Saturday, 17 January 2015

Honest use of his Own Name: not amount to Infringement and Passing off.


                                                                             P.S.MUZEEB
                                                                              B.A. LL.B. (HONS)

Precious Jewels & Anothers vs. Varun Gems [2014 (60) PTC 465 (SC)]

Justice Anil R. Dave,

Justice Vikramajit Sen

FACTS

In this case, the appellants aggrieved by the interim orders in a civil suit approached this Hon’ble Court by way of an appeal.
The appellants and respondents belong to same family and reside in Delhi, having Surname “RAKYAN”.  Their family business is sale of Jewellary. The family has not less than 15 business units in different names and styles. The appellants do the same Jewellary business with the name and style “NEENA AND RAVI RAKYAN” and the respondents shop name being “RAKYAN’S FINE JEWELLARY”. Both their shops are abutting each other. The respondents restrained appellant in doing the Jewellary business under the name & style of NEENA AND RAVI RAKYAN alleging that they cannot use the word “RAKYAN” as it is the violation of their IPR rights. The respondents got interim order against the appellants, restraining them the use of word “RAKYAN”.

CONTENTION

i.              Whether the appellants can continue with the word “RAKYAN”?
ii.            Whether the interim order was just and proper?


ARGUMENTS

The learned counsel on behalf of the respondents argued that the appellants had no right to do their business in the shop which is next to the shop of the plaintiff. The learned counsel also submitted that the appellants have no right to use word “RAKYAN”.
The learned counsel for appellants vehemently argued that they should not be restrained. The learned counsel argued that the Partners in the said firm are Smt. Neena Rakyan and Shri Ravi Rakyan. They cannot be restrained from doing their business in their own name.
The learned counsel relied upon Section 35 of the Trademarks Act, 1999. The Section 35 of Trademarks Act, 1999 says that no person shall be restrained of using his own name. Further for the clear understanding the Section 35 says that, Nothing in this Act shall entitle the proprietor or a registered user of a registered trade mark to interfere with any bona fide use by a person of his own name or that of his place of business, or of the name, or of the name of the place of business of any of his predecessors in business, or the use by any person of any bona fide description of the character or quality of his goods or services.

JUDGMENT

The Hon’ble Supreme Court accepting the arguments of the appellants concerning the interim order held that, we do not find any similarity between the marks by looking at the provision Section 35 of the Trademarks Act, 1999. The appellants cannot be restrained from running the business on the name “NEENA AND RAVI RAKYAN”. We therefore quash and set aside order granting interim relief to the respondents.

CONCLUSION

The use of surname is not an offence. Section 34 of The Trade and Merchandise Act, 1958 also entitles a person to use his/her name or that of his/her place of business to any bonafide description of the character or quality of his goods.  Section 35 of The Trademarks Act, 1999 protects use by a person of his own name.
                                      

The honest use by the person his own name without any intention to deceive does not amount to any infringement or passing off. In Benzet Cie’s Application[1], the Court held that, “mere surname is not the name of a company, individual or firm. Further any person with bonafide intention can use his own name and without any intention to deceive anybody or without intention to make use of the goodwill.[2] Therefore use of name with honest use does not amount to any infringement and passing off.




[1] (1913) 30 RPC 177
[2] Baume & Co. Ltd vs. AH Moore Ld., (1957) RPC 459

Thursday, 1 January 2015

First Draft of National IPR Policy by Submitted by: IPR Think Tank

The Newly formed IPR Think Tank  has submitted its first draft on country's  IPR POLICY for suggestions.

       The draft Policy aims to Establish a dynamic, vibrant and balanced intellectual property system in India to  Foster innovation and creativity in a knowledge economy;· Accelerate economic growth, employment and entrepreneurship;· Enhance socio-cultural development; and  Protect public health, food security and environment, among other areas of socio-economic importance. 

