Spicy IP Weekly Review (October Week 2)

This week (October 8-14) has seen quite a few happenings in the IP scenario in and out of the country and as many as 12 posts in the blog.

 

IPAB Appointment Controversy

It started with Prashant covering the Delhi High Court judgment of Sanjeev Kumar Chaswal v. Union of India, which dealt with the controversies surrounding the IPAB appointments. In this matter, which was primarily about the suitability of candidature of Mr. Chaswal, the court had ruled against the Department of Industrial Policy & Promotion (DIPP) and directed the latter to forward to the Appointment Committee of Cabinets (ACC) the final recommendations of the Selection Committee, which had interviewed applicants for the position of Technical Member at the IPAB. The post seems to have struck many a nerve as one can see from the associated comments.

Intellectual Property Rights: Infringement and Remedies – IP Book published

Right after that came the news of the publication of the book Intellectual Property Rights: Infringement and Remedies (LexisNexis Butterworths Wadhwa, 2012) by Ananth Padmanabhan, the veteran IP trial lawyer, again covered by Prashant. This would be one of the first and foremost attempts by an IP practitioner to examine the practical side of the IP laws in the country.

Guest Post on Indian Guidelines on ‘Similar Biologics’

 
Then comes the turn of the exhaustive and comparative analysis of the guidelines the Indian government has come up with, regulating the approval of 'similar biologics' also known as bio-similars. The bio-similar market is going to be a huge market opportunity for the generic drug industry. Mr. Christopher Ohly, one of our frequent guest bloggers, a Partner at Schiff Hardin, LLP and a seasoned American litigator in several fields including IP and regulation, carried out the guest post analyzing the said guidelines vis-à-vis the American scenario. Titled ‘The New India Guidelines on Similar Biologics: Regulatory and Market Authorization Requirements’, this post opines that the Indian guidelines represent a major step forward in establishing a rigorous, science-based regime for approval of biosimilars pharmaceutical products, especially for sale and therapeutic use in India and this step can lead Indian manufacturers to become effective competitors in the global market for biologic medicines, both as suppliers of biosimilar products and, soon thereafter, of “biobetters” and innovative new medicines.

Guest Post analyzing Exide v. Exide

 
Mr. Ohly’s excellent post was followed by yet another insightful guest post by Arun Mohan, an IP litigator at the Madras High Court and another regular at the blog, who carried out an excellent analysis of the Exide v. Exide judgment at the Delhi High Court. While on the face of it, the judgment seemed rather simple, dealing with the matter of ‘common law license’ and prior use of mark among others, Mr. Mohan went ahead and mooted the applicability of the DB order of the Delhi High Court in the Samsung Case in the present matter and raised a few interesting questions. As he opined, what this decision had the potential to shake up all holding companies into reviewing their terms with their subsidiaries, distributors and licensees in India.

 
Guest Post on Delhi University Copyright Dispute

 
This week seems to have seen a high number of excellent guest post on a wide range of issues, an event which surely bodes well for the blog and the readers. While the Delhi University copyright dispute has been extensively discussed in the blog, this time the perspective of Ms. Chandana Anusha, a Ph.D. student at the Delhi School of Economics, was brought to light in the form of a guest post. The post, titled ‘Who’s afraid of Copyright?’ discussed, inter alia, the massive protest mounted by Delhi University students and faculty at the DSE campus against the copyright aggression against educational institutions and students, an event that had also been covered by leading newspapers such the Deccan Herald and the Indian Express. A laudable example of journalism, the post compiled a series of reactions and opinions from a large number of the participators in the protest regarding various aspects of the ongoing dispute.
In response to this post, we have also received a rather interesting anonymous but detailed comment, titled ‘Why even publish with the publishers if you aren't getting paid to your satisfaction?’ that Prashant has put up here.

‘Breaking News’ in Sports: Delhi High Court’s Judgment in New Delhi Television Ltd. v. ICC Development (International) Ltd.

Another case comment that I myself had put up in course of the week was regarding the judgment of the Delhi High Court in New Delhi Television Ltd. v. ICC Development (International) Ltd., which imposed a series of standards to determine whether all the news items being dubbed ‘breaking news’, especially when they involve footage of sporting events covered live and relating to huge commercial stakes, can indeed qualify as thus. The test that was laid down was whether the activity involves coverage/reporting that is result oriented or whether it is primarily an analysis/review of a sporting event. In case it is not result oriented reporting, injunction must follow irrespective of whether the use of the footage is fair or unfair.

Defensive Patent Licensing

This was followed by a post by Swaraj, wherein he’d extensively reviewed a paper describing a type of license, which may reduce unnecessary patent litigation as well as promote an 'open access' approach. The new model, named Defensive Patent License, is essentially a standardized open patent license designed to encourage the creation of a broad, decentralized network of Open Innovation Communities that both patent their innovations for committed defensive purposes and license them on a royalty-free basis to any others who will do the same.

