We’re excited to launch a blog post series on The Sustainable Seed Innovations Project, a UK-India project on sustainable agriculture, led by University of Leeds, Art of Living Foundation and Dr. Mrinalini Kochupillai (lecturer and senior research associate at the Technical University of Munich and also a former SpicyIP blogger). The series is aimed at informing and sensitizing the readers about the underlying issues as well as receiving their inputs and recommendations, which which will be endeavoured to be incorporated in a position paper that the project team is preparing for the Government of India. We look forward to your active engagement and participation!

Here goes the kick off post by the team:

The Sustainable Seed Innovations Project: Invitation to Engage, Contribute and Collaborate

SSI 2.0 Research Team

Dear friends, colleagues, readers of SpicyIP,

With this series of blog posts, we are launching a one of its kind open, public consultation and feedback in relation to a position paper that is being prepared for the Government of India. The position paper will give concrete recommendations, including legal, policy and technical recommendations, on means of promoting ‘Sustainable Seed Innovations’ in India, for the benefit, particularly, of small and marginal farmers.

The idea of the position paper came up following extensive consultations with and recommendations received from experts and diverse stakeholders, especially small farmers, researchers, lawyers and NGOs, that took place under the Sustainable Seed Innovation 1.0 Project & Conference (September 2017). The recommendations and inputs from the stakeholders form the backbone and rationale underlying the recommendations that will be compiled and dissemination in the position paper by the research team. The research leading up to the position paper was funded by the UK Arts and Humanities Research Council (2017) and more recently, by an impact acceleration fund provided by the UK Global Challenges Research Fund (2019).

Given SpicyIP’s stellar track record in public engagement and engagement with issues that affect the public (and marginalized segments of society), the research team is proud and excited to partner with the SpicyIP team to power this open, public consultation and invitation for feedback. (Needless to say, we also welcome feedback and additional blogs from the members of the SpicyIP team).

The Research Team

The Sustainable Seed Innovations 2.0 (SSI 2.0) Team comprises of the following core members:

1. Gregory Radick, Principal Investigator, University of Leeds

2. Mrinalini Kochupillai, Co-Principal Investigator SSI 2.0 (currently also serving as lecturer and senior research associate at the Technical University of Munich)

3. Natalie Kopytko, Post-Doctoral Research Associate, University of Leeds

4. Prabhakar Rao, plant breeder, seed keeper, python coder, Natural Farming expert and Trustee, Sri Sri Institute for Agricultural Sciences and Technology (SSIAST)

5. Julia Köninger, Masters Student, Sustainable Resource Management, Technical University of Munich

6. Rugmani Prabhakar, Head, Sustainability Advocacy, Art of Living Foundation

SpicyIP is our official public dissemination and engagement partner for the purposes of enriching and expanding the debate, as also informing and sensitizing the public, academia and government about issues that underlie this exciting and highly relevant research field.

Sustainable Seed Innovations: A Definition

To understand the blog posts that will follow this one, the question that might first arise, is, what do we mean by ‘Sustainable Seed Innovations’? We define “sustainable seed innovations” as innovations that ensure the following:

1. Environmental Sustainability: The innovations must protect, nurture and enrich the environment, inter alia, by enhancing in and on soil biodiversity (a goal pursued by international instruments such as the Convention on Biological Diversity), conserving water, replenishing water tables and maximizing ecosystem services (goals pursued, inter alia, under the UN Sustainable Development Goals);

2. Socio-Cultural Sustainability: The innovations must respect, revive and support the continuation of local cultures, traditions and knowledge systems, including festivals, cultures of seed and knowledge saving and sharing etc., while also supporting social development and reducing non-sustainable demographic shifts;

3. Economic Sustainability: The innovations and the way they are managed, must support the economic growth and well-being of farmer-innovators as well as the local/rural communities in which these farmer-innovators are working, effectively incentivizing the continuation of the practice of sustainable seed innovations (i.e. Economic Sustainability);

4. Sustainability of the Innovation Process: The innovations must nurture the spirit of innovation by supporting, through effective frameworks, continuing downstream innovations (both formal and informal) by diverse stakeholders, making sure, nonetheless, that transfer of raw materials (seeds, plant genetic resources etc.) necessary for downstream innovations are transparently, and accurately tracked. This tracking is necessary to ensure that economic benefits accruing to downstream innovators are shared with the original innovators/communities of innovators.

Accomplishing the Goal of Sustainable Seed Innovations: 3+1 Pronged Approach

Based on the recommendations received by the multi-stakeholder expert group (including several farmers) during the Sustainable Seed Innovation 1.0 Conference and Project, the research team recommends a 3 (+1)-pronged approach to accomplishing the goal of promoting sustainable seed innovations for the benefit of small farmers in India.

The prongs are:

1. Reviving Traditional Ecological Knowledge Systems of India, that contain rich knowledge on means of protecting and enriching in and on soil biodiversity (including, especially, seed diversity) and ecosystem services;

2. Re-designing curriculums of Agricultural Universities of India and of Rural Agricultural Extension Services to incorporate extensive education and training in farming systems that incorporate this traditional ecological knowledge;

3. Adopting technical solutions, including Artificial Intelligence and Digital Ledger Technologies (such as blockchain) to diversify the directions of knowledge flow and ensure that actual monetary compensation reaches those who cultivate and transfer knowledge/information in the form of heterogenous, indigenous seeds and planting materials (or in the form of means of enhancing soil health and microbial diversity to enhance yields of such seeds, means of storing such seeds in a sustainable way, etc.)

4. Accelerating Research Efforts in line with the goal of Sustainable Seed Innovations: Cutting across each of the above prongs, the +1 (or 4th prong) is research. Continuing research on and with each of the above three prongs is necessary to ensure that the system does not stagnate. It is necessary that every new round of seed innovations or associated innovations emerging under any of the above three prongs, are researched to systematically study, understand and document the value inherent in them. Indeed, the fact of research and research findings themselves add value to the seeds/other inputs being researched.

The first three of these prongs were also mentioned in this Editorial co-authored by the two principal investigators of this project (published in The Hindu).

An Invitation to Engage and Collaborate in the Endeavor

In the series of blog posts that will follow this one, the research team will bring to readers of Spicy IP, further details regarding the background leading up to this project, overview of research and several farmer stories that led to the development of the above 3+1 pronged approach, posts on related issues (that may not be included in the actual position paper, but will be cited in it), global developments in related areas, and finally, the full text of the position paper. We invite and request all readers of SpicyIP to read, comment on and contribute additional blog posts in response to each of the posts that our team posts in this space.

We also invite you to share links to the posts you like and to your own response posts on social media platforms using the hashtag #SustainableSeedInnovations and #SSI-2.0. The SpicyIP Team will mark all posts in this series, using the labels “SSI 2.0” and “Sustainable Seed Innovations” in order to facilitate ease of access to all related blogs in one place.

Timeline

We aim to post the full first draft of the text of the position paper by 7^th July 2019, following which we welcome comments till 19^th July 2019 on any and all segments of the position paper. Translations of the position paper will also be provided to farmer groups (off line and via SpicyIP and other platforms such as NGO websites) for their comments.

It will be our endeavor to incorporate as many (and if possible all) major feedback and recommendations into the position paper – either in the main text or as an Annex – by or before 29^th July 2019.

The final position paper incorporating the comments and feedback, will be presented to the Government of India during the Sustainable Seed Innovation 2.0 conference that will take place in Bangalore, on 30^th July 2019. The final text will also be made available to SpicyIP readers and will be submitted, in appropriately modified form, for publication in an open source journal or other public platform.

We look forward to active participation and constructive contributions from all stakeholders, the general public, researchers, journalists, policy makers, private sector, NGOs, farmers and of course, all readers of SpicyIP who are concerned about food, nutrition, the environment and/or the health and well being of small farmers in India and beyond.

The research team thanks you in advance for your inputs, recommendation and engagement.

Thematic Highlight

In a guest post, Dr Sunanda Bharti shared her views on sarees as a subject matter of intellectual property rights. Specifically, she argues that the methods of draping sarees can be protected as Traditional Cultural Expression. She notes that the use of these methods would constitute misappropriation if used commercially or in a manner that offends the culture. Further, she posits that these rights may be implemented through the Domaine Public Payant method, where the government collects revenue for the use of traditional cultural expression.

Topical Highlight

Pankhuri shared the first post of a series of posts on The Sustainable Seed Innovations Project, a UK-India project on sustainable agriculture, led by the University of Leeds, Art of Living Foundation and Dr. Mrinalini Kochupillai. In this post, the team invites the readers to share their views and feedback in relation to a position paper that is being prepared for the Government of India. In this post, they offer a definition for ‘sustainable seed innovations’ and ways in which the goal can be achieved.

SpicyIP Events

Pankhuri shared details of the Sports Law & Policy Symposium 2019, to be held from August 2-3 in Bangalore.

Other Posts

Pankhuri shared a post with the views and experiences of present and past SpicyIP Student Fellows on the fellowship.

Other Developments

Indian

Judgments

Swarovski Aktiengesellshaft v. Durgesh Kumar Patwa – Delhi District Court [June 1, 2019]

The Court granted a permanent injunction restraining Defendant No. 1 from infringing and passing off the Plaintiff’s registered mark “SWAROVSKI” and its logo by using a deceptively similar mark “SWARAWSKI” in respect of jewellery and allied products. In arriving at this decision, the Court noted that the Plaintiff was the registered owner of the mark, and the same had acquired distinct features due to its consistent use. The Court also awarded damages of Rupees 25,000 to the Plaintiff in light of the items recovered by the Leading Commissioner from Defendant No. 1 in a raid.

State v. Anil – Delhi District Court [June 3, 2019]

The accused in this case was found in possession of 285 pirated MP3 files and 619 pirated DVDs during a raid on his shop. The Court noted that the prosecution had to show that the accused was found in possession of articles in which copyright subsisted in favour of the complainant. However, it was subsequently noted by the Court that the prosecution had failed to prove the recovery and identity of the articles seized as well as to show the relation of the accused with the shop from which articles were recovered.  The Court observed that the prosecution is supposed to prove its case beyond reasonable doubts. It was noted in the findings of the Court that the prosecution had miserably failed to prove that valid copyright subsisted in the articles of which the pirated versions were presented, or that the accused had knowledge of the existence of copyright in such articles. In light of these lapses, the Court noted that the prosecution had failed to prove the case beyond reasonable doubt and the accused was acquitted.

State v. Robin Singh – Delhi District Court [June 3, 2019]

The case against the accused was that he was found loading copyrighted songs of movies on mobile phones without any authority or license to do so. The Court recorded that it was a principle of criminal law that prosecution was supposed to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. In the present case, the Court noted that the prosecution’s witnesses had given contradictory and inconsistent statements thereby failing to inspire the confidence of the Court. Having noted this, the Court concluded that the prosecution had failed to prove the case beyond reasonable doubt.

News

• Delhi Court restrains Oyo Rooms from using Savoy Greens trademark
• Passing off suit with respect to Registered Design used as Trademark maintainable, Delhi HC
• HC restrains pharma firm from using trademark deceptively similar to Glaxo’s Augmentin drug
• Patent Applications go up in Bharathiar University
• Gionee patents will be auctioned to pay off debt
• Reviving Indigenous Seeds: A Silent Revolution in India’s Rice Growing States
• FIRs against 12 Maharashtra farmers for illegally sowing Bt Cotton
• DPIIT issues draft guidelines for use of GI logo and tagline
• Demand for GI tag to ‘Nayagarh Chenapoda’
• Green signal for Nayanthara’s film

International

• Novartis wins Gilenya reprieve as judge blocks generics, for now

A little over a year ago, a Panel formed under the auspices of the World Trade Organisation published a report that found Tobacco Plain Packaging Measures (the ‘TPP Measures’) rolled out in Australia to be compliant with obligations under international trade agreements.

This decision was hailed as a victory against the tobacco lobby, which has rallied against TPP Measures at several levels, including domestic courts and international investment tribunals. However, this decision has also attracted plenty of criticism (see here and here for an outline; see here and here for specific criticism on the Panel’s findings on TRIPS issues), with several scholars arguing that the decision fails to follow established norms in WTO jurisprudence.

Recap

Australia enacted The Tobacco Plain Packaging Act 2011 (the ‘TPPA’) to discourage the use of tobacco products. The TPPA prohibits the use of all trademarks, other than standard character word marks, on tobacco products and their packaging. For example, the use of brand imagery, such as logos or colours associated with a particular manufacturer, is prohibited.

The implementing regulations of TPPA, The Tobacco Plain Packaging Regulations 2011, as amended by The Tobacco Plain Packaging Amendment Regulation 2012 (No. 1) (the ‘TPPR’) provide further detailed requirements for package and brand colour. Collectively, these are the TPP Measures.

The TPP Measures require that:

(a) the packaging of tobacco products shall have a uniform plain packaging in “drab dark brown colour”;

(b) each inner surface of a cigarette pack or cigarette carton must be white;

(c) the trademark, business name and company name or variant name be displayed only in a standardized form on cigarette packs and cigarette cartons;

(d) the typeface must be printed in Lucida Sans.

In 2012, Honduras, Cuba, The Dominican Republic, and Indonesia challenged the TPP Measures before the WTO, on the grounds that the laws violated international trade agreements, including TRIPS.

The decision of the Panel, which was published on June 28, 2018, found that the TPP Measures did not violate any of the obligations under the international trade agreements, including the obligations pertaining to trademarks and geographical indications under TRIPS. Prarthana wrote a wonderful post which summarises the Panel’s finding on all TRIPS issues (see here).

Appeal

While all four countries have unanimously decried the decision of the Panel, only Honduras and the Dominican Republic have decided to pursue an appeal before the Appellate Body.  In their public statements, however, Indonesia and Cuba have maintained that the TPP Measures effectively hamper their legitimate economic interests without any quantifiable proof of benefits arising from it.

In the appeal, it appears the Panel’s findings on Article 20 of TRIPS will be a major bone of contention. This provision reads as:

“The use of a trademark in the course of trade shall not be unjustifiably encumbered by special requirements, such as use with another trademark, use in a special form or use in a manner detrimental to its capability to distinguish the goods or services of one undertaking from those of other undertakings.”

The crux of this issue lies in the interpretation of the term ‘unjustifiably’. Australia has relied on a series of findings made by peer-reviewed studies in 2016 on the effectiveness of the TPP Measures to argue for its implementation. It asserts that the studies “show that the tobacco plain packaging measures are having an impact by reducing the appeal of tobacco products, increasing the effectiveness of health warnings, and reducing the ability of the pack to mislead. The studies also provide early evidence of positive changes to actual smoking and quitting behaviours.”

However, there is opposition to this view. Economists Sinclair Davidson and Ashton de Silva authored a paper claiming that Australia’s evaluation fell short of its own criteria for justifying an evidence-based policy. They further argue that Australia’s studies “suffer from inconsistencies and methodological differences” and that “the evidence is not consistent with the stated aims of the plain packaging policy.” Further, studies have also found that smoking rates have actually gone up in low-income countries despite tobacco control measures being in place. On the basis of these studies, the appellants may argue that the actual benefit of the TPP Measures is far from a foregone conclusion in terms of reducing smoking rates. Merely well-meaning policies, therefore, cannot be the basis on which otherwise legitimate trade is encumbered.

