Journal of Intellectual Property Rights

 

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VOLUME 11

                NUMBER 2

                 MARCH 2006

CODEN: JIPRFG 11(2) 81-170 (2006)

 

               ISSN: 0971-5544

 

 

CONTENTS

 

Articles

 

 

Beyond Wines and Spirits: Developing Countries’ GI Products and their Potential
in WTO Regime with Special Reference to India

89

        Tushar Kanti Saha and Nalin Bharti

 

 

Intellectual Property Securitization: How Far Possible and Effective

98

        Jayant Kumar

 

 

Patenting Lives—Life Patents, Culture and Development

103

        Johanna Gibson

 

 

Taming of the Flu: Working Through the Tamiflu Patents in India

113

        Shamnad Basheer and Tahir Amin

 

 

Data Protection Law in India: The TRIPS Perspective

125

        Praveen Dalal

 

 

Indigenous Culture and Intellectual Property Rights

132

        Rajat Rana

 

 

Legal Protection of Databases: An Indian Perspective

140

         Harsh Maggon

 

 

Literature Review 

 

IPR - General 

145

· Universities and the market for IP in the life sciences · Engaging the inventor: Exploring licensing strategies for university inventions · International IP law in the internationalized domain name system · IPR in biotechnology and the fate of poor farmers' agriculture · IP and genetically modified seeds: The US trade, and the developing world · IPR, competition policy and innovation · Socially responsible IP · A sui generis IPR for layout designs on printed circuit boards? · Automated silicon IP trade using mobile agent technology · Challenges and opportunities for enhancing biotechnology and technology transfer in developing countries

 

 

 

Patents  

147

· Automatic classification of patent documents for TRIZ users · Pharmaceutical patents on plant derived materials in Brazil · Protection and challenge of pharmaceutical patents · The influence of institutional forces on university patenting · Exemptions to patent infringement applied to biotechnology research tools · Patenting abstract ideas in nanotechnology

· Biotechnology patenting takes off in developing countries · Applying common law patentable subject matter doctrine to constrain patents on biotechnology research tools · An historical perspective on software patents · Strategies for using design patents to increase the value of fashion and luxury goods companies · Should good patents come in small packages? A welfare analysis of IP bundling · Global patent protection: Channels of north and south welfare gain

 

 

Copyright and Trademark 

151

· Keeping score: The struggle for music copyright · Should economics play a role in copyright law and policy? · Copyrights and creative copying · Copyright versus database right of protection in the UK · Of Otakus and Fansubs: A critical look at anime online in light of current issues in copyright law · Disaggregating fair use from the DMCA's anti-device provisions · How we lost our moral rights and the door closed on non-economic values in copyright · Intangibles, appropriation, and intellectual property law · Trademarks or copyrights: Which IP right affords its owner the greatest protection of architectural ingenuity?

 

 

IPR News  

 

IPR News-General 

155

· Cybersquatters' business booming · Malaysian intellectual property court · Sambalpuri saree set to be protected

 

 
 

Patent News 

155

· Exceptional growth from North East Asia in record year for international patent filings · EFF asks US Supreme Court to consider critical free-speech implications · Europe plays a losing patent game · Patent rule irks bio firms · US considering reform measure to grant patent to first party to file · Cingular applies to patent smileys · US patent errors revealed · Anti-cancer drug becomes cheaper · India readies for patent law changes · Bioprospectors raise ire as more life forms are patented · Kerala tribals get a Jeevani jolt

 

 

Copyright and Trademark News 

160

· Record number of international trademark applications in 2005 · Copyright pricing developing countries out of knowledge· Easier copyright rules eyed for ISPs · Hong Kong students recruited as copyright ‘spies’· Trademark protection for highest skyscraper in the world

 

 

Key Patents 

161

· Tasty protein nuggets · New patent for chemistries used in semiconductor manufacturing
· Ink-jet printing of phosphorescent OLED displays patent · CSIR gets US patent for inventing bio-enhancer properties of plant molecule · Phosphate lithium-ion battery technology patented · Patents for high-performance security system

