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A Look Back at India’s Top IP Developments of 2021


Cup of coffee, pen and notepad on wooden background. Top view

Cup of coffee, pen and notepad on wooden background. Top view. Image from here.

Here’s wishing all our readers a very happy, safe, and healthy new year!

Continuing our annual tradition of recounting the significant developments that impacted the Indian IP landscape in the year that has been, we bring you a round-up of 2021’s developments.

This year, we have divided these developments into three categories:

a) Top 10 IP Judgments/Orders (Topicality/Impact)

b) Top 10 IP Judgments/Orders (Jurisprudence/Legal Lucidity) and

c) Top 10 Other IP Developments

The decisions in the first category, i.e., Top 10 IP Judgments/Orders (Topicality/Impact) reflect those that we thought were important from a topical point of view and were covered by the media in some way owing to the importance of parties litigating or the issue being considered or for impact on industry and innovation/creativity ecosystem etc. We’ve tried to represent a diversity of subject matter also in this list, so we have a fair sprinkling of cases dealing with copyright, patents, trademarks, competition law etc.

And the decisions in the second category, i.e., Top 10 IP Judgments/Orders (Jurisprudence/Legal Lucidity) reflect those that we thought reflected a fair bit of jurisprudential rigour and/or legal lucidity. However, the two categories are not mutually exclusive.

The other important developments which do not fall in the above two categories have been highlighted in the third category.

Before you read on and check if our top ten for 2021 matches yours, on this day of the new year, let’s collectively hope that this year brings us more spicy IP developments which help shape India’s IP regime into a more fair, balanced and effective one.

Also, a huge thanks to our readers for continuing to engage with our posts and constantly encouraging us, which keeps us going!

A. Top 10 Judgments/Orders [Topicality/Impact]

  1. H Lundbeck A/S v. Hetero Drugs Ltd [Delhi High Court]

In H Lundbeck A/S v. Hetero Drugs Ltd, the Delhi High Court ruled that under section 107 of the Indian Patents Act, 1970, the export of products from India amounted to the use of the product in India. The case concerned a patented antidepressant named Vortioxetine, whose API (Active Pharmaceutical Ingredient) H Lundbeck alleged that Hetero Drugs imported and subsequently exported. Hetero Drugs claimed that the drug was not being used in India and the export was only for research and development purposes. In rejecting Hetero Drugs’ defense, the Court stated they had not provided sufficient proof that the exports were being used for research. In reading the term ‘export’ to include ‘use’, the Court expands the ambit of rights accorded to a patentee under section 48. Such an interpretation allows for a patentee to claim a right to prohibit another party’s export of allegedly infringing goods, thus going beyond what the statute actually offers.

  1. Engineering Analysis Centre for Excellence Pvt. Ltd. v. CIT [Supreme Court]

This judgment concerned the classification of payments under end-user license agreements (EULA). The case dealt with the question of whether payments by Indian companies for using software developed by foreign companies would amount to ‘royalty’ under section 9(1)(vi) of the Indian Income Tax Act, 1961 and thereby be classified as a taxable income, while also dealing with copyright issues related to EULAs and the doctrine of copyright exhaustion. The Supreme Court held that such payments are not ‘royalty’ and recognised the doctrine of exhaustion in software. The judgement, apart from clarifying the position on whether such payments are royalties, clearly recognises copyright exhaustion in computer programmes setting to rest the debate regarding the effect of section 14(b)(ii) of the Copyright Act on the doctrine of copyright exhaustion provided under section 14(a)(ii).

