch a bit below the surface, have ties to or are funded by industry (and more often than not, they work for the Amercian Enterprise Institute, but that's a different matter altogether). I do not ascribe such views to Shamnad, but it's become a sad but true fact that more often than not, you are who you're funded by. But luckily, there's an easy solution to this. Don't take money from INTERPAT. Chan (this note was written in my personal capacity, and do not necessarily reflect the views of the Lawyers Collective HIV/AIDS Unit) Sunil Abraham wrote: A more complete version from the Spicy IP Blog: http://spicyipindia.blogspot.com/2007/02/deconstructing-mashelkar-committee.html Coming as I do from the relatively apolitical world of research and academia, the events of the last two weeks have taken me by surprise and left me wondering as to how easy it is for the substantive issues in any debate to get sidelined. I thought I’d reflect on the “real” issues surrounding this controversy once the “name” calling and personal/ad hominem attacks had died down. But it only seems to be getting worse. Friends keep asking me as to why I haven't said anything on my blog yet. I therefore thought this an opportune time to attempt to deconstruct some of the arguments that are being flung around in this controversy. I wrote a letter to the TOI and Hindu in response to the editorials that first sparked off this controversy and include it below.Unfortunately, despite more than a week going by, neither of these papers have published this. Fortunately, the DNA carries some of the key points that I'd stated in the respose to the TOI and the Hindu. See http://dnaindia.com/report.asp?NewsID=1081968. Also, the Hindu Business Line carried my interview where I have tried to clarify some of the factual inaccuracies regarding this debate--see http://www.thehindubusinessline.com/2007/02/24/stories/2007022402940700.htm TO THE EDITOR OF THE TIMES OF INDIA Dear Sir/Madam: This refers to your article dated 12 February 2007, titled “Patent Wrong” by Chan Park and Achal Prabhala. In the process of critiquing the Mashelkar Committee Report, the authors have called into question my academic integrity, albeit indirectly. They have also alleged that the Committee “plagiarized” key conclusions from my submission. I first deal with their charge of plagiarism, since I am the alleged “victim” here. They attempt to substantiate their claim of plagiarism by selectively quoting from my blog. They however omit the most critical part of my blog statement in this regard “To be fair to the Committee, they did include the crux of my submission in an Annex to their Report.” In other words, the Committee did include my submission as an Annexure, as they did with every other submission (about 24 in all) that was made to them. It bears noting in this regard that the Committee received submissions from a variety of IP stakeholders including industry (Ranbaxy, Biocon, IPA, IDMA), civil society groups (ALF, MSF), law firms (Lex Orbis, K&S Partners), IP Associations (AIPPI) and even retired members of the judiciary (Justice Krishna Iyer). Those with the patience to read the entire report including the Annexures would have gathered that some of the Committee’s observations were borrowed from my report to them. This being so, qualifying their borrowing of some of my conclusions as “plagiarism” is incorrect. Park and Prabhala may not have intended this, but their writing casts aspersions on my academic integrity. If I understand their argument correctly, it runs something like this: 1. Shamnad Basheer is commissioned to write a paper on certain TRIPS issues for the purpose of submission to the Mashelkar Committee. 2. The paper is commissioned by the Intellectual Property Institute (IPI), with funding from Interpat. 3. Therefore, this paper necessarily reflects the industry position of Interpat. 4. Therefore, Shamnad Basheer exercised no independent judgment, but merely reiterated Interpat’s industry position. 5. The Mashelkar Committee was wrong to rely on the conclusions of a paper that reflects Interpat’s position. These “leaps of logic’ rest on certain incorrect assumptions: 1. Anything funded by the pharmaceutical industry has to necessarily represent an industry view/position, despite the fact that the person commissioned holds himself out as an objective and independent academic. 2. The IPI is an “industry think-tank” that always resonates industry positions on all issues, despite the fact that its website (http://www.ip-institute.org.uk/) makes clear that is an independent charitable organisation which organises and peer reviews IP research. 