Saturday, July 30, 2011

Parliamentary Scrutiny For Intelligence Agencies Of India

Intelligence agencies of India are not governed by any legal framework and parliamentary oversight. Legal experts in India have been stressing upon existence of such parliamentary scrutiny for intelligence agencies and law enforcement agencies of India for long. In fact, intelligence infrastructure of India is in big mess.

However, for one reason or other, Indian government has ignored this much required constitutional mandate. Now the problem has taken a serious dimension, so our Prime Minister Dr. Manmohan Singh found the situation alarming. He has commissioned a new law to be drafted that would make India’s intelligence agencies accountable to the parliament.

According to Praveen Dalal, the leading techno legal expert of India and a Supreme Court lawyer, till now we have no laws that govern the functioning of Central Bureau of Investigation (CBI), Intelligence Agencies of India, etc. The draft Central Bureau of Investigation Act 2010 has proposed a law for CBI and the draft Intelligence Services (Powers and Regulations) Bill, 2011 has been suggested for Intelligence Agencies of India.

Since the PM has commissioned a new law to be drafted for intelligence agencies, it seems the proposed law would be independent of the recent proposed Bill 2011. It would be appropriate if techno legal issues are covered by the proposed law as suggested by our PM.

Saturday, July 23, 2011

Software Patent Trolls In India

Patent trolls are people or organisation that acquires a patent with the primary objective of non use of the same. Their main objective is to get maximum commercial benefit through licensing mechanism. They also intend to sue others for patent infringement and derive monetary benefits through compensation for the alleged patent infringement.

Software developers in US are frequently targeted by such patent trolls through cease and desist orders by alleging patent infringement. So bad has become the situation that software developers in US have threatened to leave US unless they are duly protected from such trolls.

So what is the position regarding the same in India. Patent Trolls and their Regulations in India is well founded says Praveen Dalal, managing partner of New Delhi based IP and ICT law firm Perry4Law. Indian Patents Act 1970 “Prohibits” Unfair Trade Practices of Hoarding a Patent by not using the same and hindering its availability to general public, informs Dalal

If a cease and desist order is issued in respect of such a “Hoarded Patent”, the very grant of Patent can be challenged. This is sufficient “Deterrent” for Patent Trolls operating in India, opines Dalal.

It seems Indian patent law is well founded to protect software developers as software is not a patentable product or process in India. If something cannot be patented in India, there are practically no chances of its violation in India hence there cannot be any litigation as well.

So the chances of software patent trolls to flourish in India are not much provided people are aware of the intellectual property rights (IPRs) laws of India, especially the patent law of India.

Saturday, July 16, 2011

United Nation’s Regional Economic Commissions And India

While discussing the regional initiatives of United Nations regarding economic development, i asked myself about the true nature of such regional initiatives. Are these regional initiatives truly regional in nature or can they cooperate and collaborate among themselves or with other individuals and organisations residing beyond their regions?

In other words, does the charter of such institutions or commissions allow them to engage at international level directly or indirectly? If these regional initiatives are strictly regional in nature, this may hamper their effectiveness.

For instance, recently I came across the activities of United Nation’s Economic Commission for Europe (UNECE) regarding intellectual property rights (IPRs). I found this initiative really impressive. However, can India be a part of UNECE directly or indirectly?

According to Geeta Dalal, partner at New Delhi based ICT and IP law firm Perry4Law, UN-ECE is one of five regional commissions of United Nations, working for economic integration and growth in Europe primarily. For Asian countries/ India, UN regional commission is Economic and Social Commission for Asia and the Pacific (UN-ESCAP).

Does this mean professionals and organisations working as members or otherwise of UNECE and UNESCAP have to essentially confine their initiatives and efforts to their regional initiatives alone?

This may not necessarily be the case. For instance, the International PPP Center for Excellence by UN-ECE, to my understanding, is global initiative having much wider objectives useful for all countries although it is primarily designed as a regional initiative, suggests Geeta Dalal.

Considering the ever increasing scope of engaging PPP model in growth map of Asian countries like India particularly in infrastructure projects such as road, transport, telecom, ICT etc, initiatives like UN-ESCAP and UN-ECE could play a possible pivotal role. In any case, it should engage experts from all over the world as there is nothing that restricts this exercise, suggests Geeta.

