SFLC.in was represented on two of the panels on Global IP Congress 2015 held at National Law School, New Delhi between 15th and 17th of December 2015.
Panel on Collaborative Innovations – 16 December 2015
The diverse panel that represented the publishing industry, free software industry and Wikipedia as the knowledge repository, began with talking about their experiences as a part of the group that went beyond the traditional structure of copyrights and made their material available with a license that was open to further development. The panel consisted of Asaf Bardov, head of Wikimedia Foundation, Manisha Choudhary, Editorial head of Pratham Books, Sunil Mohan, developer of Freedom Box and Mishi Choudhary, Legal Director, Software Freedom Law Centre as the chair. The panel began with initial comments from the panelists about their experiences about how the copyright law was always about collaborative innovations and not only the enrichment of the publishers.
Asaf Bardov, head of the Wikimedia Foundation, said that Wikimedia was working on a sister project, WikiData which will be a huge repository of structured data. One could ask very specific questions in that repository that may otherwise not be possible in other search engines. Highlighting the importance of community in Wikipedia, Asaf highlighted how the core of their organization were the volunteers and it was the community of volunteers that created Wikipedia, and not vice versa. The volunteers helped re-licensing material and approached people to encourage them to use creative common licenses. Thanks to the re-licensing, Wikimedia and WikiCommons has a repository of 25 million re-usable material.
Manisha Choudhary, the editorial dead of Pratham Books talked about the interesting perspective of working in a not for profit publishing industry. Pratham Books, publishes books under CC-BY licenses and Ms. Choudhary pointed out that Pratham encourages authors to publish books under creative common licenses and it was possible in their experience to multiply the efforts of non profit publishing industry through CC-BY licenses. She mentioned that Pratham has a new initiative, ‘Story Weaver’, an online portal where people can upload children’s stories that are readily downloadable and can be translated by people on their will. This will help solve the reading crisis in the country, that has emerged due to a lack of books for kids to read in their mother tongue. Manisha believed that creative ideas can never be held hostage to intellectual property.
Sunil Mohan, a software developer credited for his work on the FreedomBox, which is a simple device for reclaiming privacy and anonymity on the itnernet. He gave a short presentation on the working of FreedomBox and its heightened need at this hour. Freedom Box has a simple user interface and interaction that can be used as a smartphone for server application. He mentioned that this device is available for the public and supports many platforms, one can bring in an old computer and it can work as a server. Sunil exclaimed that the idea behind this device is to take back computing in our own hands from Google and Facebook, who do not respect anyone’s privacy. Highlighting the importance of community, he remarked, resonating true for the panel’s point of view that the projects that are in favor of the public, and alternative soluntions can only be built by the community.
Panel on “Software Patents: Stymieing Innovation for 25+ years” – 17 December 2015
The discussion was chaired by Mishi Choudhary, Executive Director, SFLC India. The panel featured eminent personalities from diverse backgrounds; namely Peter Maybarduk, Director of Public Citizen’s Access to Medicine Program, Rajiv Kr. Choudhary, a patent agent and lawyer practicing both in the US and India and SpicyIP author, Biju Nair of the Open Invention Network (OIN), Sharad Sharma, co-founder of iSpirit and a well-respected tech angel investor, and Shagun Belwal, Counsel at SFLC.in. Suffice to say, the panel was well represented from most stakeholders in the software patent industry.
Mishi Choudhary sparked the debate by establishing ground zero of the current software patent regime in India. She cited a PwC empirical report that reflected the dark realities of patent litigation, highlighting the increasing amounts of damages awarded to NPEs (Non-practising entities), so much so that NPEs are awarded 4.5x the damages than PEs in the US. In this context, she commented on Section 3(k) of the Indian Patent Act and the 2015 guidelines to the effect that India is a much better environment for software freedom to prevail. This statutory provision ensures a clear impetus to innovate by protecting developers from getting out-casted. However, in light of the recent 2015 guidelines, she expressed concerns about these creating a method to circumvent the protection offered by statute for patenting computer programs ‘per se’.
Peter Maybarduk along with his colleague Burcu Kilic of Public Citizen’s Access to Medicine program voiced their concerns about the current pharma regime, which is reducing the accessibility to medicines. Big pharma giants, who are holders of important medicinal patents, raise the prices to an unaffordable level. Peter used the example of pharma giant Abbott, responsible for the AIDS medication, which jacked up the prices of it’s booster drug and also tried to evergreen that patent due to a lack of suitable alternatives in the market. India being a generic-heavy country is a haven for producing cheaper variants of patented medicines.
