Tuesday, April 25, 2006

GIs' ruling in India

The Delhi High Court has held that an Indian whisky manufacturer cannot use the word "Scot" or "Scotch" in compliance with the WTO-TRIPS Agreement relating to the protection of Geographical Indications (GIs).
The judgement was delivered on a lawsuit filed by the Scotch Whisky Association of United Kingdom seeking to restrain permanently an Indian whisky manufacturer from using the name "Red Scot" or any other name containing the word "Scot" to sell its product, suit that was filed under the Geographical Indications of Goods (Registration and Protection) Act, 1999, which was enacted as a result of the WTO-TRIPS Agreement.
Justice Madan B Lokur ruled that agreed that the words "Scot" or "Scotch" identify whisky produced in Scotland and no non-Scotish manufacturer can use them to market its liquor in India. The court directed Golden Bottling Ltd, from India, to pay damages the Scotch Association and its members for passing off its whisky as Scotch whisky. The court accepted that under the WTO-TRIPS agreement, protection was provided for GIs, which identifies the good originating in the territory of a Member or the goods that are essentially attributable to its geographical origin.

RIAA Police?

from http://tech.moneycontrol.com/wp-content/uploads/2006/04/RIAA.jpg
Thanks Richard for the link
How far are we from this?!

Friday, April 14, 2006

Cyberbullying: are we all guilty?

There have been several reports that show that cyberbullying is on the rise and I was wondering whether the rise has nothing to do with misconceptions created by the media and, now in smaller measure, the academia. As most reported situations show, those engaging in such despicable behavior are easily found and sanctioned, but it seems that one of the reason for using the net is the false security of doing it anonymously (here you can find the original New Yorker cartoon that helped to create the mistake). CNN reported the case of the student that prentended to be a teacher posting child pornography in MySpace.com, and Technollama has a report on the Star Wars Kid case. Of course it can be argued, probably with reason, that there are other more compelling reason for using the Net for bullying, as the desire to reach a global audience and the facility to do so, but I wonder if the trend would be so upward in the case of everyone knowing that it is very difficult to hide who you are in Cyberspace.
It is probably the moment to devote more time to explain in the press and in classes that in Internet everyone knows that you are a dog.

Thursday, April 13, 2006

"It is not time yet for a SPLT"

With those words Ron Marchant, Chief Executive of the UK Patent Office and the acting-president of the Informal Meeting of the Standing Committee on the Law of Patents (SCP), ended the meeting that achieved no positive result. The meeting was convened with the purpose of establishing a working plan for the SCP, taking into account the discussions of the open forum, which took place also in Geneva during the first three days of March 2006, as mandated by the WIPO General Assembly during its 17th ordinary session (September 26 to October 5, 2005).

The meeting was sharply divided, again, between the position of the Group B, presented by Japan, that proposed that "[t]he SCP should work toward an SPLT prioritizing the issues of:
1. Definition of prior art
2. Grace Period
3. Novelty
4. Inventive Step";

and the position of the Group of Friends of Development, presented by Argentina, that presented a "[l]ist of issues for the work program of the SCP, taking into account the discussions of the Open Forum [which included]:
*Development and policy space for flexibilities
*Exclusions from patentability
*Exceptions for patent rights
*Anticompetitive practices
*Disclosure of origin, prior informed consent and benefit-sharing
*Effective mechanisms to challenge the validity of patents
*Sufficiency of disclosure
*Transfer of technology
*Alternative models to promote innovation"

There were intermediate proposal (I will take about that in future posts analyzing what happened in Geneva), but at the end the refusal of the Group B in treating all the issues with the same standing (without prioritizing their four ones) left the meeting without agreement and the next scheduled meeting (July 2006) suspended.

It's a "long and winding road"...

Tuesday, April 11, 2006

The WIPO's SCP meeting

From tonight I will try to post the positions and proposal of the parties...

The WIPO's SCP meeting is starting...

