Journal of Intellectual Property Rights

http://www.niscair.res.in; http://nopr.niscair.res.in

 

VOLUME 15

CODEN: JIPRFG 15(2) 109-182 (2010)

NUMBER 2

MARCH 2010

ISSN: 0971-7544

e-ISSN  0975-1076

CONTENTS

 

 

 

Articles

 

 

 

Onset of Mobile Chip Piracy in the Domain of Copyright Infringement

117

    Abhipsa Nayak and Satabdi Chatterjee

 

 

 

Role of Intellectual Property during Recession

122

    Sheetal Chopra and Astha Negi

 

 

 

Insight into Firms’ Strategy for Leveraging Technological Competences in Asia

130

    V K Gupta

 

 

 

IP Case Law Developments

138

    Zakir Thomas

 

 

 

Technical Notes

 

 

 

Bridging the Time and Tide – Traditional Knowledge in the 21st Century

146

    Sunita K Sreedharan

 

 

 

Opinion

 

 

 

TRIPS, WTO and IPR - World Patents?

151

    M D Nair

 

 

 

Literature Review

 

 

 

IPR―General

154

 

 

IPR regime and the changing structure of scientific research in India Better practices for managing intellectual assets in  collaborations Using IP audits to optimize IP assetsRole of intellectual property in investment-backed personalized medicine The relationship between a university and its technology transfer office IP landscape and patenting opportunity in biofuels The uneasy case for IPR in TK ● IP and cultural expressions in a digital environment International IP law and creative industries IP and cultural diversity ● Application of TRIPS to GMOs ● Applicable law to IP infringements in Japan ● Law applicable to secondary liability in IP cases ● The global IP and its undetermined future ● Disintegration of intellectual property? ● Biotechnological innovation and partnerships ● IP development and globalization of R&D Failing to balance access to essential medicines and the protection of IP in developing countries facing a continuing HIV/AIDS disaster ● Application and examples of best practices in IP management

 

 

 

Patents

159

 

 

● A review of recent patents on macroorganisms as biological control agents ● Is the non-patentability of ‘essentially biological processes’ under threat? ● DNA patents and the invisible citizen ● Preferred embodiments in patents ● Patent-based cooperation effects ● Commercializing patents ● Improving Bayh-dole ● China’s nanotechnology patent landscape ● Legal nuances when a patentholding company seeks to  enforce a US patent ● The doctrine of patent exhaustionProtection creep for US plant varieties ● Review of the state-of-the-art in patent information and forthcoming evolutions in intelligent patent informatics ● Patinformatics as a business process ● The individual inventor motif in the age of the patent troll ●The grace period in international patent law and its effect on the timing of disclosure ● Standards for creating textual information in patent documents and general search implications ● The doctrine of equivalents in various patent regimes-does anybody have it right? ● Are the semiconductor industry giants content with yesterday’s international protection for integrated circuits?

 

 

 

Copyright and Trademark

164

The author’s rights in literary and artistic works ● Expropriation or fair game for all? the gradual dismantling of the IP exclusivity paradigm ● Copyrighting ideas? Copyright on information technology products and its consequences for future creativity ● Copyright and freedom of expression in the online world ● Innovation and liability for contributory copyright infringement ● Copyright infringement in the Internet age—primetime for harmonized conflict-of-laws rules? ● Sticky copyrights: Discriminatory tax restraints on the transfer of IP ● Worth making a song and dance about database right? Enforcing a trademark when nobody's confused ● eBay's liability for counterfeits ● Will the Federal Circuit’s Eli Lilly v Teva decision lead to efforts to abuse the modification provision of the Hatch-Waxman Act?