      Further Objectives include creating  public awareness about the economic, social and cultural benefits of IP  among all sections of society for accelerating development, promoting entrepreneurship, enhancing employment and increasing competitiveness; stimulate the creation and growth of intellectual property through measures that encourage IP generation ;To have strong and effective laws with regard to IP rights that are consistent with national priorities and international obligations and which balance the interests of rights owners with public interest;To modernize and strengthen IP administration for efficient, expeditious and cost  effective grant and management of IP rights and user oriented services.To augment commercialization of IP rights; valuation, licensing and technology transfer;To strengthen the enforcement and adjudicatory mechanisms for combating IP
violations, piracy and counterfeiting; to facilitate effective and speedy adjudication of IP disputes; to promote awareness and respect for IP rights among all sections of society;To strengthen and expand human resources, institutions and capacities for  teaching, training, research and skill building in IP.

       Realizing the need of special attention to  Ip matters and importance of Ip in India's  negotiation power, the policy has incorporated an  model to integrate  IP with Government Initiatives which focus on 
1. The proposed IP Promotion and Development Council (IPPDC) will open IP Promotion and Development Units (IPPDU) in all States, smart cities, innovation and industrial clusters in order to provide one window services to entrepreneurs, startups and manufacturing units for IP awareness, protection and utilization.

2. IP support to MSMEs will be expanded through new or existing IP facilitation centers.

3. Links will be forged between IPPDU/Facilitation Centers with IPOs, innovation and research universities, industry associations and financing institutions in order to realize ‘Mind to Market’ concept.
4. Technology Acquisition and Development Fund under the Manufacturing  Policy will be utilized for licensing or procuring patented technologies.

5. The use of global protection systems will be promoted for obtaining protection  of Indian IPRs in several countries for creating wider marketing and trading  opportunities.

6. Manufacturing units will be encouraged to set up IP cells in their own units  and make IP an integral part of their corporate strategies.

7. Establishment of a system in IPOs for simultaneous examination and grant of  several category of rights such as patents, trademarks, designs when attached  to a single product will be examined.

8. Integrate into the Government initiatives the various schemes of the  Department of Electronics and Information Technology for IP promotion and  global protection, forging links between industry and academic/research  institutes for industry oriented research, commercialization and  entrepreneurship development. 

The draft policy will be made into effect after 3 year after various reviews and monitory .
Further details on the Draft is available at 

  http://dipp.nic.in/English/Schemes/Intellectual_Property_Rights/IPR_Policy_24December2014.pdf

Sunday, 10 August 2014

Gene Patents - Evil, Inefficient or USEFUL

Here is the discussion on Gene Patents 

Gene Patents - Evil, Inefficient or USEFUL



Diptarka Ray SHould be for not more than 5 years, even if granted
August 8 at 12:41pm · Like


Poongothai Ramaswamy Gene patents should not be at least granted to the ones which are of health concerns to humans...
Yesterday at 11:55am · Like

Vijay Kumar Makyam But...what about research in this area..where great solutions are provided? Shouldn't we encourage the research by rewarding them by grant of patent.
17 hrs · Like

Vijay Kumar Makyam Just like life saving pharmaceutical drugs there should be controlled and not completely eliminated from patenting.
17 hrs · Like

Vijay Kumar Makyam Incases of misuse...revoke them or grant compulsory license.
17 hrs · Like

Vijay Kumar Makyam Not granting patents would go against Article 27 of Trips.
17 hrs · Like

Vijay Kumar Makyam Though governments are given liberty to take a call on patents related to plant and animals.
17 hrs · Like · 1

Poongothai Ramaswamy Vijay sir ....i was keeping in mind... Myriad genetics case while commenting on this post... http://www.genomicslawreport.com/.../myriad-gene-patent.../

Myriad Gene Patent Litigation - Genomics Law Report
www.genomicslawreport.com
As we previously reported , after the Supreme Court decided AMP v. Myriad Geneti...See More
1 hr · Like

Vijay Kumar Makyam I am not sure about the details of this case; however seems this case on the point that DNA that had merely been isolated from the body was not patentable subject matter. I am not going into technicalities here but as Indian Patent Act has Section 3(d) for stopping ever greening of pharmaceutical patents; there should be some provision of law for controlling the gene patents and should not be completely eliminated.
27 mins · Like

Vijay Kumar Makyam The Research in Gene Patents would be quite useful to solve genetically disorders and several such issues.

