Indian IP Policy Formulation: From Confusion to Coherence

We reported earlier on the promising appointment of V Bhaskar, a distinguished civil servant to the Department of Industrial Policy and Promotion (DIPP), the nodal agency for all matters relating to IP in India. We hoped that the government would consolidate all IP related functions (that had hitherto been dispersed amongst several IP officials) under the charge of Mr Bhaskar.

It now turns out that our hope indeed came to pass and Bhaskar has been vested with the enviable task of co-ordinating all IP issues that fall within the jurisdiction of the DIPP, including patents, trademarks, GI's and designs. However, some species of IP continue to remain outside the net of the DIPP.

Copyrights fall under the exclusive domain of the Ministry of Human Resource Development (HRD), new plant varieties fall under the jurisdiction of the Ministry of Agriculture, and semiconductors (protection of new layout designs) under the jurisdiction of the Ministry of IT. The latter is perhaps the only IP subject matter that has generated the least amount of India...and one can only envy those in charge for all the free time on their hands.

If a traditional knowledge (TK) legislation finally passes, we're not really sure which ministry will be vested with control over this. The Ministry of Environment appears to be keen on getting some of the action, as evident from overly broad "rules" that have been framed under the aegis of the Biodiversity Act to regulate TK ..rules that would appear susceptible to serious constitutional challenge, as argued persuasively by Prashant in his post here.

Interestingly, the DIPP issued a press release recently as under:

"A discussion Forum on IPR issues has been set up in the Department of Industrial Policy and promotion (DIPP)’s Website at www.dipp.nic.in with a view to have wider consultation on all IPR issues particularly those which are discussed in the meetings of WIPO.

Individuals, Organizations, Stakeholders and other interested parties are invited to post their comments on the issues identified in the discussion forum. The DIPP administers the Patents Act, 1970, The Trade Marks Act 1999, The Designs Act, 2000 and the Geographical Indication of Goods (Registration and Protection) Act, 1999.

DIPP is also the nodal Department in the government of India for matters concerning World Intellectual Property Organization (WIPO), a specialized agency of the United Nations for the matters related to Intellectual Property. "

While this is an extremely laudable initiative, I was particularly struck by the last paragraph. Is DIPP the nodal agency for all WIPO issues, including international copyright issues as well? Or does the Ministry of Human Resource Development (HRD) subsume charge and claim jurisdiction here?

Some of you may recall the unfortunate fallout between Ministry of HRD and Ministry of Commerce over the issue of a letter written by Debabrata Saha, the then deputy permanent rep to the UN. Saha had openly attacked Dr Mashelkar for chairing a meeting relating to the Substantive Patent Law Treaty (SPLT) in Casablanca.

Subsequent to this letter, most WIPO and international IP affairs were shifted by the Prime Ministers' Office (PMO) from the Ministry of HRD to the Ministry of Commerce. However, my understanding was that international copyrights (and WIPO issues related thereto) continued to vest with the Ministry of HRD. And if current practice is anything to go by, most WIPO meetings on copyright issues are attended by Mr G Raghavender, the current registrar of copyrights.

In order to make for coherent IP policy formulation in India, it is critical that the jurisdictional bounds of the various ministries be drawn out clearly. Further, India must take active steps to sort out some of the schizophrenia that is increasingly being felt between its "domestic" and "international" posturing on IP.

Pharmaceutical IP policy is likely to be particularly problematic, with several ministries moving in to claim their share of the turf. The Ministry of Commerce can legitimately claim the greatest part of the pie, given that it is in charge of patents overall. The Ministry of Health and Family Welfare could theoritically intervene and devise solutions, in so far as public health issues intersect with patents. However, it has not been too active on the "patent" front yet.

Interestingly, while the WHO IMPACT fiasco was being reported in the popular media, the Ministry of Commerce began attempting to rework the domestic definition of "spurious" within the Drugs and Cosmetics Act (DCA). To what avail, I'm not sure..as they simply lack the jurisdictional competence to effectuate any amendments within the DCA. Not too surprisingly, the Ministry of Health got wind of the situation, sprung into action and has now constituted a committee to look into the matter. One hopes that this initiative will end in a definition of "spurious" that de-links IP and drug regulation once and for all. For those interested, apparently, the committee has the following members:

