Spicy IP (Belated) Weekly Review [April 19-25, 2015]

spicyip weekly review

The highlight of the week goes to Prashant’s guest post where he throws light on the on-goings in the drug-regulatory arena in India. He notes that the Ministry of Commerce has stepped in, not one but twice, to undercut the Ministry of Health, sabotaging the latter’s efforts to strengthen central regulation of the Indian pharmaceutical industry on several levels. He notes that the Ministry of Commerce has continually spoken out of turn. In the cases of Ranbaxy’s penalty by the USFDA and the more recent action by European regulators against GVK Biosciences, the Ministry of Commerce has stepped in claiming the existence of a ‘western vendetta’ against Indian companies- all this while there is drug safety regulator and a Ministry of Health with a  mandate to comment on safety issues. Additionally, when the Government introduced the Drugs and Cosmetics (Amendment) Bill, 2013, one of whose provisions stipulated to strengthen the powers of the central regulator over manufacture and exports of drugs, the Ministry of Commerce supported pharmaceutical industries in their opposition to specific aspects of the Bill. While there was no discussion of the issue of safety by the Commerce Ministry, the Standing Committee accepted its argument in full and went on to reprimand the Ministry of Health. Prashant ties all of this in and argues that there is enough material to be seriously concerned about a possible capture of the Ministry of Commerce by the Indian pharmaceutical industry. He argues that since the Commerce Ministry was never meant to regulate the pharmaceutical industry making a course-correction necessary.

Swaraj, in his tidbit, announced a job opportunity that was open with the International Trademark Association. The deadline for this opportunity has now passed. It was for the role of an India Consultant to provide consultancy services to the INTA.

Spadika announced the NLSIU Alumni Worldwide Seminar on ‘Legal Education and the State of Legal Profession’ that happened over this weekend. The two-day long event was supposed to see sessions on topics such as State of the Profession, etc.  Attendees included NLS Alumni, Justice Gopala Gowda, Union Law Minister Mr. Gowda and others.

Aarohan Bansal sent us a wonderful post exposing the brilliance of CopyrightX, an online course organized by the Berkmann Center for Internet and Society, and Harvard University.  He describes the 12-week long course with a lot of genuine appreciation, practically selling the course to the readers quite effortlessly.  He notes that the differentiating line between this course and others online is quite clear- there are a limited number of seats, a duly administered final exam and actual interaction with teaching fellows. He also notes that since the course is open to non-lawyers as well the participants of the course are varied in their professional backgrounds. Read the post here for his detailed description of the course from start to end. He writes that the course is mainly designed with US Copyright law in mind and is of the opinion that this is hardly a setback since US law is the most influential of all jurisdictions. There, however, is an Indian version of the course taught at NLU Delhi.

Mathews then took his swing at the National IPR Policy in light of DIPP’s response to RTIs filed by Centre for Internet and Society. Briefly, the RTI request dealt with (1) the process followed by the Think Tank while framing the first draft of the Policy; (2) Details and documents of meetings held to draft the Policy; and (3) Suggestions and comments received by the Think Tank from stakeholders. He notes that the responses of the DIPP were incomplete and vague. Additionally, DIPP tried to delink itself from the Think Tank, stating that the information was available with the Tank and not with them. In light of this, Mathews highlights two issues with the Policy in the context of the RTI Act. He first notes that an organization cannot wash off its hands responsibility when a body to which it is parent is concerned. The DIPP constituted the Think Tank and it cannot evade RTI requests denying possession of information. In the second issue, Mathews addresses the question of whether or not the Think Tank is a public authority under the RTI Act making it amenable to compliance with Section 4 and 5 of the legislation. He conjectures that the Think Tank will fall under Section 2(h)(d)(i) which defines a public authority. He has recourse to jurisprudence determining the ambit of the term substantially financed when he makes this claim.

Spadika then announced10th Edition of The Legal Council Congress and the 4th Edition of The IDEX Legal Awards, both of which are to take place on the 30th of April in Mumbai.

While I haven’t covered these posts in this Review, I urge you to read Swaraj’s post on IP day where he discusses how the right move ahead for India is to shift from a faith-based IP Policy to a fact­-based IP Policy. Another post of interest is Shamnad Sir’s Jugaad Justice which he wrote for Mint where he suggests that Courts approach interim injunctions more cautiously than they have recently.

International Developments

  1. Myanmar’s unique products to benefit from ‘geographical indication’ promotion and protection- http://unctad.org/en/pages/newsdetails.aspx?OriginalVersionID=985&Sitemap_x0020_Taxonomy=UNCTAD%20Home;
  2. Patent for Novartis’ transdermal patch for rivastigmine was recently denied by the England and Wales High Courthttp://ipkitten.blogspot.in/2015/04/no-toleration-for-novartis-rivastigmine.html
  3. In a separate opinion Judge Moore of a Federal Circuit makes an interesting argument noting that denial of Trademarks in some cases could violate the First Amendment- http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/20/federal-circuit-no-trademark-registration-for-asian-american-band-called-the-slants-one-judge-argues-such-denials-violate-the-first-amendment/


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