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Spicy IP Belated Weekly Review (1st to 7th December, 2014)


spicyip weekly review

Spicy IP Highlight of the Week!

The Spicy IP Highlight of the Week was Swaraj’s post on the dubious IPR think-tank which was constituted in November this year; what makes the think-tank dubious is that the members of the think-tank majorly are primarily corporate sector representatives and two of them lack IPR expertise. Further, while the think-tank had invited comments from interested persons in respect of a draft IPR policy for India, there was no draft made available to the public to comment on!

In a follow-up post, Swaraj highlighted how prior to the formation of the said think-tank, the Department of Industrial Policy and Promotion (DIPP) via a letter in July this year, had called upon three IPR experts, Dr Prabuddh Ganguly, Prof Shamnad Basheer, and Mr. Yogesh Pai, to formulate the National IPR Policy. Strangely, the draft of an IPR policy submitted by this earlier panel of three was completely side-lined by the DIPP thereafter.

The week began with Aparajita’s post on combination antibiotics where she analysed a Delhi High Court order wherein a patent was claimed on an invention which combined two incompatible antibiotics in a single unit with the help of stabilizing agents; a pre-grant opposition was filed on the ground that this invention was a mere admixture, lacked inventive step and was not an invention under section 3(d) of the Patents Act. The Court rejected the pre-grant opposition suit holding that, “An invention which relates on substantial and surprising improvement of a particular property need not also show advantages over the prior art with regard to other properties relevant to its, use, provided, the latter are maintained at a reasonable level so that the improvement is not completely offset by disadvantage in other respect…..”

Next, Gopika reported a judgment of the Madras High Court regarding copyright infringement of a Sanskrit hymn; while the Court asked the parties to resolve the dispute through mediation and conciliation, Gopika revisited the question of copyrightability of Sanskrit slokas and hymns and concluded that copyright protection is available to the author of a Sanskrit sloka/hymn where the author is known.

We then had a post by Mathews which would be of interest to scholars who are precluded from commercializing their theses by their universities.

Next, we had a post by Spadika where she analysed a Delhi High Court decision passed on 5th November holding that the defence under section 107A of the Patent Act (India’s Bolar Exemption defence) is valid even when the patented product is exported outside the country by a third party.

Lastly, we had a post by Rajiv Sir where he analysed a US Fed. Cir. decision in Ericsson v. D-Link, involving determination of FRAND royalties.

IP Developments from across the Globe:

  • Nike has sued its three former designers who left to join Adidas, on the ground that they used Nike’s trade secrets to sell themselves to Adidas.
  • Bisleri International which recently started manufacturing energy-drink by the name of ‘Urzza’ has been sued by a Pune-based company, Kutwal Foods Pvt. Ltd., for alleged trademark infringement; Kutwal sells dairy products, packaged drinking water and soft drinks under the trademark ‘Urja’.
  • In the wake of its ‘Make in India’ campaign, the Indian Government has filed for a trademark on the phrase ‘Make in India’ to prevent its misuse.
  • The European Union Trademark Office has upheld the trademark of the Rubik’s Cube, rejecting a German toy manufacturer’s claim that it was the toy’s technical rotating capability that made it unique and should therefore be protected by patent not trademark.
  • A panel of eleven Ninth Circuit judges is all set to hear oral arguments in a rehearing of Garcia v. Google; appellant, Cindy Lee Garcia, had filed a case against Google to remove the notorious ‘Innocence of Muslims’ video from YouTube on the ground that she holds a copyright in her five-second performance in the video, and because she was tricked into participating, that the video uses that performance without permission.

With this we conclude our Weekly Review. We would like to remind all IP-enthusiasts that the Spicy IP Fellowship 2015-2016 is open till 16th January, 2015!

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