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Journal of Intellectual Property Rights

 

 

ISSN : 0971-5544

 

CODEN: JIPRFG 9(5) 409-506 (2004)

VOLUME 9

NUMBER 5

SEPTEMBER 2004

 

 

CONTENTS

 

Articles

 

 

Compulsory Licences Imbroglio: Provisions Under TRIPS And Their Interpretations

 

415

M D Nair

 

 

Domain Name Disputes and Evaluation of The ICANN’s Uniform Domain Name Dispute Resolution Policy

 

424

Sourabh Ghosh

 

 

 

P2P Networks: Online Piracy of Music, Films and Computer Software

440

Raman Mittal

 

 

 

Capacity Building for Innovation: Role of IP Infrastructure

462

Sudhir Raja Ravindran

 

 

 

Biotechnology Patenting

471

Jidesh Kumar

 

 

Literature Review

 

 

 

IPR¾General

481

· The IP value of business plans—protection for the entrepreneur · Getting a grip on accounting and intellectual property · Leveraging intellectual property: beyond the right to exclude · Geographical indications within GATT · Reconfiguring intellectual property for the information age—towards information property · The Paragraph 6 solution of the Doha Public Health Declaration and export under the TRIPS Agreement · The journey of Indian patent law towards TRIPS compliance · Are the competition rules in the WTO TRIPS Agreement adequate? · Capacity building and the (re) production of intellectual property rights · The post-TRIPS technological behaviour of pharmaceutical industry in India · Incomplete contracts, intellectual property and institutional complementarities

 

 

Patents

486

· Transparency measures under patent law regarding genetic resources and traditional knowledge · Bioprospecting, genetic patenting and indigenous populations · Methods for forecasting number of patent applications at EPO · Pillars of the IPC reform · Use of the IPC and various retrieval systems to research patent activities of US organizations in the People's Republic of China · PCT-SAFE e-filing fully operational at WIPO · Benchmarking R&D and companies through patent analysis using free databases and special software: a tool to improve innovative thinking · Improving patent valuations for management purposes · Limitations: Range of equivalents and prosecution history estoppel · When biotech proteins go off-patent

 

 

 

Copyright and Trademarks

490

· Peer-to-peer technology: analysis of contributory infringement and fair use · Will the open source movement survive a litigious society? · Copyright in bespoke software: Commissioners' rights in incorporated and connected works

 

 

 

IPR News
 
 

IPR News—General

492

· National Project promotes domestic intellectual property rights in China · EU extends GI protection · Canadian Intellectual Property Office to start functioning as International Searching and Preliminary Examining Authority · Mysore Silk to get intellectual property protection

 

 

Patent News

494

· Electronically certified copies of patent documents · USPTO launches online patent access · New IPR regime may not push up drug prices · Aventis files patent litigation against Teva Pharmaceuticals · European drug maker gives up patent

 

 

Copyright and Trademark News

497

· Cisco drops copyright lawsuit vs China's Huawei · Tech groups fight copyright infringement bill · Orange fight threatened · Shaolin Temple files international registrations · Complaint filed by the Googles

 

 

Key Patents

499

· US patent for a method and apparatus for transmitting power and data using the human body · Patent for auto detection/correction of duplicate controller IDs · US patent for software on oil resources · A process for the preparation of a polymeric composition patented · An improved process for the production of spray dried honey powder patented · An improved process for the preparation of pharmacologically active hydrolysate from marine mussel patented · A process for the production of a choline esterase inhibitor patented · A process for the manufacture of ready to eat non fried snack food from cereals patented

 

 

 

Author Index

 

 

 

Keyword Index

 

 

 

Journal of Intellectual Property Rights

 Vol 9, September 2004, pp 415-423

  

Compulsory Licences Imbroglio: Provisions Under TRIPS and Their Interpretations

M D Nair

 

One of the most crucial components of the TRIPS Agreement is related to the provision for the grant of compulsory licences, which is not in fact a new phenomenon introduced under the TRIPS Agreement. Practically all countries including US, Canada and those in Western Europe had provisions for grant of compulsory licences in their Patent Acts and have used them on several occasions in the past. A proper understanding and a judicious interpretation of the available provisions for compulsory licences under the TRIPS Agreement could go a long way in ensuring a proper balance between the rights of the patent holder and the public health needs of the people in developing countries. The paper discusses in detail about the compulsory licence and the need for granting it. Amendments to the Indian Patents Act 1970 on compulsory licence issues are also discussed briefly.

