SpicyIP Weekly Review (February Week 4)

SpicyIP Posts 
 Image from here.
SpicyIP saw a truly ‘global’ week with posts covering deeply Indian issues like Ayurveda and modern drugs, trademarks on Indian Gods, poorly written decisions of the Indian Patent Office to international issues like the Trans Pacific Partnership Agreement and alleged DCMA violations.
The week started off with an informative and comprehensive guest post by Priyanka Pulla on problems that arise in developing modern drugs from Ayurveda (here). The fact that only few modern medicines have emerged from Ayurveda, spurred her into investigating the matter in detail. Her article in Open Magazine (here) as well as the post cites three main reasons for the same. In addition to these reasons, she opines that the USFDA’s long time requirement of herbal drugs undergoing the same tests as synthetic drugs has placed the odds against development of traditional medicines. She then goes on to highlight how and why Indian herbal-drug development has been slow, small and repetitive with not much coming out of research. Thereafter, the post emphasizes on the need to look at Ayurveda as an entire system of medicine that entails lifestyle changes and non-drug interventions. After this, Priyanka discusses a debatable point on whether herbal drugs should be subject to clinical trials despite them having hundreds of years of safety data. She concludes by raising another pertinent problem of lack of communication between Ayurvedic doctors and how they are slowly starting to communicate and form a network which is a step forward for herbal drug development. 
After this wonderfully researched and written post, Mathews brought to the notice of our readers (here) another extremely interesting issue. His post dealt with the legality of trademark protection for deities in the context of a trademark granted to Attukal Bhagawathy Temple Trust for a picture of its deity and for the title ‘Sabarimala of the Women’. The trademark was granted to the Trust in this case which leads Mathews to raise two pertinent issues challenging the validity of such a trademark. The first is in relation to the Trademark Act, 1999 and second in relation to Article 25 of the Constitution of India. With regard to the first challenge, he convincingly argues that the scheme of the Trademark Act does not contemplate such a trademark. Under Section 2(zb) of the Act, the mark should indicate a connection in the course of trade between the services and the proprietor. Through this argument Mathews establishes that a Trust is not the exclusive proprietor of temple and other religious services as devotees have as much stake in the said activities as the Trust. His second argument is with regard to Freedom of Religion guaranteed under Article 25 of the Constitution. He points out that if the Trust is given the said trademark, it would violate Article 25 as devotees would be precluded from using the picture and title thereby interfering with their fundamental right to profess, practice and propagate their religion. 
Image from here
After this ‘divine intervention’, we saw another absorbing post by Prashant (here) highlighting the consistency with which the Indian Patent Office comes out with poorly written and reasoned judgments. He examines the decision of the Controller in the Sugen v Cipla’s post-grant opposition and points out several junctures at which the Controller has failed to provide necessary authority and has almost as if sworn not to use precedents set by the IPAB to back its conclusions. With regard to Section 8 and non-disclosure of foreign patent-fillings, one of the main grounds of opposition, the Controller merely stated that the patentee has complied with Section 8 requirements as the WIPO website contains all the information and is freely accessible to the Controller. However, this reasoning is not backed by any precedent and is in patent violation of existing precedents which have mandated filling of documents by the patentee regardless of whether the controller or examiner has independent access to such documents (the Tata Chemicals case). Further, on its analysis of obviousness and lack of inventive step, the Controller stretches far and wide by citing European and American judgments and not a single Indian case law despite the standards of obviousness being different in different jurisdictions. With regard to inventive step, the decision disregards the importance of ‘economic significance’ in the definition without backing its reasoning with appropriate judicial authority. Thus, Prashant concludes by expressing his disdain not with this particular Controller but with the IPO in general due to the poor quality of decisions rendered by them. 
By mid-week SpicyIP brought to its readers interesting international developments, with Madhulika examining certain provisions of the Trans Pacific Partnership Agreement (here). The post highlights certain important provisions of this agreement such as – Article 1 which mandates each party to, at minimum, give effect to the chapter; Article 8.2 which requires inventions pertaining to plants, animals, therapeutic, diagnostics and surgical methods of treatment to be patent eligible; Article 8.1 which requires new forms, uses, or methods of using a known product to be patentable even if the invention does not result in enhancement of known efficacy. She speculates that such a provision was incorporated keeping in mind India’s controversial Section 3(d). The post then examines Article 8.10, TRIPS plus provisions included in the US IP Chapter of the TPP, Article 13.1 which deals with injunctions and Article 10 which deals with access to medicine. Madhulika points out that though India is not part of the negotiations, this TPP may well affect India’s interests as it may be coerced into becoming a member if TPP nations start imposing membership as a precondition to bilateral trade agreements. 
