SpicyIP Weekly Review (February 5-12)

This week’s thematic highlight was Balaji’s amazing post on injunctions in matters of public interest. Commenting on the Delhi High Court’s recent order in Bayer v Ajanta, he first relies upon Bayer’s Form 27 filings for 2013-16 to note that Bayer hasn’t been working its patented drug ‘vardenafil’ in India. He points out that Bayer only noticed possible infringement of its patent in 2016 and began to sue offending manufacturers; including the defendant Ajanta in the present suit. Successfully relying upon Franz Xaver Huemer v. New Yash Industries, Ajanta challenged the initial ex-parte injunction obtained by Bayer on grounds that the latter had not worked its patent in India till date. Balaji then points out the flaw in Bayer’s  reliance upon  Novartis v. Cipla since the Novartis Court merely rejected the claim that a patentee should be refused an injunction as a rule for not working its invention in India. He believes that Justice Gauba was correct in relying upon Franz Xaver to refuse an injunction to Bayer on grounds of public interest.

Delving into the spicy-factor of this judgment, Balaji notes that this judgment is a testament to the fact that ‘an alert defendant can avoid long periods spent under the cloud of an ex parte ad interim injunction’. On the basis of the availability of Bayer’s unambiguous Form 27 filings, he infers that “some amount of reform has occurred in the patent office and in industry in an area that [SpicyIP has] blogged about”. And lastly, he also sheds some light on the possible arguments on whether Justice Gauba’s order is TRIPS compliant. He points us to an Indian delegation’s argument before the TRIPS Council in 2011 that denial of injunctive relief in case of export-exclusive manufacture would be violative of Art. 31(f) of TRIPS. He then concludes with providing a possible response to this argument in stating that the terms of Justice Gauba’s order leave it open to Ajanta to sell within the Indian market as well even though it, in fact, refrains from doing so.

Also bringing us the topical highlight of the week, Balaji reported the first ever amendment to the TRIPS Agreement to formalize the Paragraph 6 system of the Doha Declaration. This para aims at balancing the interests of patent protection with the need to provide better access to healthcare in the least-developed countries. Balaji first explains the scope and scheme of Article 31 of TRIPS, which essentially restricts the issuance of compulsory licenses for supply to the domestic market of the member issuing it. He notes that this left LDCs disadvantaged since they would be precluded from importing generic versions of patented drugs from countries like India. Balaji notes that an amendment was eventually preferred over a wider interpretation of ‘limited exceptions’ under Art. 30 by the General Council since the latter was not feasible after the restrictive interpretation of Art. 30 by the WTO Panel in  Canada – Patent Protection of Pharmaceutical Products. Balaji remarks that this move will now allow members to issue export-oriented CLs under the new Art. 31bis of TRIPS. That said, he notes (just as Margaret Chan of the WHO) that the scheme of the new Art. 31bis is not nearly enough to provide better access to medicines in the LDCs.  Among other things, he points out that the ‘Decision to Implement Paragraph 6’ is not of any help because patentees are still entitled to ‘adequate remuneration’ under Art. 31(h) which has to be calculated in accordance with the patentee’s ideal exploitation of the invention. In conclusion, he states that “the Decision and the Amendment appear to have been set up to fail from the get go”.

Pankhuri started off the week with announcing the 5th Annual SpicyIP Fellowship (2017-18). This coveted fellowship is a brilliant opportunity for amateur blawgers, law students and professionals to work with some of the best IP minds in the world. As for eligibility, I don’t think it could be put better than this: “Sex no bar, age no bar, caste no bar, ideology no bar. So long as you are committed to the craft of writing, and possess a keen mind willing to learn and an attitude open to experimenting with fun formats and themes, this is the place for you!” Find out more about the fellowship here. So what are you waiting for? Apply already!

