SpicyIP Weekly Review (October 30-November 5)

As a result of a large output on the blog in the past week, I have the difficult task of choosing highlights. In my humble opinion, there are multiple posts which are worthy of your attention. Nevertheless, I shall pick a few as highlights.

The thematic highlights of the piece are Prof. Basheer and Dr. Arul’s pieces on the relationship between the industry and the academia. In a lucid two part post (here and here), Prof. Basheer, while evaluating the propriety of industry funding, discussed the following

i. His experience with industry funding.
ii. The possibility of a truly “independent” donor.
iii. Instances of funding drying up, given the lack of immediate benefits to industry donors.
iv. Alternative approaches, such as multiple donor systems and greater transparency, to ensure greater legitimacy and independence of academic works.

In the next thematic highlight, Dr. Arul George Scaria, wrote a guest post on the pros and cons of industry funding academia. His discussion points were:

i. Inevitability of industry funding, given the dearth of resources.
ii. The significance of releasing identity to donors to ensure appropriate scrutiny.
iii. Propriety of judges attending industry funded conferences.
iv: His personal experiences with industry funding.
v. Finally, he argues that given the inevitability of industry funding, our best bet is to promote transparency regarding funding and promote core research values in scholars.

Another work which requires special mention is Balaji’s two part post (here and here), on the tension between the traditional jurisprudence behind injunctive relief  and the concept of exclusion inherent in patent regimes. Though it requires a patient reader to grasp the crux of the piece, it requires to be given special mention for the sheer depth of analysis. Balaji discusses the following:

i. The case of Ebay v. MercExchange, and whether the division effectively allows courts to produce compulsory licenses, by not passing injunction orders.
ii. Whether the above law is in compliance with Art. 30 and 31 of the TRIPS agreement.
iii. India’s diplomatic stance on the issue.
iv. Finally, after discussing the various conditions for issuing compulsory licenses under the TRIPS, he opines that the Ebay regime is not inconsistent with the TRIPS, by virtue of  Article. 44.2.

The two topical highlights of the week are Prashant and Rahul’s pieces. Both deal with complicated areas, but do a great job of keeping it accessible and engaging.

Prashant, while examining a proposed change in the Drugs and Cosmetics Rules, discussed the following:

i. The effects of the rule change, that allows “new drugs” to maintain their status for 10 years.
ii. The possibility of waiving certain types of trials and the compulsory trials required of generics manufacturers, in order to enter the market. He lucidly traverses through the complex regulations and explains every technical term within the piece itself.
iii. Lastly, he concludes that the new rule does not create a “data exclusivity regime” and rather suggests that the requirement of BA/BE trials should be made compulsory for perpetuity instead of just 10 years.

Covering YouTube’s take down of SR Bros. Entertainment’s channel, Rahul, in the second topical highlight, delved into:

i. Other Instances of take downs.
ii. YouTube’s procedure concerning take downs.
iii. Problems affiliated with automated procedures, such as excessive copyright enforcement, transparency issues and scope for misuse by malicious competitors.
iv. The setting up of a new committee by YouTube to review the procedure.

Next up, Inika, while discussing a Karnataka HC order that dismissed an appeal filed by Inaphase against ABB India, provided a brief overview of the following:

i. Confidential Information infringement claim.
ii. Trade Mark infringement claim.
iii. Patent infringement claim.
iv. Role of appellate courts.

Up next, Balu brought us a brief overview of recent developments concerning some of India’s regulatory bodies:

i. DOP’s (Dept. of Pharmaceuticals) attempt to garner inputs from ministries.
ii. DIPP’s (Dept. of Industrial Promotion and Policy) apparent examination of the Patent Act and the non-existent conflict between compulsory licensing and the “reasonably affordable” condition.
iii. The SC’s upholding of the DPCO (Drug Price Control Order) notice, 1995.

Subsequently, Pankhuri succinctly argued that Justice Endlaw’s DU Photocopy case judgment does not authorize photocopying entire books, contrary to rumours, for the following reasons:

i. The said issue was not up for adjudication in front of the court.
ii. The court explicitly acknowledge that the issue in front of it had got nothing to do with the photocopying of entire books and dealt only with photocopying course packs.
iii. The conclusion of the court restricted itself to course packs, explicitly.
iv. Lastly, she comments that the extent of authorized copying was not laid down and suggests application of the reasonable nexus test.

Vasundhara comprehensively summarized the arguments, holding and reasoning of the IPRS v. Aditya Pandey judgment. This is another one of quite a few pieces this week that have had quite rigorous analysis.The core issue, adjudicated upon, was regarding the rights of composers and lyricists vis a vis the communications of their works to the public. After summarizing, Vasundhara notes the following observations:

i. The judgment is inconsistent with international conventions.
ii. The judgment omits a vast section of artists by allowing collection of royalty by only composers.
iii. Locus standi of IPRS was shaky.

Next, we had an insightful anonymous guest post on YouTube’s apprehension in revealing the IP address of an individual who posted allegedly defamatory content, despite the existence of a court order. After providing a brief overview of the facts, the author :

i. Argues that expunging the data is not in violation of YouTube’s privacy policy.
ii. Discusses whether YouTube should be required to take down allegedly infringing material across all jurisdictions or only in the jurisdiction in which is declared problematic.

The events which were brought to your notice this week include: 

GIAN course on IPRs and International Economics Development
Dec 12th-16th, 2016.
IIT, Indore
Registration Last Date: November 7th.
Details of payment and further course details here.

Constitutional Law Olympiad by ILS & MKCL
Registration Last Date: December 31st, 2016.
Registration fee: Rs. 500/-.
Further details here.

International Developments

1. Qualcomm targets Chinese Smartphone maker Meizu with complaints at ITC, foreign courts.
2. Federal Circuit holds software claims to be patent-eligible because they recite a technological solution to a technological problem.
3. Trump targeted in copyright infringement action over Skittles tweet.
4. TRIPS Council: Differing Views on IP Education; New Database Project Launched.