Selective Journalism

Use, abuse and misuse of quotes/interviews given by the members of the Spicy IP team has unfortunately not remained an altogether alien concept since our conception. This time it was Prashant’s work, which had been used by Biospectrum in an incomplete and partial manner so as to highlight CSIR’s innovation achievements, while keeping the lapses such as lack of transparency about patent royalties received, in the dark. Not that we have anything against the organization, but it seems perfectly reasonable for any person to feel a leftover bitter taste in his mouth when a balanced review on his part highlighting both the merits and demerits of a situation is taken out of context and in part to present an incomplete picture!

Karnataka High Court quashes order barring ‘Overseas Indian Citizen’ to continue as Patent Agent

The ever-vigilant Prashant then unearthed an order passed by the Karnataka High Court quashing a directive passed by the Controller General of Patents that had sought to bar an Indian citizen staying overseas from practicing as a patent agent by striking his name off the Register of Patents. The matter was not, however, fully resolved; the order having been struck off chiefly owing to insufficiency of evidence and the court had given the Controller General the liberty to begin a fresh hearing on the agent’s suitability.

The New Safe Harbour Provision gets tested for the First Time

The Madras High Court’s award of interim injunction against 37 Internet Service Providers in a qua-timet action by the producers of “Maattrraan/Brothers” was then covered by Prashant. It was the first of its kind since the Copyright (Amendment) Act, 2012 has come into being. Among other issues, Prashant pointed out that the objective of the ‘safe harbour’ provision of reducing the litigation and liability being faced by third-party intermediaries is perhaps not being met by India’s safe harbour provision, since, as the present case demonstrated, while copyright owners are being given the option to either file a complaint with the service provider OR file a civil action before a court, almost everybody is choosing the latter course of action at the slightest provocation.

Supreme Court raps Indian Government on Lack of Transparency in Clinical Trials

Finally, in a welcome piece of news, this week also marks the return of Kruttika Vijay, one of our star bloggers, who had some time back taken a leave of absence. Today itself, Krutika came up with a quick pointer on a recent Supreme Court judgment criticizing the Indian government about the lack of transparency in the manner in which clinical trials are conducted in our country.

 

Other International Developments at a Glance

While this week has seen a huge and varied set of developments relating to various branches of IP all over the globe, a few of them are being mentioned for the readers’ benefit as follows:

Samsung may end up controlling Supply to Apple

With global giants STMicroelectronics mooting a corporate restructuring and a possible acquisition by Samsung, things may get interesting, since the former is a key supplier to Apple, who uses components by STMicroelectronics in iPads and iPhones and has currently locked horns with Samsung in a worldwide high-profile IP battle.

More on the Samsung-Apple Battle

Samsung has recently won its bid to continue selling its newest Galaxy Nexus smartphone in the U.S. when the U.S. Court of Appeals for the Federal Circuit yesterday allowed its request to lift a lower court’s ban on sales. Samsung wants to continue selling the phone while it challenges the ruling that Apple was likely to win its suit claiming the Galaxy Nexus infringed four patents and that sales were hurting Apple’s business in the meantime. 

In another ongoing litigation, Google’s Motorola Mobility unit has lost a court bid to seal “highly confidential” records of its patent-licensing talks with Samsung in course of the aforementioned battle of the latter with Apple. The document, Motorola said, revealed a “pattern of financial offers” in the cellular cross-licensing negotiations and may contain monetary terms, license rates, the direction of payments, names of licensed products and technologies, and the geographic scope of the deal and having such sensitive information out in the open could hurt its business interests.

Butt-face Products

In a rather amusing turn of events, VF Corp.’s North Face unit has initiated a contempt proceeding against Williams Pharmacy Inc., who had agreed before the federal court in St. Louis to stop using marks in their ‘South-Butt’ T-shirts that were “confusingly similar” to North-Face’s marks. Promptly after that consent agreement, the pharmacy company had begun selling products marked with “The Butt Face” under the guise of a new company, an action that was not at all kindly taken by North Face!

Allegation against LimeWire and Megaupload

Disney, Viacom, Fox and other movie and TV studios have recently sought directions from the U.S. District Court in New York in Twentieth Century Fox Film Corp. v. Lime Wire LLC, to the effect that the file-sharing website Lime Wire LLC and its founder, Mark Gorton had induced people to illegal acts of downloading their shows and films for free. On a similar line of affair, in U.S. v. Dotcom, another U.S. District Court at Virginia has ruled that the U.S. authorities can bring a copyright infringement charge against Megaupload Ltd. and its founder, Kim Dotcom, for running a massive illegal file-sharing service despite the fact that the company did not have any office in U.S.

EPO and USPTO unveils CPC Scheme

Meanwhile, The European Patent Office and the USPTO have finally unveiled the Cooperative Patent Classification scheme and some finalized CPC definitions. The scheme that is to be officially launched in 2013, is a joint project aimed at developing a common classification scheme for technical documents, in particular patent publications, which will be used by both offices in the patent granting process.

