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SpicyIP Weekly Review (April 13 – 19)


(This post has been authored by our intern, Bhavik Shukla, a 5th year student at NLIU, Bhopal)

Topical Highlight

In an important and pertinent post, Namratha discussed the applicability of India’s fair use provisions to the use of copyrighted works for online education during the current COVID-19 pandemic. First, she notes that the scope of fair use under section 52(1)(i) of the Copyright Act is not merely limited to classroom teaching but to the entire process of education, including online education. Second, she notes that in case of video recordings of classes that use copyrighted material, teachers/ institutions may upload lecture videos on private pages or use open source works. Third, she notes that there is no certainty under the Act over the applicability of fair use provisions to distribution of digital copies of physical books available in university libraries. Further, she addresses policy considerations in light of the COVID-19 pandemic: first, the need for a balance between educational fair use exceptions and the rights of copyright owners. Second, she observes that there is a requirement for a framework in relation to digital libraries. Finally, she notes that the copyright law does not account for fair use in emergency situations.

Thematic Highlights

Prashant and Prannv wrote about shutting down the IPAB, and transferring its powers and pending cases back to the High Courts. They note that over time various powers originally vested in the HCs were transferred to the IPAB, but its creation was never discussed with the public and the IP bar in the first place. Further, they point out the inordinate delays in the appointments of Chairpersons, and the lack of appointments of Technical Members. With respect to the quality of appointments, they provide examples of certain appointments of technical members. They also state that bureaucrats who had no prior experience of law were appointed to the post of a technical member in most cases. Subsequently, they focus on the lack of infrastructure in IPAB offices across the country. Referring to the state of affairs at the IPAB and its impact on litigants, the general public, the IP bar and the IP litigators, they suggest that a ready solution can be obtained by shutting down the IPAB and transferring its functions to the HCs.

In a response to Prashant and Prannv’s post, Arun C Mohan, our new Scholar in Practice, notes that the delays in appointment of Chairpersons cannot be attributed to the IPAB, due to the Government’s prerogative in such appointments. Rebutting Prashant and Prannv’s point on the quality of appointments, Arun observes that most appointments of Chairpersons have been of former judges of the HCs. He further emphasizes upon the ease of filing and practicing before the IPAB as compared to HCs, and also notes that transferring matters back to the HCs will only overburden an already burdened system. He observes that the IPAB offices are fully-functional and points out the efforts of Intellectual Property Association of South India for the revival of the IPAB. He concludes by noting that a petition seeking quick appointments of Chairpersons and members is pending before the SC, and also accounts for the representations filed by numerous counsels concerning the same matter.

Other Posts

Adarsh covered the WIPO’s press release, through which it was declared that most PCT applications for 2019 originated from China. He observes that the increase in patent filings from China translate into a ‘momentum towards innovation.’ He states that it is highly probable that such consistent momentum may result in a significant ‘acceleration’ towards producing ‘mighty innovations.’ Further, he notes that Indians have grown complacent towards innovating, and that the government has not done much to generate a ‘momentum’ towards it. Quoting his father’s letter which provides a lucid understanding of China’s attitude towards innovation and the manner in which such innovation is fuelled, he states that India has failed at understanding ‘when’ and ‘how’ to drive innovation. He hopes that the COVID-19 pandemic has proved as an important lesson to the government and the inventors to push towards innovation.

Arun discussed the trademarking of digital currencies. He notes that the central theme involved in blockhain as well as digital currency is the ‘absence’ of any centralized control. He explains that no individual can claim ownership over such technologies, and accordingly they cannot be protected under the IP laws. Further, he emphasizes upon the downsides of no trademark protection to such technologies as: first, it might result in a defrauding transaction under the garb of a legitimate digital currency transaction, and second, it might lead to transactions involving counterfeit digital currencies, like ‘Baitcoin’. He notes that technology alone cannot tackle such fraudulent activities in relation to digital currencies. Ultimately, he suggests that registration of such technologies as collective mark(s) may be explored, in order to protect such technology from being misused by third parties.

