Journal of Intellectual Property Rights

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VOLUME 12	NUMBER 5		SEPTEMBER 2007
CODEN: JIPRFG 12(4) 387-466 (2007)		ISSN: 0971-5544

Articles

TRIPS Plus Agreements and Issues in Access to Medicines in Developing Countries	471
Samira Guennif and N Lalitha

Recording that Different Version – An Indian Raga	480
Nawneet Vibhaw and Abishek Venkataraman

Anton Piller Order in UK and its Possible Implications in India	488
Souvik Bhadra and Arka Majumdar

The Registrability of Unconventional Trademarks in India and Sri Lanka:	497
A Comparative Analysis
Althaf Marsoof

IP Case Law Developments	507
Zakir Thomas

Literature Review

IPR―General	516

● Cooperative IP in biotechnology ● IPR, plant genetic resources and international law ● Do Asian nations take IPR seriously? ● Trading IP in new economy ● Security-related provisions in IPR laws in India ● Data exclusivity ● Valuation of IP assets ● IP law as an internal limit on IPR and autonomous source of liability for IP owers ● The impact of uncertain IPR on the market for ideas ● Are preferential trade agreements with non-trade objectives a stumbling block for multilateral liberalization? ● The questionable use of custom in IP ● Are Article 82 EC and IP interoperable? ● The legitimacy of IPR ● IP and the property rights movement regulation ● Holding innovation to an antitrust standard ● The impact of WTO accession on China's legal system ● The effects of reduced transaction costs in licensing ● Unilateral enforcement of IPR ● The public interest in privatizing our common genetic heritage ● IPR, imitation, and foreign direct investment ● IPR, parallel imports and strategic behavior ● IP, local norms and global rights ● Some thoughts on property rights and traditional knowledge ● The case of anti-bootlegging statutes ● Confronting myths and myopia on the road from Doha

Patents	522

● Combining patent law expertise with R&D for patenting performance ● Implications for the pharmaceutical industry ● How drawings could enhance retrieval in mechanical and device patent searching? ● How organizations can protect their inventions without patenting? ● Patent protection and traditional knowledge associated with biodiversity ● Strategies in international filing of patents ● Innovation segregation by two Australian merchant banks ● Patent symmetry ● Valuable patents redux ● Software patents, incumbents, and entry ● Is the Patent Office a rubber stamp? ● Questioning the wisdom of patent protection for tax planning ● The rights & responsibilities of biotech patent owners ● Has patent protection for financial innovation encouraged financial institution creativity? ● The ramifications of physician immunity from medical procedure patent infringement liability ● Alternatives to the patent arms race ● Patent litigation trend in India

Copyright and Trademark	528

● Method and madness in copyright law ● Infringement of copyright and doctrine of fair use ● An empirical study of US copyright fair use opinions ● Misuse ● International copyright law and litigation ● Internet packet sniffing and its impact on the network neutrality debate ● Unauthorized copying and copyright enforcement in developing countries: A Vietnam case study ● Copyright versus patents ● The law and economics of copyright and author's rights ● Mystifications in copyright law and practice ● Revisiting international copyright law ● A new theory of trademarks ● Protection of GI of goods

IPR News

IPR News—General	533

● Productivity benchmarking study ● Agreement for anti–AIDS drug in Brazil ● Pak for legal action against India ● E-filing facility ● EU opposes cheap medicines for AIDS in Thailand

Patent News	535

● New rules for examination ● Patent information service in Russia ● Rise of electronics patents in China ● Changing geography of innovation ● Medical aid groups welcome Indian Court ruling on patents

Copyright and Trademark News	536

● US requests WTO panel in copyright spat with China ● Copyright law revised ● Copyright for handicraft exports in Vietnam ● Online copyright information platform ● Special courts for copyright violations ● German Parliament reforms copyright law ● Board for copyright enforcement ● Kenya: Chasing the lost millions in music ● Azerbaijan regulations for copyright royalties

Key Patents

● 3-D multilayer organic packaging ● Patent for Voice over Internet Protocol Wi-Fi E9-1-1 calls ● Novel blood test to diagnose Alzheimer ● Patent for wireless, batteryless, implantable sensors ● Immuno-stimulatory dietary supplement ● Patent for Invisicare(R) in India ● Self-tuning transmitter technology ● Stem cell firm given US patent ● Stroke patent ● Patent for chapatti roller

Book Review

The Intellectual Property Debate—Perspectives from Law, Economics and Political Economy	542
Meir Perez Pugatch

