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SpicyIP Weekly Review (April 25 – May 3)


unnamedIn another exciting and busy week for SpicyIP, our Highlight of the Week was Swaraj’s extremely well-written post on Prime Minister Narendra Modi’s comments on the Indian patent regime. Discussing certain quotes from speeches recently made by PM Modi, who stated that Indian patent laws need to be brought up to ‘international standards’, he places them in stark contrast with the previous position of the government, which strongly supported the current patent law regime. He focuses specifically on the pharmaceuticals sector and public-health issues, and talks about the context of such claims, such as the history of patent laws in India and their evolution, the major issues that western lobbies have with Indian patent laws, and the immense pressure that the US lobby exerts on the Indian government.

We started this week with a set of excellent posts by Swaraj and Prof. Shamnad on ‘faith-based IP’ and ‘Jugaad Justice’, respectively, commemorating the World IP Day. Swaraj in his post discusses Prof. Mark Lemley’s paper on “Faith-based Intellectual Property Rights”, talking about the fundamental issues with a system which focuses on what would seem to be a retreat from ‘evidence-based’ systems of IP to a ‘faith-based’ system of IP, justifying it as an end in-and-of itself. Prof. Shamnad’s post relates to his Mint article, and talks about Justice Katju’s ruling dispensing interim injunctions in IP cases, in the context of the question: is the law necessarily at odds with creativity, particularly in common law systems? He places this fascinating discussion in the context of the ‘jugaad’ justice that we see in India, where we have “a whole host of quick-fix solutions devised to cater to a resource-constrained ecosystem”.

This was followed by Prof. Shamnad’s post announcing the release of a Report on Bayer’s Nexavar drug, patent working and compulsory licensing, in the context of the information gap, authored by him and Rupali Samuel. The report highlights the information gaps and discrepancies in the Form 27 declarations filed by Bayer every year, and is a part of the endeavour to foster transparency in IP debates, and also aims to generate more ‘data’, thereby effecting a move from ‘faith’-based IP to ‘fact’-based IP. He then provides a detailed summary of the report; the full report is available here.

Gopika followed this up with a detailed, analytical post on the Madras High Court’s revised order regarding the constitutionality of the IPAB Court, in the context of the Patents Act. The order concerned the issue of ‘patent technical members’, which was taken up after the petitioner’s counsel submitted a letter regarding its non-adjudication in the original order. The Court held the requirement to be constitutional, clarifying that the technical member was to be appointed only for the provision of ‘technical’ advice, and could not participate in the dispute resolution process beyond that. It noted that as per the above, the technical members could not be appointed to the posts of Chairman or Vice-chairman, as those were judicial posts. The Court noted that the exception to this would be if a patent controller was appointed as a technical member.

This was followed up by Prof. Shamnad’s thought-provoking post on the burgeoning examples of ‘creative’ systems in IP lawyering and justice. He specifically notes the examples of the cases of Bada Zarda, Luxottica Sunglasses, the Tata cybersquatting issue, and the Polo Ralph Lauren T-shirts/Vaseline Petroleum Jelly as instances where the Courts, mainly the Delhi High Court, have imposed a sort of ‘community service’ on the defendants in lieu of damages. The ostensible logic for the same, as he notes, was that the cost of determining damages in such cases, an uncertain process to begin with, tend to outweigh the benefits. He concludes with a hat-tip to Mr. Praveen Anand for starting this trend, and requested our readers to let us know if they know of any other examples.

The next post this week came from Matthews, on transparency and the TPP negotiations. Matthews here started by talking about what ‘transparency’ means and why exactly it matters, contrasting its existence with that of ‘secrecy’. He then talked about the TPP, and the litigation and hurdles surrounding the release of the information regarding the same. He moves on to noting the importance of secrecy in negotiations, but at the same time balancing the same against the necessities of transparency and the involvement of the civil society. He also notes with appreciation the role played by IP Watch on this issue, and of the importance of bridging the gap between legal academia and practice. He concludes by noting that in this aspect, India has a lot of potential that is currently going unused.