  1. The Indian Performing Right Society Limited (IPRS) v. Entertainment Network India Ltd (ENIL) and Phonographic Performance Ltd (PPL) v. CRI Events Private Limited  [Delhi High Court]

This judgment of the Delhi High Court distinguishes between cases where underlying works are used in the context of the broadcast of sound recordings versus other situations such as live performances. The suit concerned agreements dating back to 2001 between IPRS and ENIL regarding broadcasting music in certain cities. When ENIL broadcast music in cities other than the ones in the agreement, IPRS filed an infringement suit. The second suit was filed by IPRS and PPL against an event management company for broadcasting music without authorization. Both suits were filed before the 2012 amendment to the Copyright Act. The main question dealt with by the Court were whether the communication of sound recording amount to communication of underlying works. Quite problematically, the Court held that the utilization of a song recording does not constitute the utilization of the underlying works. Further, given that the 2012 amendment does not have a retrospective effect, the Court held that the amendment has no effect on the legal position. This rather complicated reasoning leads to authors having claim only to non-sound recording uses of their work such as live performances, which goes contrary to the legislative intent of bringing in an amendment to secure economic justice to authors whose works get incorporated in films.

  1. Master Arnesh Shaw vs Union of India [Delhi High Court]

This order of the Delhi High Court addressed the inability of the state to cover treatment costs for ‘rare diseases’. Dealing with petitions filed by and on behalf of patients with Duchenne Muscular Dystrophy (DMD), Hunter Syndrome and Hippel-Linau Syndrome, the order issued directives to the government to finalize the pending National Health Policy for Rare Diseases; to set up a National Consortium for Research and Development on therapeutics for Rare Diseases and to set up a ‘Rare Disease Fund’. Given the lack of policy progress with respect to the management of rare diseases, this order emphasizes that the ambit of the right to health also includes the provision of a better quality of life and addresses issues concerning not only access but also innovation in the rare diseases space.

  1. Golden Tobie Private Ltd. v. Golden Tobacco Ltd [Delhi High Court]

In this judgment, the Delhi High Court delved into the interpretation of section 8 of the Arbitration and Conciliation Act, 1996 with respect to disputes involving trademark licensing agreements. The plaintiff was granted, through an agreement, an exclusive non-transferable, non-assignable license for selling, supplying, and distributing the defendant’s brands in domestic and international markets. However, later the defendant served a termination notice against which the plaintiff filed this suit. Citing the agreement, the defendant requested the suit to be referred to an arbitration. The position of the precedent set by the Supreme Court in Vidya Drolia and Ors. v. Durga Trading Corporation was clarified in this case. The Vidya Drolia case laid down certain conditions for non-arbitrability of disputes and stated that grant and issue of patents and registration of trademarks were exclusive sovereign or government functions, thus making them non-arbitrable. The present case clarified that there is a distinction between cases directly arising from IPR issues and those arising from indirectly connected matters. The case clarifies that the bar on arbitrability of trademark disputes is not an absolute one.

  1. Piyush Subhashbhai Ranipa v. State of Maharashtra [Bombay High Court]

The Bombay High Court in this case dealt with the question of whether offences under section 63 of the Copyright Act and section 103 of the Trade Marks Act, concerning infringement, are bailable or non-bailable. Both the provisions prescribe a punishment of not less than six months imprisonment which may be extended up to three years. Relying on the judgments of various High Courts across the country, the Bombay High Court held that these offences are non-bailable. In arriving at this conclusion, the Bombay High Court’s reliance on selective precedents to support its stance, negatively impacts free speech. Such a decision which reinforces heavy punishments would dissuade creativity by leading to artists self-censoring their works in fear of arrests and the absence of bail. The widening of criminal provisions application to IP rights creates significant hurdles in the growth of creativity and freedom of speech, particularly when courts seem to favour interpretations that increases criminalisation of IP statutes.

  1. Supreme Court’s suo moto hearing on vaccine price equity [Supreme Court]

The Supreme Court looked into a wide variety of issues such as oxygen and Covid-19 drugs shortage, equitable pricing of vaccines, protection of health workers, possibility of invoking compulsory licenses and the clampdown on free speech on social media platforms. The matter looked into the differential pricing of Covid vaccines for the Central Government and the State Governments and recommended that the Government consider compulsory licensing for Covid drugs with sunset clauses while referring to the Doha Declaration on TRIPS and sections 92 and 100 of the Patents Act. The Supreme Court also touched upon issues relating to Covid drug procurement through importation. Further, the Court specifically addressed the use of social media platforms by citizens to voice their grievances and stated that such use during a crisis can in no way be termed misinformation and it noted that it would treat any clampdown on free exchange of information as contempt of court.

