Sujata Chaudhri is the Founder, Owner and Managing Partner at Sujata Chaudhri IP Attorneys and specialises in IP litigation, enforcement, prosecution and transactions in the United States and India, particularly in the area of trade marks.
July 21, 2021
Q. Why did you choose to specialise in IPR?
I got into the IP field quite by accident when I was asked to assist a partner at the firm I worked at on an IP matter. Once I started working on the matter, the subject piqued my interest, and that interest just kept growing. I soon started reading up about trademarks, copyrights and designs during my weekends off from work. An LLM in IP followed and the journey with IP began!
The core motivating value boils down to first principles: be it a start-up or an MNC, protection of human intellect, in my view, holds utmost importance and deserves to be protected and cherished.
Q. During the COVID-19 pandemic situation, there are some essential innovations taking place across the world in the tech and medical spaces to provide much-needed relief to populations. Do you think trademarks and IPR can be a hindrance to more and more people getting access to such essential products?
The pandemic’s necessity has pushed the industry to make not only drugs and medical equipment like ventilators, but also essential technologies such as copyright-protected virus-tracing software.
Does the Indian patent regime strike a balance between this commercial interest and the interest of the ultimate beneficiary – the public at large? I think the 1970 Act is flexible and robust enough through its provisions on compulsory licenses, prevention of evergreening of patents and government acquisition of patents, to deal with public health emergencies as well as the objective of incentivizing inventors, if you see Sections 84-92, and 102.
But of course, unlike an epidemic, the pandemic is not a problem specific to one jurisdiction. A recent Oxfam report reveals that “a small group of rich countries representing 13% of the world’s population has bought up more than half of the future supply of leading COVID-19 vaccines”. This makes public access to Covid-relief a problem for densely populated developing countries, as you rightly pointed out.
But then, we already have a response from pharma companies such as AstraZeneca, in the form of sub-licence agreements with several producers, including the Serum Institute of India, to increase the supply of vaccines. AstraZeneca also is billing ‘non-profit’ prices for its vaccines for the duration of the pandemic. Gilead has licensed its Remdesivir patents to generic manufacturers in India, Pakistan and Egypt for supply in 127 countries. The World Health Organisation (WHO) established the Covid-19 Technology Access Pool (C-TAP) in June last year. The pool calls for voluntary contributions of patents and all other forms of intellectual property (eg, trade secrets, software and know how) from around the world in order to expand the development and production of new technologies needed in its response to the pandemic.
These responses, although voluntary in nature, are a concrete indication of the direction an incentivized, fairly dealt with, well-fed industry has the power to take- motivations likely bolstered by reputational advantages and pro-growth industry vision.
Looking at trademarks, there are enough safeguards in the Indian regime to safeguard the public from deceptive, descriptive marks such as a ‘COVID-RELIEF’, ‘NOCORONA’, ‘CORONA SAFE’ and ‘DHL CORONAVIRUS PREVENTIVE’, among others.
So even while the Registry is seeing abundant applications from shortsighted businesses filing to protect formative marks related to ‘Coronavirus’ and ‘COVID’, none of the applicants have started using the marks. Expectedly, there are applications which have been filed under Class 5 pertaining to medical pharmaceuticals, and veterinary products and even class 3 for cleansers styled on covid related marks, as well as class 9 for anti-virus software!
But the applicants – when they are active commercial ventures – could have perhaps used some IP due diligence before embarking on chasing such registrations.
Q. We are in the midst of an Artificial Intelligence boom. What are some of the challenges that AI is posing for the IP system?
There is the looming prospect that AI will be able to behave in human-like ways and IP will have to reevaluate the standard of “person skilled in art” which analyses any inventive step. Patent law, as it stands, attributes exclusive rights only to the true and first inventor, specifically to a natural person.
There’s also the problem of copyright ownership in AI. In order to be protected under copyright law, work must originate from an author’s own sufficient skills, labor, and judgment. This system poses a great challenge when trying to determine whether or not AI has used these factors sufficiently to produce such work.
Specifically on trademarks: The purchasing process is affected by information available to the consumer and who, or indeed what, makes the purchasing decision. AI has an impact on the information available to consumers and their purchasing decisions. AI is now used for several activities like “voice search”, this eliminates the usual text searching and there’s a projection that the visual aspects of a trademark may decline in importance with greater emphasis on phonetic and conceptual comparison.
Q. What are the major challenges that lawyers usually face in IP-related practice/litigation in India?
The challenges faced are many although these challenges are what makes practicing IP in India so interesting. Most stark among the challenges is the sometimes inconsistent approaches are taken by our courts and administrative bodies that are tasked with protecting valuable intellectual property. These inconsistencies are difficult to explain to clients who might have expected a matter to go well for them.
In terms of commercials, IP lawyers are now competing with the timelines generated by an AI driven world, in terms of commercializing business’ intangible assets. This brings up larger volumes of work to deal with on more competitive timelines, and a rather interesting challenge to manage.
Q. What sets the Intellectual Property practice at your firm apart from other law firms that also deal in patents, trademarks, copyrights, etc.?
The firm is set apart by the values of multi-disciplinary management, a youthful vibe, holistic decision making and a democratic culture.
I also feel that management practices come out better when they are developed with inputs from all concerned, rather than being imposed unilaterally.
Having the team participate in decision-making process makes it more democratic in nature and encourages greater acceptability. Moreover, it often brings to light diverse points of view, some of which may not have occurred to the management unilaterally.
Talent retention, in my view, can only materialize if the firm’s and team members’ individual goals align.
Before retaining talent, it is important to get raw talent, and then hone it in a way that works well both for the firm as well as for the individual. I’ve always believed that talent should be in-grown.
At my firm we have a well-laid down bi-annual evaluation process where each lawyer and paralegal is formally evaluated on their performance and growth in a transparent manner. The exercise helps in identifying the strengths and shortcomings in an individual’s performance, thereby paving the way for an individual’s growth as a professional.
We have incentives for efficient performers, and also a policy of fast-track progression in career for those who exceed the expectations of the firm. We’ve had fast track promotions in the firm, where lawyers are given responsibility right from early stages of their career, honing not just their technical skills, but also the soft skills such as delegation of work, mentorship, representing the firm at International conferences, practice development, building a brand, etc., which are vital from an entrepreneurial perspective. This has helped us hone and retain talent.
Q. On a personal level, how are you adapting to the changes in professional environments brought about by the pandemic and the lockdown? What do you like to do when you are not working?
We have tried to look at the uncertainty that came with Covid 19 as a challenge and an opportunity to reinvent the way we operated the firm. It has made us take a relook at every aspect and function of running the firm with a fresh perspective.
Using technology as our aid, we have allocated the time and resources saved that were earlier invested in travelling and physical interactions with clients in building the firm’s internal processes.
We have also taken a relook at our processes for hiring and recruitment. We saw a surge in practice in 2020, despite the pandemic, and consequently we scaled up our practice with new hires. There is a concerted effort to build up the firm’s patent department.
As for doing other things, most of my time away from work is taken up with my young daughter and our new puppy!