 

Grant and Extension of Patents
 

In a bit of welcome news to the pharmaceutical companies, Spectrum Pharmaceuticals, a biotechnology company with fully integrated commercial and drug development operations has managed to get its patent rights extended by USPTO over FOLOTYN®(pralatrexate injection) by 5 years through the Hatch-Waxman Act. The drug is perceived to be an important treatment option in relapsed or refractory PTCL.

Another patent was granted to Gevo Inc., a U.S. biofuel producer backed by the French oil company Total SA (FP) and specialty-chemicals maker Lanxess AG (LXS), for mechanical systems implemented at its Minnesota factory, which covers Gevo’s proprietary “platform-separation unit,” which can lower the cost of producing isobutanol. This news ought to come at least as a relief at a time when the oil prices are soaring and search for alternatives is going on in full swing.

While discussing the grant of patents, one may also mention Apple’s receipt of patent over its “Find My Friends” application, which covers a method of creating a location-sharing group without the assistance of a central server.

ITU Policy Upgrade to reflect Standards-Essential Patents

The United Nations International Telecommunication Union Policy is on its way to being upgraded, with an expert group on IP rights having been tasked to devise the new standards while keeping in mind the objective to clarify litigation involving standards-essential patents.

Malaysia acceded to WIPO Copyright Treaty

In another corner of the world, Malaysia is all set to accede to the WIPO Copyright Treaty from December 27, 2012 onwards, according to a deposition made by the Malayasian government on September 27, 2012.

Australian IP Scenario

Far away in Australia, Victoria Ltd., the governing authority for thoroughbred horse racing in Australia’s State of Victoria, decreed that horse owners who want to register a horse to race in the state must waive their rights to register the horse’s name independently as a trademark, as per a report of the Sydney Morning Herald. 

On another front, the Australian High Court has released its reasons for dismissing some time back a challenge from tobacco companies that claimed the Australian government had been illegally seizing their IP without proper compensation in the matter of JT International SA v Commonwealth of Australia. The judges held that since the government was not getting any benefits out of the said defacing of cigarette packs [by putting in large, graphic images of gangrenous limbs and cancer victims, with brand names printed in a uniform font on a background defined as drab, dark brown], therefore, it is not liable to compensate the companies for such actions.

WIPO Developments

Meanwhile in Geneva, the 50th session of Assemblies of the WIPO member states has reached a breakthrough decision on how to complete negotiations on a pact to improve access to copyrighted works for the many visually impaired or print disabled people around the world. Apart from this brilliant piece of development, member states have also agreed a work program for the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) for 2013. This committee will continue intensive negotiations to ensure effective protection of genetic resources, traditional knowledge and traditional cultural expressions/expressions of folklore. The members have also agreed to expedite work towards a design law treaty to develop simplified standards for industrial design registration procedures.

Singapore and Korea signs IP MoUs

Singapore and Korea have decided to share a common IP bond when they entered into a MoU on Comprehensive IP Cooperation, as well as a MoU on a pilot Patent Prosecution Highway. The former seeks to establish an overarching framework for bilateral cooperation between IPOS and KIPO to improve the administration and effectiveness of IP systems in both countries through exchanges of information and best practices. The areas of cooperation include, inter alia, the enhancement of patent search and examination capacity between the two offices, and exchange of information on regional and international developments in IP and other IP trends. The latter, on the other hand, intends to enhance work efficiency and patent quality by way of sharing search and examination results between the two IP offices, which ought to allow applicants in both countries to obtain corresponding patents faster and more efficiently.

ICANN appoints new Chairperson
 

On another note, the ICANN Board has appointed Yrjö Länsipuro as the new Chair, Cheryl Langdon-Orr as Chair-Elect and Adam Peake as Associate Chair for the 2013 Nominating Committee. The appointees are well-known personalities in the ICANN community with in-depth knowledge of ICANN from many years of involvement and experience in ICANN leadership functions. The NomCom Chair organizes the selection of ICANN Board members and individuals to serve in other key leadership positions within ICANN's Supporting Organizations and Advisory Committees in accordance with ICANN's Bylaws. The Chair-Elect serves alongside the Chair, with anticipated succession into the role of the Chair for the subsequent year's NomCom, while the Associate Chair assists with the duties of the Chair.

 

Pakistan passes new IP Bill

Finally, right across our borders, the neighbouring Pakistan has, in a move to get itself off the US Watch List regarding enforcement of IP rights, passed the IPO-Pakistan Bill, 2012, aimed at curbing copyright infringement by way of establishing regional officers for the country’s IP office to provide “speedy justice and trial” of IP-related cases.

 

That's all for this week, readers. We hope to get back to you next weekend with an even more extensive range of IP developments.