.It seems, although many UN initiatives have been launched as regional, their public private partnership (PPP) model may help in expanding their expertise and scope. At the end of the day, any regional initiative that helps in achieving a global objective is always welcome irrespective of its mandate.

Thursday, July 14, 2011

EU India FTA, Data Exclusivity And Foreign Direct Investment

European Union (EU) is actively working in the direction of strengthening the regional and international intellectual property rights (IPRs) protection for its member States. Working in this direction, the United Nations Economic Commission for Europe (UNECE) has recently held a two day meeting to increase IPRs awareness throughout the Europe.

Similarly, EU and India would also sign a letter of understanding which will ensure that EU countries would not seize Indian medicines passing through Europe on the ground of violation of IPRs.

These are positive developments despite some initial hiccups like EU decision to withdraw the generalised system of preferences (GSP) scheme where India was on the receiving end, says Geeta Dalal, partner at Perry4Law a New Delhi based IP and ICT law firm. Now Indian government has made it clear that the “data exclusivity” provision would not form part of the proposed EU India foreign trade agreement (FTA), informs Geeta Dalal.

Asia is a very important market for EU companies and by adopting a very strict attitude this market could have been jeopardised. Similarly, India is also a very important market for pharmaceutical companies of Europe. The proposed EU India FTA may open new markets for these pharmaceutical markets.

By adopting a flexible approach, both EU and India can be benefited. Indian would get good foreign direct investment in the pharmaceutical and allied fields and European companies may get access to Indian pharmaceutical market, informs Geeta Dalal.

The proposed FTA would be concluded within this year and many trade related issues would be discussed there. Let us wait for the final version of the EU India FTA.

Saturday, July 9, 2011

Renewal Of An Expired Trademark

Trademark registration in India is well founded and properly regulated. The trademarks act 1999 of India regulates the registration and management of trademarks in India. It protects trademarks, well known marks and brands.

Once registered, a trademark is granted for a period of 10 years and can be subsequently renewed for another 10 years period. During the registration period the trademark holder can enjoy the benefits of registration that prevents others from using the registered mark.

At times a trademark is not renewed and this makes the mark in question susceptible to registration by others. Thus, it is very important that trademarks are renewed at appropriate time. The questions is can we re-register a trademark whose duration has expired?

Even if the mark has been expired, one can apply for its re-registration. And in case, someone else applies for registration of expired trademark as per the prescribed procedure, owner of expired trademark can file objections at the registry, tribunal or appropriate forum, says Geeta Dalal, partner at New Delhi based IP and ICT law firm Perry4Law.

It is a good strategy to keep a close watch at the registered trademarks as renewal of a trademark is definitely less cumbersome as compared to opposition and re-registration efforts, suggests Geeta Dalal.

So even if your trademark registration period has expired do not loose heart and approach a good lawyer or law firm to get it renewed or registered as soon as possible.

Friday, July 1, 2011

Indian Government Would Clarify New Data Protection Rules Soon

Indian government is planning to clarify the nature and scope of the newly proposed data protection rules very soon. These rules have raised lots of concerns in India and abroad, especially among the outsourcing industry.

There has been some confusion over the interpretation of Sec 43 A of the information technology act 2000 (IT Act 2000), the sole cyber law of India.

.IT Act 2000 has been in controversies ever since the information technology amendment act 2008 (IT Act 2008) was notified in India. The IT Act 2008 incorporated many provisions that are not in conformity with the spirit of Indian constitution. In fact, experts like Praveen Dalal have suggested the repeal of the IT Act 2000 so that a better and constitutional law can be formulated.

The new data protections rules have raised many concerns for foreign companies and outsourcing players. They believe that under section 43A, an Indian outsourcing provider would be required to obtain written consent from each individual of an organisation whose outsourced work it would manage. They fear that such a consent requirement will potentially put a huge additional financial burden on these companies and thus affect their profitability.

The new Rules for Data Protection need to be “analysed in detail” and these issues must be sorted out so that outsourcing industry can work in an effective manner, suggests Dalal. This is exactly what the Indian government is planning to do.

On the one hand India needs to ensure privacy and data protection laws whereas on the other hand concerns of outsourcing industry have also to be accommodated. Let us see how things would come up finally as the matter is of utmost importance.