SpicyIP Weekly Review (7-13 September 2015)

spicyip weekly review

Highlight of the Week

This week’s highlight is Thomas’ two-part post (here and here) on the Ericsson-iBall injunction, in which he provides two layers of analysis – first, he examines the factors upon which the court granted an injunction in the given case; second, he provides a critique of the doctrine of privity of contract under Indian law in its applicability to SEP licensing disputes. On the first count, he finds that the court did not account for the fact that in SEP cases such as this one (where the defendant is a reputed company that maintains sale records), any infringement could be compensated through damages. On the second count, he finds that the doctrine of privity of contract restrains the defendant in such cases from enforcing the contractual obligation that the patentee owes the standard-setting organisation to engage in FRAND licensing negotiations. He notes that legislation may be required to level the playing field and allow prospective licensees to legally enforce the obligation to negotiate on FRAND terms.

Thomas also informed us of the latest update in the writ petition filed by the South Indian Music Companies Association against the Copyright Board. He reports that the SIMCA refiled its petition to cover the 2012 Amendment to the Copyright Act, which granted additional powers to the Board. Further, he notes that the appointment of members to the Board seem to have been in blatant contempt of an earlier court order on the subject, which directed that appointments must be made in line with the guidelines laid down in Shamnad Basheer v. UoI.

We then had an extremely interesting guest post by Prashant Reddy on the Sholay moral rights case that Spadika had blogged about last week. In it, he notes that the case for applying punitive damages in such a dispute is governed by extremely dubious precedent. Further, he wonders how the judge arrived at the figure of Rs. 10 lakh as punitive damages when the Plaintiffs themselves were unable to quantify the extent of harm caused to their moral rights.

Finally, Gopika did a postG on Kerala’s upcoming Traditional Knowledge legislation, and covered the debate between the Praveen Raj and VK Gupta on the best way to protect TK. Praveen Raj proposes an information management system that he calls the Traditional Knowledge Docketing System, while VK Gupta advocates the merits of the Traditional Knowledge Digital Library that he conceptualised at the CSIR.

SpicyIP Tidbits

Gopika reported on the Alliance for Open Media, an open-source media format initiative launched by seven tech majors including Google, Cisco, Amazon and Netflix.

Swaraj put out a call for bloggers earlier this week, asking our readers with a desire to cover IP developments to step forward and send in submissions as guest bloggers.

International Developments

1. Pfizer has lost a court battle in the UK over its claims that Lyrica, which it patented originally for epilepsy but found extensive application in treating pain, was still under patent protection even after the original epilepsy patent expired.

2. The European Commission has expressed support for a move that would exempt Least Developed Country members of the WTO from TRIPS obligations concerning pharma products.

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