SpicyIP Weekly Review (May 18 – May 24)

spicyip weekly reviewThis seems to have been quite the active week for us, with a lot of news coming in, and an important announcement! Our ‘Highlights of the Week’ are quite definitely Rupali’s excellent three-part post on Interim Injunctions on the Symed ‘linezolid’ saga, and Shamnad Sir’s announcment.

Rupali starts off by giving us the background of the issue, noting how Symed won three interim injunctions against Optimus, Sharon and Glenmark, with only the Glenmark one being vacated later. She then goes in-depth into the four tests (of a prima facie case, irreparable injury, balance of convenience, and public interest) that must be cleared for an interim injunction to be granted, how these tests have been applied in the present cases, and the infirmities they present in the Indian context. In her first post, she considers in detail the arguments made by Symed and against them for the prima facie case test, the standards used therein, and how the Courts have failed to treat them accordingly. In her second post, she similarly considers the standards of ‘irreparable injury’ and ‘balance of convenience’ in detail, in the context of the Symed case, and the test employed by the Indian courts. In her third post, she looks at the fourth and final prong of the test for interim injunction, public interest, in the context of the treatment of this test in the UK, and of access to medicine and anti-competitive strategies. She concludes with a set of recommendations, arguing for dispensing with the interim phase for complex patent cases, and the simultaneous implementation of institutional changes, that being abridged trials and specialist courts and specialist advisers, to expedite patent litigation.

Rupali’s excellent post set the perfect background for Shamnad Sir’s post launching our Interrogating Interim Injunctions (I-3) series, aimed at highlighting the potential inequity of patent injunctions, with the long amount of time they take to be vacated, especially ex-parte orders. The team for this series consists of Shamnad Sir, Swaraj, Rupali, Saahil, and Balaji.

Our first post this week was a two-part series by Kiran, in which she discusses the intricacies of the background to the Lisbon Agreement and the legitimacy of the decision taken by the Lisbon-system member nations to exclude non-members from voting at the negotiations in the Diplomatic Conference for the Adoption of a New Act of the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration that was held this week.

This was followed by Shamnad Sir’s fascinating post, for the Infosys Science Foundation Blog, on the overuse of marketing buzzword that ‘innovation’ has become, discussing the consequences of its overuse on its meaning. He goes into the history of the word, including its curious negative pre-Schumpeter connotations . Due to the slump that the word seems to have fallen into, he wonders if we can move to newer terms, perhaps ‘outnovate’, or ‘uber-novate’, creating what would arguably be a lexocological version of the Schumpeterian cycle of Innovation and Destruction.

After this, Madhullika brought us an update on the fascinating Onbrez patent infringement suit between Cipla and Novartis regarding the generic version of Novartis’ Onbrez drug which was launched by Cipla. After a lot of back and forth, Cipla recently suggested it was willing to pay a reasonable royalty fees. Novartis rejected its offer, but the Court has asked Novartis for a response on why the offer was rejected. She also notes that here, Cipla did not apply for a compulsory license under S. 84, and therefore did not first attempt to procure a license as Indian patent law requires it to do. Instead, it went directly to the DIPP to revoke Novartis’ patents, and that too after it launched its generic version.

This was followed by Spadika’s post, bringing us an update on the 68th World Health Assembly of the WHO, where Dr. Shri Jagat Prakash Nadda, the Indian Union Minister for Health and Family Welfare, has been elected as the President of the Assembly for this session. She notes that this appointment is clearly politically important, the WHO Constitution makes no specific mention of the powers of the President, thereby making the specific impact that his election will have, on the Assembly, unclear.

Madhulika followed this up with an update on the Bristol-Myers Squibb and Cipla patent dispute, where Cipla seems to be doing much better than its other dispute with Novartis discussed above. In this case, at least, it would seem that the two parties are working towards a settlement. She notes that the Indian composition claim for the patent on Entecavir is quite narrow, making it possible for many generic drugs to circle around the same. She further notes that such patents, of questionable quality, deter smaller generic players from making their own generic versions of the same, resulting in reduced competition, the price of which is paid by the society as a whole. She also notes that one interesting question still remains unanswered: “why did Natco and Cipla choose to settle the patent dispute when other generic players in India found a way to avoid/design around the composition patent?

This was followed by Spadika’s post on a particularly welcome decision of the US Court of Appeals, rescinding its original order in the “Innocence of Muslims” issue. She notes that the Court has set aside the earlier order, holding that Garcia did not have a valid copyright in the film. She also brings to our attention the laudable position taken by the Court, that an injunction on potential infringement of copyright would amount to prior restraint of speech. Thus, even though the Court was sympathetic to Garcia’s plight, it noted that her claim was a copyright law, which is meant to foster rather than repress free expression.

This was followed by Thomas’ Tidbit, bringing us an update on OnePlus’ OS dispute with Cyanogen by ‘mutual consent’, which seems to have finally been settled amicably after a short but interesting history, which he summarises in his post. He notes that one important consequence of this development is that now, OnePlus has committed to make software updates to its Indian One costumers, which is quite the welcome move because of the immense popularity of the device. He then concludes by noting that the specifics of the settlement have not been released to the public, making deciphering the consequences of the same rather difficult.

On the background then set by Rupali and Shamnad Sir’s posts, Balaji kickstarts our I-3 series with the first post of the series. He focuses, in the series, on ex-parte interim orders, making the claim that the delays in the vacation of injunctions are not exceptional, as they should be, but have become a quintessential part of the system. He starts this with an examination of the Issars Pharmaceuticals v. Vinod Dua case, discussing it in the above context.

We then concluded our posts for the week with Balaji’s second post in the series, on the Vifor v. D. Mohan Rao case, where the plaintiff obtained an ex parte interim injunction from the Delhi High Court which has lasted a total of forty four months – and still continues to be in force!

International Developments
1. The annual World Health Assembly (WHA), mentioned in Spadika’s post, is currently underway (18-26 May). One of the curious matters discussed at the assembly was the creation of a voluntary pooled fund, focusing on the development of effective and affordable health technologies for neglected diseases which are covered in the ambit of Consultative Expert Working Group on Research and Development: Financing and Coordination (CEWG).
2. WHO also announced that the WHO Joint Coordinating Board of the Special Programme for Research and Training in Tropical Diseases (TDR), which will be coordinating the funding as per the above report, will also oversee a Global Observatory on Health R&D, which is expected to be launched in January 2016.

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