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We bring you a guest post from Mr. R.K. Trivedi, Director (Technical) of National Seed Association of India (NSAI). This post is in response to Prashant’s post on whether Monsanto’s invention can be protected as a plant variety and seek benefit-sharing from Nuziveedu, which was published on the blog last week.

As readers may be aware, Monsanto is locked in what is possibly the biggest patent/technology battle against various seed companies for some years now. The main seed companies at the forefront of this dispute include Nuziveedu, Prabhat Agri Biotech and Pravardhan Seeds etc. All of these seed companies are part of NSAI.

The disputes between Monsanto and NSAI companies also involve issues of plant variety protection, Essential Commodities act, Contract Act, Specific Relief Act, Arbitration Act etc. For our previous posts on various aspects of this controversy and litigation etc., please click here.

National Seed Association of India (NSAI) on Delhi High Court’s Judgment in the Monsanto-Nuziveedu Dispute

R.K. Trivedi

Mr. Prashant Reddy’s post does not give a correct interpretation of the Delhi High Court’s recent decision in the Monsanto-Nuziveedu dispute. If we want to correctly interpret the Delhi High Court’s decision, we have to first understand the provisions of Indian Patents Act, PPV& FR Act and TRIPS Agreement of WTO.

Indian Patents Act, Section 3(j) excludes from patentability “plants and animals in whole or any part thereof other than microorganisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals”, in pursuance of Article 27(3)(b) of the TRIPS Agreement.

PPV&FR Act covers transgenic variety as a “new variety”, which is, therefore, eligible for registration under Section 15(1) provided it satisfies the conditions of ―novelty, distinctiveness, uniformity and stability. A breeder under Section 16(1) includes the breeder of such transgenic variety. Under Section 24, varieties, other than essentially derived varieties can be given registration. The facility of benefit sharing then is conferred upon all interested to seek the advantages, upon fee determined in this regard. What is crucial in this enactment is benefit sharing under Section 26. If someone’s variety with a unique trait (like the Bt. Trait) is used to create a new variety, benefit sharing can be claimed from the creator of the new variety under Section 26 of the PPV&FR Act read with Rules 41 to 44 of the PPV&FR Rules. The registration of a plant variety or a transgenic variety under Section 28 of the PPVFR Act confers certain exclusive rights enshrined therein on the breeder. Section 30 of the PPVFR Act provides for “Researcher’s rights” allowing use of any registered variety for developing new varieties. Under section 39, the farmers have the right to save, sow, re-sow, exchange, share and sell the farm saved seeds of any protected variety including a transgenic variety.

The Delhi High Court has critically gone through the above provisions of Indian Patents Act and PPV&FR Act and observed that India has a well-balanced legal framework that protects the rights of plant breeders, farmers and biotech companies.The Court held that Monsanto cannot have patent on transgenic seeds per se. They can have a patent on gene or gene sequences that have been synthesized in the laboratory and under Patents Act they have the right to prevent anyone else from producing such transgenic seeds in a laboratory and selling the same. However, once they sell transgenic seeds to Indian seed companies for use as initial varieties for creating new varieties, they cannot claim patent rights on subsequent seeds produced by farmers and breeders using essentially biological processes. For that, it must rely on the provisions of benefit sharing under the PPV&FR Act.

Further, I would like to correct this notion that our PVP legislation is a copy of UPOV model. The Indian PPV&FR Act is a unique enactment and is not modeled on UPOV as claimed in Mr. Prashant Reddy’s post. Indian Government categorically states to TRIPS that we shall not copy the UPOV model but will adopt a sui generis system having a separate law to fulfill our national requirement by providing farmer’s rights and rewarding farmers for their efforts to conserve crop biodiversity. Some of the differences between the UPOV Convention and the PPVFR Act are as follows-

(i) In PPV&FR Act, the definition of ‘variety’ includes transgenic variety also, whereas, ‘variety’ definition of UPOV does not cover transgenic variety.

(ii) In PPV&FR Act researcher’s right is very comprehensive whereas in UPOV, the researcher’s right is restrictive.

(iii) In PPV&FR Act, there is a provision for Farmer’s Right, Right of Communities, Benefit Sharing, Gene funds etc. However, such provisions do not exist in UPOV.

As can be seen from the above in UPOV, the transgenic plant varieties are not even covered in the definition of the variety.  Similarly, the benefit sharing provision is not there in UPOV as per the requirements set out by advanced countries which may not be favorable for recognition and reward of the conservation or breeding activities carried out by the farmers or breeders of the third world. UPOV does not provide farmers’ rights and also does not provide for compensation to farmers on failure of the registered variety to give expected performance under given conditions. Therefore, the Indian PPV&FR Act is a balanced Act and a complete code, protecting the interest of all the stakeholders. One of the unique features of the PPVFR Act is that, it prevents creation of monopoly in agriculture sector. This clarifies that the Govt. of India had consciously chosen not to join UPOV and develop a sui generis legislation in the form of PPV&FR Act to suit Indian national interest.

In view of the above, it is pertinent to note that the Delhi High Court order only captures the legislative intent of the Govt. and the provisions of the Indian Law.  The Indian law is balanced and provides incentives for the innovation in the form of trait development to companies like Monsanto and also encourages the breeders to incorporate the new innovations and develop new plant varieties by giving access under the researchers’ rights.  The farmers are given protection to save, use all plant varieties including transgenic plant varieties.

In my opinion, Monsanto should be happy as the trait value fixation would now be carried out by a statutory body, PPV&FR Authority whose actions need to be transparent and accountable through judicial review.  It is impossible to get a judicial review for actions under the Essential Commodities Act since they have a protection under the public interest.

In view of the above, I am surprised why Monsanto is not welcoming the fair decision of the Hon’ble High Court of Delhi, which will help all other biotech trait developers as well.  It is heartening that the breeders of small and medium seed companies along with the breeders of public sector and large seed companies are brought on the same footing by the Court order. This will encourage not only innovation but also competition by bringing more players which will ultimately benefit the farmers.  Thus, the judgment takes care of the interest of all stakeholders and thereby benefits the farmers.

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We’re pleased to announce that the National Law University, Delhi is looking to engage three full-time Research Fellows (Law) for the Centre for Innovation, Intellectual Property and Competition (CIIPC), at its campus in Dwarka, New Delhi. The deadline for sending applications is June 3, 2018. For further details, please read the call for applications below.

Call for Applications – Research Fellows (Law)

Position: National Law University, Delhi (‘University’) is seeking to engage, on a
contractual basis, three full-time RESEARCH FELLOWS (LAW) for the CENTRE FOR
INNOVATION, INTELLECTUAL PROPERTY AND COMPETITION (CIIPC), at its campus in Dwarka, New Delhi.

About the Centre: CIIPC was established in the year 2015 with the objective of contributing to
academic and policy oriented dialogues in the areas of innovation, IP, and competition. The
Centre is currently engaged in various research projects and more details of the projects can be accessed at www.ciipc.org. The Centre has also hosted many events as part of its diverse dissemination activities and many events are also scheduled for the year 2018. Please see our www.ciipc.org.

