I believe this week’s thematic highlights were Ritvik’s pieces. Not only were they quite analytically comprehensive, but also quite palatable relative to the complexity of the issues that he chose to deal with.
His first piece was on the method of determination of the situs of Intellectual Property. In the Delhi HC decision that he analysed, the Divisional bench held that a foreign entity’s IP transaction was not taxable in India. Ritvik disagrees with this stance. He contends that the IP in question had gained it’s value in India and therefore, the asset is in India and consequently, should be taxed.
His next piece is a two part post.
In which he discusses the fairly complicated area of where a plaintiff can sue given the special provisions of S. 62 and S. 134 of the Copyright Act. The Act allows plaintiffs to file a suit at the place of their business, but corporate plaintiffs have attempted to take advantage of this and drag defendants to places where they have branches, despite cause of action existing at a different place. He explains the case law in the first and then consolidates the analysis into a neat formula in the second.
This week’s topical highlight is the analysis by Aparajita and Prashant on the recent Supreme Court involving Star Sports and Prasar Bharti. According to S. 3 of the Sports Broadcasting Signals Act, broadcasters of sporting events having national significance need to share their feed with Prasar Bharti. The problem was that the feed Star Sports got from ICC (event organizer) already contained ads in the form of on-screen ads (E.g. Logos while showing statistics) and Prasar Bharti asked for either their removal, or for compensation (despite Star Sports not making any money out of the on-screen ads). And very strangely, the court sided with Prasar Bharti.
Rajiv sir opened the week with a post on the US Government Accountability Office report on the US Patent & Trademark Office. He argues that the concerns raised by the report are very much applicable to the Indian patent office. After briefly discussing the problems raised due to granting of invalid patents, he moves on point out other concernsm, such as weak scrutiny standards in software patent grants and grants of overly broad patents.
Next, we have Prashant’s lucid piece on the liability of search engines when they serve as a platform for advertising “sex determination kits“, which is outlawed by the Pre-Natal Diagnostic Techniques Act. He contends that though the IT act protects “intermediaries“, search engines cease to act as “intermediaries” when they produce results based on payments. He concludes by stating that though one could legally go after search engines, it makes far more practical sense to go after the parties which actually produce or seek to advertise these kits.
Next, we have Rahul’s piece on how counterfeiting of goods affects India. After discussing a flurry of recent events outlining India’s unique status as a country that both indulges in counterfeiting, while also being hit by it, he moves on to analyze the effects of restricting counterfeiting on parallel good imports (which are legal).
Following which, we have a theoretical piece by Mathews, which I found very interesting. His core argument is that while constructing a patent regime, due attention needs to be paid to the fact that patents are inherently different (gate keeper patents, patents with incremental invention, patents with radical invention, et cetera). And it is this variation in character that should guide our policy and the current “one size, fits all” approach is completely blind to such distinctions in character.
Next, we have a guest piece by Ms. Chivukula on a recent proceeding in the Intellectual Property Appellate Board, wherein the chief question was whether party can surrender patent rights under S. 63 (Patents Act), when the said patent is the subject matter of revocation/opposition proceedings. She analyses the judgment and states that a patent cannot be surrendered when it is under a revocation or opposition proceeding.
Moving on, we have Balaji’s incredibly (*searching for synonyms for “lucid“*)…cogent piece on the John Doe regime, specifically in the context of a Bombay HC order that chided Tata Communications Ltd. (an ISP) for not complying with the court orders in the specified manner. Tata contended that complying with the requirement of publishing individual error pages for each of the URL’s was not “technically feasible“, but their argument was rubbished by Justice Patel.
Next, we have Kartik coming up with a brief recap of consillience, 2016, wherein issues of open innovation, open education, open law/policy and the future of the commons were discussed. Kartik also brought to your notice the launch of the Open Access IP Dictionary
After which, Pankhuri brought to your attention a workshop titled “SEPs: Paten5s and Anti-trust Issues in the High-Tech World“, which will be conducted on the 27th of August in Delhi. The last day for applying was 15th August. Further details here.
This was followed by Inika’s comprehensive analysis of a trade mark case involving “Raymond Limited” and “Raymond Pharmaceuticals”. She discusses the application of S. 29 (4) of the Trade Mark Act, which has got to do with infringement claims concerning products of different classes. Finally, she discusses the principle of sub-judice and how it should have been applied in the present context. .
International Developments:
