Journal of Intellectual Property Rights

 

http://www.niscair.res.in

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VOLUME 13

NUMBER 2

MARCH 2008

CODEN: JIPRFG 13(2) 103-192 (2008)

 

ISSN: 0971-5544

 

CONTENTS

 

Articles

 

 

Reflections on the Indian Accession to the Madrid Protocol

111

        Adarsh Ramanujan

 

 

Trademark Issues in Digital Era

118

        Mayuri Patel and Subhasis Saha

 

 

Towards Patentability of Essentially Biological Processes

129

        Abhinav Kumar

 

 

Small Scale Industries and IP Management: Need to Recognize Intellectual Assets

139

        Vidhan Maheshwari and Pratishtha Bhatnagar

 

 

Patent & Food Security – Opening the Pandora’s Box

145

        Saswata Mitra

 

 

Institutions and Capacity Building for the Evolution of IPR Regime in India: II — Ownership and Management Issues in Agricultural Research

 

152

        Sudhir Kochhar

 

 

IP Case Law Developments

157

        Zakir Thomas

 

 

Literature Review

 

 

IPR―General

 

165

Protecting biotechnology IPRs in developing countries ● Towards semantics-aware management of IPR ● Technological flows and choice of joint ventures in technology alliancesTrade-related influences, foreign IPR and outbound international patentingModel IPRinternalise™Technology commercialization strategies ● Optimal fragmentation of IPR Anti-competitive conduct, in-house R&D, and growth ● Role of copyrights, trademarks, and trade secrets in technology commercialization

 

 

Patents

 

167

● Average patent pendency and examination errors ● Patenting human DNA ● Patents and corporate value creation ● The genomics revolution and patenting practice ● Factors influencing technological asset value ● Access to vaccine technologies in developing countriesUS patent policy and the criteria of non-obviousness

 

 

Copyright and Trademarks

 

169

●The future of copyright in India ● Does private copying need an update in the UK? ● Proper application of copyright's merger and Scenes a FaireAn image adaptive, wavelet-based watermarking of digital images ● Subjectivity and information ethics ● Indigenous ways of knowing: Implications for participatory research and community ● Can entrepreneurial firms benefit from product piracy? ● Collective action in agrobiodiversity management ● Foundational issues in information ethics ● Commercial satellite imagery ● The digital information war ● The case of open source software development ● Intangibles definition using the resource based view of the firm ● Copyright cultures ● Managing risk with intellectual capital statements ● Drivers of voluntary intellectual capital disclosure in listed biotechnology companies ● Non-literal copying of factual information ● Trade secrets and employee loyalty ● Non-traditional trade marks: Singapore perspective

 

 

IPR News

 

 

IPR News—General

 

175

● Antigua considers cross-retaliation against US ● Sharjah Customs Authority and BPG sign MoU ● French and German delegations visit EPO ● EU threatens Taiwan ● Czech Republic placed on the Special 301 Watch List ● Manila losing billions in biopiracy China and EU join forces in anti-piracy battle ● Intellectual Property Office reports anti-piracy gains ● Japan sets up IP fund for Africa ● China on IPR strategy ● Angola joins WIPO ● CIPO on IP and competitiveness ● UAE, France sign MoU on IP ● Congress proposes to enhance IP enforcement and penalties ● Tainted toys are infringing 'Godzilla' ● IPR scholarships from Microsoft ● Gujarat Inc a laggard in IPR matters ● Udupi, Mysore, Hadagali Jasmine flowers granted GI

 

 

Patent News

 

181

● Managing patents for profit ● Patent trial process shortened to 6 months ● UK revamps online patent services CTRI wins patent for using tobacco as medicineChina amends patent-rights law to boost innovation ● India, Pakistan fight over patent for Kashmir Pashmina ● Bihar's famous Madhubani paintings to be patented ● 50 patents granted every day in India ● State and IIT on patent hunt

 

 

Copyright and Trademark News

 

184

● Congress claims copyright over UPA schemes ● Beijing to set up international copyright trade center ● Scrabble-maker sues Indians over copyright ● Canada: A top copyright violator Can Egypt copyright the Pyramids? ● Copyright of ‘Banana Rind’ ● Author arrested for copyright infringement ● Anti-Counterfeiting Trade Agreement Negotiations ● Australian Govt to help fight against pirated goods

 

 

Key Patents

 