Responsibilities of the Research Fellow: The research fellow will assist the Centre in
conducting high-quality research primarily as part of one of the three projects mentioned below –

  1. Regulation of Digital Markets in the Context of Big Data, AI, and IoT
  2. Open Access Textbook on Intellectual Property Law
  3. Open Access Textbook on Competition Law

As part of the assigned research project, the Research Fellow is expected to engage in diverse research activities including field work, data collection, data analysis, report drafting, etc. Research fellows are also expected to supervise the work of the student researchers/ interns associated with the centre and/or assist principal investigators in conducting research.  Research fellows are also expected to assist in conducting the overall activities of the centre in terms of events and institutional building activities of the centre.

Qualifications: Candidates holding graduate (LL.B.) or post-graduate degree in
law (LL.M.), with demonstrable interest in interdisciplinary research, are encouraged to apply. Candidates must show demonstrable research interest in the relevant areas of at least one of the projects mentioned above. Candidates with experience in both competition law and intellectual property law may be given preference.

Compensation: Salary will be commensurate with qualifications and experience and will be in
the range of Rs. 40,000 – Rs. 60,000 per month.

Application Process: Interested candidates should submit their applications by email to careers@ciipc.org with a cc to ciipc@nludelhi.ac.in. The email should have the following
documents, along with an appropriate covering letter:

  • CV
  • Writing sample (published/ unpublished)
  • Contact details of two referees·
  • a statement of purpose (SoP), explaining your interest in working with CIIPC (Max. 800 words). The SoP should clearly indicate the preferred project (if your profile is suitable for more than one project, please indicate the preferred projects in the order of preference) and how your educational/ work experiences can add value for that project.

The subject of the e-mail should be “CIIPC- Application for
Research Fellow (Law)”
. The covering letter must mention (Attn: Co-Directors, CIIPC).

The University reserves the right to conduct interviews to fill this position. The University will
be unable to cover the costs for attending the interview. But the University is open about exploring the possibilities of a video interview.

Deadline: Applications must be submitted no later than 3rd June, 2018.

NOTE 1: National Law University, Delhi is an equal opportunity workplace.
NOTE 2: Graduates from NLU, Delhi and other research fellows working at NLU, Delhi, are
also requested to apply only as per the above mentioned procedure.

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We’ve had quite an eventful fortnight at the blog:

Thematic Highlight

This fortnight’s thematic highlight was a guest post by our fellowship applicant, Prarthana Patnaik. Taking apart a recent US District Court judgment that held the “embedding” of tweets as copyright infringement, Prarthana discusses the implications of the decision. In doing so, she critically analyses the Court’s understanding and application of the “Server Test” – which is the landmark judicial test employed in deciding issues of copyright infringement of electronic information.

Topical Highlight

Prashant brought us this fortnight’s topical highlights, with his posts on the recent developments in the Monsanto – Naziveedu dispute:

  • Prashant first reported that the appeal arising from the Division Bench order, was admitted by the SC last week, and has been slated for a hearing in July. He notes that as things stand at present, the Delhi HC Division Bench judgment has not been stayed by the SC and Monsanto is disputing the DB’s assumption that they had waived their right to trial. Against this background, Prashant observes that the SC will have the opportunity to discuss several issues central to patent law, in July. These primarily include hitherto unexplored aspects of patent claim construction.
  • Prashant then attempted to analyse the true nature of Monsanto’s invention, ahead of the SC hearing. He traces the development of the PPVFR legislation in India, and draws our attention to the present conflict in the Monsanto litigation: whether the Monsanto invention is protectable as a patent or as a “plant variety” under the PPVFR Act. He observes that this question, along with all aspects that it entails, boils down to the issue of claim construction.

Other Posts

Kick starting the fortnight, was a guest post by our fellowship applicant Kashish Makkar. In his post, Kashish argues that the John Doe jurisprudence in India was adopted in flagrant disregard for the rule of law. As such, he observes that an alternative statutory remedy exists under the Code of Civil Procedure, 1908 – particularly ‘representative suits’ as stipulated under Order 1, Rule 8 of the Code. Finally, Kashish argues that ‘John Doe’ orders can potentially be held ultra vires the Code on the grounds that they are not sustainable u/s 151 of the Code.

Next, Pankhuri wrote about India’s inclusion on the ‘Priority Watch List’ of the USTR’s annual ‘Special 301 Report on IPRs’. Noting the USTR’s concerns regarding India’s IP practices, Pankhuri observes that the report surprisingly does not expressly take issue with India’s local patent disclosure requirements. These disclosure requirements, stipulated under Form 27 of the Act, have been the centre of much debate and discussion off late – with the Indian government receiving suggestions and comments to modify Form 27 from various stakeholders – including the US government. Pankhuri concludes by drawing our attention to articles by Vidya Krishnan and Latha Jishnu that discuss suggested modifications to Form 27 procedures within the larger context of US pressure to modify Indian patent laws.

Prashant reported on the recent dispute faced by Baba Ramdev’s Patanjali with regard to its revenue sharing obligations under the Biological Diversity Act. After tracing the development of the Biodiversity legislation both internationally and nationally, Prashant throws light on the Act’s provisions. Under the act, companies are required to first obtain permission of the state biodiversity boards for accessing the resources, and then share royalties with the boards, for any “commercial utilization” of the resources. Prashant observes that despite these provisions, the biodiversity act differentiates between “indian companies” and “foreign ones” – absolving the former of several obligations under the Act. Thus, to prove the former, would be Patanjali’s ideal approach to the issue.

Finally, we had a guest post by another fellowship applicant, Poornima Ramesh. Poornima discusses a rather interesting aspect of patent law: patents for inventions made and used in outer space. She takes us through the current international legal regime governing space law – particularly inventions made in space. Against this backdrop, she attempts to unravel answers to two primary dilemmas: ownership and related issues concerning patents for inventions made in space, and possible remedies for patent infringements in outer space.

Events & Announcements

Pankhuri announced that the EIPIN (European IP Institutes Network Innovation Society is inviting applications for Marie Skłodowska-Curie Individual Fellowship. The deadline for submitting research proposals is September 12, 2018.

Other Developments

Indian

Judgments

Somashekar P. Patil v. DVG Patil  – Karnataka High Court [May 8, 2018]

The dispute concerned Respondent’s use of the trademark “PATIL FRAGRANCES” in committing infringement and passing off of the Appellant’s trademark “PATIL AND PATIL PARIMALA WORKS” for the sale of incense sticks. The Court concurred with the order passed by the Trial Court in vacating the temporary injunction granted to the Appellant, thereby allowing the Respondent to use its trademark on the ground of a bona fide use of the word “PATIL”, as he hailed from the Appellant’s family and also on the basis that the products and brands of both the parties were different.