 

Keywords: TRIPS Agreement, compulsory licence, anti-competitive practices, public health issues, non-commercial use, dependent patents, Doha Declaration

 

 

 

Journal of Intellectual Property Rights

 Vol 9, September 2004, pp 424-439

 

Domain Name Disputes and Evaluation of The ICANN’s Uniform Domain Name Dispute Resolution Policy

Sourabh Ghosh

 

The proliferation of the Internet has led to an explosion in the number of registered domain names. With the ‘.com’ burst, there has been an increase in the number of domain name disputes leading to an anarchy in this special branch of intellectual property. ICANN’s Uniform Domain Name Dispute Resolution Policy (UDRP) is an international dispute resolution procedure that enables trademark holders to challenge the registrant of an Internet domain name, bring the name to binding arbitration and, if the challenge is successful, gain control of the name. The policy was defined in October 1999 and the first case was decided in December 1999. Since then, UDRP has gone a long way in resolving domain name disputes. However, an analysis of the decided cases under the UDRP regime tells a different story. The present paper critically analyses some of those decided cases and also highlights the lacunae in the UDRP and also provides some suggestions for the improvement of UDRP.

 

Keywords: Domain names, UDRP, ICANN, cyber squatters, cyber twins, cyber parasites

 

 

 

Journal of Intellectual Property Rights

 Vol 9, SeptemberMI 2004, pp 440-461

 

 P2P Networks: Online Piracy of Music, Films and Computer Software

Raman Mittal

 

With the aid of P2P technology, the vast and ever growing cyber populace has the competence of unauthorized sharing of digitized copyrighted works such as music, films and computer software without bothering to pay for them. This unauthorized sharing of copyrighted works, which is termed as online piracy, has led to massive distribution and exchange of valuable stuff, which was hitherto unknown on such a scale and magnitude. When such piracy takes place at the instance of ordinary people, copyright law is once again challenged by the latest in the series of technological innovations, i.e., digital and communications technology. In an environment where the producer-middleman-consumer chain has reached a fragile point, it becomes imperative to find a legal solution to promote creative activity in an organized manner, which secures the interests of both producers and consumers. Towards this end, this paper focuses on the sharing of works through various P2P networks such as Napster, Gnutella and Kazaa and tries to explore their social, economic and legal implications.

 

Keywords:              P2P networking, MP3 movement, Napster, Internet, Gnutella, Kazaa, online piracy, copyright industries, audiovisual industry, fair use, copyright law

 

 

 

Journal of Intellectual Property Rights

 Vol 9, September 2004, pp 462-470

 

Capacity Building for Innovation: Role of IP Infrastructure

Sudhir Raja Ravindran†

 

The paper discusses the role of IP Infrastructure and areas that are to be addressed in capacity building for innovation. The Indian experience is benchmarked to examine and augment the role of intellectual property infrastructure, as a facilitator of innovation, According to the author, there exists a pertinent need to improve IP infrastructure in developing countries.

 

Keywords: Intellectual property, capacity building for innovation, role of IP infrastructure, innovations, developing countries, IPR

 

 

 

Journal of Intellectual Property Rights

 Vol 9, September 2004, pp 471-480

 

Biotechnology Patenting

Jidesh Kumar

 

This article deals with the latest technology to create major intellectual property problems for courts and legislatures, viz. biotechnology. It discusses the economic principles of intellectual property in the way these apply to the decision framework for new technologies. However, it is limited to patents leaving out copyright, trademarks, trade secrets and other forms of protection where other considerations come into play. The way the courts have handled core patent issues such as novelty, non-obviousness and utility in the biotechnology field is reviewed in order to explore more deeply the application of the economic principles of intellectual property, viz. incentive and access principles. It discuses the various issues in biotechnology patenting as an illustration of an economic approach to intellectual property law not limited to threshold  issues.

 

Keywords: Biotechnology, patent, patent doctrine, intellectual property rights, sui generis, novelty, non-obviousness, utility, inventive step

 

 

Author Index

 

Ghosh Sourabh                            

424

Kumar Jidesh                            

471

Mittal Raman                          

440

Nair M D                   

415

Ravindran Sudhir Raja             

462

 

 

 

Keyword Index

 

Anti-competitive practices

415

Genetic patenting

486

Online patent access

494

Audiovisual industry

440

Geographical indications

481

Online piracy

440

 

 

GI protection

493

Open source software

490

Bioprospecting

486

Gnutella

440

 

 

Biotechnology

471

 

 

P2P networking

440

 

 

ICANN

424

Patent doctrine

471

Capacity building for innovation

462

Information age

482

Patent

471

Compulsory licence

415

Innovations

462

PCT-SAFE

488

Copyright industries

440

Intellectual property rights

471, 492

Peer-to-peer technology

490

Copyright infringement

498

Intellectual property

462,481

Public health issues

415

Copyright law

440

Internet

440

 

 

Cyber parasites

424

Inventive step

471

Role of IP infrastructure

462

Cyber squatters

424

IPR regime

495

 

 

Cyber twins

424

IPR

462

Sui generis

471

 

 

 

 

 

 

Dependent patents

415

Kazaa

440

TRIPS Agreement

415, 482

Developing countries

462

 

 

TRIPS compliance

483

Doha Declaration

415

MP3 movement

440

 

 

Domain names

424

 

 

UDRP

424

 

 

Napster

440

Utility

471

Fair use

440

Non-commercial use

415

 

 

 

 

Non-obviousness

471

 

 

 

 

Novelty

471