1. Director, DIPP
2. Director, Ministry of Commerce and Industry
3. Director, Department of Pharmaceuticals
4. Dr K Satyanarayana, ICMR
5. DG Shah, Indian Pharmaceutical Alliance (IPA)
6. President, IDMA
7. Chairman, Federation of Pharma Entrepreneurs (FOPE)

Apart from the above, the Ministry of Chemicals and Fertilizers is starting to play a larger role in pharmaceutical patent matters. Indeed, in 2008, the Department of Pharmaceuticals was set up to exclusively focus on pharmaceutical issues. And this department has already began flexing its "patent" muscle. It was particularly active during the European drug seizures issue (though a Ministry of Commerce spokesperson was more visible in the media). A recent notice announcing a FICCI patent round-table suggests that key personnel from this Department will hold forth on section 3(d), a section that is yet to be conclusively interpreted by a court of law.

Indeed, despite the passage of 5 years since its inception, it is surprising that apart from a paragraph in the famed Novartis decision involving Novartis' constitutional challenge against section 3(d), this section has never been comprehensively looked into and interpreted by a court of law. As we note in an article, this is a section that requires plenty of ironing out and we hope that the courts will soon be offered an opportunity of doing so. For, no matter how much we discuss and debate section 3(d), the power to ultimately interpret and fashion the contours of this section vest with our courts.

Apart from the above, the Ministry of Chemicals has a little more "IP" say through its agency, the National Pharmaceutical Pricing Authority (NPPA), tasked with regulating pharmaceutical prices. With the creation of the Dept of Pharmaceuticals (DOP), NPPA functions have now been moved to the DOP.

Too many government agencies and too little co-ordination: a sure recipe for confusion. Unless we find ways of drawing out clear jurisdictional turfs, the confusion is likely to confound. More importantly, we need to find effective ways of helping them co-ordinate better with each other, so as to make for coherent IP policy formulation, both domestically and internationally.

ps: This post was an offshoot of discussions I've had with Tania Bubela, a Canadian Professor of Health Policy. I thank her for forcing me think through some of these issues.

Hollywood, Bollywood tying up to fight piracy

There are reports that Hollywood and Bollywood are launching a joint initiative against piracy in India. The MPAA on behalf of Hollywood, and seven Indian companies have decided to join together to fight counterfeiting of film copyrights. Indeed, with one of the largest movie industries in the world, there is certainly a large problem of copyright infringement, with nearly all released movies being made available illegally.
While its applaudable that they are striving harder to recognize and protect copyrights, this is a path that must be tread carefully. After all, the MPAA (along with the RIAA) is notorious for having taken a variety of 'overkill' steps in the US including showing the US Congress falsely inflated numbers of Piracy, arguing that infringement proof shouldn't be required for collecting damages, and of course it's 8 year battle against the VCR with claims that it would end the movie industry, amongst other things.

While their (supposed) intentions may be noble, it is important to ensure that similar mistakes in means to this end are not made. I repeat this point due to the history that there is regarding how this has been gone about in the past.

For instance, The Associated Press reports that "Piracy cost India's $2.3 billion film industry $959 million and 571,000 jobs in 2008, according to an Ernst & Young study, and pirated DVDs account for 60 percent of the market, according to KPMG." [For our regular readers, this is the quote I was referring to in the previous post regarding iCopyright!]

While I agree that infringement of copyright is a definite problem which needs to be addressed, I have issues with how such numbers are concluded. I was unable to find a copy of the report, but generally speaking, how these estimates are arrived at is by looking at the size of the 'pirated market' which IS NOT an indicator of the losses that the industry would've made.

That is similar to comparing free samples given out to the same products sold. The difference between piracy and such a free sample give out marketing gimmick is essentially that the supply of the product is regulated/limited when it is legal. Otherwise, the comparison shows us that many people not otherwise interested in buying the product are willing to take a free sample just to test it out. This does not mean they would've bought it had it not been free (or substantially cheaper). Also, as the existence of such a marketing practice shows, this free sampling helps the product gain visibility. Thus, looking at the size of the pirated market, completely distorts what the actual losses may have been. Similarly, I am very curious as to how the rates of unemployment are arrived at. After all, even pirated DVDs require distributors and a distribution process. (Is the problem then, that there is not enough incentive to stay in, or even get in, the white market/legit industry? If so, this possibly seems like another problem altogether? I welcome readers thoughts and comments on this.)

