SpicyIP Weekly Review (July 5-11)

Topical Highlight

IPAB Issue Finally Comes to a Conclusion: Delhi HC Creates Specialist IP Division

Varsha reported the significant development that the Delhi High Court issued a press release stating its plan to create an Intellectual Property Division (IPD) in the Delhi High Court. After the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance 2021, disbanded the IPAB and transferred its powers to the High Courts and Commercial Courts, the IPD has been constituted on the basis of the recommendations of a two-member committee consisting of Justice Prathiba M. Singh and Justice Sanjeev Narula. Varsha recalls that this is in line with Prof. Basheer’s arguments several years ago, when he advocated for specialised IP benches in High courts as opposed to an inept IPAB with limited powers. This view was also favoured by Retd. Justice Prabha Sridevan, who underscored the importance of public interest in IP matters. She also notes that Adv. Rajiv Choudhry too had filed a writ petition on behalf of Telecom Equipment Manufacturers Association of India (TEMA) asking for this in early June. The office order is available here.

Thematic Highlight

“Right to Access a Public Record” vs “Right to not Communicate the Work”: Where is Public Interest?”

In a guest post, Lokesh Vyas criticises the application of Section 8(1)(d) of the RTI Act for protection of IP in a PhD thesis and argues that it is a public document as per UGC guidelines which cannot be withheld from the public. Recounting the facts of the case, he argues that disclosure of thesis which is mandated by an Ordinance is not discretionary, and that since it is a mandatory suo motu disclosure under Section 4, it cannot be fit within the exceptions available under Section 8. He holds that the PhD student’s unsubstantiated statement of intent to file a patent over the information contained in the thesis is not sufficient to outweigh a duty to disclose. He evaluates the various applicable laws to argue that a thesis is a ‘public document’, the right to access which is available to the public as a matter of public interest, as well as through fair use under Section 52 of Copyright Act and also the RTI Act.

Other Posts

After Natco’s Withdrawal, Bajaj Healthcare files for Compulsory License to Manufacture Baricitinib

I analysed Bajaj Healthcare’s application for compulsory license to manufacture Eli Lilly’s Baricitinib, an arthritis drug more recently used for Covid treatment. While the section under which the application is moved is unknown, it was revealed the Bajaj had unsuccessfully attempted to acquire a voluntary license from Eli Lilly. While Bajaj claims that it can manufacture the expensive drug at a much cheaper price, I noted that Natco pharma, which had formerly applied for a CL as well but had withdrawn after concluding a voluntary license with Eli Lilly, was already selling Baricitinib at Bajaj’s proposed prices. Moreover, with several royalty-free licenses provided by Eli Lilly to ramp up local manufacture, the availability of the drug in the market is likely to have risen and it is all the more difficult to argue that the patent has not been worked. I also point out that despite support from courts and the international front, the government is unlikely to antagonize pharma companies voluntarily aiding the Covid effort in the absence of absolutely dire circumstances.

Vempati Ravi Shankar – Facebook Copyright Dispute: Issues on Moral Rights and Posthumous Enforcement of Celebrity Rights

Varsha also discussed a copyright infringement suit against a certain unknown people who had posted original sound recordings created by late Kuchipudi artist Vempati Ravi Shankar on their Facebook and Instagram pages. The plaintiff also claimed violation of moral rights and infringement of posthumous celebrity rights. Inquiring whether the right of integrity is violated, she applies the subjectivity test wherein the author is required to establish infringement to find that ‘prejudice to the honour or reputation’ of the author is difficult to prove. Looking into the question of posthumous publicity rights, she argues against the finding in judicial decisions that right of privacy, and by extension right of publicity, ceases at death. She then explores the various conflicting precedents on whether celebrity rights can be held to be property rights, as in that case they would survive the celebrity’s death. She concludes that the strongest claim available to the plaintiff is that of copyright infringement.

Patent v. Trade Secret: In the Light of Indian Pharmaceutical Industry

In another guest post, Pragya Jain explores the IP protection available to pharmaceutical industry through Patent and Trade Secrets. She begins by discussing the nature of Patent as statutory, limited right which operates as a trade-off with the public as opposed to Trade Secrets which are uncodified but are not limited by a term of protection. She then argues that while there does not necessarily have to be a choice between the two forms of protection, a recent Delhi HC decision which held all patent disclosed information to be public after its expiry mandates that an innovator wisely decide which option to go with. She lists various considerations to be taken into account: patentability and strength of information, term of protection required, risk of reverse engineering, enforcement, remedy, secrecy and costs. Pragya concludes that the choice between patent and trade-secrets is extremely essential, and will play a particularly important role for pharmaceutical companies if WTO accepts the TRIPS Waiver as even though information would not be protected under statutory rights, it may still be protected as know-how and through confidential agreements.

