Journal of Intellectual Property Rights

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                NUMBER 3

MAY 2007

CODEN: JIPRFG 12(3) 289-386 (2007)


ISSN: 0971-5544







Balance of Competition and Intellectual Property Laws in the Indian Pharmaceutical Sector


        Abhimanyu Ghosh and Deep Chaim Kabir



Copyleft: An Alternative to Copyright in Computer Software and Beyond


        Nirmalya Ganguly



Doctrine of Equivalents: Scope & Limitations


        Divya Patodia, Shashank Jain and Uphar Shukla



Managing Intellectual Property Rights for Better Transfer and Commercialization of Agricultural Technologies


        H S Chawla



The Current Indian Patent Regime and the Scope of Protection in Agricultural Biotechnology: Some Issues and Considerations


        Suresh Kumar K



IP Case Law Developments

        Zakir Thomas



Literature Review






· Profiting from innovation and the IP revolution · Shifting the paradigms for software protection · Plant variety protection in developing countries · An international review of nanotechnology regulation · Developing the curriculum for collaborative IP education
· Commercializing open source software · Economic growth with imperfect protection of IPR · IP law in Southeast Asia · Strategic integration of knowledge in Indian pharmaceutical firms · The Plenary power of states to infringe IP under the cloak of sovereign immunity






· Re-examination to strengthen patent post-grant opposition · Patent systems for encouraging innovation · Metabolite labs and patentable subject matter · Does Schering v Geneva endanger innovation within the pharmaceutical industry? · An exploratory comparison of inventor-authors with their non-inventing · Patents and biopharmaceuticals in India · The problems of ethnic genetic testing patents · Microsoft liable for patent infringement of software installed overseas
· Effects of global patent protection in pharmaceuticals in India · Collective intelligence, open review, and patent reform · Experimental study on the hindsight · The disclosure of source code in software patents · Patent reform and differential impact · Ants, elephant guns, and statutory subject matter · Equitable concerns of ebay v Mercexchange · The patentability of enantiomers in the pharmaceutical industry · International patent strategies for individual inventors


Copyright and Trademark



· Incentive and expectation in copyright · Copyright infringement in a borderless world
· Protecting computer software · File sharing, copyright, and the optimal production of music · Orphan works, abandonware and the missing market for copyrighted goods · Recent developments in copyright law · Trends in protection for informational works under copyright law · The ‘inducement to infringe’ under patent law · The WIPO ‘Internet treaties’
· Regulating access to databases through antitrust law · Non-contractual licensing under Russian copyright law · Recent developments in trade secrets law




IPR News



IPR News — General



· UK Intellectual Property Office · Bilateral cooperation in IPR · Single EU-wide patent system · Malta joins EPO



Patent News



· Patent prosecution highway · Tax exemption on patent royalties · First accelerated patent
· Israel stands second · Stem cell patent · Broadcom’s 2,000th US Patent · Increase in patenting in India · Legislation on patent rights



Copyright and Trademark News



· Higher royalties for Net music · Sanctions for copyright violations · Review of creative works · Lighting fixtures: Copyrightable · Copyright levies · Iraqi copyright law · Copyright law in Australia · Vietnam’s copyright memorandum · ISKCON fined for copyright violation · Singapore Treaty on Trademarks



Key Patents



· DNA vaccines · Authentication method · Human microRNAs · Lock-free database technology · CD83 protein · Data protection and instantaneous application availability · Creatine
· Novel nanotechnology platform · Mobile usage controls · HMGB1 protein
· Vaccine technology · Metal matrix composite · NuBiotics · Simulated interactive web page
· Online mapping and real estate archiving tools · Patent rights for epibase
· Immunoassay device · SPY intra-operative imaging system · Inverter driving solution
· Digital 3-D photography · Electronic flight system ·Management integration with predictive dialers · SNX-1012: Transmucosal agent · Device-to-device software transfer
· New power supply · Compression of digital images · Telecommunication networks
· Multiple ATD™ gel formulations · ARA (arachidonic acid) · Font identification technology · Video operator services



