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SpicyIP Weekly Review (27th March – 9th April)


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SpicyIP Highlight

(this post has been co-authored by Kartik, Balaji and I)

Our Highlight of the Week was definitely the post by one of our fellowship applicants – Swati Muthukumar– where she examines MSF’s opposition to Pfizer’s pneumococcal conjugate vaccine in India. She discusses the contentions put forth by MSF in their challenge, and then briefly turns to the decision of the Opposition Division of the European Patent Court as regards the patent in order to further determine the legitimacy of the opposition. She looks into the rationale behind MSF’s challenge, and highlights the lack of oppositions from generic manufacturers, finally looking into whether compulsory licenses could function as a possible alternative.

Next, Vasundhara Majithia – another of our fellowship applicants – discussed the impending need to recognise the Indian Patent office scientific and technical organisation in the light of the Ministry’s recent refusal to do the same. She begins by exploring the reasons for the pendency of applications at the IPO, and briefly looks into the Nitto Denko Case in this regard. She then explores the basis for the Ministry’s refusal, and she argues that the examiners and controllers at the IPO remain equally deserving of the FCS benefits made available to scientists at other organisations. She asserts that incentivizing jobs will in turn increase the efficiency of the employees, enabling the expeditious processing of applications.

In our next post, Prof. Basheer summarised the Delhi HC’s decision giving the go-ahead to the Competition Commission of India to continue its investigation into Ericsson’s anti-competitive practices. The company has been accused of exploiting its dominant position by setting unreasonable licensing terms, demanding intemperate license fees respect of its SEPs, and breaching FRAND terms. He concludes by applauding the lucidity and comprehensiveness of the order, while also noting that its excessive verbosity could have been done away with.

Shruthi then put up a post announcing the Centre for Innovation, Intellectual Property & Competition (CIIPC), National Law University, Delhi’s first Annual Roundtable on Innovation, Intellectual Property, and Competition hosted on 1st and 2nd April, 2016 at India Habitat Centre, New Delhi.

This was followed by another post put up Shruthi, and written by Gauri Kumar, India Consultant for the International Trademark Association, inviting registrations for the 138th Annual Meeting of the International Trademark Association (INTA) to be held at Orlando, Florida from May 21-25, 2016.

Next was Balaji’s post briefly discussing GSK’s recently changed approach to patents in an attempt to increase access to medicines – the company has announced that it will not seek patents for medicinal products in Least Developed Countries and Low Income Countries, and adopt a more open licensing policy in Lower Middle Income Countries. Additionally, it has expressed a commitment to license its cancer patents to the UN-backed Medicines Patent Pool.

Prof. Basheer then shared the introductory note to the ICTSD’s recently released study on specialised IP courts, where he has authored a paper presenting the situation as it stands in India. He has previously looked into the issue on the blog hereherehere and here.

This was followed up by a two-part series that I put up on the procedural bottlenecks at the Patents Office. In the first post in the series, I focused on the faulty evaluation system and the transfer policy. In my second post, I looked into the delays in promotions, the probation issues, and contractual recruitment.

Inika Serah Charles, one of our Fellowship applicants, followed this up with her second submission to the Fellowship, where she brings us an update on the PIL filed by K. N. Govindacharya on the Government’s uses of Social Media. She comments on Google’s response in its affidavit filed in Court saying that it made no profits off of government intellectual property, and, more crucially, the lack thereof regarding other social media platforms.

In our next post, Vasundhara Majithia, again one of our Fellowship applicants, comments on the Delhi High Court’s decisions in Cartier Intl. Ag v. Gaurav Bhatia. The case at hand dealt with the issue of counterfeit goods being sold over the online sale platform digaaz.com. She notes that the Court concluded against the online platform, passing a permanent injunction from using the Plaintiff’s trademark against the same. She concludes by noting the stress placed by the Court on punitive damages, and with a note on the importance of countering counterfeit goods on the internet.

