SpicyIP Weekly Review (July 16 – 22)
Divij Joshi
The first thematic highlight for this week was Harshvardhan’s exploration of the ‘goodness’ of trademarks, in his two–part post. Harshvardhan highlights the cultural role of trademarks and explores how the law treats trademarks not merely as an indicator of goods, but also of ‘goodness’, sometimes by seeking to restrict immoral or pejorative trademarks. Harshvardhan builds the argument that a trademark must be based on something more than distinctiveness, and it must satisfy a moral or ethical standard.
Mr. Jagdish Sagar continued a series of discussions on this blog about the scope of copyright in films, specifically in response to M.V. Swaroop’s analysis of the ‘physical copy’ doctrine in Indian copyright law. The post examines the judicial and legislative history behind the granting of copyrights in cinematographic films and argues that a cinematographic film is more than a sum of its underlying works, and is a protectable work in itself, beyond merely the visual recording of the final product.
The topical highlight for the week was Sreyoshi’s post reporting the order of the Bombay High Court overturning the order of revocation of the IPAB from August, 2012. Setting an important precedent, the Court overruled the IPAB order on the grounds that the matter had been withdrawn, by consent of the parties, prior to the issuance of the IPAB order but after the hearing of the revocation petition had concluded. Sreyoshi links this to a legal strategy of ‘reverse settlements’ by patentees who are eager to extend their patent rights in the face of legal challenges to the same, and questions whether similar decisions need to be assessed from a competition law perspective.
Next up was Professor Basheer’s post updating us on the (in)famous monkey-selfie copyright case filed by PETA, claiming that the copyright in a selfie should vest with the Macaque chimpanzee and not with the photographer who owns the camera. Prof. Basheer links the argument on the locus standi of PETA representing the monkey, to a script he had written, based on an Artificially Intelligent creator claiming copyright over works made by it. While the monkey copyright case is hotly debated, copyright cases involving machines are likely to be a hot topic in times to come.
Mathews then updated us on the apparent grant of trademark to the Missionaries of Charity in respect of a white saari with blue stripes. Matthews reasons as to why the grant of this trademark lies on dubious legal grounds, arguing, for instance, that the organization does not use the product ‘in the course of trade’, or that it has not been used as a distinctive trademark by the organization.
I covered a couple of important announcements from the Indian Patent Office, which made some helpful changes to their procedures – issuing bilingual (Hindi and English) First Examination Reports for patent applications, and also automating the process of issuing Patent Certificates.
Maitreyee then brought the latest development in the Arnab Goswami – Times Now saga. The Delhi High Court, hearing the case, refused to issue an interim injunction against Goswami’s use of the phrase ‘the nation wants to know’, until the final disposal of the case (thereby resigning us to many more evenings of hearing the fastidious catchphrase).
Pankhuri announced the call for registration for a free MOOC (Massive Open Online Course) offered by Prof. Feroz Ali of IIT Madras, on Patent Law for Engineers and Scientists. Further, she announced the third international patent drafting competition organized by the Institute of Intellectual Property Research and Development (IIPRD), along with Khurana & Khurana, Advocates and IP Attorneys (K&K). The competition is open to all and offers some great prizes. The competition is open until August 20, and SpicyIP readers get a 50% discount in entry fees – so enter now!
SpicyIP Weekly Review (July 23 – 29)
Maitreyee Dixit
The topical highlight for this week was provided by Sreyoshi’s piece on the Google research scandal, which has opened a can of worms in the world of research and ethics. She analyzes the claims made by the Campaign for Accountability (CfA) against Google, for funding several research projects that support its business and policy goals and non disclosure of the same. A part of CfA’s ‘Google Transparency Project’, the ‘Google Academics Inc’ (GIA) report aims to unravel the “corrupting influence on academic research” by Google’s undisclosed funding, raising important questions about the reliability of and ethics surrounding industry funded research. Sreyoshi then examines the GIA report, its methodology and surrounding ethical questions, and concludes by noting that this demand of transparency from a Corporation so pervasive is a step in the right direction.
This was followed by a tribute to the doyen of Patent law, Mr. Shanti Kumar, who passed away recently. Recounting her experiences with him and his contribution to the field, Ms. Jaya Bhatnagar writes about his expertise, dedication and passion for patent law, quoting him saying “If you cut me, you will see only patents flowing through my blood stream” to illustrate the same. She also fondly remembers him as a mentor, a humble man with an illustrious career as the Joint Controller of Patents and Designs, as a formidable lawyer, and as an admirable academic who helped ignite the same passion for patent law in the hearts of many other lawyers.
Prof. Shamnad also pays a tribute to him, remembering him as a generous, meticulous professional and person, who sparked the passion for patents in him. Talking about the larger question of the field of patent law, Prof. Shamnad then discusses the several conflicting signs inflicting a “schizophrenia” of sorts on patent law today; and hopes that the future will witness a strong set of leaders who will restore the strong policy compass that was championed by Mr. Shanti Kumar.
Our thematic highlight was Divij’s post on Sci-Hub and its disruption of the traditional journal publication regime, bothering many huge publication houses like Elsevier. Websites like Sci-Hub essentially introduce academic papers to ‘digital publishing’, but without a license or copyright. Their posting of papers online potentially violates the copyrights of several publishers, which they obtain from the author along with their work. In the context of the suit against Sci- Hub and LibGen for copyright infringement, Divij underscores how copyright law (especially in developing countries) contributes in making academic publications inaccessible. Though he admits that websites like Sci-Hub are not the solution to the problem of lack of access, the very presence of such digi-repositories has shuffled some stabilized systems that needed to be shaken. He highlights several digital publishing initiatives, like that of the Wellcome Trust and the Bill and Melinda Gates Foundation, which have directed that research funded through them must be made open access. Several repositories for post publication and pre-publication works are also being created, aiming to cause shifts in how the publication industry functions; hopefully creating business models that privilege better (and cheaper) access for consumers.
This was followed by an anonymous writer offering an interesting take on the question of naming attorneys as co-inventors of claims. Presumably breaking a ‘patent taboo’, the writer argues that if ‘anyone contributing to claims defining an invention shall be cited as inventors’, then attorneys that make the claim should be too. More often than not, attorneys have to produce twenty page long documents from piecemeal material given by their clients, which is often a drawing or a short abstract. This requires not only filling gaps, but virtually inventing parts of the ‘invention’ for which a patent application is sought to be filed. Even after this amount of work, the attorney is not cited as a co-inventor. This, he/she believes, is highly unfair, if not illegal. If this proposition is accepted, then most of the patents will be invalidated, as the co-inventor (attorney) has not been listed as one.
In upcoming events, Pankhuri announced that the Inter University Centre for IPR Studies, Cochin University of Science and Technology (CUSAT) is organizing the fifth annual ‘Rethinking Intellectual Property Rights’ workshop on the theme ‘IPR, Access to Seeds and Farmers’ Rights’. This workshop is scheduled to be from January 18, 2018 – January 20, 2018 in CUSAT, Cochin and is directed towards students interested in the field. The post can be referred to for further details.
