Journal of Intellectual Property Rights

 

http://www.niscair.res.in

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VOLUME 14

NUMBER 2

MARCH 2009

CODEN: JIPRFG 14(2)105-198 (2009)

 

ISSN: 0971-7544

 


CONTENTS

 

Articles

 

 

Fashion Copying and Design of the Law

113

            Pranjal Shirwaikar

 

 

Patenting Trends in Marine Bioprospecting based Pharmaceutical Sector

122

            Ypsita Demunshi and Archana Chugh

 

 

Patenting of Internet and e-Commerce: An International View

131

            Subhasis Saha

 

 

Patent Activity by Patent Agents in India

142

            Manisha Shridhar , Sudhir K Jain and Vinayshil Gautam

 

 

Trends in IT Patents filed from India: An Analysis

149

            Yogesh Suman , Nishy P, V K Gupta

 

 

IP Case Law Developments

153

            Zakir Thomas

 

 

Technical Notes

 

 

Indian Patents Output in Nanotechnology

164

            V K Gupta

 

 

Opinion

 

 

TRIPS, WTO and IPR - Impact on Developing Countries

166

            M D Nair

 

 

Literature Review

 

 

IPR―General

 

168

● After-the-event insurance and conditional fee agreements in defending weak IP claims ● The biotechnology sector and the judicial misgivings of a General Court ● Human rights and TRIPS exclusion and exception provisions ● Copyright and trademark protection for product designs The native American tribal insignia database The contract in the trade secret ballroomIP enforcement ● Data scraping ● The traditional medicines predicament

 

 

Patents

 

170

21st century patent practiceWeak overseas protection for American software patentsThe uneven application of Twombly in patent casesRationale and scope of patent attorney privilege Keyword-based patent map approach ● Restricting expressed sequence tag patenting ● The battle over global drug markets ● Reducing uncertainty in the patent application procedure ● US patent policy and the criterion of non-obviousness ● Have university knowledge flows narrowed? ● Patent information in ItalyHarmonizing international law of business method and software patents ● Visualization of patent analysis for emerging technology ● KSR and standards of inventive step ● Service-oriented Technology Roadmap


 

Copyright and Trademark

 

175

● Can YouTube survive a copyright infringement lawsuit?● A Canadian copyright narrative ● Cross-border collective management and principle of territoriality ● The Trademark Dilution Revision Act ● The new consumer and business protection regulations ● Countering the unfair play of DRM Technologies ● Applying collective marks to create clusters ● Security of a copyright protection scheme based on visual cryptography ● Poaching profits ● The reform of copyright protection in the networked environment ● File-sharing and downloading: Goldmine or minefield? ● Likelihood of dilution by blurring

 

 

IPR News

 

 

IPR News—General

 

179

● DIFC releases IPL Draft for public consultation ● US claims win over China at WTO ● CII-DIPP nationwide awareness campaign on IPR ● Thai King Bhumibol Adulyadej receives UN award ● Thai upgrade to US ‘Watch List’ ● Taiwan to push for signing of IPR/MOU with ASEAN countries ● IP protection and enforcement manualUnion government on modernization drive ● Release of documents on IP Enforcement Treaty blocked ● Chinese Academy of Sciences launches IPR website ● IPR issues stall Bhel-NTPC project ● UK-China IP deal to help business exploit new ideas ● Taiwan removed from IP Protection Watch List ● Kerala’s ‘Mission IPR’ nipped in the bud? ● Brazil slams EU for seizure of generic drugs ● EU-China Agreement on IPR

 

 

Patent News

 

184

● UK IPO launched two new patent databases ● China grants more patents in 2008 ● IBM: Most patent filer in 2008 Ginger can not be patented in Europe now ● China files 8 times higher patent applications than India ● Waves of changes in Chinese patent law and regulations

 

 

Copyright and Trademark News

 

186

US to work with Tanzania to protect artists` works Chikankari GI ● COSOTA urges artistes to register work ● Jordan National Library deals with 2347 copyright infringements ● New business toolkit to fight against counterfeiting and piracy ● Educational reprints of Nazi newspapers seized ● Govt open to changes over copyright law ● WCT accession by the Republic of Tajikistan ● MAN unit awarded $2.9 million copyright damages by China CD sealing system in copyright department