 

 

 

IPR News

 

 

 

IPR News—General

168

WTO to establish chairs at 14 developing country universities

 

 

 

Patent News

168

International patent filings dip in 2009 ● IBM tops in securing US patents in 2009 ● India's international patent filing dips ● Intel joins RPX patent defense pool ● BioSante Pharmaceuticals rated among top 15 companies on the Biotechnology Patent Scorecard Drug makers decry Indian patent law ● Drug superior to Gleevec gets patent ● Advaxis issued patent ● Patent for multi-layer OLED displays ● EU patent for polysialic acid technology StimuXen ● Fixed-mobile convergence technology ●US patent allowances for Burcon’s protein isolates ● Patent for usage-based billing of IP-based video calls

 

 

 

Copyright and Trademark News

175

Global publishers win ruling to stop Rapidshare from profiting from pirated works ISP cleared of copyright infringement ● Apple wins iPhone trademark ● Delhi HC directs Pepsico India to remove logo

 

 

 

Key Patents

176

Apple granted patent for touch-sensitive bezel ● Vaccine and anti-infective product platforms ● NanoBio awarded critical patent ● Rapid thermocycling methodology for molecular diagnostics patented ● New patent broadly covering RNAi therapeutics ● Innovations in NetFlow-based network performance and security monitoring patented ● USPTO issues three patents to Rosetta Genomics  ● US patents for AeroLEF(R) ● AVANIR Pharmaceuticals awarded Zenvia patent ● Patents for ready-to-use Cardene® I.V.bags ● Solar cells manufactured with silicon ink patented ● US patent for core Sentinel Principle(R) technology

 

 

 

 

 

 

 

 Author Index

Chatterjee Satabdi

117

Chopra Sheetal

122

 

 

Gupta V K

130

 

 

Nair M D

151

Nayak Abhipsa

117

Negi Astha

122

 

 

Sreedharan Sunita K

146

 

 

Thomas Zakir

138

Keyword Index

Access and Benefit Sharing  (ABS) mechanism

146

 

 

Biological Diversity Act

146

 

 

Convention of Biological Diversity

146

Copyright

138

Copyright infringement

117

 

 

Expeditious trial

138

 

 

Fair dealing

138

Firms’ innovation strategies

130

Foreign assignees

130

 

 

Genetic resources

146

Government use

138

 

 

Innovation models

122

Intellectual property

122

Internet downloads

117

Inventors

130

IP as collateral

122

IP audits

122

 

 

Leveraging technological competence

130

 

 

Mobile chip piracy

117

 

 

National assignees

130

 

 

Patenting

130

Patents

138

 

 

Recession

122

 

 

Sui generis legislation

146

 

 

Technological skills

130

Traditional communities

146

Traditional knowledge

146

 

 

 

Journal of Intellectual Property Rights

Vol 15, March 2010, pp 117-121

 

Onset of Mobile Chip Piracy in the Domain of Copyright Infringement

Abhipsa Nayak and Satabdi Chatterjee

West Bengal National University of Juridical Sciences, Salt Lake City, Kolkata 98, West Bengal

Received 30 July 2009, revised 28 January 2010

This research article is about how people are using their mobiles for their own benefit but are unknowingly infringing the copyright by downloading songs, movies and games. Using mobile is a need, but recently in order to increase the marketability, different companies are accessorizing their products with new features whose usage results in the infringement of copyright. Due to this, music and other related industries are suffering a lot of losses. So, we should try a conscious effort to curb this crime and hence, benefit the Indian economy. Though, there is a growing awareness amongst the population of India as well as the music companies, yet nothing conclusive has been done. In this paper, the authors have tried to analyse some of the initiatives taken for curbing such piracy.

Keywords: Copyright infringement, mobile chip piracy, Internet downloads

Journal of Intellectual Property Rights

Vol 15, March 2010, pp 122-129

 

Role of Intellectual Property during Recession

Sheetal Chopra† and Astha Negi*

Federation of Indian Chambers of Commerce and Industry, Federation House, Tansen Marg, New Delhi 110 001

*ILS Law College, Law College Road, Pune 411 004, Maharashtra

Received 24 December 2009, revised 24 February 2010

Recession indicates downsizing, shrinking markets and increasing competition. Recession has hit global economy very hard in the recent past. The year 2007 marked the beginning of recession and it is not yet certain whether it has ended. Several industries have suffered largely because of the global meltdown. More and more industries are turning to their intangibles to keep afloat to ride this recession tide.

