This week, SpicyIP covered an array of topics ranging across the spectrum of IP Law.
The SpicyIP story of the week is Aparajita’s post covering the report by the National Council of Applied Research on Impact of Parallel Import on Copyrighted Works. It was opined that this report balances the concerns of producers and consumers, and urges stakeholders to come to an amicable solution, failing which an addition of the proviso to S.2(m) of the Copyright Act would be warranted.
The week began with Thomas covering the Delhi High Court’s decision vacating the injunction granted in favour of Steelbird with respect to a particular design of helmet. The Court held that the design did not meet the novelty or originality tests as required by S.19 of the Designs Act.
Gopika then covered the news that the Delhi High Court had stayed the release of Gulaab Gang on the ground that since the name was based on the activist group ‘Gulabi Gang’, it violated activist Sampat Pal’s copyright over the name.
We then carried a guest post by Advocate Abhishek Pandurangi on the recent amendments to the Patent Rules. Among the changes mentioned was the hike in fees and differential fees for online and hard copy filing (with higher fees for the latter). It was noted that the Rules are silent on aspects such as the prejudice caused to the applicant who is forced to file a hard copy due in situations such as the server of the Patent Office being down.
Next was another guest post by Shashank Mangal, a 4th year student at ILS Pune on a domain name dispute initiated by RPG Life Sciences Ltd against James Mathe, where the WIPO held that this was a case of ‘reverse domain name hijacking’, i.e. the complaint was filed in bad faith for depriving the domain name holder of his domain name.
Rajiv then wrote an interest post on the patentability of computer programs and S.3(k), in light of the recent draft guidelines issued by the Patent Office on the topic. He concluded that, “ software may be patentable if it is related to the functioning of the Physical layer – Transport layers. However, if the software relates to upper layers, Application, Presentation layers, it may not be so. The position with respect to Session layer may not be as clear as it is the interface between Application / Presentation layers with that of the Transport layer.”
This was followed by Mathews’ post on the recent decision of the Delhi High Court returning the plaint filed by Teva Pharmaceuticals Industries Ltd and Others against NATCO seeking permanent injunction restraining them from manufacturing Glatiramer Acetate product (Copaxone) for sale in the US. The High Court returned the plaint on the ground of lack of jurisdiction, as there was no averment in the plaint that the Indian process patent was being infringed within its jurisdiction.
Finally, we carried round 1 of Swaraj’s 2-part series titled ‘Taking IP on a Spin’. In this interesting post, Swaraj discussed how major IP Lobbies create a thaumatrope (the perception caused when two separate images are spun about an axis so as to give the appearance of being one combined image), with the two images being information economics and private property, to propagate the misleading message that a maximalist IP regime is essential for progress.
International Developments
Donald Trump has made news for winning a trademark suit against an Indonesian businessman. The latter sought to register the trademark TRUMPS with respect to ties and gloves. On deciding a suit for cancellation filed by Mr. Trump, the Court held that Mr. Trump is a “famous person” within the meaning of the Indonesian Trademark Act, and that the registration of TRUMPS must be cancelled as it was “too similar” to Mr. Trump’s name.
In other news, incumbent Director General of WIPO, Francis Gerry, has been nominated to continue in his post as Director until 2020. Gerry has emphasised that in his second term, among the areas he wants to focus on are the digital marketplace and improving the organisational performance of WIPO.
The latest in the Apple v. Samsung patent dispute, a US judge has refused to grant an injunction in favour of Apple banning the import of Samsung’s gadgets. This dispute was regarding the older versions of Samsung’s products, and the judge held that Apple has not sufficiently shown that import of these products would cause irreparable harm to Apple. Further, it was held that Apple had not demonstrated that the features such as finger gesture and scrolling (which the dispute is about) were key selling points.
Finally, in the case Suprema Inc and Mentalix v. US International Trade Commission and Cross Match Tech involving a patent dispute over a fingerprint scan methodology, a Federal Court has held that USITC’s power extends only to block articles that are infringing at the point of importation. In this case, the alleged infringement took place after importation, when Mentalix combined the hardware imported by Suprema with its software to create the final product. The USITC has moved for a re-hearing, arguing that inducement can also be infringement.
With this, we come to the end of our spicy review for the last week. To keep abreast with the latest developments in IP, subscribe to SpicyIP here.
