The Indian IP Environment: Aligning With Global Standards

Editor: Mr. Bailey, would you tell our readers something about how you came to King & Spalding?

Bailey: I have been in New York practicing law for 32 years. The first 30 years were with Fish & Neave, which specializes in IP work. During the years that I was the managing partner at Fish & Neave, I would call on King & Spalding frequently. They were a general practice firm with values and an approach to legal practice which was very similar to what I had known at Fish & Neave, and when I made the decision to leave the latter I contacted Bruce Baber in Atlanta, then the head of King & Spalding's IP group, and a friend of many years standing. All of my King & Spalding contacts were in Atlanta, but I believed that the values and the approach to practice would be the same in the firm's New York office. That has proven to be the case.

Editor: Can you give us an overview of King & Spalding's IP practice?

Bailey: We have about 100 lawyers doing IP work. They are in the Houston, Atlanta and New York offices of the firm. About half of these people do patent work, and a large number of people in Atlanta and New York are engaged in the registration of marks, both in the U.S. and abroad, for large companies, including Coca-Cola, UPS and the like. The patent work tends to be divided between Patent Office work, including the drafting and prosecution of patents, and patent infringement litigation, which is my end of the practice. I should add that our New York office recently added five attorneys to our capability in the biotech and pharmaceutical area.

Editor: I understand you were in India at the beginning of the year with a delegation of American judges and IP lawyers. What was the purpose of the trip?

Bailey: Several years ago George Washington University Law School launched an initiative it calls the India Project for the purpose of strengthening IP law in India through education. The school has an excellent reputation, and there is usually a fairly large group of Indian students pursuing the LL.M. degree. Many of these students have a background and strong interest in IP. That interest and the interest of an alumnus, Raj Dav, spurred the development of the program in the first place. Our trip was a part of this program, which has the strong support of Professor Martin Adelman (co-director of GW's IP Law Program) and Susan Karamanian (associate dean for international and comparative legal studies).

Editor: With whom did you meet when you were in India?

Bailey: We met with groups of Indian legal practitioners and related professionals and with judges. In New Delhi we met with a number of high court judges and with Chief Justice Sabharwal of the Indian Supreme Court, along with Judge Raveendran of that Court. We were also privileged to attend hearings before the Indian Supreme Court. In both New Delhi and Bangalore we put on a moot court presentation where American lawyers argued a case based on a real patent infringement case in the U.S. This was judged by members of our group, which included Judge Randall Rader of the Federal Circuit and Ron Whyte of the Northern District of California, one of the most experienced IP trial court judges in the federal court system. This was followed by a second moot court presentation before two Indian judges.

In Bangalore, this moot court presentation was before a group of Indian law students from the National Law School who served as a jury. This was an attempt to focus on both the differences and similarities of our respective systems.

During the trip, GW Law School announced a new venture with the Indian Institute of Technology at Kharagpur to establish a new law school. This is the Rajiv Gandhi School of Intellectual Property Law, with a primary focus on IP law. GW has now also announced a major interdisciplinary India Studies Center. GW's India Project is bearing real fruit.

Editor: Is there anything comparable to the Federal Circuit in India?

Bailey: Not as yet, although discussion is underway. Several delegates on the India Project went to the Judicial Institute in Bhopal. Judges are trained at the Institute, and I understand the topic of specialized courts is among the subjects considered.

Editor: What steps does a young Indian student need to take in order to practice as an IP attorney?

Bailey: As I understand it, after meeting with Indian IP practitioners and scholars, there are IP offerings in all of the regular law schools in India. These courses are focused on copyright and trademark, and that may reflect the absence of strong patent protection in India until recently. Even five years ago, the protection of products in the pharmaceutical area or for agricultural chemicals was simply not in place. I believe that was one of the factors that brought GW Law School to consider the India Project. What has taken place most recently is the recognition, with a developing economy, of the imperative need for the country to be in compliance with TRIPS, the Agreement of Trade-Related Aspects of Intellectual Property Rights under the WTO. And they have brought themselves into compliance. This has resulted in a huge interest in patents in India. That, in turn, is serving to upgrade the qualifications necessary to act as an IP practitioner.

