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SpicyIP Review (7th to 20th December, 2014)


The period with Xiaomi’s injunction, appeal and Bayer’s SLP

unnamedIt is only fitting that I begin a Review of this eventful period with the highlights. Gopika reported on what is our first highlight, the ex-parte injunction granted against Xiaomi in a suit filed by Ericsson for alleged infringement of their SEP portfolio. Gopika points out that there are reasons why restraint from granting an injunction in this matter would have perhaps been a better course. Xiaomi had also appealed the injunction in this period, which I had posted about. They got a temporary relief in the form of an allowance of sale with a deposit of Rs. 100 per device sold. Also worth a read is Gopika’s post highlighting the important developments from September to December of this year.

Noteworthy also in this period is the development that bodes well for accessibility to medicine and health campaigners around the world. The Supreme Court rejected Bayer’s SLP against India’s first CL. Rupali posted on this development for us.

This period was characterised by a rather tragic beginning, with the death of Justice Krishna Iyer. Spadika dedicated a post to his numerous contributions to the world of IP, the foremost being S.3(d) of the Patents Act. Justice Krishna Iyer’s contributions to Human Rights jurisprudence will no doubt be remembered, but the field of Indian IPR and the thousands of patients around the world who are benefiting from this provision will especially be indebted to him. Aparajita wrote in a post dealing with some irregularities in how the process of restoration of Patents was being deal with. She highlights this with the example of a restoration case in which the Patent was restored despite the corresponding application and restoration fees having been paid after the corresponding period.

Prof. Shamnad posted next about how despite the severe criticism that the Indian IP regime has been facing, it can be severely protectionist in certain aspects – particularly in light of the ex-parte injunctions being granted in the FRAND encumbered patents. He points to a larger number of issues in his post like the Make in India move by the government and the Parallel Importation defence that companies like Micromax might have in the SEP fights, among others. Aparajita posted next with a write-up on the important questions asked by MPs relating to the National Level IPR Think Tank to draft the National IPR Policy.

Rupali next posted on an AP/Telengana HC decision refusing to interfere with a trial court decision refusing to grant an injunction in the suit between BMS and Mylan. She notes that this is a well reasoned order and effectively grants Mylan a green light to export to Venezuela. Anubha followed this up with the development that Access Copyright has come up with new offers for sharing literary works for educational and professional purposes with post-secondary educational institutions.

Anubha also posted on the the conclusion of the USTR’s first OCR. She writes that the Annual Special 301 Review of 2015 will follow. “Reportedly”, she writes, “the US is satisfied with the steps India has taken to alleviate US’ concerns about India’s ‘weak IPR laws’.” Madhulika had the next post on the health ministry’s statement that Cipla’s petition does not make a compelling case for revocation of Novartis’ Onbrez patents. She raises the important question as to whether an attempt to procure voluntary license can be made at this stage –after launch of the generic version?

I wrote about a TM dispute in the Delhi HC next, in which the court considered the Anti-Dissection rule in composite marks but in effect went onto to ignore its application. They granted an injunction to protect a part of the mark.

Prof. Shamnad next posted a couple of exploratory posts where he raises some pertinent questions. The first was with regards to the dismissal of Bayer’s SLP. He questions the gnomic language used in the order and wonders what it really implies. He also questions as to why most of the generic majors have rallied against the CL regime when it works so much in their favour and is a fairly straightforward process. His next post raised a couple of questions on the Xiaomi order. He questions the Rs. 100 per device rate that the court had arrived upon and as to what the basis for this was.

Madhulika then brought us the news that close on the heels of the health ministry’s statement regarding patent revocation, Novartis sued Cipla for infringing patents covering Onbrez and sought damages. The HC has reserved its judgement, she writes. I posted next on some issues with the injunction granted against OnePlus by the Delhi HC. Micromax had sued them for the enforcement of the exclusive agreement that they had signed with Cyanogen.

Prof. Shamnad brought us this post on the secrecy that often surrounds R&D costs involved in drug development, and the enduring enigma that surrounds drug costs in general. He advocates a mandatory disclosure of R&D costs for each drug. Prof Thambisetty then contributed this interesting guest post, outlining the 12 gifts of a National Intellectual Property Policy. She writes that there are public interest and protectionism considerations to be considered here.

Aparajita had the last post for the period, where she writes about a TM dispute over the name ShreeRam World School being similar to Shri Ram School. While granting the injunction, the court had to also curiously also consider the question of how religion interfaces with IP.

Call for Papers and Events:

1. The NLIU Journal of Intellectual Property Law has released a call for papers for it’s 4th edition. The submission deadline is the 25th of January, 2015.

2. The International Trademark Association (INTA)’s 2015 Regional Conference is to be held on February 7th, 2015 in New Delhi. This conference is a must for trademark decision makers in corporations and all trademark practitioners. Click here for more details including registration for the conference.

Interesting IP Stories that caught our attention:

1. The IPKat reports on a CJEU ruling that classified what a “human embryo” was for the purposes of patentability.

2. They also carried this guest post on Google’s application for a certiorari from SCOTUS on the disputes regarding Java’s API libraries.

3. PatenlyO posts about this interesting documentary titled, “Inventing to Nowhere”

With this we conclude our 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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Thomas J. Vallianeth

Thomas is a final year law student at the National Law University, Jodhpur pursuing a B.Sc. LL.B. (IP Hons.) course. His first exposure to IP law was at a workshop that he attended in High School and ever since then, he has pursued a keen interest in the field. However, his real interests lie in the interfaces between Technology Law and IP, with an active interest in the Open Source movement.

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