Saturday, 10 May 2014

Oracle wins copyright ruling against Google over Android

Oracle Corp won a legal victory against Google Inc on Friday as a U.S. appeals court decided Oracle could copyright parts of the Java programming language, which Google used to design its Android smartphone operating system.
The case, decided by the U.S. Court of Appeals for the Federal Circuit in Washington, is being closely watched in Silicon Valley. A high-profile 2012 trial featured testimony from Oracle's chief executive, Larry Ellison, and Google CEO Larry Page, and the legal issues go to the heart of how tech companies protect their most valuable intellectual property.
Google's Android operating system is the world's best-selling smartphone platform. Oracle sued Google in 2010, claiming that Google had improperly incorporated parts of Java into Android. Oracle is seeking roughly $1 billion on its copyright claims.
 
A San Francisco federal judge had decided that Oracle could not claim copyright protection on parts of Java, but on Friday the three-judge Federal Circuit panel reversed that ruling.
"We conclude that a set of commands to instruct a computer to carry out desired operations may contain expression that is eligible for copyright protection," Federal Circuit Judge Kathleen O'Malley wrote.
Pamela Samuelson, a professor at University of California, Berkeley, School of Law who wrote a brief supporting Google in the case, said the Federal Circuit's decision meanssoftware companies now face uncertainty in determining how to write interoperable computer programs that do not violate copyright.
"What we have is a decision that will definitely shake up the software industry," said Samuelson.
But Oracle attorney E. Joshua Rosenkranz said the law has always been clear on these issues. "There's nothing at all astounding in what the Federal Circuit did," he said.
NOT THE END OF LEGAL DISPUTE
The case examined whether computer language that connects programs - known as application programming interfaces, or APIs - can be copyrighted. At trial in San Francisco, Oracle said Google's Android trampled on its rights to the structure of 37 Java APIs.
U.S. District Judge William Alsup ruled that the Java APIs replicated by Google were not subject to copyright protection and were free for all to use. The Federal Circuit disagreed on Friday, ruled for Oracle and instructed the lower court to reinstate a jury's finding of infringement as to 37 Java API packages.
"We find that the district court failed to distinguish between the threshold question of what is copyrightable — which presents a low bar — and the scope of conduct that constitutes infringing activity," O'Malley wrote.
The unanimous Federal Circuit panel ordered further proceedings before Alsup to decide whether Google's actions were protected under fair use.
Programmers could still craft interoperable programs if the opinion stands, but lawyers will have to be more involved in signing off on what is permissible, said Eric Goldman, a professor at Santa Clara University School of Law.
"That's really expensive and lawyers are not going to give yes or no answers, and that's going to be stressful for everybody," Goldman said.
Google had argued that software should only be allowed to be patented, not copyrighted. However, O'Malley wrote that the Federal Circuit is bound to respect copyright protection for software, "until either the Supreme Court or Congress tells us otherwise."
Oracle General Counsel Dorian Daley called the decision a "win" for an industry "that relies on copyright protection to fuel innovation." Google said it set a "damaging precedent for computer science and software development" and was considering its options.

The case in the U.S. Court of Appeals for the Federal Circuit is Oracle America Inc vs. Google Inc, 13-1021.

As seen in 
http://www.reuters.com/article/2014/05/09/us-oracle-google-ruling-idUSBREA480KQ20140509

Friday, 2 May 2014

India’s Defence against IP Disrespect Claim

This article is published in Asia IP ,March EDITION.