Editor: Would you give us your impression of the state of IP protection in India.

Bailey: The right laws are on the books, and I have no reason to believe that there is a failure to enact a statutory scheme including all of the protections that we are used to in the U.S., Europe and Japan. Certainly there is a long history of IP protection for copyrights, trademarks, trade secrets, and so on. The protection of patents, as I say, is emerging. Novartis has recently lost its application for a cancer drug patent and is challenging that decision. A great deal of attention is being paid to this effort because it also represents a challenge to some aspects of India's patent laws. The last word on this has yet to be written, but all of the signs are encouraging.

Editor: Is the judicial expertise in place as well?

Bailey: Based on discussions I had with judicial personnel at all levels, up to and including the Chief Justice of the Supreme Court, the judiciary does not have as much experience with IP cases as the average federal judge in the U.S. Indian judges are conscious of this shortfall, and, indeed, one of the purposes of the India Project is to bring accomplished jurists from the U.S. to India to share their experience and expertise with their Indian counterparts. Indian judges are fully cognizant of the importance of IP protection in a developing economy, and they understand that an informed judiciary is one of the key factors - perhaps the key factor after having the right statutes on the books - insuring IP protection.

Now that Indian products are moving into the world's markets, Indian companies are very sensitive to competitors counterfeiting those products and producing knock-offs. There is an enormous amount of innovation underway in India, and that is the best evidence of how seriously IP protection is taken today. In the absence of patent protection, it is difficult if not impossible to encourage innovation. With serious patent protection - and our discussion with Indian judges would underscore just how seriously this is taken - innovators are going to be present in force. Today IBM and Microsoft have very large budgets for their work in India. Philips Electronics has a large campus in Bangalore. None of these enterprises would be there without a guarantee of IP protection.

Editor: I gather there are many Indian enterprises that now have considerable IP investments and, consequently, a great interest in IP protection.

Bailey: The Indian film industry is a good example. One of the things I found astonishing about the Indian lawyers we met on our trip was the extent of their knowledge about what is happening in the U.S. Lawyers in India are conversant with the latest decisions of the Federal Circuit. I think this is a reflection of the fact that Indian companies are now exporting their own IP to the U.S. and need to pay attention to what is underway in the U.S., the potential infringement of U.S. patents and the ways in which the U.S. system can serve as a model for an emerging patent protection system in India. And when that system works at home to protect the IP of domestic enterprises, it also works to protect that of the foreign investor.

Editor: As an IP lawyer representing clients in the global arena, are there pitfalls, things that you are particularly sensitive to in a legal environment such as India's?

Bailey: The single most important thing is to have good representation in India. King & Spalding has contacts with a number of firms in India - firms with the experience, connections and expertise that put them in the top echelon of Indian firms - and one of the most important services we can provide any of our clients considering doing business in the country is to introduce them to the right lawyers there and work with those lawyers to protect our clients' rights.

Editor: Invariably, many Western corporations are only going to be able to do business in India by working with an Indian partner. In setting up a partnership arrangement, what are the things that you attempt to do to protect the client's IP?

Bailey: Again, I think it is the province of competent Indian counsel, working with the client and the client's U.S. counsel, to determine whether there is a problem with respect to IP and, if so, to work out the steps necessary to protect it. I don't think that this particular problem is any different in India than anywhere else. It is crucial everywhere to retain and work with experienced local counsel.

Editor: India's economic development has been spectacular over the past l5 years. For the first time, educated young people are choosing to stay in India. Do you think this rate of growth, and all of the changes it is fueling, will continue?

Bailey: I do not know if the spectacular rate of growth will continue, but I do believe there is no turning back from it. On our trip earlier this year we learned that not only are educated young people now staying in India, but large numbers of young Indians who have been abroad to complete their educations are now returning to the country. Indeed, one of the young lawyers that King & Spalding deals with in New Delhi has Canadian and U.S. degrees in chemical engineering and a U.S. law degree. That type of educational background is on the increase, and it certainly enhances the communication that we all hope to build for the future. Many young Indians who have graduate degrees from European and North American institutions now wish to return to India to be part of what is happening there. This, to me, says more about what is underway than just about anything else.

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