Spicy IP Weekly Review: 4th Week of April, 2013

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The weekly review starts with a post by Gopika on the UK Supreme Court decision in Public Relations Consultants Association Limited v. The Newspaper Licensing Agency Limited, a case that dealt with whether copyright infringement proceedings could be brought against internet users for merely viewing copyrighted content on a website if they did not have a license from the owners of the copyright. The five judge bench unanimously held that such proceedings could not be brought against such internet users, given the exemption under Article 5.1 of the Directive 2001/29/EC.

Anubha followed this up with an update on the Indo-EU FTA negotiations, including India’s positive stance that it cannot go beyond the parameters of the TRIPS and its domestic IPR laws and its demand of being declared a data-secure country. The two sides have decided to meet again in June, 2013 to continue the talks. She remarked about the slow pace of the negotiations and voiced the concern that EU may end up enjoying double benefits if its demands for duty cuts in auto, wines and spirits and dairy products, as well as an assurance for facilitating registration of their GIs are accepted, which would in turn adversely affect the domestic industry.

Prashant then mooted the question of whether Indian Patent Agents, who accepted citizenship of other countries, while retaining the status of ‘Overseas Citizen of India’, could continue to be recognized as registered Indian Patent Agents. He referred to the matter of Mr. Naren Thappeta, whose name had been removed from the patent agent register because he had accepted U.S. Citizenship and moved to an OCI. The Controller General had finally accepted Thappeta’s argument that as per the Patent Act, 1970, Indian citizenship was a requirement only for qualifying as a patent agent and that the Act did not state that a patent agent could be removed from the Register for accepting the citizenship of another country.

It was then the turn of a detailed guest post by Chaitanya Ramachandran, analysing the argument made by T-Series in its constitutional challenge against Section 31(1)(b) and Section 31D of the Copyright Act (both provisions deal with compulsory licenses). Section 31(1)(b) sets out the regime for the compulsory licensing of works that have been withheld from the public. T-Series argues that this provision privileges the interests of broadcasters (who it claims have previously abused it for financial gain at the cost of copyright owners). S.31D creates a statutory licensing regime that allows compliant broadcasters to broadcast any literary and musical works or sound recordings. T-Series’ arguments against both these provisions can be classified under the two broad headings of natural justice and unconstitutionality (being violative of Arts. 14, 19(1)(g), 21, and 300A). The two points that were highlighted about T-Series’ challenges include the question whether mandatory licensing scheme introduced by the 2012 amendments amount to a solution in search of a problem and whether lowering the revenue generated in favour of copyright owners from licensing royalties by fiat will cause irreparable harm to the owners. 
This post also brought to us the first set of Spicy Comments of the week, in terms of quite an informative discussion between Anushree Rauta, Udit and Chaitanya himself, about issues such as whether Rule 31 of the Copyright Rules is sufficient to provide the fair hearing that T-Series has claimed to be lacking in S. 31D, and the possible reasons for T-Series not posing a challenge to the amended proviso to S. 33, among others.

Madhulika then presented a very well-structured analysis of an IPAB decision wherein the PAB had upheld the appeal filed by Thomson Reuters Global Resources against the Assistant Controller’s decision rejecting Thomson Reuters’ patent application entitled “Systems, Methods, Interfaces and Software for Extending Search Results beyond initial query-defined boundaries.” She also emphasized that the patent prosecution procedure at the Indian patent office at present leaves much to be desired in terms of articulation skills, logical and analytical rigor and that there seems to be a dearth of training programs for quasi-judicial authorities like patent officials.

This was followed by a post by Gopika on a trademark dispute between Swiss multinational Societe des Produits Nestle S.A (hereafter Nestle) and Kolkata based Kit Kat Food Products over the use of the trademark ‘Kit Kat’. The IPAB had ruled this one in favour of Nestle being the rightful user of the mark.

Prashant then reported a story carried by the Hindu about a mandate by the All India Council of Technical Education (AICTE) to all the engineering institutes under it to install and use Microsoft Office 365, a productivity suite. Hindu, however, had deviated considerably from accuracy regarding considerable part of the story, when it had referred to this free-of-cost service by Microsoft to be considerably expensive (a clarification was published the next day). Prashant also wondered whether Hindu’s claim of this move driving a nail in the coffin of the open-source movement in these colleges (especially the rural ones) was not exaggerated. Although this was obviously a marketing move by Microsoft, one could scarcely deny its popularity and preference level over open source software in the bulk of the student community in India –nor was this move preventing the students to use open source software themselves if they chose to.
The second set of Spicy Comments arose surrounding the open source v. Microsoft debate, with two of our readers, Sridhar Gautam and Harjodh Singh, being quite vocal to condemn this ‘monopolistic’ action by Microsoft and AICTE facilitating the same.