After losing its patent grant,  multinational pharmaceutical company  Novartis has asked the United States 
and European governments to urge the  Indian government to do a better job of  respecting IP. But Vijay Kumar Makyam,  head of patents and trademarks at IP  Markets, a techno-legal consultant  in Hyderabad, defends his country’s government against the allegation. Saying that the Indian government  does not respect IP is completely  groundless, Makyam says, noting  that India has endorsed the TRIPS  Agreement and has vowed to abide by  the global IP standards “What the court looked into [in the Novartis case] was the issue of evergreening of patents,” he says. “There have been many reported cases from the west where evergreening has prolonged the duration of patent beyond the legal period. India’s Supreme Court did not find anything innovative in the patent claimed by Novartis.”In 2013, the Indian Supreme Court ruled against Novartis in rejecting the Guidance on the DIFC Data Protection Laws The Dubai International Financial Centre (DIFC) has published a guide to its Data Protection Law and Regulations. The guide sets out the DIFC Commissioner of Data Protection’s views on how he interprets some of the provisions and how DIFC companies can comply with the law in practice, says Dino Wilkinson, a partner at Norton Rose Fulbright (Middle East), in Abu Dhabi. 
 There is no specific data protection legislation in the UAE, but other laws on the use of private information have some relevant provisions, such as the Penal Code or the Cyber Crimes Law. He tells Asia IP that there is 
limited guidance from the Central Bank regarding data processing in the area. Some institutions adopt DIFC standards as best practice, particularly if they also have a DIFC branch or subsidiary. “The guidance will help those dealing with DIFC entities to better understand the obligations on their business  partners,” Wilkinson says. “It could also pharmaceutical group’s application for a patent for an updated version of its cancer drug Glivec, which is marketed in some parts of the world under the Gleevec name. The verdict was one of 
several Indian court rulings that have overturned or rejected patents from western drug companies, including 
Bayer and Pfizer. India has, in turn, accused the west of conducting inappropriate actions, including unauthorized and illegal seizure of Indian pharmaceutical exports, Makyam says. “Such has been a huge issue in bilateral talks.”Some groups in the pharmaceutical industry have asked the US Trade Representative to designate India a Priority Foreign Country, which is seen a step closer towards possible trade sanctions.
 “It is unfortunate that these groups have not been able to appreciate the justifiable stands taken by the Indian courts in the pharmaceutical matters,” Makyam says. “India has one of the most technically-qualified populations in the drug industry, so the request of the industry groups is completely unfair.”The industry groups also claim that “What the court looked into [in the Novartis case] was the issue of evergreening of patents,” he says. “There have been many reported cases from the west where evergreening has prolonged the duration of patent beyond the legal period. India’s Supreme Court did not find anything innovative in the 
patent claimed by Novartis.” In 2013, the Indian Supreme Court ruled against Novartis in rejecting the 
Guidance on the DIFC Data Protection LawsThe Dubai International Financial Centre (DIFC) has published a 
guide to its Data Protection Law and Regulations. The guide sets out the DIFC Commissioner of Data 
Protection’s views on how he interprets some of the provisions and how DIFC companies can comply with the law in practice, says Dino Wilkinson, a partner at Norton Rose Fulbright (Middle East), in Abu Dhabi. 
 There is no specific data protection legislation in the UAE, but other laws on the use of private information have some relevant provisions, such as the Penal Code or the Cyber Crimes Law. He tells Asia IP that there is 
limited guidance from the Central Bank regarding data processing in the area. Some institutions adopt DIFC standards as best practice, particularly if they also have a DIFC branch or subsidiary.  “The guidance will help those dealing with DIFC entities to better understand the obligations on their business partners,” Wilkinson says. “It could also pharmaceutical group’s application for a patent for an updated version of its cancer drug Glivec, which is marketed in some parts of the world under the Gleevec name. The verdict was one of 
several Indian court rulings that have overturned or rejected patents from western drug companies, including 
Bayer and Pfizer.India has, in turn, accused the west of conducting inappropriate actions, including unauthorized and illegal seizure of Indian pharmaceutical exports, Makyam says. “Such has been a huge issue in bilateral talks.”Some groups in the pharmaceutical industry have asked the US Trade Representative to designate India a Priority Foreign Country, which is seen a step closer towards possible trade sanctions.
 “It is unfortunate that these groups have not been able to appreciate the justifiable stands taken by the Indian courts in the pharmaceutical matters,” Makyam says. “India has one of the most technically-qualified populations in the drug industry, so the request of the industry groups is completely unfair.” The industry groups also claim that “What the court looked into [in the Novartis case] was the issue of evergreening of patents,” he says. “There have been many reported cases from the west where evergreening has prolonged the duration of patent beyond the legal period. India’s Supreme Court did not find anything innovative in the 
patent claimed by Novartis.” In 2013, the Indian Supreme Court ruled against Novartis in rejecting the 
Guidance on the DIFC Data Protection Laws

