SpicyIP Weekly Review (November 30- December 6)

Topical Highlight

COVID-19 Vaccines: Patent Ownership and the Barriers to Equitable Access

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In this post, Adyasha conducts a thorough analysis of the vaccines developed by Moderna, Pfizer-BioNTech and AstraZeneca-Oxford, the complex ownership status of their intellectual property, the bilateral pre-purchase deals struck with higher-income countries and their implications on the Global South. She first notes the importance of public funding for the fruition of the three vaccines upon which patent protection is being claimed by their respective owners. She then highlights the lack of transparency with respect to the Oxford vaccine in terms of its licensing agreement with AstraZeneca and its clinical trial data. She then notes the difficulties for the Global South in securing adequate access to vaccine dosages due to stockpiling by higher-income countries and the logistical challenges. She then emphasises on the necessity of technology sharing for tackling the pandemic. She concludes by noting that the countries in the Global South are looking forward to the COVAX initiative as a solution, and the challenges surrounding the same.

Thematic Highlight

Enabling the Use of People’s Biodiversity Registers within Environmental Impact Assessments

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In this post, Anupriya and Dayaar look at recent changes to the creation of People’s Biodiversity Registers (PBRs) as well as the draft Environmental Impact Assessment (EIA) 2020 notification to analyse the problems in both which stand in the way of using PBRs as a people’s tool to democratise the EIA process. They first highlight the importance of PBRs in preserving community knowledge and resources. They then point out that while a 2016 NGT order directed creation of PBRs within four years, with fines for non-compliance, the process has excluded indigenous communities. It has been outsourced to expert consultants or NGOs, leaving out the affected groups that this decentralisation was supposed to aid. Moreover, with the consultation period being reduced to 20 days as per the draft EIA, the importance of PBRs becomes even more. However, due to outsourced PBRs and complex technical EIA reports, the local communities are left out from consultation process. This is exacerbated by the absence of online availability of complete copies of project proposals or EIA reports, post facto approvals, and exclusion of aggrieved stakeholders from reporting violations.

Other Posts

What’s Happening with WhiteHatJr?: A Look at the IP Issues

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In this post, Varsha looks at ad-interim injunctions granted in two cases in favour of WhiteHatJr. The first case concerns criticism of WhiteHatJr by Pradeep Poonia and the use of the marks ‘WhiteHatSr’ and ‘WhiteHatPoonia’, and the second concerns allegations of dilution, disparagement, and infringement of plaintiff’s marks through certain tweets by Malpani. Varsha first argues that the two cases can claim the defence of denominative use but WhiteHatJr might claim that the use of ‘WhiteHatSr’ and ‘WhiteHatPoonia’ was not justified even for making criticism. She then argues that the two cases cannot even be brought within the ambit of Section 29(4) as the use of the marks was non-commercial, only for making criticism. Finally, she analyses YouTube’s copyright infringement policy and highlights how it allows for videos that are completely within the bounds of fair use to be flagged for copyright infringement.

Are Orbital Transfer Trajectories Patentable?

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In this guest post, Shivam analyses the patentability of orbital transfer trajectories of spacecrafts in light of the recent patent grant to NASA in the US for ‘a method for transferring a spacecraft from the Geosynchronous Transfer Orbit (GTO) to Lunar Orbit’. He notes that it would not be difficult for such inventions to satisfy novelty or usefulness, the question thus hinges on the question of obviousness and whether it is an excluded subject matter in itself. He further notes that as in the modern day orbital transfer strategies can be figured out using computer programs, it does not generally make sense to grant patent to it given the non-obviousness requirement. He then discusses the US position and notes that it only excludes abstract ideas from patentability, mathematical equations and algorithms can be protected if they are involved in the creation or improvement of physical things, thus covering orbital transfer trajectories. The Indian position, on the other hand, would possibly not permit such patents in light of Section 3(k) completely excluding mathematical methods or algorithms from protection. He then notes a space tragedy that had occurred due to Boeing’s patent over a lunar flyby manoeuvre, and concludes on the note that while USPTO is granting patents to orbital trajectories their validity might be questionable.

