Hallo … this blogger is back with the “Sifting Through SpicyIP Pages” series! Apologies for the slight delay this time, but trust me, the wait will be worth it. This time, I was tasked to sift through the pages of “Februarys” on SpicyIP since 2005 and get you some stories that have kept us intrigued over the years. As we dive into the 9th installment of this series since June 2023, don’t forget to check the already sifted pages of Junes, Julys, Augusts, Septembers, Octobers, Novembers, Decembers, and Januarys. I have shared some interesting stories like the Indian Innovation (NIA) Act, the Indian “Bayh Dole” Bill?, 2010’s International Efforts on the Pandemic, the Opening of the TM database, etc. If you missed any of these, simply click on SpicyIP Flashbacks and select the month to catch up.

Without further ado, here’s what I found in the Februarys:

A Quick Look Back at the Patent Office Reforms: The long-term SpicyIP readers would know that our main aim has always been to promote transparency and accountability within the Indian IP ecosystem. Pertinently, the IPO has hardly ceased to be a subject of discussion on the blog. While discussions on this topic abound, let me provide a brief overview of the journey concerning the patent office. This idea came after chancing upon Prakruthi Gowda’s 2010 post on reforms at the IP office. When I went digging for more, I found the 2007 SpicyIP Petition calling for making Indian Patent Information Public (see also here) for which a detailed discussion is here, and the government’s positive response is here saying they’d establish a digital database of patent records. Indeed, it was an Eureka moment!

Despite progress since the petition, issues of transparency, backlogs, and improper decisions persist (see also here and here). Speaking of transparency, P.H. Kurian’s name crossed my mind for whom the Junes’ sift carried a specific story. His influence on the IPO was like the stuff of legends, shaping it during its heyday. I mean, Prashant even raised the question: Did the pre-Kurian Patent Office grant thousands of patents in violation of procedure? And there was a post on The “Kurian” Effect. This sift also led me to Shwetasree Majumder’s post discussing how the DHC injected “Transparency” into the Indian Patent Office and Prof. Basheer’s Proposal for Patent Clarity. See also Pankhuri Agarwal and Prof. Basheer’s 2017 posts on “More Intelligible “Open Access” at the IPO (see also here). ‘Tis important because corruption is inevitable where there is a lack of transparency (see the Octobers’ sift for more)! And the patent office isn’t an exception e.g., see Kruttika’s 2008 posts here and here.

Speaking of the patent office, one must also certainly cogitate its nature – is it purely a scientific or technical organization? For that, Vasundhara Majithia’s post and Prashant’s post here and here will be useful. For history buffs like me, Prashant’s Pages-from-History post on the role of the examiner and the controller in the Patent Office is a stop. What else … what else? Oh yes … don’t miss checking the instances when IPAB pulled up a patent office for improper decisions here, here, and here and when the Bombay HC asked the patent office to set the record straight.

That’s it from my end. Actually … I can direct you to two more piquing posts (sorry but they just shouldn’t be missed) – one on Einstein & Thomas Jefferson being patent examiners and the other on Prashant’s 2013 working paper on the state of affairs at IPO.

Around two decades’ Data Exclusivity (DE) debate: Poring over the previous years’ posts, Prof. Basheer’s 2011 post on DE caught my attention. Well-worded and well contextualized the post is! After all, it was to underline the importance of the “context” (EU-India FTA negotiations) in the DE debate. This post was a follow-up to Prashant’s interesting post on the same issue, on ‘balancing’ the DE debate. While it has been over a decade, Prof Basheer’s remarks seem pertinent nonetheless “[t]he clarion call for data exclusivity comes from European companies with little or no interest in promoting indigenous Indian innovation.” Appositely, he even offered 3 concrete suggestions for the Indian government, which I leave for the reader to pore over. But what’s DE in the first place? Well …  before drugs become available to the public, they must undergo costly clinical trials. These trials generate valuable data. DE debate is about protecting/monopolizing these data. (Btw talking about this issue, one should surely keep India’s not-so-good drug regulatory framework in mind.)