There are already some statements I find confusing being made by the coalition of Indian companies and the MPAA. According to this site, Rajiv Dalal of the Motion Picture Associations India office was quoted as saying, “Piracy is not a victimless crime. The RAND report on Film Piracy, Organised Crime and Terrorism has clearly demonstrated that film piracy funds terrorist activity. As such, states need to take this menace seriously and place film piracy offences under organised crime statutes like Maharashtra did in 2009,”

At the same time, according to TOI, speaking on the issue of piracy, MPAA chairman Dan Glickman was quoted saying, "Free is great and everybody likes things for free. In a civilised society, we need to pay for products and services. I believe that as an industry, if we offer people products at reasonable prices in a hassle free manner, people will not steal."

I fully agree with the latter part of his statement and agree that this is the way forward in the light of the digital world. However, coming to the former part of it - if people are getting films for free, where is the funding of the terrorist activity mentioned earlier? Indeed, other reports quoted by them go on to say that the majority of sharing is by online file-sharing, ie, free. It might be better to take stands that aren't contradicted by another statement from within the coalition itself. I find an approach of throwing everything, and seeing what sticks, a kind of logically lacking approach to lobbying for change/enforcement.

Having said that, I would like to emphasise on the importance of contextualizing copyright enforcement and the copyright regime in general, and not blindly following others in this dynamic and quickly changing scenario of copyright law. After all, as the largest producers of movies, and being in a developing economy, does it make sense to follow the norms settled down by a movie industry which ignored piracy during its own origins and formative years (yes! Hollywood, and even America's music industry was in fact started due to piracy. See here) but now, being based in a developed economy, seek to impose the same way it has of working on other developing economies such as ours? For us to follow them at this later stage, without considering how they got to this place might prove to be detrimental.

Certainly, I’m not saying that we too should pirate, but rather, that we should be careful while jumping onto their bandwagon now, for it may not be one which is in our best interest. Instead, I would again, look towards the latter bit of Dan Glickman's statement as one to show the way forward: "I believe that as an industry, if we offer people products at reasonable prices in a hassle free manner, people will not steal."

iCopyright? iCopywrong? Whither fairness?

While I was starting to write a post (to be put up soon) on the MPAA joining 7 Indian companies something very interesting caught my eye. I wanted to post a short excerpt from the Associated Press article that I first saw it from, but was stopped by something I found rather peculiar. Scrolling down, at the bottom of the article I saw a hyperlink provided by iCopyright, entitled "click here for copyright permissions". I had intended on excerpting a couple of lines from the article to critique, and hence would be covered adequately covered by a fair use exception; however, I thought that providing such a link was a welcome change in the internet world, where one is never sure of who's copyright one is infringing upon (not that the non-digital world is a lot easier!)

My pleasant surprise however, quickly turned to sour when I saw what was on the other side of that link. From 5 words and onwards, there is a license fee from $7.50 up to $75 for posting excerpts for Educational and Non-profit use. ['for profit' uses are charged at a different rate].

There is also the following statement: "Please honor copyright! Piracy hurts creators, devalues their works, and puts you and your employer at risk". I note that there is no mention of fair use/dealing anywhere on this page, however, I'm certain that for legal purposes it must be mentioned somewhere. True enough, buried 3 or 4 links from the starting page, there is a page where it is mentioned that fair use/dealing does not require licenses, with the 'disclaimer' that its never certain as to what consists of fair use/dealing, and the 'friendly advice' that the safest option is to get a license, leaving it implied that there is always a risk to assuming you fall under an exception. There is also a brief page stating that iCopyright (the company enforcing the licenses) has the technology required to track down unlicensed uses.

Hypothetically, had I been a lay user who wants to respect copyright, I have the following points, and only the following points in front of me:

• I should seek a license for posting an excerpt of 5 words or more.
  
• If I dig far enough to find that there is exists a fair use exception, I see a bunch of variables with no clear mention of the exceptions which would provide me a safe harbour.
• Me and my employer are at risk if I don't take such a license.
• They have the technology required to track me down if I decide to take a chance.

I think I can safely say, my reaction would be one of the following:

• It's not worth excerpting. Forget about putting it up.
  
• Pay up.

..... Even if I was entitled to make use of it for free under a fair use exception.

Now, I'm sure that this won't stop users who know what their rights are, and when they would fall under a fair use/fair dealing exception. There are also plenty of users who wouldn't bother to check for such a license in the first place. I also acknowledge that they are technically not saying anything untrue, and 'can' claim that they are merely stating facts. But, in a world where there is such a strong push for more awareness and respect for copyrights, is this really the kind of scenario we want to see pushed forward? - one with such a bias of information flow, which I'm submitting is as close to legitimately 'threatening' users into paying them, regardless of the type of use.

