Journal of Intellectual Property Rights

 

http://www.niscair.res.in

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VOLUME 13

NUMBER 3

MAY 2008

CODEN: JIPRFG13(2) 193-288 (2008)

 

ISSN: 0971-5544

 

CONTENTS

 

Articles

 

Protection of Traditional Handicrafts under Indian Intellectual Property Laws

197

        J Sai Deepak

 

 

Trade Secrets: A Secret Still to Unveil

208

        Harshwardhan and Saurav Keshri

 

 

Open Source Software: The Future Ahead

218

        Sanjanaa Chindalia

 

 

Farmer's Rights in Conserving Plant Biodiversity with Special Reference to North- East India

225

        Sumit Chakravarty, Gopal Shukla, Suman Malla and C P Suresh

 

 

Insurance Coverage in Intellectual Property Litigation

234

        Jayant Kumar

 

 

Institutions and Capacity Building for the Evolution of IPR Regime in India: III– Conformity and Enforcement Issues

 

239

        Sudhir Kochhar

 

 

IP Case Law Developments

245

        Zakir Thomas

 

 

Literature Review

 

 

IPR―General

 

253

● Managing IP ● Influence of WTO decisions on international IP ● Licensing strategies of new IP vendors ● South Korea and indirect reliance on IP law ● Ownership and IPR in international collaborative research ● Productive potential of IPR ● IP and the European Court of Human Rights ● Optimal fragmentation of IPR ● Protection and conservation ● Negotiating for IPRInnovation management techniques and tools ● Welfare impacts of cross-country spillovers in agricultural research ● Intangible asset disclosure Empirical research on firms' boundariesCurbing agricultural exceptionalismPatent pools, copyright collectives and clearinghouses ● Anticounterfeiting strategies in the pharma industry ● Gender and biodiversity ● Post-termination use of licensed IP ● Collective action in agrobiodiversity management ● Intellectual capital practices ● IPR: Legislation and enforcement in the republic of Armenia

 

 

Patents

 

259

How patent information can contribute to sustainable development ● Are universities patent trolls? ● Controversy over business methods patentsProliferation of tax strategy patents Effects of strengthening IPR ● Role of patent rights in mergers ● Shape of ideas production function ● Using patent information for designing new product and technologyFog of integrationPatent document summarization method ● Disparities in patenting across academia and industry ● Predicting key example compounds

 

 

 

Copyright and Trademarks

 

 

 

262

The mereology of digital copyright ● Towards a new paradigm in justifying copyright ● Curse of ‘copying’● Sealing the cracks ● Origins of photographic copyright ● Recognition and protection of well-known trademarks in Indonesia● Recognition and protection of well-known trademarks in Indonesia● Swiss trademarks practice on misleading GIs ● Digital rights management systems and competition ● Case of famous trademarks in Greek● Can entrepreneurial firms benefit from product piracy?● FIFA's IPR in South Africa

 

 

IPR News

 

 

IPR News—General

 

267

● Two WIPO award winners at Geneva international inventions fair ● ‘Palakkadan matta,’ ‘Navara’ rice get GI registration ● China outlines IPR strategy ● US demands Thailand halt IP violations Pharma firms bet big on new B'desh law ● IP law connects India to the UW Russia continues drive for WTO membership IGNOU to launch new programme on IP IPR protection faces challenge India to issue landmark generic drugs ruling ●Awareness programme on IPR

 

 

Patent News

 

270

European Commission launches patent inquiry ● Trilateral Offices to extend work-sharing initiatives ● Brazilian patent office recognized as IPSA ● Automatic injunctions in patent cases ● AirDefense receives allowance for wireless intrusion prevention patent ● Free stem cell patent database launched ● Cancer patents ● New national-level programmes echo WIPO Patent Treaty ● Go-live for enhanced electronic filing of patents ● Patents filings from India on decline ● Record grant of patents ● New patent rights of drugs suspended ● Thailand to continue compulsory licensing ● Gilead patent case to help Indian firms ● Rwanda patent rights

 

 

Copyright and Trademark News

 

275

Member States consider future work of copyright committeeINTA partners with copyright society of the USA Copyright infringement ● Israel now has the right copyright law ● EU calls on US to fulfill TRIPS obligations on copyright Copyright laws updated for digital world ● Hong Kong rolls out licensed software management campaign ● US 'Superman' copyright to be shared The UK-IPO publishes the artist’s resale rights report ● Pune police officers get trained to curb music piracy ● Ethiopia: Starbucks concedes defeat over trademark row

 

 

