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Weekly Review (24th February to 2nd March)


reviewThe SpicyIP highlight of the week is Thomas’ post on Rare diseases and innovation. We chose it as the highlight of the week as it brings to light an often under-discussed topic in the pharma patent world, while also being a stark example of an area that the patent system is currently ill-equipped to deal with.

The last week was a busy one for our blog with some very interesting IP developments both in India as well as internationally. We began with a post by Shouvik on Abraxis BioScience LLC v. Union of India and Controller General of Patents, Design, Trademarks & Geographical Indications and Assistant Controller of Patents & Designs and M/S Natco Pharma Ltd. The decision, dated 20/1/2014 was delivered by IPAB and criticized the order of the Assistant Controller of Patents where the latter allowed opposition to a patent application without giving the applicant an opportunity to be heard, thereby violating the principles of natural justice.

Next, Anubha carried an update on the Ericsson v. Intex case. If you have been following this case right from its inception, you would recall that in 2013, Intex filed a complaint against Ericsson with the Competition Commission of India (CCI) alleging abuse of dominance by the Ericsson whilst negotiating a Standard Essential Patents (SEPs) licensing agreement. Intex, an Indian mobile handset maker complained that the terms of the agreement were highly unfair and discriminatory, and in particular claimed that the royalty rates demanded by Ericsson were extremely high. The CCI having made a prima facie determination of abuse of dominant position had ordered an investigation into the matter.

Ericsson filed a writ petition challenging the CCI’s order on 23/1/2014 and also through a separate writ petition challenged CCI’s jurisdiction to investigate the claim contending that the matter is one that can be dealt sufficiently by The Patents Act, 1970. A Division Bench of the Delhi HC has directed the Director General of CCI to refrain from passing any final order while the matter is pending before the Court.

We then had Spadika writing about the ‘Brahmos’ trademark dispute where the Delhi HC passed an order restraining FIIT JEE (a coaching institute for engineering entrance test preparation) from using the word ‘Brahmos’. It is interesting to note that the Delhi HC held that a well-known trademark even when used in the case of dissimilar goods/services nevertheless constitute trademark infringement under S. 29(4) of The Trademarks Act.

Thomas in a very interesting post discussed the disastrous consequences of a legislation which allows for press publishers to monetize their content for a fixed period of time. He argued that the copyright protection afforded in such a case would lead to monopolization of information and possible censorship by state-owned press and broadcasting systems.

After this, we carried a 2-part guest post by Punam Kadam where the research professional has analysed the basic principles of software patents including their treatment internationally, concluding that India needs to update its software patent regime in order to meet the concerns of the software industry.

Aparajita’s post on the Orchid trademark dispute was about the decision of the Madras HC which held that use of ‘Royal Orchid’ by respondent is not confusingly similar with the use of the trademark ‘The Orchid’ by the petitioners.

The default judgment of the London High Court against the law firm, Fox Mandal, ordering it to pay 100000 pounds has been set aside by The London High Court and no further appeal will be allowed. This was done on the ground of non-service of proceedings on the defendant (Fox Mandal) and was reported by Gopika here.

Mahindra Group has recently thrown open a million dollar challenge to innovators for providing solutions for traffic stress and electricity shortages. Publicized as ‘Rise Prize’, this is applauded as being a major step in promoting innovation. Gopika has blogged about this here, writing that philanthropic challenges such as these hold the key to incentivising socially beneficial innovation.

The Delhi HC recently passed an order in a suit for trademark infringement where it held that the impugned word ‘gati’ is a common word in Sanskrit which means ‘movement’ and cannot be trademarked. Accordingly, no interim relief could be granted by the Court in favour of the plaintiffs.

There was a lot of hullaballoo on the internet last week when a U.S. Circuit Court ordered Google to take down the movie ‘Innocence of Muslims’ from YouTube based on a copyright claim filed by actor, Cindy Garcia, whose 5 –second footage was used in the film. In passing the order of copyright infringement, the U.S. Circuit Court ruled that an actor has individual copyright in performance incorporated in a motion picture. Spadika has argued against the reasoning employed by the U.S. Circuit Court inasmuch as Cindy Garcia could not have owned copyright over the film when she lacked control over it.

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.

Devika Agarwal

Devika Agarwal

Devika is a Policy Analyst at Nasscom. She first started writing on Spicy IP in 2013 when she was awarded the Spicy IP Fellowship, which sparked her passion for writing on IP. Devika is interested in copyright and technology law.

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