Journal of Intellectual Property Rights

 

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VOLUME 15

NUMBER 1

JANUARY 2010

CODEN: JIPRFG 15(1) 1- 108(2010)

 

ISSN: 0971-7544

 

 

e-ISSN 0975-1076

 

                                                                         CONTENTS

 


Articles  
   

The Pirate Bay, Grokster, and Google

7

Michael A Carrier

 

 

 

The Protection and Utilization of Public Funded Intellectual Property , 2008: A Critique in the Light of India’s Innovation Environment

19

Mrinalini Kochupillai

 

 

 

The Scope of Online Service Providers’ Liability for Copyright Infringing Third Party Content under the Indian Laws – The Road Ahead

35

Aditya Gupta

 

 

 

Economic Rights of Authors under Copyright Law: Some Emerging Judicial Trends

46

Arathi Ashok

 

 

 

Patenting Life the American, European and Indian Way

55

Ameen Jauhar and Swati Narnaulia

 

 

 

IP Case Law Developments

66

Zakir Thomas

 

 

 

Opinion

 

   

TRIPS, WTO and IPR — TRIPS & Affordable Healthcare

74

The Concept of OSDD & Patent Pools

 

M D Nair

 

 

 

Literature Review

 

   

IPR―General

77

Conjoint analysis for IP educationOn the strength of IP protection that nations provide
IPR, technology transfer and exports in developing countries ● IP protection versus IP abuses
The effect of national IP enforcement ● IP in biotechnology firmsThe role of India, China, Brazil and other emerging economies in establishing access norms for IP and IP lawmaking
Management of IP by electronic publishersClimate change, technology transfer and IPR
Is intellectual property trivial? Competing on standards? entrepreneurship, IP, and platform technologiesIP enforcement beyond exclusive rights The market value of R&D, patents and trademarksThe potential role of geographical indications Aligning strategy and IP to maximize business value Counterfeiting in global pharmaceuticals sector
Embracing an IP strategy amid WTO compliance IP disputes and nanotechnology company bankruptcies The ‘Three-Step Test’ and the wider public interest Reasonable measures to protect trade secrets in a digital environment

 

Patents

83

Analysis of patenting trends of antifungal drugs in the product patent regime in India
● The tools and levers of access to patented health related genetic invention in Canada
The emerging product and patent landscape for nanosilver-containing medical devices
The software patent thicket The role of patent law in regulating and restricting access to medicines Inter partes reexamination and improving patent qualityPatenting of living organisms and natural products Patent laws and innovation in ChinaWhat is behind China's recent patent explosion? Design patent map visualization displayElements of good practice for providers of publicly funded patent information services for SMEs ● Do royalties really foster university patenting activity?●What patents, licenses and publications reveal about innovation diffusion?
● Nonpatentability of business methods: legal and economic analysis ● Do patents facilitate financing in the software industry? ● Patents and appropriation ● Patent pools and the direction of technical change: Evidence from the 19th-century sewing machine industry ● Cumulative innovation in patent law ● Worlds apart: Patent information and innovation in SMEs ●Overcoming the ‘impossible issue’ of nonobviousness in design patentsIs the use of patents promoting creation of new types of securities? Strategic options to tackle patent expiration Corporate value creation through patent governance structures Patent reform and compulsory licensing
Improving patent incentives and enforcement The role of juries in managing patent enforcement Patent issues in regenerative medicine The end of the first-to-invent rule

 

Copyright and Trademark

90

Sticky copyrights: Discriminatory tax restraints on the transfer of IPReconsidering the Bayh-Dole Act and the current university invention ownership model● Why typefaces proliferate without copyright protection ●Copyright collectives Copyright exhaustion in India and the USA
Open access to journal content as a case study in unlocking IP ● Why the RIAA should continue to sue illegal file-sharers The legal nature of domain name rightsProtection of TK by geographical indications The new ‘extra-ordinary’ observer test for design patent infringement

 

 

 

IPR News

94

   

IPR News—General

 

US Patent Office gains access to TKDL IPR for Arogyasri soon

 

Patent News

95

WIPO launches enhanced patent information service  IP protections are codified under new patent law● US Gilead appeals against patent rejection of AIDS drug Viread● Sweden claims breakthrough on EU patent impasse  Target brands obtains gift card patent  ● Leveraging the value of systems patents by Chipworks ● HTC joins handset top three in defensive patent pool ● Patent pool approved to step up international HIV med access ● US patent for enhanced assisted GPS location of handsets ● Nokia sues Apple for patent infringement Speeding up green tech patent processing
Google patents smart cooling for datacentres