Aparajita quickly put up a tid-bit story about the Supreme Court having allowed a stay order against the release of Zanjeer 2.0 by Amit Mehra, till the arbitration procedure between the parties (Amit Mehra and Sumeet and Puneet Mehra) becomes complete. The process was directed to be expedited and completed within the next six weeks.

Mathews’ turn came next when he reported the latest updates on the trademark dispute surrounding Darjeeling Lounge, involving ITC Ltd., wherein the IPAB has reverted the matter back to the Trademark Registrar, requiring ITC to file evidence showing why its counter-statement should not be considered time-barred. The IPAB, however, did not look into the merits about whether the mark can be registered or not.

I then followed up with a report of the various media coverage of the DU Copyright controversy, including reports from the Economic Times, the TOI, Hindu (an op-ed by Shamnad himself) and Al-Jazeera, reflecting on various facets of the controversy.

Finally, Prashant has reported just some time back on yet another piece of pharmaceutical legislation in India, wherein Symed Labs Ltd. has sued Glenmark Pharmaceuticals Laboratories before the Delhi High Court for allegedly infringing two of its patents, granted for “Novel intermediates for linezolid and related compounds” and for “A novel process for the preparation of linezolid and related compounds” respectively. Symed has claimed to have found certain compounds in Glenmark’s product which indicate that it has used Symed’s patented process, while Glenmark has accused Symed of not informing the court that it was aware of Glenmark manufacturing linezolid since 2005 and that Glenmark was also purchasing the linezolid from Symed as late as 18th April, 2012. Prashant has also pointed out that both these parties have been magnets for patent litigation in the recent past. An interesting point that he’s drawn our attention to is that the recent surge in patent litigation between Indian pharmaceutical companies is a sign of increasing competition between these companies and surprisingly, it is the smaller companies which are more aggressive in suing for patent infringement.

International Developments:

In the international arena, WIPO has successfully come up with a revised version of the Text on Traditional Knowledge Protection on the last day of the 24th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), which met from 22-26 April, 2013. The text is due to be transmitted to the WIPO General Assembly in September, 2013. There still remain a few kinks in the text to be smoothed out, though, judging from the reaction of the delegates.

The Organization for an International Geographical Indications Network (oriGIn), a producers’ group lobbying in favour of GI, has issued a preliminary list of candidate GIs in the United States, just ahead of a the WIPO Working Group on the Development of the Lisbon System meeting. The list takes a particular look at American wines and includes Michigan apples, Idaho potatoes, Louisiana shrimp, Wisconsin ginseng, and North American wild blueberries (specifically a type found in Maine), Wisconsin cheese, and Florida oranges.

An unfortunate development indicates that the participation of indigenous peoples at the United Nations World Intellectual Property Organization has become compromised as the voluntary fund allowing the organisation to invite indigenous peoples representatives is reaching the end of its financial tether. The fund was created in 2005 to support the participation of indigenous peoples’ representatives and has benefitted from different contributors including Australia, the Christensen Fund, France, Norway, South Africa, and Switzerland. However, beyond IGC 24, there appears to be no longer sufficient funding to cover the participation of any indigenous representative to any future session of the IGC.

In a fascinating turn of events, WIPO is making moves to demystify 3D printing technology, with experts being asked to discuss about its potential and limits in a panel discussion. On April 25, 2013, the WIPO building hosted a uncommon display of surprising objects, including a foldable seat made of plastic that once folded vaguely resembles an umbrella, a pair of improbable antique lace high heels plastic shoes, and a collection of equally strange items, all of which were made with 3D printing technology.

Apple has meanwhile won a court ruling that it hasn’t infringed patent claims brought by IP licensing firm Golden Bridge Technology Inc. in the matter of Golden Bridge Technology Inc. v. AT&T Inc., in the US District Court of Delaware.

Finally, in the latest oral hearing before the US Supreme Court in the matter of Association for Molecular Pathology v. Myriad Genetics, while the consensus appeared to be prevailing against gene patenting, yet there were also indications that the court might issue a narrow decision which would allow several instances of such patenting. In case of such a development, the US regime would inch closer to other jurisdictions relating to this issue, although problems limiting patent rights in order to protect the public interest will continue to plague US.

That’s all for this week, folks! See you on the first weekend of May with yet another set of interesting IP developments locally and globally!

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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