In this week's top story, the Intellectual Property Appellate Board (IPAB) on November 02, 2012 revoked Roche's Pegasys in a post-grant opposition filed by Sankalp Rehabilitation Trust. Pegasys is the first Indian patent to be granted on a pharmaceutical drug. The patent was revoked on two counts: (a) that it was 'obvious' for a person skilled in the art and (b) that the patentee failed to prove that the invention was more'efficacious' than previously known substance, a requirement under Section 3(d) of the Patents Act, 1970. Lastly, the IPAB resoundingly stated that patient groups are undoubtedly 'persons interested' under the Act qualified to challenge the validity of a patent.
5 Reasons why course packs are legal in India (Amlan Mohanty)
Disappointingly, the recent order of the Delhi High Court restrained the Delhi University and Rameshwari Photocopy Service from making course packs without looking to fair use defenses under Section 52 the Copyright Act, 1957. Amlan in this post sets out 5 reasons why producing of course packs are legal in India:
Following the week long protests from students in Costa Rica, the Government on October 26, 2012 issued a presidential decree clarifying that photocopying of academic material is permitted, irrespective of any commercial gain. The controversy arose due to the ambiguity in the present Costa Rican Law for Observation of Intellectual Property (Law 8,039) over the legality of reproduction of extracts from text books by for-profit photocopy shops. President Laura Chinchilla stated 'this opposition to Intellectual Property Law is ideologically based and premised on a false choice. Photocopying for profit for academic use is authorized under Law 8,039. ' Despite crystal clear provisions for fair use in the Indian Copyright Act, it is unfortunate that Delhi High Court restrained Rameshwari Photocopy Service who is operating under a valid licensee from the Delhi University. Moreover, the socio-economic conditions in India are comparable to Costa Rica and as Amlan right states, it is high time that India followed soon.
Academia struggles to pay as Journal prices soar! (Swaraj Paul Barooah)
India's top science officials requested the Planning Commission to earmark Rs. 500 crores towards subscriptions for international scientific journals for the duration of the 12th Five Year Plan (2012-17). The subscriptions rates has seen a five-fold increase in the past five years alone, according to Live Mint. The sudden rise hasn't spared Harvard either, forcing them to issue a memo to its staff encouraging them to publish works for free or in open access journals.
Swaraj attributes this rise in prices to the current scheme of the copyright law which affords monetary incentives to publishers instead of authors. In doing so, the reputational benefits, requirements for positions and promotions and scientific curiosity, the primary motivation for an author to publish are being disregarded. The rise of internet and the recession seems to have dented publishers heavily and this is probably the reason for the steep increase in subscription rates. In light of these development, Open access journals might just provide a viable alternative to this traditional method of publishing.
Kerala loses its sense of proportionality, takes extreme steps to fight online piracy (Sai Vinod)
In a preposterous bid to combat online piracy, the Kerala Police in the past six months have registered several complaints against individuals for uploading, downloading and streaming of recently released Malayalam movies on the internet. Agent Jadoo, a new anti-piracy tracking mechanism developed by a Kochi based IT firm, was deployed to identify the IP addresses of infringing users. The actions of the overzealous Kerala Police, however, are highly questionable and are prima facie illegal. This post primarily explores: (a) whether an IP address form the basis for registering criminal complaints for copyright offenses? and (b) whether investigations into fair use provisions are necessary before initiating such criminal actions? On both counts, the post concludes that the actions of the Kerala Police are ultra vires the provisions of the Copyright Act, 1957.
Debating the Business Standard analysis on the Avesthagen patent revocation (Prashant Reddy)
The Business Standard on November 4, 2012, reported the revocation of Avesthagen patent by the Central Government invoking powers conferred under Section 66 on grounds that the patent claimed 'traditional knowledge' (TK). Prashant in this incisive post highlighted several flaws in the article's analysis. The article states that 'India has argued that traditional knowledge cannot be patented because that will interfere with the lives of ordinary people... Any government that allows such patents will in no time be accused of selling out to unscrupulous drug makers.' TK accounts for prior art and a bar on patents based on this ground is because the invention fails the novelty and non-obviousness standard. The fact that the patent affected lives of ordinary people has no relation to its revocation under the Act. In another instance, the article claimed that the patent violated Section 3(j), a provision which prohibits patenting of plant and animals, including claims on their parts. A perusal of the Avesthagen patent application, however, does not reveal any claim on plant, gene or DNA.