  1. Sun Pharmaceuticals Industries Ltd. v. Cipla Ltd [Madras High Court]

This case involved Sun Pharmaceuticals allegedly infringing Cipla’s copyright and registered trademark. Cipla had filed for a permanent injunction against Sun Pharmaceuticals for selling deceptively similar goods bearing the mark ‘Respule’. An interim injunction was granted in this matter after a prima facie case was made out by Cipla. In response to that Sun Pharma contended that the company had stocked up a large amount of the goods under consideration and since these were medicinal supplies which had an expiration period of just one year, they were prayed to be excused from the litigation and to be made available for commercial supply in the market. Particularly, it was argued that against the backdrop of the pandemic, the medicines produced were in high demand due to their characteristics of relieving some of the major symptoms exhibited by the patients who had contracted the Covid-19 virus.  The argument of urgency and public interest was held to not have a bearing on the question of trademark infringement and that such a ground could not be a reason to violate the plaintiff’s rights.

  1. Jorawer Singh Mundy v. Union of India [Delhi High Court]

An interim order issued by a single-judge bench of the Delhi High Court recognised the right to be forgotten (RTBF) as a subset of the fundamental right to privacy. Previously, the right had been discussed in the context of individual’s names appearing in judgments. The Kerala High Court had recognised a petitioner’s right to privacy and reputation while seeking the removal of their name from judgments published on IndianKanoon.  The Gujarat High Court dismissed a similar petition on the grounds that the petitioner was not able to point out any provisions in law that supported their claim for removing their name from a judgment. The Karnataka and Orissa High Courts too have dealt with similar matters. The Delhi High Court in this case sought the examination of the Right to Privacy of the petitioner as balanced against the Right to Information of the public and maintenance of transparency in judicial records. The Court granted the petitioner interim protection while noting that ‘irreparable prejudice’ had been caused to the petitioner with their name being captured in certain judgments and thus allowed for the same to be removed.

  1. Karthick Theodre v. The Registrar General, Madras High Court [Madras High Court, Madurai Bench]

In this case, the petitioner had sought for his name to be redacted from a judgment in a case where he was acquitted. The petitioner claimed that he had been acquitted by a High Court on an appeal from a conviction and sentence passed by a trial court, for offences under the IPC. He claimed that he was entitled to redaction of his name from the judgment given that he was identified as the accused even after being acquitted, which had caused harm to his reputation. Similar to the Delhi High Court judgment above, this Court in its interim order found that a prima facie case had been established to uphold the petitioner’s right to be forgotten. In this case, the right to be forgotten was located in Article 21 of the Constitution and a post Puttaswamy framework. However, in its final judgment the Court noted that the generalized principle of upholding the right to be forgotten would open floodgates and cause confusion. The Court noted that redacting one’s name from a judgment acquitting them is counterproductive when there are other tarnishing publications in the public domain and that access to court judgments are integral to “open justice”, subject only to some exceptions.

B. Top 10 Judgments/Orders [Jurisprudence/Legal Lucidity]

  1. Hero Electric Vehicles Private Ltd v. Lectro E-Mobility Private Ltd [Delhi High Court]

The arbitrability of IP issues once again came to the forefront with the Delhi High Court confronting the issue in Hero Electric v. Lectro E-Mobility. The case concerned the issue of arbitrability of trademark infringement and passing off of the ‘Hero’ mark. In holding the dispute to be arbitrable, the Court noted that the matter was not about the deceptive similarity of any mark or trademark infringement, but rather regarding the right to use a mark which arises from contractual agreements.  The Court denied that the dispute would operate in rem. This decision further solidifies the understanding that the arbitrability of IP disputes can be classified under two broad heads – those involving rights in rem, such as infringement and registration of IP rights which cannot be arbitrated and those involving subordinated rights in personam which are granted purely through contractual or licensing agreements, which can be referred to an arbitration.