INTA’s Brief

The International Trademark Association (INTA), seeking to represent the interest of trademark owners, has filed an amicus brief before the Appellate Body, contending that TPP Measures first, impinge intellectual property rights under TRIPS and the Paris Convention, and second, also result in harm to consumers of tobacco products (see the brief here).

Primarily, INTA alleges that the Panel failed to appreciate the true import of Article 20 of TRIPS. They argue that the Panel failed to recognise that the provision protects ‘private property rights’ rather than ‘state actors’. As such, any interpretation must recognise that any impediment caused to private property rights and global trade is undesirable, and should be permitted in limited cases only. It follows, that only clear, convincing and quantifiable evidence that the TPP Measures fulfil the government’s interests can discharge the burden of the state under Article 20. This, it has been argued, has not been the case before the Panel.

They further suggest that less drastic alternatives were available to Australia, which they failed to consider. For instance, other jurisdictions have adopted warnings and graphic labels which cover significant portions of tobacco packaging and yet leave room for branding elements. The European Union had adopted provisions that require 65% of cigarette packs to be covered by warnings and graphic displays. They suggest that “there is no evidence that such packaging is less effective in reducing smoking than the complete elimination of almost all branding elements required by Australia. In fact, there is some evidence that smoking rates in Australia have either stabilized or increased after the introduction of both plain packaging and higher taxes on tobacco products.”

Additionally, the elimination of the source function of trademarks also opens up the market for counterfeit products. These products will likely not meet the necessary health and safety requirements for tobacco products, increasing the risk of harm to consumers. Further, the absence of any distinguishing factor between brands will also lead to price competition. This will not only make tobacco products more affordable, but also tend to reduce the quality of products in the market.

Conclusion

Since the publication of the Panel Report last year, several countries have decided to roll out some form of tobacco plain packaging measures in their own countries, with many perhaps seeing the Panel’s decision as a green signal (the latest country to do so being Belgium). However, with a potentially strong appeal pending, it may be wise for them to hold out for a little longer.

Image from here.

Recently, I had the opportunity to work on the Panel Report in the Tobacco Plain Packaging case at the WTO. It brought forth several interesting questions on the intersection between health, policy-making, trade and intellectual property rights. It also places TRIPS obligations relating to trademark and GIs under the scanner, with question marks raised over whether the interpretation given by the Panel supports a good faith interpretation of the treaty.

While much has been written about the issues pertaining to trademarks, (see here, here and here), not nearly as much attention has been paid to issues pertaining to GIs. The Panel discussed two issues on GIs: first, on the allegation that the Tobacco Plain Packaging Measures (‘TPP Measures’) constitute an act of unfair competition and hence violate Article 22(b) of the TRIPS Agreement and second, on the allegation that the TPP Measures reduce the level of protection afforded to GIs prior to the entering into of the TRIPS Agreement. The Panel rejected both these allegations.

Article 22.2(b): Anti-Competitive Practices related to Geographical Indications

Article 22(b) of the TRIPS Agreement seeks to protect the exploitation of GIs through anti-competitive practices as defined in Article 10bis of the Paris Convention 1987. It reads:

“Protection of Geographical Indications

[…]

1. 2. In respect of geographical indications, Members shall provide the legal means for interested parties to prevent:

[…]

(b) any use which constitutes an act of unfair competition within the meaning of Article 10bis of the Paris Convention (1967). […]”

Article 22(b) requires members to ensure that interested parties have the legal means to prevent an act of unfair competition. Under Article 10bis of the Paris Convention 1967, an act of unfair competition is “any act of competition contrary to honest practices in industrial or commercial matters.” In deciding this issue, the Panel framed three questions.

Does ‘an act of unfair competition’ include the promulgation of laws and regulations?

On this question, the Panel relied on jurisprudence under Article 10bis of the Paris Convention 1967 to note that ‘competition’ and ‘act of competition’ are understood in light of ‘industrial or commercial matters’. They refer to the activities that competitors undertake to further their business objectives and gain arbitrage over their competitors. Promulgation of a legislation or other rules that regulate the market environment does not constitute an ‘act of unfair competition’, since it is not related to industrial or commercial matters (Tobacco Plain Packaging Case, ¶7.2858).

Do interested parties have a positive right to use GIs?

On this issue, the Panel noted that Article 22(b) only creates an obligation to ensure that interested parties are empowered to prevent third parties from using it. In keeping with its findings on the trademark-related issues, it stated that the provision creates a negative right rather than a positive right (Tobacco Plain Packaging Case, ¶7.2860).

Does a prohibition on the placement of GIs on the packaging of tobacco products result in unfair competition?

Since the TPP Measures introduced in Australia prohibit the usage of any words, indications or illustrations that do not form a part of the brand or variant name, it is not possible to mention the geographical origin of the tobacco on the packaging.

To determine whether the TPP Measures violate Article 22(b), the Panel stated that its assessment would need to be two-fold – first, a factual assessment of whether the TPP Measures have compelled market actors to engage in acts of unfair competition. If the answer to this question is in the affirmative, then an assessment into whether Australia has provided legal means for interested parties to prevent such acts. The Panel answered the first question in the negative, negating the need to examine the second question. (Tobacco Plain Packaging Case, ¶7.2863).

The complainant argued that the GIs of their tobacco, such as ‘Habanos’, do not function as an indication of a particular source of supply of the good itself as envisaged under Section 20(3)(a) of the TPP Act, but rather as an indication of the origin of the tobacco in the cigarettes. Therefore, it would not be entirely appropriate to use these GIs as trademarks, and the TPP Measures prohibit its mention as anything other than the brand or variant name. Hence, producers would be put at a competitive disadvantage compared to producers who may not be using tobacco that is protected as a GI.

The Panel noted that insofar as the geographical origin is a part of the brand or variant name, it may form a part of the packaging. There is no prohibition on the usage of GIs as brand names under Section 4 or 20(3) of the TPP Act. Further, they noted that the use of GI tobacco in the product is a strategic decision of the producer, and therefore, may be made public through other avenues if there is no other way of putting it on the package. Since the complainants failed to establish how the TPP Measures reduce a competitor’s ability to distinguish its product from others, they did not succeed with this argument (Tobacco Plain Packaging Case, ¶7.2856).

In my view, this finding of the Panel ignores the fact that GIs are not owned by individuals, but rather may be used by all producers who properly exploit the GI product. Therefore, it would be inappropriate and against the essence of GIs to allow one producer to monopolise its usage by incorporating it within a brand or variant name. The lack of an express prohibition in the TPP Act should not wash over this distinction between usage of trademarks and GIs. If GIs cannot be placed as brand or variant names, the restriction of the TPP Measures does prohibit producers from distinguishing their products through packaging, especially since advertising of tobacco is also banned in several countries.

The complainant also argued that the omission of GIs on tobacco packaging may also lead to confusion amongst consumers looking for a particular kind of tobacco. This would leave producers who use such tobacco at a disadvantage. While the Panel acknowledged that omissions may lead to confusion in certain instances, it noted that in the present case, there would be none because: first, there is no deception or false representation as to the origin of tobacco in certain products, and second, the TPP Measures are well publicised, ensuring that consumers would be aware of the plain packaging requirements and would not be confused by it (Tobacco Plain Packaging Case, ¶7.2866-68).

Therefore, the Panel found that the TPP Measures do not compel market actors to engage in acts of unfair competition related to GIs and found no violation of Article 22.

Image from here.

In Part I of this post, I had discussed the Panel’s findings on Article 22(b) of TRIPS in the Tobacco Plain Packaging case. In Part II, I will examine the second GI issue, on detriment to pre-existing rights in geographical indications.

Article 24.3: Pre-Existing Rights in GIs

Prior to the coming into force of TRIPS, different jurisdictions protected geographical indications in different ways. While in some jurisdictions GIs were protected under trademark law, others relied on common law doctrines to protect GIs. Article 24.3 is an attempt to preserve these numerous rights even after the coming into force of TRIPS, which requires specific statutory protection under Article 22(2).

Article 24.3 requires that the TRIPS Agreement not prejudice existing rights that interested parties may have over GIs. It reads:

“[…]

1. 3. In implementing this Section, a Member shall not diminish the protection of geographical indications that existed in that Member immediately prior to the date of entry into force of the WTO Agreement.

[…]”

The Panel considered two important interpretational aspects of this provision.

‘In implementing this Section’: To the inclusion or exclusion of trademark-related provisions under TRIPS?

The first interpretational aspect was the extent to which the phrase ‘In implementing this Section’ limited the obligation under Article 24.3 of the TRIPS Agreement. If broadly interpreted, it would allow the GI provisions to limit the implementation of trademark provisions under TRIPS to a certain extent. That is, if it includes trademark provisions, then the trademark and GI related obligations may only be implemented to the extent that they do not diminish previously existing rights in GIs. If it excludes trademark provisions, then this caveat only applies to GI related obligations and not trademark-related obligations.

The Panel noted that since trademark-related obligations were in Part II / Section 2 of TRIPS, and GI related obligations (including Article 24.3) were in Part II / Section 3, Article 24.3 does not allow for any exception to trademark-related obligations (Tobacco Plain Packaging Case, ¶7.2925). In doing so, it reaffirmed the interpretation given to this provision by previous Panels (Panel Reports, EC – Trademarks and Geographical Indications (US), ¶7.632; and EC – Trademarks and Geographical Indications (Australia), ¶7.632).

Thus, the Panel held that Article 24.3 only encompasses obligations created specifically related to GIs, to the exclusion of all other intellectual property rights mentioned under Part II of the TRIPS Agreement. Therefore, the provisions related to GIs do not allow for any deficit in the implementation of obligations under other parts of TRIPS.

Does ‘protection’ of GIs under Article 24.3 refer to the legal framework of protection for all GIs or the protection that was accorded to individual GIs?

The second interpretational aspect pertained to the meaning of the term ‘protection’ itself: whether it refers to the diminishing of protection that had been accorded to individual GIs or to the legal framework for the protection of any GI.

The complainant referred to Articles 14.4 and 27.3(b) of TRIPS, relating to trademark and patent obligations respectively. Since these provisions expressly mention the term ‘system’, it was argued that the absence of a reference to ‘system’ in Article 24.3 means that it refers to individual GIs. The Panel agreed with this conclusion, but found that this argument to be inadequate, since those provisions refer to qualitatively different normative frameworks with different underlying principles (Tobacco Plain Packaging Case, ¶7.2932).

The Panel additionally noted that the object and purpose of Article 24.3 is to ensure that pre-existing property rights in specific GIs do not get vitiated. Interpreting it to protect individual GIs would also harmoniously resolve any potential conflict that may arise between the normative frameworks of trademark law and GI law (Tobacco Plain Packaging Case, ¶7.2934-35).

In light of this interpretation, the Panel found that the complainants were unable to discharge their burden under Article 24.3. That is, they failed to establish how the TPP Measures diminished the rights that they had in their GIs prior to the coming into force of the TRIPS Agreement.

Therefore, the Panel found that the TPP Measures did not diminish any pre-existing rights in GIs.

Image from here.

Photo Credit: Ruchi Jain

We’re pleased to bring to you the second post in the blog post series on The Sustainable Seed Innovations Project that we had launched last week. In this post, the research team of the project provides insight into the background of the project.

The Sustainable Seed Innovations Project : Background

SSI 2.0 Research Team

This is the impact-acceleration stage of a project led by PI Professor Gregory Radick, Centre for History and Philosophy of Science at the University of Leeds Co-I Dr. Mrinalini Kochupillai, and in collaboration with Rugmani Prabhakar and Dr. Prabhakar Rao from the Art of Living (AoL) Foundation. Post-doctoral research associate Dr. Natalie Kopytko and research assistant Julia Koeninger provide further support.

Background of Phase 1

How can government policy in India – in particular, around intellectual property (IP) rights – incentivise innovation with indigenous varieties of seeds and other propagating materials?  That was the question investigated in 2017 by a 9-month UK Arts and Humanities Research Council (AHRC) Global Challenges Research Fund (GCRF) project.

The project combined two seemingly dissimilar research agendas.

• Kochupillai’s study of how conventional IP combined with policies both implicitly and explicitly supporting formal seed innovations erode the traditional culture of seed saving and exchange on which sustainable seed innovation.
• Radick’s study of how innovation in the sciences generally involves interactions between intellectual property-narrow (example: patent claims) and intellectual property-broad. IP-broad includes priority claims – credit of first discovery or invention, and productivity claims – recognition for revealing the usefulness of a body of knowledge.

Thus, Phase 1 of the project had two research goals:

1. Examining incentives for farmer-level seed innovations from indigenous varieties in India.
2. Investigating the role of public recognition for farmers’ seed innovation in creating incentives.

Through Kopytko’s interviews with farmers from across India, and the Sustainable Seed Innovation Round-table, phase 1 generated a set of new proposals for maximising public credit for farmers and farmer groups/communities who innovate with indigenous seeds.

The roundtable event organised by the Art of Living Foundation at its headquarters in Bangalore involved 36 experts including academics, lawyers, NGOs, government and farmer groups from various parts of India. Participants highlighted current challenges, and contributed recommendations on means of promoting sustainable seed innovations, including amendments to systems, structures, and research needs.

Beyond agro-biodiversity conservation, indigenous varieties have been adapted for growth in local soils, climates, and human skill sets. As such, their promotion also has the potential to give struggling farming communities a distinctive commercial niche and a renewed sense of dignity. Acknowledging the relevance, Mr. Sanjay Khattal, a representative from the government of India, recommended the compilation of a position paper detailing recommendations for the government.

Introducing Phase 2

At the time of Phase 1, there was no notion that such a credit-tracking/publicising system might be monetised. Successful marketing would be the only means by which innovators would receive financial reward. There was also no link to the productivity-claim part of Radick’s IP-broad proposal. However, new work by members of the Research Team has led to breakthroughs on these fronts.

From Kochupillai and Rao has come an exciting vision for how digital ledger technology (DLT) can be used to (i) track and publicise innovation with indigenous seeds, (ii) ensure that profits from the sale of those seeds go to the small farmer-innovators and community-innovators, and (iii) incentivise research related to traditional ecological knowledge, indigenous seeds, small farmers’ seed and soil health.

DLT ensures that these monetary benefits can accrue while following a differentiated sales system that supports, rather than undermines, the culture of seed saving and exchange. In addition, DLT would facilitate ease of use to systems established under international instruments such as the International Treaty on Plant Genetic Resources for Food and Agriculture and the Convention on Biological Diversity. These instruments support an IP-broad productivity claim by mandating benefit-sharing with local and indigenous communities that grant access to Plant Genetic Resources. While the number of patents and plant breeders’ rights certificates issued for new varieties of seeds has been increasing rapidly within India and globally, there are only a few instances of benefit-sharing with the farming communities – the original custodians of Plant Genetic Resources.

Prabhakar Rao (Art of Living’s) work with traditional and farmers’ varieties, particularly Sona Moti, will illustrate the functioning of the recommended DLT solution. The name Sona Moti, given by The Art of Living founder Sri Sri Ravi Shankar, translates to Golden Pearl describing the round-shape and golden appearance of a 2,000-year-old Indian Emmer wheat with three times more folic acid than any existing variety. The story of Sona Moti provides a clear example of a productivity claim within IP-broad.

The relevance of productivity claims going beyond intellectual property protection regimes is further enhanced and finds concrete expression when communities and farmers practice Traditional Ecological Knowledge. Indeed, several of the roundtable participants shared experiences where the inherent productivity of traditional varieties enhances the self-respect and worth of the entire community preserving the variety.

