[This post has been authored by our intern, Bhavik Shukla, a 5th year student at NLIU, Bhopal]
Are Patent Pools an Effective Solution to COVID-19’s IP Barriers?
Through an interesting post, Namratha wrote about the effectiveness of patent pools in evading IP barriers to fight COVID-19. She begins by elaborating upon the various initiatives undertaken by organizations to promote collaborative research. Giving an insight into the industry practice of creation of patent pools, she argues that patent pools foster innovation by maximizing efficiency and reducing transaction costs. She also warns against the perpetuation of possible anti-competitive behaviour through patent pools, through dissuading search for alternative products. Subsequently, she notes that the creation of a voluntary patent pool to tackle COVID-19 aims at increasing global access to information and possible solutions. She observes that various concerns have been raised with respect to the creation of such voluntary pools, and further notes that only time will tell if pharma companies will share their patented products. She concludes by stating that a voluntary pool may perhaps nudge the global momentum towards realization of collaborative research.
Confidentiality Clubs: Why Parties’ Presence is Imperative in Indian SEP Case Proceedings?
In a guest post, Sripada Yashwant Prasad argued that Confidentiality Clubs (‘Club’) in SEP court proceedings should involve parties’ presence. He observes that the current functioning of the Clubs exclude parties and also redact the gathered evidence. He states that Rule 17 of the Delhi HC Rules, 2018 enables courts to ‘tailor-make’ a Club, but Annexure F to the Rules contradictorily strip such autonomy by compulsorily requiring exclusion of parties. Providing reasons for how the exclusion of parties translates into prejudice of their interests, he states that first, the exclusion of parties may enable the advocate to bind a party to decisions which it has no knowledge of. Second, he states that the opaque functioning of the Clubs may result in the defendant paying higher royalty rates than the current market value. Third, he notes that the exclusion of the defendant may prevent the Club from identifying and analysing the licensing agreements of entities similarly-situated to the defendant.
SpicyIP Tidbit: Reverse Engineering of Aarogya Setu App Not Prohibited Anymore
Aparajita gave us an update on her previous post, where she had examined the legal enforceability of the prohibition on reverse engineering of the Aarogya Setu app. Through the update, she notes that the terms of service of the app have been revised to permit legitimate reverse engineering. She states that this move shall enable an audit and independent verification of the app to determine if it functions as specified.
Texas A&M School of Law Invites Your Contributions to its New Blog, TradeRx Report
Last week, we announced the launch of the blog TradeRx Report, run by Texas A&M University School of Law. The blog seeks to explore questions pertaining to access to affordable medicines and healthcare, in light of IP and international trade. For more information on the theme of the blog and the drivers behind its launch, please refer to the detailed post.
Decisions from Indian Courts
Bombay HC directs Entertainment Network to refrain from broadcasting songs belonging to Tips Industries on its platform Gaana [May 26, 2020]
In Tips Industries Ltd. v. Entertainment Network (India) Ltd. & Anr., the Bombay HC directed the Defendants to refrain from broadcasting the Plaintiff’s copyrighted songs on its platform “Gaana”. The dispute between the Parties arose on account of the Defendants’ alleged illegal broadcasting of the Plaintiff’s copyrighted songs on its application. In arriving at the decision, the Court considered the Defendants’ statement through which it was noted that the Defendant would not provide the Plaintiff’s repertoire on either digital or internet platforms till the next hearing of the interim application.
Delhi HC restrains use of pirated versions of Microsoft software and grants Microsoft damages to the tune of INR 30 lakhs [May 26, 2020]
In Microsoft Corporation & Ors. v. Satveer Gaur & Anr., the Delhi HC granted a permanent injunction restraining the Defendants from infringing the copyrights in the Plaintiffs’ software. The dispute between the Parties arose on account of the Defendants’ alleged infringement of the Plaintiffs’ software programs by using pirated versions of the same. At the outset, the Court noted that it had jurisdiction to entertain the Plaintiffs’ case, as the principal and registered offices of Plaintiff No. 2 are situated in Delhi. The Court further observed that the reports of the Local Commissioner established that the Defendants were engaged in the use of unauthorized versions of the Plaintiffs’ software. Accordingly, the Court awarded damages to the tune of INR 30 lakhs in favour of the Plaintiffs for the magnitude of copyright violation by the Defendants.
