SpicyIP Weekly Review (March Week 3)

SpicyIP Posts: 

The week started with Mathews P. George’s two part post(here and here) to the 248th Report of Parliamentary Standing Committee on Human Resource Development on the Universities Research and Innovation Bill, 2012. The report was highly critical of the Bill and he discussed recommendations put forth by the committee regarding: strengthening the existing framework, shortage of faculty, apprehension about easy entry of foreign Universities in India, absence of monitoring mechanism and establishment of universities. 

Next, Prashant Reddy brought our attention to lawsuits filed by the State of California against an Indian and a Chinese textile firm for allegedly using pirated software in their home countries to manufacture textiles which are then exported to the U.S. and in particular California. This particular lawsuit has not been filed under the US Copyright law, but under the Californian Unfair Competition Law. Prashant was of the view that these lawsuits are nothing but a brazen attempt at extra-territorial enforcement of American IP law despite the fact that IP is a territorial law. Further, he discussed grounds on which these lawsuits can be best termed as outrageous. 

In his second post on the same matter, Prashant discussed the complaint filed by the California’s Attorney General in Los Angeles. The root of this litigation happens to be a lawsuit filed by Microsoft before the Delhi High Court against Pratibha Syntex Ltd., the Indian textile manufacturer named before the Californian court. The complaint appears to be extremely vague with respect to the quoted value of infringing goods and the facts stated to establish a cause of action. He reiterates after an examination of the lawsuit, that the whole exercise is just an outrageous attempt by California to make life hell for Indian businesses who have already been sued by Microsoft before the Delhi High Court. 

The week saw a couple of ground breaking developments in the Indian IP scene. Shamnad Basheer brought to our attention a significant IP milestone in which the Delhi High Court recognised a separate tort of unfair competition (and unjust enrichment) and prevented Idea Cellular and other leading service providers from "misappropriating" real time cricket scores by sending out regular SMS updates. The court relied significantly on the “hot news doctrine” evolved in the famous INS case decided by the US Supreme Court. He discussed the Indian ruling and its implications here. 

Another important development reported by Rajiv Kr. Choudhry was the Madras High Court’s decision to strike down the requirements for agents filing patent applications before the patent office. The crux of the judgment is that all Advocates as a matter of right can file patent applications for their clients, and they do not have to register themselves as patent agent with the patent office. This basically ensures that the requirement of science, engineering, or technology from any university is done away with. 

The week’s breaking news spree ended with Shamnad bringing to our notice India’s second Compulsory Licensing application filed at the Indian Patent Office (IPO) by BDR Pharmaceuticals International Pvt Ltd. BDR's application covers Dasatinib which is an anti-cancer drug patented and sold by BMS at Rs 1.68 lakhs a month. BDR has promised to bring it down to Rs 8100!

Shouvik Kr. Guha informed us of an excellent initiative wherein a letter has been sent a few days back by a group of as many as 309 writers and eminent academicians from all over the world to several publishing houses. The letter collectively issues a request to the publishing houses to withdraw the suit for injunction and damages, as in their opinion, the ‘course-packs’ prepared by D.U. fall firmly within the ambit of statutory exceptions to copyright infringement (‘fair use’), being covered under Section 52 of the Indian Copyright Act, 1957. It also includes a polite but firm request to the publishing houses not to pursue their own ends in the names of the authors, which is what they have done so far. The reply by publishing houses to this letter is much awaited. 

The week also saw the unfortunate demise of Dr. Anji Reddy, the founder of Dr. Reddy's Laboratories Ltd., one of India's largest pharmaceutical companies. Dr. Reddy had a significant influence on India's patent policy and unlike most other generics, he invested substantially in trying to create a new drug molecule. This guest-post was an obituary written by Raghu Cidambi, a former advisor at Dr. Reddy's Laboratories on the extraordinary journey of Dr. Reddy in the Indian Pharmaceuticals industry, and especially his impact on the IP debate in India. 

Aparajita Lath wrote an extensive post on the copyright controversy surrounding the movie remake of Zanjeer. Producers Anil Mehra and Reliance have been sued for royalty by the authors of the original script–Javed Akhtar and Salim Khan who claim that no permission was sought by them for use of the original script. The writer duo has sought compensation to the tune of Rs. 6 crores from Mehra and Reliance. Aparajita further discussed possible arguments that may be made by the duelling parties before the Bombay High Court. 

In this post, I discussed the Bombay High Court’s judgment in which it was held that mere publication of examination report /letter on the website (of Registry of Trademarks) shall not constitute as communication to the applicant for trademark registration. In this particular case, the respondent (Registrar of Trademarks) merely published a letter on the website regarding the status of trademark registration, with no physical or electronic intimation whatsoever to the petitioner, and denied the petitioner a hearing in respect of its application for registration of a trademark on the ground that no response was received by the petitioner within a month of publication on the website. 

My second post was about the unanimous decision by the European Court of Human Rights rejecting an appeal to quash the convictions of two The Pirate Bay(TPB) founders Fredrik Neij and Peter Sunde. The Swedish Courts had declared them guilty in 2009, the appeal the EU Court by them was advanced on the grounds that TPB had merely facilitated exchange of torrent files between users and, that this right to communicate information was protected by Article 10 of the European Convention of Human Rights. The applicants’ argument was firmly rejected by the Court citing a need to balance the right to freedom of expression with other interests. 

Rajiv Kr. Choudhry posted about The Leahy-Smith-America Invents Act (AIA) which took effect on 16th March. The Act is supposedly tailored to bring US patent law in sync with the patent systems of the rest of the world. The Act has made a slew of changes which impact filing, fees, issue etc. but the key provision of the Act relates to timing of patent filing. This act has replaced the “First to invent system” with “First to File”. However, given that the Act obviously provides for protection in the case of stolen ideas - it is termed as a "First Inventor to File." There are other provisions relating to disclosure, third party review, etc. 

Bollywood was quite in the spotlight this week. I wrote about the Bombay High court ruling in favour of 20th Century Fox and awarding damages worth Rs. 1.25 crores against the makers of a Bollywood movie Knock Out. This is reportedly the highest damages for copyright infringement awarded in India. The Court held that the makers were liable for copyright infringement for massively copying from the acclaimed Hollywood movie Phone Booth. We are yet to obtain a copy of the final order/judgment, though I discussed some of the contentions which arose during the first hearing of the suit in 2009. 

International Developments: 

Google announced the shutting down of its highly popular RSS reader Google reader. The internet has erupted with users lamenting Google’s decision and scurrying to find a substitute. An online campaign has been launched to save Google Reader. It is going strong, with 1,00,000 people signing the online petition in a bid to stop Google withdrawing the service. 

The Economic and Scientific Advisory Board (ESAB) of the European Patent Office concluded a one-year study of patent thickets, quality and fees, finding that many problems in the patent system could addressed merely by better patent quality and a major overhaul of the patent system is not needed. The ESAB statement, press release, and a report on patent thickets are available here. 

Meanwhile, Apple has been accused of technology theft by a George Lucas founded company THX Ltd. of stealing speaker technology used in iPhones, iPads and iMac products and infringing the latter’s patents. 

In a significant move, American drug maker Pfizer told US lawmakers at a Congressional hearing that India is undermining intellectual property by misuse of its compulsory licence provisions. It urged the US government to review all available trade policy tools in light of the deteriorating IP environment.