Brazil set to Cross-Retaliate against US

Brazil seems to be all set to be the first country to use the IP Cross Retaliation provisions of the WTO, after their approval last year by the WTO. Earlier today, Brazil revealed a preliminary list (subject to a public hearing) of restrictions and suspensions on various areas of IP of US goods and products. Cross-retaliation essentially refers to the right of a country to retaliate against an offending country through means of retaliating against a sector of an agreement of the WTO other than the one violated.

(Readers may remember posts by Shamnad and Prashant earlier on Brazil seeking WTO authorization to cross-retaliate against US due to their long standing dispute regarding cotton subsidies by the US which violated WTO obligations. Also see Shamnad's paper available on SSRN: Turning TRIPS on It's Head: An IP 'Cross Retaliation' Model For Developing Countries)

They certainly seem to mean business by the looks of the list, which includes patents in the areas of pharmaceuticals, chemicals and biotechnology. Movies and music too are covered under the copyright section of the list. They expect to impose these measures up to the extent of $239 million this year. Earlier in the week, Brazil also revealed a list of 102 U.S. goods which would be subject to import tariffs as well via means of traditional retaliation. In total, the expected retaliation would be around $830 million.

With regards to the patents, the new measures would allow the Brazilian government to anticipate their expiration, allowing for instance in pharmaceuticals, the introduction of generic drugs earlier than expected. "They would also allow Brazil to issue compulsory licenses without compensation in the drugs, chemical, music and audiovisual industries. The measures listed in an official publication would also allow the government to increase fees and tighten regulations on the registration of intellectual property rights." [as per TD Waterhouse here]

The move to cross-retaliate reflects the seriousness of the issue to Brazil. After 8 years of litigation and 4 years of non-compliance by the US with the Dispute Settlement Body of the WTO, this seems to be one of the few, if any, effective courses of actions left that Brazil can take.

As stated by the Camex (Brazilian's Chamber of Commerce),

"The Brazilian Government regrets having to take these measures, since it believes that trade retaliation does not constitute the most appropriate means to attain international trade on a fairer basis. However, after almost 8 years of litigation and over 4 years of continuing non-compliance with the rulings of the Dispute Settlement Body on the part of the United States, and in the absence of the offering of concrete and realistic options that could allow for the negotiation of a satisfactory solution to the dispute, it remains for Brazil to exercise its right, as authorized by the WTO. Brazil thus seeks to safeguard the credibility and the legitimacy of the multilaterally agreed dispute settlement system.

Brazil remains open to a dialogue with the United States that may facilitate the achievement of a mutually satisfactory solution to this dispute"

I find it very encouraging that a developing country is taking this strong stance against the usual strong arm tactics of the more developed nations, departing from the usual meek approach.
This cross-retaliation is no doubt a messy last ditch effort, but not one that can be as easily brushed off. Indeed, Brazil too has reason to worry about loss of investment due to the threats of cross-retaliation, but against this, it has to balance out the interests of their own people, (considered in the backdrop of US's cotton subsidies) as well as its position on the international stage. This kind of heavy pressure is a definite way of balancing out the inequity in bargaining power between states, such as can be evidenced by the long time ignorance by US of the issue, despite its international obligations. As per Reuters, U.S. Trade Representative Ron Kirk said last week the United States still hoped to strike a deal with Brazil to avoid the sanctions. If it cannot, it will have to try to persuade Congress to change the U.S. cotton program to satisfy Brazil's concerns.

A minister has also clarified that these measures do not indicate that a change in approach by Brazil towards Intellectual Property, but rather should be viewed as what they are - temporary measures meant to put pressure on the US. It is likely that this is sufficient to cause a big enough stir amongst industries within the US for their infamous lobbyists to get into action, however we will have to wait and see how this plays out.

In the mean time however, this step in itself, is one which other developing countries like India, could learn from.

