SpicyIP Weekly Review (November Week 4)

Another relatively quiet week in the IP world has passed us as we go deeper into holiday season. Having said that though, there have been a few very notable developments in this last week.

Starting off, in what is definitely the highlight this last week, is the 5-6 hour hearing that Prof Shamnad Basheer received as an academic intervenor over a 2 day period in the much highlighted Novartis case presently before the Supreme Court. As Prashant writes, ‘His arguments (as expected) were logical, uncluttered, and with a delightful sprinkling of anecdotes and examples.’ The submissions can be found here (Part 1) and here (Part 2); and the summary can be found here

Prashant then took us through the dangers that granting ex-parte interim injunction may entail by pointing out flaws and questions in the granting of certain patents in the case of Issar Pharmaceuticals v. Vinod Dua. After noting that details of 2 of the 3 patents involved are not even accessible on the  patent office website, he proceeds to point out some serious doubts as to the reasons for granting the 3rd patent in the first place. Prima facie, it appears that this patent is not valid, yet, an interim injunction against the accused has already been granted. 

Kruttika then takes us through a very well analysed judgement in Star India v. Piyush Agarwal, wherein the Delhi High Court looks into the question of whether the Copyright Act prevents the defendants from updating their users on the score and fall of wickets through text messages even though exclusive 72 hour media rights are given to the plaintiffs. The court says that information from the broadcast falls within the public domain and is not protected by the Copyright Act, thus allowing of communication of this information to the public. In what Kruttika refers to as the “Maggi rule”, it also determined that the prescribed “period… by which the information can be no longer be said to be part of or so intimately associated to/with the first right of the broadcast of the plaintiff” is 2 minutes from the time of broadcast. 

On other news, Bangalore based Environmental Support Group (ESG) has finally decided to take action against the Union of India, the National Bio-diversity Authority, the Ministry of Environment and Forests, and others, by filing a public interest litigation for the non-prosecution of Monsanto’s Indian subsidiary, Mahyco. 
Prashant has covered the issues that ESG seeks to prosecute on as well as his thoughts on their their likelihood of success. He also notes in a follow up post that some ‘press-release journalism‘ has been happening over at Times of India. As he says, “I was amazed to notice that the entire news report in the Times of India, on ESG’s PIL, was a word for word reproduction of the press release put out by ESG, save for the last two and a half paragraphs of the press release which were not reproduced in the ToI report. The ToI report can be read over here and the ESG press release can be read over here.” 

Following this came the big news that Ms Prathiba Singh, founder of Singh & Singh, has been recognized as the foremost female IP lawyer by the Asia Women in Business Law Awards, celebrated by the Euromoney Legal Media Group, which also publishes Managing IP. The entire list can be accessed over here. We congratulate Ms Prathiba Singh on this terrific achievement. 

Prashant then brings our attention to a recent Madras High Court decision in a case brought by copyright owners in ‘Dhammu’ and ‘3’ against 15 ISPs regarding the issue of whether the ISPs would be protected under the ‘safe harbour’ provisions in S.79 of the IT Act, from having to comply with the John Doe orders. Justice Chandru shot down this argument, as well as arguments against the legality of ‘qua timet’ actions, the non-joinder of essential parties, and the legality of John Doe orders. Thus giving a victory to copyright holders. 

Finally, in another cricket based issue, Shouvik discusses the BCCI’s attempts at closing out photo press coverage of the on-going India-England test series. International News Agencies have risen up together against this move and have threatened to boycott their coverage of the series. It seems to me to be a ridiculous move by the BCCI and a clear attack on the freedom of media to report on such sporting events. Even the high profiled International Olympic Committee, notorious for being extra stringent with it’s IP rights, have condemned the move by BCCI. 

International Developments

On the international front, World Health Organization members have gotten together at WHO’s headquarters this week to look past the current patent system and conduct an open ended meeting to analyse the feasibility of new models for financing research and development for diseases lacking sufficient market incentives and public policies.

Meanwhile, IP Watch also brings us the good news of WIPO’s close approach to the adoption of a treaty for providing copyright exceptions to the visually impaired. This has taken about 2 years of negotiation so far. Though the developed countries have expressed satisfaction with the terms so far, the developing countries seem to have mixed reactions to the progress, though they have said that countries have come to the table with good faith and have shown flexibility. 

Over at the USPTO, some lingering rumours have proven to be true when a source inside the PTO confirmed that USPTO Director David Kappos will be stepping down from office in January 2013. I can’t claim to know much about the workings of the USPTO, but IP professionals across US have expressed regret over his parting from the USPTO. According to Dennis Crouch, Deputy Director Teresa Stanek Rea will likely be nominated into more permanently position after Kappos leaves. 

A topic often relevant but not discussed in detail has been written about by Neil Wilkof in his post on Patent Valuation over at the IP Finanace blog. He looks into some questions that I’ve pondered over myself – regarding how companies, especially those at the brink of bankruptcy (think Kodak), can value their assets as high as ~$2.6 billion dollars. It’s an interesting read and I would personally like to see more discussion around IP Valuation. 

And that seems to wrap up a rather quiet week on the international front! 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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