M/S Hindustan Media Ltd. v. Mr. Faisal Masood & Ors. – Delhi High Court [May 4, 2018]

The court granted an ex-parte permanent injunction restraining the defendant from using the domain name ‘hindustantimes.in’, the trademark ‘Hindustan Times’ and the logo depicting the words ‘Hindustan Times’. The court opines that the defendants had no real prospect of defending their claim as they did not enter an appearance, file a written statement or deny the documents of the plaintiff. Plaintiff is the owner of the registered trademark Hindustan Times and HT and the prior user of the mark and the domain name. Hence, the suit was decreed in favour of the plaintiff and against the defendant.

Sandisk LLC & Anr. v. Devaram Choudhary & Anr.- Delhi High Court [May 7, 2018]

The court granted an ex-parte permanent injunction restraining the defendants from infringing the plaintiff’s trade mark ‘SANDISK’, trade dress, copyright and passing off its goods as that of the plaintiff. The defendants did not make any attempt to defend their claim. Defendants did not file any written statement despite entering an appearance and did not deny the plaintiff’s documents. The court was of the view that the defendants were trying to unfairly benefit from the reputation and goodwill of the plaintiffs by selling counterfeit products using plaintiff’s trademark and its product packaging.

Shuddhananda Yoga Samaj v. Rajeswari Book Shop & Anr.- Madurai Bench of the Madras High Court [April 24, 2018]

The court dismissed the appeal praying for a permanent injunction restraining the defendants from publishing the literary works of author Yogi Shuddhananda Bharathi without the permission of the plaintiff society, the legatee of the copyright in all literary works of the author under a will dated 14.10.1981.The dispute with respect to  defendant no. 2concerned the alleged infringement of copyright in one of the literary works of the author, a book titled ‘Maha Kavi Dhante’. The defendant no. 2 claimed that the book with the same title had been published by another publisher way back in 1940 and the book clearly mentioned that the author had assigned the copyright in the book to that publisher. In view of these facts, the court noted that the author himself did not have copyright in the book at the time of the execution of the will as he had already assigned it to a publisher at that time and thus, could not have bequeathed the copyright in the book to the plaintiff society.

News

International

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We’re happy to bring you another guest post by our Fellowship applicant Prarthana Patnaik. Prarthana is a 4th year student at National Law University, Odisha. This is her second submission for the Fellowship.

A Case for Creating ‘Identity Rights’ for Digital Identities in India

Prarthana Patnaik

In the era of the Aadhar, demonetization, blockchain and other technological advancements, ‘digital identities’ are gaining increasing prominence. The World Bank defines ‘digital identities’ as “a set of electronically captured and stored attributes and credentials that can uniquely identify a person”. Currently, in India, the conception of digital identities centres around Aadhar, the 12-digit unique ID number issued to Indian residents. Conceptually, digital identities are wider in scope and can include social media accounts, mail accounts, IP addresses, bank accounts etc. While these identities help enhance connectivity and visibility, they also raise an alarm on privacy concerns, identity frauds and various other cyber crimes. Increasing instances of such crimes highlight the need to look into various legal measures to protect digital identities.

The protection of such identities finds some expression in Indian jurisprudence. On 24th August, 2017, in the now landmark case of K.S. Puttaswamy (retd.) v. Union of India, a nine Judge Bench of the Supreme Court, while mulling over the right to privacy, highlighted several related rights arising from the same. These included rights such as: one’s “right to control information that is available about them on the world wide web”, the right to protect one’s own reputation, and one’s “personal conception of the ‘self’”. The Court observed that such identity rights also emanate from ‘informational privacy’ i.e., the right to exercise control over one’s personal data which entails the right to control one’s “existence on the Internet”.

To me, this poses a question: Is it possible to use IP law to protect such identities? The idea of protecting identities as intellectual property may seem far-fetched to most and perhaps, even ludicrous. After all, IP law protects creations of the human mind, and identities can certainly not be classified as a ‘creation’.

The Link between Personality Rights & Digital Identities

Perhaps the only part of IP law that allows for a connection between the two is  “personality rights”.

Personality rights have been defined as the right of famous individuals, whose identities have acquired a sort of brand value.  This right allows them to “control when, where and how their identity is used”. As has been stated by the Delhi High Court in ICC Development (International) v. Arvee Enterprises, such identities or ‘personas’ cannot be monopolized by persons other than the individual i.e., the right vests in an individual and he alone is entitled to profit from it.

Upon noting that personality rights have received IP protection, one can consider the possibility of extending the same to digital identities of individuals.

To begin with, personality rights are known to have sprung from the ‘right to publicity’ – which in turn, stems from the ‘right to privacy’. The ‘right to publicity’ is often used interchangeably with personality rights. It was first discussed (but not explicitly mentioned) in R. Rajagopal v. State of Tamil Nadu, wherein it was stated that a person’s name and identity could not be used without his consent. After elaboration in further cases (D.M. Entertainment v. Baby Gift House, Shivaji Rao Gaikwad v. Varsha Productions, etc.), the right now accords all natural persons the right to prevent the unauthorized use of indicators of their identities (name, personality, trait, signature, voice etc.).The same can be applied to digital identities: on creation of such identities, individuals submit themselves to the scrutiny of the public, similar to celebrities in movies and public events. In fact, one may conclude that people’s digital identities are exposed to a larger and more global audience.

A pertinent argument that could follow is that digital identities are not ‘properties owned’ by individuals and are therefore not entitled to receive IP protection. While identities or indicia of identities have been held to be “property” of individuals, the ownership issue admittedly raises complex issues in case of digital identities: Several arguments have been advanced, to show that governments and companies have the right of ownership over our digital identities. This issue can also be settled by drawing parallels to personality rights. The same question arises in both instances: Who owns the rights in question? Do celebrities own their personas or the agencies/companies who represent these celebrities?

Are Digital Identities ‘Property Owned’ by Individuals?

The right in the “identities” (or property, as shown above) is viewed as a fully alienable right, which may be assigned or transferred to others. It has been argued by scholars that this right must be interpreted as a partially alienable right. An interesting article deals with this issue and the author creates a distinction between “publicity-holders” (person who owns property interests in commercial uses of an identity) and “identity-holders” (the individual whose identity or indicia is the one that must be appropriated to show a violation of his publicity rights). However, even then, rights of the “identity holders” hold precedence. As the author of the aforementioned article argues, instead of viewing publicity right as a fully alienable property right, limits on alienability should be introduced within the property framework, and such rights must be viewed as rooted solely in the identity-holder.   A similar view was taken by the Delhi High Court when it held that personality rights can “inhere only in an individual or in any indicia of an individual’s personality like his name, personality trait, signature, voice, etc.,”. It further held that “An individual may acquire the right of publicity by virtue of his association with an event, sport, movie, etc. However, that right does not inhere in the event in question, that made the individual famous, nor in the corporation that has brought about the organization of the event.” From the above interpretation, one may argue that the right to control one’s identity solely vests in the individual.