The paper attempts to study how the companies have excessively relied on the IP assets to remain competitive during the tough time when there is increasing resource crunch. The paper also attempts to identify how some smart companies have used downturn effectively to position themselves even better when the tough times of recession are over and the markets are again available by bringing in innovations which filled the needs of the market. The paper offers few key recommendations based on some of the best practices adopted by companies during economic meltdown. This study was done by selecting companies on random basis and interviewing IPR experts via e mail and telephones.

Keywords: Intellectual property, recession, IP audits, innovation models, IP as collateral

 

Journal of Intellectual Property Rights

Vol 15, March 2010, pp 130-137

 

Insight into Firms’ Strategy for Leveraging Technological Competences in Asia*

V K Gupta†

214, Sanskriti Apartment, Sector 19B, Dwarka, New Delhi 110 075

Technological skills of inventors have become important for innovation and competitiveness of firms in the knowledge based industries. With the emerging globalization, firms that make use of technological competence of inventors worldwide innovate and prosper faster. The present study examines how national or foreign firms leverage the technological competence of inventors from select Asian and other countries. A related question has also been examined as to how these firms leverage technological competence of inventors exclusively from foreign countries without the involvement of inventors from their own countries. The study presents a methodology for extracting relevant data and analysis of bibliographic information in a patent document to provide insights into firms’ innovation strategies while leveraging technological competences of inventors.

The case study of leveraging technological competence of inventors from India, by foreign or national firms, has been presented in detail to provide policy relevant to understanding of the pattern of distribution of assignee firms or other organizations leveraging the competence (a) by performing sector viz. industry, university or government, (b) by countries of origin of firms, (c) the role of key foreign or Indian firms, and (d) the technical areas in which technological competence is leveraged. Similar studies could be undertaken in case of other countries as well to formulate innovation strategy and policy at the national or firm level.

Keywords: Technological skills, inventors, patenting, leveraging technological competence, firms’ innovation strategies, foreign assignees, national assignees

Journal of Intellectual Property Rights

Vol 15, March 2010, pp 138-145

 

IP Case Law Developments*

Zakir Thomas†

Open Source Drug Discovery (OSDD) & DG's Technical Cell, Council of Scientific and Industrial Research,
Anusandhan Bhawan, 2 Rafi Marg, New Delhi 110 001

Received 16 February 2010

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, Supreme Court directions for expeditious disposal of IP cases and cases on copyright and patent are covered.

Keywords: Copyright, fair dealing, expeditious trial, government use, patents

*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 15, March 2010, pp 146-150

 

Bridging the Time and Tide –Traditional Knowledge in the 21st Century

Sunita K Sreedharan†

SKS Law Associates, F-40, Flat No. 4, UGF,
Kalkaji 110 019, New Delhi

Received 7 March 2010

Traditional knowledge systems have by and large been relegated to the realm of myths and folklore. However, with the advancement of science and commercial successes chalked up by the pharmaceutical, nutraceutical and cosmetic behemoths, there has been a resurgence of scientific interest in the traditional knowledge systems. India with its vast and ancient pool of traditional knowledge is an easy target for accessing valuable TK and genetic resources. Unregulated access to these may lead to endangering of genetic resources as well as traditional forms of livelihood practiced by traditional communities thus impacting the ecosystem and the socio-economic-cultural fabric of India. This technical note explores immediate need faced by India to enact a sui generis legislation that will ensure that there is a regulated access to traditional knowledge with the prior informed consent of the traditional communities in such a manner that is not only fair and equitable but also in consonance with the traditional values of the traditional communities. It also examines salient features of the proposed sui generis model for the protection of traditional knowledge and traditional cultural expressions tentatively titled ‘The Traditional Knowledge (Protection and Regulation to Access) Bill 2009’.

 

Keywords: Traditional knowledge, traditional communities, Access and Benefit Sharing (ABS) mechanism, sui generis legislation, genetic resources, Convention of Biological Diversity, Biological Diversity Act

 

 

 

 

Journal of Intellectual Property Rights

Vol 15, March 2010, pp 151-153

 

TRIPS, WTO and IPR - World Patents?

M D Nair†

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

Received 8 February 2010

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. This issue discusses about attempts to harmonize global patent systems.