Key Patents

 

279

Carotech patents hair regrowth formula ● Production scheduling system patented ● Russian patent for MAPD solid-state photo detectors BHU surgeon gets patent for hip device Canker kill technology to treat citrus canker

 

 

Book Review

 

 

Biotechnology and Patent Law: Patenting Living Beings

282

            Dr N S Sreenivasulu and Dr C B Raju

 

 

A Practical Guide to Drafting Patents, EIPR Practice Series

283

            Gwilym Roberts

 

 

 

 

AUTHOR INDEX

 

Chakravarty Sumit 225

Chindalia Sanjanaa

 

218

Deepak J Sa

 

197

Harshwardhan

 

208
Keshri Saurav 208
Kochhar Sudhir 239

Kumar Jayant 

 

234

Malla Suman 

 

225
Shukla Gopal 225

Suresh C P

 

225
Thomas Zakir 245

 

 

 

KEYWORD INDEX

 

Access, benefit sharing 

 

239
Case law reports 245
Colour of tablets 245
Compilation 245
Confidential information 208
Conformity 239
Copyleft 218
Copyright 245
Copyright law 218

Copyrights

 

197
Derivative works  245
Designs 197

Developing countries

 

208
Economic significance 245

Enforcement

 

239
Farmers’ right 225

Free Software Foundation

 

218
Geographical indications 197

GNU GPL

 

218
Insurance 234
Intellectual property litigation 234
Inventive step  245

IPR

 

239
Legislation 208

Literary works

 

245
North East India

225

 

Open source software 218

Originality

 

245
Patents 245
Plant biodiversity conservation 225
PPV&FR Act 239
Protection 208

PVP

 

239
Securitization 234

Shape of tablets

 

245
Traditional handicrafts 197
Traditional knowledge 245

 

 

Journal of Intellectual Property Rights

Vol 13, May 2008, pp 197-207

 

 

Protection of Traditional Handicrafts under Indian Intellectual Property Laws

J Sai Deepak

Received 28 September 2007, revised 27 March 2008

This paper discusses protection of collective rights and individual innovations in traditional handicrafts, in view of their importance to the cultural heritage of traditional groups native to India. Further, inadequacies of the Indian intellectual property laws, specifically, the Geographical Indications of Goods (Registration and Protection) Act 1999, Designs Act 2000 and Copyright Act 1957 in protecting traditional handicrafts and rewarding individual creativity have been discussed in detail. Parallels have been drawn with the initiatives launched by China and a few other nations to protect their traditional handicrafts. Finally, a blend of Geographical Indications and ancillary rights has been suggested as a way of encouraging ingenuity in traditional arts.

Keywords: Geographical indications, copyrights, designs, traditional handicrafts

 

Journal of Intellectual Property Rights

Vol 13, May 2008, pp 208-217

 

Trade Secrets: A Secret Still to Unveil

Harshwardhan and Saurav Keshri

Received 31 December 2007, revised 28 April 2008

Trade secret forms the core of all industrial activities, but as an IPR in the true sense is found in textbooks on intellectual property. In practice it still remains a secret for our intellectual property regime which has been indiscriminate in affording it any protection. It is yet to unveil itself; people are yet to realize its potential as an IPR. Regardless of the fact that trade secrets remain neglected they have distinguished advantages over other IPR. This paper analyses these advantages which it can accrue to country like India and provides how these advantages can be exploited effectively. It also analyses new developments in the field of trade secrets and their legal protection in India. The contemporaneous conditions in India are conducive and compelling to have a statutory law on trade secrets, even courts have also seen increased trade secret litigation in the recent past. Hence the paper suggests legislative protection of trade secrets and possible ingredients of such law.

Keywords: Developing countries, confidential information, protection, legislation

 

 

Journal of Intellectual Property Rights

Vol 13, May 2008, pp 218-224

 

Open Source Software: The Future Ahead

Sanjanaa Chindalia

Received 5 September 2007, revised 9 April 2008

The proliferation of computer technology and advent of Internet have created many new relationships and problems that raise questions about traditional legal and economic principles. The development of ‘open-source software’ is an example of this phenomenon.1 Open source software is one, where the source code is available and the user can modify the software to suit his needs. Though the open-source software industry has not completely replaced the conventional software industry, there has been a considerable invasion into its space. The entire discourse is centred around innovation and growth on the one hand and proprietary rights on the other.

