SpicyIP Weekly Review (September 4-10)


The thematic highlight for the week is our former blogger Dr. Mrinalini Kochupillai’s two part post (found here and here) on Bt Cotton licensing fee dispute and Prashant’s related post on the same issue. In the first of the two, Dr. Mrinalini speculates the possible reasons behind the Indian government’s decision to first issue and then withdraw the guidelines related to GM (including Bt) technology. She infers that the primary reason behind government’s move to introduce these guidelines is to enable easier access for Indian seed companies over the technology developed by the private sector seed companies worldwide. She then sets out to argue why such a move is ill-advised. In the course of doing it, she draws the readers’ attention to an article by KR Kranthi, the Director of the Central Institute for Cotton Research who recommends that if Bt-II technology is to be rolled out into India it ought to be incorporated not into hybrids, but also into ‘straight’ varieties. But, she cautions even against such a move that would lead to incorporating Bt technology to cotton seeds of any type.

The reasons for this recommendation are dealt with in detail in the second part of the post. She uncovers the fact that there is already sufficient R&D as regards cotton crop and there is no need for further incentivisation in this sector. Furthermore, the area under Bt cotton cultivation is already burgeoning in the country and going by common market logic, any further incentivisation for Bt cotton would mislead the marginal farmer into taking up Bt Cotton without accounting for the possible fall in its prices. She concludes by urging the regulatory regime to instead focus on developing indigenous seed varieties rather than chasing foreign technology, which is still under the cloud of ethical and environmental concerns.

The related post by Prashant on the above issue, which also happens to be our first post of the week, elaborates on his earlier post on NSAI’s dispute with Monsanto over the technology licensing agreements in regard to Bt. Gene sequence in cotton genome. While in the earlier post, he took us through the entire gamut of arguments raised by NSAI, in this follow up post, he specifically examines NSAI’s stance on the question of gene patent itself. NSAI’s argument that Monsanto cannot assert its right to collect royalties once the patented Bt. Gene is inserted into the seed varieties provided by seed companies is fallacious, argues Prashant. He then explains that a slightly more prudent strategy for the seed companies would be to question the gene patent itself, in light of S. 3 (j) of the Patents Act.

Our topical highlight of the week is also a post by Prashant, on the upcoming report by DCGI on the state of drug regulation in India. He laments that, going by the available media reports, the results of the survey seem to be engineered to fit the picture that DCGI wants to portray. He also suggests that the need of the hour is a survey which focuses on auditing the various aspects of the regulatory system rather than merely focusing on the end product.  He then brings the readers’ attention to a rather important PIL that attempted to highlight the issues plaguing India’s drug regulatory system but unfortunately was not allowed by the Supreme Court.

We then had Rahul bringing to us the development about Biowin Agro Research, a farmers’ collective from Kerala, attempting to obtain a trade mark protection for Wayanadan, a form of organic spices and food products. He notes that this is significant since the legal regime established to strengthen the foothold of communities over their intellectual property has not borne much fruit till now and Biowin’s efforts may indicate a shift from this trend. Rahul estimates that the trademark application, which is still listed as pending on the TM registry website, is most likely to come through as the hurdles to be crossed now are fairly routine.

I then had the pleasure of reporting about the ingenious strategy adopted by the producers of Tamil movie, Joker, in combating piracy. Discarding the traditional methods of fighting against piracy, the makers of this social satire put up a request to all those who watched the pirated version to contribute voluntarily to a bank account specifically opened for this purpose. More interesting was the fact that they decided to set aside the proceeds of this revenue to the building of toilets, the accessibility of which formed the core of the movie. I then link it up with the approach taken by Shekhar Kapur, about which we had reported earlier in the blog.

Next in row was Jasneet Kaur’s fascinating guest post on absurd patents. The post was in response to Prof. Basheer’s call for giving the readers a peek into the world of patents, which push the limits of human ingenuity and absurdity. In a post that both informs and entertains in equal measure, Jasneet brings to us five weird patents ranging from a user operated apparatus butt-kicking apparatus to a high five machine!

Vasundhara then brought us the analysis of the judgment in Dart Industries Inc & Ors v. Techno Plast & Ors, which dealt with copyright-design interface. She notes that the decision adds to the existing jurisprudence on copyright-design interface as it recognises the continuing copyright over an underlying original work of art even post the registration of design. The judgment though leaves certain questions unanswered as well, as in the case of textiles and lifestyle products in which distinguishing the product from the underlying art work is next to impossible, concludes Vasundhara.

Anubha’s post on the on-going RCEP negotiations and its potential impact on various fronts, including e-commerce, farmers, tariffs and investor-to-state dispute settlement, as gathered from the press coverage and leaks, was the penultimate post for the week. As regards e-commerce, she notes that while some of the provisions under discussion could conflict with India’s policy on adoption of open source software for government use and IT rules, some others may lead to surreptitious surveillance. Even more alarming are the obligations related to agricultural products as Japan and Korea are pushing the RCEP members to join the International Union for Protection of New Varieties of Plants (UPOV system), which gives breeders’ rights pre-dominance over the rights of farmers. There is cause for concern vis a vis tariff reduction also as heavy tariff cuts are being proposed, which might not be in the best interests of India. Anubha wraps up with a brief look into a number of other miscellaneous issues and by observing that India will be hard at work in the next round for liberalisation in services, for a more free movement of its workers and professionals.

The week came to a close with Pankhuri announcing the 5th Annual Global Intellectual Property (IP) Conclave & Awards 2016 (GIPCA) that will take place on November 10 & 11, 2016 in Mumbai.

International Developments

  1. Hyperlinking copyrighted content for commercial purposes without owner’s consent constitutes infringement, rules CJEU
  2. Four patents of VirnetX claimed to have been infringed by Apple, held invalid by US Patent and Trademark Office
  3. AbbVie’s strikeout application in Humira biosimilar dispute dismissed
  4. German court grants compulsory licence on HIV drug Raltegravir
  5. Intellectual Property Office of Singapore announces closure of foreign route for obtaining patent from January 1, 2020.

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