In line with the experience of farmers, from Radick comes a new way of teaching genetics. Rather than Mendelian rules applied in labs, his teaching approach highlights the importance of genetic backgrounds and gene-environment interactions. This can help farmers understand why local indigenous seeds grown using traditional methods can be more productive as well as ecologically sustainable. Thereby, scientifically validating farmer experiences.

These new insights along with the research findings and phase 1 round-table discussions will inform the recommendations included in the position paper.

Thus, the project has 3 outputs:

1. The writing and publicizing of a research-based position paper for the Government of India, co-authored by the Research Team, with supporting comments and contributions from SSI 1.0 and SSI 2.0 round-table event participants;
2. The web-based dissemination of the stories of innovative farmers as an example of IP-broad;
3. The unveiling of a Digital Ledger Technology facilitated framework.

Prior to the second round-table, participants will have an opportunity to contribute feedback on the position paper presented to the Government of India. The round-table discussions will then provide a chance for stakeholders to discuss next steps in supporting sustainable seed innovations and future research needs. These discussions will centre around the 3-prong approach introduced by Kochupillai and Radick in their recent Op-Ed in The Hindu “A wake-up call on proprietary seeds”. Importantly, some of the solutions recommended in this position paper can be implemented immediately for the benefit of farmers. Other solutions require additional research before implementation can be meaningfully accomplished.

A few weeks ago, Pankhuri had released a post on the Government’s proposed revisions to Form 27, provided in the Draft Patent (Amendment) Rules, 2019.  Before I delve into the implications of these revisions, a brief recap of the relevant legal provisions and the events which led to this state of affairs is required to give readers more clarity on this pressing issue.

Compulsory Licensing, Patent Working and Form 27-A Short Introduction

Section 146 (2) of the Indian Patent Act (“Act”) read with Rule 131(2) of the Patent Rules, 2003 requires all patentees and licensees to disclose extensive details on the commercial “working” of their patent under Form 27 of the Indian Patent Act on an annual basis. Failure to fulfil this duty may lead to compulsory license of the patent. The Act provides for the grant of a compulsory license under Section 84 (1) if the “(i) reasonable requirements of the public with respect to the patented invention have not been satisfied (ii) patented invention is not available to the public at a reasonably affordable price (iii) patented invention is not worked in the territory of India”. By issuing compulsory licenses to third parties, the Government authorises them to make, use, or sell a patented product without obtaining the consent of the patentee.

Compulsory licensing and patent working has been and continues to be a highly disputed terrain of IP law. Opponents of this law (mainly the US Government and big Pharma MNCs) claim that  the requirement of extensive patent disclosures creates uncertainties, hampers innovation and ease of doing business and poses a huge administrative burden, amongst other reasons. It is, however, undeniable that the necessity of these provisions in order to ensure accessibility and availability of patents in the market far outweigh the possible cons faced by patent-holders and licensees.

Past Compulsory License Applications and the 2015 Patent Working PIL

The first compulsory license in India was granted in 2012 to Natco Pharma for the production of Bayer Corporation’s Nexavar. Natco Pharma Ltd. had filed an application for grant of compulsory license over Bayer’s patented kidney cancer drug, Nexavar. The second Indian compulsory licensing application was filed by BDR Pharma for BMS’ patented anti-cancer drug, Dasatinb. The application was rejected in 2013 since BDR failed to show their efforts to voluntarily negotiate with BMS prior to filing the application. In 2015, Lee Pharma filed a compulsory licensing application for AstraZeneca’s patented diabetes drug Saxagliptin. This application, too, was rejected due to the lack of evidence submitted by Lee Pharma and their failure to prove the conditions specified under Section 84(1).

Since 2011, SpicyIP has been working consistently to create awareness about the government’s (lack of) action with regard to non-compliance with patent working laws. In 2015, Prof. Basheer filed a PIL (“Patent Working PIL”) before the Delhi HC to draw attention to Government’s non-action against such defaulters. He further argued that the format of disclosures under Form-27 was insufficient since it failed to cover a number of necessary criteria required to determine the commercial working of a patent. The petition was disposed of in 2018 and the Court directed the Government to introduce the necessary amendments to ensure efficacy of the patent working provisions. The Government, however, is yet to take the necessary steps, as shall be demonstrated below.

Proposed Form 27 Format-implications on the Grant of Compulsory Licenses

Pankhuri, in her post, notes that the Government’s proposed amendments to Form 27 does away with providing the following information (For a detailed comparison between the present Form 27 and the proposed one, do refer to her post.):

“1. Quantum of the patented product manufactured in India or imported into India;

2. Country wise details of the value and quantum of the patented product imported into India;

3. Steps being taken towards working (if patent has not been worked);

4. The licenses and sub-licenses granted during the year.

5. Statement on whether public requirement has been met at a reasonable price”

At this stage, it is important to note that Natco and Lee Pharma had relied significantly on Form 27 filings to show that the reasonable requirements of the public were not met and that the patented invention was not worked in India. Specifically, in the Natco-Bayer dispute, the Form 27 filings revealed that Bayer sold the drug Nexavar at an exorbitant price (Rs 2,80,000 a month) and was able to meet the requirements of only 2% of the patient population. It is also interesting to note that though Natco had ultimately succeeded in their claim, the SpicyIP team had reported that there were several defects in Bayer’s Form 27 filings. Further, Prashant had highlighted the considerable lack of evidence filed by Natco to support their compulsory license application.

The 2015 Patent Working PIL makes important observations on the relation between patent working disclosures and compulsory licenses:

“…patent working data is critical for triggering the compulsory licensing and revocation provisions. If this trigger is made more difficult by keeping the data secret and opaque, it will ultimately affect consumers by denying them potentially more affordable technologies and goods, a concern most starkly felt in the area of lifesaving/extending medicines, such as Bayer’s Nexavar.”

If the patent working disclosures would have been made under the recently proposed Form 27, Natco would have been unsuccessful in its compulsory license claim since it does away with the statement on whether the public requirement has been met at a reasonable price. Further, as noted by Pankhuri, the replacement of the phrase “value of the patented product” with “approximate value accrued in India from the patented product” will still be “insufficient to assess the extent to which the patented invention or product is able to meet the reasonable requirement of public. When it comes to patented drugs, for instance, it is necessary to know the required dosage per patient to effectively assess as to how many patients are being served through the supply of the patented product.” Hence, it would have been impossible for Natco to prove that the requirements of only 2% of the population had been met and their compulsory license application would have been rejected.

Hopefully, the Government will take these implications on compulsorily licensing into consideration and release a draft of the Form 27 which does not impede the efficacy of these provisions.

(This post has been written under the guidance of Pankhuri Agarwal and Prof. Shamnad Basheer.)

Image from here

Thematic Highlight 

Pankhuri released the second post in the blog post series on The Sustainable Seed Innovations Project. In her post, she provides a brief look into Phase I and II of the Project. Phase I seeks to look into the incentives for farmer-level seed innovations from indigenous varieties in India and research about the the role of public recognition for farmers’ seed innovation in creating such incentives. Phase II seeks to publish a position paper for the Government of India, spread stories of innovative farmers on the internet and introduce a Digital Ledger Technology facilitated framework.

Topical Highlight

Rishabh posted an update on the WTO Tobacco Plain Packaging case. In his post, he summaries the appeal filed by Honduras and the Dominician Republic against the 2018 WTO Panel decision, which declared that the TPP Measures did not violate any obligations under international trade agreements. He also touches upon the arguments made by the International Trademark Association in their amicus brief filed before the Appellate Body. In his post, he notes that majority of the arguments centred around the interpretation of Article 20 of the TRIPS, which states that the use of a trademark should not be unjustifiably encumbered by special requirements in the course of trade.

Other Posts

Rishabh also published an insightful two-part post on the GI issues arising from the WTO Tobacco Plain Packaging case. In the first part, he focusses on the interpretation of several aspects of Article 22(b) of the TRIPS, which seeks to protect GIs through anti-competitive practices. Apart from delving into whether a prohibition of GIs on the packaging of tobacco products results in unfair competition, he also delves into the interpretation of “act of unfair competition” and the negative right to use GIs under Article 22(b). The next part of his post dealt with the interpretation of Article 24.3, which provides for protection of pre-existing rights of interested parties in GIs. In his post, he notes that the Panel held that this provision only applies to GI related obligations and not trademark obligations. The Panel concluded that the complainants failed to establish how the TPP Measures affected their pre-existing rights in the GIs, and thereby concluded that they could not avail protection under Article 22(b).

I wrote a follow-up post to Pankuri’s post on the Government’s proposed amendments to Form 27. In my post, I provided a brief recap of the patent working norms and compulsory licensing law under the Indian Patent Act. I then looked into the past compulsory license applications in India and the Patent Working PIL. I finally examined Natco’s compulsory license application under the proposed Form 27 and concluded it would not have succeeded.

Other Developments

Indian

Judgments

Anurag Sanghi and Another v. M/s. Knitpro International – Delhi High Court [June 11, 2019]

The dispute between the Parties arose on account of the Petitioners’ alleged infringement of the Respondent’s design in its needles. The Respondent filed a suit for the same, and further filed two more suits claiming passing off, and infringement of its copyright in the industrial drawing of the same knitting needles before the District Court. The suit for infringement of design was transferred to the High Court from the District Court. Accordingly, the Petitioners submitted that the other two suits should be heard along with the suit for infringement of design in light of the Mohan Lal ruling, wherein the Court stated that suits for infringement and passing off in relation to designs could be tried together if they had been filed in close proximity. The issue before the Court was to determine whether the other two suits could to be transferred to it. The Court answered the issue in affirmative, and observed that the facts in the three suits were intertwined and could not be “split” into different actions. It also cited the Carlsberg case to emphasize on the need for joinder of causes of action to avoid multiplicity of proceedings, and the waste of time, money and energy of the parties and courts. Accordingly, the other two suits were directed to be transferred to the High Court from the District Court in which they were pending.

Birla Corporation Limited and Another v. K.L.K. Cement Private Limited and Others – Calcutta High Court [June 25, 2019]

The Court granted an interim injunction restraining the Respondents from infringing and passing off the Petitioners’ registered marks “PERFECT” and “PERFECT PLUS” by using identical marks in respect of the sale of cement. In arriving at this decision, the Court noted that the Petitioners had produced enough material on record by way of cement bags and labels to indicate their right to protect their marks. Moreover, the Court observed that the Petitioners had made out a prima facie case for obtaining an interim order, and if the same was not granted they would suffer an irreparable loss.

MRF Limited v. Metro Tyres Limited – Delhi High Court [July 1, 2019]

The dispute between the Parties arose on account of the Defendant’s alleged infringement of the Plaintiff’s copyright in its advertisement concerning its “REVZ” range of tyres. Before delving into the substantial issue of infringement, the Court noted that the Copyright Act provided an independent protection to cinematograph films against its constituent parts. The Court further observed that though the term “cinematograph film” was not qualified with the word “original”, the subsequent sub-sections mandated the presence of originality for its protection under the Copyright Act. With regard to the definition of an infringing copy in respect of cinematograph films, the Court observed that the same would not cover physical copies only, but also any substantial or fundamental reproduction of such a cinematograph film. Moreover, the Court stated that the test laid down in R.G. Anand’s case could not be confined to merely literary works, and its general application to all copyrightable works is advisable. After looking at the substance of the two advertisements, the Court concluded that they were neither substantially nor materially similar. The Court elaborated on its conclusion by stating that the Plaintiff’s advertisement was more futuristic and emphasized on the manufacturing process of the tyre, while the Defendant’s advertisement sought to showcase the durability of the tyre. Moreover, the Court observed that the suit was filed after a year since the Defendant’s advertisement was first aired, and hence the Plaintiff was not entitled to any interim order.

Dabur India Limited v. Emami Limited – Delhi High Court [July 3, 2019]

The dispute between the Parties arose on account of the Defendant’s use of “ZANDU CHYAVANPRASHAD” advertisements in print as well as digital media in a way that was disparaging and injurious to the goodwill and reputation of the Plaintiff’s mark “DABUR CHYAWANPRASH”. The Court stated that the intent and overall effect of the advertisement had to be examined in order to determine the question of disparagement. Examining this aspect, the Court observed that the Plaintiff’s product was not the subject of comparison, rather comparison was with Chyawanprash as a generic product. Furthermore, the Court observed that the advertisements in print as well as digital media aimed at merely declaring that the Defendant’s product was sugar free and had certain benefits. The Court also rejected Plaintiff’s argument that the Defendant’s advertisements were disparaging generic Chyawanprash on the ground that the Defendant’s had merely pointed out differences between their product and generic Chyawanprash, and focussed on the health benefits of adopting sugar-free Chyawanprash. In view of the aforementioned discussion, the Court disposed off the case without restraining the Defendant from publishing the print or the digital advertisements.

Bennett, Coleman and Company Limited and Others v. Nina Bandwagon Private Limited – Bombay High Court [July 4, 2019]

The Court granted an interim injunction restraining the Defendant from infringing and passing off the Plaintiffs’ registered marks “MISS INDIA” and “MR. INDIA” by using identical or deceptively similar marks in respect of organizing beauty pageants. In arriving at this decision, the Court noted that the Plaintiffs had made out a prima facie case for the grant of an interim injunction.

Max Healthcare Institute Limited v. Sahrudya Health Care Private Limited – Delhi High Court [July 4, 2019]

The Court granted an interim injunction restraining the Defendant from infringing and passing off the Plaintiff’s registered marks “MAX” and “MAX HOSPITAL” by using deceptively similar marks “MAXCURE HOSPITAL” and “MAXKURE” in respect of hospitals and health facilities. In arriving at the decision, the Court noted that the two marks were likely to cause confusion in the public at large. The Court further explained that the Plaintiff’s mark “MAX” was not generic in relation to healthcare services and was registered by the Plaintiff. In light of this, the Court observed that the test of infringement was only limited to the prominent word of the mark, thereby meaning that the adoption of merely “MAX” by the Defendant was infringing in nature as it was a prominent word in the Plaintiff’s mark. Ultimately, the Court agreed with the Plaintiff that the Defendant adopted the Plaintiff’s mark with a mala fide intent to ride over the goodwill of the Plaintiff and make a misrepresentation to the patients.

News

• Beverly Hills Polo Club wins over Berkshire Polo Club in Trademark Wars
• India protects drug, agriculture business at RCEP
• Online retailers must check authenticity, trademark registration of products they sell
• Writer Sarah Aboobakker wins plagiarism case against makers
• Tip Tip Barsa Pani remix: This has to stop, lashes out Javed Akhtar
• Many poems credited to Gulzar on social media are not his
• India refuses Facebook patent regarding category-wise electronic content
• Quick Heal Becomes First Indian Company to Receive Patent in USA for Anti-Ransomware Tech

International

• Copyright Office Confirms NMPA-Endorsed Mechanical Licensing Collective
• Ed Sheeran Copyright Trial Put on Hold for “Stairway to Heaven” Decision
• Judge Rules Fair Use in Photographer’s Copyright Case Against Andy Warhol
• Cardi B Can’t Trademark ‘Okurrr’
• Texas LLC seeks to take on Coinbase by ‘weaponizing’ SMS messaging patent

As announced last month, SpicyIP is inviting  applications for the 7th SpicyIP Fellowship 2019-20. If you have an interest in IP law and love legal research and writing, look no further! Apply immediately to become a SpicyIP Fellow! The deadline for submitting applications has now been extended from July 15 to July 31, 2019.

Year after year, our fellowship series has attracted some of the brightest minds to the world of IP. If you are wondering whether it’s worth applying for the SpicyIP Fellowship, read (here) what our current batch of Fellows have to say about their experience so far. Their words are sure to dispel all your doubts. 

SpicyIP Fellowship 2019-20

For those of you who are new to the blog, the SpicyIP Fellowship is a coveted position for those seeking to make a mark in the world of IP. Warning though: it entails a high level of rigour in research and writing! Though great fun as well, given the range of topics covered and the freedom you enjoy in creatively crafting your take on various IP cases and developments.

We are now looking for a fresh set of sharp, passionate and dedicated fellows who can help us grow even spicier this year. Apart from the sheer joy of writing, the selected Fellows will earn a stipend of approximately Rs. 45,000 a year (Rs. 1,000 per post).

Our Journey So Far

SpicyIP’s avowed aim is to produce a more transparent, collaborative and productive IP and innovation ecosystem in India. We’ve been working very hard towards achieving this for the last thirteen years. We say so, albeit with modesty: our efforts have not gone unnoticed. We have consistently been ranked among the top IP blogs in the world. Some of our achievements can be viewed here.

We now boast a subscriber base of over 6,500 and receive an average of 1,60,000 views per month. Our blog stats too show the growth we’ve had over the years, thanks in great part to our readers who keep us on our toes with their rigorous critique of our posts.

Eligibility

Anybody is welcome to apply. Sex no bar, age no bar, caste no bar, ideology no bar. So long as you are committed to the craft of writing, and possess a keen mind willing to learn and an attitude open to experimenting with fun formats and themes, this is the place for you!

How to apply? 

1. Interested candidates are required to submit the following to pankhuri@spicyip.com with a cc to contact@spicyip.com with “Application for 7^th SpicyIP Fellowship” in the subject line (Important: If “Application for 7th SpicyIP Fellowship” is not mentioned in the subject line, the e-mail may be missed) by July 31, 2019:
   1. At least two (2) blog posts;
   2. CV (not exceeding 2 pages); and
   3. A statement (not exceeding 1000 words) as to why the applicant thinks he/she would be a good fit for the blog.
2. The posts must be relevant to the Indian IP landscape even if not directly about an Indian development. If you’re not sure whether your topic will be suitable, you may check with us at pankhuri@spicyip.com with “Fellowship Topic Check” in the subject line.
3. All posts must be analytical and not merely descriptive. Posts that reflect on current IP developments will be preferred. Even historical IP related issues or posts that reflect on larger IP themes at a conceptual or macro level are welcome.
4. The word count of each post must be within the range of 900 to 1200 words.
5. Fellows will be selected based on the quality of the posts submitted to us during this four week period. If the two posts submitted by the applicant are not sufficient to make a determination of suitability for the fellowship, more posts may be required after mutual dialogue with the applicant.
6. The name of selected Fellows will be announced on the blog.
7. If the first post from an applicant is of sub-standard quality, further posts from him/her will not be considered, barring exceptional circumstances.
8. The posts that meet the editorial standards of the blog will be published as guest posts. However, if the topic has already been covered on the blog, then the post will not be published unless it introduces a new angle or dimension or perspective.

Evaluation criteria

• Topical Relevance
• Research skills
• Grammar/Lucidity /Language skills
• Logical flow, coherence and structure
• Enthusiasm/Passion
• Creativity
• Discipline/Timeliness/Proactivity

Terms and conditions

• Once selected, Fellows will be on a probationary period for the first two months of the Fellowship. The probationary period may be extended if more time is required to assess the performance of the Fellows.
• Fellows will be required to write a minimum of 4 posts per month for a period of 12 months. If notified in advance, this can be reduced to 2 posts during the months of internship (maximum twice a year) and exempted during the period of exams (maximum twice a year).
• These posts can be on either the Fellows’ own preferred topics so long as they fit within our broader mission statement, or ones chosen from a pool of topics open to all members of the team.
• Each post must be of a minimum of 900 words and preferably under 1200 words (unless the situation otherwise warrants).
• Apart from the posts, the Fellows may be required to assist in research. Depending on the load of research, posting requirements may be adjusted accordingly.
• The expected tenure of Fellowship will be from August 15, 2019 to August 14, 2020.
• Once the probationary period is over and the fellowship is confirmed, the Fellow will be paid a stipend (approximately Rs. 1,000 per post). If we receive more donor funding, we will enhance this stipendiary amount.

Termination

• If the Fellow does not diligently fulfill his/her obligations as set out above or is otherwise deemed unfit for the blog during the probationary period, we will not confirm the fellowship.
• After confirmation of the fellowship, if a Fellow is found to not diligently fulfill his/her obligations at any time during the fellowship period, we reserve the right to terminate the fellowship at any point in time.
• If the fellowship is so terminated, the Fellow will receive no more stipend than what they have already received up to that point.

If there are any queries in relation to the Fellowship, please drop us an e-mail at <pankhuri@spicyip.com>. We look forward to receiving your applications!

Image from here

We’re pleased to pleased to bring to you a guest post by our Fellowship applicant, Arushi Gupta. Arushi is a 2nd year student at Maharashtra National Law University, Mumbai. This is her third submission for the Fellowship.

“See you in Court, Alligator?” The Delhi High Court Rules in Favor of Crocs Over Passing Off of a Registered Design

Arushi Gupta

On 4^th June, 2019, the Delhi High Court delivered an interim order regarding the age-old conflict “brewing” between Carlsberg Breweries v. Som Distilleries and Mohan Lal v. Sona Paint and Hardwares. On 18^th February, 2019, in Crocs Inc. USA v. Aqualite India Limited, the verdict delivered by Justice Endlaw had further complicated matters. Subsequently, the Plaintiffs appealed against it.

In a succinct 16-page order, the Division Bench held that ‘prima facie’, the 18^th February judgment seemed erroneous. It clarified the law and restored it to good sense. In my previous post, I had made the following aversions regarding Crocs:

1. In contrast to the holding by Justice Endlaw, Mohan Lal or Carlsberg did not aver that post-registration or after expiry, a design cannot enjoy protection as a trademark
2. The overlap between trademark and design is impossible under Section 19(e) of the Designs Act and not the “legislative intent” behind Section 2(d) of the Designs Act
3. The prohibition on overlap of trademark and design is a policy decision and does not prejudice either or both

First, the bench discussed Mohan Lal. It concerned itself with Issue II, which had raised the question of the availability of the remedy of passing off to a registered design. It noted that the Mohan Lal Court had held: (1) the possibility of a design gaining goodwill as it is used in the course of business and becoming a “source indicator” and (2) remedy to an unregistered trademark owner to claim “passing off” against a third party. Thus, the Court correctly held that the Mohan Lal Court was of the view that post-registration or expiry, a design may enjoy protection as an unregistered trademark and the remedy of “passing off”.

Second, the bench discussed Carlsberg. It rightly held that the ruling in Carlsberg was confined to Issue III, which had raised the question of joinder of separate causes of action. Further, it addressed the controversy regarding paragraph 43 of the judgment—by reading it in context. The said paragraph discussed the “inaccurate” observation in Mohan Lal. In Mohan Lal, the Court had held that design and trademark might enjoy simultaneous protection since there was no prohibition to this under Section 19. But, it had failed to consider Section 19(e), which cancels a design registration as soon as it operates as a trademark. Thus, Carlsberg confirmed that design and trademark couldn’t enjoy simultaneous protection unless the elements of design are not used as trademark but in the overall “trade dress” or “get up”. This had caused the Court in Crocs to erroneously misconstrue Carlsberg—out of context—to hold that only features other than in the design could become a trademark. In the appeal, the Bench observed the context in Carlsberg wherein the observation was preceded by observations regarding the overlap in the standard of proof as well as burden of proof of malicious intent. Further, in Carlsberg, the court had also observed that both design infringement and passing off emerge from a common set of facts, which impel a person to approach the Court. The latter observation had assisted the Court in its conclusion towards the joinder of infringement and passing off.

However, the Court failed to discuss interesting points about “overprotection”, “ever greening” and the nebulous “legislative intent” brought forth by Justice Endlaw. Thus, the Court shied away from dealing with the policy decision behind the prohibition on overlap and its apparent prejudice towards either trademark or design. Ruefully, this prevents the judgment from becoming a guiding lamppost on the possibility of overlapping intellectual property in India.

Lastly, Crocs had another reason to celebrate, as it was granted interim relief against the activities of the Defendants. The Plaintiff satisfied the criterion of temporary injunction. While, I would have appreciated an analysis into the reasons for granting the aforementioned relief—a quick Google search revealed the reasons almost too evidently!

We’re pleased to announce that the Institute of Intellectual Property Research and Development (IIPRD), along with Khurana & Khurana, Advocates and IP Attorneys (K&K) is organizing the Fifth International Patent Drafting Competition (IPDC) from September 2 to September 25, 2019. SpicyIP readers interested in participating can enjoy a discount of 50% on the participation fee. They’ll be required to pay only INR 500 instead of INR 1000. For further details, please read the post below:

5th International Patent Drafting Competition (IPDC)

IPDC is a 5 year old initiative of IIPRD, and its sister law firm Khurana & Khurana, Advocates and IP Attorneys (K&K) to bring about greater awareness and respect for intellectual property (IP) issues, particularly for patents, which have, over time, become more relevant to the Indian ecosystem than ever. With rising patent litigation in India, quality of patents and the scope provided thereby is a crucial aspect that is evaluated/scrutinized by the Courts/Appellate Boards. Furthermore, gone are the times when Indian companies, universities and individuals were only looking forward to creating Defensive Patent Portfolios in India, wherein entities are nowadays looking towards building an aggressive portfolio with sustainable commercial value. More and more PCT and Convention Applications are being filed each month/year by Indian applicants with around 40-60 Indian Priority Taking PCT Applications being published each week. Most of these patents are filed with an objective of either licensing, or enforcement, or in-house commercialization, and hence quality of patent drafting including claim drafting, scope of protection accorded, variety of embodiments presented, support in the specification, limitations provided, among other aspects is crucial to Patent Applications.

This initiative of IPDC comes with an earnest effort by IIPRD and K&K to promote the development of patent drafting as a skill set and encourage more and more technical people to take up patent drafting as a professional competency, along with identifying and encouraging top patent drafters in country.

Modus-Operandi of Conducting IPDC

• On September 02, 2019: Three Invention Disclosures (Describing Three Different Inventions), one each in the domain of Electronics / Hi-Tech, Mechanical, and Chemistry / Pharmaceuticals, will be uploaded on K&K (www.khuranaandkhurana.com) and IIPRD (www.iiprd.com) websites.
• By September 16, 2019: Eligible participants would need to write e-patent applications / specifications (along with drawings, if applicable). The drafted patent application can be sent to us via email (on competition@iiprd.com) or physically. In order to enable only serious participants to submit their applications/specifications, a participation fee of INR 1000 is to be submitted by each participant. The fee would be reduced to INR 500 per person if a group of 3 participants submit together.
• On September 25, 2019: Two winners for each technology domain (total of 6 winners) would be announced on the website of K&K and IIPRD. Prize distribution shall take place thereafter.

Prize Amounts and Certification

• Two winners for each technology domain (total of 6 winners) would be announced
• First prize: Rs. 1,00,000 and Second prize: Rs. 50000 for each technology domain certificates would also be provided to the winners
• All participants would also be given participation certificates for the Competition

Eligibility Criteria

Any practitioner having a technical/science background is eligible to participate in the Competition. For instance, the participant could be a student, a practicing attorney, an in-house counsel, a scientist, a faculty member, or any other stakeholder having a technical qualification.

Registration

For more information, kindly click here.

For direct registration, please provide your details here.

Contact

For any query/question, please feel free to write to competition@iiprd.com, and/or call (120) 4296878 / +91 8920269831 and speak with Ms. Bhumika.

We’re pleased to bring to you the third post in the blog post series on The Sustainable Seed Innovations Project that we had launched two weeks ago. In this post, the research team of the project provides insight into the first phase of the project (Sustainable Seed Innovations 1.0 Project), which concluded with a conference (Sustainable Seed Innovations 1.0 Conference) held on September 15, 2017 in Bangalore.

Summary of the SSI 1.0, 15th September 2017

SSI 2.0 Research Team

The University of Leeds, the Office for Sustainable Development of The Art of Living Foundation and the Max-Planck Institute for Innovation and Competition initiated the Sustainable Indigenous Seed Innovation project in 2017, with funding from the Arts and Humanities Research Council, UK. The first phase of the project aimed to answer the research question, how government policy in India – in particular, around intellectual property (IP) rights – can incentivize innovation with indigenous varieties of seeds and other propagating materials. Consequently, the research goals of the first phase were:

• Examining incentives for farmer-level seed innovations from indigenous varieties in India.
• Investigating the role of public recognition for farmers’ seed innovation in creating incentives.

Following extensive qualitative research undertaken by the post doctoral research associate, Dr. Natalie Kopytko during the first 9 months of the research grant period, the project culminated in a roundtable with various stakeholders to understand the challenges and needs of small and marginal farmers engaged in conservation and improvement of indigenous seeds and planting materials, from the grassroots level (the “Sustainable Seed Innovations 1.0 Conference”, or “SSI 1.0 Conference”). Interdisciplinary workshops fostered a rich interaction and discussion among farmer groups, government representatives, academics, NGO’s and intellectual property specialists.

The keynote address by the founder of the Art of Living, Sri Sri Ravi Shankar, as well as introductory talks by Dr. Prabhakar Rao (Trustee, Sri Sri Institute of Agricultural Sciences and Technology) and Rugmani Prabhakar (Head of the Office for Sustainable Development, The Art of Living) emphasized the importance of protecting heirloom, indigenous and traditional seeds (called Desi Beej in India) that are more robust in marginal environments and have greater immunity against local diseases and climatic shifts.

Following the introductory session, detailed presentations were made in the plenary session by Dr. Natalie Kopytko (University of Leeds), Prof. Gregory Radick (University of Leeds), and Dr. Mrinalini Kochupillai (Max Planck Institute) on their individual research, including trends in seed saving among farmers and how existing intellectual property protection regimes and associated policies are ill equipped to promoting sustainable seed innovations among small and marginal farmers. The presentations also identified government policies that, in their effort to promote high yields over and above all else, end up disincentivizing agrobiodiversity conservation, soil and water conservation.

Presentations on diverse issues were also made by Ms. Sunita K. Sreedharan (Lawyer and Patent Agent), Sanjay Maruti Patil (BISLD), Pitambar Shrestha (LI-BIRD), Dr. Kishore Kumar Sharma (Assam Agricultural University), Dr. Suman Sahai (Gene Campaign), Shamika Mone (OFAI) and Sanjay Khattal (National Seeds Corporation). The areas they covered included challenges and loopholes in the biodiversity law of India, and various on the ground challenges faced by farmer groups in India, especially those engaged in protecting and improving indigenous/traditional seeds using traditional, sustainable agricultural methods. Farmer groups from various regions of India (Bengal, Jharkhand, Karnataka, Rajasthan, Tamil Nadu, Uttar Pradesh, and New Delhi), academics, lawyers, NGOs and representatives of the Indian Government were present at the plenary session.

