SpicyIP Weekly Review (November Week 3)

With the country celebrating Diwali on 13 November, there have been a spate of public and Court holidays and as a result a much quieter week on the IP front.

Prashant started us off by doing this very interesting analytical post on the treatment of patients with Hepatitis C with Pegasys. Questioning the small percentage of patients who actually could afford the high price of the drug, Prashant suggests that the business model of innovator companies may need to be reassessed to suit the Indian market.
Rajiv then gave us data of the 97 decisions by the Controller at the Indian Patent Office in October 2012 highlighting a couple he thinks may interest our readers. This is usually my favourite post to read every month since Rajiv reproduces all this data which gives us an insight into emerging trends at the Patent Office.

Prashant also brought us the breaking news in the new big ticket pharma litigation between Cipla and Pfizer over the Sunitinib patent. In an SLP filed by Cipla in the Supreme Court, the Supreme Court has stayed the order of the Delhi High Court which restrained Cipla from selling a generic version of the Sunitinib patent. In what appears to be a huge procedural gaffe – no notice of the SLP was provided to Pfizer despite being on caveat. This promises to be an exciting battle and one that we will continue to track on the blog.

The highlight this week I think is Mathew’s post discussing the recent IPAB decision on the geographical indication application for the Payyanur ring. As our readers have undoubtedly already seen, the IPAB decision discusses the standing of parties filing as “producers” under the Geographical Indications Act. GI holders and applicants should definitely examine the decision in case they haven’t already.
Shamnad closes out the week by inviting our readers to what promises to be an outstanding conference to be held on November 27 & 28, 2012. The conference focuses on a very relevant topic ‘The Copyright Amendments, 2012: A fair balance?’. For more details, do look at Shamnad’s post here, and Sai’s earlier post about the event here.
International Developments
Globally, IP has been in the news for several reasons. But Google has a big role to play in the first three highlights.
IP licensing just got a lot more interesting. The RAND licensing cases have exploded and are all over the news. The case Apple v. Motorola concerns fixing of royalty for Motorola’s patents that are licensed under RAND terms which Apple believes are unreasonably high. A week ago, the solution-oriented Judge in the Apple v. Motorola case cancelled the trial “with prejudice” once it became apparent (much to her frustration) that Apple would not abide by the decision if they believed that the royalty fixed by the Court was too high. Now it appears that the parties are exploring alternative resolution methods such as negotiation and arbitration. This article rather ambitiously believes that if successful, this will end all licensing disputes. A tall claim especially since the Microsoft v. Motorola trial litigating similar licensing terms just got underway in front of a packed courtroom.

In a strange twist of fate, karma seems to be catching up with publishing houses. Usually the defendants in litigation with freelance authors about re-publication rights, publishing authors are lobbying to have Google pay for the reproduction of news articles in the face of steeply declining sales. Like the other wrangles that Google has managed to get itself into (and out of) over the years, this will definitely be an interesting spat to watch out for.
Google remaining in the news: The bi-annual publication of the Google Transparency Report is out. Apart from data on removal of copyrighted data in accordance with DMCA take-down provisions, the Report also published very interesting data about requests from governments seeking user data. With cloud services already converging with privacy and security concerns, it may interest our readers to know that USA and India (in that order) have made the most requests of this nature.
There has been a repeat of a curious decision in the US Fed. Circuit Courts (2d Circuit). After a remand of the Transocean v. Maeserk in 2010, Transocean II has come out with a stunning case stating that in some cases secondary indicia of obviousness may weigh greater than primary indicia. The decision has come out a few days ago, but this blogger shamefully admits that she has not had a chance to analyse it yet. Our friends at Patently-O however, have a handy analysis that you may want to read.
One of our nerdier bloggers has kindly pointed me in the direction of what is being dubbed “The Patent Prom” i.e. the Santa Clara University Software Patent Conference which had the who’s who of the patent world in the USA discuss issues and possible solutions to the problem of software patents. A short recapitulation can be found here. 
Last but definitely by no means the least (pun intended), Least Developed member Countries  of the WTO (led by Haiti) are seeking an indefinite extension from becoming TRIPS compliant. Going by the limbo India is currently stuck in, it will be interesting to see how this proceeds.

That’s the roundup for this week. Let us know if we’ve missed something. We look forward to receiving comments about any of our posts and/or the international highlights.

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