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IP-Watch interns talk about their Geneva experience in summer 2013. 2:42.

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The Politicization Of The US Patent System

The Washington Post story, How patent reform’s fraught politics have left USPTO still without a boss (July 30), is a vivid account of how patent reform has divided the US economy, preempting a possible replacement for David Kappos who stepped down 18 months ago. The division is even bigger than portrayed. Universities have lined up en masse to oppose reform, while main street businesses that merely use technology argue for reform. Reminiscent of the partisan divide that has paralyzed US politics, this struggle crosses party lines and extends well beyond the usual inter-industry debates. Framed in terms of combating patent trolls through technical legal fixes, there lurks a broader economic concern – to what extent ordinary retailers, bank, restaurants, local banks, motels, realtors, and travel agents should bear the burden of defending against patents as a cost of doing business.


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    Leaked IP Chapter Of India-EU FTA Shows TRIPS-Plus Pitfalls For India, Expert Says

    Published on 12 March 2013 @ 5:35 pm

    By for Intellectual Property Watch

    New Delhi – Indian negotiators are reportedly under tremendous pressure to give in to the European demands for a more rigid intellectual property rights regime in the ongoing discussions on EU-India free trade agreement, suggests a leaked draft text of the chapter on IP which is being negotiated.

    The leaked text has been uploaded on the portal of Knowledge Ecology International (KEI), an international NGO that tracks debates around intellectual property policy and practice worldwide. At the time of writing, there has been no official confirmation or denial about the veracity or otherwise of the leaked document from the Indian government. Chief negotiators of the two sides are scheduled to meet next week in Brussels. Activists with whom Intellectual Property Watch spoke said they did not expect the Indian government to react to a leaked text.

    Shamnad Basheer, a well-known Indian IPR lawyer, told Intellectual Property Watch that “the governments of India and the EU ought to immediately make these documents public without one having to second guess whether or not these leaks are authentic. “

    “It is rather paradoxical that while Indian treaties that allegedly bind the country are negotiated in secret, our regular laws are deliberated upon and discussed widely prior to adoption by Parliament,” Basheer said. “Treaties should also be opened up in a similar manner. Else the government may sign on to provisions that harm the public interest and that ultimately will not be ratified by India’s Parliament. This can be hugely embarrassing for India from an international standpoint.”

    “We must bear in mind that India is a dualist country and no treaty provision can be effective in India till it is legislated upon by Parliament,” he said. “Therefore, we need to effectuate amendments such that all treaties are made public and are signed only after being placed for discussion and deliberation before India’s Parliament.”

    If the leaked text turns out to be real, the main concern is that India may be signing on to an IPR regime that goes beyond what is mandated in the 1994 World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

    “Some of the FTA provisions are certainly TRIPS plus,” said Basheer. “Illustratively, Article 22 (3) is extremely far-reaching in that provides that in certain cases of infringements, the defendant’s property may be seized and his bank accounts frozen. Similarly there are several provisions that now provide for intermediary liability, which was absent in TRIPS. The official stand of the Indian government when this FTA was initially being negotiated was that India would not go TRIPS plus. If that continues to hold good, the government ought to take a strong stand and not cave in to provisions that are clearly TRIPS plus.”

    Basheer asserts that “it is very distressing to note that none of these FTAs ever take into account the rights of the general public or those of competitors or users. Rather, these treaties increasingly confer additional rights to IP owners and fail to secure reasonable protection for the public or for competitors, users and alleged infringers.”

    “Notably, Article 20 states that courts should have the power to grant ex parte orders to collect allegedly infringing evidence, but does not provide for any protection for a bona fide defendant whose premises are wrongly raided,” he said. “Safeguarding the interests of alleged infringers and the wider public is absolutely critical particularly in the Indian context where courts are rather promiscuous about grating ex parte orders, even in patent cases.”

    Indian activist groups such as the Delhi Network of HIV positive people (DNP+) have been campaigning for more openness in the India-EU FTA negotiations. In a recent public statement, Vikas Ahuja and Loon Gangte noted that “in 2010 – 2011, the EC agreed to withdraw two harmful IP provisions from the text of the negotiations on the IP Chapter. [Karel] De Gucht, the European Union Trade Commissioner, in May 2010 asserted that the EC negotiators would no longer pursue the issue of supplementary protection, then in 2011 committed that the harmful data exclusivity clause would no longer be part of the EU/India Free Trade Agreement text. But the European Commission is now slyly pushing the following harmful IP enforcement and investment provisions in the FTA negotiations with India.”

    India and the 27-nation European Union have been negotiating the Bilateral Trade and Investment Agreement (BTIA) since mid-2007 but differences between the two sides on several issues have led to the delay in concluding the talks. Intellectual property rights has been one of the sticking points. “We are in a very advanced stage of reaching an agreement in one of the most ambitious trade and investment agreements between India and the European Union,” Anand Sharma, India’s Commerce and Industry Minister told a group of industrialists in Delhi earlier this month.

    The broad objective of the free trade agreement is to reduce tariffs on goods and liberalise services and investments provisions. The EU is India’s largest trading partner accounting for approximately € 86 billion in trade in goods and services in 2010. Bilateral trade in goods alone rose by 20% between 2010 and 2011.

     

     

    Patralekha Chatterjee may be reached at info@ip-watch.ch.

     

    Comments

    1. Richard M Stallman says:

      This article, like the treaty draft itself, suffers from the confusion
      that the term “intellectual property” generally introduces wherever it
      is used. That term generalizes about laws and issues that have
      nothing in common at a practical level, and should never be lumped
      together. Using that term in the negotiation of a treaty is Garbage
      In, and tends to produce Garbage Out. Using that term in criticism of
      the treaty, without rejecting it for its basic flaw, tends to endorse
      the Garbage In, which interferes with efforts to reduce the Garbage
      Out.

      See http://www.gnu.org/philosophy/not-ipr.html.

    2. Keeping IP out of TAFTA | Ramy Abdeljabbar's Palestine and World News says:

      [...] While the declaration urges both administrations to immediately release documents and conduct negotiations transparently, the agreement is part of a worrying trend in which democratic policy making — particularly in the area of “intellectual property” — is outsourced through Free Trade Agreements. In the midst of the global economic crisis, these agreements often push countries to adopt copyright and IP rules that undermine human rights, access to medicines and the open internet (for instance, see the ongoing talks around the EU-India FTA). [...]

    3. Top IP-Watch Stories Of 2013: India, Marrakesh Treaty, Seed/Gene Patents, WIPO Election | Intellectual Property Watch says:

      […] Leaked IP Chapter Of India-EU FTA Shows TRIPS-Plus Pitfalls For India, Expert Says http://www.ip-watch.org/2013/03/12/leaked-ip-chapter-of-india-eu-fta-shows-trips-plus-pitfalls-for-i… […]


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    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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