The object of this article is to understand open source software, by analysing the manner in which it uses principles of copyright law to provide free access to software. Further, it also looks into the implications of such a movement on software programming. The article divided into four parts, traces the history of the movement, thereby understanding the concept of open source software. This part also looks into the paradoxical situation whereby norms of copyright law have been used as ‘copyleft’ to counter the impediments put forward by copyright law. The second part of the article discusses increasingly important role played by the open source software in the development and dissemination of software programs. The third part discusses the long-term implications of this movement on the software industry and thereby restricting to the most famous open source license i.e. GNU GPL. The last section contains concluding remarks.

Keywords: Open source software, copyright law, GNU GPL, copyleft, Free Software Foundation

 

Journal of Intellectual Property Rights

Vol 13, May 2008, pp 225-233

 

Farmers' Rights in Conserving Plant Biodiversity with Special Reference to North-East India

Sumit Chakravarty, Gopal Shukla, Suman Malla and C P Suresh

Received 10 March 2008

Traditional plant varieties and wild species are disappearing irreversibly and this process has resulted in the disappearance of farming know-how and the genetic information is entailed. North Eastern states of India are also no exception in regards to genetic erosion. This is because the rights of communities, food producers and herbalists to these genetic resources are not recognized. Only with adequate recognition, protection and reward will these resources be conserved and appropriate compensation is granted to the communities. Central to this is the right to ‘Prior Informed Consent’, ensuring communities to know what they are agreeing to. A means must be found to reconcile conservation and development by involving local populations more closely in the decision-making process and by taking the interactions between ‘societies’ and biodiversity more fully into account. The Protection of Plant Varieties and Farmers' Rights (PVPFR) Act rightfully takes this into account. The Indian legislation is the first in the world to grant formal rights to farmers in a way that their control over genetic resources and their self-reliance in agriculture is not jeopardized. The innovative Indian legislation has opened up interesting possibilities for developing a platform for regulating breeders’ and farmers’ rights so that both are acknowledged and protected. The Indian law now recognizes the farmer not just as a cultivator but also as a conserver of gene pool and a breeder who has bred several successful varieties. Moreover, the recognition of tribal laws as tribal rights vis-à-vis farmers’ rights will address the conflicts between customary and statutory laws and regulations related to forest ownership and natural resource use while ensuring conservation of genetic resources by the local communities of the North East.

Keywords: Farmers’ right, plant biodiversity conservation, North East India

 

Journal of Intellectual Property Rights

Vol 13, May 2008, pp 234-238

 

Insurance Coverage in Intellectual Property Litigation

Jayant Kumar

Received 23 November 2007, revised 19 April 2008

The initial phase of technology–driven market was to protect their intangible property through intellectual property. However, the phase continued for around two decades and people realized the risk attached with intellectual property and also the cost of litigating their IP rights in the courts. Thus, there arose a need for risk management and enforcement of intellectual property. The most efficient risk management device available to intellectual property owners is insurance. Due to high cost of litigation, attorneys’ fee, damages or settlement in patent infringement litigation, the risk attached with patents is much more than any other form of intellectual property. This paper discusses the insurance as a mode of mitigating risk during patent litigation and its various modes.

Keywords: Intellectual property litigation, insurance, securitization

Journal of Intellectual Property Rights

Vol 13, May 2008, pp 239-244

 

Institutions and Capacity Building for the Evolution of Intellectual Property Rights Regime in India: III– Conformity and Enforcement Issues*

Sudhir Kochhar

Received 20 April 2008

India favoured sui generis option to provide IPR protection to new plant varieties rather than resorting to the more stringent alternative, i.e., the patent provision. The Protection of Plant Varieties and Farmers’ Rights Act, 2001 has been enforced in India to give effect to the TRIPS Agreement vis-à-vis national scenario and needs. This paper analyses and assesses conformity of this Indian IPR law with the international agreements, treaties and conventions, and their enforcement in the country. In conclusion, much is unclear in terms of access and benefit sharing issues in the absence, so far, of (i) unconcluded intergovernmental negotiations on genetic resources, traditional knowledge and folklore, and (ii) any Indian case law on the sui generis IPR on plant varieties.

Keywords: IPR, conformity, enforcement, PPV&FR Act, PVP, access and benefit sharing

 

*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, May 2008, pp 245-252

 

 

IP Case Law Developments*

Zakir Thomas

Received 17 April 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 January 2008 issue of the Patents and Trade Marks Cases (PTC), a leading case law reporter on intellectual property laws.

Keywords: Copyright, case law reports, originality, literary works, derivative works, compilation, patents, inventive step, economic significance, traditional knowledge, shape of tablets, colour of tablets

*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