Our next post was a guest post titled ‘The Night of the Long Knives at the Indian Trade Mark Office’ by Ameet Datta, Partner at the IP firm Saikrishna and Associates. He comments on the recent dubious controversy where the Trademarks office allegedly deemed about 5,00,000 trademarks as ‘abandoned’ without any clear cause or reason, despite the 30 day time-limit under the Trademark Rules not being violated. This order was subsequently stayed by the Delhi High Court, as we reported later that week.

This was followed up by Ritvik with a Tidbit, updating us on the NHRC’s press release. The NHRC in its press release indicates its apprehension on the recent Compulsory Licensing controversy regarding the government’s ‘private reassurance’ to the United States that it would refrain from issuing compulsory licenses in pharmaceutical products for commercial purposes.

Vasundhara followed this up with a Tidbit, her third post as an applicant, discussing the recent – and welcome – consolidation of the Government’s IP functions. She discusses the recent shift of copyrights from the ambit of the MHRD and semiconductors from the IT Ministry to the Department of Industrial Policy and Promotion (‘DIPP’).

In her third submission for the fellowship, Inika explored the possibilities of a “copymark” – a form of protection that covers trademark in a copyrighted work. Before landing on this form of protection, she evaluates current judicially evolved standards for the protection of fictional characters.

Rahul Bajaj, one of our newest Fellows, put up a post on the ruling of the Madras HC on the constitutionality of the Copyright Board. Rahul summarises the arguments from both sides, and the ruling of the court, which pronounced upon judicial primacy in selecting the members of the Board, the qualifications of the members, and the compulsory licensing scheme under the Copyright Act.

Balaji then put up a post bringing to our reader’s attention, the notice put up by the CGPDTM inviting representations from those whose TM applications have been wrongly treated as abandoned (this has been previously covered on the blog here). Following this, on April 5, multiple writ petitions were filed before the Delhi HC challenging the TMR’s original decision – the Court accordingly stayed the TMR’s decision and directed it not to pass any abandonment orders without informing applicants concerned by registered post.

Mathews then put up a call for papers from the Journal of Intellectual Property Law, run by Nirma University. The 2016-17 volume of the journal is accepting submissions until the 30th of June.

We then had another post by Vasundhara, in which she reported on the settlement of the dispute between the Scotch Whisky Association and a number of Indian distilleries over the GI that covers Scotch.

Her fourth submission for the fellowship was a tidbit on WhatsApp’s introduction of end-to-end encryption for its users. In it, she also discusses the aspects of Indian law that could govern encryption technology, and past controversies such as the one involving Blackberry Messenger.

Next, Balu Nair brought us a post on the decision in England and Wales Cricket Board v. Tixdaq, which dealt with the legality of a service that allowed users to share video clips of copyrighted sports content. After examining the ruling, he compares it with Indian jurisprudence on sports reporting and fair dealing.

This was followed by a post by Jithin Saji Isaac on plagiarism in the DIPP’s discussion paper on SEPs. In it, he discusses the allegations, backed by proof provided by Dr. Arul Scaria, following which he examines the copyright implications of such plagiarism.

INTERNATIONAL DEVELOPMENTS

1.Linking to pirated content not copyright infringement, says EU Court Advisor

2.Donald Trump fan election campaign video pulled over EA copyright infringement

3.US Court overturns $85 million patent infringement verdict against Google

4.Court awards Merck $200 million in patent infringement case

5.Google supports YouTube video creators fight back against phony copyright claims ; offers legal protection

6.Shkreli Claims Fair Use in Infringement Lawsuit

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Kiran George

Kiran Mary George is a Third Year student at ILS Law College, Pune. Her first stint in the world of Intellectual Property law was an internship with a registered copyright society that granted her an insight into the world of copyright in music. Since then, her interest in IPR has taken strong hold, and she enjoys keeping close tabs on developments in the field. She is still discovering her interests, but so far takes a special liking to open access, copyright and trademarks.

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