Another related concern with regard to the protection of “identities” under IP is that personality rights/publicity rights cannot apply to digital identities. This is because only infringement of celebrities’ rights result in commercial losses to companies and hence, IP protection should only be accorded to them, instead of ordinary people and their digital identities. However, when we view identities as properties of individuals, it is reasonable to assume that a person’s identity can assume pecuniary value in certain cases and can be exploited for commercial benefits. This can be highlighted by instances where infringement of digital identities have caused huge losses to companies and other individuals alike. Examples include the attack by the WannaCry ransomware on hospital databases and banking institutions, the reports of Aadhar-related frauds where customers’ Aadhar details were used to siphon money, and other similar reports of identity theft and fraud.

‘Identity Rights’ in India: The Way Forward

Since both identity rights and personality rights are privacy-oriented, ‘identity rights’ can be used as an umbrella term to include the latter  along with protection of digital identities inter alia. It has been argued that there is a need to create a distinct legal status for personality rights. On the contrary, it has also been argued that such rights do not deserve protection under IP law. However, the need for these rights cannot be disputed in an era where commercial appropriation of identities is rampant. Also, the amorphous nature of identities and the issue of multiple identities will not be effectively covered if such rights are outlined and made inflexible.

The introduction of identity rights under IP law is particularly important in today’s India. Our data security laws and cyber laws are not evolved enough to account for most cyber-attacks and hence, most cyber-attacks do not fall under the scanner of the law and victims of such cases are rendered incapable of availing justice. If such rights are recognized under IP law, affected individuals will be able to seek civil damages and permanent or temporary injunctions, which are more effective than criminal remedies in such cases. The same two-step test of validity (enforceable right in identity) and identifiability (the concerned person must be identifiable) which has been employed in cases of infringement of right to publicity can be employed in cases of infringement of digital identities too. In an increasingly digitized world, people’s identities and their personal data gain more commercial value and hence, there is a need to accord all sorts of protection available under the law.

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We are pleased to bring to you a guest post by our Fellowship applicant, Poornima Ramesh. Poornima is a 2nd year student at School of Law, Sastra University. This is her first submission for the Fellowship.

Is The Discussion on Patent Laws For Outer Space Inventions Really All That Relevant?

Poornima Ramesh

There is an interesting debate grappling the international community of IP lawyers – patents for inventions made and used in space. We are all aware that patent rights are territorial in nature and can only be enforced in the jurisdiction of registration of the patent. Now the current conundrum is two-fold – how does one get a patent for an invention made in space? The second is even more challenging than the first and questions the remedy available for patent infringements in outer space.

The Growing Importance of the Space Industry

These questions need answers in the light of growing importance of the space industry. If we have made extraordinary strides in space activities, it is primarily because of commercialization. Where companies are competing to make technology that will advance space exploration, patenting them is the next logical step. Currently, there is much enthusiasm surrounding this industry, as it is viewed to be a rewarding investment despite the high risk involved. Space companies have ambitious projects to develop technology for asteroid mining, which, if made possible, would pave way for space colonization. Apart from this, space tourism is also gaining much momentum. All these point out to the promising future that holds for space technology. Hence, there is a need for patent laws to promote space exploration and address investor concerns.

International Treaties on Space Law

On the international frontier, there are five treaties and conventions dealing with space explorations. India is a signatory to one and has ratified the other four. Even these international laws have failed to envisage the need for patent protection in outer space. But their words are interpreted to resolve the existing issue. According to the Registration Convention of 1975, states are obliged to register the object launched into outer space. Here, the spaceship is seen as the extension of the state launching the same. This convention is construed to mean that any invention in the outer space will be treated as belonging to that country in whose name the spacecraft is registered. This was spelled more clearly in the inter-governmental agreement signed in 1998 for the establishment of International Space Station. Hence, if in an Indian spacecraft an invention is made, then the patent will be granted by the Indian government and it will be protected by Indian patent laws even if the inventor is a foreign national. The answer makes sense and is quite direct. This clears the air of confusion for a moment.

Patent Infringement in Outer Space

But what about the patents already existing on Earth? Commercial enterprises register their patents only in those countries that they seek to establish themselves. It is possible to make that country which has granted the patent liable if it had violated the same in the space, for the Registration Convention considers the space vehicle to belong to the state of registration. The company could initiate proceedings in that country as their patent holds validity in that jurisdiction. But the hypothesis drawn is this – what if countries that don’t protect the specific patent violate them in the space? What remedy can such a patent holder avail? It is indeed very far-fetched. I would like to counter these seemingly crucial problems with a couple of questions. Isn’t the likelihood of the same happening on Earth equally possible? Does this need to be elevated to an issue that requires specific space legislation? Because the problem is about patent violations by countries where the patent has not been registered by the company. This is a trouble that lies more in line with the nature of patent registration. It is a costly affair for a business entity to register its creation in all the 195 countries of the world. Patent laws need to be restructured to protect businesses and this initiative has to begin at the international level. But to provide protection to an invention at a global level will abridge the moral rights of other inventors. In any case, it is highly impossible as well. This is the real issue that needs deliberation and I feel the current debate on the need for intellectual property law on space activities is a disguise of this.

But those in support of this debate add a further twist to the problem by stating that the term ‘launching state’ under the 1975 Convention could be exploited by businesses by either choosing it to be the country that launches the space object or the country from which the space object is launched. Remember, we talked about the commercialization of space sector? The critics say that private firms could pick a country of their choice to launch their spaceship, dubbing it as ‘flags of convenience’. This could help them avoid liability as the patent infringement would have occurred in that country of registration of the space object which hasn’t granted right to the patent, even if the company belongs to a country that recognizes the patent. Consequently, it is said, this could reduce investor confidence and lessen funding for companies. The entire premise of the argument rests on speculation. It is good to see that we are speculating an area even before we are visited with visible problems.  But are we speculating too much? Are we blowing out of proportion the possible ramifications of the absence of space laws? On the lack of reliable facts to substantiate, these arguments end up being nothing more than conjectures. Furthermore, let us not forget that this is a costly venture involving high cost of operations, thus making this all a billionaire’s club space project. Even assuming these concerns are valid, how is it at all possible to come to know of these infringements occurring in space?

To curb the exploitation of the ambiguous provision under the Convention, it is suggested that a single international jurisdiction be instituted for filing patents and address infringements, concerning space technology. What this means is an international recognition for patents developed by space technology companies, because the violation of these patents is apparently more serious than patent infringements occurring across any other technological sector! The motive behind the voices of those advocating single jurisdiction is clear – they are intensely betting on the growth of the space industry and want to protect it at any cost. But this is far from feasible and calls upon the need to study this area before we bring any treaty or legislation in haste.

India’s Stand

Currently, there are no codified laws in India governing outer space activities. Nor does the present law on patents address the issue at hand. Experts are stressing on the need for India to frame a legislation for outer space exploration, considering the strides it has made in recent years, leaving even the international community astonished with its technical prowess. However, the patent discussion is absent.