3. The Mashelkar Committee blindly relied on the conclusions of my paper, without exercising any independent judgment of its own, despite the fact that it comprises members who are highly distinguished in their respective fields and known for their integrity. Most importantly, the Park and Prabhala paper does no more than beg the question: is there something wrong with the analysis of TRIPS undertaken by me and relied on by the Committee? Park and Prabhala brush off this rather nuanced issue on TRIPS compatibility with broad statements such as “the report overlooks these (TRIPS) flexibilities—even the judgment of the WTO on this matter”. Their note omits to explain as to what these “flexibilities” are, or where, in their opinion, the said flexibilities stem from and more importantly, which judgment of the WTO they are relying on—particularly, when there is not “one” but several WTO panel decisions dealing with TRIPS. Article 27 of TRIPS mandates that patents shall be granted to all “inventions” in all “fields of technology”, provided such inventions are new, non obvious and have utility. Having studied TRIPS in some detail and now teaching it to graduate students at the George Washington University, my own view (as expressed to the Committee in more than 35 pages in a report that is now the subject matter of controversy) is that the term “invention” as used in Article 27 of TRIPS is to be vested with some basic meaning i.e. at the very least, it denotes something of “technical” import. Were it to be a term “freely” interpretable according to the whims of member states, we could end up with a situation where a member state may argue that it needn’t grant patents at all, since its unique lexicon suggests that nothing ever amounts to an “invention” under Article 27. In short, the term invention would be rendered redundant and such a result would fly in the face of a basic tenet of treaty interpretation that is well accepted under international law—that one cannot read a treaty term in a manner as to render it redundant. Incremental pharmaceutical inventions are very “technical” in nature, and ought to fall within even the lowest common denominator that any sensible reading of the term “invention” would offer. As such, their exclusion from patentability (when the other patentability criteria of novelty, non obviousness and utility are satisfied) is likely to contravene the mandate under Article 27 to grant patents to all “inventions”. Unfortunately, Park and Prabhala fail to engage with any of these substantive TRIPS issues. They may have had the best of intentions, but what they’ve engaged in amounts to what can at best be described as an adhominem argument which, according to Wikipedia, “consists of replying to an argument by attacking or appealing to the person making the argument, rather than by addressing the substance of the argument. It….. consists of criticizing or personally attacking an argument's proponent in an attempt to discredit that argument.” The authors also reference section 3(d), a highly controversial section that is the subject matter of a lawsuit by Novartis in this debate, when the Committee never really speaks about section 3(d) in their report. It bears noting that the Committees mandate was never to examine the TRIPS compatibility of section 3(d) or of any existing provision in the Indian Patents Act and to be fair to them, they never engaged in this exercise. This being so, it is rather far fetched to allege a “conspiracy” theory, simply because the Mashelkar Committee chose to adopt some of the positions advocated in my paper and to use some of the language from my paper. One has to bear in mind that this Committee was commissioned by the Government to come to a conclusion as independent technical experts. They were entitled to deliberate, seek outside guidance and then come to their own conclusions as they deemed fit. Of course, as I point out in my blog, although they got their conclusions right, the key failing of the Committee is in not demonstrating how they worked through the TRIPS issues/analysis in their report. Park and Prabhala conveniently ignore this not so “waxing jubilant” reception to the Committee Report in my blog. A “thin analysis”, appears to be their main grudge against the Mashelkar Committee Report. It’s a sheer pity that the authors failed to use this fantastic opportunity (very rarely does one get