SpicyIP Weekly Review (May 4th Week)

SpicyIP saw a very busy week with many interesting developments -

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The week started with Sai’s insightful post on Microsoft v Motorola. The 207 page judgment of Judge

James L Robart on fixing the FRAND (fair, reasonable and non-discriminatory) royalty rate, is significant as its sets out, for the first time, a framework for negotiating a FRAND royalty rate. The opinion adequately addresses the problems of patent hold-up and royalty stacking plaguing the industry and has been well received so far.

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Thereafter, Prashant blogged about the defamation notice served on me by the Times Publishing House. The notice and response have also been uploaded. Shamnad’s befitting response has caught the attention of many. This matter has spread far and wide and we have support coming in from all quarters! Thank you all for your support!
The Hindu and Sans Serif, among others, have covered this story here and here respectively.

Bullying tactics by the Times coupled with bad advice given by their lawyers seems to have landed Times in a sticky situation! As is clear, we are not going to take lightly to threats of legal action for acts which are absolutely constitutional. We need to put these bullies in their place for which we will fight/campaign and do what it takes to ensure that in future big companies do not misuse their power. People have tried to divert and detract from the focus of our fight towards irrelevant claims and gossip. However, we implore you to see through those frivolous comments and look deeper into the implications of such actions. The more support we can garner the stronger we will be, so if you are interested in supporting us, please do email/comment! 

SpicyIP is an extraordinary team and their support has been insurmountable!I cannot have imagined fighting this alone.

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Gopika’s post followed - the IPXI, is the world’s first financial exchange for licensing and trading intellectual property rights. They released a Rulebook with new additions which deal with the issuance of Unit License Rights, the trading and consumption of these URLs, hearings and sanctions for violations of the IPXI, as well as provisions for auditing and compliance by IPXI members in addition to their earlier rules of governance regarding conduct of the members’ transactions including issuance, trade, use and enforcement of the Unit License Rights that are offered through the IPXI.

Gopika covered the Micolube case (here). To put it in a nutshell, there were two close issues to the case of Micolube. The first issue framed by the Court was whether a suit for infringement could be filed against a defendant who was a registrant himself. On this point the court ruled that a registrant, who has a monopoly right over a design could sue the defendant, who has a registered design, on the grounds that his/her design was not new or significantly distinguishable as a natural corollary of his right to protect the monopoly of his design. The second issue discussed by the court, was whether the common law tort of passing off could be invoked by the holder of the registered design. The Court ruled that while simultaneous registration as a trademark and design is not permitted, there is no bar on a design post registration on being used as a trademark. Therefore, dual protection under design law and trademark law is permitted. The court also discussed as to whether a composite suit for infringement of a registered design could be filed along with an action for passing off.

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Madhulika then brought to the notice of our readers (here) that on May 15 the Department of Pharmaceuticals issued the new Drug Price Control Order, 2013 which will alter price regulation dynamics and substantially increase the number of medicines covered by price cap umbrella. This order does not cover patented drugs. In march this year, the DOP had issued a draft proposal on price negotiations of patented drugs. 

By the new pricing methodology, which has raked up a hornet’s nest amongst industrialists, manufactures selling medicines at a price higher than the ceiling price fixed by the government will have to down scale, whereas, manufacturers selling medicines at a price below the ceiling price will have to maintain status quo. The consumers can breathe easy. The DPCO 2013 also exempts price control for a period of 5 years on new drugs/new formulations which have been developed by domestic research.

Comment of the Week

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1. Shamnad Basheer - "Thanks for all your support in helping us take on corporate bullies hell bent on killing free speech in this country. Contrary to what some of you may think, this approach of ours and my rather strongly worded letter came after significant deliberation. Given the increasing propensity to issue frivolous notices and file frivolous suits with a view to intimidating writers into meek submission, we had to find a way to send a strong message. We were very keen on mainstreaming the issue and forcing right minded folks to see this plague for what it was and helping us fight the fight. 

Some of you may know that TOI managed to shut down at least one blogger in the past with a defamation threat. Natco tried its hand with us when it sued me for what was a self evident comment I made that it had lied to a court of law. Funnily enough, Natco itself admitted in one of its documents that it effectively lied to the court. And yet it proceeds to sue for defamation, completely oblivious to the fact that "truth" and "fair comments" are defences to charges of defamation. Thankfully our courts are sane and refused to grant them an injunction despite their lawyers screaming for it multiple times. However, Natco did succeed to some extent, in that none of our mainstream media bravehearts ever wrote anything on that case after that! One of them even told me that he had standing instructions from his boss to not touch the case after that! The shadow effects of these notices and these law suits are rather pernicious to the say the least. 

They represent an insidious threat for one of the cardinal freedoms that many of us cherish, namely the freedom to speak our mind. We need to fight to salvage this sacrosanct freedom....one that is constitutionally guaranteed to us in this wonderful democracy of ours. We just cannot afford to throw it away at the behest of corporate bullies who will stoop at nothing to achieve what they want.

Starting today, we'll effectively launch a sustained campaign to resuscitate free speech values in this country. This will include a variety of advocacy including a strong push to decriminalise defamation. I sincerely hope that if these values matter to you, you will join us in this fight. Please let us know either in the comments section or by emailing us. Many thanks again for your support!"

International Developments

World Health Assembly: Drafting Group Agrees On Health R&D Meeting Proposal  [IP Watch]– The World Health Assembly’s drafting group finalised a draft text which proposes to convene a technical meeting to help identify new health research and development projects for diseases that primarily affect poor communities.

The Top 150 Licensors List [IP Finance] – On May 1, 2013, the Global License publication released its annual list of the top 150 licensors. These global licensors account for approximately $230 billion in retail sales of licensed products and information.

International theft of U.S. intellectual property costs $300 billion per year: report [The Raw Story] – According to a 11-month study, led by former US officials, theft of software and other US-developed products is costing the US economy more than $300 billion each year.