Upon digging deeper, one of the earliest posts on the issue that I found was by Prof. Basheer called “Mashelkar Committee Effect on the Data Exclusivity Debate” discussing the importance of considering national interest while debating DE. He then also discussed the topic in detail once in the context of the Government committee’s report on saying “no” to DE and then in the context of DHC’s Syngenta India Ltd vs Union of India. Also worth reading here is Prashant’s post on DE in the context of agro-chemicals, particularly, the Pesticides Management Bill, 2008. For some specific cases, check discussions on DE in light of the EU-India FTA, the Trans-Pacific Partnership Agreement (TPP), Indo-US IP negotiations, and DHC’s decision on biomedicines (here and here). The issue attracted ample attention during COVID-19, e.g. see Swaraj’s posts here and here, Divij’s post here, and Praharsh’s post here.

In sum, from the years of discussion on DE at SpicyIP, at least two things seem clear – i.) TRIPS doesn’t mandate it and ii.) DE, if implemented, will certainly be controversial. (Sidenote: see also the Octobers’ sift where I briefly touched upon the DE issue albeit in a different context.)

Software Patents Saga – In Januarys’ sift, I did a quick story of SpicyIP’s discussion on business method patents in India under Section 3(k) of the Patent Act. This time, I thought of checking SpicyIP’s coverage of software patents after coming across Rajiv Kr. Choudhry’s 2-part empirical post on Controller’s Decisions of February 2012 (here and here). There, Rajiv discussed a few problematic software patent cases, i.e., cases about Section 3(k) of the Patent Act. Unexpectedly, the issue has been widely covered on the blog with one of the earliest posts in 2006 by Prof. Basheer commenting on the low levels of software patents in India. The topic has consistently been the talk of the town – whether it’s discussed in the context of IP manuals, the candlelight vigil protest in Bangalore, through the efforts of the Global Coalition Against Software Patents, or sometimes even as a topic for Soft War. But wait? Why all these protests etc? Well … the issue is that software “per se” is not patentable under Section 3(k). As readers would know, this problematic teeny-weeny “per se” has been very problematic in patent law. 

For some detailed discussion, see contrasting views put forward by Prof. Basheer’s 2009 post and Essenese Obhan’s post with a background story of how Section 3(k) came to incorporate the “per se” flavour. For arguments against software patents in India see Pranesh Prakash’s post and for a “Different Perspective” and for a comparison between USA and Indian laws, see Rajiv’s posts. Swaraj also did a detailed post discussing Microsoft’s longstanding claims against Linux and other open-source programs. For some specific case studies, check the Apple v. Samsung case, U.K. HC’s Lantana Ltd. case, Yahoo’s case, Ericsson v. Lava, and Ericsson v. Intex (here and here), Microsoft case, Raytheon Company case, Yves Choueifaty case. For some interesting discussion involving software patents, Swaraj’s post on Defensive Patent Licensing! Relatedly, the IPO also published draft guidelines for examination of computer-related inventions as Madhulika Vishwanathan discussed here. Once SpicyIP even did a SpicyIP survey: SoftPat’s Hard Effects. For some more contextual discussion, check  Swaraj’s post discussing how the 2015 CRI Guidelines appear to stem from Patent Office overreach, Balaji’s post on Behind the Scenes: The Making of the 2017 CRI Guidelines, and Prarthana’s post on Patenting Blockchain Services. 

Have I overloaded you with too much to read? Maybe so. Please forgive me, but I can’t help mentioning Swaraj’s all-encompassing post – The Ping-Ponging Paradigm of Patenting Computer Programmes in India (“Software Patenting” 1999-2020).