 

Copyright and Trademark News

101

Proposed law to give copyright to film directors ● Open Source licenses are enforceable under copyright law  ● WIPO goes green for domain name dispute resolution ● Trademark protection to colour themes for t-shirts  Russia targets AK-47 trademark Green light for Google AdWords
Jackson estate sues charity over trademarks ICANN grants UPU .POST

 

Key Patents

103

CyDex Pharmaceuticals receives US patent for new Captisol  VeriTainer receives its 4th patent
Solarflare® awarded four new patentsImageWare receives two new biometric patents
US patent for propagation and/or derivation of embryonic stem cells

 

 

 

Book Review

 

   

An Introduction to Intellectual Asset Management

105

Sunita K Sreedharan

 

 

 

 

 

 

                Author Index

 


Arathi Ashok

46

Carrier Michael A

7

Gupta Aditya

35

Jauhar Ameen

55

Kochupillai Mrinalini

19

Nair M D

74

Narnaulia Swati

55

Thomas Zakir

66

 

             Keyword Index

 


P2P technology

7

Authorization of infringement

35

Bayh-Dole

19

Bio-patents (life patents)

55

Biotechnology Directive

55

BitTorrent

7

Communication to public

46

Copyright

66

Copyright infringement

35

Designs

66

EPC

55

Exhaustion

46

Government funded research

19

Grokster

7

Information Technology (Amendment) Act, 2008

35

Infringement

66

Innovation

19

Intellectual property rights

19

Intermediaries

35

Music licensing

66

Napster

7

Natural process

55

On-demand availability right

46

Online Service Provider

35

P2P protocol

7

Patents

19 , 66

Product of nature

55

Public Funded Intellectual Property Bill

19

Reproduction right

46

Technology transfer

19

Trademark

66

TRIPS

55


 

Journal of Intellectual Property Rights

Vol 15, January 2010, pp 7-18

 

The Pirate Bay, Grokster, and Google

Michael A Carrier†

Rutgers School of Law – Camden, 217 North Fifth Street, Camden, NJ 08102

Received 13 October 2009

The Pirate Bay, three simple words and such strong reactions. Proponents point to a vibrant forum for distributing files. Critics lament massive pirating of copyrighted works. The Swedish district court recently found The Pirate Bay (TPB) guilty of making copyrighted works available. This article explores consequences of this decision. It first explains the technology underlying TPB and provides an overview of the website. It then analyses the court’s opinion. Finally, the article applies opinion’s reasoning to the activities at issue in the US case of MGM v Grokster1 and to the Google search engine.

Keywords: P2P technology, BitTorrent, P2P protocol, Grokster , Napster

Journal of Intellectual Property Rights

Vol 15, January 2010, pp 19-34

 

The Protection and Utilization of Public Funded Intellectual Property Bill, 2008: A Critique in the Light of India’sInnovation Environment*

Mrinalini Kochupillai†

Max Planck Institute for Intellectual Property, Competition and Tax Law, Marstallplatz 1, Munich 80539

Received 7 October 2009, revised 10 December 2009

The article critically reviews stated objectives and provisions of the proposed Indian Protection and Utilization of Public Funded Intellectual Property Bill, 2008 with a view to determining the impact the Bill, if enacted, might have on the innovation environment in India. The Bill may be premature in the current Indian innovation environment. Methodology adopted includes legal, statistical and comparative analysis and interviews. Relevant Indian policies and regulations aimed at promoting intellectual property creation, protection and commercialization have also been studied.

Keywords: Bayh-Dole, Public Funded Intellectual Property Bill, innovation, technology transfer, government funded research, intellectual property rights, patents

Journal of Intellectual Property Rights

Vol 15, January 2010, pp 35-45

 

The Scope of Online Service Providers’ Liability for Copyright Infringing Third Party Content under the Indian Laws – The Road Ahead

Aditya Gupta

National Law University, NH – 65, Nagour Road, Mandore, Jodhpur 342 304 (Rajasthan)

Received 3 November 2009, revised 24 December 2009

The issue of liability of online service providers (OSPs) for third party content is one of the most contentious issues in the realm of cyber law. Different jurisdictions around the world have dealt with the issue either through legislative provisions or judicial pronouncements. Until recently, the legal position in India was nebulous and vague especially with respect to liability for copyright infringing third party content. The Information Technology (Amendment) Act, 2008 has significantly clarified the scope of immunities available to intermediaries. Unlike the immunities under the old IT Act, these immunities are not only available with respect to offences under the IT Act, 2000 but even for the liabilities arising under any law. The object of this paper is to extensively examine applicability and scope of such immunities, by comparatively analysing them with similar provisions in the United States and the European Union.