Our next post came from Aparajita, with an update on the Teva v. Natco litigation. She traces the entire seven-year-long and rather complex litigation history of the case, and brings us a conclusion that belies all of that – in August 2014, the case was disposed of by the Delhi High Court due to the fact that neither the plaintiffs nor the defendants had led any evidence!

This was followed by Thomas’ post on the Bombay High Court’s fascinating order in the case of Beyond Dreams Entertainment and Ors. v. Zee Entertainment Enterprises and Anr., clarifying the interface between ‘confidentiality’ and ‘copyright’. The case concerned a combined claim of copyright infringement and misuse of confidential information with regards to certain scripts and concept notes. Herein, Thomas talks about the interaction between a ‘confidentiality’ claim and a ‘copyright’ claim as per the judgment of the Court.

Our next post this week was by Kiran, on the GI tagged Muga Silk of Assam’s problem of having a nearly negligible number of registered users, and the work undertaken by the Tezpur University regarding the same. She details the steps undertaken by the Tezpur University IPR Cell along with the IPR Cell of the Dibrugarh University and the faculty members and volunteers of the North Lakhimpur College in promoting awareness and participation in the process. She contrasts this with the steps taken by the government to address these issues, noting that as immensely commendable as this work was, this was nothing that the government could not have done itself. She concludes strongly on this note, stating that the reasons for this are the same words we have heard many times before: government apathy.

Then Aparajita brought us an extremely interesting Tidbit on HUL’s proposal to include IPR in school syllabus, which contrasts quite a bit with the above. She notes the benefits of awareness programs, but concludes by noting that making this a school level subject with exams may not exactly be a good idea.

This was followed by Anubha’s post on the Parliamentary Committee’s recommendation for the imposition of price caps on all life-saving drugs. She discusses the specific comments and details of the recommendation, putting them in the context of the NPAA’s previous actions towards capping the prices of drugs, and the pharmaceutical industry’s reactions to the same.

Balaji then brought us the highlights of Yale’s Innovation Law – Beyond IP 2 conference, discussing the perspectives offered by Amy Kapczynski on the theme of ‘bringing the state back in’, contrasting the assumptions made about the involvement of the State in the pro- and anti-IP debates against actual ground realities. He then discusses Orly Lobel’s analysis of the disruptive effect of the rise of the ‘platform economy’ on the regulatory ecosystem. He then moves on to Guy Pessach’s discussion of the paradoxical nature of ‘free content’ in the information market. He concludes with a discussion of Michal Shur-Ofry’s incisive analysis of the role errors and failure play in the landscape of innovation, in the context of what she calls the ‘file-drawer’ effect. He concludes by noting that all these presentation represent an overall shift in the manner in which ‘law’ interacts with ‘innovation’, and how such a discourse would be immensely beneficial for the Indian innovation ecosystem.

And finally, Gopika rounded it up with her post on the change.org petition to save the Handlooms Reservation Act, 1985. She mentions how the crux of this legislation is its S. 5, which prohibits the production of the reserved articles by anything but a handloom, providing a degree of protection for handloom weavers and their products. It thus points out the immense repercussion the repeal of this legislation will have on the handloom weavers industry, and the livelihoods of those involved. It also points out the differences between the products created by a handloom and a powerloom. The petition is available here.

Announcements:

  1. American University Washington College of Law’s IP Summer Session and LLM program.
  2. Online Certification Course on IPR, Confederation of India Industry.
  3. Essay Competition on FRAND: India Perspective, by CIPR NUALS.

International Developments:

  1. IPWatch: UAEM Grades US Universities On Research For Neglected Diseases. Spoiler Alert – There’s Room For Improvement.
  2. IPWatch: UN Expert Says Secret Trade Negotiations A Threat To Human Rights.

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