HMT: Time to share benefits with our farmers? (Mrinalini Kochupillai)
Mrinalini Kochupillai, our guest blogger, in this post exposed how the University of Maharashtra misappropriated the rights of an independent farmer relating to a PKV HMT rice variety. Dadaji Ramji Khobragade, a small farmer in Maharashtra, preserved few unusual seeds that he noticed 1983. Over the years, the seeds were replanted which resulted in the development of the popular HMT rice variety. The University in 1994 collected samples of the seeds from the farmer and in 1998 released a 'pure' and improved form known as the PKV HMT variety. Shockingly, the University recently obtained a Certificate of Registration for a 'new variety' under the PVP&FR Act. In this context, Mrinalini examines Sections 39(1)(i) and 39(1)(iii) of the PVT&FR Act to see if there exists any fit case for the farmer to claim any economic benefit.
Supreme Court grants Bharat Matrimony stay against Shaadi.com (Shan Kohli)
Sale of keywords in online advertising has been one of the hotly debated trademark issue across countries. In India too, Consim Info Pvt. Ltd. in 2009 filed a suit before the Madras High Court primarily against Google's Adword which permitted its competitors to bid for keywords containing company's trademark (Bharat & Matrimony). After an unfavorable verdict, Consim filed an SLP before the Supreme Court which granted a stay last month against Shaadi.com and other rival matrimonial portals restraining them from infringing their mark. Looking at this preliminary ruling by the Court, Shan opines that the final outcome could be similar to European Court of Justice's decision last year involving Interflora and Marks & Spencer.
GWU – CII ‘Legal Education’ program set to make a comeback to India: Will it survive the criticism from the NGO + Cipla lobby? (Prashant Reddy)
The eighth edition of the Annual Indian Legal Education Program organized by George Washington University (GWU) and Confederation of Indian Industries (CII) will be hosted by the US-India Business Council (USIBC) in December, 2012. GWU's involvement was severely criticized by a section of NGOs and the Indian pharma giant, Cipla before. In a letter addressed to the Ministry of Commerce, the opponents accused GWU of lobbying for the Big Pharma and this is evident from their sponsorship to the event. Prashant, however, views this opposition as nothing but an attempt to muzzle speech. The conference brochure lists out sponsors, which included the Big Pharma, which clearly dispels any suspicion of secret lobbying. Dean Fredrick Lawrence earlier clarified that the Big Pharma does not dictate the agenda for the conferences conducted by GWC.
Central government dragged to the High Court over securities tribunal: When will the Government learn? (Prashant Reddy)
The functioning of the Securities Appellate Tribunal (SAT) came into question in a Public Interest Ligation (PIL) filed before the Delhi High Court. As per the SEBI Act, the three member tribunal comprises of two technical members and a retired judge of High Court or Supreme Court as the Presiding Officer. The SAT, however, had has been functioning with only two technical members since November 2011. The petition also highlights the overwhelming control of the Executive in appointment of members. PILs of this kind have become a commonplace before High Courts owing to delay in appointments by the Central Government. When will the Government learn?
Allegations against ICAR scientist of falsifying patent claim to win award (Shouvik Kumar Guha)
In a shocking development, India Today reports that Dr. Kailash C. Bansal, scientist at Indian Council of Agricultural Research (ICAR), falsely claimed three biotech related patents for novel gene discovery with an eye to bag the prestigious Rafi Ahmed Kidwai for 'outstanding research' in transgenic crops in 2007-08. Mail Today's investigations, sourced from an RTI application, revealed that no application was filed by the scientist when he received the honor. More shockingly, the ICAR turned blind eye to a tip-off on this irregularity from Institute Technology Management Committee (ITMC) of the National Research Centre on Plant Biotechnology where Bansal was previously employed.
INTERNATIONAL DEVELOPMENTS
5 Reasons why course packs are legal in India (Amlan Mohanty)
 |
| Image from here |
- Photocopying of text books for the purpose of impartation of knowledge falls squarely within the scope of 'reproduction in the course of instruction' mentioned under Section 52(1)(i)(i).
- Furthermore, photocopying of the nature complained off is justified under Section 52(1)(a) which permits fair dealing of works for 'private use, including research.' Decision of the Canadian Supreme Court supports this stance.
