Journal of Intellectual Property Rights

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