186

Vasomedical awarded new patent First patent granted on polymer delivery system in India ● Patent for textile-based electrodes ● Bi-piston combustion engine patented ● Axeda Corporation awarded new European patents ● Antigen-sparing vaccines ● ‘Data Shadowing’ compliance technology

 

 

Book Review

 

 

Intellectual Property Rights Demystified

188

            Mu Ramkumar & A Jayakumar

 

 

Patents, Inventions and the Dynamics of Innovation – A Multidisciplinary Study

188

            Roger Cullis

 

 

 

AUTHOR INDEX

 

 

Abhinav Kumar                                           129

Bhatnagar Pratishtha                                   139

Kochhar Sudhir                                           152

Maheshwari Vidhan                                    139

Mitra Saswata                                             145

Patel Mayuri                                               118

Ramanujan Adarsh                                      111

Saha Subhasis                                              118

Thomas Zakir                                              157

 

KEYWORD INDEX

 

Banner advertising                                       118

Biotechnology                                             129

Cybersquatting                                            118

Digital era                                                    118

Dilution                                                       118

Domain name                                               118

Essentially biological processes                  129

Food security                                              145

Framing                                                        118

Globalization                                               139

Infringement                                                118

Initial interest confusion                              118

Intellectual property rights                         152

Internet                                                        118

IP management                                            152

IPR ownership                                            152

Jurisdiction                                                  118

Linking                                                         118

Madrid Agreement                                      111

Madrid Protocol                                          111

Meta-tagging                                                118

Microbiological process                              129

Patent                                                  129, 145

Phishing                                                       118

Small scale industries                                   139

Spamming                                                    118

Sui generis                                                   145

Trademark                                                   111

Trademark issues                                         118

Traditional knowledge                                 129

TRIPS                                                          139

 

Journal of Intellectual Property Rights

Vol 13, March 2008, pp 111-117

 

Reflections on the Indian Accession to the Madrid Protocol

Adarsh Ramanujan

Received 27 December 2007

Today’s globalized economy has placed much significance on the internationalization and harmonization of trademark laws. The Madrid System for the international registration of trademarks was one such effort created to allow companies to register their trademark in several countries through one application. Though not a party to the original Madrid Agreement, India recently acceded to the Madrid Protocol Relating to the Madrid Agreement Concerning International Registration of Marks. This article traces the evolution of this Madrid System and provides a critique of the Madrid Protocol. Besides analysing the criticisms of the Madrid Agreement, the author also critically analyses the advantages and developments of the Madrid Protocol over the Madrid Agreement.

Keywords: Trademark, Madrid Protocol, Madrid Agreement

 

Journal of Intellectual Property Rights

VolVol  13, March 2008 p p 118-128

 

Trademark Issues in Digital Era

Mayuri Patel and Subhasis Saha

Received 26 November 2007, revised 14 February 2008

The prime objective of this endeavour is to understand and analyse various issues with respect to trademarks, which have emerged as a result of the Internet or digital era. The scope of the paper is limited to various trademark issues only. The paper highlights various issues relating to trademark infringement with respect to different use on the Internet, starting from the issues related to domain name disputes, jurisdiction, linking, framing, meta-tagging or invisible use, banner advertising, spamming and phishing. The approach of various courts over such trademark issues in the digital era is also analysed in the paper.

Keywords: Digital era, Internet, trademark issues, infringement, dilution, domain name, cybersquatting, jurisdiction, linking, meta-tagging, initial interest confusion, banner advertising, framing, spamming, phishing

 

Journal of Intellectual Property Rights

Vol 13, March 2008, pp 129-138

 

Towards Patentability of Essentially Biological Processes

Abhinav Kumar

Received 12 September 2007, revised 4 February 2008

This paper addresses the issue of patentability of ‘essentially biological processes’ in India in view of increased importance of biotechnological inventions. The Indian Patent Act excludes the ‘essentially biological processes’ from patentability in order to be in conformity with Article 27 3(b) of TRIPS. However like TRIPS, the Indian Act does not provide any definition or content of the same. It is understandable in case of TRIPS as due liberty was intended to be offered to the member countries; non-specification by India is baffling. United Kingdom has provided a concrete definition to the term in its Biotechnological Directive and United States through case laws has narrowed the content of ‘essentially biological process’ considerably. India is in dire need of foreign investment and inventors for the development of biotechnology and such non-specification would act as a strong disincentive for any foreign contribution forthcoming. This paper urges the Government to enact specific amendments to the primary patent legislation for incorporation of definition and content of the term in question distinguishing it from other similar terms like microbiological processes which have been excluded from exclusions.

