SpicyIP Weekly Review (March 22 – March 30, 2015)

unnamedIn what has been an extremely exciting week for SpicyIP, we have had several interesting developments, including Swaraj’s post on Data exclusivity, Anubha’s post on the IPRS, Dr. Arul’s post on copyright and access to law (more on each below), but the the SpicyIP Highlight of the Week goes to Madhulika’s two posts on the Glenmark-Merck dispute.

In her first post on the issue, Madhulika analyses the injunction granted to Merck by the Delhi High Court against Glenmark, for the production of generic versions of Merck’s Januvia and Janumet drugs. Merck had argued that Glenmark was willfully infringing its patents, while Glenmark argued that the patent itself was invalid under Section 64(1) of the Indian Patents Act as it lacked an ‘inventive step’, the patent was insufficient in its detail, the Stigaliptin Free Base lacked industrial applicability, and that the claim went much beyond the ‘limited disclosures’, and is thus overbroad and creates a false monopoly. Glenmark also alleged that Merck had failed to comply with S.8 disclosure requirements. Glenmark finally also alleged that the Stigaliptin phosphate monohydrate is qualitatively different from the free base, and there was therefore no infringement. Madhulika observes that the Court, in its exceedingly well-reasoned judgment, dismissed all of the arguments made by Glenmark, and concluded that Merck had made a strong prima facie case for the infringement of its patents, found irreparable injury in the losses suffered by Merck due to the fall in prices, (the fall being something that may not recover even with the conclusion of the case it its favour), and found the difference in the prices of the drugs to be insufficient to turn the balance of convenience against granting the injunction. However, this was almost immediately followed by an update that the above order had been stayed the Supreme Court.

Aparajita started off the week with an excellent Pi day post, about a trademark issue involving the “π.” Trademark of the Pi Production Corps, and the takedown notices sent by to an online marketplace called ‘Zazzle’ regarding multiple products hosted by it with the ‘π’ mark. Aparajita writes in this context, about the true functions of a trademark, and the dangers of a notice-and-takedown regime for regulating online content.

Spadika wrote a riveting and crucial post about the ‘stringent’ and nigh-on underhanded methods that Gilead is using to ensure that its Hepatitis-C drugs do not find their way to markets outside the licensing arrangements it has made, concluding by noting the sad state that is the lack of stringent privacy norms for pharmacists and the patient information they collect.

After that, we had an extremely intriguing Guest Post by Dr. Arul George Scaria of National Law University, Delhi covering a fundamentally important issue – can the very text of our laws be copyrighted? He approaches this issue from the quintessentially crucial question of access to law, exploring how copyright law itself acts as a barrier to access to law – with an interesting discussion following on in the comments section.

Swaraj then brought us an update on the Indian Draft Model Bilateral Investments Treaty, which is up on MyGov.in for comments, and a critical post on the new chapter of the TPP that was released by Wikileaks, highlighting the fundamental problems that continue to persist with the troubling policy.

This was followed by an extremely crucial and detailed post on the developing situation regarding Data Exclusivity in India, regarding the news that a Data Exclusivity clause seems to be finding its way into the Pesticides Management Bill, 2008, and the implications of this in the larger schemes.

Balaji this week wrote two extremely detailed and well-argued posts on the potential for abuse that underlies the promises made by Amazon’s Scout and Write-On programs, arguing in part from the Amazon model means in terms of monopolies and delivery of content, and in part from the Terms of Service for the Scouts program.

In my 2nd second post on the Ericsson v. Intex judgment, focusing this time on the pitfalls of establishing software patenting as it has been portrayed in the case as a precedent, and on the drawbacks of software patenting in general. I also wrote an opportunely timed tidbit on Facebook’s patent application for its webcrawler being denied.

Aparajita then brought us a captivating post on the issue of comparative advertising, in the context of the Havells v. Amritanshu case, with specific focus on the multiple tests that the Court laid down with regards to ‘honest’ advertising, ‘misleading advertisement’, and comparative advertisements. The Court concluded that there is no rule which requires an advertiser to necessarily compare all the features of their product, and that comparative advertisement can be limited to comparing certain relevant features alone.

Anubha brought us an extremely intriguing post on the Indian Performing Rights Society’s continued litigation streak – this time, though, the IPRS is on the receiving end of it. As Anubha details, the Department of Higher Education, Copyright Office had issued IPRS multiple show-cause notices regarding irregularities in the way it distributed royalties to the artists, and IPRS had tried to contest that it was outside the jurisdiction of the Copyright Office entirely, as it had withdrawn its application for re-registration as a copyright society. The Court dismissed the contentions of IPRS, and held that it had been a copyright society when the alleged irregularities occurred, and when the notices were issued. It thus recognised the IPRS tactics, and stated that IPRS’ conduct could not stop the Central Government from exercising its jurisdiction to form a prima facie opinion. IPRS’ contentions were dismissed entirely.

And in our last post for the week, Rajiv brought us a detailed analysis of a landmark decision by the Chinese Anti-trust authority which found Qualcomm guilty of anti-competitive conduct with regards to the licensing of its Standard Essential Patents (SEPs), going in-depth into the factors that contributed to determining Qualcomm’s dominance and its violation of the Chinese Anti-Monopoly Law (AML).

International Developments:

  1. Innovation Law Beyond IP 2 Conference, Yale ISP.
  2. The Manilla Principles for Intermediary Liability were released this week by a range of NGOs, to set guidelines for the liability of Internet Intermediaries for content of communications.

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