 The Dubai International Financial Centre (DIFC) has published a guide to its Data Protection Law and Regulations. The guide sets out the DIFC Commissioner of Data Protection’s views on how he interprets 
some of the provisions and how DIFC companies can comply with the law in practice, says Dino Wilkinson, a partner at Norton Rose Fulbright (Middle East), in Abu Dhabi.  There is no specific data protection legislation 

in the UAE, but other laws on the use of private information have some relevant provisions, such as the Penal Code or the Cyber Crimes Law. He tells Asia IP that there is limited guidance from the Central Bank 
regarding data processing in the area. Some institutions adopt DIFC standards as best practice, particularly if they also have a DIFC branch or subsidiary.  “The guidance will help those dealing with DIFC entities to better understand the obligations on their business partners,” Wilkinson says. “It could also pharmaceutical group’s application for a patent for an updated version of its cancer drug Glivec, which is marketed in some parts of the world under the Gleevec name. The verdict was one of several Indian court rulings that have overturned or rejected patents from western drug companies, including Bayer and Pfizer.India has, in turn, accused the west 
of conducting inappropriate actions,including unauthorized and illegal seizure of Indian pharmaceutical 
exports, Makyam says. “Such has been a huge issue in bilateral talks.” Some groups in the pharmaceutical 
industry have asked the US Trade Representative to designate India a Priority Foreign Country, which is seen 
a step closer towards possible trade sanctions. “It is unfortunate that these groups have not been able to appreciate the justifiable stands taken by the Indian courts in the pharmaceutical matters,” 

Makyam says. “India has one of the most technically-qualified populations in the drug industry, so the request of the industry groups is completely unfair.”The industry groups also claim that “What the court looked into [in the Novartis case] was the issue of evergreening of patents,” he says. “There have been many reported cases 
from the west where evergreening has prolonged the duration of patent beyond the legal period. India’s Supreme Court did not find anything innovative in the patent claimed by Novartis.”
In 2013, the Indian Supreme Court ruled against Novartis in rejecting the Guidance on the DIFC Data 
Protection Laws . The Dubai International Financial  Centre (DIFC) has published a  guide to its Data Protection Law  and Regulations. The guide sets  out the DIFC Commissioner of Data  Protection’s views on how he interprets some of the provisions and how DIFC  companies can comply with the law in practice, says Dino Wilkinson, a partner at Norton Rose Fulbright (Middle East), in Abu Dhabi.   There is no specific data protection legislation in the UAE, but other laws on the use of private information have some relevant provisions, such as the Penal Code or the Cyber Crimes Law. He tells Asia IP that there is limited guidance from the Central Bank regarding data processing in the area. Some institutions adopt DIFC standards 
as best practice, particularly if they also have a DIFC branch or subsidiary. “The guidance will help those dealing with DIFC entities to better understand the obligations on their business partners,” Wilkinson says. “It could also pharmaceutical group’s application for a patent for an updated version of its 
cancer drug Glivec, which is marketed in some parts of the world under the Gleevec name. The verdict was one of several Indian court rulings that have overturned or rejected patents from western drug companies, including Bayer and Pfizer. India has, in turn, accused the west of conducting inappropriate actions, 
including unauthorized and illegal seizure of Indian pharmaceutical exports, Makyam says. “Such has been a huge issue in bilateral talks.”Some groups in the pharmaceutical industry have asked the US Trade 
Representative to designate India a Priority Foreign Country, which is seen a step closer towards possible trade sanctions.“It is unfortunate that these groups have not been able to appreciate the justifiable stands taken by the Indian courts in the pharmaceutical matters,” Makyam says. “India has one of the 
most technically-qualified populations in the drug industry, so the request of the industry groups is completely unfair.”
The industry groups also claim that “What the court looked into [in the Novartis case] was the issue of 
evergreening of patents,” he says. “There have been many reported cases from the west where evergreening has prolonged the duration of patent beyond the legal period. India’s Supreme Court did not find anything innovative in the patent claimed by Novartis.”