Keywords: Essentially biological processes, microbiological process, biotechnology, patent, traditional knowledge

 

 

Journal of Intellectual Property Rights

Vol 13, March 2008, pp 139-144

 

Small Scale Industries and IP Management: Need to Recognize
Intellectual Assets

Vidhan Maheshwari and Pratishtha Bhatnagar

Received 9 October 2007, revised 29 January 2008

The small-scale industries hold a very crucial position in every economy and the Indian economy is no exception. However, in the shifting frames of time, these industries have failed to cope up with the emerging challenges and to keep abreast with the latest developments especially, in the field of IPR. In India, most of these industries are lagging far behind and facing technical obscurity, being unaware about management of their knowledge-based assets like IPR. This paper deals with issues on the future of Small-Scale Industries (SSIs) in India in the present era of globalization and liberalization with the advent of TRIPS. The paper specifically focuses on the SSIs having investment of less than Rs 1 crore and discusses the importance of Indian SSIs in changing economic environment and its implications on small industries. It examines the reasons for protecting intellectual wealth in the present scenario of the economic development in India. It analyses the role of government in making the small enterprises viable and what measures should be and are being taken. The paper also deals with the steps taken for creating IPR culture and suggests the initiatives for SSIs.

Keywords: Small scale industries, globalization, TRIPS

Journal of Intellectual Property Rights

Vol 13, March 2008, pp 145-151

 

Patent & Food Security – Opening the Pandora’s Box

Saswata Mitra

Received 3 December 2007, revised 17 February 2008

The issue of food security which has gained prominence in the 1970’s has been a topic of debate since then. The theme behind an intellectual property protection is to help protect investments into research and development and stimulate innovation and in recent times patents have been taken on indigenous plants which have been used for generations by the local people, without their knowledge or consent potential. The developing nations have become a potential experimental launch pad of the developed countries. Thus, market of the developing countries is being targeted as safety is lenient and the countries which have a patent protection on plant variety pay a heavy price for these technologies. This paper addresses some of the unresolved issues pertaining to patent and food security, the existing legislation’s shortcomings and fallacies.

Keywords: Food security, patent, sui generis

 

Journal of Intellectual Property Rights

Vol 13, March 2008, pp 152-156

 

Institutions and Capacity Building for the Evolution of Intellectual Property Rights Regime in India: II — Ownership and Management
Issues in Agricultural Research*

Sudhir Kochhar

Received 10 February 2008

The post World Trade Organization (WTO) developments towards the establishment of a well-defined IPR regime in the country, along with the advances in technological tools for agricultural research, have drawn serious attention of the national agricultural research system (NARS), leading to the development of their IPR management strategies, policy and guidelines, for an effective transfer of their IPR protected technologies. Two major international instruments, namely, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) and the Convention on Biological Diversity (CBD), broadly determine the ownership rights on IPR, and biological resources. In agricultural research/IPR regime, the need for a firm institutional policy or framework, and the implementation mechanism has been strongly felt and realized. This needs to spell out the issues of ownership, assignment and delegation of powers for execution of various IPR management steps, and incentives to encourage greater creativity and rapid innovativeness in the system. This paper analyses the issues, which are particularly related to the ownership and management concerns.

Keywords: Intellectual property rights, IPR ownership, IP management

*The feedback regarding the series of this article can be sent to the editor, Madhu Sahni (email: sahnim@niscair.res.in) or to the author:  skochhar.icar@nic.in; skochhar2000@hotmail.com

 

Journal of Intellectual Property Rights

Vol 13, March 2008, pp 157-164

 

IP Case Law Developments*

Zakir Thomas

Received 17 February 2008

This article attempts to summarize some of the recently reported cases on intellectual property law to enable the readers to understand how the courts have applied the principles of intellectual property law to actual IP disputes. The cases are chosen from the cases reported in the November and December 2007 issues of the Patents and Trade Marks Cases (PTC), a leading case law reporter on intellectual property laws. There was no patent case to report during this period.

Keywords: Trademarks, brands, surname, copyright, music, cognisable offences

*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