 

 

Key Patents

 

189

● Patent for nanocrystals ● Screening process for antiviral therapeutics ● Humidity sensor patent ● Targeted analgesic product Diractin ● Patent for composition, delivery and use of gene-based interferon-Omega ● Patents on GPS ● Patent for development in VBG technology ● Tackling the mosquito menace

 

 

 

 

Book Review

 

 

The Touchstone Effect – The Impact of Pre-grant Opposition on Patents

192

            Feroz Ali Khader

 

 

Patenting Lives—Life Patents, Culture and Development

193

            Johanna Gibson

 

   

 

 

 

                                        Author Index

Chugh Archana

122

Demunshi Ypsita

122

Gautam Vinayshil

142

Gupta V K

149, 164

Jain Sudhir K

142

Nair M D

166

Nishy P

149

Saha Subhasis

131

Shirwaikar Pranjal

113

Shridhar Manisha

142

Suman Yogesh

149

Thomas Zakir

153



 

 

 

Journal of Intellectual Property Rights

Vol 14, March 2009, pp 113-121


 

Fashion Copying and Design of the Law

Pranjal Shirwaikar

25, River Drive South, Apt 507, Jersey City, NJ 07310, USA

Received 8 October 2008, revised 12 February 2009

The paper provides an overview of the existing arguments towards grant of property rights in fashion creations, including a historic perspective of the fashion industry, piracy paradox as explained by Professor Raustiala and Professor Sprigman, and the current global fashion industry. In doing so, the article questions social cultural function of fashion as a subset of IP policy. As an integral constituent of ‘negative spaces’, fashion creations stand largely unprotected. The article takes into account development of American and European jurisprudence to propose a regime for protection of fashion creations in India.

Keywords: Piracy paradox, fashion industry, intellectual property, DPPA, trademark, FFI

 

 

Journal of Intellectual Property Rights

Vol 14, March 2009, pp 122-130

 

 

Patenting Trends in Marine Bioprospecting based Pharmaceutical Sector

Ypsita Demunshi and Archana Chugh†

Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology , Kharagpur, West Bengal 721 302

Received 14 December 2008, revised 24 February 2009

The ‘marine world’ boasts of innumerable life forms, each with a unique characteristic, making its genetic make-up the most sought after field for marine researchers. An array of research arenas and products ranging from cosmetics to pharmaceuticals are now harnessed from marine bioresources and patented for generating high revenues. Evolving intellectual property regime provides an insight into the current research trend of this interesting and challenging field. Patents based on six commercially important marine organisms were chosen for the patent landscape study. The present study demonstrates that pharmaceuticals is the primary field of application followed by nutraceuticals. Diseases ranging from cancer to AIDS are considered curable using these marine bioresources and seaweeds, jellyfish are common dietary constituents. The study also indicates that the number of PCT filings far exceeds the number of patents filed in regional patent offices. In the study of the International Patent Classification (IPC), A61K and A23L emerged as the major codes under which patents have been filed. Another facet of the investigation analysed the present patenting scenario in India in the field of marine bioresource based pharmaceutical sector.

Keywords: Intellectual property rights, marine biodiversity, patent, pharmaceutical application

 

 

Journal of Intellectual Property Rights

Vol 14, March 2009, pp. 131-141

 

 

Patenting of Internet and e-Commerce: An International View

Subhasis Saha

Hidayatullah National Law University, Civil Lines, Near Raj Bhavan, Raipur, Chattishgarh, 492001

Received 24 September 2008, revised 13 February 2009

The large growth of the software industry has lead to an increase in the desire to protect software-related inventions.
e-Commerce basically is doing business using computer systems and software, the rise of e-Commerce has led to a large increase in the number of patents on computer-implemented methods of doing business. Keeping in mind that software patents are a relatively new phenomenon, this paper deals with (i) the legal issues concerning patenting of Internet and
e-Commerce and (ii) certain pitfalls in regard to e-Commerce patenting. The paper also touches upon various views of the US courts in regard to e-Commerce patenting.

