Journal of Intellectual Property Rights



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MARCH 2007

CODEN: JIPRFG 12(2) 191-288 (2007)


ISSN: 0971-5544







Is the Future of Software Development in Open Source? Proprietary vs Open Source Software: A Cross Country Analysis


        K D Raju



Rationale and Prospects of the Protection of Geographical Indication: An Inquiry


        Lisa P Lukose



Intellectual Property and Competition Laws: Jural Correlatives


        Shashank Jain and Sunita Tripathy



A Study of Indian and US Trademark Law Relating to the Effect of ‘Non-Use’ of a Trademark


        Thilini Kahandawaarachchi



Changing Dynamics of the Patent Regime: An Economic Understanding


        Kaushik Laik and Rohit Raj



IP Case Law Developments


        Zakir Thomas




Literature Review



IPR — General



· Blackbeard or Albert Schweitzer: Reconciling biopiracy · The rise and fall of cross-border jurisdiction and remedies in IP disputes · Understanding prior art ·The impact of the new world order on economic development · The piracy paradox · Masking effects in the quality assessment of coded images · A robust image watermarking technique based on quantization noise visibility thresholds · IP rights and quality improvement · The Janus face of the appropriability regime in the protection of innovations · Regulating ISS · Timing modeling of latch-controlled sub-systems · Annual review of developments in EU law
· Internet domain names and the interaction with IP · IP organizations and pharmaceutical patents in Africa · TRIPS and the pharmaceutical industry · A taxonomic view of illegal transfer of technologies · IP protection in the natural product drug discovery, · Biodiversity, biopiracy and benefits · Intellectual property system in China · Creativity and innovation through multidisciplinary and multisectoral cooperation · The era of openness · Developing knowledge innovation culture of libraries · Intellectual capital and financial returns of companies · Adaptive IP strategies in China · Product counterfeiting, non-consensual acquisition of technology and new product development · Between Chinese culture and the rule of law· Offshore technology outsourcing · The intellectual capital performance of the Indian banking sector









· Patenting of medical methods · The proper scope of patentability in international law · Is cross-border relief in European patent litigation at an end?· Abouttrivial’ software patents
· An equilibrium analysis of patent infringement damages · Contributory patent infringement
· Vietnam patent law



Copyright and Trademark



· International copyright law and litigation · The orphan works dilemma and museums · Sui generis database protection · Digital technology · Sui generis database protection: Its means for EU and US · Whose trademark rights? · Deceit and immorality in trademark matters
· Enforcement of community designs by Alicante courts · Why do we have trade secrets?
· International classification class headings · IP protection and enforcement at major events
· Can genetically modified foods be considered as a dominant design? · Network effects in the Governance of strategic alliances




IPR News



IPR News—General



· UK Patent Office offers IP audits · EU urged to support India in drug-patent battle · Indo-US tie-up on IPR · India: Premier provider for generic drugs · Indian proposal for ISA



Patent News



· IBM tops patent list · Record year for patent filings · Free worldwide patent search portal
· Patent -phobic judges · Steady flow of patent applications in India · Indian engineer objects to US patent grant · Moonwalk patent · Genetically modified Thai papaya · Terminator potato · Combo pills · AIDS drug abandoned · Service level agreements




Copyright and Trademark News




· Chinese copyright piracy faces US threat · Bilateral copyright protection · Copyright law in New Zealand · Protect online copyrights · Japan and US efforts against copyright piracy
· India joins Creative Commons · Disney loses Winnie the Pooh · Candy war · Trademark for 'Obama bin Laden'· Pak to contest Indian patent on Pashmina



Key Patents



· Microbead display technology · Broadcast bridge technology · Laser-based runway safety system · Patent for leather · Keratin from wool · ChemGenex patent · Medical record technology · Treatment of bowel syndrome · Anti-cancer patent · Digitally watermarked music · Network configuration device · Mini-chromosome rights · Animated Toon-Ups
· Optical fiber · Alternative plant substrate · GelSite® polymer · Nanoparticles to treat drug overdoses · Automated detection of tumor · Angiogenic protein · Novel acne product
· Nanospheres encapsulating therapeutic proteins · Digital watermarking



Book Review



Managing Intellectual Property


            Vinod V Sople



Intellectual Property Law


            Lionel Bently and Brad Sherman





Author Index



Jain Shashank 224

Kahandawaarachchi Thilini 236

Laik Kaushik 244

Lukose Lisa P 212

Raj Rohit 244

Raju K D 199

Thomas Zakir 251

Tripathy Sunita 224


Keyword Index



Abuse of dominance 224

Antitrust law 224

Broad patent 244

Competition law 224

Deadwood 236

Doctrine of colourable imitation 244

Doctrine of Equivalence 244

Essential Facilities Doctrine 224

Fence post 244

Geographical indication 212

Incentive to invent theory 244

Intellectual property rights 199, 224

IP regime 224

Lisbon Agreement 212

Madrid Agreement 212

Mergers 224

Narrow patent 244

Non-use 236

Open Source Software 199

Paris Convention 212

Patent breadth 244

Patent regime 244

Proprietary software 199

Trademark 236

TRIPS Agreement 212

Use 236

Wines and spirits 212


Journal of Intellectual Property Rights

Vol 12, March 2007, pp 199-211


Is the Future of Software Development in Open Source?
Proprietary vs Open Source Software: A Cross Country Analysis

K D Raju

Received 25 September 2006, revised 7 February 2007

Many argue that the open source software is ‘free’ and free from intellectual property protection clutches. This paper argues that this notion is a myth when taking into account the percentage of proprietary software usage all over the world. The governmental policies and decision to support or adopt one model or the other will have a large impact on the software industry. This study substantiates that the neutrality of government promotes innovation and development rather than supporting a particular model through a cross-country analysis of Europe, Brazil, China and India. The analysis shows that more governments are making laws and policies in support of open source softwares.