Book Review



Creating Selves –Intellectual Property and the Narration of Culture


Johanna Gibson



Intellectual Property Rights: Patents, Plant Variety Protection and Biodiversity


H S Chawla and A K Singh



Law Relating to Intellectual Property


B L Wadehra








Author Index


Chawla H S                                                 330


Ganguly Nirmalya                                       303

Ghosh Abhimanyu                                      293


Jain Shashank                                              314


Kabir Deep Chaim                                       293

Patodia Divya                                              314



Shukla Uphar                                               314

Suresh Kumar K                                          341



Thomas Zakir                                              349


Keyword Index



Agricultural biotechnology                  330, 341


Commercialization                                       330

Competition law                                          293

Copyleft                                                      303

Copyright                                                    303

Creative Commons Organization                303


Doctrine of Equivalents                               314


Free Art License                                          303

Free Software Foundation                           303


GNU project                                               303

General Public License (GPL)                     303


Intellectual property regime                        293

Licensing                                                      330


Mailbox provisions                                     341


Open Source Initiative                                 303


Patentability                                                341

Patenting                                                      330

Pharmaceutical industry                              293

Proprietary software                                   303

Prosecution history estoppel                      314


Seed patenting                                             330

Source code                                                  303


Technology valuation                                  330


TRIPS Agreement                                       341


Journal of Intellectual Property Rights

Vol 12, May 2007, pp 293-302


Balance of Competition and Intellectual Property Laws in the Indian Pharmaceutical Sector

Abhimanyu Ghosh and Deep Chaim Kabir

Received 26 September 2006, revised 28 March 2007

The intellectual property regime in India grants a certain degree of monopoly rights, while the competition law tries to control such monopolies, requiring a balance between these two, while judging the parameters of developmental needs and economic situation, and needs and demands of the domestic scenario. The paper addresses the questions: (a) whether this balance is necessary? (b) whether the two regimes are balanced well? (c) whether other external measures are required?, and a comparison of all these with the international standard.

Keywords: Intellectual property regime, competition law, pharmaceutical industry


Journal of Intellectual Property Rights

Vol 12, May 2007, pp 303-313


Copyleft: An Alternative to Copyright in Computer Software and Beyond

Nirmalya Ganguly

Received 29 November 2006, revised 9 April 2007

The paper deals with the development, which has provided a new perspective towards looking at traditional copyright law, viz. the institution of copyleft. By highlighting the myriad facets of copyleft licenses (typified by the GNU General Public License, the brainchild of Richard Stallman), the author illustrates the fact that the notion of copyleft bases itself upon the institution of traditional copyright whilst aiming to eliminate many of the ‘vices’ that are said to plague the latter. The paper examines intricacies of copyleft licenses, focussing in detail upon the criticisms levelled against it by proponents of proprietary software (essentially, business versus liberty argument), as well as contrasting it with open source software, another crusader in the war against established copyright law. It is author’s conviction that although its ambit is yet to be canvassed in a court of law, copyleft is surely a wake-up call for proprietary software manufacturers; it would encourage further research and innovation by the latter. Moreover, in order to pose a substantial challenge to copyrighted software, the bickering between the proponents of copyleft and open source software will have to cease. Significantly, copyleft licenses have of late extended to spheres beyond software as well, primarily in the arts (where licenses can be custom-made). Although it would be presumptuous to speak of copyleft as the death-knell of conventional copyright, it can surely serve as an alternative, and such a situation would only benefit society in general.

Keywords: Copyleft, copyright, General Public License (GPL), GNU project, proprietary software, source code, Free Software Foundation/ Open Source Initiative, Creative Commons Organization, Free Art License.