This paper further examines the scope of OSPs liability under the Copyright Act, 1957 under three heads viz. direct liability, secondary liability and criminal liability. The potency of the argument that OSP authorize infringement has been examined by the courts in the UK, Canada and Australia. This paper examines accuracy of the argument and its applicability in the Indian context. The paper concludes with an overview of the position likely to emerge under the Indian law.

Keywords: Information Technology (Amendment) Act, 2008, intermediaries, Online Service Provider, copyright infringement, authorization of infringement

Journal of Intellectual Property Rights

Vol 15, January 2010, pp 46-54

 

Economic Rights of Authors under Copyright Law: Some Emerging
Judicial Trends

Arathi Ashok†

School of Legal Studies, Cochin University of Science and Technology, Cochin 682 022, Kerala

Received 13 July 2009, revised 9 December 2009

This paper deals with various economic rights of authors and how these rights have been interpreted and appreciated by the courts with special emphasis on the interpretation of these rights in the digital context. It further deals with issues like transitory copying and conversion of the work from two dimensional to three dimensional and how the same has been looked into by various courts.

Keywords:  Reproduction right, exhaustion, communication to public, on-demand availability right

Journal of Intellectual Property Rights

Vol 15, January 2010, pp 55-65

 

Patenting Life the American, European and Indian Way

Ameen Jauhar† and Swati Narnaulia

West Bengal National University of Juridical Sciences, Salt Lake City, Kolkata 98, West Bengal

Received 27 September 2009, revised 19 December 2009

The patent regime heralds an expansion of its protective umbrella to the emerging sphere of biotechnology, full repercussions of it are only just coming to fore. With revolutionary and rapid growth of industry, new legal and ethical questions have burgeoned which require a meticulous and concerned deliberation. This article discusses evolution of patenting life in the United States, Europe, and India. Additionally, implications of each country’s impact on international patent regime in the light of TRIPS Agreement are also studied. The article also explores feasibility of offering similar statutory protection to living organisms manufactured with significant human intervention in India, which thus far has only witnessed a minimal onslaught of patent applications for ‘utility patents’.

Keywords: Bio-patents (life patents), TRIPS, product of nature, natural process, EPC, Biotechnology Directive

Journal of Intellectual Property Rights

Vol 15, January 2010, pp 66-73

 

IP Case Law Developments*

Zakir Thomas†

Open Source Drug Discovery (OSDD) & DG's Technical Cell, Council of Scientific and Industrial Research,
Anusandhan Bhawan, 2 Rafi Marg, New Delhi 110 001

Received 31 December 2009

This article attempts to summarize some of the recently reported cases on intellectual property law to enable readers to understand how the courts have applied principles of intellectual property law to actual IP disputes. In this article, widely discussed cases on, copyright, design, patents and trademark laws are covered.

Keywords: Copyright, music licensing, patents, infringement, designs, trademark

*The feedback regarding this column can be sent to the editor, Madhu Sahni (email: sahnim@niscair.res.in) or to the author (zthomas@piercelaw.edu).

 

Journal of Intellectual Property Rights

Vol 15, January 2010, pp 74-76

 

TRIPS, WTO and IPR - TRIPS & Affordable Healthcare
The Concept of OSDD & Patent Pools

M D Nair

A-11, Sagarica, 15, 3rd Seaward Road, Valmiki Nagar, Thiruvanmiyur, Chennai 600 041

Received 30 November 2009

 

    The World Trade Organization (WTO) was set up in 1995 and has been the custodian of all matters related to the implementation of the TRIPS Agreement endorsed by the 152 member countries.  WTO is therefore the most important body which monitors and influences working of global intellectual property rights protection in all the member countries. This issue covers TRIPS & affordable healthcare and the concept of OSDD & patent pools.