Keywords: Open Source Software (OSS), proprietary software, intellectual property rights

Journal of Intellectual Property Rights

Vol 12, March 2007, pp 212-223


Rationale and Prospects of the Protection of Geographical Indication: An Inquiry


Lisa P Lukose

Received 7 November 2006, revised 24 January 2007

The importance of Geographical Indication (GI) has increasingly grown over the past decades. GI represents collective goodwill of a geographical region, which has built up painstakingly over centuries. However, uneven level of protection under the divergent legal systems of various countries and the double standard protection adopted by the Trade-Related Aspects of Intellectual Property Rights (TRIPS) are posing uncertainties in the international legal regime for the protection of GIs. This article covers the rationale and history of legal recognition of GI and also traces legal justification to recognize GI as an intellectual property. The article also critically examines the existing legal regime on GI (both international and national) and scrutinizes the additional protection clause U/ Article 23 of TRIPS.

Keywords: Geographical indication, Paris Convention, Madrid Agreement, Lisbon Agreement, TRIPS Agreement, wines and spirits

Journal of Intellectual Property Rights

Vol 12, March 2007, pp 224-235


Intellectual Property and Competition Laws: Jural Correlatives

Shashank Jain & Sunita Tripathy

Received 14 September 2006, revised 29 January 2007

The balance between the dynamic and static goals of IP law and competition law can be met with by means of a deeper analysis of the way their ‘courtship’ operates. Many believe that these two regimes are antagonistic to each other for various reasons, however the authors flouter this proposition. In India , the competition regime is in the state of infancy, the Competition Act, 2002, in particular, has addressed to this issue as a primary concern. However, lack of judicial precedents, owing to a nascent IP regime, has disabled the development of jurisprudence in this regard. Indian law, especially after signing of the TRIPS Agreement, has come in consonance with the laws in EU and US. The authors juxtapose analysis of the courts in the above-mentioned foreign jurisdictions in the Indian context. The primary finding of this paper is that though IP and Competition Law are not antagonistic, there may be situations where IP may be used to extend monopoly beyond the scope of the IP protection. Patent thickets and mergers are examples of situations where monopoly granted by IP may be misused. Herein issues stemming out of anti-competitive agreements and mergers have been highlighted. It has been suggested that ‘Essential Facilities Doctrine’ may be used to solve issues arising out of the inter play between these two facets of law. Therefore, IP must reasonably be subject to competition laws to the extent of preventing misuse of the temporary monopoly.

Keywords: Competition law, IP regime, intellectual property rights, antitrust law, abuse of dominance, mergers, Essential Facilities Doctrine


Journal of Intellectual Property Rights

Vol 12, March 2007, pp 236-243


A Study of Indian and US Trademark Law Relating to the Effect of
‘Non-Use’ of a Trademark

Thilini Kahandawaarachchi

Received 22 August 2006, revised 13 November 2006

This paper surveys the operation of user requirements and the effect of non-use of trademarks in USA and India and examines what constitutes ‘use’ of a trademark and then also examines non-use and its effects. Even though proof of use is not required in many countries for either registration or renewal it is critical for maintaining trademark rights. Generally, the right to exclusive use of a mark grows out of its use in connection with an established business or trade. The user who first appropriates the mark obtains an enforceable right to exclude others from using it, as long as the initial appropriation and use are accompanied by an intention to continue exploiting the mark commercially. Accordingly, failure to use the mark can result in a loss of that right and trademarks may be attacked on the ground of abandonment or non-use. Almost all countries in the world permit a third party to petition the Trademark Office to cancel a registration for non-use. The author briefly examines the position laid own in the Paris Convention and TRIPS Agreement with regard to the issue of non-use. However, it has to be noted that whereas the legal position regarding the issue is pretty much settled in USA, India is still at the nascent stages of development of relevant law.

Journal of Intellectual Property Rights

Vol 12, March 2007, pp 244-250


Changing Dynamics of the Patent Regime: An Economic Understanding

Kaushik Laik and Rohit Raj

Received 22 December 2006, revised 22 January 2007

‘Protect in haste, invent at leisure’ is a sarcastic statement to subtly depict the dismal state of the present regime of patent laws. A regime that was intended to balance the societal interests with that of private individual interests has undergone a sea change over the years, with the general tendency being to cater the least for the latter. Individual firms and applicants, in general, have used the lacunas in the law to their advantage and developed a mechanism whereby the patent granted to inventions (some, being undeserving of patent protection) are so wide in ambit, that the same leaves no scope for technological innovations and competition in the particular area where the former invention belonged.

Having said this, it would also be patently incorrect to assume that broad patents should be avoided at all times and that patents should always be narrow in nature. Both broad and narrow patents have their significance, the authorities need to realize this and judicially limit the breadth of patents in specific case instances. The economic rationales behind the law of patent infringement warrants due consideration and analysis.

The paper is thus an endevour to comprehend the issue primarily from the aspect of economic theories, which founded the patent regime and the laws as regards infringement claims.

Journal of Intellectual Property Rights

Vol 12, March, 2007, pp 251-256

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.