SpicyIP Weekly Review (July 31- August 7)

Thematic Highlight:

Prashant discussed a recent Delhi HC case involving engineering drawings and their reproduction in 3D form. The defendant got away from the plaintiff’s copyright infringement claim on account of S.15(2) allowing for exemption to design infringement in cases where production crossed 50 units. Prashant argues that the engineering drawings do not constitute “designs” in the first place and therefore, the court misinterpreted S.15(2). Then, he proceeds to further argue that one cannot prevent another from manufacturing the content of engineering drawings as S.52(1)(w) of the Copyright Act disqualifies “the making of a three-dimensional object from a two-dimensional artistic work, such as a technical drawing, for the purposes of industrial application of any purely functional part of a useful device” as infringement.

Topical Highlight:

Through a SpicyIP Tidbit, I brought to your notice a Supreme Court Order calling out the Delhi HC regarding the “Disturbing Trend” of settling IPR issues through interim orders. Furthermore, the SC directed the Registrar General of the Delhi HC to file a report that delved into various kinds of data regarding pending IPR cases.

Other Posts:

First up, I came up with a brief review of the IP Chapter from Code 2.0. The book discusses regulation in the backdrop of advancing technologies. My discussion points were as follows:

i. Lessig’s analysis of regulation.
ii. Regulation of the IP ecosystem in the digital age.

Up next, as a part of our open access commitment, we have Pankhuri’s post providing you access to a recent Patent Office Order that rejected a compulsory license application for BMS’s patented anti-cancer drug “Dasatnib“, while also bemoaning the lack of access to important order and judgments on the POs website. Other such documents can be accessed at our resources page.

Next, Prashant discussed a 2014 J. Bhat Delhi HC judgment that overruled 2005 DHC judgment (Time Incorporated v. Lokesh Srivastava) that allowed for imposition of punitive damages in IP cases. His discussion points were as follows:

i. Key excerpt from 2005 judgment.
ii. Key excerpt from 2014 judgment.
iii. Conditions for grant of punitive damages.
Iv. Link between “exemplary damages” and “actual damages“.

Following which, I discussed the Delhi HC judgment involving the mark “PARAMOUNT“, in relation to businesses dealing in hospital beds. The central discussion points were as follows:

i. Effect of misrepresentation in plaint on equitable claims.
ii. Possibility of rebutting presumption of ownership due to TM registration.

Next, we have Mr. Choudhry extolling the Patent Office for processing patent applications through the “Expedited Examination” swiftly. Also, he briefly describes the technicalities behind applying for an “Expedited Examination“, while noting that one of the patent applications was processed in record time (4 months).

Following which, we have Prashant discussing whether the CCI is a judicial or an executive body. After setting up the debate, he critiques a recent opinion piece in the Financial Express. His discussion points were as follows:

i. Whether CCI should stay in compliance with the government’s IPR policy?
ii. Indirect enforcement of an American patent in India.
iii. Whether determination of royalty be based on normative values or economics?
iv. Whether CCI should formulate guidelines?

Next up, Prashant, discussing the intersection of functionality and design law, looks into the significant cases on the matter. Noting that courts have tried to deal with an issue on which the relevant Indian statute is silent upon, he argued that courts should not add an additional criterion (absence of functionality) where the statute doesn’t.

Finally, Balu came up with his analysis of the ongoing verbal battle between Barkha Dutt and NDTV regarding the usage of the term “Mojo” (Short for Mobile Journalism). Balu’s discussion points were as follows:

i. Why Dutt’s claims over the term do not hold much water?
ii. The high standard of distinctiveness required to be proven for generic words/phrases.

International News:

  1. Trump Administration to open probe into China’s IP policy.
  2. Apple’s latest Patents suggest iPhone Privacy Upgrades.
  3. Under Armour Wins Trade Mark Battle in China.
  4. Baby Driver Moviemakers sued for Copyright Infringement.

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