Spicy IP Weekly Review: March 2nd Week


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The second weekly review of March, 2013 starts with a post by Mathews P. George, where he introduced an article by Mr. Sriram Balasubrahmaniam from The Hindu, titled ‘First set up the labs, then dream the Nobel’. The author had criticized India’s unfavourable ecosystem for nurturing and retaining talent in science and technology and Mathews linked it up with his own views on the ‘Science, Technology and Innovation Policy, 2013’, where he’d noted the Policy’s lack of focus on development of R&D facilities in universities.

Shamnad then came up with an almost ‘live’ coverage of the decision by Justice Prabha Sridevan, Chariman of the IPAB, upholding India’s first compulsory license order (in the post TRIPS era) in favour of Natco, in the Bayer-Natco matter that has attracted its fair share of controversies so far. For some reason, Bayer’s counsels were resentful of the way Shamnad let the Spicy IP readers know of the decision as soon as it was pronounced, which, however, was not much different from their usual hostility towards him throughout this case.

This was followed by a post by Sai Vinod, examining the Competition Commission of India’s investigation of the anti-competitive practices alleged by Kamal Hassan against certain film distributors and exhibitors in relation to the simultaneous direct-to-home (DTH) release of his latest blockbuster film, Vishwaroopam. The post sought to analyze in detail the efficacy of such a simultaneous release strategy, from both the consumers’ and producers’ perspectives.

Gopika followed this up with an overview of a recent blocking order by Justice Arnold of the Chancery Division of the England and Wales High Court in a copyright case in favour of music companies against six UK ISPs u/s 97A of the Copyright, Designs and Patents Act, 1988. In course of this judgment, certain parameters were laid down for consideration before jurisdiction u/s 97A could be established, viz. that the Defendants were service providers, that the users and/or the operators of the websites infringe the copyright of the Claimants by using the Defendant’s services and that the Defendants had actual knowledge of their services being thus used.

A guest post was then put up, featuring a succinct review of a book penned by V.J. Taraporevala, titled Law of Intellectual Property (Thomson Reuters, New Delhi, 2012) by Senior Advocate Arvind Datar and Advocate Ananth Padmanabhan, practicing advocates at the Madras High Court.
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Prashant then reported the new entry in Saregama’s recent aggressive copyright enforcement. The music giant had recently sued Viacom on the ground that its latest production ‘Special 26’, had a scene where one of the lead actors uttered a few words for about 7 seconds from ‘Mere Sapno Ki Rani’, a song from the movie Aradhana over which Saregama had the copyright. The Calcutta High Court, however, declined to rule in Saregama’s favour.

Swaraj then announced the speaker panel list for the 2nd Annual Pharma IPR 2013 conference happening at Mumbai from 10th – 12th April, 2013, aimed for IP professionals from the pharma and biopharma industry to gain an in-depth understanding about evolving global IPR practices, updates on the patent regime and strategies to enter new and emerging markets. Spicy IP readers can even avail of special discounts for registration in this conference.

Swaraj followed this up with a brief overview of the well-received keynote speech by Justice Prabha Sridevan titled ‘Life of P.I. (Public Interest)’, in the MIP India and Innovation Forum recently held in New Delhi on March 7, 2013. In course of this speech, Justice Sridevan addressed several important issues such as compulsory licenses, purity of trademark registries, bio-prospecting, the IPAB and equitable conduct of applicants.

Next it was Aparajita’s turn to come up with an incisive case review of Lupin Ltd. v. Johnson & Johnson, wherein a Single Judge Bench of the Bombay High Court discussed whether it is permissible for courts to go into the question of validity of registration of a trademark at the stage of interlocutory orders, despite the presumption of validity created under Section 31 of the Trademarks Act, 1999.
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A guest post by Saranya Murugaiyan, an IP practitioner in the Madras high Court, then came up, in two parts (see here and here), with a great compilation of the entire Bayer-Natco debate and a detailed analysis of the IPAB upholding the compulsory license issued in favour of Natco.

