August 2009 Archives
Afro Ip blog reports "The concept of a People's Property Right apparently conceived by economist Joseph Stiglitz is the solution supported by Javed Jabbar, a former senator and minister from
Details of a Conference that the IP Chair at NUJS (along with IPTLS and Share) is organising on the 12th of September at the NUJS Auditorium, Salt Lake Kolkata. Registration is free. However, if you wish to attend, please email Prakruthi Gowda (prakruthipgowda@gmail.com) indicating your name, designation etc.
Publicly Funded Patents and Technology Transfer: A Review of the Indian "Bayh Dole" Bill
In January 2009, the government introduced the Protection and Utilisation of Public Funded Intellectual Property Bill, 2008 in the Rajya Sabha. The bill is currently undergoing scrutiny by a Parliamentary select committee, after which it will be placed before the two houses of Parliament. The Indian bill is based to some degree on the US Bayh-Dole Act, which according to The Economist unlocked "all the inventions and discoveries that had been made in laboratories throughout the
This conference will aim to generate more awareness around the Bill and what is stands for. For one, the Bill is not an instrument that enables university patenting for the first time. Rather, under the present legal regime (most notably the patents act), all institutes and researchers working with such institutes are free to patent the results of their research, irrespective of whether or not such research comes out public funding (unless there is a contractual bar by the funding agency). Such protection of publicly funded research through patents and subsequent use is not specifically regulated and scientists and institutes can use their patents in whatever way they wish (subject to safeguards under current Indian patent law and other laws such as competition law). Therefore, the Bill presents a great opportunity to regulate publicly funded research and patenting activities associated with this for the first time.
2. Keynote Address: Dr MK Bhan, Secretary, Department of Biotechnology, Govt of
3. Overview of the Issues: Prof Shamnad Basheer, Ministry of HRD Chair, NUJS (9.45 am to 10.10 am)
2. Global "Bayh Dole" Type Models and Lessons for
Coffee Break: 11.10 to 11.30 am
2. Patenting and Technology Transfer: The CSIR Experience: Zakir Thomas (12.00 am to 12.20 am)
3. Patenting and Technology Transfer: The IIT Kharagpur Experience: Dr Vivekanandan, Dean,
Lunch: 1.00 am to 2.00 pm
Session 3: The Triple Helix Model and Technology Transfer: Evolving a Framework for Developing Countries
The Technology Transfer Eco System: Ground Realities: Parthiban Srinivasan, Founder, Patent Eagle (2.20 to 2.50 pm)
2. Roundtable Discussion on specific aspects of the Indian Bill : Chaired by Shamnad Basheer: 4.00 to 5.30 pm
Ameet Datta, Partner, Luthra and Luthra
CH Unnikrishnan, IP Journalist, Mint
Date: 12th September, 2009
Kaitlin Mara from IP watch reports "Ongoing concerns in India that their legitimate generic drug shipments are being delayed as potential counterfeits while in transit through Europe may reach the dispute settlement body at the World Trade Organization, according to sources.
India appears to be moving closer to filing a World Trade Organization dispute settlement complaint against the European Union. A source within the Indian government in Delhi told Intellectual Property Watch they are "definitely going to file a case," though was unable to specify when that might be. Officials in Geneva, however, were not as clear that the decision has been made.
The first stage of a dispute is consultations between the parties, which, if they do not lead to resolution, could lead to the formation of a dispute panel, and ultimately sanctions.
If India decides to bring a case before the WTO Dispute Settlement Body, which handles complaints of possible WTO rules violations, then there are procedures that it must follow.
According to the WTO website, the first stage after filing a complaint (which must be done in writing, and list the specific areas at issue in the dispute) is consultations - in which the two countries see if they are able to settle the differences without the help of the WTO secretariat. If, after a minimum of 60 days, this does not work, the complaining government can request a panel. This is requested at meetings of the DSB. The accused party can block a request for a panel once, but not twice.
Planned meetings of the DSB in the near future are 31 August, 25 September and 24 October.
A panel, once formed, has 6 months to issue a final report on the case to the parties. It can be appealed by either side, but countries which are found in violation are expected to begin implementing corrections immediately upon issuance of that conclusion.
Concerns over the confusion between counterfeit, a term of art at the WTO covering trademark violations, and generic medication have been ongoing in several international agencies, perhaps most strongly at the World Health Organization (IPW, WHO, 27 January 2009).
Those fears seemed confirmed when it was discovered that in December 2008 a shipment of 500 kilos of a hypertension drug had been seized en route from Indian generic manufacturer Dr. Reddy's to its destination in Brazil. The drug was patented in neither its country of origin nor country of destination, but was held for 36 days in a Dutch port before being released and taken back to India (IPW, Public Health, 3 February, 2009).
This prompted outcry from Brazil and India as well as a collection of public health civil society groups seeking to stop those "acting with impunity to thwart lawful generic competition," according to one advocate, Brook Baker of Health GAP (IPW, Public Health, 21 February 2009).
Alarm escalated with a second delay of generics, this time antiretrovirals in transit from India to Nigeria (IPW, Public Health, 6 March 2009).
At a March meeting of the WTO Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS), Brazilian Ambassador Roberto Azevêdo said the possibility of a dispute settlement case was "not ruled out" (IPW, WTO/TRIPS, 5 March).
Then a freedom of information act request submitted to Dutch authorities by Sophie Bloemen of Health Action International revealed that there had in fact been 17 shipments detained in 2008. The Dutch response to the request, available here [pdf], said that 16 of the delayed shipments had come from India (and one from China).
The information from the Netherlands and one more case of delay in 2009 in Frankfurt - a shipment of generic antibiotic Amoxicillin, also from India - prompted an intervention from the country at the TRIPS Council meeting on 8 June.
The seizures, said India, have "adverse systemic impact on legitimate trade of generic medicines, South-South commerce, national public health policies and the principle of universal access to medicines" and indicates that the EU regulation allowing for such action (EC 1383/2003, which provides rules and regulations over the authority of customs officers to control goods infringing IP rights) is "problematic and can be misused, and has been misused, to create barriers to legitimate trade" (IPW, WTO/TRIPS, 9 June 2009).
Particular concerns expressed by India were that the delay violated "principles set out" in Articles 7 and 8 of the TRIPS agreement, according to their June statement. Article 7 says that IP protection should contribute to transfer and dissemination of technology, and Article 8 allows members to take measures to protect public health and also to take additional measures which "unreasonable restrain trade or adversely affect the international transfer of technology." Brazil added that a "decision to impede the transit of cargos of generic medicines violates the freedom of transit" in a statement issued at the same meeting.
The European Union countered, telling Intellectual Property Watch in June that the seizures were only "temporary detention for customs inspections" as they were not permanently prevented from getting to their destination.
EU Regulation 1383/2003 "contains strict time-limits within which court proceedings - if any - must be initiated," said an EU statement from June. Moreover, the process "is fully in accordance with the relevant TRIPS provisions, in particular Article 55, which sets out the time-limit... for suspending the release of the goods" and also allows for compensation if shipments are delayed "on the basis of an unsubstantiated complaint" the statement added.
Also, such cases were the side effects of careful EU regulation of drugs necessary for public health, an EU delegate said earlier. The EU had caught millions of counterfeit pills in 2007, said Luc Devigne, who led the EU delegation to the March TRIPS Council. Countries, he added, should be "grateful to the EU for saving lives" as not everyone has the capacity to search for dangerous drugs (IPW, WTO/TRIPS, 5 March 2009)."