  1. Sanjay Soya Private Limited v. Narayani Trading Company [Bombay High Court]

In this case, the Bombay High Court ruled that registration of copyright is not mandatory for obtaining relief in an infringement action. This decision corrects a nine-year old blunder by the same Court in which it had refused relief due to absence of registration. In Dhiraj Dewani v. Sonal Infosystems the Court held that registration of a copyright is a pre-condition for claiming relief for copyright infringement, thus reading into the legislative framework a non-existent requirement. The present decision addresses this flawed presumption and declares the previous judgment per incuriam, thus setting the record straight that there is no mandatory requirement of registration for maintaining an action for copyright infringement.

  1. Meher Distilleries Pvt Ltd v. SG Worldwide Inc [Bombay High Court]

In a trademark infringement suit involving the use of marks ‘Rampur Asava’ (Rampur being the brand and Asava being a sub-brand) and ‘Aswa’, a single-judge bench of the Bombay High Court had previously held that the two marks could not be held to be deceptively similar. In that, the defendant had claimed that ‘Asava’ was not a trademark at all and was always used in conjunction with ‘Rampur’ which was the actual brand and hence could not be held to be similar to ‘Aswa’. Correcting this, a Division Bench of the High Court noted that even if only ‘Rampur’ was the brand, there was nothing to suggest that ‘Asava’, as a sub-brand did not operate as a trademark as well. The Division Bench reiterated that what makes something a trademark is the power to distinguish a product from others. If a sub-brand performs the function, as Asava possibly does in this case, it must be treated as a trademark.

  1. Centaur Pharmaceuticals Pvt Ltd and Kibow Biotech Inc. v. La Renon Health Care Pvt Limited and Stanford Laboratories [Madras High Court]

In 2006 Kibow had applied for registration of its invention for a certain composition that augments kidney function and was granted patent protection. This patent protection was challenged by La Renon before the IPAB under section 64. The IPAB had rejected the revocation petition and this rejection was later upheld by the Madras High Court. In 2019 Kibow and its exclusive licensee Centaur filed a suit against La Renon and its manufacturer Stanford Labs seeking a permanent injunction alleging that their patent was being infringed. An ex-parte injunction was granted in favour of Kibow for 14 days, later whose vacation La Renon sought. In holding that Kibow established a prima facie case for interim protection, the Court made observations on patentability of subject matter under section 3(e). While holding that questions of validity and infringement should be dealt with by the trial court, the Court still went on to make statements regarding whether the patented claim was an admixture. In doing so, the Court inadvertently upheld the validity of the patent in an interlocutory hearing despite stating the matter was to be addressed in a trial, thus making claims under section 3(e) over which the Court did not necessarily possess the technical expertise to adjudicate on, creating uncertainties with respect to patentability of subject matter.

  1. M/S DRS Logistics Pvt Ltd v. Google India Pvt Ltd [Delhi High Court]

In a preliminary ruling, a single judge bench of the Delhi High Court dealt with the matter of trademark infringement rooted in alleged misuse of keywords in search engines. In this case, the plaintiff had sought an injunction against Google India Private Limited, Google LLC (owing to the Google Ads Program) and Just Dial Limited to restrain the defendants from permitting third parties to use the plaintiff’s trademark in ‘Agarwal Packers & Movers’ as keywords or metatags on their search engines. Google argued that even when the keyword is a trademark, it is never used in a ‘trademark sense’, thereby the invisible use of trademarks, as keyword, failing to meet the threshold to constitute infringement. The Court held that the use of the Google Ads program undisputedly qualifies as advertising, which falls under Indian trademark law. The Indian Act specifically considers use of a trademark in advertising as ‘use’ sufficient for infringement under section 29(6)(d) of the Act and hence Google’s keyword policy on third-party trademarks is restricted by the application of section 29(6)(d) in India. Despite reasoning in the plaintiff’s favour, the Court disposed of the interim applications. The Court, however, ordered Google India and Google LLC to investigate complaints made by plaintiffs alleging use of its trademarks as keywords and the overall effect of an advertisement to check if it results in infringement or passing off and then to remove such ads.