Presently, the only country in the world that has a legislation governing patents for invention in outer space is the US. But even the 35 U.S. Code §105  has its loopholes and is not fool-proof. As of now, there isn’t a single instance to back this discussion on the need for patent laws for infringements in outer space. Perhaps, we are moving towards these developments. Yet how sensible does it sound to govern outer space inventions under territorial laws when companies like SpaceX are aspiring to colonize Mars before another world war strikes.

We don’t know how the future is going to turn out. It will be a futile effort to formulate laws in a time where everything is uncertain. In the current context, we can only prepare ourselves to be ready for the future.

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We are pleased to bring you a guest post by our Fellowship applicant Prarthana Patnaik. She is a 4th year student at National Law University, Odisha. This is her first submission for the Fellowship.

Can Embedding Tweets Constitute Copyright Infringement?

Prarthana Patnaik

On 15th February, 2018, a New York District Court ruled that embedding tweets may amount to copyright infringement. This decision (Goldman v. Breitbart) has generated widespread criticism for it has far-reaching implications on acts of in-line linking done on the Web, which is a fairly common practice today.

In-line links enable content from a source website to be visible as part of a linking website’s main body, i.e., instead of taking the user to another web page like a normal link, an in-line link creates a connection between the linking website and the source website and the user has access to the source website’s media without ever exiting the linking website. Copyright owners often criticize acts of in-line linking since netizens and other competitors often take advantage of this technology to display and pass off copyrighted content as their own.

In the twitter verse, tweets may be embedded by using in-line links. This makes tweeted content appear on web pages other than Twitter. Notably, this differs from retweeting – which occurs when a user re-posts or shares his own Tweets or another person’s Tweets with his followers.

Brief Background

Coming back to the case at hand, the events underlying it date back to 2016, when the plaintiff, Justin Goldman uploaded his photo of a famous sports figure, Tom Brady, on his Snapchat story – which went viral and landed on several online platforms, including Twitter. The tweet containing the photo was later embedded by news outlets and blogs in their articles. Subsequently, Goldman sued the news companies for infringing his exclusive right to display his copyrighted work. Before the Court, the defendants’ primary argument was that under the ‘Server Test’, they could not be held liable.

Applicability of the Server Test

The Server Test was first introduced in the 2007 ruling of Perfect 10 v. Amazon.com. According to this test, in order to constitute an infringement of the exclusive right of ‘display’ of electronic information, such information needs to be stored on the accused’s server. Hence, creating in-line links cannot amount to ‘displaying’ the information. Over the years, this test has been adopted in several cases (see Flava Works v. Gunther, Pearson Education v. Ishayev etc.) giving it the stature of a well-established precedent.

Despite this, the Goldman Court did not apply this test. The Learned Judge’s reservations against this test can be divided into two broad categories.

Firstly, she delved into the plain meaning of the right to display under the American Copyright Act, which states that “to “display” a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process…” .Traditionally thus, the definition of ‘display’ requires ‘copy’ of original content to be in a tangible medium of expression. Applying this definition, the defendants in Goldman, employed the server test to argue that there had been no ‘display’ of the photograph because the defendants had not ‘copied’ it, i.e., it was not stored on their servers. Instead, they had merely facilitated users’ access to the photograph by linking it.

The Court, however, differed from this and concluded that ‘display’ is possible by a ‘process’, other than by making a ‘copy’. It stated that the defendants took an ‘active step to transmit the photo by ‘including the code’ i.e., embedding. It opined that since these steps constituted a ‘process’ they could be construed as ‘displaying the photo’. The Court further held that the act of ‘displaying’ did not necessarily entail storing the content.

Secondly, she relied on the 2014 case of American Broadcasting Cos. v. Aereo. Aereo’s broadcasting service permitted users to watch TV programs on the Internet at the same time it was broadcast on air. Aereo argued that since users chose the program, Aereo did not choose and ‘transmit’ the program and hence, Aereo could not be held liable. This was refuted by the Court stating that such a distinction did not matter to broadcasters or users. In Goldman, the Court relied on this case to state that copyright infringement must not hinge on “technical distinctions invisible to the user” i.e., since the image was ultimately displayed on other web pages, the mere technical distinction of whether or not they were stored on other webpages’ servers need not be considered.

Debunking the Court’s Opinions

Direct Infringement Liability

To begin with, it is important to note that the Goldman Court solely focused on direct infringement liability of the defendants. Even so, the criteria laid down in Perfect 10 for proving such liability was (a) ownership of allegedly infringing content, (b) violation of at least one exclusive right of copyright holder. In Goldman, the defendants clearly did not ‘own’ the content. This brought the crux of the discussion down to whether or not there had been a violation of the exclusive right of display. With regard to that, more analysis is required. The Court’s decision hinged on the meaning of the term ‘process’. The Court brought the act of embedding under the meaning of the word ‘process’ by describing it as a series of ‘active steps’ – none of which are mentioned in the statute.

The Court’s second observation and its reliance on Aereo, was logically inconsistent since the underlying facts and technology differ in both cases. In Aereo, the ‘technical distinction’ was regarding whether Aereo or the user ultimately chose and ‘transmitted’ the programme. Such a distinction was then considered irrelevant in determining whether or not there had been a violation of the exclusive rights. In Goldman, the technical distinction of whether or not the image was stored in the defendants’ servers was crucial since such a distinction helps us to construe whether or not images were ‘displayed’.

Contributory Liability

Apart from the above, a case of contributory infringement also cannot be made out against the defendants. In order to establish contributory infringement, the widely accepted test is that the accused must be proved to have “knowledge of infringing activity” and should be “inducing, causing or materially contributing to infringing conduct of another”. In Goldman, the news outlets were completely unaware that embedding tweets would potentially result in copyright infringement since it is a fairly ubiquitous activity, done by many in the cyberspace. Secondly, the news companies cannot be said to have contributed to any sort of ‘infringing conduct’. A simple look at Twitter’s Terms of Service highlights the fact that content which is posted on Twitter may be made “available to other companies, organizations or individuals for the syndication, broadcast, distribution, promotion or publication of such Content on other media and services”. By embedding the tweet which contained the photograph, the news companies were well within their their re-posting rights under Twitter’s Terms of Use.

Incorrect application of the Server Test

Lastly, the Court’s understanding of the Server test was flawed. This test was introduced to ensure that hosts of copyrighted content, and not people who merely link it, are held liable. The amici curiae of the defendants argued that the Server test was an application of a simple principle i.e., “a person is free to tell another where they may view a third party’s display of a copyrighted work, without being held liable for infringement if that display turns out to be unlawful”. By placing liability on linkers and by not applying the test, the Court arbitrarily held the linkers responsible for another party’s infringing conduct.

The Underlying Debate

This is not the first instance where the practice of embedding tweets and other types of in-line linking has generated controversy. Aside from the harms posed to copyrighted content of owners, such practices may also adversely affects commercial interests and viewership rates of website companies. The case, however, does raise pertinent questions. Depending on the determination given to the meaning of ‘display’ in future cases, the validity of the Server Test will also come into question. In the Indian context, there have been no allegations of link liability in the context of copyright law. It will be interesting to see how Indian Courts deal with such cases and whether they will apply the Server Test when such cases do arise.

