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SpicyIP Highlights: September-December, 2014


2014 has been a great year for SpicyIP! We’ve enjoyed the latter half in particular, as we’ve been able to bring you several high impact developments – several not being mentioned in the mainstream media till after our analysis, and some not reported in MSM at all! As we continue our journey through the last month of 2014, we felt it would be worthwhile to recap these posts from September till date for our readers. As it would be impractical to put out an exhaustive recap – I’ve focused on ones that have garnered the significant attention on SpicyIP, as well as a few that are of special significance to the SpicyIP team. In no particular order:

Think Tank and National IPR Policy

This month, Swaraj has put out a couple of posts that discussed the new IPR think tank constituted for drafting the national IPR policy. The posts revolved around the fact that a Panel comprised of IP experts had been constituted earlier in the year for this exact same purpose, the drafts submitted by them being ignored/ not considered and the composition of the new think tank. This is an extremely hot topic with issues of conflict of interest that mainstream media has highlighted  For more details, you can read our two posts: 1. National IPR Think tank – What’s going on? and 2. The Draft IP Policy that’s MIA, & more on the Think Tank

vrkrishnaiyerJustice VR Krishna Iyer and IP

On the 6th of December, Justice Krishna Iyer passed away at the age of 100. In his honour, Spadika put out a post on his IPR legacy, namelyhis contribution to the framing of Section 3(d) of the Patents Act. The original amendment of S. 3(d) did not provide for the enhancement of known efficacy standard. However, the DIPP sent a note containing the revised S. 3(d) which included this standard. The note credited Justice V R Krishna Iyer as the architect behind this provision. His foresight was clearly seen in the Novartis case where the interpretation of this standard became the crux of the controversy. Read Spadika’s post here: Justice VR Krishna Iyer’s IPR Legacy: S.3(d) of the Indian Patent Act

BIS:

In November, we blogged about the petition filed by Mr. Carl Malamud at Public.Resource.org along with Mr Sam Pitroda, Dr Sushant Sinha, Prof Dhrubajyoti Sen, Prof T.I. Eldho, Mr Srinivas Kodali, Dr Vinton G. Cerf and Swaraj to make the standards published by the Bureau of Indian Standards freely available to the public. Thomas also blogged on the issues of copyrightability of the Standards and the issue of whether infringement arose when Mr. Malamud uploaded the documents of the Bureau online. You can read these here: 1. Petition for Freeing “Standards” for Public Use  and 2. The BIS, Standards and Copyright. You can also view a new op-ed on the topic by Mr. Malamud here.

Ericsson and the FRAND litigation:

Rupali posted about the judgment of the Delhi High Court in the interim applications pending in the patent infringement suit filed by Ericsson against Micromax. This is one of the many patent infringement suits filed by Ericsson. Their suit against Intex was reported by Anubha. The suit against Xiaomi and the consequent injunction was reported by me just yesterday. All of these are FRAND related cases. If our readers wish to read about FRAND, they should check out Rajiv’s tripartite post here, here and here.

Dasatinib and the Compulsory Licence conundrum

Prof Basheer and Madhulika wrote a post about the tussle between the Health Ministry and the DIPP over the issue of compulsory licensing of Dasatinib. The DIPP’s opposition to the compulsory license appears to stem from the concerns that such a license would create trade and foreign policy problems with the United States. The post dealt with the issues of interpretation of national emergency and extreme urgency along with public non-commercial use. The question of whether S. 84 which is a narrower provision requiring patent abuse could be invoked was also discussed. Readers may find it interesting to read this post in the context of the Cipla- Novartis controversy regarding revocation of Novartis’s patent.

USTR and the Out of Cycle Review

The next main issue that SpicyIP blogged was the question of whether the US was dictating terms to India on its domestic IP regime. Swaraj blogged on the US Trade Representative’s decision to proceed with an unilateral ‘Out of Cycle Review’ and the problems of the same. Interestingly, the Indian Government immediately retorted that it would not cooperate with the USA in this unilateral process. However, the Office of the USTR had invited comments from the public on the robustness of India’s IP regime. Anubha posted on the submissions made by the public on the same.

Infosys Prize

This was undoubtedly the best SpicyIP has had all year! Prof. Shamnad Basheer was awarded the Infosys Prize in the Humanities category this year for his work on IP as well as in making legal education more accessible through IDIA. Prof Amartya Sen’s kind words on the balanced, holistic approach of Prof. Basheer as well as the blog towards IP is the most welcome praise we have had this year. You can read the congratulatory message by Prof. Sen here.

Nitto Denko

Madhulika and Anubha wrote about the Delhi High Court matter of Nitto Denko v. UOI, which dealt with the issue of inordinate delays in the Patent Office in the examination of patent applications and issuance of FERs (first examination reports). The Delhi High Court issued directions aimed at revamping the functioning of the Patent Office. The posts can be accessed here and here.