 

 

 

Book Review

 

 

 

Community Resources, Intellectual Property, International Trade and Protection of Traditional Knowledge

164

            Johanna Gibson

 

 

 

Intellectual Property Protection for Crop Genetic Resources: A Suitable System for India

165

            Sabine Demangue

 

 

 

 

 

 

 

Journal of Intellectual Property Rights
Vol 11, March 2006, pp 89-97

 

Beyond Wines and Spirits: Developing Countries’ GI Products and their Potential in WTO Regime with Special Reference to India

Tushar Kanti Saha and Nalin Bharti

Received 15 September 2005

There has been a sea change in global marketing of geographically indicated products. This paper discusses the problem of protecting products of geographical origin; post TRIPS Agreement, which provides for enhanced protection to wines and spirits. Since no other product has been given enhanced legal protection in TRIPS, uncertainty for those unprotected products still continues. This has introduced inequity and unfair treatment of other products of equal importance sourced from the geographical locations and regions of the developing world. In order to evolve a fair trading system in the global market, agricultural and other natural products cannot be ignored as this affects the livelihood of a large number of people who are engaged in producing traditional and indigenous products of reputed quality. The paper further explores the possibilities of extending better protection to those unprotected products through the route of GI and probes the potential worth of Indian GI products with particular reference to newly found bonanza of bio-diesel extraction from Jatropha seeds as available in the state of Chattisgarh.

Keywords: Geographical indication, trademarks, wines and spirits, jatropha, indication of source, appellation of origin

 

Journal of Intellectual Property Rights
Vol 11, March 2006, pp 98-102

 

Intellectual Property Securitization: How Far Possible and Effective

Jayant Kumar

Received 11 November 2005, revised 31 January 2006

Over the past decade and a half, there has been a steadily increasing focus on intellectual property (IP) and its proceeds as sources of funding and collateral security. More than ever, IP is being recognized as a valuable component of a company’s asset portfolio due in large measure to the growth in IP as a strategic investment. The use of IP collateral is often more attractive than other types of collateral because there is generally a lower credit risk, which results in a lower cost of financing, and pledging IP collateral will often allow a borrower to secure financing without the need to alter its capital structure. The present paper discusses the issues related to patent securitization and concludes with a statement of how far patent securitization is possible and effective.

Keywords: Financial asset, perfection, IP securitization, security interest

 

Journal of Intellectual Property Rights
Vol 11, March 2006, pp 103-112

 

Patenting Lives—Life Patents, Culture and Development

Johanna Gibson

Received 14 December 2005, revised 15 February 2006

While many have lauded the potential role of agricultural biotechnology in achieving food and agricultural security in the developing world, this enthusiasm has been tempered by concerns over access to that technology being limited by intellectual property monopolies. This paper* introduces questions regarding the patent protection of life forms on cultural and economic development and considers whether further limitations are warranted on intellectual property monopolies that may be created in living organisms, including plants/plant varieties and animals, in the context of genetic engineering. Other potential means of effective commercial return for these technologies are outlined, with particular attention to notions of corporate responsibility, branding, and civil society action through non-governmental organizations and the public.

Keywords: Life forms, biotechnology, traditional knowledge, genetic resources, genetically modified, non-governmental organization, biodiversity, misappropriation

 

 

 

Journal of Intellectual Property Rights

Vol 11, March 2006, pp 113-124

 

Taming of the Flu: Working Through the Tamiflu Patents in India

Shamnad Basheer

and

Tahir Amin

Received 4 December 2005, revised 12 February 2006

With an impending Avian influenza or bird flu pandemic, the issue of patents and public health has once again taken centre stage. Oseltamivir (known by its brand name ‘Tamiflu’), a patented antiviral pill, has emerged as the world's first line of defence against bird flu. A key priority for most nations is to create sufficient stockpiles of this pill that can then be easily distributed and administered during a pandemic. Keeping this end in mind, this paper explores the patent position in India and looks at ways to work around a patent, should one issue in future, to accelerate access in the event of a pandemic. The paper recommends various strategies for creating an optimal and affordable stockpile and calls on the government to take a more definite stand in the matter.