The Idea of Authorship in Copyright	543
Lior Zemer

AUTHOR INDEX

Bhadra Souvik 488

Guennif Samira 471

Majumdar Arka 488

Marsoof Althaf 497

Thomas Zakir 507

Venkataraman Abishek 480

Vibhaw Nawneet 480

Lalitha N 471

KEYWORD INDEX

Access to medicines 471

Adaptation 480

Anton Piller order 488

Assignment 507

Compulsory licence 471

Data protection 471

Ever greening 507

Evidence 488

Ex parte 488

FTAs 471

Graphical representation 497

Injunction 488

Invention 507

Isomer 507

Literary titles 507

Musical work 480

Novartis 507

Parallel imports 471

Patents 507

Royalty 507

Scent marks 497

Self incrimination 488

Sound marks 497

Trademark 507

TRIPS 471

TRIPS compliant 497

TRIPS Plus 471

Unconventional trademarks 497

Version recording 480

Journal of Intellectual Property Rights

Vol 12, September 2007, pp 471-479

TRIPS Plus Agreements and Issues in Access to Medicines in Developing Countries

Samira Guennif and N Lalitha

Received 7 April 2007, revised 9 August 2007

Harmonization of intellectual property rights among WTO members in the recent years has seen debates on access to medicines. Though flexibilities exist in the WTO Agreement to safeguard public health priorities, such as, parallel imports, compulsory licensing, yet the capacity to utilize these flexibilities depends on various factors including country’s developmental status and capacity of the industry in these countries. However, in the recent past, USA has been signing regional and bilateral trade agreements with developing countries. While developing countries are lured to such agreements because of the opening up of trade and trade concessions, however, conditions of such trade especially those binding the intellectual property rights of the goods concerning USA are stricter and broader and thereby become more powerful than the WTO Agreement governing the countries. Particularly, concerns have been raised about patentability criteria, data exclusivity with potential to extend monopoly status of the newly introduced drugs and delay the entry of generic drugs, which would obviously keep the prices beyond the reach of developing countries thereby making access to drugs difficult. A few of these aspects are discussed in this paper.

Keywords: TRIPS, TRIPS Plus, FTAs, access to medicines, data protection, parallel imports, compulsory licence

Journal of Intellectual Property Rights

Vol 12, September 2007, pp 480-487

Recording that Different Version – An Indian Raga

Nawneet Vibhaw and Abishek Venkataraman

Received 2 April 2007, revised 30 July 2007

This paper discusses and critically examines the law relating to version recording rights, in the light of the contemporary trends in the Indian music industry. Version recording rights have been the subject to intense scrutiny with the music industry lobbying for deleting the provision. Certain amendments to the Copyright Act have been proposed by the Human Resources Development Ministry which has been examined. The paper, divided into five parts, gives a brief overview of the concept of copyright in the introductory part, the second part deals with the concept of adaptation in musical work which forms the basis for the concept of version recording. The third part deals with the origin of version recording rights in Indian law, under Section 52(1)(j) of the Copyright Act, and attempts to assess its impact on the music industry. The fourth part discusses the Indian case laws. The final part, conclusion, critically examines the proposed amendments with this regard and also covers authors’ views.

Keywords: Version recording, musical work, adaptation, copyright

Journal of Intellectual Property Rights

Vol 12, September 2007, pp 488-496

Anton Piller Order in UK and its Possible Implications in India

Souvik Bhadra and Arka Majumdar

Received 7 June 2007, revised 3 August 2007

Concrete evidence is vital to substantiate one’s claim and obtain relief in any case, including those revolving round infringement of intellectual property rights. To prevent situations where the defendants might destroy the evidences on being aware of the impending legal actions, the English Courts devised a new strategy - an ex parte interlocutory injunction which enables the plaintiffs’ solicitors to enter the defendants’ premises and obtain the offending materials or documents to produce them at the trial – called the Anton Piller order. However, due to its enormous power, if not used sparingly, the Anton Piller order can be abused to a large extent. The application of Anton Piller order in India is still in nascent stage and lot many questions are still left unanswered. This paper looks into the rights and obligations of the parties, risks associated with it and the possible solutions, in perspective of the intellectual property right infringement cases.

Keywords: Anton Piller order, ex parte, evidence, injunction, self incrimination

Journal of Intellectual Property Rights

Vol 12, September 2007, pp 497-506

The Registrability of Unconventional Trademarks in India and Sri Lanka: A Comparative Analysis

Althaf Marsoof

Received 25 May 2007, revised 2 August 2007

India and Sri Lanka, having embraced the new global economic wave have liberated their international trade policies incubating a supportive atmosphere within for foreign traders to setup business in the local markets. This new trend though beneficial to the economies of both countries, has posed many new legal issues, particularly, in intellectual property law. One important problem relates to the area of unconventional trademarks, which is of great importance to trade. This paper examines current legal provisions relating to trademarks in India and Sri Lanka and determines registrability of unconventional marks, with emphasis on colour, scent and sounds, within the existing legal framework. Legal reforms are also suggested wherever appropriate. A comparative approach has been adopted, as Sri Lanka and India are historically, culturally and geographically closely connected to each other. Further, intellectual property laws of both the countries are TRIPS compliant and thus can be conveniently considered together.

Keywords: Unconventional trademarks, TRIPS compliant, sound marks, scent marks, graphical representation

Journal of Intellectual Property Rights

Vol 12, September 2007, pp 507-515

IP Case Law Developments^*

Zakir Thomas

Received 21 August 2007

This article contains a detailed discussion of the celebrated ‘Novartis’ case, decided on 6^th August 2007. There is also a copyright case on the effect of non payment of royalty on assignment of copyright and a trademark case on literary titles chosen from the cases reported in April 2007 issue of ‘The Patents and Trade Marks Cases’, a leading case law reporter on intellectual property laws.

Keywords: Patents, Novartis, isomer, invention, ever greening, copyright, royalty, assignment, trademark, literary titles

*The feedback regarding this column can be sent to the editor, Madhu Sahni (email: sahnim@niscair.res.in) or to the author: zthomas@piercelaw.edu

VOLUME 12

NUMBER 5

SEPTEMBER 2007

CODEN: JIPRFG 12(4) 387-466 (2007)

ISSN: 0971-5544

CONTENTS