- Production of course packs for educational purposes is a legit practice in countries such as Canada and US. The legal basis for such practice is consistent with the Indian copyright regime.
- Rameshwari Photocopy Services is a bona fide licensee of the Delhi University and the terms of license require them to offer such services to students.
- The amounts copied in the course packs complained the petition constitutes less than 10% of entire book.
 |
| Image from here |
Academia struggles to pay as Journal prices soar! (Swaraj Paul Barooah)
What is 'Open Access'? Explained by PhD Comics
Swaraj attributes this rise in prices to the current scheme of the copyright law which affords monetary incentives to publishers instead of authors. In doing so, the reputational benefits, requirements for positions and promotions and scientific curiosity, the primary motivation for an author to publish are being disregarded. The rise of internet and the recession seems to have dented publishers heavily and this is probably the reason for the steep increase in subscription rates. In light of these development, Open access journals might just provide a viable alternative to this traditional method of publishing.
 |
| Image from here |
In a preposterous bid to combat online piracy, the Kerala Police in the past six months have registered several complaints against individuals for uploading, downloading and streaming of recently released Malayalam movies on the internet. Agent Jadoo, a new anti-piracy tracking mechanism developed by a Kochi based IT firm, was deployed to identify the IP addresses of infringing users. The actions of the overzealous Kerala Police, however, are highly questionable and are prima facie illegal. This post primarily explores: (a) whether an IP address form the basis for registering criminal complaints for copyright offenses? and (b) whether investigations into fair use provisions are necessary before initiating such criminal actions? On both counts, the post concludes that the actions of the Kerala Police are ultra vires the provisions of the Copyright Act, 1957.
Debating the Business Standard analysis on the Avesthagen patent revocation (Prashant Reddy)
 |
| Image from here |
Mrinalini Kochupillai, our guest blogger, in this post exposed how the University of Maharashtra misappropriated the rights of an independent farmer relating to a PKV HMT rice variety. Dadaji Ramji Khobragade, a small farmer in Maharashtra, preserved few unusual seeds that he noticed 1983. Over the years, the seeds were replanted which resulted in the development of the popular HMT rice variety. The University in 1994 collected samples of the seeds from the farmer and in 1998 released a 'pure' and improved form known as the PKV HMT variety. Shockingly, the University recently obtained a Certificate of Registration for a 'new variety' under the PVP&FR Act. In this context, Mrinalini examines Sections 39(1)(i) and 39(1)(iii) of the PVT&FR Act to see if there exists any fit case for the farmer to claim any economic benefit.
 |
| Image from here |
Sale of keywords in online advertising has been one of the hotly debated trademark issue across countries. In India too, Consim Info Pvt. Ltd. in 2009 filed a suit before the Madras High Court primarily against Google's Adword which permitted its competitors to bid for keywords containing company's trademark (Bharat & Matrimony). After an unfavorable verdict, Consim filed an SLP before the Supreme Court which granted a stay last month against Shaadi.com and other rival matrimonial portals restraining them from infringing their mark. Looking at this preliminary ruling by the Court, Shan opines that the final outcome could be similar to European Court of Justice's decision last year involving Interflora and Marks & Spencer.
 |
| Image from here |
The eighth edition of the Annual Indian Legal Education Program organized by George Washington University (GWU) and Confederation of Indian Industries (CII) will be hosted by the US-India Business Council (USIBC) in December, 2012. GWU's involvement was severely criticized by a section of NGOs and the Indian pharma giant, Cipla before. In a letter addressed to the Ministry of Commerce, the opponents accused GWU of lobbying for the Big Pharma and this is evident from their sponsorship to the event. Prashant, however, views this opposition as nothing but an attempt to muzzle speech. The conference brochure lists out sponsors, which included the Big Pharma, which clearly dispels any suspicion of secret lobbying. Dean Fredrick Lawrence earlier clarified that the Big Pharma does not dictate the agenda for the conferences conducted by GWC.
 |
| Image from here |
The functioning of the Securities Appellate Tribunal (SAT) came into question in a Public Interest Ligation (PIL) filed before the Delhi High Court. As per the SEBI Act, the three member tribunal comprises of two technical members and a retired judge of High Court or Supreme Court as the Presiding Officer. The SAT, however, had has been functioning with only two technical members since November 2011. The petition also highlights the overwhelming control of the Executive in appointment of members. PILs of this kind have become a commonplace before High Courts owing to delay in appointments by the Central Government. When will the Government learn?
