Copyright COVID-19 Drug Regulation Innovation Patent Privacy Trademark

SpicyIP Weekly Review (May 10 – 16)

Topical Highlight

A frontline worker setting fire to funeral pyres at a cremation site.

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Earning Royalties off Covaxin While Demanding IP Waiver at the WTO: Saviour on the Streets, Hypocrite in the Sheets

In this post, I focus on the differential pricing of vaccines for Central and State Governments. I analyse the affidavit filed by the Central Government in the case titled, ‘In Re: Distribution of Essential Supplies and Services During Pandemic’. I highlight that currently, Serum Institute of India and Bharat Biotech are selling doses of Covishield and Covaxin to private hospitals at INR 600 per dose and at INR 1,200 per dose respectively. I argue that these companies are financially incentivised to divert greater stocks to private hospitals, at prices that will exclude a large part of the Indian population and worsen vaccine scarcity at a time when the Central government, despite having the money, has abdicated its responsibility of procurement for a large part of the population. I conclude that with ICMR, funded by the Ministry of Health & Family Welfare, earning royalties out of financially distressed states having to pay INR 400 per dose of Covaxin, this appears to be a case of the Centre’s prioritization of vaccine profiteering and scoring political points, instead of any well thought out strategy to deal with the pandemic.

Thematic Highlight

Compulsion for Compulsory Licenses for Covid Vaccines Climbs: But Are They the Cure?

Broadway street sign saying 'compulsory licensing'

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In this post, Praharsh explains the effectiveness (or lack thereof) of a compulsory license in securing access to vaccines and medical treatment for Covid-19. He highlights the non-patent barriers that impede the sharing of undisclosed information. He analyses that under TRIPS, countries are bound to require the patentee to disclose only the sufficient information (which may not be the best way) to carry out the invention but even where the patentee is required to disclose the best way, the disclosure may still be lacking the information required to carry out the invention in an effective and commercially viable way. He notes thus, that while CLs can be a fruitful alternative for reverse engineering molecule-based drugs or for accessing disclosures made before the Patent Office, it will fall short of ensuring that complicated biologics like Covishield or Covaxin can successfully be reverse engineered to biosimilars in no time, unless there is also an eco-system in which such inventions can be worked, including skilled personnel, appropriate equipment, the required know-how, etc. He argues that access to trade secrets requires voluntary cooperation, which CLs cannot bring about. He notes that while it is understandable that undisclosed information behind Covishield might require cooperation on part of Astrazeneca, it is startling to see the Centre’s opacity over Covaxin even now when it is out in the open that the government is one of the IP owners of Covaxin.  Finally, he highlights the government’s plans to ramp up production of Covaxin by roping in 3 PSUs but laments that this should have happened one year ago.

Other Posts

Graffiti with red spray paint saying 'Best We Forget'

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Walking the Tightrope of the Right to be Forgotten: Analyzing the Delhi HC’s Recent Order

In this guest post, Sriya Sridhar analyses an interim order recently issued by a Single Bench of the Delhi High Court, which recognised the petitioner’s right to be forgotten (‘RTBF’) as a subset of his fundamental right to privacy. Sriya begins the post by discussing the inconsistency in rulings by different High Courts in India regarding the RTBF. Then coming to the recent Delhi High Court order, she notes that it contradicts a previous judgment of the Gujarat High Court which had held that publishing on a website doesn’t constitute ‘reporting’. She highlights the balancing by the Delhi High Court in not blocking access to the judgment entirely, which would still be visible upon a search query on IndianKanoon’s website, and only de-linking the judgment from search engines. She emphasises that this allows for judicial transparency while acknowledging the rights of the petitioner. She concludes that it may be best to adopt a context specific analysis for RTBF cases rather than laying down bright line rules or broader principles, until the PDP Bill comes into force. She notes that the final order in this case should be looked out for and followed.

Photo of Late Prof. Shamnad BasheerAnnouncing the 2nd Shamnad Basheer Essay Competition on Intellectual Property Law

We informed our readers about the second edition of the Shamnad Basheer Essay Competition on Intellectual Property Law on the occasion of our founder Prof. (Dr.) Shamnad Basheer’s 45th birth anniversary. The deadline for submissions is July 14, 2021, and all submissions and queries must be emailed to [email protected]. More details regarding submission guidelines, the panel of judges and prizes can be found in the post.