  1. Merck Sharp and Dohme v. SMS Pharmaceuticals [Delhi High Court]

Merck had alleged that SMS Pharmaceuticals had infringed its patent in Sitagliptin and obtained an ex-parte interim injunction preventing SMS Pharmaceuticals from using the same. SMS Pharmaceuticals approached the Delhi High Court seeking a vacation of the interim injunction arguing that the use had been only for research and development purposes. The Delhi High Court vacated the ex-parte interim injunction allowing SMS Pharmaceuticals to export Sitagliptin for R&D purposes on the condition that it files an affidavit mentioning the quantities of the drug exported and an undertaking that the export is only for R&D, holding that the defendant was at liberty to seek the section 107A, Bolar-like exception under the Patents Act. This exception allows generic manufacturers to conduct research using patented drugs, so that as soon as the term of the patent expires, the generic manufacturer can launch alternatives, thus taking the right step forward towards ensuring larger access to cheap generic alternatives.

  1. Novex Communications Pvt Ltd v. DXC Technology [Madras High Court]

In this case, the Madras High Court held that the business of issuing licenses in any work in which copyright subsists can only be done by a registered copyright society with respect to works incorporated in cinematograph films or sound recordings. It noted that the first proviso to section 33 of the Copyright Act makes it clear that the right of an owner to issue licenses in an individual capacity remains unimpacted subject to the rider that such a right must be consistent with their obligations as a member of any copyright society. When the grant of license moves into the realm of business, then section 33(1) and/or the second proviso of the Copyright Act applies. Thus, making clear and re-emphasizing the legislative intent that the business of licensing must be routed only through a copyright society.

  1. Tata Sons Private Limited v. Hakunamatata Tata Founders [Delhi High Court]

In this case, Tata Sons had sought a permanent injunction to restrain the defendants, whose place of business was the UK and the US, from using the trademark ‘TATA’ as a part of the name through which their cryptocurrency was made available to the public and from its use in their corporation’s name and domain name. In noting that the plaintiff had not established a prima facie case in their favour and that the balance of convenience lay with the defendant, the Court held that the operation of the Trademarks Act and the Civil Procedure Code statutorily extend only to the boundaries of India. For the same to apply to entities located outside India, it will be subject to the existence of a necessary connection between the activity of the foreign-seated defendants and India, specifically the intent of the defendants to target India, must be established.

  1. Saregama India Limited v. Next Radio Limited [Supreme Court]

Several petitions in the Madras High Court challenged the validity of rule 29(4) of the Copyright Rules, 2013. Rule 29(4) requires broadcasters to indicate details prior to issuing notice to the copyright owner for obtaining statutory license for broadcasting literary and musical works or sound recordings or permitting the performance thereof on their platforms. There is a five-day notice period for the same (and 24-hour notice period for unforeseen circumstances). The central question addressed by the Madras High Court was whether rule 29(4) violates Article 19(1)(a) of the Constitution and whether the Rule is ultra vires section 31D of the Copyright Act and answered both in the affirmative. However, while adjudicating the matter, the High Court held that instead of a five-day notice period, a fifteen-day period should be granted. Upon appeal regarding the same, the Supreme Court held that the process of judicial review should not supplant the terms of the provision through judicial interpretation by re-writing statutory language. In doing so, the Court would be transgressing into the realm of the legislature.