Allegations against ICAR scientist of falsifying patent claim to win award (Shouvik Kumar Guha)
In a shocking development, India Today reports that Dr. Kailash C. Bansal, scientist at Indian Council of Agricultural Research (ICAR), falsely claimed three biotech related patents for novel gene discovery with an eye to bag the prestigious Rafi Ahmed Kidwai for 'outstanding research' in transgenic crops in 2007-08. Mail Today's investigations, sourced from an RTI application, revealed that no application was filed by the scientist when he received the honor. More shockingly, the ICAR turned blind eye to a tip-off on this irregularity from Institute Technology Management Committee (ITMC) of the National Research Centre on Plant Biotechnology where Bansal was previously employed.
INTERNATIONAL DEVELOPMENTS
News stories from US
 |
| Image from here |
The US Supreme Court last week heard arguments in the Kirtsaeng v. John Wiley & Sons which came in appeal from the Second Circuit. The case raises important issues on the validity of 'first sale doctrine' in the US copyright law. The Appellant Kirtsaeng imported different 'versioned' books published by John Wiley from Thailand and purported to sell them at cheaper rates in the US. The Second Circuit ruling against the Kirtsaeng denied any 'first sale' in the present instance for reason that the book was not made in the US. Swaraj notes that the decision will have far-reaching implications for secondary markets in US and more importantly the public interest at large. A verdict against first sale, he adds, might incentivize publishers to freely sell lower-prized editions in poorer nations.
'March-in' request against HIV drug (Nature)
Four consumer and medical health advocacy groups based in the US petitioned the US National Institutes of Health (NIH) to 'march in' over Norvir (ritonavir), an anti-AIDS drug developed with funding from NIH. The drug manufactured by Abbott Laboratories in the US is sold eight times higher than in Canada and New Zealand. Under the Bayh-Dole Act, the NIH can 'march in' and force open licensing if the patentee fails to 'achieve practical application' of the invention. The petition steered by Knowledge Ecology International (KEI), has stated that ritonavir has not been 'available to public on reasonable terms', a requirement under the Bayh-Dole Act.
Rosetta Stone agrees to settle claims with Google (Reuters)
Language software maker, Rosetta Stone Inc, on Wednesday agreed to end the three year old trademark dispute against Google's Adwords pending before the Court of Appeals for the fourth circuit. The suit accused Google of trademark infringement for allowing third-party advertisers to use the company's trademark for triggering ads.
FTC contemplates anti-trust proceedings against Google? (Bloomerg)
Bloomerg reports that few members of the staff of the US Federal Trade Commission (FTC) recommended anti-trust action against Google for blocking access to key smartphone technology patents. The FTC, earlier in June, instituted a formal probe to investigate into Google's licensing terms. Bloomerg's source has stated that 'at issue are Google's efforts to block U.S. imports of products made by Mircrosoft Corp. and Apple Inc. by claiming the devices, which rely on industry-standard technology, infringe patents owned by Google's Motorola Mobility unit.'
The United States Librarian of Congress on October 26, 2012 announced the fifth triennial ‘rulemaking’ on exemptions to the anti-circumvention clause in the Digital Millennium Copyright Act (DMCA). Many (Ars Technica & Techdirt) view this 'rulemaking' exercise as a flawed concept as it permits the Librarian of Congress to arbitrarily create or prohibit exemptions for circumvention of technological measures. The latest round of exemptions permits circumvention for the following:
- Literary works protected by technological measures that prevent blind and other disabled to enable read-aloud functionality, interfere with screen readers or other assistive technologies.
- Jail-breaking of computer programmes in wireless telephone handsets for enabling interoperability.
- Jail-breaking of computer programmes when the owner of a wireless telephone handset fails to enable interoperability with another telecommunication network.
- Circumstances exists where circumvention is necessary as other available non-circumventing methods fails to produce the level of high-quality content required for criticism, comment or educational purposes.
- To enable captioning and descriptive audio for audiovisual works for the benefit of blind, visually impaired, deaf and other similar disabilities.
Hurricane sandy wreaks havoc in NYU's cancer research lab (CNET)
The flooding and power loss at New York University's Langone Medical Centre has claimed several lives of lab mice used in cancer research. Creation of transgenic mice for research involves several years of selective breeding and documentation. The loss these rodents mice is a huge blow to cancer research.