 In 2013, the Indian Supreme Court ruled against Novartis in rejecting the Guidance on the DIFC Data Protection Laws. The Dubai International Financial Centre (DIFC) has published a  guide to its Data Protection Law and Regulations. The guide sets out the DIFC Commissioner of Data Protection’s views on how he interprets some of the provisions and how DIFC companies can comply with the law in practice, says Dino Wilkinson, a partner at Norton Rose Fulbright (Middle East),  in Abu Dhabi. 
There is no specific data protection  legislation in the UAE, but other laws on the use of private information have some relevant provisions, such as the Penal Code or the Cyber Crimes Law. He tells Asia IP that there is 
limited guidance from the Central Bank regarding data processing in the area. Some institutions adopt DIFC standards as best practice, particularly if they also have a DIFC branch or subsidiary.  “The guidance will help those dealing with DIFC entities to better understand the obligations on their business partners,” Wilkinson says. “It could also pharmaceutical group’s application for a patent for an updated version of its cancer drug Glivec, which is marketed in some parts of the world under the Gleevec name. The verdict was one of 
several Indian court rulings that have overturned or rejected patents from western drug companies, including 
Bayer and Pfizer. India has, in turn, accused the west of conducting inappropriate actions, including unauthorized and illegal seizure of Indian pharmaceutical exports, Makyam says. “Such has been a huge issue in bilateral talks.” Some groups in the pharmaceutical industry have asked the US Trade Representative to designate India a Priority Foreign Country, which is seen a step closer towards possible trade sanctions.
 “It is unfortunate that these groups have not been able to appreciate the justifiable stands taken by the Indian  courts in the pharmaceutical matters,” 
Makyam says. “India has one of the 
most technically-qualified populations 
in the drug industry, so the request 
of the industry groups is completely 
unfair.”
 The industry groups also claim that 
“What the court looked into [in 
the Novartis case] was the issue of 
evergreening of patents,” he says. 
“There have been many reported cases 
from the west where evergreening has 
prolonged the duration of patent beyond 
the legal period. India’s Supreme Court 
did not find anything innovative in the 
patent claimed by Novartis.”
 In 2013, the Indian Supreme Court 
ruled against Novartis in rejecting the 
Guidance on the DIFC Data 
Protection Laws
 The Dubai International Financial 
Centre (DIFC) has published a 
guide to its Data Protection Law 
and Regulations. The guide sets 
out the DIFC Commissioner of Data 
Protection’s views on how he interprets 
some of the provisions and how DIFC 
companies can comply with the law in 
practice, says Dino Wilkinson, a partner 
at Norton Rose Fulbright (Middle East), 
in Abu Dhabi. 
 There is no specific data protection 
legislation in the UAE, but other laws 
on the use of private information have 
some relevant provisions, such as 
the Penal Code or the Cyber Crimes 
Law. He tells Asia IP that there is 
limited guidance from the Central Bank 
regarding data processing in the area. 
Some institutions adopt DIFC standards 
as best practice, particularly if they also 
have a DIFC branch or subsidiary. 
 “The guidance will help those dealing 
with DIFC entities to better understand 
the obligations on their business 
partners,” Wilkinson says. “It could also 
pharmaceutical group’s application for 
a patent for an updated version of its 
cancer drug Glivec, which is marketed 
in some parts of the world under the 
Gleevec name. The verdict was one of 
several Indian court rulings that have 
overturned or rejected patents from 
western drug companies, including 
Bayer and Pfizer.
 India has, in turn, accused the west 
of conducting inappropriate actions, 
including unauthorized and illegal 
seizure of Indian pharmaceutical 
exports, Makyam says. “Such has been 
a huge issue in bilateral talks.”
 Some groups in the pharmaceutical 
industry have asked the US Trade 
Representative to designate India a 
Priority Foreign Country, which is seen 
a step closer towards possible trade 
sanctions.
 “It is unfortunate that these groups 
have not been able to appreciate the 
justifiable stands taken by the Indian 
courts in the pharmaceutical matters,” 
Makyam says. “India has one of the 
most technically-qualified populations 
in the drug industry, so the request 
of the industry groups is completely 
unfair.”
 The industry groups also claim that 
“What the court looked into [in 
the Novartis case] was the issue of 
evergreening of patents,” he says. 
“There have been many reported cases 
from the west where evergreening has 
prolonged the duration of patent beyond 
the legal period. India’s Supreme Court 
did not find anything innovative in the 
patent claimed by Novartis.”
 In 2013, the Indian Supreme Court 
ruled against Novartis in rejecting the 
Guidance on the DIFC Data 
Protection Laws
 The Dubai International Financial 
Centre (DIFC) has published a 
guide to its Data Protection Law 
and Regulations. The guide sets 
out the DIFC Commissioner of Data 
Protection’s views on how he interprets 
some of the provisions and how DIFC 
companies can comply with the law in 
practice, says Dino Wilkinson, a partner 
at Norton Rose Fulbright (Middle East), 
in Abu Dhabi. 
 There is no specific data protection 
legislation in the UAE, but other laws 
on the use of private information have 
some relevant provisions, such as 
the Penal Code or the Cyber Crimes 
Law. He tells Asia IP that there is 
limited guidance from the Central Bank 
regarding data processing in the area. 
Some institutions adopt DIFC standards 
as best practice, particularly if they also 
have a DIFC branch or subsidiary. 
 “The guidance will help those dealing 
with DIFC entities to better understand 
the obligations on their business 
partners,” Wilkinson says. “It could also 
pharmaceutical group’s application for 
a patent for an updated version of its 
cancer drug Glivec, which is marketed 
in some parts of the world under the 
Gleevec name. The verdict was one of 
several Indian court rulings that have 
overturned or rejected patents from 
western drug companies, including 
Bayer and Pfizer.
 India has, in turn, accused the west 
of conducting inappropriate actions, 
including unauthorized and illegal 
seizure of Indian pharmaceutical 
exports, Makyam says. “Such has been 
a huge issue in bilateral talks.”
 Some groups in the pharmaceutical 
industry have asked the US Trade 
Representative to designate India a 
Priority Foreign Country, which is seen 
a step closer towards possible trade 
sanctions.
 “It is unfortunate that these groups 
have not been able to appreciate the 
justifiable stands taken by the Indian 
courts in the pharmaceutical matters,” 
Makyam says. “India has one of the 
most technically-qualified populations 
in the drug industry, so the request 
of the industry groups is completely 
unfair.”
 The industry groups also claim that  the Indian government and courts have 
tended towards narrow interpretations 
of patent protection for costly LIFE SAVING medicines in a bid to allow wider access to cheaper generics 



