[This post has been authored by our new intern, Vedanigini Bisht, a 3rd year student at National Law University, Delhi]
Topical Highlight
Government Copyright over Bare Acts: India’s Georgia et al Moment on the Horizon?
Balu discussed the case of Arpit Bhargava v. Union of India and Anr. which has now come up before the Supreme Court. He notes that the appellants arguments regarding accessibility and copyright issue are misplaced. The Appellant’s prayer for accessibility is being addressed by the Delhi High Court in the case of Union of India v. Vansh Sharad Jain. The High Court directed the Union to make all legislations available online and is still monitoring Union’s compliance with its order.
With regards to the copyright argument, Balu notes that we need a more lenient copyright regime vis a vis legislative texts, rather than a stricter one as argued by the appellant. In order to achieve a more lenient copyright regime, Balu examines if the ‘government edicts’ doctrine, as recently discussed in the Georgia at al, may be relied on. He observes that this may be difficult because of the difference in the language used in the US and Indian copyright laws. Instead, he suggests that an amendment to section 52(1)(q), or a purposive reading of the provision may enable the creation of a lenient copyright regime and through it, better access to laws.
Thematic Highlight
Patents for Pharmaceutical Innovation – Basic Concerns
Swaraj analysed the broad level questions of the suitability of the patent system to play the role it’s been given as a pharmaceutical innovation mechanism. With many millions of people still dying from diseases that have existed for decades, some of the aspects to be considered are, first, as long as we rely on the patent system for deciding how drugs should be priced, the price point will always be aimed at profitability first and foremost. Second, several big pharma companies seem to have shifted focus towards acquiring marketable products rather than actual drug innovation. Third, it is clear that even the focus of research, will be on profitable markets rather than addressing health concerns, although it is changing a little now. Fourth, the patent system does not incentivise public health goods that have social value. Although, the patent system act as a decent proxy for a pharmaceutical innovation system, we need to work towards systems that will be at least slightly more health-need centric in their outlook.
Other Posts
SEPs and Confidentiality Clubs: No Compatibility With Each Other
In a guest post, Rajiv wrote about why it is not in a defendant’s best interests to agree to a confidentiality club arrangement in a SEP litigation. He argues that patent litigation anywhere across the globe is the domain of the right holder, of one with deep pockets. The rights of the litigants are embraced within the public interest at issue and dependent upon it for the exceptional character of the rights contested, which become even more lopsided for a SEP litigation. This is because in SEP litigation is competition for the market. Asymmetric information skew in favour of the plaintiff in SEP matters. Putting claim charts as confidential information in the confidentiality club is an overreach. The defendant’s information that is supposedly protected in a confidentiality club by nature is public. Further, the strategy of reaching out to the end brand results is a great skew and distorts the entire market.
Digital Copyright Exhaustion in India – A Need For an Expansive Application
I wrote a post on the need for expansion of the copyright exhaustion doctrine to the digital medium in India. The case is made by noting that first, regard needs to be given to the digital age we live in and customers do not keep a stock of tangible goods. Second, Affordability is achieved because of no requirement of a tangible carrier and more intense price competition. Third, it ensures a free movement of goods. Fourth, if exhaustion is not extended to digitally transmitted goods, it shall constitute discrimination against the buyers of such goods. Problems which need to be addresses before the doctrine is expanded are then noted, that the sale of a digital copy extends this principle to reproduction rights; it falls closer to licensing; and an extension of this doctrine is considered separately for computer programmes and other digital work.
Consultation Process for New Science, Technology and Innovation Policy 2020 Begins – How to Contribute?
Swaraj wrote a short post on the STIP 2020 consultation process. The consultation process is a ground-up, with public input being collected prior to a first draft of the policy. The question arises as to whether this effectively acts as a non-governmental body acting as a host for the consultation process and if yes, would that be a potentially problematic precedent. The focus appears to be on applied and basic research and climate change, environment and sustainable development shall be taken into account. The aim is to top the 4500 consultation inputs were received in the previous policy (STIP 2013), which is facilitated by 21 thematic groups. A quick look is taken on the comments of the 2013 policy, which notes that the goals have not been achieved. A workable and accountable action plan would be crucial to ensure that 2020 STIP does not become yet another policy document to look back and lament on.