Virginia District Court imposed jail term to members of a popular BitTorrent group (Torrent Freak)
Four members of IMAGiNE, one of the Internet’s leading BitTorrent release group, have been indicted and charged by the Govt for their role in the capturing, ripping and distribution of copyrighted films. The group stands accused of being responsible for 41% of all instances of English language theatrical audio piracy from September 2009 to September 2011. The first two members of the group, Willie Lambert and Sean Lovelady, were sentenced to 30 month and 23 months prison sentence respectively, with three years of supervised release. The other two members have also pleaded guilty and now await their sentence. Additionally, the Virginia District Court ordered the group to pay a whopping $449,514 as damages to Motion Picture Association of America (MPAA).
News stories from UK & EU
A 'Google tax' in European Union? (The Economic Times)
European news organizations are demanding royalties from search engines for displaying their links and snippets from their web portals. While the German Parliament quickly moved a bill to this effect, news reports have stated that French President warned Google against similar legislation if the search engine giant fails to workout a compensation model with publishers by the year end. Google, however, doesn't seem get bogged down by the treat anytime soon. In retaliation of sorts, Google has announced its intention to stop indexing french news sites.
UK Court asks Apple to issue an 'apology' for its 'untrue' statements (The Telegraph)
The flooding and power loss at New York University's Langone Medical Centre has claimed several lives of lab mice used in cancer research. Creation of transgenic mice for research involves several years of selective breeding and documentation. The loss these rodents mice is a huge blow to cancer research.
Virginia District Court imposed jail term to members of a popular BitTorrent group (Torrent Freak)
 |
| Image from here |
Four members of IMAGiNE, one of the Internet’s leading BitTorrent release group, have been indicted and charged by the Govt for their role in the capturing, ripping and distribution of copyrighted films. The group stands accused of being responsible for 41% of all instances of English language theatrical audio piracy from September 2009 to September 2011. The first two members of the group, Willie Lambert and Sean Lovelady, were sentenced to 30 month and 23 months prison sentence respectively, with three years of supervised release. The other two members have also pleaded guilty and now await their sentence. Additionally, the Virginia District Court ordered the group to pay a whopping $449,514 as damages to Motion Picture Association of America (MPAA).
News stories from UK & EU
A 'Google tax' in European Union? (The Economic Times)
European news organizations are demanding royalties from search engines for displaying their links and snippets from their web portals. While the German Parliament quickly moved a bill to this effect, news reports have stated that French President warned Google against similar legislation if the search engine giant fails to workout a compensation model with publishers by the year end. Google, however, doesn't seem get bogged down by the treat anytime soon. In retaliation of sorts, Google has announced its intention to stop indexing french news sites.
UK Court asks Apple to issue an 'apology' for its 'untrue' statements (The Telegraph)
The UK Court of Appeals last Thursday instructed Apple Inc. to issue an apology against 'untrue' and 'incorrect' made against Samsung's Galaxy products on its website. Apple was accused of posting inaccurate comments excerpted from a decision of another London court. The Court gave Apple 24 hours to remove the inaccurate statements and issue an apology on its website. News reports, however, have accused Apple of manipulation by inserting a piece of code in the website to make it difficult for visitors to notice the apology.
WIPO Re:Search completes its first Anniversary (AG-IP-News)
A year after its launch, WIPO Re:Search, a consortium to share IP and expertise with the global health research community, has proved to be be successful, giving rise to ten research collaborations or agreements. The program set up with an aim to facilitate research on neglected tropical diseases, provides a platform for public and private sector organizations to make their IP assets available to qualified researchers. The membership count stands at 61 to date, spanning five continents. Increased number of Africa-based institutions have joined the cause, a welcome sign for the continent fighting many endemic diseases.
 |
| Image from here |
A year after its launch, WIPO Re:Search, a consortium to share IP and expertise with the global health research community, has proved to be be successful, giving rise to ten research collaborations or agreements. The program set up with an aim to facilitate research on neglected tropical diseases, provides a platform for public and private sector organizations to make their IP assets available to qualified researchers. The membership count stands at 61 to date, spanning five continents. Increased number of Africa-based institutions have joined the cause, a welcome sign for the continent fighting many endemic diseases.
0 comments:
Post a Comment