Copyright Drug Regulation Innovation Patent Trademark

SpicyIP Weekly Review (March 29 – April 4)

Topical Highlight

Intellectual Property Rights in Covaxin – Part 2 (IP Ownership in Publicly Funded Research)

In Part II of this post, Anupriya and Swaraj analyse the broader issue of IP ownership in outcomes of publicly funded research. They note that the government’s retention of IPR in Covaxin and the novel mRNA vaccine in the pipeline, would enable it to be in a position to share them with the rest of the developing world. They examine the patchwork of rules, regulations and guidelines governing this issue, and argue that instead of leading to certitude and consistency, these scattered (and sometimes mutually inconsistent) policies have exacerbated the lack of clarity on this issue. They note the welcome shift heralded by the draft 5th Science, Technology and Innovation Policy in its attempts regarding regulation of IP in the innovation ecosystem. However, they also caution that the policy has been criticized for paying mere lip-service to the laudable goals of innovation and access without providing any effective guidance on how these goals will be realized, especially given the assumptions on state-center coordination. They conclude that the government’s lack of control over IP rights in Covaxin have cost India the opportunity to provide relief to several poorer countries in the world. 

Intellectual Property Rights in Covaxin – Part 3 (IP Rights over Clinical Drug Trials (CT) Data)

In part III of this post, Anupriya analyses the refusal of the government to share clinical trial (CT) data of Covaxin, which was granted approval in ‘clinical trial mode’ without phase 3 efficacy data and was approved for regular emergency use authorization only on March 11, 2021. She examines the nature and extent of protection over CT data in India as well as India’s TRIPS obligations in this regard. She notes that both Sections 8(1)(d) and 8(1)(e) of the RTI Act, cited to exempt the information from disclosure via RTIs, can be overridden due to larger public interest involved as per the text of these Sections itself. She argues that not many concerns come to mind which would be as compellingly within the ambit of public health and interest as vaccination amidst a deadly pandemic in a densely populated country with abject inequalities in access to medical infrastructure as India. She concludes that such disclosure would also not violate Article 39(3) of the TRIPS.

Copyright Rules Amendment 2021: Appellate Board, Copyright Societies, and More

In this post, Nikhil analyses the Central Government’s recent notification of the Copyright (Amendment) Rules, 2021. The amendments replace ‘Copyright Board’ in the rules with ‘Appellate Board’ similar to the draft, which Nikhil notes is a redundant exercise given the plan to scrap the Appellate Board soon. He highlights that the introduction of a mandatory annual transparency report to be published by Copyright Societies is the most significant addition which will help in resolving information asymmetries that have plagued the functioning of copyright societies generally where authors have not received their due share of royalties. He also notes that not including the draft’s proposal of a proportionate voting mechanism in accordance with the number of works or royalties received by a member, or their duration of membership in the final amendments is a welcome change. This is because it would have adversely impacted the smaller players in societies. Analysing a few other amendments and omissions, he concludes that a holistic, transparent and inclusive review of the rules is required.

Thematic Highlight

Bombay HC Rejects Mandatory Copyright Registration: Is it time to Reconsider Automatic Protection?

In this post, Adyasha discusses a recent Bombay High Court judgment in Sanjay Soya v. Narayani Trading which overruled an erroneous 2012 precedent laid down in the case of Dhiraj Dewani v. Sonal Infosystems. The Bombay High Court held in the recent decision that registration of copyright is not mandatory for obtaining relief in an infringement action. Adyasha examines the feasibility of an automatic copyright protection policy in light of present-day realities. She notes that coupled with the relatively low threshold of originality, automatic protection allows works to be easily locked up outside the public domain. She argues that this problem is particularly amplified in case of orphaned works, where the lack of traceability of owners and fear of litigation impedes their use. However, she also highlights that practically, in India and in other developing countries and LDCs where a vast majority of authors operate under social, financial, digital and informational limitations, mandatory registration would significantly impede them from protecting their rights. She concludes that while registration and maintenance of databases offers significant benefits, a wholly mandatory registration system is unsuitable for present Indian realities.

Other Posts

European Decision on Patentability of Simulations and Implications for India

In this guest post, Rajiv Choudhry discusses a recent decision by the Enlarged Board of Appeals at the European Patent Office on patentability of simulations and its implications for Indian patent law. He notes that a Google search for “simulation” brings up the definition of simulation as “the production of a computer model of something, especially for the purpose of study.”  He highlights that the European patent application 03793825.5, which provides a computer-implemented simulation of movement of a pedestrian crowd through an environment such as a building, was refused by the examiner on the ground that the invention lacked an inventive step, mainly because simulation was considered not to contribute to the technical character of the invention. He noted the Board of Appeals’ decision in this regard which reasoned that for the assessment whether a simulation contributes to the technical character of the claimed invention, it is not decisive whether a technical or a non-technical system or process is simulated. He concluded that given the almost similar wording of Section 3(k) of India’s Patents Act to that of Article 52(2)(c) of EPC, inventions/claims relating to simulation should be patentable in India as per the reasoning provided by the Board.