Speaking of the best IP minds in the world, Pankhuri reported next that SpicyIP has been ranked third in BuzzFeed’s list of top 15 IP blogs in the world. IPWatchdog, IPKat, Patently-O and the Kluwer Copyright Blog are a few others who made it to this list. Similarly, SpicyIP was ranked fourth in BananaIP’s list of top 10 IP blogs in the world. While this is a commendable gesture on part of a competitor, Pankhuri aptly notes that BananaIP has mischaracterized SpicyIP as an ‘anti-IP’ blog. To this, she raises an interesting question: “Would being ‘pro-IP’ mean supporting patent protection for 100 years, notwithstanding the fact that this endless protection in favour of a monopolist would completely destroy competition and prospective innovation from follow on inventors etc.?” Lastly, she points out to Shamnad Sir’s take on this issue, where he calls for a change in the perspective of this age-old debate between pro-IP and anti-IP.

Next, Inika brought us a brilliant analysis of TM dilution and disparagement in light of BATA’s recent onslaught against the makers of ‘Jolly LLB 2’ for making a derogatory remark about BATA. The allegedly offensive remark appears in the film’s trailer as follows: “…varna kya…Bata ka joota pehan kar, tuchhi si terricot ki shirt pehan kar, sala hum se zabaan lada rahe hain”. While both parties have agreed to remove references to BATA from the film, the Delhi High Court in a recent order issued summons to determine the extent of damages; which BATA claims to be Rs. 3 crores. Inika then makes an exhaustive analysis of BATA’s TM dilution claim. She first points out that a trademark can be infringed under Section 29(8) of the TM Act when the use of such mark in an advertisement is harmful to its reputation. While she acknowledges that the film’s trailer cannot be said to be an advertisement, she brings in this provision to provide a better perspective on the matter. While the remark may be derogatory, Inika notes that the producers’ use of BATA in the trailer cannot constitute ‘use’ under Section 29(6) since it was only incidental. She then backs her analysis with precedents and settled legal principles. In conclusion, she states that BATA would fare better by filing a defamation suit/complaint than a suit for TM infringement.

The week concluded with Rahul’s hard-hitting report on the misappropriation of Indian scientific research by a Lancet study. In deciphering the cause deaths of school boys in Muzaffarpur, this study accurately pointed the finger to consumption of litchi fruits by these malnourished children.  While duly acknowledging its merit and importance, Rahul points out that the Study is marred by data misappropriated from a May 2014 research paper by Dr. T. Jacob John and Dr. Mukul Das in ‘Current Science’. This paper “explored the hypothesis that the consumption of hypoglycin and MCPG found in litchi fruits by malnourished children is the cause of abnormally low blood sugar levels, resulting in their eventual death”. Rahul notes that this form of misappropriation does not amount to copyright infringement, but it does constitute plagiarism. Lastly, he laments upon ‘India’s failure to appropriately incentivize the publication of high-quality, rigorously researched papers’ and strongly asserts the need to create conditions conducive to good research and to protect presently documented research by Indian scientists.

International Developments:

  1. Beyonce faces a $20m copyright suit from late YouTuber Messy Mya’s Estate
  2. Microsoft Adds Patent Suit Protections For Cloud Customers
  3. Jawbone fails in its invalidity claim against Fitbit’s wearable device patent
  4. HBO sues Chinese restaurant for infringing its trademark

Ritvik M Kulkarni

Ritvik Kulkarni is a final year student at ILS Law College, Pune. He is the Student Coordinator of the ILS Intellectual Property Rights Cell and Student Editor at the ILS Abhivyakti Law Journal since 2014-15. Ritvik first learnt of IP while preparing for his first moot; and has been regularly taking his weekly IP fix ever since. Additionally, he takes interest in learning the law and practice of domestic and international dispute settlement. Speaking of disputes, he's an ardent follower and jabra fan of Game of Thrones. You can get in touch with him at [email protected]; and dont worry he loves F.R.I.E.N.D.S too.

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