Image of a Board outside the DHC that reads 'Delhi High Court'

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India’s First Anti-Anti-Suit Injunction (A2SI) Order: A Missed Opportunity (Part I & Part II)

In part I of this post, Rajiv Choudhry analyses the recent Delhi High Court (DHC) order in InterDigital Corp & Ors. v. Xiaomi Corp & Ors., granting an anti-anti-suit injunction in favour of InterDigital in a SEP patent infringement dispute with Xiaomi. He notes that the DHC directed Xiaomi to indemnify InterDigital against any penalty, if issued by the Wuhan court. He reminds us that that the Wuhan court had issued a penalty of RMB 1 million (~ $150,000) per day against InterDigital in its anti-suit injunction (“ASI”) of September 2020 if InterDigital proceeded with its injunction / damages suit against Xiaomi in before the DHC. In this part of the post, he first deals with the decision issued by the Wuhan Court and includes a comparison of the prayers (as stated by the DHC) made in the Wuhan suit and in the patent infringement suit at the DHC. Highlighting extracts from the Wuhan Court’s reasoning, Rajiv argues that InterDigital is avoiding dealing with Chinese courts and has used the Delhi High Court as forum of choice to get the desired results. He also argues that the DHC’s order is overly broad and seems to be guided by InterDigital not being served any notice of the Wuhan proceedings (even though notice was given by email on 11.08.2020, and thereafter on 02.09.2020).

In part II of this post, Rajiv critiques the decision of the DHC and various factors that have been overlooked by the court in issuing the first A2SI.  These factors include InterDigital’s history in Chinese courts, and before Chinese anti-trust authorities. He argues that the DHC should have allowed for a determination of global royalty rate first by the Wuhan Court instead and gone slow. He highlights that it would be check mate for InterDigital if the Wuhan court issues a global license for its wireless SEPs, making the adjudication of the validity, essentiality, and infringement of the same here in Delhi a futile exercise.  He also emphasises that the Chinese courts control the complete semiconductor ecosystem that builds all parts that go into the mobile phone: from the display to the touch pad, to the baseband processor, to the memory, to the antenna, everything is manufactured in China. The components made in India are fewer and are at the lower end of the supply chain. Hence, he argues the Chinese courts have complete information as far as rate determination goes. He finally, notes that the issue before the Indian court is complicated by the presence of the confidentiality club.

USTR logoSpecial 301 Report 2021: Copyrights, Enforcement, and the Same Old Complaints

In this post, Nikhil writes on the India-specific copyright and enforcement related issues discussed in the Special 301 Report 2021, which he notes do not constitute any substantially novel additions to what previous Reports have already mentioned. He points out the continuation of excessively stringent emphasis of the US on copyright protection devoid of concerns of access and decriminalisation. He highlights that the Report commences with noting the high prevalence of piracy, particularly online piracy, in India. The Report also discusses the state of statutory licensing in the country in context of the draft Amendment Rules published by the DPIIT that sought to explicitly permit statutory licensing of internet broadcasts. He notes that concerns stemming from these Rules overlook the fact that the rules have already been notified a month and a half ago and none of these allegedly problematic aspects have seen the light of the day. He concludes that the increased focus on enforcement issues could be beneficial for India but with the caveat that it must be accompanied with restrictively drawn offences and a balanced and contextual understanding of the same.

Special 301 Report 2021: US’s Great U-turn on Compulsory Licensing

In this post, Adyasha analyses the USTR Special 301 Report’s announcement that United States shall respect countries’ rights to grant compulsory licenses (CLs) and exercise other TRIPS flexibilities. She examines US’s complicated history with accepting CLs, what led to this change in position and what it means for the pandemic, vis-a-vis the vaccine IP waiver. She notes that unlike previous Reports such as the 2016 Report, this time, quite surprisingly, the commitment to respect CLs is not qualified by any subsequent riders. She highlights that neither India, nor any other country has been called out for issuing CLs or amending its CL laws, despite the fact that there have been amendments by several countries to provide for CLs in their patent law. This, she argues, is the result of escalating international pressure in light of the rapidly deteriorating humanitarian crisis in India, Brazil and the rest of the Global South. She notes that unlike the USTR support for IP waiver, which is limited to vaccines and does not extend to Covid-19 drugs and equipments as originally proposed by India and South Africa, the Report’s CL position does not thankfully, contain the same qualification. She analyses why CLs alone are not enough in the time of a pandemic, and concludes that support for them at a stage no less than the peak of a global pandemic, is too little, too late.

Vial of Remdesivir

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Centre Sees No Compulsion to Issue Compulsory Licenses for Covid Drugs

In this post, Praharsh reports on the affidavit filed by the Central Government before the Supreme Court in the suo moto pandemic matter. He highlights the Government’s skepticism towards issuing compulsory licenses and also points that the Government’s stance stands in contradiction to India’s international stance on IP as a barrier to access to medicines. He highlights that India is one of the original Members that has argued IPRs as an encumbrance in accessing essential medicines and proposed for waiving key provisions of the TRIPS agreement. One of the main reasons for the proposal is the  pressure built by developed Members against using TRIPS flexibilities like compulsory license. In light of the USA’s recognition of the rights of other Members to issue compulsory license in its notorious USTR Special 301 Report, Praharsh notes that the positions of the parties now appear to have been switched: where the US is supporting the right to issue compulsory licenses and India is instead relying on voluntary cooperation of the IP holders.