I have been observing with preoccupation the process to arrive to, the proposed contents of, and the compromise that some of the most developed countries seem to have in relation to the Treaty on the Substantive Law of Patents. Now I am in Geneva participating as observer of the Informal Meeting of the WIPO’s Standing Committee on the Law of Patents (SCP) and before starting to write about the deliberations, I think that some considerations need to be made.
The process of negotiation was greatly disturbed by situations like the one presented by the Casablanca meeting, where a selected group was invited by selection but without making clear what criteria was followed to select the participants, and then pretend that the result of that meeting had to be the basis of any future discussion for the whole SCP membership. The only possible outcome of that kind of activity would be, of course, to discredit the work of WIPO and its members. It seems not necessary to add that normally, if there is an understanding that a small group of nations should engage in some sort of preliminary work to expedite the drafting of a treaty, that group must be selected from the totality of members, following some sort of pre-agreed representativity, and with also pre-agreed and clear terms of reference.
From the contents point of view, the committee is sharply divided between a small group of countries that propose to harmonize patent law following the highest standard of protection, the so called group B, and those that affirm that patent law should be adapted to different levels of development and thus the proposed treaty should emphasise flexibilities to suit the less developed countries, grouped in the so called Group of Friends of Development. In this context, probably is time to revisit some of the basic principles of the law of patents and then decide where the balance must rest.
The law of patents was created to benefit society by encouraging innovation and, with that purpose only innovators were allowed to exclude others from the economic gains that could be obtained using the invention. It was not created as a giving eternal and unlimited property rights to the inventor or patent holder and, in addition to the economic analysis that shows that too strong protection stiffens innovation, the logic is quite understandable and simple: even the most genial of the inventors had to build upon the existing science and technology, which were the result of the work, the creativity and the ingenuity of, we can confidently say, the humanity as a whole, which in one way or another contributed to their development from the moment that a human being took a rock to create the first tool. So, the innovator owes more to society that what society owes to the innovator and, accordingly, although for enforcement purposes patents are treated as proprietary rights they are essentially a grant given by the state to somebody with a very specific purpose and, therefore, the state has the right and obligation to establish the conditions and duration of that grant taking primarily into account the fulfilment of the original purpose, which is benefiting society. The process, put it in its simplest terms, consist on temporarily restricting the freedom and possibly the welfare of most members of a society by not allowing the free use of some part of society’s knowledge and endowing into someone the right to exclude others from the economic gains produced by that invention, to create incentives for the creation of more knowledge that in term will benefit society. As any process, the previously mentioned is a dynamic one and by definition measures can be taken to tend to the balance of it but it cannot be perfectly balanced. Thus, it is understandable that sometimes societies might go through periods of substantial imbalance, especially when new technologies emerge, but care must be taken to ensure that the imbalance tilts toward the excess of freedom to use, which can be corrected once the proper assessment on the impact of regulation is made, because if, as it is happening now, the imbalance is tilted toward the right to exclude, which deprives society from important parts of the knowledge that it contributed to create and that it is necessary as foundation of new creations, it is virtually impossible to then deprive right holders from rights that lawfully have acquired.
Another very important feature of the law of patents is that, due to having the duty of looking for the balance between the interests of society and those trying to profit from an invention, the balance by definition must belong to each particular society, which renders any objective of internationally harmonise the law of patents based on the highest standard of protection, of dubious desirability at best or of oxymoronic nature at worst. It should be by now clear that following the balance achieved by one or several highly developed societies, less developed countries will be confabulating against the spirit and purpose of patent law and, in some cases, violating constitutional requirements of granting patents and other intellectual property rights to foster innovation. Moreover, it has to be said that the so-called developed countries have given the current high standard of protection to patent holders, especially non-nationals, only after acquiring the status of developed nations and not as pre-condition for such acquisition.
The current proposal presented by the group B can be defined as an attempt to crystallise via patent law, between other measures, the current levels of development and can also be presented as the group trying to cut off the ladder after they have climbed it and reached the top of the tree. This is not the appropriate time to discuss whether the domestic current patent law of the countries belonging to the group B has achieved the formerly mentioned balance, but there are suggestion that the level of protection that the named group proposes to internationalise is not even adequate for them, and that the current patent law system, defined as broken in some jurisdictions of the group B, is already too tilted in favour of patent holders and it is starting to stiff innovation. It is probably necessary to remember that patent law was not created to protect the profits of patent holders per se and that those profits are only a mean to achieve the end of benefiting society.
It could be argued that it is difficult to understand what brings together the so called group B. The proposal put forward by the group is designed to benefit a very small group of companies of some and not all of the members of the group B and, even if anyone here believes that what benefits big corporations benefits automatically their home countries, there is mounting evidence that the current patent systems on which the group B proposal is based would eventually and not in the very long term hurt the same big companies due to stiffening of innovation.
There are also questions to be raised with respect of the compromise of some of the Group B members with the international rule of law. I am not referring, of course, to the current international security situation and the discussion about whether some of the most developed countries are violating or not international law to solve that situation. The issue here is the continuous forum shifting carried out by some of the most developed countries, which creates a permanent state of flux for the harmonisation of intellectual property rights regulation in general and the law of patents in particular. Special attention needs to be given to the use of trade negotiations and free trade agreements to induce, only to avoid the use of the word to force, level of protection far higher that those negotiated and agreed in international and multilateral forums. What is the purpose of any of the WIPO meetings and potential agreements if then, once signed, will be overruled by bilateral agreements that are product negotiations conducted in highly unequal positions and sometimes under the threat of unilateral trade sanctions of dubious legality in international law? What can be expected from less developed countries if the most developed and sophisticated ones seem to use this sort of agreement only as the platform for the next round of negotiations at bilateral level, and would abandon any activity tending to its effective implementation after the less developed countries had used a great deal of their limited resources to achieve such a treaty? I strongly believe that one of the conditions of development and progress is the rule of law, which in the patents case would bring certainty about rights and obligations to patent holders and allows them to plan accordingly and use their competitive advantage to boost their profits and gains for their stockholders. Therefore, extreme care needs to be taken in not producing a Treaty that less developed countries would sign knowing that their only option would be to not follow its dictates, because the situation for those countries, the patent holders and the international rule of law would be substantially worse that the current one.
I understand the complexities of international negotiations and the sometimes more complex process of arriving to a member-state position, but I think that, opposite to what had been claimed often, it is of benefit of the most developed countries to achieve an agreement that contemplates the needs of the less developed ones. This is not only due to moral reasons, as for example putting forward the interest of millions that are suffering diseases and poverty instead of those of a handful of stockholders who are thinking about the size of their next yacht, but also to sound economic and foreign policy that would try to alleviate the burdens created in developed countries by instability and poverty in less developed nations with their effect on unwanted migration and the continuous spread of diseases, between others.
The positions seem to be as entrenched as ever, so let’s see what result this informal meeting brings…
Very cold in Geneva