Due to the complex nature of the topic and the diversity of stakeholders involved, the challenge that the SSI 1.0 project & conference team needed to address was, how best to gather and integrate the different, but interconnected concerns and points of view. Indeed, the aim of the conference was not only to facilitate an interaction between experts from fields as diverse as biodiversity conservation, food security policy, ecological agricultural practices, seed policy and intellectual property law (as was done during the plenary sessions). The primary aim was to ensure that small farmer-entrepreneurs engaged in in situ agrobiodiversity conservation via the cultivation of traditional/indigenous seeds using traditional farming practices, participate and contribute actively, voicing their own ground level concerns. To facilitate this, the second half of the one day workshop divided all participants into four  groups:

• Policy, Legal frameworks & Intellectual Property
• Participatory plant breeding,
• Outreach and awareness of indigenous seeds
• Importance of Research on sustainable seed innovation.

All groups identified current problems and collected recommendations for future actions to address/resolve these problems. A summary of the identified problems and recommendations emerging from each group is provided here in below:

The recommendations of the group “Policy, Legal Frameworks & Intellectual Property”, (moderator: Ms. Sunita K. Sreedharan, Lawyer and Patent Agent) were found to broadly fall under the following categories:

• Inadequate attribution and recognition given to innovative farmers and farmers’ communities, especially those engaged in saving and improving not just indigenous seeds, but also associated indigenous/traditional, sustainable and cost effective methods of seed storage, soil health management etc.
• No traceability of source of seeds and information. The farmers said that their improved varieties must be given names and these names must be recorded somewhere, together with basic characteristics of seeds (including history of where the seed came from, physical size, morphology, maturation period, diseases linked with its cultivation, or those that are avoided by their cultivation) such that anyone who buys them knows the source and attributes of the seeds. The names given to the seeds by farmers must be registered in the government seed portal or in any other centralized system. Farmer Producer Organisations (FPOs) must be created and FPOs must name the seeds emerging from any community of farmers. It was also recommended that in the absence of a tracing (to source) mechanism/system, farmer to farmer seed exchanges and exchanged seeds within farmers should be documented on blank papers with details as to time, date of sale/exchange, amount of seed given, sellers and buyers’ name etc. The farmers considered this to be necessary in order to claim royalties in the future (e.g. from those using/multiplying their seeds) and have an additional source of income.
• Documentation of Traditional Knowledge: The group emphasized the relevance of documenting the traditional knowledge associated with every cultivated indigenous seeds (e.g. germination time, methods of cultivation for best results etc.)
• Inadequate availability of affordable, good quality indigenous seeds for use in traditional, sustainable farming systems was identified as a major problem. The group concluded that more FPOs need to be formed in order to guarantee the availability of affordable, high quality indigenous seeds.
• Lack of effective communication and marketing channels: The group found that the help of the District Magistrate may be necessary in setting up mandatory marketing channels to distribute organic products of indigenous seeds, for e.g. by reserving spots for organic produce in various shops.
• Cost differential between organic and non-organic and low shelf life of organic food in shops prevents indigenous seeds from becoming more popular.
• Testing Labs to certify organic products needed in village level in order to ensure the quality and prevent the misuse of indigenous seeds and organic brands.

The group “Importance of Research on Sustainable Seed Innovation”, (moderator: Dr. Mrinalini Kochupillai, Max Planck Institute for Innovation & Competition), found that research is of central relevance to test, validate and increase the value, demand and interest in indigenous seeds and food resulting therefrom. Research is also needed to support and advance in situ (and ex situ) conservation efforts. Research is necessary not only to check/validate claims associated with indigenous seeds, but also to support nutritional security. For example, if a local variety of wheat is traditionally known to be rich in iron, research confirming this attribute would help bring knowledge about the benefits of the wheat to anemic people, helping them address their health problem, while also increasing the demand for the wheat and therefore, the farmers’ income. In addition to studying specific claims, broad based research also needs to systematically study the nutritional content (micronutrient content, quality, and yields of produce/grains resulting from the use of traditional/indigenous seeds and associated farming practices. All research efforts would help increase the value and demand of traditional seeds and food produced therefrom. In addition to these general research needs, the workshop participants identified the following areas in which research efforts need to be intensified to study:

A. Biological Research:

• Inherent pest resistance of traditional versus conventional seeds
• Medicinal properties of local, indigenous grains
• Impact of traditional ecological knowledge based soil management systems on ecosystem services, plant health, yield, farmer profit margins etc.
• Genetic studies on indigenous seeds, including study of active molecules and active ingredients in indigenous varieties, as well as interaction between these active molecules and ingredients in natural conditions;
• Impact of chemical / conventional farming on yield of traditional/indigenous seeds over time
• Scientific guidelines for in situ seed conservation and improvement
• Study on impact of traditional seed storage methods on seed viability

B. Mechanical Research

• Development of small and affordable machines such as processors, mixers, harvestors, water extraction machines, machines supporting traditional seed and grain storage methods, that can support the work of small farmers engaged in traditional knowledge based farming using indigenous seeds
• Methods and machines to promote local processing of foods and other materials emerging from TEK based farming using Desi Seeds.
• Low cost machines for bottling and vacuum packing at rural level

C. Comparative field research

• Research on field comparing yield from conventional farming using uniform/‘improved’ seeds versus traditional knowledge based agriculture using indigenous/heterogenous seeds;
• On field research to see if current cultivation practices associated with any traditional/indigenous seed are equally applicable in all conditions and situations and what changes are needed for specific local conditions to give best results;
• Research and innovation in the finished product sector using unusual, unique produce and cereals cultivated using traditional/indigenous seeds;
• Creation of recipe books using local, indigenous foods, which provide well researched details such as cooking time, storage tolerance, whether soaking, sprouting etc. is recommended and with what effect.

D. Social Sciences Research

• Determining means of making certification (safety related, organic certification etc.) more affordable and accessible to small farmers and farmer communities
• Means of changing (negative) perceptions associated with traditional farming and indigenous/heterogenous seeds
• Developing efficient marketing models and compilation of best practices
• Developing research methods that can appropriately incorporate farmers’ observations into scientific research
• Historical and cultural research to study the linkages between specific crops and festivals or occasions such as weddings, child birth etc.
• Historical research into farming systems and practices that existed before the green revolution (revival of ‘lost’ traditional knowledge)
• Research on intellectual property rights and means of incentivizing in situ agrobiodiversity conservation and sustainable seed innovations such that economic benefits reach farmers and farmer communities without eroding local cultures such as cultures of seed sharing.

E. Education

• Re-thinking existing educational curriculums (e.g. in schools, universities, agricultural extension services etc.)
• Education for value added product development linked with traditional seeds and produce/cereals resulting therefrom, including packaging, preservation etc.

The group “Outreach and Awareness of Indigenous Seeds”, moderated by Shamika Mone (OFAI), identified lack of incentives for engaging in traditional farming as well as lack of knowledge necessary to start the journey, as major problems. The group identified the need to support the creation of knowledge (associated with traditional farming) and its widespread distribution. Various recommendations were made to sensitize farmers and the general public about the importance of indigenous seeds (and traditional, sustainable farming systems). These included the introduction of new educational curriculums in schools, universities, activating and (re)orienting public distribution systems, and activating biodiversity committees to ensure not just the prevention of biopiracy, but to promote active on the ground, in situ agrobiodiversity conservation and improvement efforts. The findings of the group emphasized that community involvement would not only promote the revival of TEK, but could also foster development of local markets and employment opportunities through e.g. festivals with focus on local food and seeds. The group also recommended the involvement of celebrities and spiritual leaders to raise awareness and increase public involvement in traditional, sustainable farming using indigenous/heterogeneous seeds. The group recommended that in the short term, a starting point to create knowledge would be the documentation of success stories to spread motivation within farmers. Different types of media, such as films, web-portals, social media, magazines and books, could promote the effectiveness and reach of spread knowledge of indigenous seeds and their properties.

The group “Participatory Plant Breeding”, (moderator: S.C. Triphathy, Head of the agriculture department, Art of Living Foundation), emphasized the importance of the traceability of indigenous germ plasms from farmers’ fields to varietal crop breeding programs. Ideas, that were proposed included support and funds for research, documentation of research and knowledge creation and further dissemination of seed material. In addition to these general proposals in the field of participatory plant breeding, the workshop participants recommended to focus efforts in the following areas: 

• Documenting the soil condition to discover changes and derogations to counteract in time and prevent soil degradations (erosions, loss of fertility, etc.)
• Maintaining a certain distance between different breeds of crops
• Testing the characteristics of seeds, including Tagging (noticing the nutrient level in grains) whereby a standardization frame could provide help to document the results
• Roughing the not so good quality of seeds
• Signing of a Memorandum of Understanding by the Government with the farmers so that the farmers can transfer seeds only under certain conditions

The roundtable event enhanced the understanding of the value creation in farmer innovation. The gathering of the different stakeholder revealed the requirement of a documentation system as the biggest challenge. Such a system was considered necessary to ensure traceability to the origin of seeds. Without traceability to source, a reward/royalty system cannot be established, and farmers cannot benefit from the multiplication and distribution of their seeds. Well documented knowledge creation and traceable channels of dissemination of knowledge would support knowledge creation and also the wider dissemination of seeds. A better documentation would counteract the erosion of TEK, especially if this knowledge is directly integrated in education. Education is a crucial recommendation prong that should foster public education and growers training, simultaneously (e.g. through extension services).

Further benefits, also on an economic perspective, could comprise government schemes and subsidies for innovation, distribution and the in situ conservation of indigenous seeds. The establishment of market structures for indigenous seeds could provide further monetary value that promotes farmer innovation and according products would contribute to a rising awareness of costumers.

The outcomes of the conferences were presented as recommendations to the Indian Government.

Image from here

We bring you a guest post from the prolific Prashant Reddy, who has had to take a break away from regular blogging at SpicyIP since he now heads the judicial reforms team at Vidhi.

Fortunately, we managed to persuade him to pen a guest post on this rather curious decision, where a judge of the Delhi High Court has effectively ruled that an “expert” IP tribunal that lacks the alleged “expertise” can still decide IP disputes.

In his inimitable style, Prashant tells us why this decision is deeply problematic. No holds barred, and he calls a spade a spade! Rather rare these days, where speaking truth to power often results in targeted victimisation!

So without much ado, here you go:

Curiouser and Curiouser: The Delhi High Court Whitewashes an Infirm IPAB and Rules that a Plant Variety is a Patent..and Perhaps Even a Trademark!

Prashant Reddy

“Curiouser and curiouser! Cried Alice”

Alice could well have said this in the wonderland that is Indian IP these days! In a rather strange ruling handed down on Monday, the Delhi High Court permitted the Intellectual Property Appellate Board (IPAB) to adjudicate “urgent matters relating to Patents, Trade Marks and Copyright”, despite the IPAB lacking the statutorily mandated quorum to hear these disputes.

That the IPAB has been mired in one controversy after another is an understatement! A constitutional challenge filed many years ago by Shamnad resulted in a decision that made it abundantly clear that only constitutionally competent members could man the IPAB and decide its various disputes. Unfortunately, till date, such competent personnel have not been appointed!

Currently, the IPAB has only one technical member, appointed under the Plant Varieties Protection & Farmer’s Rights Act to hear matters under that specific legislation. By waving his magic judicial wand however, Justice Midha invests this “technical member” (for Plant Varieties) with the power to adjudicate upon other IP disputes, over which he/she may possess no special expertise whatsoever!

In addition, Justice Midha has cleared the decks for the incumbent chairperson of the IPAB, Justice Manmohan Singh to hear these cases just by himself, should the technical member for plant varieties recuse himself for any reason. According to Justice Midha, the orders that have been passed by Justice Manmohan Singh do not suffer any invalidity on grounds of a lack of quorum. These are stunning directions from the Delhi High Court for reasons that I’ll explain below.

Chequered Innings of the IPAB and Chairman Controversy

Let us first start with some history.

Originally setup to hear only appeals from the Trade Mark Registry, the powers of the IPAB were subsequently expanded to hear a number of patents, copyright and plant variety protection cases. As per Section 84 of the Trade Marks Act, the IPAB requires a quorum of two members, one judicial member and one technical member, the latter being the member appointed for the relevant practice area i.e. patents or trademarks. Thus, for the IPAB to hear a patent case, it is required by Section 84 to have a technical member specifically for patent matters. This was the entire logic of creating the IPAB – to enable “technical expertise” in deciding IP cases. The problem, however, is that the DIPP is struggling to find candidates with the qualifications necessary for the posts of technical members. As a result, the IPAB has been dysfunctional for most of its history and it is no surprise that the IPAB currently has no technical member to hear any disputes outside of one IP area i.e. plant variety protection.  In other words, the IPAB lacks technical members to hear either patent or trademark matters.

Over the last year, Justice Manmohan Singh who has been the Chairperson of the IPAB has been passing a number of rather controversial orders while sitting as a single member, despite the law requiring a mandatory two member quorum for the IPAB to function. While most of these orders pertain to withdrawal and settlement of pending cases, it is still problematic, given that these orders effectively put a seal on the rights of the parties. It is thus not too surprising that some lawyers have publicly complained about Justice Manmohan’s conduct in this regard. See previous posts on SpicyIP here, here and here.

Mylan’s Challenge and Justice Midha’s Misreading of the Law

Enter the present writ petition filed by Mylan Laboratories before Justice Midha against an order of the Patent Office denying the company a patent. When tribunals are non-functional, it is completely legal to approach the writ jurisdiction of the High Courts for substantive relief on merits. Instead of hearing Mylan’s petition on merits and passing an order (which high courts are well within their power to do), Justice Midha passes this rather strange order.

Apart from giving Justice Manmohan Singh a carte blanche to hear all future matters by himself, Justice Midha has also effectively whitewashed all the previous controversial orders given by Justice Manmohan Singh while he was sitting as a single bench without having a technical member on board, as required by Section 84. In paragraph 35, Justice Midha states that:

 “If the post of the Technical Member is lying vacant, IPAB can proceed to hear the urgent matters and the orders passed would not suffer invalidity on the ground of lack of coram.”

So lets get this clear. The IPAB is allegedly formed to enable some level of “technical” expertise in IP adjudication. And yet the IPAB now decides without such “technical” expertise! As Justice Holmes once said: the life of the law is clearly not logic!

The precedents that Justice Midha cites to justify his questionable order are 4 judgments which he has cherrypicked to select specific quotations despite it being amply clear that all 4 cases can be easily distinguished on simple facts. Two of the precedents that he cites pertain to the Delhi VAT (DVAT) Act. However, a look at the orders (2^nd para of the order has the text of the statute) makes it expressly clear that the tribunal mentioned in the DVAT Act requires a minimum quorum of only 1 member which means that these precedents did not deal with the issue of inadequate quorum. This eliminates two of the precedents cited by Justice Midha to claim that orders passed without quorum will continue to be valid. The other two precedents he cites pertain to the Election Commission’s quasi-judicial powers and the CA Act. Neither of these cases deal with the quorum of tribunals exercising judicial powers and are irrelevant to the facts of this case.

On the other hand, there is considerable case law where courts have come down heavily against violation of the quorum requirements of tribunals as specified by Parliament. For example, recently, the Government of India passed a notification allowing the National Green Tribunal to hear cases in single benches. The Supreme Court had to intervene to stay the notification and reiterate the position that these benches had a quorum requirement of 2 members.