Why is the Patent Agent Exam Held in Only English?: Addressing the Language Barrier to a More Accessible Patent Regime
Namratha wrote about the non- conduction of the patent exam in any other language than English and how these issues affect access to the patent system and its benefits and also its impact on innovation, particularly at the grassroots level. First, as per the Patents Rules, patent applications, and other related documents can be filed either in English or Hindi. But the government has assumed that the work of a patent agent cannot be done in Hindi alone and that everyone taking the exam in English knows Hindi by default. Second, e-filing facility is not fully compatible with the use of Hindi. Third, the weekly journal of the patent office is published only in English. Fourth, many important patent documents are also not published in Hindi. All of this could be the reason of the low patent filing in India. Expanding the languages available for patent filing would push for outreach and promotion of IPR and help to tap into the potential of grassroots level innovation.
1st Shamnad Basheer Essay Competition on Intellectual Property Law [Submit by June 30]
We reminded you that the deadline for submissions for the first edition of the Shamnad Basheer Essay Competition on Intellectual Property Law is June 30, 2020 (23:59 IST). The competition is open to students currently enrolled in any LL.B. program across the world. The topic of the essay can be anything related to intellectual property rights– the more creative the better. The participants are encouraged to take inspiration from Prof. Basheer’s work and demonstrate the values that he stood for. There are cash prizes for the top three entries which will be selected by a panel of judges comprising three IP law experts, namely, Justice (Retd.) Prabha Sridevan, Ms. Jayashree Watal and Dr. Siva Thambisetty.
LexisNexis IP’s Live Webinar on How to Conduct a Prior Art Search Using ‘TotalPatent One’ [June 18]
We informed you about the LexisNexis IP live webinar on how to conduct a prior art search using their patent search software ‘TotalPatent One’. The webinar will be held on June 18, 2020 (Thursday) from 3.00 to 3.45 pm IST. The webinar will be led by Tharaniiswari Gunasekaran and shall teach, among other things, how to conduct a Prior Art search, identify and organize relevant Prior Art documents, deal with Non-English Information, use custom export options to create more efficient reports, create an automatic alert with customisable email notification.
Other Developments
Decisions from Indian Courts
Delhi HC temporarily restrains a pharma company from infringing Merck Sharp’s patent on anti-diabetes drug Sitagliptin [June 9, 2020]
In Merck Sharp & Dohme Corp. & Anr v. Angels Pharma India Pvt. Ltd., the Delhi High Court has restrained a pharmaceutical company, Angels Pharma, from manufacturing, using, selling, distributing, advertising, exporting, offering for sale etc. of the anti-diabetes drug SITAGLIPTIN. The Plaintiffs, Merck Sharp & Dohme Corp. & Anr. had filed the case against the infringement of its patent covering the drug. The Court held that if the Plaintiffs are not protected, it would affect their interest, as well as that of the public, since the Plaintiffs are dealing in drugs, which are commonly used by the patients suffering from diabetes.
Delhi HC temporarily restrains a textile company from selling face marks having the registered trademark of Tommy Hilfiger [June 9, 2020]
In Tommy Hilfiger Europe B.V v. M/S Taqua Textiles & Ors., the Plaintiff had sought a permanent injunction against the Defendants from infringing and passing off the Plaintiff’s trademark ‘TOMMY HILFIGER’ with its variations and the flag logo. The Court was of the view that Plaintiff has made out a prima facie case in its favour and in case no ad-interim injunction is granted the Plaintiff would suffer an irreparable loss. Balance of convenience also lies in favour of the Plaintiff. The Defendant No.1 was not only dealing in counterfeit face mask but also clothing bearing the trademarks of not only the Plaintiff but other reputed brands also.