Coming to the nexus between pharma and software, Peter advocated the need to harness the efforts of software freedom activists and those who oppose the current pharma patent regime. He opined that modern day medicine uses software components in the R&D stage and thus is very crucial to the development of the final product. Hence, they are symbiotic and not disjunctive, as most of us perceive them to be. Considering that pharma giants are not inclined towards creating drugs for poor population, he also put forth an important question before the panel that whether innovation is going to target the actual medical needs of the population? Rajiv Kr. Choudhary, a well respected patent litigator and author, commented on the need to have differing time limits for software patents when compared to other patentable subject matter due to the low shelf life of the former. He remarked that where the lifetime of a software is 5 years and that of a patent He corroborated his views with the case of GSM patents which are expiring now in 2015 after enjoying their 20 years of protection, despite being obsolete for practically most of the term of the patent due to the rise of better, more usable tech. In this light, he compared the mobile industry with the semiconductor industry in that both products are of a developmental in nature and they are bound to be replaced in a short period of time by their improved versions. This calls for sui generis protection scheme, which caters to the volatile nature of software patents. Also, he claimed that granting the same patent duration to tech has stifled innovation in the tech industry. Coming back to the GSM example, the mobile industry hasn’t reinvented the wheel, since they have just come up with better versions, but the very basic structure is still the original GSM platform. Hence the patentees are in a position to exploit the market and charge royalties for any GSM-based product, which is almost every mobile now.
He also expressed his views on the licensing of patents. According to him, portfolio licensing, which is basically a generalized licensing technique, isn’t beneficial from the licensee’s point of view. The best way to go about it is to adopt a patent-by-patent approach and treat each patent on its merit independently.
Biju Nair represented the Open Invention Network (OIN), which concerns itself with patents developed using only the Linux platform. It has a diverse portfolio of companies, startups etc. with differing patenting regimes, but the one thing they all have in common is that they all use the Linux platform. They have accumulated all patents built on Linux to create a patent pool, which is basically a hack to the problems created by patent thicket cross-licensing, fencing etc., so as to encourage any new developer to freely develop their software without fear of stepping on any toes. Their USP is that all the big players have come on board and the members of OIN are free to use each others patents without having to pay any royalties. This encourages the smaller developers to innovate freely without fearing the big players and they all pool in their resources and enjoy mutual benefits. It was repeatedly insisted by Biju that there are no costs, explicit or hidden behind running this network, nor are there any membership charges. Therefore, any patent holder willing to join the movement can do so for free and feel empowered in the company of their 1000+ patents and 1840 licensees. Shagun Belwal of Software Freedom Law Centre, India brought forward evidence to highlight the low percentage of Indian entities winning patent grants as opposed to the majority foreign MNCs which still dominate the Indian patent scene. For an emperical study being conducted by SFLC.in on software patents, the data for granting of patents to Indian entities in the year 2009-10 is 3.55%, whereas for 2010-11 is 3.76%. She also mentioned that for the years 2012-15, over 95% of the software patents granted in India were to foreign entities. The left over 5% had been granted to Samsung India Pvt. Ltd. Indian entities apply as much, if not more than the foreign entities and still there is such a huge grants gap between the two. The Indian scenario is mostly characterized by small-scale developers who have been systematically muscled out by US based giants like Microsoft in India itself.
She put the current state of software patenting in context by describing in detail the history of the contentious 3(k) provision and the many modifications made to it since its inception.
Sharad Sharma dons many hats as the co-founder of iSpirit- a non-profit organization, being a R&D visionary, and technology angel investor. He took a new direction in this discussion by talking about India’s burgeoning software developer scene and the bright future of startups like Uber who have benefitted from public ‘building blocks’. In response to Shagun’s report he remarked that the low percentage of Indian patentees was not an accurate reflection of the inventive capabilities of Indian R&D entities. He used the example of the popular accounting software Tally, developed by Indians, to indicate the mentality of Indian developers to generate community good rather than guard their work and allow selective use through barriers of licensing and damages. He heavily criticized the centralized nature of R&D in the world. Lastly, he suggested that real change can only be brought about by community initiatives like the development of the SIP technology where individuals come together in their own way create simplistic technology and deliberately did not patent it. SIP is now used to make every call on modern day mobiles.
The panel concluded its discussion by closing comments made from Mishi. She posited the Chinese treatment of patents as food for thought for our eminent panelists and guest viewers.