SpicyIP Announcements

We informed the readers about the range of online graduate IP law programs being offered by UNH Franklin Pierce School of Law. The priority application deadline for the programs is July 1, 2020. Further information on the courses offered and the application process can be found in the post.

Other Developments

India

Judgments

Keller Williams Realty, Inc. v. Dingle Buildcons Private Limited and Others – Delhi High Court [April 17, 2020]

The dispute between the Parties arose on account of the Defendants’ alleged infringement of the Plaintiff’s mark “KW” by using an identical mark in respect of real estate projects. The Court observed that the Plaintiff had no business or customers in India in relation to any real estate operation, and that the Plaintiff had failed to show that its reputation and goodwill had spilled over into India. The Court also noted that the mere registration of a mark without its use was not sufficient to grant any right to the proprietor. In respect of similarity between the two marks, the Court stated that the Defendants were using the mark along with other words like ‘SRISHTI’, ‘BLUE PEARL’ etc., which was sufficient to distinguish them. Additionally, the Court noted that the Plaintiff was also guilty of delay and laches on a prima facie examination of the matter, as it had failed to take action for almost 6 years even after having knowledge of the Defendants’ registrations. In light of all these factors, the Court dismissed the Plaintiff’s application for the grant of an interim injunction.

News

  • The Office of the CGPDTM notifies that all IP Offices shall remain physically closed and scheduled hearings stand adjourned upto May 3 and all deadlines for filings etc. shall be extended till May 4; clarifies that e-filing services remain unaffected. A pertinent piece discussing  the conflict between this notice and the Supreme Court’s order extending limitation period last month can be viewed here.
  • The last date to register for the Patent Agent Exam 2020 has been extended to May 4.
  • Reddy’s Laboratories denies being in the early stages of creating a generic version of Gilead’s potential anti-COVID (patented) drug Remdesivir, after news emerged stating that it had already taken steps to that effect.
  • CSIR announces Technology and IP guidelines for COVID-19 related technologies/ products developed by its laboratories.
  • Serum Institute CEO, Adar Poonawalla claims that his company will develop a COVID-19 vaccine by 2021 and will not seek patent protection for the same.
  • A group of researchers in India file a patent for a UV racket that can disinfect surfaces by merely  waving it on them and may thus help in the fight against COVID-19.
  • A group of researchers led by Prof. Subhabrata Sen file a provisional patent application for new chemical entities that can help in the fight against COVID-19.
  • A piece in Business Today contemplates Gilead’s move to partner with Indian firms for the manufacture of Remdesivir.
  • A piece on Newsclick contemplates if India’s offering of Hydroxychloroquine to the U.S. will open the doors for the import of Gilead’s Remdesivir.

International

  • The EU urges the World Health Assembly to establish a voluntary pool of IP in order to ensure the availability of vaccines, treatments and other medical products to tackle the COVID-19 pandemic.
  • Premier Biomedical, Inc. announces a provisional patent application for a method of treating COVID-19 by targeted removal of disease-specific antigens.
  • A piece in the Infojustice argues that a global patent pool may facilitate the development, production and distribution of vaccines and other medical treatments, but the WHO will need to quickly act in that direction.
  • A piece in the City Press notes that the safeguards in international law won by developing countries in wake of blockage of access to HIV drugs are now being heralded by lawmakers around the world.
  • A piece in JDSupra discusses the feasibility of public and patent law mechanisms to tackle the COVID-19 pandemic in the U.S., U.K. and Germany.
  • A piece on TaylorWessing LLP’s website argues that the ground of ‘public interest’ can be validly evoked in order to compulsorily licence patented inventions to fight the COVID-19 pandemic in Europe.
  • The Full Federal Court of Australia dismisses patentability of a method of innovation as an invention.
  • A New York court rules that the use of a photo from an Instagram post by a news outlet does not violate copyright law.

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