SpicyIP Weekly Review (November 6-12)

spicyip-weekly-reviewThe topical highlight of the week was Prashant’s piece on the impact of Donald Trump’s ascendancy to power, on Indian IP law and policy. Prashant starts off by pointing out the grand declarations made by the President elect who in his manifesto has declared that he will make use of every lawful presidential power to remedy trade disputes if China does not stop its plethora of illegal activities. Prashant traces the brief history of America’s policies starting from the Regan era to make a guess on what is in store once Trump assumes power. Given the sweeping claims made by the Republican, Prashant expects US under Trump to approach the WTO Dispute Settement Body (DSB) or still worse impose unilateral sanctions.

The thematic highlight of the week was Prof Basheer’s rejoinder to the claim made by Mr. Prabhakar Rao, in response to Prof Basheer’s op-ed, that the only applicable legislation to transgenic varieties as per the IPR Policy, 2016 is the Plant Variety Protection Act (‘PPVFRA’). The post clarifies that nowhere does the policy talk about PPVFRA being the sole applicable legislation and even if that were the case, an executive policy can in no way override the existing legislations. Thus, no case can be made out in favour of the claim that PPVFRA trumps the Patent Act in the ongoing controversy between Monsanto and seed companies. In light of this clear position, Prof Basheer warns against sacrificing the rule of law at the altar of political expediency merely because the victim this case will be Monsanto, a corporation we all love to hate.

The first post of the week was a guest post by Tejas Popat on the position of law as regards the imposition of import/ customs duty on imported academic books. In this short yet insightful post, Tejas debunks the myth that imported academic publications are more expensive due to customs duty by drawing the readers’ attention to the blanket exemption provided to these under the law.

Next up we had Rahul bringing to us an analysis of the judgment in GlaxoSmithKline Pharmaceuticals v. Sarath Kumar Reddy G, which dealt with passing off and trademark infringement in case of pharmaceutical products. Rahul notes with approval that the Court has applied the ‘exacting judicial scrutiny’ standard in this case too, thus continuing the trend of applying a higher level of scrutiny in case of pharmaceutical products. Nevertheless, the decision makes a welcome departure from the tradition of imposing punitive damages on the infringing party without ascertaining the exact quantum of losses, states Rahul.

Ritvik brought the copyright connoisseurs some cheer with his coverage of a Delhi HC order vacating the stay on an injunction against publication of a guidebook, which provided model answers to questions which were licensed exclusively to Plaintiffs by the ICSE Board. Although a short order, Ritvik observes that, with the matter being sent back to the trial court for fresh hearing, there is ample scope for examination of the issue of copyright protection for questions papers. By making reference to Narendra v OUP Publishing, he discusses how the matter should ultimately play out in light of the various applicable principles and that a cogent case can certainly be made out in favour of extending copyright protection to question papers.

I then had the pleasure of bringing to the readers the latest on the drug pricing policy. The post brings the attention of readers to a few recent newspaper reports, which mention that the central government is considering the disbanding of National Pharmaceutical Pricing Authority (‘NPPA’) in its present form. Furthermore, the government is also considering the delinking of price control orders from the list of essential medicines while proposing to assume authority to control drug prices from NPPA. In this post, I briefly examine the desirability of these proposed reforms.

On the events front, Pankhuri alerted us about the upcoming panel discussion on the implications of DU photocopy judgment, being organised jointly by Oxford Intellectual Property Research Centre (OIPRC) and the Oxford India Centre for Sustainable Development (OICSD). The discussion with its theme ‘Copyright and Course Packs: A Collision of Competing Values?’ is slated to take place on the 24th of this month at Somerville College, Oxford.

Next up, we had a very useful announcement for the patent agent examination aspirants. Dr. Feroz Ali Khader, the MHRD IP Chair Professor at IIT Madras, through this post brought to the readers’ attention his compilation of videos on the foundations of patent law and a free open house session on 27th November for doubt clearing for all the aspirants.

Our week came to a close with another guest post, this time by Mayank Dixit, on the approval granted by FDA of the generic versions of Olmesartan and its combinations. The post notes that the development is notable for the 180-day exclusivity granted to Mylan for its generic equivalents of Benicar® and Benicar® HCT drug products. Mayank goes on to outline the brief background of the present development and gives a pithy analysis of what is in store on this issue.

International Developments

  1. Rubik’s Cube loses EU trademark fight over its shape
  2. E-books can be lent by libraries just like normal books, rules EU’s top court
  3. China’s patent-lawsuit profile grows
  4. In a copyright case, Justices ponder the meaning of fashion
  5. Federal copyright law does not pre-empt trade secret claim



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