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One of the central planks of Nuziveedu’s defense in its ongoing litigation against Monsanto, that we’ve blogged about over here and here, is its claim that Monsanto’s invention is nothing but a “transgenic plant” with increased insect resistance and that the same could be protected as a “plant variety” under the Plant Variety Protection & Farmers Rights Act, 2001 (PVPFRA). As discussed earlier, this characterization of Monsanto’s claim may not be accurate but it seems to have been accepted by the Division Bench (although as explained in my previous post, the court is confused regarding the nature of Monsanto’s invention).

If Monsanto’s patent is interpreted as claiming a plant or plant variety it would mean that the patent would have to be struck down for violating the statutory prohibition against patenting plants and plant varieties under Section 3(j) of the Act. Although “plants” and “plant varieties” are not patentable under the law, it is possible for private parties to claim monopolies over “plant varieties” under the PVPFRA, which is a sui generis legislation. It is important to understand that only plant varieties and not plants can be protected as monopolies under the PVPFRA. So, for example, seed companies can’t simply claim a monopoly over all mango trees under the PVPFRA but they can claim a monopoly over certain varieties of mango trees that have been developed by a breeder (for example alphonsos) provided it meets certain requirements under the PVPFRA. Similarly, in the case of cotton, while seed companies can not claim a monopoly over the cotton plant per se, they can certainly claim protection over individual varieties of the cotton plant of which there are several.

The reason that India enacted this legislation is two-fold. First, there was a domestic demand for such a legislation from Indian seed companies who wanted to protect their new plant varieties – unlike other Indian industries, domestic seed companies in India are very innovative given the country’s long history of agriculture, we definitely have the skills to breed new varieties and it is Indian breeders who best understand Indian soil and climatic conditions. Second, TRIPS required India to provide some form of IP protection for plants under its domestic law, even if it wasn’t under patent law. The option of a separate law for plant varieties, rather than forcing it under patent law was because the Europeans have always had a separate IP system for plant varieties modelled on the UPOV treaty. (as have the Americans but this is of lesser significance since plants are patentable subject matter in the US). UPOV provides for a wide experimental use exception and allows farmers to reuse seeds – both of these features would not be allowed under the EU’s patent law treaties at the time.

The Indian government opted for replicating the European model and using UPOV as the base for its new legislation. That may not have been the best decision because the advent of biotechnology in the 80s had led to significant litigation in the EU on the bright lines between their patent law and their sui generis PVP legislation. This is because biotechnology opens the door to genetic manipulation and patent offices around the world started granting patents for biological material, usually in the form of micro-organisms.

Today, we are facing the same issues in India as the EU did in the nineties and have not learnt the right lessons from the EU which has taken steps to mitigate the effects of a possible overlap between the PVP and patent legislation. (I have a forthcoming article on the Indian overlap issue in the JWIP, although I am not sure when exactly it will be published). Further, in India we already had a Seeds Act, 1966 which regulated the quality of seeds and while I haven’t studied the issue in detail I suspect the PVPFRA overlaps with the Seeds Act to a limited extent.
But enough of history.

Returning to the issue at hand, it is necessary to understand that the definition of plant varieties would necessarily require Monsanto to be claiming a particular variety. Monsanto’s patent, as I discussed in the earlier post, appears to be claiming genes of a micro-organism placed in “any plant”. So, was the High Court correct in simply telling Monsanto to get its invention registered under the PVPFRA? I don’t think so, for two reasons.

First, if the entire claim of Monsanto’s patent was directed towards a micro-organism then it is patently clear that its invention cannot be protected under the PVPFRA especially since the legislation specifically excludes “micro-organism” from the definition of “variety”. Moreover, it is necessary to understand that Monsanto’s Claim 25 is not directed at merely at a specific variety of a cotton plant but it applies across the board to all plants (whether the claim is overbroad is a different issue). So, the debate once again goes back to the interpretation of claim 25.

The second simpler argument raised by Nuziveedu is that of “benefit-sharing”. Nuziveedu has been arguing (and the High Court has accepted the argument) that at most Monsanto can register its invention as a variety under the PVPFRA after which it can invoke the “benefit sharing” clause under the law to claim royalties from any other seed company which uses the Bt. Trait that Nuziveedu claims is the essence of Monsanto’s invention.

The “benefit sharing” provision is unique to the Indian legislation and is not present in UPOV. It is defined as follows:

“benefit sharing, in relation to a variety, means such proportion of the benefit accruing to a breeder of such variety or such proportion of the benefit accruing to the breeder from an agent or a licensee of such variety, as the case may be, for which a claimant shall be entitled as determined by the Authority under section 26”

The logic of mandating “benefit sharing” under Indian law was to protect small farmers/breeders who have bred new varieties that may have then been used by seed companies or universities as the basis for their own varieties. After all, plant varieties are always bred from existing plant varieties. Like several other “feel good” provisions in the PVPFRA, the benefit sharing provision is utterly unworkable because how ever do you determine ownership of genetic material that has never been registered and how exactly are you going to determine benefit sharing as per the proportion of genetic material used? You can have a case where there are 10 genes that are useless but 1 gene that can be gamechanger – how ever is a governmental authority going to determine the manner in which royalty can be shared in such cases? As far as I am aware, since the legislation was enacted, there has been only one case which perhaps qualified for benefit-sharing and that is the case of the HMT rice variety. Our former blogger, Mrinalini had written about the case over here and more recently the Wire reported on it over here. Even in that case the farmer never got any “benefit”.

In the facts of the present case, if Monsanto’s invention is construed as being over a micro-organism, there is simply no case of benefit sharing because the benefit sharing provisions extend only to plant genetic material and not genetic material belonging to micro-organisms. So, the entire issue circles back once again to claim construction and identifying the soul of Monsanto’s patent.

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As expected, the judgment of the Division Bench (DB) of the Delhi High Court in the Monsanto v. Nuziveedu litigation was admitted by the Supreme Court last week and the case is now slated for a hearing in July sometime. The bench of two judges hearing the matter refused to grant a stay on the operation of the DB’s judgment. While I don’t (yet) have access to the pleadings, I’m told that Monsanto’s legal team is now disputing the extent to which they waived their right to trial and are claiming that the High Court erred in assuming that they had waived their right to trial even on the issue of patent validity.

As I mentioned earlier, it seemed rather exceptional for Monsanto to waive its right to a trial in such a complicated case. The fact that they are contesting the judgment on this issue of waiver of trial clearly indicates some confusion before the Division Bench. Since Indian courts do not maintain verbatim transcripts or video recordings of the proceedings, Monsanto is going to be drawn into a ‘he-said, she said’ situation and judges tend to believe other judges. It is highly unlikely that the SC will set aside the decision on these grounds.

So how then is the appeal going to proceed before the Supreme Court?

