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Journal of Intellectual Property Rights

 

 

ISSN : 0971-5544

CODEN: JIPRFG 10(2) 89-170 (2005)

VOLUME 10

NUMBER 2

MARCH 2005

 

 

CONTENTS

 

Articles

Patenting in Micromagnetic Sensors

99

S K Pal, A Madhukar and A Mitra

 

 

Remix and Copyright Law

106

Veerendra Tulzapurkar

 

 

 

Employer’s Copyright vis-à-vis Author’s Right: An Unresolved Legal Dilemma

112

Harsh Kumar

 

 

 

The Broadening Horizons of Trademark Law  Registrability of Smell, Sports Merchandise and Building Designs as Trademarks

 

119

Sudipta Bhattacharjee and Ganesh Rao

 

 

Trademark Law: Is Europe Moving Towards an Unduly Wide Approach for Anyone to Follow the Example?

 

127

Paul Leo Carl Torremans

 

 

International Intellectual Property, Conflicts of Laws, and Internet Remedies

133

Paul Edward Geller

 

 

Literature Review

 

IPR¾General

 

141

· Biotechnology, IPR and the rights of farmers in developing countries · The effects of extending IPR protection to developing countries · Property rights in endangered species · Intellectual property issues in advertising · Traditional knowledge and the international context for protection · Plants and intellectual property: An international appraisal · Reconciling property rights in plants · IPR and the Doha round · Intertwining regimes: Trade, intellectual property and regulatory requirements for pharmaceuticals · What is equitable remuneration for intellectual property use? · Intellectual property and the pharmaceutical industry · Globalization of R& D IP management policies & strategies · Globalization and intellectual property in China · Role and value of trade secret in IP management

 

 

 

Patents

 

145

· Quantum patent mechanics · Experimental support and patentability ·Multinational firms and knowledge diffusion · Growth of software related patents in different countries · Using the patent co-citation approach to establish a new patent classification system · A comparative study of patenting activity in US and Brazilian scientific institutions · Explaining the propensity to patent computer software · Internet patents: Will they hinder the development of E-Commerce? · Exploring the patent explosion · Welfare analysis of alternative patent policies for software innovations

 

 

 

Copyright and Trademarks

 

148

· Copyright law & economics in the copyright directive: is the Droit d'auteur passé?

 

· Copyright and free expression: Analysing the convergence of conflicting normative frameworks · Copyright in visual arts · A time-stamping protocol for digital watermarking · A robust watermarking scheme · The ethics of counterfeiting in the fashion industry · Commercial versus open source software · Trademark law, functional design features, and the trouble with traffix · The cult of celebrity and trademarks · Can trademark protection respond to the international threat of cyber squatting? · Third-party trademarks as a violation of indigenous cultural property—a new statutory safeguard · Trademark: “I love you…You’re fired!”

 

 

 

IPR News

 

 

IPR News—General

 

152

· Novartis in generics boost · Klever Marketing licenses intellectual property

 

 

 

Patent News

 

152

· WIPO marks filing of one millionth PCT application · Top 10 organizations receiving most US patents · Salient features of the Patent Ordinance 2004 · IBM gives open source developers free access to 500 patents · CLEARS software · Government flexes patent muscle · Monsanto and Bayer CropScience resolve patent dispute · Patent for body design of Crossfire Convertible · Kohl's, supplier sued for alleged patent infringement · Dow AgroSciences prevails in B.t. corn patent suit · United Therapeutics granted five-year patent term extension for remodulin · Patent dispute settlement to benefit University of Rochester · Firms encouraged to be patent-minded in China

 

 

 

Copyright and Trademark News

 

158

· Italian pirate hit with record fine · China put on Section 301 priority watch list · Artists to profit from further sales · Artist has full rights over works · Record year for international trademark system · RipGuard technology to check DVD piracy · Users bypass copy protection on portable Napster · USPTO wins excellence.gov award · WIPO continues efforts to curb cyber squatting · UK relaxes rules on surnames · US wins WTO case against EU Geographical Indications · Chanderi sari registered under Geographical Indication Registration Act

 

 

 