Keywords: Internet, e-Commerce, patent, software, web page, computer

 

 

Journal of Intellectual Property Rights

Vol 14, March 2009, pp 142-148


 

Patent Activity by Patent Agents in India

 

Manisha Shridhar

Room No 329, Armsdale Building, Himachal Pradesh Secretariat, Shimla, Himachal Pradesh

and

Sudhir K Jain and Vinayshil Gautam

Department of Management Studies, Indian Institute of Technology , Delhi, Hauz Khas, New Delhi 110 016

Received 28 September 2008

Post TRIPS and WTO India’s journey to intellectual property compliance has not been an easy one. In particular patent reform has been triggered by panel rulings against India in the dispute settlement body that articulate the ambivalent approach followed by the government.1 As there is some evidence of the tumultuous activity at the government level2, it is worthwhile to examine patent activity effectively taking place. A patent is granted by the national patent office as patent law is territorial in its application while the World Intellectual Property Organization (WIPO) administers Patent Cooperation Treaty (PCT) provides for the filing of a single international patent application which has the same effect as national applications filed in several designated countries. Patent activity may be examined in a number of ways: Study of industry that is involved in patenting, information from the patent office, etc. In this paper, an analysis of the activity of patent agents’ has been undertaken to determine the extent and type of patent activity taking place in the country.

Keywords: Patent, TRIPS, WTO, PCT, patent agent, patent activity

 

 

Journal of Intellectual Property Rights

Vol 14, March 2009, pp 149-152


 

Trends in IT Patents filed from India: An Analysis

Yogesh Sumana †, Nishy Pb, V K Guptaa

aNISTADS, K S Krishnan Marg, Pusa, New Delhi 110 012

bNISCAIR, 14 Satsang Vihar Marg, New Delhi 110 067

Received 10 October 2008, revised 11 February 2009

The paper analyses trends in patents filed/owned from India in the area of information technology (IT). The Delphion Database was searched for finding the patents filed/owned in IT where assignee address contains string “India”. This also includes patents filed by foreign companies operating through their centres in India. These patents were then analysed on the basis of nature of the inventive activities and assignee category. It was found that foreign private companies were leading in the patenting activities. Among government institutes and public sector industry CSIR emerged as leading patent owner/filer.

Keywords: Information technology, patents filed/owned, patent assignee


 

Journal of Intellectual Property Rights

Vol 14, March 2009, pp 153-163

 

 

IP Case Law Developments*

Zakir Thomas

CR D II-12, Pandara Park, New Delhi 110 001

Received 23 February 2009

This article attempts to summarize some of the recently reported cases on intellectual property law to enable readers to understand how the courts have applied principles of intellectual property law to actual IP disputes. In this article, widely discussed cases on, trademark law, copyright law and patent law are covered.

Keywords: Trademark, trademark on games, copyright assignment, originality, patents, Section 3(d) of Indian Patent Act

 

*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


 

Journal of Intellectual Property Rights

Vol 14, March 2009, pp 164-165

 

 

Indian Patents Output in Nanotechnology

V K Gupta

National Institute of Science, Technology and Development Studies, Dr K S Krishnan Marg, New Delhi 110 012

Received 5 February 2009

  The potential benefits of nanotechnology have been so compelling that several countries have taken initiatives to create capacity for the development of new technologies and products in the field of nanotechnology. India launched its national nanotechnology initiative in 2000. This technical note analyses Indian contributions in the field of nanotechnology as reflected in the patents output.

Keywords: Nanotechnology, patent, Delphion database

 

 

Journal of Intellectual Property Rights

Vol 14, March 2009, pp 166-167

 

 

TRIPS, WTO and IPR - Impact on Developing Countries

M D Nair

A-11, Sagarica, 15, 3rd Seaward Road , Valmiki Nagar, Thiruvanmiyur, Chennai 600 041

Received 9 February 2009

  The World Trade Organization (WTO) was set up in 1995 and has been the custodian of  all matters related to the implementation of the TRIPS Agreement endorsed by the 152 member countries.  WTO is therefore the most important body which monitors and influences working of global intellectual property rights protection in all the member countries. Thus starting from March 2009 there  will be an opinion column on the issues related to WTO, TRIPS and IPR

.