Journal of Intellectual Property Right

Vol 12, May 2007, pp 314-329


Doctrine of Equivalents: Scope & Limitations

Divya Patodia, Shashank Jain & Uphar Shukla

Received 5 February 2007, revised 16 April 2007

The scope of a patent is not limited to its literal terms, but instead embraces all equivalents to claims described in a patent application. Limiting the scope of a patent to its literal elements, would allow a competitor to make an unimportant or insubstantial change to the patented invention and thereby defeat the patent. The doctrine of equivalents is an important tool of law (developed by the courts of United States) to determine infringement in cases of non-literal infringement. The doctrine removes unfairness that could result from an overemphasis on the literal language of patent claims, and thereby affords protection accorded to the patent. The doctrine strikes a balance between a fair scope for the patent and the notice the patent provides for the public, along with a balance between incentives to innovate and costs of uncertainty.

This paper analyses the scope of the doctrine in the light of the different tests and legal bars, developed by courts. The paper also comments upon the problems associated with the doctrine and the significant changes brought about to it, by the landmark judgment of the Supreme Court of United States in Festo Corp v Shokestsu Kinzoku Kogyo Kabushiki Co.

Keywords- Doctrine of Equivalents, Prosecution history estoppel



Journal of Intellectual Property Rights

Vol 12, May 2007, pp 330-340


Managing Intellectual Property Rights for Better Transfer and Commercialization of Agricultural Technologies

H S Chawla

Received 27 January 2007, revised 21 March 2007

Intellectual property rights (IPR) have become important in the face of changing trade environment and collapsing of geographical barriers to trade among nations due to globalization. Patent policies have historically been enacted to further national interests. Thus, developing countries in Asia must establish their own IPR regime, which is compatible with the framework of their constitution and as per the TRIPS regulations. Recent developments in agricultural technologies and biotechnology have opened new doors for seed developers and marketers. However, innovations in agricultural technologies and agricultural biotechnology cannot be treated at par in investments in R&D and innovation risks. The revolution in biotechnology and intellectual property protection began in the developed world. The benefits of agricultural biotechnology will proliferate in the developing countries only if they understand and manage IPR properly. When the rights to existing patents are needed to practice a technology, dominant and overlapping patent claims must be examined because it can affect the right to use downstream innovations. Hence, management and commercialization of these technologies must be considered seriously by developing countries in Asia, as the perceptions by publicly-funded institutions are not only driven by economic considerations but also depend on considerations of social obligations, political objectives and will of a nation. In the agricultural research sector, public research institutions have the responsibility to see research through to commercialization since the negative effects of IPR have been most apparent in the agricultural sector. Various options for licensing of agricultural technologies and incentive schemes for innovation related researches have been discussed in the paper.

Keywords: Patenting, agricultural biotechnology, seed patenting, licensing, commercialization, technology valuation


Journal of Intellectual Property Rights

Vol 12, May 2007, pp 341-348


The Current Indian Patent Regime and the Scope of Protection in Agricultural Biotechnology: Some Issues and Considerations*

Suresh Kumar K

Received 15 February 2007, revised 3 April 2007

The formation of WTO and the TRIPS Agreement under its ambit had a major influence on the Indian patent regime. The Patents Act, 1970, underwent three amendments that interalia did away with discriminative restrictions in protection with respect to some technology disciplines and thus paving way for a product patent regimes in areas like medicine, drugs and chemicals. A new definition of the word ‘invention’ made it possible to protect products in technology areas including biotechnology. The article covers the patentable subject matter in the field of agricultural biotechnology and identifies future needs in IP management in the country. Analyses of patent applications filed in the area of agricultural biotechnology since 1995 and some of the patents granted in the area are also briefly discussed.

Keywords: TRIPS Agreement, agricultural biotechnology, mailbox provisions, patentability



Journal of Intellectual Property Rights

Vol 12, May 2007, pp 349-353



IP Case Law Developments

Zakir Thomas


Dear Readers,

This is an experimental column on case law developments, which will examine a few interesting cases with emphasis on how principles of law are applied to each individual case. Give us your views regarding this feature as well as feedback on the other regular features in the journal. Please send your feedback to the following email id.