space in the editorials of two leading newspapers on the same day) to “fatten” their own analysis. The author is the Frank H Marks Visiting Associate Professor of Intellectual Property Law at the George Washington University law School, where he teaches a course on TRIPS, pharmaceutical patents and public health. Shamnad Basheer Frank H Marks Visiting Associate Professor of Law George Washington University Law School Washington DC-- 20052 Ph: 001 (202) 957 3442 Email: sbasheer at law.gwu.edu On Sun, 2007-02-25 at 23:57 +0530, Achal Prabhala wrote: > http://dnaindia.com/report.asp?NewsID=1081968 Empty allegations > Sunday, February 25, 2007 20:32 IST Shamnad Basheer _______________________________________________ Ip-health mailing list Ip-health at lists.essential.org http://lists.essential.org/mailman/listinfo/ip-health --------------------------------- TV dinner still cooling? Check out "Tonight's Picks" on Yahoo! TV. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070226/b54d0543/attachment.html From jeebesh at sarai.net Tue Feb 27 20:49:15 2007 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Tue, 27 Feb 2007 20:49:15 +0530 Subject: [Commons-Law] Fwd: [Reader-list] Microsoft lost! Linux wins? References: Message-ID: <321365A5-E7B8-4672-A1A7-883CC8269BBB@sarai.net> Very interesting case....... Begin forwarded message: > From: Irina Aristarkhova > Date: 27 February 2007 8:33:03 PM GMT+05:30 > To: reader-list at mail.sarai.net > Subject: [Reader-list] Microsoft lost! Linux wins? > > > There has been moderately active Linux community in Russia, with > availability of cheap hardware and good programming skills. However, > there has been little government or institutional support, and a lack > of understanding of why one would want not to use Windows. But not > anymore. > > Runet and Russian official media have been flooded with discussions > and instructions on open source, and what it would take to drop > Microsoft 'soft' altogether. All this has been prompted by the recent > legal case of 'Microsoft versus Ponosov'. Alexander Ponosov is a > school director from a Perm' region (Ural mountains), who does not > seem to be an 'advanced' Windows user himself (which in Russia > usually means word, exel and powerpoint). However, he was charged > with violating Microsoft copyright, and under the current legal > provision could be sentenced for 5 years in jail. Plus Micrisoft side > demanded 266.593.63 roubles (presumably calculated to equal 10.000 > dollars, but the dollar is falling), from a school director whose > salary is probably 200-300 dollars per month (at best!). > > What is it all about? 20 computers in his school computer lab, with > illegal copies of Windows, claims Microsoft side, that violates > piracy law and its IP. > > It started as a quiet case, but gradually became a matter of national > concern. It became about "American multi-national mammoth > corporation" against "a little man" of our own. The fact that Ponosov > (whose name, curiously, might be translated both as related to 'nose' > as well as 'diarrhea' that is widely referred to in Runet) looked > like he had no clue what it is all about, was an 'ordinary' man, > making very little money in a remote secondary school, unconnected to > IT sector, showed how unwise Microsoft actions were. Until then > Russia was demonstratively trying hard to fit Western IP laws. But 5 > years in jail for 20 computers in a school lab? > > First, Russian bloggers started flooding Microsoft with letters that > they all use pirated Windows, and that they are ready to go to jail > for Ponosov. He had no idea what was on those computers, while they, > real programmers and IT geeks, know what they are doing. Take me! > Leave a poor school teacher alone! they were typing and e-mailing off. > > Second, Russian television and press jumped on this out of control, > pressing local authorities to think further (at first it seemed as if > Microsoft surely had the case, and would win it. Ponosov was visibly > worried that he would lose). > > Microsoft corporation still had no comment, saying it is handled by > its office in Moscow. > > Third, Gorbachev wrote an open letter to Bill Gates, asking him to > personally interfere, and stop the case. Putin called the case "dog's > rubbish". > > It was becoming an international scandal for Microsoft. And Bill > Gates in his reply to Gorbachev distanced himself and his corporation > from this case, arguing that it was started by Russians against > Russians, and Microsoft had nothing