Call for Internship: DPIIT- IPR Chair at Gujarat National Law University [Apply by July 20]

We informed our readers that the DPIIT IPR Chair at Gujarat National Law University (GNLU), Gandhinagar is inviting applications from law students for an online internship. For further details, please see the announcement.

Call for Submissions: The Journal of the Patent and Trademark Office Society (Vol. 102)

We informed our readers that The Journal of the Patent and Trademark Office Society is inviting submissions for Volume 102 of the journal. For further details, please see the announcement.

Other Developments

Decisions from Indian Courts

• Delhi High Court in Cross Fit Llc v. Mr Renjith Kunnumal & Anr granted an interim injunction against the defendants restraining them from using in the course of trade, the mark ‘CrossFit’ or any other mark/logo identical or deceptively similar to the mark of the plaintiff, offline or online and asked them to immediately take down their website and domain name http://www.sfccrossfit.com as well as all listings, posts, pictures etc. which mention the word/mark ‘CrossFit’ from all social media webpages [8 July 2021].

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  Delhi High Court in FMC Corporation & Anr. v. Natco Pharma Limited upheld an interim injunction against defendant, restraining it from using the patented agrochemical ingredients which are used to manufacture pesticides [7 July 2021].

• Delhi High Court in Ampa Cycles Private Limited v. Jagmohan Ratra refused an interim injunction against the defendant holding that the rights in the trademark, ‘AMPA’ once relinquished to a third party for consideration, could not be claimed by the original owner [6 July 2021].
• Bombay High Court in Aman Chhabra and Ors v. Trac Entertainment Pvt Ltd quashed an interim order in an suit relating to the copyright in two music videos, ‘Pyar Ko Na Kaho’ and ‘Lutti Heer’ as the Appellant had been denied the opportunity to file a reply and contest the application, and remanded the matter back to the Single Judge to decide [3 July 2021].

News from India

• The Delhi High Court announced that it has constituted a specialist Intellectual Property Division to handle IP matters, including those that were previously pending before the now defunct IPAB [Read Varsha’s post on this, here].

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  Twitter in its reply to the Parliamentary Panel on IT’s questions regarding the grounds of blocking Union Minister Ravi Shankar Prasad of copyright violation under US’s Digital Millenium Copyright Act, stated that they had informed him of his violations prior to the blocking.

• Amazon launched its IP Accelerator programme in India to help businesses secure trademark protection over their products.
• A Kerala court has granted interim relief and ordered Facebook and instagram to take down content infringing works portraying the Kuchipudi artist Vempati Ravi Shankar’s performances [Read Varsha’s post on this, here].
• The Indian Performing Right Society Limited announced its #EmpowerHerMusic Initiative to empower female creators through knowledge and know-how.
• Weavers from 15 cooperative societies, including Negamam, Vadambachery, Sulur Kinathukadavu, and Pollachi areas in Tamil Nadu have applied for the Geographical Indication tag for thier Negamam Cotton Saree.
• Reporterdly, the share prices of Natco Pharma slipped 6% as Delhi HC allowed an injunction application against it by FMC Corp over agrochemical patents for insecticide manufacture.

News from around the World

• Swiss pharma company Roche has announced that it shall be suspending its patents over Tocilizumab in low and middle income countries, after the drug was declared essential for Covid treatment by WHO [Read about Delhi HC’s orders regarding Tocilizumab’s patent in India, here].

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  Russia has brought a new law that only permits local champagne producers to call their drinks ‘Shampanskoye’, meaning champagne in Russian. This move has been criticised by French champagne producers, who recognise only the sparkling wine from Champagne region of France as authentic champagne.

• Germany’s Constitutional Court at Karlsruhe rejected petitions to halt the establishment of a Unified Patent Court to enforce an EU-wide patent regime.
• The European General Court ruled that the sound of a drinks can opening followed by several seconds of fizzing cannot be a trademark.