Delhi HC grants an interim injunction restraining OLX India from hosting fake advertisements in relation to Reliance’s marks [May 28, 2020]
In Reliance Industries Ltd. & Anr. v. OLX India B.V. & Anr., the Delhi HC restrained the Defendants from hosting fake advertisements on its web portal. The dispute between the Parties arose on account of the publication of fake advertisements on the Defendants’ portal, thereby infringing the Plaintiffs’ marks ‘JIO’ and ‘RELIANCE’. The Defendants noted that all, except one infringing URL had already been removed, and the remaining one was also in the process of being removed. Further, the Defendants noted that filters were added to the website so that nobody could misuse their platform to publish false advertisements concerning the Plaintiffs. Relying on the Plaintiffs’ submissions, the Court observed that they had successfully proved the three elements for the grant of an interim injunction.
Delhi HC directs Telegram to disclose identity of group members reproducing the copyrighted ‘Dainik Bhaskar’ e-papers on its platform [May 29, 2020]
In Jagran Prakashan Ltd. v. Telegram FZ LLC & Ors., the Delhi HC granted an interim injunction restraining the Defendants from reproducing the Plaintiff’s newspaper on its application, and further directing them to disclose the identity of group members engaged in the same. The dispute between the Parties arose on account of the free circulation of the Plaintiff’s copyrighted e-paper and the consequent violation of its trademark “Dainik Jagran” and its logo, over the Defendants’ application. The Court noted that the Plaintiff had written to the Defendants about the issue of reproduction of its e-paper on numerous occasions however, the Defendants continued with such reproductions and also failed to take down the infringing e-papers. Accordingly, the Court observed that the Plaintiff had made out a prima facie case for the grant of an ad-interim injunction and directed Defendant No. 1 to disclose subscriber information and identity of users impleaded as Defendant No. 2. The Court also ordered Defendant No. 1 to take down Telegram channels concerned with the reproduction of the Plaintiff’s e-papers.
Other News from around the Country
- The deadline for submissions for Vol. 11 of Nalsar Law University’s Indian Journal of Intellectual Property Law (IJIPL) has been extended till June 15, 2020.
- IP Office informs that all show cause hearings fixed till May 31, 2020 are adjourned till further orders.
- Gilead Sciences seeks the drug controller’s approval for marketing authorization of Remdesivir in India.
- BDR Pharmaceuticals seeks drug controller’s approval for the production of a generic version of Gilead’s Remdesivir, without entering into a licensing pact with it.
- APJ Abdul Kalam Technical University files a patent for a multi-purpose robot capable of sanitizing, delivering food and medicines, thermally scanning patients, among other things.
- Self-taught engineer from Nashik files for a patent for a tractor mounted for mass sanitization through the use of a sprayer.
- Lovely Professional University files a patent for a new algae-based respirator which intends to make breathing for people wearing masks easy.
- HSIL sues ICICI Securities over a report which allegedly disparages the former’s products and places sanitary ware manufacturer Jaquar in first place.
- A piece in the Hindustan Times argues for the creation of a fellowship of countries to ensure collaborative research and foster access of a possible COVID-19 vaccine.
- A piece in Orissa Post argues that the Indian government should ensure Remdesivir’s access to all COVID-19 patients by exploring all possible patent law avenues.
- A piece in Scroll argues that efficient access to a possible COVID-19 vaccine cannot be had without the active involvement of India and China.
News from around the World
- WIPO urges countries to focus on the development of a COVID-19 vaccine in ‘global public good’ and to not give into patent disputes.
- WHO along with 37 nations launches an alliance to share intellectual property to fight the COVID-19 pandemic.
- Numerous heads of pharmaceutical companies express concerns and reluctance over the WHO’s idea of establishing a voluntary patent pool in response to the COVID-19 pandemic.
- The Wuhan Institute of Virology of the China Academy of Sciences files a patent application on the use of Remdesivir as a coronavirus treatment.
- Atossa Therapeutics files a patent over a nasal spray which can alleviate the effects of COVID-19 in patients with a less severe symptoms.
- A piece in Townhall argues that the non-grant of patent rights over possible COVID-19 treatments in the U.S. may deter companies from investing in further research and development.
- A piece in the National Law Review argues that the U.S. government has numerous means to supersede patent protection of an invention for the treatment of COVID-19 on the grounds of public health.
- A piece in IAM argues that though membership to the Japanese COVID-19 patent pledge has tripled, organizations taking advantage of the pledge should read its terms carefully, as many companies have altered default declarations to include additional terms.