Ideally an appeal of this nature should be confined to the appellate court examining whether there has been any abuse of discretion by the lower courts i.e. correcting errors made by the lower court if any. However, in high-profile cases like this, the Supreme Court very often ends up hearing the entire case de novo i.e. from scratch. This is what happened in the Glivec case – the Supreme Court’s judgment bears little semblance to the IPAB’s judgment.

If the court is going to hear the appeal de novo it will have a chance to finally lay down the law on some basic principles of patent law. The success of the court in this endeavour depends largely on its ability to cut through the clutter and zero into the core legal issues.

Claim construction – what is the subject matter of Claim 25 and is it hit by Section 3(j)?

The first and foremost issue, in my opinion, is the manner in which the patent claims are to be interpreted by the court. The patent claims are the most crucial aspect of any patent litigation because these claims identify the nature and scope of the invention being protected.

There are several techniques to interpret claims and the basic debate on claim interpretation is quite similar to the debate on statutory interpretation. Judges have a choice of sticking to a literal interpretation of the words contained in the claim or going for a purposive interpretation by looking at the history of the patent prosecution etc. etc. I suspect Indian judges will tilt towards the latter but whatever the conclusion the Supreme Court comes to it is important for the Court to lay down the substantive law on the issue. Common law depends on case by case evolution and this case can be an important milestone in how the Patent Office understands claim construction.

Other issues for the court to consider are whether claim interpretation is purely a question of law or fact and whether the parties are expected to lead evidence on the issue and whether a trial court should be conducting a separate claim construction hearing.

Based on the claim construction principles laid down by the Supreme Court, it will be interesting to see how it interprets Claim 25 of the disputed patent. The claim is as follow:

A nucleic acid sequence comprising a promoter operably linked to a first polynucleotide sequence encoding a plastid transit peptide, which is linked in frame to a second polynucleotide sequence encoding a Cry2Ab Bacillus thuringiensis 8-endotoxin protein, wherein expression of said nucleic acid sequence by a plant cell produces a fusion protein comprising an amino-terminal plastid transit peptide covalently linked to said 5- endotoxin protein, and wherein said fusion protein functions to localize said 5-endotoxin protein to a subcellular organelle or compartment.

In my opinion, the Division Bench of the High Court does a very poor job of interpreting this claim because it gives three different interpretations to the same patent claim.

At one point it states the invention is not a product or a process but for an “event”. In the court’s words, “in the opinion of the court…. what was granted was not a patent over the product, or even the method, but of identification of the “event” i.e. the place in the genetic sequence of the DNA where the CryAB2 protein, in the plant cell.”

At a later stage, the court states that “it is held that the subject matter, the concerned nucleotide sequence over which Monsanto has patent rights and the process is unpatentable by reason of Section 3(j) of the Patents Act”. Here the court appears to reach this conclusion on the grounds that Monsanto’s patent is for an “essentially biological process” which is specifically prohibited by Section 3(j).

Then while discussing the issue of overlaps between the Patents Act and the Plant Variety Protection & Farmers Right Act (PVPFRA) the court states that “a transgenic variety can be a “new variety” and, therefore registrable under Section 15(1) …..Therefore, there is not merit in Monsanto’s argument that its products cannot ipso facto be registered and secure protection under the PV Act”.  So here, the Court characterises Monsanto’s invention as a plant variety which again is unpatentable under Section 3(j).

So, is Monsanto’s patent, for an “event”, “an essentially biological process” or a “plant variety”? The court appears to be saying that the invention is all three – that in my opinion is a category error and highlights the importance of claim construction because only when the nature of invention is correctly identified can the court go ahead and determine whether the said invention falls foul of the criteria in Section 3 of the Patents Act before assessing the patent on other factors such as inventiveness etc.

Each set of interpretations offered by the Division Bench has different implications. If the claim is interpreted to mean an “essentially biological process” (read Eashan Ghosh’s excellent post over here for the High Court’s understanding of “essentially biological”) or “microbiological process” (read my post here) or a “plant variety” then Monsanto will have a tough time swinging the case in its favour because it will be hit by Section 3(j).

If the invention is identified as selected genes of a micro-organism and the placement of said genes at a particular location in a plant genome then I don’t see Section 3(j) tripping the patent. The analysis then will have to shift to the question of whether the said invention was novel and inventive. To determine that question, the Supreme Court will have to remand the matter to the trial court to determine the evidence.

The challenge thus for the Supreme Court is to ensure that it does not err on the issue of claim construction.

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The Business Standard recently reported that Baba Ramdev’s firm Patanjali has run into trouble under the Biological Diversity Act, 2002 and is challenging demands from state biodiversity authorities that it share its revenues with farmers whose biological resources it uses. The report is behind a paywall and Business Standard’s subscription policy requires an automatic renewal being charged to credit cards because of which I refuse to subscribe to the service. Nevertheless, the headline gives enough information to discuss the mounting issues with the enforcement of the Biological Diversity Act in India.

Let me begin with why exactly an IP blog is discussing the Biological Diversity Act. As conceived originally the Convention on Biological Diversity, 1993 which was adopted in 1993 by several countries (with the notable exception of the United States) was supposed to be an environmental treaty meant to preserve the biodiversity of the world. Simply put, the earth, especially regions like India have a tremendous variety in terms of biological resources which is gradually being eroded. For example, take rice – India was estimated to have 1,10,000 varieties of rice in 1970, which has reportedly fallen to 6,000 varieties in recent years. The fall is due to a number of reasons. The shrinking of biodiversity over generations is worrying from an environmental concern. It also has implications for food security and maintaining the ecological balance. While talks for the CBD were progressing, the WTO talks and negotiations over TRIPS led to a backlash of sorts from developing countries who seized the opportunity to set the agenda for the CBD, which was still within the purview of the United Nations unlike the WTO agreement which was driven primarily by the American government. The new agenda for the CBD now included the protection of intellectual property and traditional knowledge associated with biological resources. The idea was that if the US and EU were going to force countries like India to protect IP like pharmaceutical invention, then these countries would have to protect IP associated with biological resources – the developing world has always been much “richer” in terms of biological resources and quite often these biological resources are the starting point of successful inventions. Take for example, Placitaxel which is obtained from the Pacific Yew tree or a whole range of neem-based pesticides which are derived from azadirachtin, which is the active ingredient in neem. The ‘Kani’ example from Kerala is another good example of a model that the CBD was trying to institutionalize across the world.

The CBD then transformed from an environmental treaty into an international treaty on regulating bioprospecting i.e. the practice of collecting biological resources for scientific study. One of the key achievements of the CBD was to assert national sovereignty over biological resources. This meant that countries could control access to biological resources and impose conditions on how those biological resources were used. The earlier position was to consider natural resources, including biological resources, as the common heritage of mankind.

So, for example if there was a ‘Kani’ type situation where a tribe shared it knowledge about certain properties of a plant with scientists who were then able to develop a product that sold in the market, the scientists would be required to share royalties with the tribe. The royalties would also be used to preserve biological diversity.