In context of the IPAB specifically, the same issue cropped up twelve years ago in the Novartis case. The IPAB lacked the required quorum, given that Mr. Chandrasekharan, the only technical member then (for patents) was conflicted out. The government and the Madras High Court then struck a deal to permit the Chairperson and Vice Chairperson of the IPAB to hear the Novartis appeal without a technical member. Shamnad had pointed out that this was illegal way back in 2007. When Novartis appealed to the Supreme Court, the court refused to allow the matter to proceed without a technical member and appointed an ad-hoc technical member to the IPAB in order to comply with the quorum requirements of Section 84. Strangely enough, Justice Midha’s order cites to this Supreme Court order from 2007, but makes no mention of the logical conclusion that flows from this order.

More Judicial Excess?

I’ve saved the worst for the last. In the next hearing, Justice Midha is going to decide on a proposal put forth by the petitioner’s counsel as well as the amicus, that Justice Manmohan Singh be allowed to continue beyond his retirement date in September, 2019 until the DIPP appoints a new chairperson to the IPAB. In other words, Justice Midha, a one-time colleague of Justice Manmohan Singh from the Delhi High Court is going to consider whether the latter can hear cases beyond his retirement date.

As a final note, let me mention that the extent to which this order has gone to whitewash orders of the IPAB passed by Justice Manmohan Singh without adequate quorum, only goes to establish that young Mr. Rishab Mohnot (a SpicyIP student fellow) was bang on the point when he concluded that Justice Manmohan Singh should not have passed the orders in question without the required quorum.

Image Credit: Ruchi Jain

We’re pleased to bring to you the fourth post in the blog post series on The Sustainable Seed Innovations Project that we had launched two weeks ago. The Sustainable Seed Innovations 2.0 Project has a longer history than what was detailed in the Background post. In this post, Mrinalini Kochupillai, Project co-Investigator and lead author of the position paper, explains how the research idea evolved from an individual multi-disciplinary Ph.D. project to an international collaboration.

The Sustainable Seed Innovations Project: A Trip Down Memory Lane

Mrinalini Kochupillai

It has been around 8 months now since Greg Radick (Professor of History of Science at the University of Leeds, and Principal Investigator of the SSI 2.0 Project) invited me to act as co-investigator and to lead the research and writing of the ‘position paper’ for the Government of India on means of ‘Promoting Sustainable Seed Innovations’ and bringing socio-economic and environmental benefits to small farmers who constitute almost 80% of India’s farming population. Our interaction and collaboration on the topic dates back a few years now. As I, together with the fantastic SSI 2.0 research team, start releasing bits and pieces of the position paper to experts, policy makers, IP and Innovation enthusiasts, students as well as the regular, highly informed audience of the Spicy IP Blog, I thought it might be interesting to share the wave of nostalgia that hits me.

My pre-occupation with small farmers’ innovations and how best to help them monetize these innovations to bring greater prosperity to small farmers and their community, started in 2008 when Prof. Josef Straus (at that time, the Director of the Max Planck Institute for Intellectual Property and Competition Law) awarded me a scholarship to research UPOV 1978 to study whether it meets the mandates of the TRIPs agreement. The preliminary research found that UPOV 1978 may not fulfill the TRIPs mandates. More importantly, however, the research led me to a first realization that UPOV 1978 (and indeed UPOV 1991 as well as the patent system) may be entirely inappropriate means of promoting and protecting sustainable innovations in plant varieties and seeds. Eventually, with a generous scholarship from the Max Planck Institute for Innovation and Competition (MPI), I completed my Ph.D. titled ‘Promoting Sustainable Innovations in Plant Varieties’ (published in 2016 with Springer-Nature).

I was, unfortunately, completely unaware of Greg Radick’s fanstastic research and had very limited opportunity to familiarize myself with the extensive and highly significant work of the Art of Living Foundation and the Sri Sri Institute for Agricultural Sciences Trust (SSIAST) at the time I concluded my Ph.D. I became aware of Greg’s work through a colleague who was visiting MPI for a short research stay – she was an academic advisor to a project titled ‘Cultivating Innovation’, which was an impact acceleration project to take Greg’s work on “IP-Broad” (more on Greg’s work coming soon to this space) forward for practical impact. Greg’s paper as well as the conference were highly inspiring for me, and it was delightful to hear back from him a few months later, suggesting a joint application to the UK Arts and Humanities Research Council to take our joint research interests forward (together with the wonderful Dr. Natalie Kopytko, our post-doctoral researcher selected from among stiff competition) for the benefit of small farmers in India in the form of the Sustainable Seed Innovation 1.0 Project.  It was during the course of the SSI 1.0 project, and later, while compiling a large multi-disciplinary research application to the EU, that I became more fully aware of the brilliant work that the Art of Living and Dr. Prabhakar Rao are doing to revive and bring back into practice, traditional ecological knowledge based farming systems.

Now, working together with seasoned experts as well as fresh and brilliant young minds that are a part of the SSI 2.0 research team and/or contributors to the SSI 1.0 recommendations over the last several months, it has been a pleasure and a great honor for me to lead the writing and compilation of the position paper for the Government of India, titled “Promoting Sustainable Seed Innovations in India.” We now release the position paper in small pockets (blog posts) for easy readership and to facilitate the most extensive topic specific comments from experts as well as from stakeholders and civil society. I extend a special thanks and congratulations to Dr. Natalie Kopytko for the fantastic farmer stories she has compiled from across India and for Julia Köninger for her excellent and thorough research assistance throughout the project, as well as writing contributions for Prong 1 and several background blogs.

On behalf of the entire SSI 2.0 research team, I also extend a heart-filled thanks and an invitation to continue the discussions with this series of blogposts, to the following experts and farmers who contributed most significantly to the SSI 1.0 conference and working groups (order of names is random):

Sunita Sreedharan (Advocate)

Dr. Suman Sahai (Gene Campaign)

Dr. Kishore Kumar Sharma (Assam Agricultural University)

Sanjay Maruti Patil (BAIF)

Pitambar Shrestha (Li-BIRD)

Shamika Mone (Organic Farming Association of India)

C.S. Triphany (Art of Living Foundation)

Umendra Dutt (Kheti Virasat Mission)

Ruchi Jain (Taru Naturals)

Yash Mishra, Farmer

Udayakumar Kollimath, Farmer

Nagaraj Ganguli, Farmer

Kishore Mukherjee, Farmer

Amarjit Sharma, Farmer

Gulab Singh, Farmer

Pankaj Pathak, Farmer

Raspinder Singh, Farmer

Santosh Kumari, Farmer

Arun T. , Farmer

Ajit Paul, Farmer

Chanchal Biswas, Farmer

Mahadev Ramkrishna Gomare, Farmer

Dinesh Gurjar, Farmer

Jay Prakash Singh, Farmer

Ranjit Kumar Singh, Farmer

C.P. Krishna, Farmer

K.C. Krishna, Farmer

S.B. Somshekar, Farmer

Dandiram Dinker Madane, Farmer

Satish Punja Kanawade, Farmer

R. Sriram, Farmer

Perumal R., Farmer

Sanjay Khattal (National State Seed Corporation and representative of the Government of India – GoI)

Ankush Bhalekar (Advisor to the Government on Natural Farming)

After several introductory and background posts, as well as a comprehensive summary of the SSI 1.0 project, we now get to the real substance of the Sustainable Seed Innovation 2.0. From this post onwards, we will be posting spicy pieces of the Position Paper that will go to the Government of India, bit by bit. If you have missed this series of posts so far, now is the time to jump in with your comments and recommendations and contribute to the first of its kind public consultation on a very important issue. In this post, Mrinalini Kochupillai, Project co-investigator and lead author of the Position Paper gives a compact description of the state of affairs that makes a three pronged approach for promoting sustainable seed innovations, necessary. A description and thoroughly researched explanation and rationale of each of the three prongs will follow in forthcoming posts.

Accomplishing Sustainable Seed Innovations: Why is a Three-Pronged Approach needed?

Mrinalini Kochupillai*

With the onset of the ‘Green Revolution’ that brought in high yielding varieties, and modern Mendelian Plant Breeding that brought in F1 hybrids, farmers, including small and marginal farmers the world over, have lost interest and incentive to select, save, resow, improve and share their traditional, indigenous seeds and planting materials. Relying instead on improved seeds that are engineered to perform only on soil treated with chemical fertilizers and pesticides, farmers have also witnessed systematically depleting yields of those (traditional, indigenous) seeds that have not been ‘improved’ or engineered to tolerate such chemical inputs.

It is not surprising, therefore, that more than 75% of the Earth’s plant genetic diversity has been lost. According to some estimates, the loss of indigenous crop diversity and corresponding Native Plant Genetic Resources (NPGRs) has been as high as 97% over the last 100 years. Further, 75% of the world’s food is generated from only 12 plants and 5 animal species, world nutrition is primarily based on a mere 10 crops, of which three, namely, rice, maize and wheat, contribute nearly 60% of the calories and proteins obtained by humans from plants. What is threatened today, therefore, is not ‘food security’, but ‘nutritional security.’

At the same time, according to some studies, non-proprietary germplasm continues to be grown by small farmers worldwide, most of which are located in developing countries, but with a growing number in the developed world also. Globally, an estimated 1.5 to 2.5 billion farmers are small holders who are most likely cultivate and exchange non-proprietary seeds. In fact, of the estimated 570 million farms worldwide, 500 million can be considered small or family farms, 85% of which are less than 2 hectares in size.

Contrary to what may be popularly believed, small and family farms, produce 80% of the world’s food. It is therefore no wonder that the UN Food and Agriculture Organization (FAO) identifies small and family farms to be the main contributors to global food security. To the extent that these small farmers can be incentivized to engage with non-proprietary germplasm and diversified agriculture, they can also become the key custodians and contributors to nutritional security. Indeed, small and family farmers that have a greater outlook and control over the happenings on their landholdings, are therefore best suited to conserving, replenishing and improving (agro)biodiversity. In India, many activities are happening to protect endangered varieties, indigenous (Desi) seeds and spread that knowledge. It must be borne in mind, however, that adoption of indigenous/heterogenous seeds is not adequate in itself. Given the fact that such varieties are known to not perform in chemical fertilizer treated soils, a prerequisite to meaningfully ensuring both nutritional and food security, is the revival of soil health via elimination of chemical fertilizer residues.

In fact, reasons supporting incentivization of traditional agriculture, using indigenous, non-uniform, locally suited heterogenous seeds and planting materials stretch beyond food and nutritional security to the very sustainability of agriculture and food production systems worldwide. Latest scientific research challenges the extent to which Mendelian genetics can and ought to be the sole guiding force of agriculture. The relevance of in soil (microbial) diversity, the interaction between soil and plant root microbes, and the processes that optimize the microbial populations to enhance nutrient absorption by plants, has now become a major area of scientific research. This microbial diversity, that is key to maintaining soil health (and therefore for ensuring agricultural sustainability) is severely compromised in conventional, high chemical input agriculture. Accordingly, modern scientific research supports a return to TEK-based farming systems that naturally increase soil microbial diversity by efficient use of natural animal and farm waste, thereby preventing soil pollution, supporting nutrient recycling and to enhancing yields of traditional/indigenous and heterogenous seeds and materials.

Experience shows, however, that when a specific understanding and associated practice has occupied the minds of a people and community for decades, and has also become the most convenient and/or comfortable/’practical’ option (e.g. due to ready and abundant seed availability and the complexity of converting soils from conventional to organic), a shift in approach and attitude does not happen easily or automatically. Systematic efforts are needed to (re)educate and (re)incentivize, not just farmers, but also the entire chain of stakeholders engaged in agriculture, in order to bring about a lasting, sustainable, and peaceful transformation.

Based on the above summary of research findings (SSI 1.0), supported by the findings and recommendations of the expert participants of SSI 1.0, this position paper recommends a three-pronged approach to incentivize and support sustainable seed innovations. The adoption and implementation of these three prongs, supported by continuous research and development efforts are expected to bring socio-economic benefits to small and marginal farmer-innovators engaged in traditional farming using indigenous/heterogenous seeds, environmental benefits for farms and rural communities, and nutritional security and food diversity to consumers. On the whole, the 3-pronged approach is also expected support the development of India’s bio-economy and make India a global provider of high quality, heterogenous agricultural seeds and planting materials.

Forthcoming blog posts describes the rationale, justification and means of implementing the three pronged approach, which comprises of:

1. Prong 1: Revival of Traditional Ecological Knowledge (TEK) based farming systems
2. Prong 2: Re-designing educational and extension service curriculums
3. Prong 3: Re-thinking Incentive Mechanisms: Adoption of Blockchain/DLT supported marketplaces for indigenous seed sharing and sales.

Photo credit: Ruchi Jain

We’re pleased to bring to you the sixth post in the blog post series on The Sustainable Seed Innovations Project that we had launched last month.  In the last post, Mrinalini Kochupillai, Project co-investigator and lead author of the Position Paper had given a compact description of the state of affairs that makes a three pronged approach for promoting sustainable seed innovations, necessary. This two-part post gives a description and thoroughly researched explanation and rationale of the first prong. Here goes Part I:

Prong 1- Revival of Traditional Ecological Knowledge Based Farming Systems: Traditional Knowledge through the Lens of Modern Scientific Research (Part I)

 Julia Köninger^a*, Jasper Matthiessen^b*, Mrinalini Kochupillai^c, Prabhakar Rao^d#

With Nirmala Sitharaman, (currently Minister of Finance, GoI) mentioning ‘Zero Budget Natural Farming’ (ZBNF) in the Budget 2019, our post on Prong 1 of the means of promoting Sustainable Seed Innovations in India is right on time! ZBNF is currently practiced in many parts of India and is known under various names including Suresh Palekar’s Zero Budget Spiritual Farming (SPNF), Sri Sri Natural Farming (SSNF), or just Natural Farming (attributed to Masanobu Fukuoka – A Japanese Farmer (1913-2008)). Our post below highlights how some of the key components (products and processes) and insights of Zero Budget Natural Farming as practiced in India, whose principles are sourced, in significant part from ancient Indian such as Vrikshayurveda and Krishi Paraashar, are increasingly confirmed by modern science. We hope that this post will generate interest (and healthy debate) among academics engaged with agriculture, traditional knowledge, plant breeding and soil sciences.

From the perspective of intellectual property rights that this blog, as well as this (SSI 2.0) research, are closely connected, it is noteworthy that neither traditional knowledge per se nor farmers’ seed innovations (including not just new kinds of seeds, but also methods of seed storage, soil management etc.) based on such traditional knowledge are adequately or appropriately protected by current pigeon holes of ‘narrow’ intellectual property protection regimes (see also the background post here for details). In order to (i) promote the use of traditional knowledge based sustainable farming systems, including the use of indigenous seeds and associated soil management technologies prescribed therein, and (ii) to promote research and innovation on and with them, measures other than “IP-Narrow” are necessary. For this, keep track of Prongs 2 and 3 of the SSI 2.0 recommendations (Education, DLT/Blockchain technologies), coming soon to this space.

TEK in International Law and Business

International conventions, such as the Convention on Biological Diversity (CBD), have for long underscored the need to protect biodiversity within the soil (i.e. the soil microbiome) & on the soil (i.e. seed/plant biodiversity). Equally relevant is the recognition and high status given within these conventions to (a) the valuable role played by traditional knowledge & associated systems, practices, & innovations, in maintaining this biodiversity, & using it in a sustainable manner, and (ii) generating social and economic benefits (“benefit sharing”) for the people preserving and using this knowledge. The CBD, therefore, encourages international “cooperation for the development & use of technologies, including indigenous and traditional technologies, in pursuance of the objectives of the Convention”.