to do with it. > > Meanwhile, Ponosov was becoming more and more visible and vocal, > giving interviews to BBC and other major media. > > About two weeks ago a judge ruled that this case should be dismissed, > since the charges (10,000 dollars and 5 years in jail) were > unreasonable. > > Ponosov is unhappy and plans to appeal, he wants to be declared > 'innocent'. Microsoft lost a very important case, made more important > by its own making. And Russian officials, schools and Runet are busy > discussing what it would take NOT to use Windows. They are not sure > yet, and they feel it is a difficult task (Office price is about 5 > dollars for a pirated copy). But they've started discussing it. For > the first time so seriously and openly. > > Irina Aristarkhova > > PS. This is a short extract from one of the letters to Moscow > Microsoft head Olga Dergunova: > > "Respected and Dear Olga, > > My name is Sasha, I live in Mitischi (near Moscow), and I am 30 years > old. I have never - you hear me? never - bought any licensed > software. And I never will. Let me know if you want my passport > number, my address, and go ahead, sue me. I'd be only happy. I have > about 15 unlicensed Microsoft products installed on my laptop. All of > it - pirated. I am not ashamed, and please do not tell me about > programmers who want to eat. ... Sue me, not Ponosov. And sue another > one million people like me. It is not about love: that we do not love > you personally, or Bill Gates - abstractly. We love everybody. It is > you who hate us." (translated from a full letter and a blog at > http://forum.msk.ru/material/news/19486.html) > > > > > _________________________________________ > reader-list: an open discussion list on media and the city. > Critiques & Collaborations > To subscribe: send an email to reader-list-request at sarai.net with > subscribe in the subject header. > To unsubscribe: https://mail.sarai.net/mailman/listinfo/reader-list > List archive: <https://mail.sarai.net/pipermail/reader-list/> From sunil at mahiti.org Wed Feb 28 10:20:00 2007 From: sunil at mahiti.org (Sunil a) Date: Wed, 28 Feb 2007 10:20:00 +0530 Subject: [Commons-Law] Times of India: Mashelkar is not new to plagiarism In-Reply-To: <006401c75aeb$0a0e9250$0201a8c0@som.yale.edu> References: <006401c75aeb$0a0e9250$0201a8c0@som.yale.edu> Message-ID: The print version carries an extensive table which has been reproduced below (from the Times of India's epaper which requires registration and is available through www.timesofindia.com). The url for the article on the TOI website is also reproduced: http://timesofindia.indiatimes.com/Mashelkar_book_not_his_own/articleshow/1696776.cms TOI EXCLUSIVE Mashelkar is not new to plagiarism Manoj Mitta | TNN New Delhi: While seeking to withdraw his plagiarism-hit report on patents, technocrat R A Mashelkar said that while there have so far been "12 high powered Mashelkar committees'' over the past two decades, "this has happened for the first time''. But the truth is otherwise. A book co-authored by him in 2004, again on intellectual property (IP), bore striking similarities with a 1996 paper (see table) brought out by a British IP expert, Graham Dutfield, who took objection to it as he was given no credit. What's more, those similarities are in a chapter dealing with traditional knowledge, an aspect of intellectual property that Mashelkar himself is said to have worked on extensively to protect India's heritage during his 11-year tenure as head of Council of Scientific and Industrial Research. The 2004 book, Intellectual Property and Competitive Strategies in the 21st Century, was written by Mashelkar and another Indian expert, Shahid Alikhan, while Dutfield's paper appeared in a 1996 issue of bulletin of the Working Group on Traditional Resource Rights. TOI contacted Dutfield in UK and Mashelkar in US to reconstruct the plagiarism controversy that followed the publication of the book. Dutfield said that he wrote a "polite letter'' to the book publisher two years ago shortly after discovering that his paper had been reproduced "virtually verbatim''. Subsequently, Mashelkar's coauthor, Alikhan, got in touch with Dutfield and met him over lunch to sort out the matter. According to Dutfield, Alikhan told him three things: That since both believed in intellectual property, Mashelkar and he "regretted'' what happened. That "the plagiarism was in Mashelkar's part of the book'' and that the actual plagiarism was done not by Mashelkar but by one of his researchers. That they