Is the IP law necessarily at odds with creativity, particularly common law or the tradition of judge-made law, where 'precedent' is everything, and where conformity trumps creativity?
World Intellectual Property Day is celebrated with much fanfare each year on 26 April. Even as we pay homage to innovators on this auspicious day, it seems paradoxical that the legal regimes meant to foster innovation have all but been shielded from innovative experimentation. To this day, intellectual property laws draw sustenance from a flawed framework formulated centuries ago.
This leads one to ask: Is the law necessarily at odds with creativity, particularly common law or the tradition of judge-made law, where “precedent" is everything, and where conformity trumps creativity?
While there is some (relative) truth to this, a careful review suggests that the law is not completely bereft of creativity. In India alone, one finds a whole host of quick-fix solutions devised to cater to a resource-constrained ecosystem; solutions that answer to a rather contentious term: “jugaad".
One’s view of jugaad is shaped, to a large extent, by one’s larger worldview on whether we lean towards a Godzilla-like “big (market) is beautiful" frame, or we are more partial to a milder Schumacherean “small is beautiful" philosophy. To the latter category of people (and I find myself in this camp), jugaad is seen as more green (deploying as it does less resources), self-sufficient (Gandhi style) and contra-consumerist (prevents wasteful use of resources that come with scale and mass markets).
The spirit of jugaad finds resonance in a legendary fable of the US vs USSR space race, where the US struggles to invent a high-tech pen capable of withstanding the anti-gravity environs of outer space. The Russians simply used a pencil. This famed fable soon found its way to a Bollywood movie titled 3 Idiots, where the protagonist Aamir Khan is seen supervising an open-air lab with jugaad-type inventions such as a mini flour mill powered by a scooter engine.
It is this jugaad mindset that sees our courts deploy retired judges as court commissioners to supervise the nightmarish process of taking evidence in long-drawn lawsuits, thereby easing the pendency pressure on sitting judges. In fact, what we do with our retired judges is quite something. We pick them to preside over troubled tribunals, mediate interstate disputes, investigate sporting scandals and what not.
There are plenty of other examples of jugaad justice (if I can call it that), but let me traverse the intellectual property (IP) domain, as that is one that is most familiar to me.
Years ago, in a rare flash of intuitive intelligence, the maverick justice Markandey Katju did away with “interim" injunctions, often the first phase of an IP dispute. Such injunctions were granted upon the demonstration of a “prima facie" case, and meant to protect an IP owner against the vicissitudes of a long trial, where the alleged infringer could flood the market with competing products and destroy the value of a time-sensitive IP right.
Katju’s logic was simple. Given that this initial interim phase was itself subject to endless adjournments and delays, it was far simpler to dispense with this phase and move directly to the more complex trial phase and resolve the dispute once and for all (the second phase).
This dispensation had the added advantage of ensuring that in complex cases such as pharmaceutical patents, the judge faced no “prima facie" pressure and could review all evidence in depth to arrive at the right determination.
A wrong interim result effectively meant that competitors and hapless consumers were denied access to cheaper life-saving medicines, till such time as the court finally got it right.
Underlying this elegant solution was an intuitive logic that made the most of a resource-crunched ecosystem beset with endemic process delays. However, Katju rightly cautioned that in all such cases where the interim phase was dispensed with, trials would need to be expedited through mandatory timelines. Unfortunately, this policy prescription is observed more in the breach by lower courts and lawyers appearing before them.
In another series of remarkable decisions, courts ordered that rather than pay damages to IP owners, defendants accused of infringing IP rights donate money or contribute to social causes. Illustratively, in a trademark infringement case involving the Baba Zarda mark, courts ordered the defendant, a tobacco-chewing manufacturer, to install 150 spittoons in various hospitals in Hyderabad.
This wisdom was, to some extent, predicated on the sheer difficulty of determining appropriate damages in IP rights cases. And the fact that the costs of such determination may far outweigh potential benefits, particularly when one considers the complexity of valuing an intangible, the tribulations of long trials, and the paying capacity of the defendant.
This is not to suggest that courts simply duck valuation in all IP cases. Rather, as the recent spate of telecom cases involving standard essential patents shows, it is important that they take a shot in appropriate cases, and not arrive at largely arbitrary interim figures, relying on opaque royalty rates doled out by the plaintiff patentee.
And it is here that one needs to appreciate that while jugaad works well in certain settings, other circumstances may call for a more comprehensive and costly long-term solution. And yet others may call for a combination of both. It is only such a diversity of different approaches that can lead to optimal solutions in a world beset with complexity and uncertainty, and where there are no clear answers, and where the law will necessarily have to be less literal and more lateral.
Shamnad Basheer is the founder of SpicyIP and a recent Infosys Prize Awardee for his contributions to intellectual property law.