NBER Working Paper

The National Bureau of Economic Research (NBER) came out with a working paper on Indian pharma which concluded that Indian companies were intentionally sending lower quality drugs to the African market. Reacting to this, the Indian Govt claimed it would take legal action against the authors of the paper. Both these issues were addressed on SpicyIP – First by Swaraj, who severely critiqued the methodology used (Trouble Brewing around NBER Paper on Indian Pharma – Part I) followed by special guest author, Gautam Bhatia writing about the unlikelihood of any defamation suit holding up against the authors (Trouble Brewing around NBER Paper on Indian Pharma – Part II). SpicyIP then invited the authors to respond to these posts if they wished to do so. The authors of the NBER paper sent across a response which was published as a guest post here: “India’s misguided response to our findings on the quality of drug exports.”

Cancer drug price is NOT going from Rs 8000 to Rs 1.08lakhs!

The post with the above title was one of the posts that went viral on social media this year. In this post, Swaraj corrected a DNA article that stated that the price had gone up. The post also discussed the issue of the withdrawal of the cap on the NPPA’s (National Pharmaceutical Pricing Authority) power to control prices of certain drugs in public interest, which had been previously covered by Madhulika. The decision to withdraw the guidelines has been challenged before the Delhi High Court as being arbitrary, irrational and mala fide by the All India Drug Action Network (AIDAN) via PIL. The details of the same can be found in Rupali’s post available here.

Indian Generics and a New Drug Era? 

Looking at the licensing agreements signed between Gilead, a leading US pharma company and seven generic Indian companies to manufacture and distribute an important antiviral medicine in several low and middle income countries, Prof Basheer wrote on the changing dynamics between Big Pharma and Indian generics. The piece argued that the government should take a more proactive role to ensure that there is affordable access to health care. The post can be accessed here: The Gilead Licenses and a New Drug Era?

Patent Revocation

Early November, the Delhi High Court came out with a significant decision which stated that a patentee’s non compliance with Section 8, Patents Act would not lead to automatic revocation of its patent under Section 64(1)(m). The details of the decision in the matter of  Sukesh Behl v. Philips can be found in Aparajita’s post here.

The IPAB Rules that haven’t seen the light of day

SpicyIP unearthed a set of IPAB rules drafted by former IPAB Chairman, Justice Prabha Sridevan two years ago, which havent been published or adopted by the Government yet. The benefits of these rules to the litigants has also been discussed by Spadika here: The Proposed Revised IPAB Rules That Need to See the Light of Day.

Rajinikanth and personality rightsrajinipic

The day before the Superstar’s birthday and release of his new movie, ‘Lingaa’ which has seen its fair share of IP litigation seems to be a good time to ruminate on the suit he filed in the Madras High Court on the issue of personality rights. He invoked personality rights to obtain a stay on the film ‘Main Hoon Rajinikanth’ which he claimed exploited his name, reputation and goodwill in a defamatory fashion and infringed on his personality rights. The stay was granted by the Court which directed the movie makers to not use the superstar’s name/image/likeness. Interestingly, the Wikipedia page of ‘Main Hoon Rajinikanth’ sets its release date on December 12, which is Rajinikant’s birthday as well. My post on Rajinikanth’s suit is available here.

Copyrightability of chess moves

Devika put out an insightful post on whether chess moves can be copyrighted, arguing using the idea-expression dichotomy as well as the EBC case. You can read Devika’s post here.

SpicyIP journal

We have also kickstarted a SpicyIP journal section as well as a Discussion paper series, both of which are available under the Resources action on our website. The first note in the Discussion Paper series was by John E. Matheson, titled “Patents and Standards: FRAND Challenges for India’s ICT Sector”. It discusses several problems that can and have come up with Standard Essential Patents (SEPs) and related commitments. We have two more papers for these sections which should come your way very soon!

SpicyIP Fellowship

As a former fellow of SpicyIP, I am delighted to remind our readers about the ongoing 3rd SpicyIP fellowship. The details of the Fellowship is available here. If you want to know more about the Fellowship, you can hear it right from the horse’s mouth here and here.

And that brings us to an end to the recap of the highlights of the blog from September-December, 2014! If our readers appreciate this kind of a quarterly recap – it is certainly something we can try putting out more often! We look forward to your feedback.

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L. Gopika Murthy

Gopika is a fourth year student at National Law School of India University, Bangalore. She was formerly the Chief Editor of the Indian Journal of Law and Technology. Her first exposure to Intellectual property law and SpicyIP was through the University Moot Rounds at NLSIU, Bangalore in her first year. She has been regularly following the developments in the field of IPR since then and she hopes to contribute to the reporting of such developments. Her areas of interest in IP include copyrights, open access, fair dealing and trademarks.

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