Journal of Intellectual Property Rights

VOLUME 7

NUMBER 4

JULY 2002

 

CONTENTS

Articles

 

High Temperature Superconductivity: Challenges in IPR Regime and Strategies for National Initiatives

295

J Koshy, R Jose, Asha M John, J K Thomas, S Suresh Kumar and
A D Damodaran

 

 

 

Intellectual Property Rights and the Third World

308

  R A Mashelkar

 

 

 

The Protection of Plant Varieties and Farmers’ Rights Act: From Legislation to Implementation

324

  M S Swaminathan

 

 

 

A Study of Patenting Activity in Aloe vera

330

  Bharvi Dutt

 

 

 

TRIPS and Parallel Imports – Impact on Drug Prices

342

  M D Nair

 

 

 

Literature Review

 

IPR—General

346

· Remedies under WTO law · Which countries protect IP? An empirical analysis of software piracy · Digital technology boomerang · Independent contractors and computer crimes · Impacts of information technology on society · Searching combinatorial chemistry―an EPO perspective · Misuse defense and IP litigation · Prohibition of parallel imports through IPR
· CBD—exploring the creation of a mediation mechanism · New sharing ethic in cyberspace · Challenges of law in cyberspace - fostering the growth and safety of e-commerce · IP and the valuation of biotechnology · IP: when is it the best incentive system? · Analysis of current state of trade secret law
· Inventors and pirates: creative activity and IPR · Free trade and protection of IPR · TRIPS and capability building in developing economies · Intellectual property issues in e-learning · IP infringement in global networks · IPR issues in biotechnologies in India and other developing countries · Emerging IPR regime in electronics and information technology · IP, traditional knowledge and folklore: WIPO’s exploratory programme

 

 

 

Patents

354

· How to count patents and value intellectual property · Patent data as indicators of technological development · Patents on parts of the human body—salient issues under EC and WTO law · Patents, licensing, and market structure in the chemical industry · How stronger patent protection in India might affect the behaviour of transnational pharmaceutical industries? · Using patents in growth models · Non-obviousness—a vital criterion of patentability · Gene therapy and patents

 

 

 

Copyright and Trademark

357

· Copyright, copy protection and feist · Post-WCT copyright laws and the right to research · Who's liable for cyberwrongs? · Creative destruction of copyright · Economics of IP protection for software: the proper role for copyright · Electronic self-help software repossession · Crossing virtual lines: trespass on the Internet · Indian copyright law and digital technologies
· Protection of well-known, unregistered marks in Europe and the United States · Analysis of trademark rights in domain names across top-level domains · Present status of trademarks administration in India · Cyber squatting: blackmail on the information superhighway

 

 

 

IPR News And Notes

 

IPR News—General

361

· India again put on `Special 301’ watch list · India becomes member of IGPA · Beijing tackles Olympic IPR violations · Adisnews—new pharmaceutical file · Primer on intellectual property insurance · Keltron to set up IPR centre at Thiruvanathapuram · Mistral glides into intellectual property space · Pune University 'Centre of Excellence' for biotechnology, bioinformatics, IPR laws

 

 

 

Patent News

366

· Boom in international patent filing · Korean abstracts now included in Derwent World Patents Index · Derwent wins USPTO contract for translating patents into English · Published US patent applications now in CLAIMS databases on dialog · Lok Sabha passes Patents Bill · Patent prop for Ranbaxy · Samsung under US patent investigation · LED inventor accused · British library outlines its digital vision for patent collections · Smart plastics‘remember’their shape · Swiss industrial property on Internet · Patent Bill would affect foreign investment in pharma · Defensive publishing
· Protest against patent on cloning · Microorganisms patenting · Cloning patent issues grow

 

 

 

Copyright and Trademark News

374

· After Napster, industry sues Audiogalaxy · Filing an international application for trademark · Britannia will not phase out Kwality biscuits brands · Nestle India clamps down on brand imitations

 

 

 

Key Patents

377

 

 

· Brazil to make generic AIDS drug · Less data for videoconferencing
· Improved process for the preparation of ethanol · Process for paper coating
· Rice husk ash based domestic water filter · Gene reassembly patent
· Nuclear transfer patent · Patent granted for gene therapy · Antex receives three new international patents · Novel method for diagnosing early stage cancer · Wearable computers · Plant cutting technique patented

 

 

 

Technical Notes

380

· Intellectual property insurance

 

 

 

Conference Reports

382

· Management of Intellectual Property Rights in Public- Private Partnership

 

 

 

 

Journal of Intellectual Property Rights

Vol 7, July 2002, pp 295-307

 

High Temperature Superconductivity: Challenges in IPR Regime and Strategies for National Initiatives

 

J Koshy, R Jose, Asha M John, J K Thomas, S Suresh Kumar and A D Damodaran

 

 

Superconductivity offers unique opportunities for a developing country like India to be a global leader because of the availability of trained manpower resources and the scientific infrastructure. This paper describes briefly the developments made in the area of high temperature superconductivity (HTS) for the last 15 years and the challenges in IPR regimes. The strategies adopted by countries like US, Japan and Germany in the development and commercialization of HTS are described. Comparison of time line to commercialization of HTS with other technologies like semiconductor, digital network and fibre optics is presented. Importance of national initiatives at governmental and industrial levels, and strategical alliances involving industry, research organizations and academics for superconductor technology development is highlighted