A call for papers was then announced for the the 2nd International Conference on Management of Intellectual Property and Strategy to be jointly organized by the Shailesh J. Mehta School of Management of IIT Bombay and the Ministry of Human Resources and Development [MHRD] from January 30 to February 2, 2014, with a theme of “IP for Development: The emerging Paradigm”.
Another case review was then posted by Gopika, this time that of UOI v. Malhotra Book Depot, which dealt with the restoration of a trademark that had not been renewed since 1984, before the Delhi High Court. The trademark owner had successfully contended that the requirement of statutory notice in Form O-3 The Trade and Merchandise Marks Act, 1958, reminding expiration and possibility of renewal of trademark had not been issued and hence the Registrar could not deny restoration/renewal of the Trademark at this juncture.
Prashant then highlighted a few salient features of his latest working paper on the need to balance the data-exclusivity debate in India, especial regarding the Indian pharma industry and also invited comments from the readers on the same.
The discrepancy between APEDA’s inadequate official responses to Spicy IP regarding the overseas litigation that it is fighting at present regarding ‘basmati’ rice and the actual cases (numbering over 200 as per APEDA’s estimates of legal expenses) that are going on all over the world including Australia, Chile, France, Morocco, Greece, Portugal and Spain was then brought into light by Prashant once again, along with the question why the Indian G.I. Registry is not according the status of GI to basmati.
Shamnad then put up a brief post about the lessons that can be learned from the past experiences in Canada and New Zealand in matters similar to the DU copyright controversy.
It was then Aparajita’s turn to draw the readers’ attention to a recent article authored by Jonathan Band and Jonathan Gerafi titled ‘Foreign Ownership of Firms in IP-Intensive Industries’, wherein the authors have questioned the long-followed assumption that U.S. firms dominate domestic and foreign markets for IP products.

Madhulika then went ahead to let the readers know all about a letter in relation to the campaign for affordable Trastuzumab (a drug to combat breast cancer). Trastuzumab has already been recommended for compulsory licensing by the health ministry and the DIPP is still deliberating the issue. This letter, sent by the association of breast cancer survivors, NGO’s and health activists to the Commerce Minister, urged the latter to commemorate International Women’s Day 2013 with according the said license to the drug and expressed concern over the delay.

International events:
In the international front, the Japanese Patent Office has launched a welcome move by inviting public comments on the Draft Revision of Examination Guidelines for the “Requirements of Unity of Invention”, “Amendment that Changes a Special Technical Feature of an Invention”, etc.

Continuing on the same spirit of public participation, the EPO has also begun a transparent, inclusive and participative process to collect as much information as possible on the impact and effectiveness of amended Rule 36 EPC. The involvement of a wide range of parties appears to be vital to obtain a comprehensive picture of the global impact, of the October 2010 amendment.

Nokia has lost two patent suits that it had filed against HTC before the Mannheim Regional Court, including one concerning the use of Google Play in Android devices.

In a recent speech at the Asia Society in New York, the U.S. National Security Adviser Thomas Donilon alleged China of waging a campaign of cyber espionage against U.S. companies, including widespread theft of IP and trade secrets that is threatening to derail President Barack Obama’s second-term effort to improve US-China relationships.
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In an UK Court, Apple has won a lawsuit filed by Samsung as part of the two companies’ global patent battle over technology used on mobile devices, when the latter’s patents for technology allowing phones to send and receive information over third-generation mobile networks were invalidated. With the global battle between these two giants showing no sign of abatement, Samsung has spurred its lobbying efforts in the US further, increasing to $900,000 in 2012 from $150,000 in 2011.
That’s all for this week, readers! Happy reading till the next review.


Shouvik Kumar Guha

Shouvik Kumar Guha

Shouvik is at present employed as a Research Associate and a Teaching Assistant at The W.B. National University of Juridical Sciences, Kolkata. He has obtained his B.A. LL.B. (Hons.) degree from NUJS itself and is also currently pursuing his LL.M. degree from the same university. From his very year at law school, he had been attracted towards the discipline of Intellectual Property and that interest has been kindled further in course of time. The interface between IP and other disciplines such as Economics, Anti-trust Law, Human Rights, World Trade Law and the technological developments relating thereto, has especially caught his attention since then. He’s authored several papers on issues relating to IP and other legal disciplines for journals, books, magazines and conferences in national as well as international levels. He is also currently co-heading an organization called Lexbiosis, which is an endeavor meant to facilitate the collaboration between the legal industry and academia.

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