(I would like to thank Ms. Manuela Correia for pointing me towards this development)

Guest Post: Challenging Pre-Grant Orders Through Writ Petitions: Delhi HC Clarifies

In 2 earlier posts, I had discussed in detail the decision of the Delhi High Court ruling that rejection of patent applications in pre-grant oppositions are appealable before the IPAB. A guest post too was written by Adithya Reddy on pre-grant appeals; in this guest post, Adithya continues the discussion with his pithy analysis of the Delhi High Court’s decision. Although belated no thanks to inadvertent delay on my part, (for which I owe my apologies to Adithya) the guest post below touches an aspect of the issue which I had not dealt with directly in my posts:

Adithya Writes:

Readers may recollect that I had posted a comment on the practice of challenging Pre-Grant orders through writs in the light of a decision of the Bombay High Court on Cadilla Health Care’s patent claim (Golchem Industries Ltd Vs. Cadila Healthcare Ltd). I had remarked that as a matter of principle a failed pre-grant objector should not be allowed to approach the High Court under Article 226. My discussion centered around the Golchem case and the decision of the Madras High Court in Indian Network for People living with HIV/AIDS Vs. Union of Indian & Others, MIPR 2009 (2) 36 (case pertaining to Hoffman-La Roche’s patent on Valganciclovir).

I just wanted to bring to everyone’s attention, the latest judgment of a division bench of the Delhi High Court in UCB Farchim SA Vs. Cipla Ltd & Others (MANU/DE/0297/2010), deciding a batch of Writ Petitions that delve into the issue of maintainability of Writ Petitions against the orders passed by the Controller. In the Court’s own words-

“the challenge in these writ petitions is two types of orders of the Controller in a pre-grant opposition filed under Section 25(1) of the Patents Act. One allowing such opposition and refusing the grant of patent. The other, rejecting the opposition and granting the patent.” With respect to the former i.e. orders by a which pre-grant opposition is allowed, the Court took little effort to hold that-“in the considered view of this Court where the grant of patent is refused by the Controller after accepting a pre-grant opposition under Section 25(1) of the Patents Act, the applicant for a patent will have a remedy by way of an appeal to the IPAB under Section 117A of the Patents Act. The refusal to grant patent is in fact relatable to and should be understood as an order by Controller under Section 15 of the Act which order is in any event appealable to the IPAB under Section 117 A.”

Therefore, the Court refused to entertain the Writ Petitions challenging such orders holding that Section 117 A provides for an express alternate remedy.

However, it was while dealing with Writ Petitions against orders rejecting pre-grant oppositions, that the Court made some very interesting observations. The Court enlisted all the differences between the nature of proceedings under Section 25 (1) and 25 (2) and came to the conclusion that “where the pre-grant opposition is rejected, it is apparent from the decision in J. Mitra and from a reading of Section 25 with Section 117A that as long as the person who has filed that opposition happens to be a person interested, he would,… have the remedy of filing a post-grant opposition. He can,…, also file an application before the IPAB under Section 64 of the Patents Act for revocation of the patent. He in fact has two remedies.” Therefore, to that extent the law on the point has been clarified in a manner not done by any of the earlier judgments.

The Court specifically dealt with observations of the Bombay High Court in the Golchem Case and observed pointedly that “to this Court it appears that the settled law as explained in several decisions of the Supreme Court (which incidentally have not been adverted to by the Bombay High Court in Glochem) makes it clear that this Court should not entertain the writ petition, not because it does not have the power or jurisdiction, but because the petitioner has an efficacious alternative statutory remedy to exhaust.”

There is a crucial point to be noted in the Delhi High Court’s decision vis-à-vis certain observations made by the Division Bench of the Madras High Court in the Hoffman-La Roche case. I wish to clarify that though on an appeal filed by Roche, the Supreme Court passed certain orders (directing the Controller to decide upon the post-grant oppositions within a time-frame, after the Controller confirmed the grant of patent at the pre-grant stage), it did not touch upon or expressly reject any of the legal observations of the Madras High Court.

One such observation of the Madras High Court was that “the third respondent (i.e. the Controller while deciding a pre-grant opposition) functions as a quasi-judicial tribunal and has to decide the lis namely, the right of the objector raised on a wider perspective as against the claim of patent by the fourth respondent (Hoffman-La Roche).” (portions in brackets added). The Madras High Court specifically negatived Roche’s contention that the “Controller merely acts in an administrative capacity and in such a situation he does not decide any 'lis'.”

In my view, the Delhi High Court has clearly differed from this view by observing that “the pre-grant opposition is in fact ‘in aid of the examination’ of the patent application by the Controller.” If that is the case, it is difficult to say that the Controller is deciding a ‘lis’ or a dispute in a quasi-judicial sense between two parties.