Keywords: Tamiflu, compulsory licensing, government use, acquisition of patents, parallel imports

 

Journal of Intellectual Property Rights
Vol 11, March 2006, pp 125-131

 

Data Protection Law in India: The TRIPS Perspective

Praveen Dalal

Received 11 November 2005, revised 6 January 2006

The aim of this article is to evaluate the mandates and requirements of TRIPS Agreement, vis-à-vis data protection requirements in India. India is planning to enact a law on data protection and the same must be in conformity with not only the TRIPS Agreement but also with the Constitution of India. An attempt has been made to highlight some issues on data protection in India. These issues are such that, continued ignorance and rejection can result in the declaration of the proposed law as ‘unconstitutional’.

Keywords: Data, data protection rights, privacy rights, public international law, TRIPS Agreement, data protection

 

Journal of Intellectual Property Rights

Vol 11, March 2006, pp 132-139

Indigenous Culture and Intellectual Property Rights

Rajat Rana

Received 7 August 2005, revised 8 February 2006

This paper analyses the intersection between intellectual property rights regime and indigenous claims in the context of folklore, songs, practices, etc., as well as human rights law and intellectual property law with specific reference to Australia where the judiciary has played a significant role in protecting the cultural interest of the aboriginals.

Keywords: Indigenous knowledge, culture, intellectual property rights, human rights

 

Journal of Intellectual Property Rights

Vol 11, March 2006, pp 140-144

 

Legal Protection of Databases: An Indian Perspective

Harsh Maggon

Received 15 September 2005, revised 17 January 2006

Many countries have proposed introduction of a sui generis form of protection for ‘non-creative’ databases. This issue has sparked off a debate regarding protection beyond intellectual property and has exposed limitations of copyright law. Further, such protection also has wide implications for the scientific community and also the general right of people to information publici juris. It is, therefore, important to provide protection to such databases without unnecessarily impeding the free flow of information. This paper deals with the issue from an Indian perspective and studies existing copyright protection available to such works in India and analyses the protection models available for ‘non-creative’ databases.

Keywords: Non-creative databases, copyright protection, sui generis protection, unfair competition model

 

Author Index

 

 


Amin Tahir                                                113

Basheer Shamnad                                         113

Bharti Nalin                                                89

Dalal Praveen                                              125

Gibson Johanna                                           103

Jayant Kumar                                              98

Maggon Harsh                                             140

Rana Rajat                                                  132

Saha Tushar Kanti                                         89


 

Keyword Index

 


Acquisition of patents                                 113

Appellation of origin                                     89

Biodiversity                                                 103

Bioinformatics                                             152

Bioprospectors                                            159

Biotechnology                             103, 145, 148

Competition policy                                     146

Compulsory licensing                                  113

Copyright protection                                  140

Culture                                                         132

Data                                                             125

Data protection                                           125

Data protection rights                                 125

Financial asset                                               98

Genetic resources                                        103

Genetically modified                           103, 146

Geographical indication                                 89

Government use                                          113

Human rights                                               132

Indication of source                                       89

Indigenous knowledge                                 132

Intellectual property rights         132, 146, 154

IP securitization                                            98

Jatropha                                                         89

Jeevani                                                         159

Layout designs                                            147

Licensing strategies                                      145

Life forms                                                    103

Misappropriation                                        103

Non-creative databases                                140

Non-governmental organization                  103

Parallel imports                                           113

Perfection                                                      98

Pharmaceutical patents                                148

Privacy rights                                              125

Public international law                               125

Security interest                                            98

Sui generis protection                                 140

Tamiflu                                                        113

Trademarks                                                    89

Traditional knowledge                                 103

TRIPS Agreement                                       125

Unfair competition model                           140

 Wines and spirits                                         89