Particularly relevant from a business perspective is the exponentially growing popularity of Ayurveda and of products and services derived therefrom, including among European populations.[2] This growing popularity within Europe (and beyond) of products and services based in Ayurveda, and the expanding consumer trust in this system of knowledge, makes a strong economic and business case for the adoption of scientifically validated business models rooted in this traditional, time tested knowledge system, and for the reintroduction of farming systems that are based on this knowledge, into the mainstream. The original philosophy as well as the emerging scientific evidence recommending more widespread use of such farming systems are therefore worth looking into.

The Philosophy of Traditional Ecological Knowledge

Traditional ecological knowledge (TEK) and associated farming systems can be considered a holistic approach to farming that promotes and enhances the health and diversity of agro-ecosystems, and facilitates complex and beneficial interactions between biodiversity, biological cycles and soil biological activities. TEK based farming systems visualize human beings (and animals, such as cattle) as being a part of nature and consequently aims for co-existence and co-evolution of entities that benefit from each other through ecosystem services (synergies within the ecosystem). TEK evolves experimentally and has an evolutionary character that verifies the knowledge season after season and is handed down from one generation to the next. In other words, these systems evolve in harmony with local socio-cultural realities and in accordance with local site conditions. Consequently, they are deeply embedded in local (often unique) cultural, natural, social and economic practices and circumstances. This essentially means that TEK based farming systems evolve independently in various parts of the world, and while they follow basic principles of nature, they do not follow any uniform ‘recipe’ that is flatly applicable in all regions of the world. Just like personalized medicine, therefore, traditional agricultural practices are highly localized and region specific.

Nonetheless, as noted, TEK systems do follow certain basic principles of nature, and work in close collaboration with nature. For example, farmers use the local resources to farm without any external inputs. The principle of minimized loss of energy, water and nutrients contributes to a more efficient use of available resources.Principles, such as the carrying capacity of the ecosystem and enhanced biomass recycling promote long-term sustainability. Resources within the ecosystem are used, for example, to build an irrigation system through deep rooting trees or the harvest of rainwater. In other words, in TEK based farming systems, the aim is not to “tame” nature, but to observe and work with natural cycles. Nature is considered as a teacher. Every farmer, therefore, naturally turns into a researcher and innovator because only through careful observation and consideration of the local ecology, such as climate and soil conditions, can the success of planting activities be ensured.

Accordingly, seeds used in TEK based farming systems are also locally selected, multiplied, saved, improved and exchanged. Indeed, seed keeping lies at the heart of traditional agriculture, and has evolved over centuries, with farmers saving seed with desirable traits such as hardiness, yield and adaption to local soils and climates. Seed keeping, when combined with spontaneous natural mutations, resulted in an astounding diversity of seeds and planting materials which are locally adapted, genetically non-uniform, variable and heterogenous. In India seed keeping activities prove a rying to capture  The high adaptability and hardiness exhibited by these diverse varieties allows for low cost and low input farming. Further, TEK systems also provide teachings on methods of increasing seed germination rates through various seed preparations (in India called Angara preparation or Beejamrut).

* First Authors of Prong 1

a Master’s student, Sustainable Resource Management, Technical University of Munich

b Research Coordinator, Art of Living Foundation, Europe

c Lecturer and Research Associate, Technical University of Munich, School of Governance; Lead author, SSI 2.0 Position Paper for the GoI.

d Trustee, Sri Sri Institute for Agricultural Sciences and Technology Trust (SSIAST)

# Senior Author, Trustee and Senior Natural Farming Trainer, Sri Sri Institute for Agricultural Sciences and Technology Trust.

Photo credit: Ruchi Jain

Prong 1- Revival of Traditional Ecological Knowledge Based Farming Systems: Traditional Knowledge through the Lens of Modern Scientific Research (Part II)

 Julia Köninger^a*, Jasper Matthiessen^b*, Mrinalini Kochupillai^c, Prabhakar Rao^d#

Traditional Knowledge Meets Modern Science

After decades of focusing on chemical intensive, uniform/standardized farming, the modern understanding of efficient and sustainable farming is presently shifting away from artificial fertilizer and pesticide driven monoculture towards more traditional methods and practices of cultivation. Commonly known among these, are practices of mulching, low tillage, small-scale rainwater harvesting, crop rotation, inter-cropping, multiple cropping and working with the soil microbiome. Many of these practices have been documented in the ancient texts of India, Vedic- (Rigveda, Atharvaveda) and Ayurvedic texts (Charaka Samhita, Sushruta Samhita), dating back to 3000 BC – 1000 BC.

More recent studies and developments help to scientifically understand, appreciate and improve upon these ancient practices for modern application. This has led to a growing movement of returning to traditional and natural farming methods in India.

Traditional farming uses several natural bio-stimulants and bio-pest-repellent formulations, which are simple to produce on site (at the farm), using local materials and resources, such as cow dung and urine and diverse local plants. Some preparations that are commonly used in Zero Budget / Natural Farming, for example, include:

Additional to these products, several processes are used, such as hot composting, mulching, crop rotation, inter-cropping, multiple cropping and low tillage, all of which are already well known and documented. In Europe, for example, these practices are mostly applied in organic farming.

Any substance or microorganism that are applied to plants to enhance the efficiency of nutrients are called biostimulants. Such plant biostimulants include preparations composed of organic matter, minerals (such as rock-flour), and microorganisms. Biostimulants foster the fertility of the soil-microbiome and consequently, the plant growth and development is improved (facilitated plant metabolism, nutrient assimilation, translocation; water is rendered more efficiently). Since biostimulants foster the tolerance against abiotic stress and increase the natural resistance to pests, they contribute to better yields and crop quality. Preparations that act like microbial plant biostimulants gain popularity among Indian farmers (such as those practicing zero budget or natural farming). These preparations include Beejamrut, Jeev-Amrut and Ghanjeev-Amrut, which are very close to the ancient formulation of Panchagavya (Sanskrit: five products of the cow) which is composed of cow dung, cow urine, milk, curd and clarified butter. Ananda C. (2011) and Chadha et al. (2012) demonstrated the positive effects of these traditional microbial fertilizers. Ananda C. (2011) reported similar increase of plant yield when comparing Panchagavya to NPK chemical fertilizer. However, while the chemical NPK fertilizer reduced microbial populations in the soil, Panchagavya increased them, pointing out a possible difference in sustainability for these two approaches. Manjunatha et al. (2009) found significant increases in yield of sunflower seeds using the Jeev-Amrut preparation. Chadha et al. (2012) also reported significant increase in yields when using these traditional preparations, and also reported their effectivity in controlling several plant pathogens.

Chemical analysis of these preparations done by Chadha et al. (2012) also showed presence of bio-available Nitrogen, Phosphorus and Potassium, as well as the presence of several trace elements (S, Ca, Mg, Fe, Mn, Zn, Cu). Timmusk et al. (2017) summarizes the effectivity of employing Plant Growth Promoting Bacteria (PGPB) and Rhizobacteria (PGPR) and concludes that the potential of such formulations can be brought to wider field application by further systematic studies and standardization. Mauchline et al. (2017) come to a similar conclusion in their study of the soil microbiome and particularly the interplay of Pseudomonas and the wheat rhizosphere, stating that: “a better understanding of the soil microbiota, combined with smart manipulation of plant cropping systems may present a reliable future route to sustainable yield improvement and biocontrol.” There is ample, current research on plant microbe interaction and the soil microbiome regarding agricultural application, all lauding the promise of microbe powered sustainable agriculture.

Any natural farming method or agricultural model that aims to be economically sound and sustainable, to preserve and enhance biodiversity and thus increase the resilience of an ecosystem while using minimal or zero external input of nutrients or synthetic pesticides, requires local varieties of crops to succeed. Such varieties are already adapted to their environment over an extended time span and often display high resilience to biotic and abiotic stress present in that environment. Hence, the vitality of seeds of local crop varieties is essential. Bheej-Amrut is a seed-stimulant preparation among the TEK bio-stimulants from India, which seems to be an excellent aid in such seed-keeping efforts. Bheej-Amrut is typically composed of water, cow dung, cow urine, limestone and local soil and hence easy to produce on site. Devakumar (2014) found Bheej-Amrut to contain N-fixing, P-solubilizing bacteria, actinomycetes and fungi. Souman et al. (2009) also reports the presence of indole acetic acid (IAA) and gibberellic acid (GA) producing bacteria in Bheej-Amrut. Furthermore, Bheej-Amrut-treated seeds show an increased germination rate and seedling length. These findings suggest that Bheej-Amrut may be a suitable preparation to aid in local, farm-scale seed keeping and the revival of local crop varieties.

Another microbial preparation, commonly called “garbage enzyme”, is produced by fermenting household or industrial fruit and vegetable peels and scraps. Its production is simple and low cost. The garbage enzyme preparation is associated with increased solubilization of Phosphorus from solid deposits. The efficacy of soluble and mineral Phosphorus enrichment of soils by microbes has been described by Sharma et al. (2013), which points out how garbage enzyme could benefit plant vitality and yields in agriculture. Other documented use of garbage enzyme includes the treatment of synthetic greywater, and waste activated sludge. In both use cases, the results point toward increased solubilization of solids from the substrate, which in turn may facilitate bacterial treatment and use of these waste materials as bio-resources.

Other well-documented processes employed in traditional agriculture, and increasingly validated by modern science, include mulching and low tillage, which have been demonstrated to improve several soil properties considered crucial for productive agricultural use. Xiao-Yan Li et al. (2001) found increases of corn grain yield of 20 – 95 % by mulching, depending on the availability of water: the dryer the year, the greater the improvement of grain yield. Low tillage is a practice that is gaining more and more attention in the sustainable farming context and its efficacy has been shown in several studies. Hot composting (Berkeley composting) is also used in SSNF as a simple and low-cost method to fully utilize all excess biomass available and rapidly convert it into a versatile bio stimulant for use in agriculture.

The state of current research as outlined above, strongly underlines the promise of traditional sustainable farming methods, and makes a clear case for the revival of TEK based farming systems, and employing, where relevant both ancient and modern techniques and processes together.

The question that arises, of course, is how one can concretely go about reviving and introducing TEK based farming systems into mainstream agriculture. Here, the SSI 1.0 working groups emphasized the relevance of (re)education through diverse channels – both formal and informal. Informal efforts through NGOs and spiritual leaders of India is ongoing. More formal efforts at regulation and policy level are, however, also necessary.

In this context, it is noteworthy that despite the importance of TEK based farming systems and its ability to spur farmer level innovations (as seen also in Jitul Saikia’s story) and enhance environmental health, current intellectual property rights regimes are neither equipped nor appropriate to protect innovations (including seed innovations) emerging from the practice of TEK based farming systems. Although the Indian PPV&FR Act recognized farmers’ rights, and permits the registration of extant varieties (including farmers’ varieties), such varieties still have to comply with the definition of variety under the PPV&FR Act and are permitted only a few more ‘off types’ than breeders’ varieties. Undoubtedly, the Indian law also recognizes and rewards seed conservers under their Plant Genome Savior awards (awarded to individual farmers as well as farmer communities). Yet, the number of awards as well as the fact that these are one-time awards make limit their effectiveness as tools to promote and incentivize sustainable seed innovations. Revisions in educational curriculums, agricultural extension services curriculums as well as technical solutions can aid legal and policy measures aimed at promoting the adoption of TEK based farming systems such as ZBNF. We discuss these measures in Prong 2 and Prong 3 of our SSI 2.0 project and position paper.

For viewing Part I of the post, please click here.

We had an extremely busy week at SpicyIP! Here’s the roundup:

Topical Highlight

In a guest post, Prashant Reddy wrote a piece on the Delhi HC’s decision to allow the current Chairman and Technical Expert for Plant Varieties to hear disputes in all matters, including patents, trademarks, etc. It has also declared that all orders passed by the IPAB without quorum are proper. Prashant argues that the judgment ignores the provisions of the Trade Marks Act, and makes a mockery of the entire idea of having a specialised tribunal for IP disputes.

Thematic Highlight

In the third post of the ongoing series on The Sustainable Seed Innovations Project, the research team of the project provides insight into the first phase of the project (Sustainable Seed Innovations 1.0 Project), which concluded with a conference (Sustainable Seed Innovations 1.0 Conference) held on September 15, 2017, in Bangalore. The research team shared the suggestions and recommendations made at the conference.

In the fourth post, Mrinalini Kochupillai provides further context to the genesis of the Sustainable Seed Innovations Project, discussing how the research idea evolved from an individual multi-disciplinary PhD project to an international collaboration.

In the fifth, sixth, and seventh posts, Mrinalini begins the discussion on the substance of the Sustainable Seeds Project. She first discusses the need for a three-pronged approach to incentivise and support sustainable seed innovations. Julia Köningera, Jasper Matthiessenb, Mrinalini Kochupillai and Prabhakar Rao then discuss the rationale, justification and means of implementing the three-pronged approach, which consists of reviving traditional ecological knowledge-based farming systems, re-designing of curriculums and re-thinking incentive mechanisms. She argues that the way forward for sustainable seed innovations involves the use of traditional methods alongside modern innovations.

Other Posts

In her third submission for the SpicyIP Fellowship, Arushi Gupta wrote on an interim order passed by a division bench in Crocs Inc v Aqualite India. This order found the earlier order passed by Justice Endlaw to be erroneous. First, it held that Mohan Lal allowed for registered designs to be protected through the remedy of passing off. Second, it discussed the Carlsberg decision and noted that this decision prohibits the simultaneous protection of registered designs and trademarks. However, Arushi notes that the order does not discuss more controversial policy issues in Justice Endlaw’s order, pertaining to overprotection, evergreening and the legislative intent of the trademark exclusion.

SpicyIP Events

Pankhuri informed us of the 5^th International Patent Drafting Competition to be conducted by the Institute of Intellectual Property Research and Development, along with Khurana & Khurana, Advocates and IP Attorneys. The competition is to be held from September 2-25, 2019.

Pankhuri also informed us that the deadline for applying for the 7^th SpicyIP Fellowship has been extended to July 31, 2019.

Other Developments

Indian

Judgments

Macleods Pharmaceuticals Limited v. Swisskem Healthcare and Another – Bombay High Court [July 2, 2019]

The Court rejected an application for an interim injunction restraining the Defendants from infringing and passing off the Plaintiff’s registered marks “PANDERM” and “PANDERM +” by using a deceptively similar mark “POLYDERM” in respect of medicinal drugs. The Court observed at the onset that the Defendants had failed to contest the suit at any stage, and the only question to be determined pertained to the similarity of the marks. The Court noted that there was no visual or phonetic similarity between the rival marks. The Court referred to the Cadila case decided by the Supreme Court wherein it laid down the guidelines to assess the deceptive similarity of marks. Relying on the guidelines, the Court observed that the rival marks belonged to the stream of dermatology, but contained no visual or structural similarity. Furthermore, the Court noted that the only similarity between the marks was the term “DERM”, while the prefixes “POLY” and “PAN” were completely distinct. Hence, the Court concluded that a person with average intelligence and imperfect recollection would not be confused between the rival marks. The Court also dismissed the Plaintiff’s contention of similarity between the rival cartons in light of the difference between the rival word marks.