As discussed in the earlier post, the issue of natural justice violation that arose before the Madras High Court did not arise before the Bombay or Delhi High Courts, and to that extent the ratio of the Roche decision with respect to maintainability of Writ Petition is not relevant. But the difference in opinion between the Courts on the precise nature of pre-grant proceedings will make an extremely interesting subject for further study.

The Delhi High Court was equally categorical in observing that a failed pre-grant objector should not be allowed to file a Writ Petition, on the ground of availability of alternative remedies, only if he is an “interested person”. In my view, there is no reason to assume that “interested persons” need to be commercial competitors. Though, an elaborate discussion on the point requires more study and space, I wish to point out the Delhi High Court’s observation, that the Supreme Court in Roche’s Appeal from the Madras High Court, allowed the pre-grant opposers to participate in the post-grant stage.

This is relevant because the pre-grant opposers were NGOs claiming to be working for people affected with HIV/ AIDS. To that extent, the Delhi High Court’s view that unsuccessful pre-grant objectors should choose post-grant opposition as a remedy over filing a Writ Petition, would hold good for NGOs and other such groups who claim to be affected by grant of the patents.

FICCI-MSME IPR Awareness Programme

Federation of Indian Chambers of Commerce and Industry (FICCI) in association with Ministry of Micro, Small & Medium Enterprises (MSME) have taken the initiative to conduct an IPR awareness programmes at various cities across India for SMEs. The primary objective of these programmes is to facilitate and support for the MSMEs, Industry Association and other concerned stakeholders in raising awareness on IPR related issues in general and more specifically on educating them about the value and protection of IPR and its benefits to the economy. 

Venue: Delhi, Mumbai, Bangalore, Chennai ,Hyderabad ,Jaipur, Ahmedabad & Kolkata.

Period of training :  Between March 2010- July 2010.

Tentative Dates

1.       Delhi -   March 25   
2.       Mumbai- April  30  
3.       Chennai - May 7      
4.       Ahmadabad-  May 21     
5.       Kolkata-  June 4     
6.       Bangalore- June 18    
7.       Hyderabad-  July 2 
8.       Jaipur-  July 16    

Kindly register to participate.

Please contact:

For programmes in Delhi, Chennai , Hyderabad & Jaipur 

Mini N Nair,Senior Assistant Director (FICCI-IPR Division) at Mini.nair@ficci.com   

For programmes in Mumbai, Bangalore, Kolkata & Ahmadabad

 Deepak Arora,Research Associate (FICCI-IPR Division) at Deepak@ficci.com

We at SpicyIP hope that the event will turn out to be a great success!

Himalayan case: Delhi HC rules on 'scope' of TM Registrar's role

The Delhi High Court recently decided a question on the role of the Registrar of Trade Marks, and defined the limits within which the office ought to operate, in a case involving two players in the mineral water industry - Bisleri International Pvt Ltd ("Bisleri") and Mount Everest Mineral Water Ltd ("MEMW"). You can download the decision here.

We've covered disputes between these parties before - here and here. But while the suit for passing off, etc., remains alive in court, the case here tackles orders of the Intellectual Property Appellate Board (IPAB) dealing with the Registrar's statement on certain TM registrations.
(Mount Everest's image from here.)

A. The backstory -

MEMW holds three registrations for the mark `Himalayan‟ for mineral water issued by the Delhi TM Registry. MEMW sued Bisleri in the Delhi High Court in 2008 to restrain the latter from using "Himalayan" for mineral water, etc, which is still pending.

Around the same time, Bisleri filed rectification petitions at the IPAB against MEMW's TMs. The IPAB then issued notice to the Registrar of Trade Marks under section 98, TM Act 1999 to submit a statement. In response, a Senior Examiner of Trade Marks, Mumbai submitted a statement (which reached the media before it reached the parties to the case!) The statement essentially said the TM registrations were prima facie not justifiable, and were wrongly remaining on the TM Register. Questions about the content of the statement, dates on which it was issued, recorded and forwarded, prompted MEMW to inspect relevant office records.

MEMW's application under the Right to Information (RTI) Act at the Mumbai TM registry (since the statement originated from there) was responded to thus: that the TM office had "not given any opinion in such IPAB matters of Mumbai or any other branches". The RTI instead got forwarded to the New Delhi TM registry, since the TMs were registered by that office. The New Delhi office, and rightly so, said the statement in question had not been issued by them.