The story of two Foes/Friends  IP and Competition law: Sifting through SpicyIP’s old pages, I noticed Mrinalini Kochupillai’s post on the Competition Act, Patents, and over-hyped drugs (see part two here), prompting me to dig deeper into the discussion of the Competition-IP law duo. Next, I checked some of the earliest discussions on the topic which included Prof. Basheer’s posts on the Competition (Amendment) Bill, 2007, antitrust implications of Apple’s exclusive deal with AT&A, Chaitanya Ramchandran’s post problematizing Apple’s App Store policies, Prof. Michael A. Carrier’s post “Fostering Innovation by fixing U.S. law.” However, if you are looking for a general conceptual discussion, helpful will be Mihir’s post, Prof. Basheer’s post, and Yogesh’s most recent post. For specific discussion on CCI and competition law vis-à-vis IPR, see Bollywood Wars (a tussle between Multiplex Owners v. Film Producer/Distributors), Indian film industry’s release strategies, Apple v. Nokia, the constitutionality of the CCI, CCI investigation against Roche (see also here, here, and here), and the analysis of the Google Books Settlement. Some other worth-reading episodes include Music labels complaining against PPL’s anti-competitive behavior, the Bharat Matrimony suit against Google, the T-series under the CCI radar (see also here and here), and Gilead before the CCI, Star India and Sony’s CCI saga, and the Antitrust App Store Wars.

The most important and unavoidable aspect of this story has been standard Essential Patents (SEPs) and related Fair, Reasonable, and Non-discriminatory (“FRAND”) terms on which Rajiv has extensively written on the blog with posts including Micromax vs Ericsson (see also here and here), Ericsson vs CCI (see here and here), the Monsanto case, and the case against SEP portfolio licensing. For some detailed discussions on SEP, check his three-part post here: Part I, Part II, and Part III. In 2018, CCI released its Policy on Healthcare which Prarthana discussed here and here. More recently, Aparajita discussed the Competition law’s flexibilities for pharma patents in light of Vifor v CCI. The most recent on this front is Praharsh’s post on the Delhi High Court’s imposition of damages worth INR 244 crores on Lava in the Ericsson-Lava SEP Dispute.

Am I missing anything? Surely, yes. For, there’s always more to uncover. But as every tale must reach its conclusion, so too must ours. As sages said: अंतः अस्ति प्रारंभः, i.e., the end is the beginning (of a new story). But don’t leave this story without checking The CCI’s Identity Crisis and Dealing with Misplaced Criticism, as Prashant titled his 2017 post and Rajiv’s 2020 post on why Delhi HC is the go-to venue for adjudicating SEP disputes in India.

Discussion on Punitive Damages Since 2005: After reading Aysha Shaukat’s 2009 post about FICCI recommending punitive damages for piracy, I thought of checking the discussion on this (relatively niche?) topic. Some of the earliest discussions on the topic include Prakruthi Gowda’s report on Justice Arjan K. Sikri’s NUJS Talk on “Injunctions v. Damages in IP Cases.” However, what truly caught my attention was the evolving discourse around the metrics, or the lack thereof, used to determine damages, e.g., see here and here. To begin with, check Kiran George’s post titled “Punitive Damages and the Defendant’s Wealth: An Overlooked Nexus?.” 

Tellingly, one of the oft-relied cases on punitive damages was Times Incorporated v. Lokesh Srivastava, e.g. see here, here, here, here, here, here, here. But Guess what? Later, it turned out to be an arguably flawed judgment that reached an incorrect outcome of granting punitive damages relying on a U.S. case. Check Prashant’s post called “The Voodoo Arithmetic” tracing the jurisprudence of punitive damages in Indian IP cases, revealing surprising insights. (see also his post Reviewing Justice Manmohan Singh’s IP Jurisprudence). More astonishing is the fact that even after being overruled the said case was cited by DHC in at least 25 judgments. Out of these, 22 awarded punitive damages ranging from Rs. 50,000 to Rs. 1 Crore, and the remaining 3 judgments acknowledged the overruled case but opted not to grant punitive damages. Forget not, the list isn’t exhaustive. For a more detailed take on some jurisprudential and comparative analyses of other jurisdictions’ scenarios, see Maitreyee Dixit’s post and Rahul Bajaj’s analysis respectively. The upshot is that punitive damages are to be granted in exceptional cases, especially when the compensatory damages are already computed. However, the discourse over the years says otherwise. Future is bright, hopefully.

Okay … let’s wrap up this sift. This time, I won’t ask if I missed anything, for I realize its inevitability. However, as I always say, I am constrained, not you, my readers, who are free(er). So … please feel free to share in the comments what’s to be included! 

Until next time, stay tuned! See you then.

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