Glaxo Group Limited v. Huk Natural Private Limited and Another – Delhi High Court [July 3, 2019]

The Court noted that Defendant No. 1 was not the main contesting defendant in the case, thereby rejecting the Plaintiff’s argument that though Defendant No. 1 had been acting under the authority of Defendant No. 2 who also owned the allegedly infringing mark, was the main contesting defendant. In light of this determination, the Court disagreed to grant an ex-parte injunction in favour of the Plaintiff according to the terms of the memorandum of parties, as the Plaintiff had made a wrong statement and further insisted upon the same.

Rajesh Kumar Agarwal and Another v. Sanjay Gupta – Calcutta High Court [July 3, 2019]

The dispute between the Parties arose on account of the Respondent’s alleged infringement of the Petitioner No. 1’s mark “GANPATI’S”. The Court noted that both the Parties adopted identical marks “OM GANPATI CATERERS” in 2009. The Court further observed that there appeared to be prima facie substance in the Respondent’s argument that Petitioner No. 1 had notice and knowledge of the Respondent’s use of the mark “GANPATI’S”. Moreover, the Court noted that the Petitioner No. 1 had failed to produce any documents to prove its proprietorship of the marks. Accordingly, the Respondent was ordered to file an affidavit-opposition within two weeks from the date of the judgment.

Amway India Enterprises Private Limited and Others v. 1MG Technologies Private Limited and Others – Delhi High Court [July 8, 2019]

The dispute between the Parties arose on account of the Defendants’ alleged unauthorized sale of the Plaintiffs’ products under the marks “AMWAY”, “MODICARE” and “ORIFLAME” on e-commerce platforms, wherein such platforms had also been arrayed as Defendants. The Court studied the policies and the functioning of the Plaintiffs’ and Defendants’ in-depth before analysing the Local Commissioner’s report. Based on its analysis, the Court concluded that there existed large scale tampering of goods, and held the Defendant e-commerce platforms to be involved in the same. With respect to the policies of the e-commerce platforms, the Court observed that such platforms could not sell a product for which the seller was not authorized. Moreover, the Court observed that the Plaintiffs’ products had a different return policy from the actual one and the customer reviews for the same were very poor, indicating a loss to the reputation and goodwill of the various Plaintiffs. The Court also noted that the Plaintiffs’ marks were completely diluted as there was no way to confirm the genuineness of any goods, as the seller details were absent. In view of all these points, the Court concluded that the Plaintiffs had a legitimate grievance against the Defendants. With regard to infringement, the Court mentioned that the e-commerce platforms could not use the Plaintiffs’ marks for advertising, promotion or sale offers wherein the products were not genuine and such use would result in taking unfair advantage of the Plaintiffs’ marks. Accordingly, the Court stated that the Defendants were liable for infringement of the Plaintiff’s marks. The Court noted in respect of intermediary liability, that the e-commerce platforms to be considered intermediaries would have to fulfil due diligence requirements and comply with their own policies. However, the Court observed that the Defendants had turned a blind eye to the Plaintiff’s intimation of its own policies and continued displaying the Plaintiffs’ marks and allowing the sale of goods under such marks. The Court additionally held the Defendant e-commerce platforms liable for inducing breach of contract and further interfering with contractual relationships of the Plaintiffs and their distributors. Therefore, the Court passed an interim injunction in favour of the Plaintiffs restraining the Defendants from advertising, displaying, offering for sale the Plaintiffs’ products.

Yash Raj Films Private Limited v. Sri Sai Ganesh Productions and Others – Delhi High Court [July 8, 2019]

The Court granted a permanent injunction restraining the Defendant from infringing the Plaintiff’s film “BAND BAAJA BAARAAT” by its dubbing and release in Tamil as a cinematograph film titled “JABARDASTH”. After examining the storyline of the two films, the Court observed that the owner’s exclusive right “to make a copy of the film” is not limited to merely a physical copy by the process of duplication, but includes a comparison between the substance of the two films. Furthermore, the Court noted that the Defendant had no real prospect of defending its claim, and the Plaintiff’s argument had gone rebutted.

News

• Natco v. Bayer: Del HC Observes that Parameters For Grant Of Interim Injunction Not Different In Patent Suits
• HC vacates order which restrained Patanjali Biscuits from using trademark Aarogya

International

• US copyright registration for the Tommy Hilfiger Flag denied due to insufficient originality
• Gigi Hadid claims she can post paparazzi photos because she smiled in them
• Disney bans grieving father from having Spider-Man on son’s grave

In the next two posts in the ongoing blog post series on The Sustainable Seed Innovations Project, Natalie Kopytko, Post-Doctoral Research Associate, University of Leeds brings us two farmer stories. These stories provide clear examples of the achievements of innovative farmers and the challenges they face. This first story demonstrates how traditional knowledge can be applied in new innovative ways. At the same time, the story demonstrates that farmers are unable to financially benefit despite Geographical Indications.

Agrobiodiversity Provides a Golden Opportunity

Natalie Kopytko

Figure 1. Jitul rearing golden silk worms on his farm.

Jitul Saikia’s story demonstrates a farmer fulfilling the role of scientist, conservationist and entrepreneur.  As a sericulturalist, he rears Muga silkworms to produce the rare golden silk.

His accomplishments include:

• The conservation of 12 landraces of host plants for the golden silk producing Muga silkworm.
• The development of a 2 ha agro-biodiversity reserve on his farm.
• The innovative use of plant diversity to increase production of golden silk thereby improving profitability.
• The innovative use of plant diversity to increase Muga silkworm fecundity (egg production) thereby helping to safeguard the vulnerable Muga silkworm.

Golden Silk and Plant Varieties

Figure 2. Threads of golden silk.

Included in the riches of India’s agrobiodiversity is the golden silk producing Muga silkworm (Antheraea assamensis) and the host plants on which they depend. These silkworms feed on the leaves of the aromatic Som (Machiulus bombycine) and Soalu (Litsea polyantha) plants creating a golden, glossy silk with extreme durability. This combination of beauty and strength has made for a silk historically reserved for royalty.

Today, air pollution from pesticide drift and the burning of crop residue threaten the health of the silkworm and the continuation of this traditional sericulture. Moreover, Muga has very specific ecological needs, low adaptability, and a narrow geographical distribution. Thus, the delicate silkworm is confined to the Brahmaputra valley in Assam and a few pockets within other north-eastern states.

Using Host Plant Diversity to Innovate Golden Silk Production

Figure 3. Final larval stage of Muga silkworm.

The restricted range of Muga is due in part to a dependency on specific host plants. In 2015, Jitul Saikia received Genome Saviour Farmer recognition for conserving 12 landraces of Muga host plant. Jitul highlights the differences of some of the varieties on this tour of his farm along with the potential medicinal properties of the varieties. Moreover, Jitul uses host plant diversity to innovatively improve silk production by moving the silkworm to different host plants at different stages of the life cycle.

To see the rearing of these silkworms throughout their entire life cycle watch this tour guided by Jitul. Key to Jitul’s techniques is recognising that host plant varieties differ in chemical composition and morphological structure and these differences matter in sericulture. For example, some host plant varieties improve silk production, others improve egg production (fecundity), some host plants are ideal for high-quality egg production (Muga seed), while the broad leaves of some of the plants provide shelter from the weather particularly during the rainy season as explained by Jitul in this video.

In the video, Jitul insists that host plant diversity must be used in rearing Muga silkworms. Farmers tend to prefer a few varieties of host plant for rearing Muga, but farmers do not match the host plants to the different life-cycle stages of the silk worm. By contrast, Jitul uses host plant diversity to increase production by using different host plants at different stages of the lifecycle. As he explained, he lets the silkworms feed on Soalu for the first three larval stages and then moves them to Som for the later stages. As a result, the size of the larva increases as does silk production. The farmers see that he has improved Muga seed production with 250 eggs or more per lane compared to typical production of 110 to 115 eggs. He also keeps careful records of his experiments hoping to influence the practices of other farmers. However, other farmers have not yet followed him in adopting this innovative technique.  Finally, he experiments with other species of silkworm as shown here. Again, he believes diversifying production will improve livelihoods.

Scientist, Conservationist and Entrepreneur

Figure 4. Jitul explaining the importance of agrobiodiversity.

Once Jitul was successfully conserving and utilising Muga host plants, he then became interested in conserving Mango varieties. Currently he has 52 cultivars of Mango on his farm. Moreover, he has dedicated a 2 ha section of his farmland to preserving agro-biodiversity. He collects plants from tribal and wild areas and brings them back to this bit of land for conservation. Currently in this collection, he has 16 varieties of Som and 18 varieties of Ahu rice along with many other plant species.

Clearly his innovations and conservation work have moved beyond the efforts recognised in 2015.  As a farmer, Jitul is also a scientist using his fields as a laboratory to improve production. Moreover, he is formally recognised as a scientist with a masters in Entomology and collaborations with researchers in Guwahati and North Lakhimpur. He has not only committed his own land to research and conservation, but also his own money spending approximately 5 lakh (500,000 rupees) per year on funding the work.

In Assam it was traditionally said, “If luck favours you, no other crop in the world is more profitable”. Jitul has not relied on luck, but instead has used his own human capital in the form of scientific knowledge and intellectual curiosity to try to make Muga production profitable. He aims to train other farmers in his techniques to improve their livelihoods.

But for now, he adds that he and the other Muga farmers have yet to be lucky.

References

Goswami D., Rabha B., Veer V. (2016) Muga Silk- The Golden Thread of Assam. In: Purkayastha J. (eds) Bioprospecting of Indigenous Bioresources of North-East India. Springer, Singapore

https://link.springer.com/chapter/10.1007/978-981-10-0620-3_17

Raising of Host plant and Silkworm Seed Production

https://sericulture.assam.gov.in/frontimpotentdata/raising-of-host-plant-and-silkworm-seed-production

The first farmer story by Natalie Kopytko, Post-Doctoral Research Associate, University of Leeds (in the ongoing blog post series on The Sustainable Seed Innovations Project) demonstrated how traditional knowledge can be applied in new innovative ways and that farmers are unable to financially benefit despite Geographical Indications. This second story demonstrates how traditional ecological knowledge, specifically seed selection in Assam, led to the wide range of rice varieties cultivated today. These stories provide clear examples of the achievements of innovative farmers and the challenges they face.

Varieties Are The Rice Of Life

Natalie Kopytko

The conservation efforts of rice farmers Suren Bora and Manik Saikia from North Lakhimpur, Assam demonstrate the role of natural capital within sustainable seed innovation. In terms of natural capital, agro-biodiversity means climate-resilient crops, food security, and nutritional security. Moreover, these two farmers work as collaborative scientists with staff from the region’s research station to develop new varieties. Both farmers have received Genome Saviour Farmer Recognition for their conservation efforts, each of them conserving varieties of very different types of rice.

Suren Bora conserved and developed Sali rice variety Solpona and the varieties Borhahinga, Biroi, and Jurai Khowa.

Manik Saikia conserved Negheri Bao a deep water, low lying rice variety. His variety was a donor parent in development programmes resulting in two new Bao varieties for flood prone areas of Assam.

A Rice for Every Reason

To say that rice is a staple of the Assamese diet, would be an understatement.  The Assamese consume rice at each meal, for snacks and even in beverages. For every reason, a different type of rice exists. The stickiness of the indigenous Bora rice makes it ideal for snacks and breakfast food as well as a staple in festivals and ceremonies. Bao rice has become more widely popular due to superior nutritional qualities, specifically high levels of B vitamins, vitamin A and iron. While Bao rice varieties often appear red due to the pigment Anthocyanin, the aromatic Joha rice has a black hull. The 43 varieties of Joha recently received Geographical Indication specific to Assam and recognition for an aromatic quality that differs from basmati. By contrast, consumers outside of Assam do not yet fully appreciate Chokuwa rice. Chokuwa rice’s semi-waxy quality permits locals to process the rice into a powder to then use as a type of instant rice when needed.

A Rice for Every Season

The many tributaries of the braided Brahmaputra river deposit fertile soils within the 100 km wide Brahmaputra valley. The Himalayas rise in the background of this landscape. At one moment the river provides the very material permitting the cultivation of rice, in the next moment the river can devastate crops with floodwater. Rice cultivation happens in a wide range of geographical situations from hill slopes, to drought impacted uplands, to rain-fed lowlands and finally to very deep-water environments. Three distinct growing seasons of rice have developed from the wide variety of geographies and climatic conditions.

Season 1: Ahu rice sown in February-March and harvested by June.

Season 2: Sali rice sown in June, transplanted in July and harvested by November. The most diverse rice includes varieties that grow in shallow, semi-deep, and deep-water environments.

Season 3: Boro rice sown in the month of November and harvested by May/June. This type of rice is not as diverse, but is very high-yielding due to fewer insects in the winter months, no flooding conditions and clear skies.

In addition to these 3 seasons, Bao rice fulfils a specific need, sown in season 1 but harvested later.

Deep-water rice: Bao rice sown in March with Ahu, but harvested by December. The climate resilience of Bao is why it is so important. This deep-water rice floats and tolerates submergence as well as being drought resistant. The elongation ability of the plant allows it to increase in height as the water level increases. Once the waters recede, the plant develops roots at the nodes becoming erect. In other words, the plant can now stand independently where once supported by water. Therefore, even in the worst climatic conditions, Bao provides some sustenance at the time of harvest. While providing a typically low yield, due to the now recognised nutritional qualities, this rice can fetch double the price at market.

Conservation and Scientific Collaboration

Manik Saikia cultivates Bao rice only. Due to low-elevation lands, the water levels in his fields are too deep to permit the cultivation of any other type of rice.  He found success in farming by following the procedures taught to him by his ancestors. Indeed, in Assam most farmers practice chemical-free traditional farming. (The one exception being herbicide-use within the tea gardens.) The water in rice fields ensures an anaerobic environment preventing the weed seeds from growing and thus not necessitating herbicide use.

While Suren Bora cultivates rice at a slightly higher elevation, floods still affect his lands. Therefore, his favoured varieties also tolerate flooding; moreover, Solpon performs well even during drought conditions. He has farmed since childhood learning the ancestral practices from his father. On a single plot of land, he diligently works to conserve 17 varieties of rice. Suren remains committed to maintaining the highest standards of purity by carefully collecting the best panicles, drying them and not threshing them to prevent mixing with other varieties. Moreover, researchers comment that they have seen one variety of rice growing at his house only. This variety performs well even in very marginal soils, under drought conditions and when submerged in water.

Researchers at the regional agricultural station need farmers like Suren and Manik to continue to conserve indigenous varieties. From time to time, they release new varieties for testing in farmers fields and find them infected by disease or encountering another problem, while indigenous varieties continue to perform well in these same field conditions. The researchers then re-examine the indigenous variety to understand the factors contributing to its success. If a farmer’s variety has potential, it can then become a parent stock in breeding programmes to develop new varieties.

Moreover, when the research station no longer has seeds to provide to farmers, they know that they can tell farmers to see Suren Bora or Manik Sakia for quality seeds. The farmers therefore provide natural capital in the form of seeds to other farmers in need.

Importantly, when we think of rice as a staple item for the diets of millions, we need also to remember that agro-biodiversity and plant varieties are the staple of life. Diverse varieties ensure continued food production in even the most difficult climatic conditions as demonstrated in Assam.

References and Further Reading

GI Tag for Joha Rice

https://www.telegraphindia.com/states/north-east/gi-tag-for-joha-rice/cid/1429771

Status Paper on Rice in Assam

http://www.rkmp.co.in/sites/default/files/ris/rice-state-wise/Status%20Paper%20on%20Rice%20in%20Assam_0.pdf