will make amends in the second edition of the book. Mashelkar confirmed to TOI that Alikhan did meet Dufield in London in connection with "the reproduction of some paras''. But as for the "substance of the dialogue'', Mashelkar said he had only "a vague recollection'' and was therefore in no position to comment on Dutfield's version. Asked how his book came to reproduce Dufield's paper almost word by word, Mashelkar sounded horrified: "Don't say that. Don't say that. What are you trying to do?'' Asked how he could claim in his recent letter to the government that he was facing plagiarism allegations for the first time, he said that he was referring only to his committee reports down the years on various subjects. Dutfield on his part is disappointed that Mashelkar himself never bothered to call and acknowledge the violation of his copyright. "I guess, I was not important enough to Mashelkar, or this issue was not deemed important enough for him to apologise to me directly''. Given his own experience, how does he see the controversy surrounding the withdrawal of the latest Mashelkar committee report? Dutfield said: "I don't want to brand Mashelkar as a plagiarist, at least until there is more evidence than we have. But what I would say is that he is sloppy and irresponsible in the sense of using ghost writers to do his work for him, not checking what is published in his name, and of then blaming these people when it goes wrong''. * Graham Dutfield Paper (1996) * *Bulletin of the Working Group on Traditional Resource Rights *(TRR) Spring 1996 No.2 ** **Knowledge and traditional resources are central to the maintenance of identity for indigenous and local communities…. Adequate and effective protection and benefit-sharing mechanisms inevitably require a shift from economic or ecological-determined legal and political frameworks to a rights-driven system. (138 words) The term Traditional Resource Rights (TRR) has emerged to define the many "bundles of rights" that can be used for protection, compensation and conservation.…. Even so, for many, privatisation or commoditisation of their resources is not only foreign, but incomprehensible or even unthinkable. (162 words) For example, the TRR concept can be effected by identifying guiding principles for legislative processes, and by formulating the basis for practical instruments and mechanisms that guarantee protection, benefit sharing, and political and financial support for indigenous and local communities. A positive step would be the establishment of an Ombudsman's Office that would not only advise indigenous and local communities on the protection of their resource rights and on benefit sharing but represent them in their complaints relating to infringements of their resource rights. Financial and political support for indigenous and local communities can also be provided through new guidelines for policies and projects funded by governments…This will require the development of new guidelines and laws for defining and implementing prior informed consent. (60 words) * Mashelkar Book (2004) * *Intellectual Property and Competitive Strategies in the 21st Century, by S. Alikhan and R. Mashelkar, Kluwer Law International, 2004. * Knowledge of traditional resources is central to the maintenance of identity of indigenous and local communities embodying traditional lifestyles.… Adequate and effective protection and benefit sharing mechanisms inevitably require a shift from economic or ecological-determined legal and political frameworks to a rights-driven system. (145 words) The term Traditional Resource Rights (TRR) has emerged to define the many "bundles of rights" that can be used for protection, compensation and conservation…. Even so, for many, privatisation or commoditisation of their resources is not only foreign, but incomprehensible or even unthinkable. (160 words) The TRR concept can be implemented by identifying guiding principles for legislative processes, and by formulating the basis for practical instruments and mechanisms that guarantee protection, benefit sharing, and political and financial support for indigenous and local communities. Governments should also press for the establishment of an Ombudsman's Office that would not only advise indigenous and local communities on the protection of their resource rights and on benefit sharing but represent them in their complaints relating to infringements of their resource rights. Financial and political support for indigenous and local communities can also be