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SpicyIP Weekly Review (October 15-21)


Our topical highlight for the week was a guest post from Rishabh Anjay Mohnot, who covered the recent decision of the Madreas HC in Mannivanan v. IPAB & Ors. on this blog. The Madras HC dismissed a writ petition filed against the dismissal of the petitioner’s patent revocation application by the IPAB. Rishabh notes that the Madras HC, while arguably coming to the correct conclusion in the case, failed to consider important aspects of a revocation claim, including the impact of sale of the petitioner’s machine in the prior publication analysis and the misplaced use of infringement analysis in a case pertaining to revocation.

Prof. Basheer brought us a thematic/topical highlight, where he dwells upon the decision of the judicial collegium of the Supreme Court to make public and publish its decisions on judicial appointments, and the need to devise a system for ‘judging the judges’. As Prof. Basheer notes, the decision is a huge step forward in making the process of judicial appointments more transparent and accountable, yet, the judiciary has a long way to go before truly being considered accountable, in particular, coming up with a well reasoned (and transparent) metric for judging the merit of its candidates. (This post was also cross-posted in The Hindu).

We had several interesting posts through the week. Sreyoshi reported on the Indian Patent Office’s recent efforts to make patent data more accessible, by publishing data on patent applications in which first examination reports have been issued, in its weekly journal. Apart from this, the IPO has also signed an agreement with WIPO for increased cooperation on patent information.

Next, Mathews brought us the final part of his exhaustive analysis of the regulatory scope of the Competition Commission of India vis a vis the Patents Act. Continuing from his last post, Mathews examines the Delhi High Court’s judgement in Telefonaktiebolaget LM Ericsson v. Competition Commission of India and Anr. On the issue of whether there exists an irreconcilable conflict between the provisions of the Competition Act and the Patents Act. Mathews criticizes the judgement on a few fronts – the judgement did not consider the specialization of forums for competition issues and patent issues when considering the powers of the Controller of Patents; further, the judgement did not consider some important rules of statutory interpretation, while giving particular regard to some.

Prashant also pointed out some interesting inputs from the Ericsson Patents dispute before the Delhi High Court. Prashant reports that Ericsson has obtained ‘gag orders’ from the High Court for certain documents and pleadings, which makes them confidential. After a 2013 Order recording that a chart of claims (of the plaintiff against the alleged infringements of the defendant) was to be confidential, the High Court followed up with 2 similar orders only allowing certain parties to the litigation to access key agreements entered into by Ericsson. Interestingly, the defendants did not object to these applications by the Ericsson, however, as Prashant rightly notes, such unreasoned orders go against the public nature of court proceedings and are a worrying development.

For the final post of the week, I brought you the news that a coalition of major academic publishers had initiated legal proceedings against ResearchGate, a social network for scientists which was beginning to become a thorn in the nail for publishers as it allowed scientists to upload their own papers and share them with other members, without ‘adequate’ restrictions. The legal action came even as some publishers attempt to find a collaborative techno-legal solution to the issue of academics infringing copyright in their own papers.

Other Developments

 Indian

Judgments/Orders

Sap Se & Ors v. Transweave Solutions Pvt. Ltd. & Anr – Delhi High Court [12 October 2017]

This suit was for permanent injunction against copyright and trademark infringement and passing off and related reliefs. The plaintiffs found that the defendants were using the plaintiffs’ trademark to offer their own services. The Court found that plaintiffs’ SAP mark  had over time acquired substantial reputation and goodwill and the actions were of the defendant amounted to piracy and trademark infringement. Further, as the plaintiff’s case was unrebutted, their contentions were accepted as true and correct, and the suit was decreed accordingly.

Sh. Naresh Kumar Aron v. State (Nct Of Delhi) – Delhi District Court [14 October 2017]

The Petitioner filed this criminal revision application against an order indicting him of offences under Section 63 and 65 of the Copyright Act, 1957. The allegations made by the owner of copyright of the text book of microbiology was that the same was being illegally printed and sold by the accused. Trial Court case against the petitioners and his co-defendants was dismissed; and, the prosecution challenged the order of discharge against the petitioner. Based on the evidence presented by the prosecution, lower court found that a prima facie case was made out against the petitioner, and indicted him. Based on the same, this revision application was dismissed as well.

News

  1. India’s NSL to pursue intellectual property litigation with Monsanto
  2. Skoda Banned From Using Monte Carlo Name In India
  3. How the University of California Is Fighting Proxy Patent Battle for Expensive Cancer Drug in India
  4. BCCI Legal Notice To Kundra Over Use Of ‘IPL’ In Poker League

International

  1. Apple hit with trademark lawsuit over iPhone X ‘animoji’ feature
  2. Amazon patents a drone that delivers a charge to power up EVs on the go
  3. Apple denied motions in VirnetX patent case, slapped with a $440M final judgement
  4. Europe’s Highest Court Confirms OSHO Trademark

Divij Joshi

Divij Joshi is a lawyer and general-purpose enthusiast. In his alter-ego, he regularly saves the world by using technology for the greater good, until he wakes up.

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