Decisions from Indian Courts

  • The IPAB in Sassoon FAB International Pvt. Ltd. v. Sanjay Garg, stayed the operation of registration by the Respondent of the “N95” mark in class 10, considering it to be a generic and descriptive mark, until the rectification petition is finally decided. [December 4, 2020]
  • The Supreme Court in S.D. Containers Indore v. Mold Tek Packaging, set aside the Madhya Pradesh High Court order that held that the Commercial Court at Indore had the jurisdiction to hear an application for cancellation of registration of a design, in light of Section 22(4) of the Designs Act. [December 1, 2020]
  • The Delhi High Court in Sap Se v. Anoop Tech, granted an ex-parte ad-interim injunction restraining the defendant from uploading any content infringing plaintiff’s copyright and its registered ‘SAP’ mark and to remove advertisements of SAP. [December 1, 2020]
  • The Delhi High Court in Anil Mohan Bhardwaj v. Ravi Pocket Books, restrained the defendants from publishing or re-publishing plaintiff’s novels, changing the prices of these novels, and making audio books from these novels without plaintiff’s consent.
  • The Delhi High Court in Sony Pictures Network India Pvt. Ltd. v. WWW.B1.MYLIVECRICKET.BIZ, restrained several rogue websites, Multiple Service Operators, and Local Cable Operators, from broadcasting/ telecasting the India-Australia cricket series without authorisation. [November 24, 2020]
  • The Delhi High Court in Akshay Kumar v. Union of India, dismissed a writ petition seeking implementation of the Modified Flexible Complementing Scheme as not maintainable with the liberty to approach the Central Administrative Tribunal. [November 24, 2020]

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  • The Orissa High Court in Subhranshu Rout @ Gugul v. State of Odisha, in a bail application in a case involving forcible sexual intercourse and uploading the recording of the same on a fake Facebook profile, emphasised the need for the recognition of a ‘right to be forgotten’ in India and noted that the victim may seek appropriate orders to get the said content removed in light of her individual right to privacy. [November 23, 2020]
  • The Delhi High Court in Reckitt Benckiser (India) Pvt Ltd v. Alok Jain, granted an ex-parte ad-interim injunction restraining the defendant from infringing the plaintiff’s registered ‘DETTOL’, ‘HARPIC’, and ‘COLIN’ marks and the copyright of the plaintiff in its design, colour combination and trade dress, etc. [November 11, 2020]

Other News from Around the Country

  • India and USA have inked a ten year MoU for intellectual property examination and protection, and for strengthening the IP systems of both countries. The remarks of the USPTO Director on the signing are available here.
  • IPAB issued a public notice inviting comments till December 27, 2020, on the application of the IPRS seeking fixing of royalties for sound recordings with respect to FM Radio Stations.
  • In a paper for the Journal of Indian Law Institute, Dr. Gogoi analyses the conflict of copyright in a cinematographic film between the producer and other contributors.
  • A woman claimed that MP Chief Minister Shivraj Singh Chouhan wrongly passed off a poem written by her as one written by the minister’s wife.
  • The Tamil Nadu Agricultural University has obtained a patent for the technology for protein extraction for seed treatment and foliar spray application.

News from Around the World

  • [Edit: In the wake of Covid-19, CUTS’ World Competition Day celebrations raises questions on whether strong IPR has helped innovation or not. The video recording of the webinar is available at https://youtu.be/HnfNyVUPvzs.]
  • Clive Barker, the writer-director of the 1987 horror movie Hellraiser, recaptured the American rights to the film from the production company, Park Avenue Entertainment, in a settlement.

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  • An essay in the Stanford Law Review analyses the impact of copyright law and patent law on access to information amidst the COVID 19 pandemic, as well as regulations and regulatory structures for approvals of medical products, and vaccines in particular.
  • The solar manufacturer, REC, has filed a patent infringement suit against Hanwha Q Cells in a US court for its split cell (half-cut) and junction box technology.
  • A piece in Lexology summarised the recently released report of the Beijing Intellectual Property Court on patent infringement cases tried by it between November 2014 and March 2020.
  • The WTO launched the second edition of “A Handbook on the WTO TRIPS Agreement”.

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).

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