provided through new guidelines for policies and projects…This may require the development of new guidelines and laws for defining and implementing with prior informed consent. (59 words) -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070228/82006387/attachment.html -------------- next part -------------- A non-text attachment was scrubbed... Name: Pc0150600.jpg Type: image/jpeg Size: 2744 bytes Desc: not available Url : http://mail.sarai.net/pipermail/commons-law/attachments/20070228/82006387/attachment.jpg -------------- next part -------------- A non-text attachment was scrubbed... Name: Pc0150700.jpg Type: image/jpeg Size: 2055 bytes Desc: not available Url : http://mail.sarai.net/pipermail/commons-law/attachments/20070228/82006387/attachment-0001.jpg From shekhar at crit.org.in Wed Feb 28 22:43:57 2007 From: shekhar at crit.org.in (Shekhar Krishnan) Date: Wed, 28 Feb 2007 12:13:57 -0500 Subject: [Commons-Law] Zotero for Firefox Message-ID: <1172682837.29946.166.camel@nowhereman> Zotero [zoh-TAIR-oh] is a free, easy-to-use web browser extension to help you collect, manage, and cite your research sources. It has been developed by the Center for History and New Media (CHNM) at George Mason University http://chnm.gmu.edu and is now in use by thousands of historians, anthropologists, journalists, lawyers and other researchers. Zotero is an open source alternative to citation tools like Endnote, and lives inside of your browser, allowing you to automatically capture and manage sources and citations in online catalogues, archives, and other repositories, as well as taking notes, tagging these materials, and exporting bibliographies in various formats. For more information and to download and install Zotero, go to http://www.zotero.org Zotero requires use of Firefox 2.0, the latest version of the popular open source web browser from the Mozilla Corporation. If you don't already use Firefox or haven't yet upgraded to the new version 2.0, go to http://www.getfirefox.com to download it. Once you've installed it or upgraded your earlier version, go to the Zotero site to download and install the extension for Firefox 2.0. Best, S.K. -- Shekhar Krishnan 400, West 119th Street, Apt.10D New York, NY 10027 U.S.A. http://www.mit.edu/~shekhar http://www.heptanesia.net http://www.crit.org.in/members/shekhar From chansoobak at yahoo.com Wed Feb 28 23:24:07 2007 From: chansoobak at yahoo.com (chan park) Date: Wed, 28 Feb 2007 09:54:07 -0800 (PST) Subject: [Commons-Law] Economic Times: IPI comes clean on Mashelkar report Message-ID: <201349.17726.qm@web37712.mail.mud.yahoo.com> http://economictimes.indiatimes.com/articleshow/1697068.cms NEW DELHI: UK-based Intellectual Property Institute (IPI), which is embroiled in a controversy regarding the recently-withdrawn Mashelkar panel report on patent law, has said that some of its studies are funded by MNC industry bodies, but IPI is still independent. The institute was responding to media reports about the Mashelkar panel’s use of extracts from a study by the institute, which was alleged to be biased in favour of multinational pharmaceutical companies’ interests. Dr Mashelkar recently withdrew his recommendations as reports about alleged ‘copying from IPI’s study verbatim’ snowballed into a controversy. “IPI is not an industrial think-tank as reported, but is an independent, not-for-profit research body, addressing all aspects of intellectual property law, and particularly its economic and social effects. It has a history of promoting independent, evidence-based research to assist those making policy and judicial judgements in the area of intellectual property law,” IPI said in a statement quoting its director Dr Paul Leonard. IPI, however, admitted that the study, which has been allegedly used by the patent panel, was funded by Interpat — a Swiss association of major European, Japanese and US research-based pharmaceutical companies committed to the improvement of intellectual property laws around the world. But the understanding was that the study would be independent. The legal opinion was prepared in the author’s private capacity, but is endorsed by IPI. The same author has prepared another study on data protection under a similar understanding with Interpat and has submitted to another Indian expert committee examining the issue. --------------------------------- The fish are biting. Get more visitors on your site using Yahoo! Search Marketing. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20070228/a1010a0d/attachment.html