Delhi HC temporarily restrains Jindal Rolling Mill in a family dispute from using the mark ‘JINDAL’ per se [June 10, 2020]
In Shree Ganesh Rolling Mills (India) Ltd. v. Jindal Rolling Mill Ltd., the Delhi High Court upheld the rule of trade mark i.e. one mark, one source and one proprietor. The suit was instituted for permanent injunction restraining passing off of the enterprise of the Defendants as that of Plaintiffs’. The High Court emphasized that the genesis of trade mark law is to protect the consumers from being misled, and noted that the Defendant by dropping the suffix and prefix ‘Y.R’ and ‘Co’ to the word ‘JINDAL’, had obliterated whatever little difference was there between the Plaintiff’s mark and its earlier mark and it had been done with the intention of moving closer to the Plaintiff’s mark and deriving benefit therefrom.
IPAB temporarily stays Patent Office’s order revoking Pharmacyclics’ patent on Ibrutinib [June 12, 2020]
In the case of Pharmacyclics, Llc v. Laurus Labs Pvt. Ltd. & Ors., the main appeal of which has already issued for 9.7.2020 for final hearing, the appellants argued that all other issues including novelty has been decided in favour of the Appellant except the issue of obviousness and sought an interim order for stay. The Board held that the appellant has made a strong prima facie case in its favour. The balance of convenience is also in favour of the appellant and if interim order is not passed, the appellant will suffer irreparable loss and injury.
Other News from around the Country
- Delhi HC temporarily restrains an entity from manufacturing and selling fruit candies under the trademark ‘Pluss+’, finding a prima facie case of infringement of the plaintiff’s registered trademark ‘Pulse’.
- Delhi HC inaugurates its online e-filing system which will enable advocates and litigants-in-person to remotely file cases, caveat, applications, reply, rejoinder, documents etc. for all matters.
- Indian pharma company Zydus Cadila signs a non-exclusive licensing agreement with Gilead to manufacture and market its potential anti-Covid19 patented drug Remdesivir.
- IIT Delhi grants a non-exclusive open license to the Bangalore-based biotechnology firm Genie Laboratories for commercialisation of its patented anti-Covid19 test kit, but caps the price at INR 500 per kit.
- Defence Institute of Advanced Technology in Pune plans to file for a patent for a nano-technology based disinfectant spray, called Ananya, developed by it to combat Covid-19.
- Story writer Rajeev Agarwal’s daughter accuses makers of film ‘Gulabo Sitabo’ of infringing copyright in her father’s story ’16 Mohandas Lane’ which had been submitted for a contest where film’s scriptwriter was a jury member; sends a legal notice as well as files a police complaint.
- National Institute of Pharmaceuticals Education and Research (NIPER) files for a design registration and patent for its 3D printed antimicrobial face-shields; signs an MoU with HAL for their large scale industrial-grade manufacturing and commercialization.
- Dr. Suryakantha Swain, a Professor of SIMS Group of Educational Institutions, Andhra Pradesh bags a patent for a method to provide relief to patients of depression.
News from around the World
- Greece suggests that EU member states jointly buy patent rights for vaccines against COVID-19.
- UK Court of Appeal upholds a decision refusing to grant an injunction to restrain a firm of solicitors acting for a defendant in circumstances where they had previously obtained relevant confidential information belonging to the claimant.
- CJEU confirms that copyright
can subsist in functional shapes but only where the subject matter in question passes the test for originality and not in instances where the product’s shape is solely dictated by its technical function. - Internet Archive announces that it will be closing the National Emergency Library two weeks early on because of the copyright lawsuit, filed by four book publishers.
- U.S. Court of Appeals for the Second Circuit affirms a decision of the U.S. District Court for the Southern District of New York denying the Welsh government’s motion to dismiss a claim of copyright infringement on the ground of sovereign immunity.
- USPTO announces that it will be extending the two-month time-period for restoring the right of priority to or benefit of a foreign or provisional application for any non-provisional application due to be filed on or after March 27, 2020.
For regular updates on IP news and opinions related to COVID-19, please visit our COVID-19 & IP Updates page (also accessible from the Resources section on our website).
