SpicyIP Weekly Review (March 19-25)

(This post has been authored by Inika Charles and published on her behalf)

The topical highlight of this week is Pankhuri’s post on the upcoming merger of the Copyright Board with the Intellectual Property Appellate Board under the Finance Bill, 2017. She notes that the Bill seeks to amend the Copyright Act so as to transfer the functions of the Copyright Board to the IPAB, which until now – dealt only with trademarks, patents, and geographical indications. While the (Money) Bill needs the President’s assent to become law, Pankhuri raises the important question of whether such an amendment could have been brought through a Money Bill in the first place. We shall soon bring you a follow up post on this matter.

For our thematic highlight, Prashant brought to us his analysis of the brewing copyright dispute between a music composer, Ilayaraja and a SP Balasubramanyam (SPB), a singer. This began when SPB posted an update on his Facebook page informing his fans that he had received a legal notice from Ilayaraja demanding royalties for performing his compositions during the tour. Highlighting the legal issues raised in this dispute, Prashant explains the copyright that exists with music composers and/or their employers.

Prashant began the week with his post on the Delhi High Court’s grant of permission to Biocon and Mylan to market their biosimilar of Roche’s drug Herceptin. This permit was for two additional indications: early breast cancer and metastatic gastric cancer, as they previously only had permission to market their product for metastatic breast cancer. He concludes his post by bringing up whether the viability of India’s legal framework and policy in place for the grant of biosimilars.

Next, Pankhuri brought us the announcement of the launch of the EIPIN Innovation Society Project, which will recruit 15 fully funded PhD candidates for the program. Candidates will be conferred a joint or a double doctoral degree from two of the five participating universities. The deadline for applications is March 29, 2017, 23:59 CET, please refer to her post for all the details.

Balu was up next with his post on a brief filed by the Author’s Alliance (Alliance) in favour of access to course packs.  The Alliance, a non-profit coalition that supports “authors who write to read”, filed an amicus curiae brief in Cambridge University Press et al v. JL Albert et al, in the Northern District of Georgia District Court. Balu first lists out the arguments made by the Alliance, and then goes on to compare their stand to the one taken by academics and authors in our very own DU Photocopy case.

We then had an excellent guest post by Mr. Essenese Obhan, Managing Partner of Obhan & Associates on the enforcement of rejected patent claims with reference to Monsanto and Indian seed companies. The post centers around the patent and trademark disputes that involve Monsanto, and specifically examines Claim 25 of Indian patent no. 214436. He notes that true construction of a patent specification is a significant issue in patent litigation, and additionally examines the scope of Claim 25.

The application process for the SpicyIP Fellowship 2017-18 continues, and we had two insightful posts from our applicants this week. First, Maitreyee Dixit brought us a post on Cyber Economic Espionage and TRIPS. She examines the possibility of a claim based on a TRIPS violation and a non-violation complaint where States conduct cyber economic espionage to obtain trade secrets from companies located in other countries. In her post, she examines Article 39 of TRIPS, which provides for the protection of ‘undisclosed information’, and notes that it is perhaps the best route to pursue WTO Action. Alternatively, States could pursue a non-violation complaint under Article 26.1 of the DSU and Article 64.1 of TRIPS. She however concludes that neither route is suitable to combat cyber economic espionage.

Maitreyee then followed this up with her second submission for the Fellowship: an analysis of the Delhi High Court’s order in MontBlanc v. Gaurav Bhatia. The High Court employed reasoning similar to the Cartier International v. Gaurav Bhatia, and held that the Defendants were liable for trademark infringement for selling counterfeit products. What is however notable about this case is that the Court refused a claim for damages of 20 lakhs, citing the lack of sufficient evidence for the same. Maitreyee lists out the jurisprudence on the grant of damages, and concludes with her analysis of the case.

Rahul ended the week with his post on ICSID’s rejection of Eli Lilly’s claim against Canada. The claims were brought under NAFTA, and founded upon the alleged change in the utility standard for establishing patentability under Canadian law. The Tribunal rejected the claims made by Eli Lilly, as they noted that there was no dramatic change in the Canadian patent law, and it was just that Courts had been applying the utility standard with greater frequency to invalidate patents.  Rahul notes that this decision is very significant as it gives domestic judicial forums the right to interpret domestic patent law in the manner they deem fit. Further, the decision prevents a claimant from invoking the provisions of a multilateral treaty for the invalidation of its patents consistent with settled legal principles.

International Developments

  1. Apple wins iPhone 6 Patent Case in China
  2. Microsoft’s new patent hints at surface phone with a foldable screen
  3. PacBio sues Oxford Nanopore for patent infringement
  4. US Supreme Court rules uniform design elements can be copyrighted

Leave a Reply

Your email address will not be published.