The Biological Diversity Act, 2002 was enacted in pursuance of India’s treaty obligations under the CBD. Its implementation has been less than stellar. There are also major questions regarding interpretation of the legislation, which are currently pending before court. Several of these cases were covered in a guest post that we published by Alphonsa Jojan.

But let me come to the issues that are most likely the subject of Patanjali’s recent lawsuit

The first, threshold issue, is the requirement for Indian companies to seek permission prior to accessing biological resources and the subsequent need to share royalties with the biodiversity boards. This is a pertinent question because the Biological Diversity Act clearly makes a distinction between foreign companies and Indian companies. Section 3 requires only foreign companies or Indian companies with foreign shareholding or management to approach the National Biodiversity Authority (NBA) for permission to access biological resources. Indian companies on the other hand are only required, as per Section 7, to give “prior intimation” to the state biological diversity authorities before accessing biological resources in India. There is a dispute even on this aspect, with several states contending that “prior intimation” means prior permission. Such an interpretation would vest significant power in the hands of state biodiversity boards and there are several Indian companies, not just Patanjali, which are contesting this interpretation of the law. Speaking from an academic perspective, I don’t think “prior intimation” can be interpreted to mean prior permission – if that was the legislature’s intent they would have modelled Section 7 on the lines of Section 19 or 20, both of which provisions are crystal that permission is required from the NBA before accessing these biological resources.

Second, there is a debate on whether the benefit sharing provisions apply to the simple use of biological resources for their conventional purposes. For example, using barley to make beer or selling mangos as fruits are conventional purposes. Or is it the case that the Biological Diversity Act applies only to cases where there has been research conducted on a biological resource leading to a new invention or a value-added commodity. For example, if a company were to identify and extract a particular compound from a plant which then formed the basis of a new drug, then it would be required to share royalties with the biodiversity fund. Or if certain compounds were extracted from a plant which formed the basis of a cosmetic. A reading of the law, especially Section 3, 4, 19 & 20 suggests that benefit sharing provisions can be invoked only in the latter scenario. The most important definition is of “commercial utilization” in Section 2(f). I reproduce it below:

“”commercial utilization” means end uses of biological resources for commercial utilization such as drugs, industrial enzymes, food flavours, fragrance, cosmetics, emulsifiers, oleoresins, colours, extracts and genes used for improving crops and livestock through genetic intervention, but does not include conventional breeding or traditional practices in use in any agriculture, horticulture, poultry, dairy farming, animal husbandry or bee keeping;”

The definition above suggests that commercial utilization covers only cases where biological resources are used as a source for drugs, industrial enzymes etc. or where genes are used for improving crops etc. Would this definition then cover even alcohol manufacturers or companies that are involved in mere food processing?

If Patanjali and other Indian companies involved in this litigation can establish that they are Indian companies, it will very likely that they will not be required to pay up to the state biodiversity authorities. There are several more very interesting issues pertaining to the implementation of the Biological Diversity Act but I will leave them for another day.

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We are pleased to announce that the EIPIN (European IP Institutes Network Innovation Society is inviting applications for Marie Skłodowska-Curie Individual Fellowship. The deadline for submitting research proposals is September 12, 2018. For further details, please read the post below:

Do you want to apply for a Marie Skłodowska-Curie Individual Fellowship and work with EIPIN Innovation Society?

Organisation

EIPIN, a consortium of leading research and training centres in intellectual property, presents EIPIN-Innovation Society (www.eipin-innovationsociety.org).

EIPIN-Innovation Society is a comprehensive project at the forefront of multidisciplinary research, examining the role of intellectual property (IP) as a complex adaptive system in innovation. The ambition is to enhance Europe’s capacity to foster innovation-based sustainable economic growth globally. The primary research objective of the programme is to provide political leaders and stakeholders reliable conclusions and recommendations in the form of IP research on how to deal with the adaptive complexities of innovation cycles that secure economic benefits and uphold justice in the innovation society. The involvement of industry associations representing numerous undertakings provides great access to non-academic actors. Since September 2017, fifteen PhD candidates from all domains of sciences are conducting research and follow a tailor-made training programme, providing them with a solid foundation for cross-cutting research in the area of innovation policies, while overcoming a traditional separation of disciplines.

Area of Research

EIPIN-Innovation Society invites researchers interested in working with us to submit an expression of interest identifying the main lines of research to be developed as a joint Marie Skłodowska-Curie Actions (MSCA) research proposal with the assistance of the EIPIN-Innovation Society team. 

MSCAs are a set of EU funding initiatives supporting research, training and career development focused on innovation skills. The MSCA Individual Fellowship (IF) supports the most promising individual researchers from anywhere in the world. MSCA initiatives promote the involvement of industry and NGOs in doctoral and post-doctoral research: for more details see here.

MSCA IF has two types of fellowships: European Fellowships which last from one to two years and Global Fellowships lasting two to three years: more detailed information can be found here.

MSCA IF is open to experienced researchers only. This means: you hold a doctoral degree or have at least four years’ full-time research experience by the time of the deadline. The grant provides an allowance to cover living, travel and family expenses. More information on the MSCA can be found at https://www.mariecuriealumni.eu/news-tags/msca.

Deadline

The next deadline for submission of proposals is 12th September, 2018. See https://ec.europa.eu/research/participants/portal/desktop/en/opportunities/h2020/topics/msca-if-2018.html for the open call.

Research Topics

Maastricht University in particular invites proposals on the role of intellectual property in the fourth industrial revolution and sustainable development (AI, Internet of Things, the Data-driven economy, etc.).

Queen Mary University of London seeks proposals on the Commodification of Data in relation to both personal and non-personal data; The Role of Intellectual Property and Licensing Agreements for Social Welfare, specifically in developing economies; The Construction of Personality Rights in Europe and The Evolution of IP law between national, European and supranational decision making processes

The University of Alicante in particular invites proposals on any of the following topics: The need to strike a fair balance between the protection of creative content and the need to foster its dissemination in the Digital Single Market; The increasing complexity of cross-border litigation in the field of IP, including unitary titles (EU Trademarks and Community Designs) and the UPC; and Promoting innovation in food security and quality signs.

CEIPI, University of Strasbourg, welcomes proposals falling within the broad framework of Europeanisation and/or internationalisation of IP in the context of the digital economy and 4th industrial revolution. CEIPI also encourages proposals related to ethical and human rights considerations as well as EU objectives (such as sustainable development, improvement of the quality of the environment, justice, fair trade or technological advance as incorporated for example in Article 3 of the Treaty on the European Union). All areas of IP are equally welcome with a preference for patents, plant varieties rights and geographical indications.

The Max-Planck-institute for Innovation and Competition in Munich – in cooperation with the University of Augsburg – in particular invites proposals on the role of competition law for driving innovation at the interface with intellectual property, including aspects of the digital economy

Contacts

If you wish to submit an expression of interest, please contact the academic partner to which you seek to submit your proposal, under the following contact details:

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