SpicyIP Weekly Review (June 2013, Week 5)

In a historic development, the negotiators at the WIPO Diplomatic Conference at Marrakesh last week concluded the ‘Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities’. The draft text of the treaty is available here. Several civil society organizations who have relentlessly fought for the treaty since 2008 were in boundless joy with the news. The negotiations were intense and faced huge roadblocks from publishing lobby in US and EU. Readers can soon expect a detailed analysis on the treaty. 
Pfizer’s testimony leads the way as US pressure on India increases (Part I & Part II)
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In an excellent two part post (here and here), Swaraj exposes the lies, misrepresentations and disingenuous claims against Indian’s IP policy from governmental and industry groups in the US. Leading the pack is Pfizer’s Chief IP Counsel, Roy Waldron, who recently in his testimony before US House of Representative accused India of violating TRIPS obligations and harming innovation by granting compulsory licenses. Waldron noted that the provision ‘effectively nullified the contributions of the whole discipline of pharmaceutical sciences’. In Part I, Swaraj dwells into fallacious allegations of TRIPS violations by India and demonstrates how this is nothing but a case of double standards by US. Subsequently, more than 150 members of the US Congress wrote to President Obama criticizing India’s patent regime and suggested action before WTO dispute settlement body. In Part II, Swaraj looks into several other reports emanating from US on India’s IP regime. 
Section 146 of the Patents Act, 1970 requires patentees to submit information relating to working of the patent to the Controller General every year. Finally, the Patent Office for the first time has uploaded the ‘Statements of Working’ filed by patentees for last year (i.e. 2012) on its website (here). One had to file an RTI application in order to obtain the information previously. As Prashant rightly states, this information is critical for evaluating the performance of patent system in India. 
The Delhi High Court granted yet another ex parte injunction in patent infringement suit against Aprica Pharmaceuticals on June 17, 2013. The injunction prevents Aprica from launching generic versions Merck’s Sitagliptin sold under brand names, Januvia and Janumet. Madhulika notes that the ‘vaguely’ worded order  neither discusses the patent claims nor finds infringement in any specific product. Incidentally, the High Court denied interim relief to Merck against Glenmark for the same drug, a fact which doesn’t find any mention in the latest order against Aprica. 
Online censorship continues
Anubha brought to our attention the recent order of the Department of Telecom (DoT) which directed ISPs to block 39 websites for hosting pornographic material. Yet again, the DoT passed the order callously without specifying any reasons for blocking the site. Incidentally, the Supreme Court has asked the IT Ministry and the Home Ministry to respond to a recent PIL seeking a ban on pornographic content on the internet and also criminalizing viewing as a non-bailable offense. 
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In a similar but unrelated incident, Moutshut.com filed a PIL earlier this year before the Supreme Court seeking orders to quash the abusive IT Rules (Intermediary Guidelines), 2011 and declaring them as violative of Articles 14, 19 and 21 of the Constitution. Mouthshut.com is a popular platform to review consumer products and services. Unfortunately, it had to face the brunt of the Bombay High Court recently after a complaint filed by Sharda University for alleged objectionable comments against them on the site.
UK based Solicitor and Head of EIP Legal, Gary Moss, analyses the recent decision of the European Commission (EC) to impose a whopping 160 million euro fine on Lundbeck and four generic manufacturers for entering into ‘reverse payment’ agreements. Ranbaxy is one of the four generic manufacturers slapped with 10.3 million euros for agreeing to delay generic version of Lundbeck’s blockbuster antidepressant, Citalopram in 2002. Lundbeck strongly disagreed with the Commissions’ decision and stated that: ‘Patent settlement agreements are efficiency enhancing and legitimate when there are bona fide grounds for dispute’. Ranbaxy too, expressed its disappointment and announced its intention to appeal before General Court of the European Union. The exact nature of violation of anti-trust law is unclear at this point. Moss concludes with raising pertinent questions on parameters the Commission would have employed to scrutinize settlement agreements against infringement suits. 
