Journal of Intellectual Property Rights

 

 

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VOLUME 11

NUMBER 4

JULY 2006

CODEN: JIPRFG 11(4) 239-308 (2006)

 

ISSN: 0971-5544

 

CONTENTS

 

Articles

 

Accounting for Intellectual Property: Inconsistencies and Challenges

243

          Lee Moerman and Sandra van der Laan

 

 

An Economic Analysis of Rise of Service Marks

249

            Andrea Mangàni

 

 

The Determinants of Plant Variety Protection Applications in China

260

            Ruifa Hu, Jie Huang, Carl Pray and Jikun Huang

 

 

Intellectual Property Rights and Multinational Firms’ Modes of Entry

269

            Thitima Puttitanun

 

 

Transborder Reputation

274

            Soumya Banerjee

 

 

IP Case Law Studies

280

            Zakir Thomas

 

 

Literature Review

 

 

IPR¾General

 

285

· Plant variety protection: System in the member states of OAPI · Expanding the protection of geographical indications under TRIPS · TRIPS and TK · Protection of TK associated with biological and genetic resources · IPR in agriculture · The international IP law system · Top 10 legal mistakes of early stage tech companies · TRIPS: A link too far? Procedural restraints on regulatory linkage in the WTO · Access to and legal protection of aquaculture genetic resources · TRIPS and its discontents · Protecting and unlocking inherent value of IP assets
· Out of sight and out of mind, on the cultural hegemony of IP · The role of IP in the global challenge for immunization

 

 

Patents

 

288

· Patent filing and searching · The patent system must be untouched yet radically reformed
· Implementing best practices in patent offices and like departments· An antitrust analysis of a R&D collaboration that led to the shelving of a promising drug · Publication and patent behaviour of academic researchers · Block me not: How "essential" are patented genes?
· Patent protection of computer-implemented inventions vis-à-vis open source software
· Security interests in patents and patent applications? · Effectively implementing software patents · Ethical obligations of USPTO: A closer look at the biological sampling of indigenous groups · Should software patents be open source? · Arbitration of patent infringement and validity issues worldwide · Gene patents, health care policy and licensing schemes · Software patenting · Popping patented pills: Europe and a decade's dose of TRIPS

 

 

Copyright and Trademark

 

291

· Piracy: Good targets for the recording industry's file sharing litigation · The paradox of firm investment in open-source software · Author's copyright: An Islamic perspective · Grokster and efficiency in music · Searchable digital archives and Amazon’s search · Contributory and vicarious copyright infringement in computer software · Understanding international IP law through the ongoing dispute over Budweiser trademark · What the right of publicity can learn from trademark law · Searching for initial interest confusion and trademark protection in cyberspace

 

 

IPR News

 

 

IPR News—General

 

295

· Benefits of effective enforcement of IPR · Data exclusivity committee seeks more time to handle pharma issues

 

 

Patent News

 

296

· Japan, US to start fast-track patent processing framework · Patents (Amendment) Rules issued in India · Patients oppose patent for AIDS drug tenofovir · Patent pileup worsens in USPTO · Change in European Commission’s stance on software patents · Patent Office to review legitimacy of Amazon's one-click shopping patent · Japan & China lock 'thorns' over flower · Sony, Matsushita Electric, others to form patent joint venture

 

 

Copyright and Trademark News

 

298

· Updating rights of broadcasting organizations · Indian Government to amend copyright law
· Chinese Government passes new regulation on Internet copyright · UK copyright law 'unfit' for society · Australian media copyright laws change · European Commission considers copyright levy for ISPs · Beatles beaten by Apple · Japan revokes trademarks on Thai traditional 'hermit' yoga postures · Wal-Mart wants to trademark smiley face · Amendment in US trademark law provokes protests

 

 

Key Patents

 

301

· Patent for recovering placental-derived stem cells · US patents for spine motion preservation · Nanoparticles in liquid media · Instantaneous detection of avian flu with SmartSenseTM system · Hypersensitive sensor · Multi-mix technology

 

 

Book Review

 

Copyright and Human Rights, Freedom of Expression-Intellectual Property-Privacy

304

            Edited by Paul Torremans

 

 

 

Goegraphical Indications: A Search for Identity

305

            Latha R Nair and Rajendra Kumar

 

 

 

 

 

 

Author Index

  


Banerjee Soumya                                    274

 

Hu Ruifa                                                 260

Huang Jie                                                260

Huang Jikun                                           260

 

Mangàni Andrea                                     249

Moerman Lee                                         243


Pray Carl                                                260

Puttitanun Thitima                                 269

 

 

Thomas Zakir                                         280

 

 

van der Laan Sandra                               243


 

 

Keyword Index

 

 


Avian flu                                                302

 

China                                                      260

Copyright                                               293

Crop                                                       260

 

Data exclusivity                                     295

 

Entry modes                                           269

 

Foreign direct investment                       269

 

Genetic resources                                   287

Goodwill                                                274

 