After this insightful post, the week ended with Anubha’s tidbit (here) on Dr. Anil Potti’s posts being restored on Retraction Watch. Retraction Watch a website dedicated to publishing academic paper retractions had received a DCMA takedown notice for apparently 10 copied posts. Dr. Potti contacted Retraction Watch and expressed his helplessness and innocence in the alleged copyright violations. Though his posts have been successfully restored, these incidents show the ease with which DCMA procedures can be abused.
International Developments
Image from here
Bowman v Monsanto in the US Supreme Court – how far can patents reach? The US Supreme Court is hearing an interesting case pertaining to a soybean farmer, Bowman, and Monsanto who owns a patent over a particular variety of soybean seeds. As with all living things, seeds grow into plants which in turn produce new seeds. Can Monsanto’s patent extend to these newly and naturally produced seeds? Can it make farmers sign a contract promising that they will not replant any of the soybeans that they harvest? Monsanto clearly thinks so as it wants farmers to buy a fresh batch of seeds every time they plant a crop – and not grow their own. Is planting a seed equal to copying and to what extent can the doctrine of ‘patent exhaustion’ be pushed? 
Boundless challenges book publishers – in another step towards free and accessible content, Boundless a start up that recreates expensive college textbooks using free content from Creative Commons and Open Educational Resources(OER) has fought back against a copyright infringement suit brought against it by three major publishers – Macmillan, Pearson and Cengage. Boundless denies copyright infringement and argues that all the content of its textbooks is in the public domain hence not protected by copyright. They allege that this suit is a tactic employed by publishers to stifle initiatives like theirs. The result of the trial will be huge for OER. 
Twitter’s new Innovator’s Patent Agreement (IPA) seeks to transform typical assignment agreements between engineers and the company. Employees generally sign agreements whereby they agree to sell, assign and transfer all rights, interests and titles in their inventions to the company. This gives the company full control over all patents. Companies use patents as tools to offensively restrict market activity and also as a monetization strategy. All these decisions are out of the control of the original inventors due to the contract signed by them. However, Twitter has claimed that through the IPA though the inventor still assigns his rights to the company, the company also makes some promises in return. These promises include – a promise not to sue anyone unless for a defensive purpose, patents cannot be used offensively without the prior permission of the inventor, patents can only be used as the original inventor intended and inventors are empowered to enforce promises made by the company. This they claim will ensure that patents will be used only as a shield and not as a weapon. 
Ashby Donald and othrs. v. France – Copyright v Freedom of speech and expression – Ashby Donald and the other applicants in the present case were fashion photographers. They took pictures at fashion shows in Paris in 2003 and published the same on a website Viewfinder. They were sued for copyright infringement by fashion houses for publication without prior permission. The Court of Appeal of Paris ordered them to pay fines and awarded damages to the fashion houses. The Supreme Court dismissed the applicants arguments based on Article 10 of the European Convention (freedom of speech and expression) and was of the opinion that the Court of Appeals had justified its reasoning sufficiently. So, the applicants could not rely on the exceptions carved out in French Copyright Law regarding publication of works exclusively for news reporting and information purposes. In the European Court, the challenge with regard to violation of Article 10 of the European Convention was held maintainable. However, on merits the Court found no violation of Article 10. It is interesting to note that conviction for breach of copyright could be considered an interference with Article 10 unless it satisfies the three conditions of – ‘necessary in a democratic society, being prescribed by law and pursuing a legitimate aim’. 
Germany facing YouTube problems – according to OpenDataCity more than 60% of the top 1,000 YouTube videos are unavailable in Germany because Google finds it legally and financially risky to allow the same as it assumes music rights might be owned by GEMA (Germany’s primary performing rights organization).The disputes between GEMA and Google are ongoing and pertains mainly to rights represented by GEMA and to the royalty fee structure demanded by GEMA. Talks between both the parties have ‘broken off’ and GEMA has taken the dispute to the Arbitration Board of the German Patent and Trademark Office.

Aparajita Lath

Aparajita graduated from the WB National University of Juridical Sciences, Kolkata. She was formerly an editor of the NUJS Law Review. She is a lawyer based in Bangalore. All views expressed by her on the blog are her personal views.

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