Gopika reported a recent success recorded by the Medicines Patent Pool (MPP) in assisting patent licensing negotiations between Gilead Sciences and Karnataka-based Shilpa Medicare. The UN backed MPP has been created to improve access to HIV/AIDS medicines in developing and under-developed countries by assisting in licensing negotiations between patent holders and generic drug manufacturers. This latest license agreement between Gilead and Shipla extends to manufacture and sale of five key HIV/AIDS patented medicines in over 100 countries. The royalty rate hovers between 3-5 percent on the market price.
Aparajita blogged on the copyright infringement dispute pending before the Bombay High Court pertaining to Sharukh Khan’s home production, Om Shanti Om. Prior to the movie release in 2007, a certain scriptwriter by the name Ajay Monga, alleged that the movie infringes his script titled ‘The Silent Movie’. Before moving to the Bombay High Court in 2008, Monga agitated the matter before the Film Writers Association which went in vain. The High Court, however, refused to grant an interim relief in 2008 as there was a considerable delay in filing the suit from the date when legal notice was served. In March this year, the Court framed the issues and asked Monga to submit evidence in support of his claim by 2nd of April. Subsequently, the High Court on April 18, 2013 dismissed the suit. However, the High Court restored the suit on June 18, 2013 after allowing a notice of motion from the Plaintiff’s lawyer with directions to pay a total of Rs. 20,000/- as cost to Defendants.  
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This guest post from award-winning journalist, Priyanka Pulla, explores the ban on use of endosulfan by the Kerala government. Many have attributed the tragedy in Kasargod, Kerala to the aerial spraying of pesticide, endosulfan (organochlorine class) which has been declared as persistent organic pollutant (POP). In a piece published in Open magazine, Ms. Pulla argued that there is no epidemiological evidence to establish any causal relationship between use of enodsulfan and diseases in Kasargod. In this guest post, Ms. Pulla explores if the Kerala government was correct in banning endosulfan by invoking the precautionary principle.
As per the Stockholm Convention, only a chemical which has a half-life of more than 6 months in soil (persistence) can be classified as POP in addition to three other factors. In a research paper authored by Ivan Kennedy of University of Sydney demonstrated that endosulfan has a half-life greater than 6 months when tested in a laboratory or in arctic regions. On the other hand, the half-life period is much lower than 6 months in tropical climates. Ms. Pulla queried three of scientists, whose works are believed to have been instrumental in listing endosulfan as POP, about Kennedy’s findings. Interestingly, two of studies were conducted in a laboratory and the other did not measure half-life at all. Furthermore, Crispin Halsall of Lancaster Environment Centre who supports the classification agreed with Kennedy’s arguments on half-life. 
What about alternatives to endosulfan? Ms. Pulla states that there is no data on safety of other alternatives to endosulfan proposed by the Stockholm Convention. Furthermore, cashew growers in Kasargod who switched to organic farming were apparently hit by tea-mosquito bugs.
As reported earlier, Venus Worldwide Entertainment Pvt. Ltd. and Phonographics Performance Limited (PPL) have jointly filed a writ petition challenging the constitutionality of Sections 31(1)(b), 31D and 33A(2) and their corresponding rules under the Copyright Rules, 2013. The petition is more or less similar to Super Cassettes Industries Ltd. (T-Series) challenge to compulsory licensing and statutory licensing scheme affecting music companies. This petition additionally challenges the right to appeal against tariff scheme prescribed by copyright societies under Section 33A(2). The role of Copyright Board in determining royalty rates and removing ‘unreasonable’ elements in prescribed tariff scheme is seen as unwarranted and unreasonable interference to freedom of contract. Furthermore, it argues that there is no public utility in the favourable treatment meted out to radio broadcasters who operate on purely commercial basis. Consequently, the provisions are challenged as violation of Articles 14, 19(1)(c), 19(1)(g), 21 and 300A. The contentions against Sections 31(1)(b) and 31D are similar to the ones raised by T-Series.

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