Intangible assets                                     243

Intellectual property                      243, 287


Intellectual property rights            269, 286

International accounting standards         243

 

Licensing                                                269

 

Multinational firms                                269

 

Plant variety protection                 260, 285

 

Service marks                                         249

Software patents                                    290

Spillover                                                 274

Structural change                                    249

 

Trademarks                                            249

Traditional knowledge                            285

Transborder reputation                          274

TRIPS                                            286, 287


 

 

 

Journal of Intellectual Property Rights

Vol 11, July 2006, pp 243-248

 

Accounting for Intellectual Property: Inconsistencies and Challenges

Lee Moerman and Sandra van der Laan

Received 8 May 2006, revised 9 June 2006

The recognition of rights attached to some forms of intellectual property is a contested domain in legal frameworks, such as the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. The same can be said of economic frameworks, such as accounting, which attempt to recognize and value intellectual property for the purposes of providing information for decision making. The paper explores the discourse of accounting in recognition of intellectual property as an asset according to the new International Accounting Standards. The legal and accounting discourses in which intellectual property rights are acknowledged are compared, concluding that these discourses are not necessarily aligned.

The effects and implications of the development of a global regime for accounting for intangibles may eventually harmonize the accounting treatment for intellectual property but yet not resolve the contentious issue of the inconsistencies in the recognition of intellectual property rights under different frameworks and implications for economic decision making.

Keywords: Intangible assets, intellectual property, international accounting standards

 

 

 

Journal of Intellectual Property Rights

Vol 11, July 2006, pp 249-259

 

An Economic Analysis of Rise of Service Marks

Andrea Mangàni

Received 14 February 2006, revised 22 June 2006

Structural and competitive evolution of modern economies has increased the importance of service trademarks. Among other factors, decline of human intermediation in many services plays a relevant role. Although trademarks of goods are still dominant, share of service classes in total trademark applications is increasing in both absolute and relative terms, at a national and international level.

Keywords: Trademarks, service marks, structural change

 

Journal of Intellectual Property Rights

Vol 11, July 2006, pp 260-268

 

The Determinants of Plant Variety Protection Applications in China

Ruifa Hu, Jie Huang, Carl Pray and Jikun Huang

Received 15 May 2006, revised 26 June 2006

A unique data set of the applications of plant variety protection (PVP), morphological characteristics of plants, and institutional sources of all important varieties of rice in three provinces of China have been used to estimate the determinants of PVP applications in China (China passed its Plant Variety Protection Act (PVPA) in 1997). Evidence suggests that both government and private research programmes are responding to economic and policy incentives and investing in plant variety protection as expected by economists. Analysis of the evolution of seed industry suggested that the combination of the new seed law in 2000 and the new plant variety protection regulation has changed the structure of seed industry and provided an important incentive to invest in PVPs both by public research institutes and commercial firms. Finally, there is also some preliminary evidence that private firms have lesser incentives in developing new varieties in contrast to purchasing new varieties.

Keywords: Crop, plant variety protection, China

 

Journal of Intellectual Property Rights

Vol 11, July 2006, pp 269-273

 

Intellectual Property Rights and Multinational Firms’ Modes of Entry

Thitima Puttitanun

Received 10 May 2006

This paper studies the relationship between intellectual property rights (IPR) and the entry mode decision by multinational firms. A simple model is developed allowing firms to choose among export, foreign direct investment (FDI), and licensing. Firms in the recipient country may imitate the technology, and their abilities to do so depend both on the nature of each mode and on the level of IPR protection in that country. Unlike the traditional beliefs, however, strong IPR can affect FDI more than licensing.

Keywords: Entry modes, multinational firms, intellectual property rights, foreign direct investment, licensing

 

Journal of Intellectual Property Rights

Vol 11, July 2006, pp 274-279

 

Transborder Reputation

Soumya Banerjee

Received 18 January 2006, revised 18 June 2006

The acquisition of reputation depends upon the usage of a particular good or service in connection with business. The protection of reputation is embodied in the action of passing off and is as such different from goodwill which is an asset, thereby, protected by law itself. Transborder reputation has its genesis under the English law and in Indian law the concept is embodied in Section 35 of the Trade Mark Act, 1999 wherein the Indian courts have recognized action by foreign plaintiff on the basis of passing off solely upon the reputation of his goods/services on the foreign soil. Several parameters have been set by the Courts for judging as case on the basis of transborder reputation yet, numerous loopholes in the application of the concept continue to remain. This article explores the genesis of transborder reputation and its recognition by the courts of law in India and other countries.

Keywords: Transborder reputation, spillover, goodwill

 

Journal of Intellectual Property Rights

Vol 11, July 2006, pp 280-284

 

IP Case Law Studies

Zakir Thomas

 

Received 5 June 2006

 

Dear Readers,

This is an experimental column on case law developments, which will examine a few interesting cases with emphasis on how principles of law are applied to each individual case. Give us your views regarding this feature as well as feedback on other regular features in the journal. Please send your feedback to the following email id.

---Editor

sahnim@niscair.res.in