  1. Deepa Jayakumar v. A L Vijay, Vishnu Vardhan Induri and Gowtham Vasudev Menon [Madras High Court]

The petitioner sought to exercise the right to privacy on behalf of her late aunt, J. Jayalalithaa, the former Chief Minister of Tamil Nadu and sought an injunction against the release of the movies ‘Thailavi’ (Tamil) and ‘Jaya’ (Hindi) and against the web series ‘Queen’. The petitioner sought to protect the dignity and posthumous privacy of her aunt. The petitioner claimed that the web series and the film had not gotten prior consent and was being produced for commercial gain. The petitioner contented that Jayalalithaa’s personality rights and her family’s privacy rights should be protected and that the productions may be incorrect and misleading. Refusing relief, the Court noted that with the death of a person, their privacy, reputation, and personality which they were entitled to enjoy during their lifetime get extinguished and that reputation cannot be inherited by legal heirs.

C. Top 10 Other IP Developments

  1. Intellectual Property Appellate Board abolished through the Tribunals Reform Act, 2021

As the President of India gave his assent to the Tribunals Reforms Act, 2021, the IPAB was finally abolished. With this move, the jurisdiction of the IPAB moves back to the High Courts and commercial courts. As per the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance 2021, the IPAB’s powers in respect of pending as well as fresh patents, trademarks, GI and Plant Varieties matters were transferred to the High Courts, while in case of copyright they were transferred to the commercial courts. For most of its existence, the IPAB has been in the news for mostly the wrong reasons, ranging from a lack of independence to a lack of appointments to poor quality of appointments to illegal appointments to a lack of resources. Following the IPAB’s abolition, the Delhi High Court created an Intellectual Property Division in the High Court, a solution that Prof. Basheer envisaged more than a decade ago. SpicyIP’s compilation of posts on the IPAB can be found here.

  1. Parliamentary Standing Committee Report on the IP regime

A report titled ‘Review of the Intellectual Property Rights Regime in India’ was released by the Department Related Parliamentary Standing Committee on Commerce. The report reads as a very pro-industry one and involved very minimal stakeholder consultation. The long list of recommendations includes reviewing the bars on patenting of algorithms, mathematical methods, discoveries, plants, and traditional knowledge; endorsement of patent prosecution highways; recommendation on re-establishment of the IPAB; and narrowing the scope of important exceptions provided under copyright law to facilitate educational uses of copyrighted works. The significance of the report and its issues have been extensively covered on the blog here.

  1. Revocation of Pepsico’s PVP certificate by the PPV & FR Authority

An order by the Plant Varieties and Farmers Rights Authority cancelled the protection granted to Pepsico India for the extant potato variety, FL 2027, popularly the variety used in its Lay’s chips over which Pepsico had previously sued some farmers in Gujarat for infringement. While the infringement suits were withdrawn, it did lead to stakeholders seeking cancellation of Pepsico’s registration. The present order dealt with the application filed by Pepsico for a ‘new variety’ of potatoes, used for its Lay’s chips. Later Pepsico clarified that the application was actually for an ‘extant variety’. It is to be noted that extant varieties not being subject to ‘novelty’ requirements under section 15(2) of the Protection of Plant Varieties and Farmers Rights Act, 2001, face a lesser burden whilst seeking registration. The order dealt with Pepsico’s failure to prove its locus as an assignee of the individual who discovered the variety and hence cancelled the registration. The present order is being widely seen as a ‘historic win for farmer’s rights in India, despite its effect being limited to procedural diligence.

  1. Newslaundry-Aaj Tak dispute and the fair-dealing exception

In October, Newslaundry revealed that its YouTube operation had been suspended pending an enquiry into 53 separate copyright notices received from Aaj Tak. Aaj Tak had allegedly taken to using copyright claims to prevent commentary and criticism of its reportage by Newslaundry.  In the present instance, Youtube’s copyright takedown mechanisms were used as a legal mechanism to take down criticism of a large broadcasting house’s news coverage despite the same falling within the copyright exemptions in Indian law. Section 52(1)(a)(ii) of the Copyright Act exempts from infringement ‘fair dealing’ with any work for the purpose of criticism or review. Fair dealing requirements under Indian law are quite broad and should have ideally covered the instances of short clips from Aaj Tak being taken with critical commentary added to it by Newslaundry. This issue brings to light questions about the width of the fair dealing provisions and the chilling effect that copyright takedowns have on free speech and criticism.