Why the Case of Hero Electric vs. Lectro E-Mobility Actually Demystifies the Arbitrability of IP Disputes

In this guest post, Ishika Ray Chaudhuri and Ajeeth Srinivas K. respond to Lokesh Vyas’ recent post that looked into the case of Hero Electrics v. Lectro E-Mobility, wherein the order, holding the dispute to be arbitrable, was critiqued for inadequately clarifying the difference between IP disputes that can be arbitrated versus those that cannot. They disagree with Lokesh’s critique and argue that this order in fact furthers the position of arbitrability of IPR disputes in India. They note that the Court’s decision was in line with the four-fold test laid down in Vidya Drolia v Durga Trading Corporation, as per which the Court is only allowed to adjudicate to the extent of the specific tests mentioned therein, which are the qualifiers to adjudicate prima facie arbitrability. They note that all other questions of arbitrability of the dispute must be left to the tribunal to adjudicate upon, without the intrusion of the Court, for if the Court indulged anything further, the same would be usurping the powers of the tribunal. Thus, they argue that this case does not hinge on the arbitrability of the subject-matter – i.e., say, an infringement on the trademark in question but on the arbitrability of the claim. They also highlight that rights in rem do not give rise to rights in personam, but rather the opposite, if at all. Therefore, given that rights in personam are arbitrable under Section 8 of the Arbitration and Conciliation Act, 1996, the case in question in fact clarifies and upholds the Indian perspective on the arbitrability of IPR, instead of mystifying it further as the impugned post claims. They conclude that the case clearly demarcates the right of an arbitral tribunal to rule on its own jurisdiction, only leaving tertiary cases to the Court.

Decisions from Indian Courts

  • The Delhi High Court in Britannia Industries v. Parle Biscuits in a suit alleging disparagement of goodwill and reputation of the plaintiff’s cookies by the Defendant in one of their advertisements uploaded on YouTube noted the agreement of the defendants regarding changing the colour of the packet and design of the cookies in the advertisement in question. [March 26, 2021]
  • The Delhi High Court in Star India Ltd. v. Y1.Mylivecricket.Biz adjudicated upon the plaintiffs’ exclusive rights to broadcast the fourteenth season of the IPL conducted by the BCCI on television, internet and mobile applications, under agreement dated 7th September, 2017, executed with the BCCI. The Court granted an ad interim injunction restraining defendants 1 to 13 from, in any manner, posting, streamlining, reproducing, distributing, making available to the public and/or communicating to the public, the fourteenth season of the IPL. [March 26, 2021]
  • The Delhi High Court in Alkem Laboratories v. Tyscon Pharmaceuticals granted an ad interim injunction in favour of the plaintiff restraining the defendants from using the impugned marks ‘TYXIM, TYXIM FORTE and TYXIM marks’ in relation to any pharmaceutical and/or medicinal preparation. [25 March, 2021]
  • The Bombay High Court in Hindustan Unilever Ltd. v. an opposing Party held that setting out two separate prayers in the same plea – one against trademark infringement and another against passing off constitutes an incorrect and unwise practice. [22 March, 2021]

Other News

  • T-Series and The Indian Performing Right Society Limited (“IPRS”) announced that Super Cassettes Industries Limited has joined as a member of the IPRS.
  • Fiji PM Frank Bainimarama expressed gratitude to India for providing 1 lakh doses of COVID vaccines.
  • India’s drug regulator reportedly allowed the AstraZeneca Covid-19 vaccine to be used for up to nine months from its manufacture date, as opposed to the prescribed six months in order to minimise vaccine wastage.
  • In order to boost the spread of information in South Africa’s 11 official languages, Wikimedia South Africa, partnered with the Moleskine Foundation to hold “edit workshops” to teach people how to properly edit Wikipedia entries around various themes. Learning about copyright law is an integral part of the process since uploading certain content such as photos could be considered copyright infringement.
  • Activision issued a DMCA takedown notice to the Twitter account of website Video Games Chronicle after it covered map leaks from Call of Duty: Warzone.
  • An article in the Financial Express examined inequities in access to vaccines and stressed the need to carefully examine tools like ‘patent pause’ to ensure access to Covid-19 vaccines for poorer nations.
  • A court granted a temporary restraining order in favour of Nike against MSCHF, the retail startup that made Lil Nas X’s “Satan Shoe” in a case alleging trademark infringement and tarnishing of reputation.
  • US District Judge Ronnie Abrams rejected Ed Sheeran’s bid to dismiss one out of the three lawsuits against him, alleging that he plagiarised a Marvin Gaye song for his hit Thinking Out Loud.

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