Key Patents

 

163

· Lightweight stepping plates · Sirna Therapeutics granted patents on RNA interference technology · Seattle Genetics receives US patents for SGN-40 program · A method for the preparation of herbal insect repellent patented · A process for the preparation of herbal protective patented · Improved process for the preparation of polyurethane-polyvinyl multi-block copolymers patented

 

 

 

Book Review

 

166

Intellectual Property and Competitive Strategies in the 21st Century

 

Author Index

Keyword Index

 

 

 

Journal of Intellectual Property Rights

Vol 10, March 2005, pp 99-105

 

Patenting in Micromagnetic Sensors

S K Pal, A Madhukar and A Mitra

 

Patents are a rich source of technical and commercial information. Patent analysis provides information on the nature and growth of the industry and market leaders. It also helps to develop the technology roadmap, emerging areas of research and company to develop a competitive intelligence tool to maintain a better position of the company in the market place. This paper highlights the results of such a study in the area of micromagnetic sensors. The analysis indicates that 40% of the magnetic sensor patents are granted in the area of micromagnetic sensors, which is an emerging technology area. The researchers of IBM have been most active in the field and have made considerable thrust on patenting in the Magneto-Resistance (MR)/Giant Magneto-Resistance (GMR) sensors. Technological trends indicate the growth of Magneto-Impedance (MI)/Giant Magneto-Impedance (GMI) based sensors due to their promising application, particularly, in medical electronics, automobiles and intelligent transportation system.

 

Keywords: Micromagnetic sensor, magneto-resistance sensor, giant magneto-resistance sensor, Hall magnetic sensor, flux gate sensor

 

 

 

Journal of Intellectual Property Rights

 Vol 10, March 2005, pp 106-111

 

Remix and Copyright Law

Veerendra Tulzapurkar†

 

The article is an attempt to make a systematic analysis of the much discussed issue of ‘remix’ of old songs. It explains, in detail, how remix is done and the economics behind it. The provisions of the Copyright Act, 1957, which make it possible to make a remix from an old song, are also explained. It further analyses and comments on the decisions of the courts on this issue. While interpreting and commenting on the relevant provisions of the Copyright Act, 1957, it suggests the provisions in the Act by which objectionable remix of an old song can be prevented.

 

Keywords: Copyright Act, remix of an old song, economics of remix, infringement, moral rights

 

 

 

Journal of Intellectual Property Rights

 Vol 10, March 2005, pp 112-118

 

Employer’s Copyright vis-à-vis Author’s Right: An Unresolved Legal Dilemma

Harsh Kumar

 

This article explores the protection to authors-employees and freelancers-in India in the light of the recent US decision in the Tasini case. Traversing the history and context of the Tasini case, particularly, explaining the court’s philosophy behind the recognition of a freelancers right over his employer/publisher, the paper highlights the concept of authorship in India and the significant differences in the manner employees and freelancers are treated under the Indian legal system.

 

Keywords: Tasini, employees’ copyright, freelancer’s copyright

 

 

 

Journal of Intellectual Property Rights

 Vol 10, March 2005, pp 119-126

  

The Broadening Horizons of Trademark Law ¾Registrability of Smell, Sports Merchandise and Building Designs as Trademarks

Sudipta Bhattacharjee† and Ganesh Rao†

 

With every passing day the ambit of trademark protection law is being broadened all over the world. This paper deals with three such important aspects – three new areas on which trademark protection is being envisaged, which have, of late, given rise to serious debate in juridical circles. To be more precise, this paper deals with the registrability of smell, sports merchandise and building designs as trademarks. The paper is exploratory in nature and does not take any stand as to whether a particular thing should be trademarkable or not. It rather culls out and analyses the arguments advanced for and against such broadening of trademark laws.

 

Keywords: Trademark law, unregistered trademarks, club merchandise, building designs

 

 

 

Journal of Intellectual Property Rights

Vol 10, March 2005, pp 127-132

 

Trademark Law: Is Europe Moving Towards an Unduly Wide Approach for Anyone to Follow the Example?

