SpicyIP Weekly Review (May 15 to 22)

This week’s highlight is undoubtedly Prof. Basheer’s hard-hitting critique of the recently released National IPR Policy (Final Policy). He points out that the so-called innovation-oriented Final Policy itself lacks an innovative spirit. He states that the powerful IP rights-centric Final Policy in its present form is resultant of successful US pressure. Prof. Basheer also identifies a few key positives, such as expedited patent examination, open IP exchange and the infusion of CSR funds into open innovation. Nevertheless, he tears through it for focusing too much on ‘strengthening’ IP rights and also for forgetting to identify other fundamental problems such as our cultural handicaps and our general lack of support for entrepreneurial enthusiasm and risky ventures. Prof. Basheer ends his critique in noting that of all the creative energy flowing in India, none has found its way into the Final Policy document.

Our first post for this week was Rahul’s crucial analysis on the writ petition filed by I-MAK and DNP+ for challenging the patent grant for Gilead’s drug Sovaldi before the Delhi HC. He points out 3 legal fallacies in the decision as identified by Prof. Basheer; most vital of which is the absence of any strong evidence in support of the Deputy Controller’s finding of enhanced efficacy. Lastly, Rahul is also aptly skeptical of the suspicious environment in which the decision was first revoked in January 2015.

Next, I put up a tidbit on a historic collaboration agreement between the Ministry of AYUSH and the World Health Organization. The landmark Project Collaboration Agreement (PCA) will operate between 2016 and 2020. It will be seminal in the creation of the first ever WHO benchmark document for training in Yoga and similar WHO benchmark documents for the practice of Ayurveda, Unani and Panchakarma.

Next, I made a brief report on the key highlights of the Patent (Amendment) Rules, 2016 which came in to force on 16th May 2016. I note the government’s progressive steps in introducing in the rules an expedited system for patent examination, startup-friendly provisions and for a 90% refund for applicants who withdraw applications. On the other hand, I also assert that the government has given up on incentives based on local-working of inventions after yielding to US pressure and coercion.

Subsequently, our SpicyIP Fellowship-Applicant Prateek Surisetti brought us an insightful piece on Apple’s TM tussle over the usage of ‘SplitView’. Prateek has carefully dissected and analyzed each presented by the parties. He points out inter alia that the basic questions are (i) whether SplitView is a descriptive mark and (if yes) (ii) whether extensive use of the mark has given it a secondary meaning. While the Delhi HC is yet to deliver its final judgment, Prateek predicts that Apple will take the win since consumers are unlikely to get confused when Apple’s product is an ‘operating software’ and Rohit’s product is standalone software.

Next, Rahul brought us a detailed post on Roche’s challenge of the Drug Controller’s decision in allowing Hetero to sell bio-similars of Avastin (Bevacizumab); a drug instrumental in curing 6 forms of cancer. He highlights Roche’s allegation against Hetero of misappropriating the former’s reputation by using ‘Bevacizumab’ and that such misrepresentation may harm consumers since they are likely to attribute the same level of safety and efficacy to Hetero’s bio-similar. Noting that the final order is due on 24th May, he concludes by appealing to the Court to take into consideration the crucial aspects of affordability and accessibility to essential drugs while deciding this challenge.

Our next post was SpicyIP Fellowship-Applicant Vasundhara Majithia’s interesting piece on whether copyright fosters creativity. She identifies copyright as a productive constraint and proposes that it forces us to think out of the box and create unique works. However, at the same time she acknowledges that constraints must themselves be limited and that enforcement of copyright should always be subject to fair-use. In conclusion, Vasundhara provides a utilitarian justification to copyright and asserts the necessity of a constraint based copyright system in encouraging creativity.

Our last post for the week was a Prashant Reddy’s brilliant guest post on the legality of “The Licensing and Formats for GM technology Agreements Guidelines, 2016” (Guidelines) published by the Agriculture Ministry on 18th May. The Guidelines require all GM seed patentees to offer licenses on FRAND terms to any company willing to pay Monsanto a government mandated royalty for the patent. He starts out identifying the Guidelines as the government’s new salvo against Bt. Cotton giant Monsanto. In questioning the FRAND requirement, Prashant argues that Monsanto’s technology is substitutable and that FRAND licensing is a voluntary arrangement; something the Guidelines clearly do not advocate. Further, he finds that the Guidelines may not be TRIPS-compliant as the Guidelines have targeted a specific field of technology. Lastly, he also argues that the Guidelines may well be unconstitutional as their issuance goes beyond the Ministry’s powers under the Cotton Price Seed Control Order, 2015.

International Developments

  1. Newt Gingrich says China stole $360 billion in IP from the United States last year.
  2. Nintendo issues copyright claims on Mario-themed Minecraft
  3. The UK Government announces its four-year IP enforcement strategy
  4. Canadian Competition Bureau releases revised Intellectual Property Enforcement Guidelines
  5. Columbia threatens to override Novartis’ patent on Gleevec.

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