  1. Patents (Amendment) Rules, 2021

In September, the Department for Promotion of Industry and Internal Trade under the Ministry of Commerce and Industry introduced the Patents (Amendment) Rules, 2021. The new rules provide an amended definition of ‘educational institutions’ under Rule 2(ca) and includes universities established under Central Acts, Provincial Acts, State Acts and any educational institution as recognized so by the Central or State Government. The rules provide a patent fee reduction for educational institutions. As per this press release, patent fees for educational institutions has been reduced by 80%.

  1. Olympic medalists and the right to publicity

The 2021 Tokyo Olympics saw an exceptional performance from the Indian contingent, with the country fetching its highest medal tally. Such a performance not only brought a lot of pride to the country but also gave a flurry of opportunities to the advertising industry by providing it new faces who could be brand ambassadors. While these athletes saw a tremendous increase in sponsorship deals, non-sponsors also found a way to use their personality rights without actually securing the right to do so. In ‘congratulating’ newsmakers, advertisers open themselves up to accusations of unauthorizedly infringing on personality rights. The most prominent instance of this came up with badminton player and two-time Olympic medalist P.V.Sindhu’s management agency sending out notices to brands that used her images in an unauthorized manner alongside their brand products. This issue brings to the spotlight how the unauthorized use of personality rights for commercial gain leads to the infringement of the same, with advertisers skirting a narrow line between capitalizing on news cycles and infringement.

  1. Recognition of non-human inventors, AI and its implications for India

The debate concerning the recognition of non-human inventors heated up significantly after the South African patent office designated Dr. Stephen Thaler’s ‘Device for Autonomous Bootstrapping of Unified Sentience’ (DABUS) as an inventor for an improvised beverage container and a neural flame for search and rescue operations. While the question of granting inventorship to non-human inventors has found support across a spectrum of opinions, the growing importance of Artificial Intelligence (AI) and its economic impact were captured by the Parliamentary Standing Committee Report on the IP regime too, in which an amendment to section 3(k) of the Patents Act was recommended and for the Act to be reviewed on a priority basis for it to be adequately equipped to facilitate inventorship and ownership by AI.

  1. Delhi High Court’s Intellectual Property Division Rules, 2021

The Delhi High Court framed the draft Delhi High Court Intellectual Property Rights Division Rules, 2021 and circulated the same inviting comments and inputs in October, 2021. The rules were framed by a two-member committee comprising Justices Prathiba M Singh and Sanjeev Narula, to examine the creation of an Intellectual Property Division (IPD) in the High Court to deal solely with cases related to intellectual property issues.

  1. Compulsory license for TB drugs Bedaquiline and Delaminid?

A pending public interest litigation before the Bombay High Court highlighted the failure of the patent regime flexibilities in promoting patient interest and access to medicines. The PIL notes that for the Government to succeed in its National TB Elimination Programme, it must make Bedaquiline and Delamanid, two powerful anti-TB drugs, available immediately to patients. It was argued that this need cannot currently be met since the government relies on donations from the patentees, which are alleged to be made in miniscule quantities. The petition urged the Government to use the compulsory licensing provisions in accordance with section 92 and 100 of the Patents Act. In response, as of now, the Court has ordered the Government to consider the representations made.

  1. Joint Committee Report on Personal Data Protection Bill

The Joint Parliamentary Committee Report on the Personal Data Protection Bill, 2019 was tabled in the Parliament on December 16, 2021. The Bill governs the processing of personal data by the Government, companies incorporated in India and foreign companies dealing with personal data of individuals in India. With the Bill creating a regime for data sharing between multiple stakeholders, it will have repercussions on rights concerning intellectual property, particularly aspects such as trade secrets and data localization which affect intellectual property protections offered to foreign entities by their home regimes.

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