Indeed, India cannot be a bystander
when IPs are used as tools for monopoly,
Makyam says. “The Novartis and
Bayer judgments have enlightened the
local medical and patient community,
and today patients [who need] very
costly drugs are looking out for similar
judgements.”
Drug makers worry that India’s 
strict approach to granting patents will 
become a model for other developing 
countries, affecting their bottom lines. 
 Despite the tension, Novartis will be 
relocating some 4,000 jobs from Europe 
to India’s southern city of Hyderabad, 
where it expects to move into a new 
campus in late 2015.
 In fact, Makyam expects to see an 
increase of jobs in the industry. India is 
a growing market, he says. “This really 
can be illustrated by the number of 
patent grants in the pharmacy sector.”

- Johnny Chan


Thursday, 1 May 2014

US defers decision on downgrading of India's intellectual property regime

NEW DELHI: The United States on Wednesday deferred decision on India's intellectual property regime, providing partial relief from the much anticipated downgrade that could have led to trade sanctions against the country.

The US Trade Representative (USTR) would now conduct an 'out of cycle' review for India's case later this year.

ET had on Wednesday cited this as the first and the most likely possibility for the US to adopt, in the backdrop of ongoing elections in India.


The USTR reviewing whether India's intellectual property environment has deteriorated enough to warrant a label of 'priority foreign country', a label which could trigger American trade sanctions against India.

The prospect of engaging with a new political establishment, which may have fresh takes on many contentious issues raised by the US government may have prompted it to adopt a 'wait and watch' approach. However the US TR has not minced words in harshly attacking a series of recent  patent related policy moves and legal pronouncements here.

The US trade government agency held that 'IP protection and enforcement challenges are growing, and there are serious questions regarding the future of the innovation climate in India across multiple sectors and disciplines'.

In the pharmaceutical sector and increasingly in other sectors, such as the agro-chemicals and green technology sectors, some innovators face serious challenges in securing and enforcing patents in India, said US' special 301 report which grades select countries on what it thinks have defaulted in providing IP protection. 