 

 

 

Journal of Intellectual Property Rights

Vol 7, July 2002, pp 308-323

 

Intellectual Property Rights and the Third World

 

R A Mashelkar

 

 

Issues of generation, protection and exploitation of intellectual property (IP) are assuming increasing importance. The new IP regimes will have wide ranging socio-economic, technological and political impact. As per the obligations under the Trade-Related Aspects of Intellectual Property Rights (TRIPS), all the members of World Trade Organization (WTO) are supposed to implement national systems of intellectual property rights (IPR) following an agreed set of minimum standards. However, there is an increasing feeling that harmonization is demanded from those that are not equal, either economically or institutionally. The major concerns of the Third World about such harmonization and the new challenge it faces in diverse areas of intellectual property protection are discussed and some suggestions about the way ahead are made. The discussion includes the need for a fair play in technology transfer, creation of ‘favourable economics’ of essential medicines from the point of view of the Third World, protection of traditional knowledge, etc. The creation of Traditional Knowledge Digital Library (an essentially Indian initiative) and linking it to the International Patent Classification (IPC) system through a Traditional Knowledge Resource Classification (TKRC) system is an important conceptual step forward. The possible models for material transfer and benefit sharing when products are created based on community knowledge are also discussed. Other discussion includes the challenge of bridging the divide between the Third World and other developed nations, with special emphasis on intellectual property information sharing, capacity building with creation of appropriate physical and intellectual infrastructure and awareness building. It is argued that the third world should negotiate a new ‘TRIPS plus’ which means ‘TRIPS plus equity and ethics’ Issues of generation, protection and exploitation of intellectual property (IP) are assuming increasing importance. The new IP regimes will have wide ranging socio-economic, technological and political impact. As per the obligations under the Trade-Related Aspects of Intellectual Property Rights (TRIPS), all the members of World Trade Organization (WTO) are supposed to implement national systems of intellectual property rights (IPR) following an agreed set of minimum standards. However, there is an increasing feeling that harmonization is demanded from those that are not equal, either economically or institutionally. The major concerns of the Third World about such harmonization and the new challenge it faces in diverse areas of intellectual property protection are discussed and some suggestions about the way ahead are made. The discussion includes the need for a fair play in technology transfer, creation of ‘favourable economics’ of essential medicines from the point of view of the Third World, protection of traditional knowledge, etc. The creation of Traditional Knowledge Digital Library (an essentially Indian initiative) and linking it to the International Patent Classification (IPC) system through a Traditional Knowledge Resource Classification (TKRC) system is an important conceptual step forward. The possible models for material transfer and benefit sharing when products are created based on community knowledge are also discussed. Other discussion includes the challenge of bridging the divide between the Third World and other developed nations, with special emphasis on intellectual property information sharing, capacity building with creation of appropriate physical and intellectual infrastructure and awareness building. It is argued that the third world should negotiate a new ‘TRIPS plus’, which means ‘TRIPS plus equity and ethics’.

 

 

 

Journal of Intellectual Property Rights

Vol 7, July 2002, pp 324-329

 

The Protection of Plant Varieties and Farmers’ Rights Act: From Legislation to Implementation

 

M S Swaminathan

 

 

Paper discusses as to how to achieve the goals of the Protection of Plant varieties and Farmers’ Rights Act, 2001 and of the FAO’s International Treaty on Plant Genetic Resources for Food and Agriculture. Makes the major recommendations relating to national and global issues. Outlines the rules relating to the implementation of the Protection of Plant Varieties and Farmers’ Rights Act, 2001.

 

 

 

Journal of Intellectual Property Rights

Vol 7, July 2002, pp 330-341

 

A Study of Patenting Activity in Aloe vera

 

Bharvi Dutt

 

The article studies Aloe vera based patents searched in the United States Patent and Trademark Office (USPTO) database, European Patent Office (EPO) database and EKASWA database of the patents notified for opposition of the Technology Information, Forecasting and Assessment Council (TIFAC), India. Out of the total 102 patents found in the databases, more than 60% of the patents were owned by the US inventors and firms, followed by China, Korea and Germany, which had less than 10 patents each. India did not have any patent. The maximum number of patents pertained to skin care and treatment of skin diseases, followed by those having a wide range of pharmaceutical uses, extraction and isolation of chemical substances, industrial processes, food and beverages, and machinery and equipment used for processing of Aloe vera plant. There is no domination of any company or group of companies in patenting.

 

 

Journal of Intellectual Property Rights

Vol 7, July 2002, pp 342-345

 

TRIPS and Parallel Imports — Impact on Drug Prices

 

M D Nair

 

 

In the ‘parallel imports’ products are made and marketed by the patent owner (or trademark- or copyright-owner, etc.) in one country and imported into another country without the approval of the patent owner. The legal principle here is ‘exhaustion’, the idea that once a company has sold its product, its patent is exhausted and it no longer has any rights over what happens to that product. It is a method of ensuring affordable access to essential goods. The paper discusses in detail the various provisions of TRIPS related to parallel imports and how it is being dealt with in USA, European Union, UK, Japan and Australia, and outlines the impact of parallel imports on prices. Some suggestions for enforcing ‘exhaustion regime’ in India are given.