Paul Leo Carl Torremans†

 

In recent years, European Trademark Law has often been cited as an example of a modern trademark law that takes into account the needs of business and can be used as an example by other countries as a modern implementation of the standards found in the TRIPS Agreement. This paper looks at recent European developments in the area of the registration of various kinds of trademarks, such as colour, sound and smell marks. Particular attention is paid to the question: how these new types of marks meet the criteria for registrability and what would be the consequences of their registration? Caution is suggested in this respect and whilst there may be sound policy and business reasons to follow the European example in accepting these kinds of marks in principle, it is also suggested that strict safeguards need to be built in by any Asian legislature that wants to go down this path to avoid overly broad marks. In Europe, these safeguards had to be introduced by the Court of Justice in the Sieckmann case, which could be seen as a retraction of the original permissive approach. Any country going down the same path would be well advised to introduce these criteria and safeguards straight away.

 

Keywords: Euopean trademark law, TRIPS Agreement, trademarkability, olfactory marks, sound marks, colour marks

 

 

 

Journal of Intellectual Property Rights

Vol 10, March 2005, pp 133-140

 

 

International Intellectual Property, Conflicts of Laws, and Internet Remedies*

Paul Edward Geller†

 

The notion of territoriality, as applied within the classic framework of conflicts analysis, is ambiguous. This ambiguity is illustrated by cross-border torts, for example, the infringement of intellectual property. Classic conflicts analysis allows for localising such infringement at diverse spots, for example, where acts triggering infringement occur or where damages take place. This ambiguity is not often troublesome in a world of hard copies or products, but it leads to problematic cases in cyberspace where transactions cross borders worldwide almost instantaneously. Following classic conflicts analysis, courts tend to vacillate between different arguable countries of infringement, and they thus risk applying the law of one country or another arbitrarily across any global network. This article proceeds from the framework of interest analysis that would resolve any conflict of laws by considering the public policies of the jurisdictions with stakes in the outcome of the resolution. Its premise is that diverse interests from one country to the other are best optimized by following the public policies that underlie the community emerging between countries in the relevant field of law. In the field of intellectual property, courts best look to how policies underlying the international treaty regime, effectively the Berne-Paris/TRIPS regime, compel remedies. As a rule, these policies favour applying the laws of the countries whose markets are targeted or prejudiced, respectively, as bases for injunctions or compensatory monetary awards. Exceptionally, the law common to most of the overall marketplace being targeted may be applied, notably as the basis for enjoining the global hemorrhaging of protected matters.

 

 

Author Index

 

Bhattacharjee Sudipta

119

Pal S K

99

 

 

 

 

Geller Paul Edward

133

Rao Ganesh

119

 

 

 

 

Kumar Harsh

112

Torremans Paul Leo Carl

127

 

 

 

 

Madhukar A

99

Tulzapurkar Veerendra

106

Mitra A

99

   

 

 

Keyword Index

 

Building designs

119

Geographical Indication

163

Patent infringement

157

 

 

Giant magneto-resistance sensor

99

Patent mechanics

145

Club merchandise

119

 

 

Patent Ordinance 2004

154

Colour marks

127

Hall magnetic sensor

99

Private international law

133

Conflicts of laws

133

 

 

 

 

Conventions

133

Infringement

106, 133

Remedies

133

Copyright Act

106

Intellectual property

133

Remix of an old song

106

Copyright law

148

International public policy

133

 

 

Counterfeiting

149

Internet patents

147

Sound marks

127

Cyber squatting

162

IP management

144

 

 

 

 

 

 

Tasini

112

Developing countries

141

Magneto-resistance sensor

99

Territoriality

133

Digital watermarking

149

Micromagnetic sensor

99

Trade secret

145

 

 

Moral rights

106

Trademark law

119, 150

Economics of remix

106

 

 

Trademarkability

127

Employees’ copyright

112

Olfactory marks

127

Traditional knowledge

142

Endangered species

141

Open source software

149

TRIPS Agreement

127

European trademark

127

Ordre public international

133

 

 

 

 

 

 

Unregistered trademarks

119

Flux gate sensor

99

 

 

 

 

Freelancer’s copyright

112