Weekly Review (17 to 22 August)

unnamedOur Highlight of the Week is Spadika’s fascinating post on the ‘Coalition for Affordable Drugs’, a series of hedge funds formed by American billionaire hedge fund manager Kyle Bass, and its strategy of using the ‘Inter Partes Review’ process to bring down the prices of drugs. She also discusses how Kyle Bass profits from the process by ‘shorting’ the stocks of the company in question. She points out the potential issues with the technique, noting that Celgene Corporation, one of the pharma companies whose patents CAD challenged, has filed a motion for sanctions against CAD for ‘misusing’ the IPR process, and using the same to dilute IPR provisions in upcoming patent troll bills. She notes that Kyle Bass and CAD are, in a way, the opposite of patent trolls, and concludes by stating that she hopes CAD’s actions lead to a positive effect, and that big pharma is unable to succeed in its dilution.

We started off this week with Balaji’s Tidbit updating us on the latest developments in lee Pharma’s Saxagliptin compulsory application, pointing out that the notification issued in the matter had been misreported as an order. Balaji later followed up on this post when the full notification that was made available online. The notification finds while Lee Pharma was an interested party and has made bona fide attempts to negotiate a voluntary license, it had failed to make prima facie case under any of the S.84 (1) provisions, thereby rejecting its compulsory license application. He concludes by highlighting again that this is simply the prima facie notice, and detailed considerations in the case are currently pending.

This was followed by a fascinating and detailed Guest Post by Mr. Arun Mohan on an interesting turn of events in the trademarks world. He mentions the landmark case of Benz vs Hybo Hindustan, where Mercedes obtained an injunction an underwear manufacturer from using a model striking a pose along with the use of the word ‘Benz’ to sell underwear. The ironic twist which he discusses in his post is how TT Industries, a manufacturer of hosieries and underwear, has obtained an ex-parte injunction against Audi from using the mark ‘TT’ in respect of accessories, bags, leather and faux leather goods, or toy cars. He discusses the ports and pitfalls of using the ‘famous mark’ basis for launching an action, and notes that, along with the delicious irony, this would be an interesting case to follow.

Kiran followed this up with an excellent post on the IPR problems that came to the fore when Google being restructured into ‘Alphabet’ when the newsreports pointed out the fact that BMW already owned the ‘Alphabet’ trademark for its cab service. She also discusses the possibility of generecisation of the ‘Google’ trademark and the possible lack of uniqueness of the term ‘Alphabet’. She then moves on to discuss the possibility of confusion among consumers between Larry Page and Sergey Brin’s Alphabet and BMW’s Alphabet, and how the two companies may end up clashing on the issue in the future.

This was followed by Kiran’s second post for this week on Twitter’s recent change of policy to taking down jokes that are not original. She discusses the requirement of originality for jokes, the serious issue that social media-based joke-stealing has become, and the biggest problem involved – proving that a joke has been stolen. She then discusses why taking down tweets for infringing on the copyright on a joke is no different from any other form of takedown request, concluding by noting that this would seem to be a fascinating legal issue in the making.

Finally, our last post for the week was my Tidbit on the Pearson’s IPR dispute with New Rubric Solutions, which was an interesting change of form for IPR disputes with the international corporation actually being on the losing end.

International Developments

  1. As GVK drugs go off EU shelves, India sees no scope for FTA talks.
  2. Switzerland pressures Colombia to deny compulsory license on imatinib.
  3. South Africa’s health minister is so worried about India caving in to big pharma.

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