Ghost Post: Samsung v. Apple Presidential Enforcement Veto

SpicyIP subscribers recently received a short blurb from Shamnad on this FT article regarding the hypocrisy of stamping 'national interest' considerations as valid only when certain countries declare it. Aside from the hypocrisy of declaring 'national interest' valid only when certain nations declare it - let's not forget that India's 'national interest', declared problematic by the US, is for providing its patients with access to life saving medicines - while US' 'national interest', that is presumably valid, is for ensuring iPads and iPhones are available to its citizens. Two-faced much?

Anyway, in light of these recent developments, we're very glad to bring our readers a 'ghost post' on this topic from one of our regular readers who goes by the monicker 'Frequently Anon'. 

Samsung v. Apple Presidential Enforcement Veto

Recently, the US government vetoed the decision of its International Trade Commission relating to the Apple- Samsung patents battle. A thorough background is present on Forbes' website. The actual veto / disapproval letter is available here.

For many years now, India has been 'bashed' by developed nations arguably because we have 'slack' / 'innovation unfriendly' standards and have issued compulsory license, revoked patents on pharmaceutical compounds, do not look at patents for salts / polymorphs of known compounds very favorably. But when India / Thailand did things that were allegedly hurting patentee' interests, the whole world became agitated. India has been the subject of US' 301 reports for long. Innovator drug companies withheld their drug registrations in Thailand!

However, this very one sided traffic in global media has never looked at the history of IP in the US and today's developed European nations. The US did not respect copyright of other nations' authors for a very long time. Per Wikipedia, "the 1790 Act did not regulate other kinds of writings, such as musical compositions or newspapers and specifically noted that it did not prohibit copying the works of foreign authors." The Americans effectively forced the Wright Brothers and other patentees to form the Airplane patents' pool. 

The Swiss and Germans had a patent struggle for a long time and effectively grew up on each other's patents in dye-stuff and chemicals domain. A journal article that gives some background on the history of Swiss patent law is here.

No major media house // IP author wanted to say much that India's sole compulsory license was issued mainly since the Patentee imported only 300 bottles of the drug in a country of 1+ billion people. Importantly, the CL was issued after negotiations broke down and even today subsists with a royalty payment clause.

No major media house in the last few days has mentioned much on the Indian' government's refusal to proceed with divisional applications filed by Genentech on Trastuzumab because that would mean highlighting the fact that Genentech did not bother to file the basic request for examination in time nor visited the Patent Office when requested to come and explain its stand. The oddest part is that Genentech continued filing divisional applications even after it got a patent on the most important claim - the composition of Trastuzumab. Multi-generation divisional practices are not allowed in Indian patent practise / Statute and even then every single major drug company keeps on filing these 3rd/ 4th generation divisional. We recently saw Gilead’s divisionals being refused and earlier have seen how Abbott had filed multiple divisionals in different branches of the Patent Office.

Today, when the US govt over turns the decision of its own ITC body against a foreign patentee, only a very small minority of IP practitioners discuss this dichotomy (hypocrisy by US Govt in my eyes). Every nation takes steps to protect its interests - public and economic - depending on where they are in development and what repercussions they foresee.

So, when the US govt. moved against foreign patentees and overturned the ITC order, why are they arguing that the patentee still has rights in Federal Courts? Don't patentees in the Indian cases have rights in Indian cases? Yes, they do. So, how is the US any different from India when it comes to protecting its own first??

- Frequently Anon