On the expected lines, the US TR is sharply critical of India's judicial and subsequent policy interpretation of section 3(d), which aims to sieve out frivolous patents and thwart attempts of 'evergreening' of patents and compulsory licensing .

The report says that section 3(d) may be setting different standards for patenting different 'inventions', by setting a higher threshold for drugs. India's interpretation could limit the patentability of potentially beneficial innovations such as .. as drugs with fewer side effects, decreased toxicity, improved delivery systems, or temperature or storage stability and those innovations which enjoy patent protection in other countries, the report said.

The US would monitor developments around compulsory licensing of patents in India. Seeking greater transparency on current 'inter-ministerial process that is considering over a dozen patented medicines as candidates for government- initiated compulsory licenses', US has urged India to o take inputs from innovators in such matter.

It has also expressed concern over India promoting compulsory licensing in its National Manufacturing Policy as a tool for government entities to implement technology transfer in the clean energy sector.

By allowing opposition of patent before and after the grant, India allows applications to be tied up in costly challenge proceedings for years. The patent term for innovator begins from the application filing date, thus impeding an  .applicant's ability to make investments and conduct business, US feels.

It has also demanded data protection for pharma innovator firms without which it cribs 'companies in India reportedly are able to copy certain pharmaceutical products and seek immediate government approval for marketing based on the original developer's data'.

Online piracy in India, which has the third largest userbase worldwide at 120 million users and the rampant practice of video piracy through camcording disturbs US.

US Chamber of commerce, which has been lobbying for pressure on India, welcomed the decision.

"We are encouraged that USTR recognizes the growing concerns with India's deteriorating IP environment, and support the decision to initiate an 'out-of-cycle' review of India. We hope that this step will generate much needed dialogue for the US and Indian governments to address the concerns identified in the Report. We look forward to working with the next Government of India to promote a robust IP climate" said US Chamber of Commerce's Global Intellectual Property Center (GIPC) Executive Vice President Mark Elliot. 


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Monday, 28 April 2014

Crucial meet on Monday to discuss IPR issue

Cabinet Secretary Ajit Seth has called a meeting of top bureaucrats on Monday to chalk out a strategy to deal with the IPR (intellectual property rights) issues being raised by the U.S.

The meeting comes in the backdrop of U.S. industry, particularly, from the pharmaceuticals sector, and trade lobbies putting pressure on their government to put India under the ‘Priority Foreign Country’ list for IPR, which may lead to trade sanctions on Indian firms by America.

Indian Ambassador to U.S. S. Jaishankar has suggested that the Indian government should engage with U.S. pharma companies to deliberate on the matter. American companies are alleging that the Indian IPR regime is not compliant with international norms, and discriminates U.S. firms.

“Foreign Secretary Sujatha Singh has requested the Cabinet Secretary to convene a meeting on the issue, and the meeting is scheduled for Monday,” sources told PTI.

Besides Mr. Seth and Ms. Singh, other officials who would attend the meeting include Commerce Secretary Rajeev Kher, DIPP Secretary Amitabh Kant and Health Secretary Lov Kumar Verma.

According to sources, as part of trade sanctions, the U.S. may consider withdrawing the benefits under the scheme of Generalised System of Preferences (GSP), which provides reduced tariffs for Indian goods entering the U.S. markets.

“The withdrawal of GSP benefits may impact exports of the MSME sector to the U.S. However, the move would not impact Indian exporters much,” they said.

Earlier, India has made it clear that it would drag the U.S. to WTO if America includes it in that list.

Officials have said the demand is completely unfair as India’s IPR regime is compliant with global laws, including the World Trade Organization.

Under the U.S. Trade Act, a Priority Foreign Country is the worst classification given to those which deny adequate and effective protection of IPR or fair and equitable market access to the US persons relying on IPR protection.

The Obama administration had been strongly criticising India’s investment climate and IPR laws, especially in the pharmaceuticals and solar sectors.

American pharma companies had objected to India’s move to issue a compulsory licence in March, 2012 to Hyderabad-based Natco Pharma to manufacture and sell cancer-treatment drug ‘’Nexavar’ at a price over 30 times lower than that charged by patent-holder Bayer Corporation. Pharma exports increased by 10 per cent to $14.6 billion in 2012-13, with shipments to the U.S. accounting for about 26 per cent of these exports.