News from Indian Courts

  • The Delhi High Court in Zed Lifestyle Pvt. Ltd. v. Hardik Mukeshbhai Pansheriya, granted ex parte ad interim relief to the plaintiff, and restrained Defendant Nos. 1 and 2 from using the “BEARDO” mark or containing the device of a bearded man, in conjunction with the said word mark or in relation to any goods, save and except those in respect of which the Defendant Nos. 1 and 2 possesses registrations in Classes 7 and 11. Defendant No. 3 was also directed to ensure that the products of Defendant Nos. 1 and 2 are forthwith removed from the “BEARDO STORE” webpage maintained by [4 May, 2021]
  • The Delhi High Court in Kulvinder Singh Kohli & Anr v. Monsendeep Kaur restrained the defendant from using the mark “Pamoist” or any other mark similar to the trade mark “Pamoist” in respect of any goods and services till the next date of hearing. It also clarified that the Trademark Registry was free to decide the opposition filed by defendant to the trade mark applications of the plaintiff as per law uninfluenced by any observations made by this court. [5 May, 2021]
  • The Delhi High Court in The Goodyear Tire & Rubber Company & Anr. v. Devanand Sukhia, upon satisfaction of a prima facie case in favour of the plaintiffs, restrained the defendant, its promoters, directors etc. from using the mark/name ‘GOODYEAR/ or any other mark which is identical or deceptively similar to the plaintiffs’ trademark/name ‘GOODYEAR/ in any manner whatsoever, till further orders. [3 May, 2021]
  • The Delhi High Court in Alkem Laboratories Ltd. v. Sgs Pharmaceutical Pvt. Ltd, held that the defendant’s mark ‘SAMU’ was deceptively similar to the registered trademark of the plaintiff ‘SUMO’, and the pharmaceutical products sold under these marks also had the same composition i.e., Nimesulide & paracetamol tablets. The Court upon satisfaction of a prima facie case in favour of the plaintiffs, restrained the defendant from using the mark ‘SUMA’ or any other mark that is identical or deceptively similar to the trademark of the plaintiff ‘SUMO’ till further orders. [3 May, 2021]
  • The Delhi High Court in Renaissance Hotel Holdings Inc. v. Rajendra Mahadev Dakare, restrained that the defendant from using the trademark RENAISSANCE, and or any other mark and/or domain name, identical or deceptively similar to the plaintiff’s registered mark RENAISSANCE for its hotels and hospitality business. The defendant was also directed to take steps to not use the mark RENAISSANCE, or any other similar mark on its website, social media accounts etc. [7 May, 2021]
  • The Kerala High Court in Gopakumar G.K. v. Union of India & Ors., sought the response of the Central Government on the PIL which prays for invoking a compulsory license to allow capable vaccine manufacturers to manufacture COVID-19 vaccines in the wake of the second wave of infections. [11 May, 2021]
  • The Kerala High Court sought the State Government’s response on a petition that prays for the inclusion of advocates and judicial officers in the priority category for vaccination. [14 May, 2021]
  • The Kerala High Court, in a petition filed by the Software Law Center, assailing the Centre’s Liberalised Pricing and Accelerated National Covid-19 Vaccination Strategy (Vaccine Policy), directed the Centre to apprise it of the time frame within which Covid vaccines would be supplied to the State. [14 May, 2021]

Other News

  • With multiple states urging the Centre to share the knowhow of Covid-19 vaccines to ramp up production, NITI Aayog member Dr. VK Paul reportedly said that Bharat Biotech has welcomed such requests for sharing of the vaccine formula to increase its production.
  • The Indian Drug Manufacturers’ Association urged the government to issue compulsory licences to pharma firms to increase production of drugs such as Remdesivir that are used in the treatment of Covid-19.
  • The Organisation of Pharmaceutical Producers (OPPI), a body representing pharma MNCs cautioned that waiving patents could affect patient safety due to the probability of counterfeit vaccines entering the supply chain.
  • Commerce and Industry Minister Piyush Goyal said that there was a need to develop a quick consensus over India and South Africa’s proposal at the WTO for waiver of IPRs pertaining to Covid-19 vaccines and medical treatment.
  • The Federation of Indian Chambers of Commerce & Industry (FICCI) cautioned that invocation of the provision of compulsory licensing could be counterproductive, and may discourage innovation. It said that India should continue to push for a ‘multilateral’ solution instead.
  • US pharmaceutical company Eli Lilly issued royalty-free, non-exclusive voluntary licences to three Indian drug makers – Cipla, Sun Pharmaceuticals and Lupin – for manufacturing and distributing Baricitinib, which is being used to treat Covid-19.
  • Lupin stated that it was considering working with other vaccine makers to bring mRNA Covid-19 vaccines and drugs like Remdesivir to India.
  • WHO chief, Tedros Adhanom Ghebreyesus, noted that the Coronavirus situation in India is ‘hugely concerning’ while warning of a far more deadly pandemic this year.
  • Music label Tips inked a global licensing deal with Google’s new YouTube service ‘Shorts.’
  • Meghan Markle won a privacy and copyright infringement claim against the Mail On Sunday and the MailOnline, in which the two news outlets had alleged that she was not the sole author and copyright owner of the letter to her father, extracts of which were published by the outlets.

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