Suspecting things to be amiss, MEMW asked the IPAB to strike off the Senior Examiner's statement from the rectification proceedings, alleging it was filed in collusion with Bisleri, and that the Sr Examiner had overshot the scope of his role under Section 98. Rejecting these petitions, the IPAB said the Sr Examiner's statement “seems to be like a report given by the Registry after registration”, and refused to examine whether the officer had the power to file such a statement at all. The statement had been filed upon directions from the IPAB, and therefore no illegality had been committed, and it need not be taken off the record. (Image from here.)

This order was challenged in the present case, a key contention being whether or not an officer from the Mumbai TM Registry could be sent where a notice is issued to the Registrar under section 98. The judgement was delivered by an old IP hand, Justice S Muralidhar.

B. The decision -

In a nutshell - Section 98(1) says the Registrar has a right to appear in rectification proceedings at the IPAB or where questions relating to practices of the Trade Marks Registry are raised. He shall appear “if so directed” by the IPAB. Section 98 (2) says the Registrar may, instead of appearing and deposing, submit a written statement, with such particulars as he thinks proper of the proceedings before him relating to the matter in issue.

The TM Act allows the Registrar to designate and appoint officials to represent him in matters. The defence sought by Bisleri was precisely this, i.e., that the Sr. Examiner was an officer-designate, and therefore, entitled to depose before or submit a written statement to the IPAB.

1. Who may appear, and when:

Contrary to Bisleri's argument, the court interpreted S. 98 thus: the person who appears before the IPAB as Registrar or submits a written statement has to have some knowledge of the proceedings. This can be either personal knowledge or knowledge derived from the records of the case. Where the statement requires a clarification on the general practice of the TM Registry, a duly authorized officer of the TM Registry's HQ (at Mumbai) may depose.

In this case, the notice issued clearly did not relate to the general practice of the Registry. The court noted that since the Registrar was not himself going to depose, "he should have ideally authorised an officer from the Delhi Branch to submit a statement", since the Delhi office had granted the marks which were challenged.

Rapping the IPAB in equal measure, the court held that the Board should, as regular practice, highlight the purpose for which it requires the Registrar to depose, i.e., whether it relates to TM Registry practice, or to a particular TM application.

2. Registrar's statement must be neutral and objective:

The scope of the role of the Registrar or the authorised subordinate officer is to depose based on personal knowledge (if matter handled personally) or on the basis of knowledge from records. According to the court, the Registrar/ officer may not use this as an opportunity to explain why a certain registration ought to have or ought not have been granted, i.e., this is not a forum/space to review or comment on the decision to grant a registration.

The court drew the boundaries of the role of the Registrar, i.e., that under this section, he was a "necessary" party and not a "contesting" party to the proceedings. He is a party only to the extent that he is to assist the IPAB in understanding what transpired in the run up to the registration and nothing more.

The court noted that the Sr Examiner's statement in stating that MEMW's registrations had been wrongly granted, ran "contrary to the legal requirement of the Registrar or his duly authorised subordinate having to strictly observe neutrality and objectivity in relation to the case on hand. Such a statement cannot be allowed to remain on the record of the rectification applications before the IPAB."

The IPAB came under the hammer here for procedural delay -- the decision of whether a statement should be accepted as evidence or not ought to have been taken at once, especially since the Sr. Examiner's statement clearly exceeded the scope of the role of the Registrar. Pushing this decision to a later date, "would lead to avoidable wastage of time".

C. My comments -

I find this an excellent interpretation of the section, which, apart from defining the scope of the Registrar's role, removes the possibility of several loopholes in practice at the TM Registry, including the possibility of obtaining statements by officers who may not be in the best position to do so. Image from here.

In a circuitous way, the decision decentralises issues of accountability in post-registration matters, as procedure ought anyway to be. Now, the TM HQ need not bear the sole responsibility in post-registration matters any longer. The court has clearly observed that where issues relating to specific registrations are in contention, a deposition under S. 98 ought to be made by officers familiar with the file, rather than by any ole' TM officer.

While the "Himalayan" case continues, do TM practitioners have any thoughts on the changes in Registry practice this decision may bring about?

GIIP Program on Patent Protection, Enforcement and Management

Global Institute of Intellectual Property is a leading Intellectual Property (IP) training company, co-headquartered at New Delhi, India and San Jose, USA. GIIP, a pioneer in IP education has been involved in capacity building for IP professionals and has provided excellent placements to all its students. It has an enduring recruiting and alumni relationship with leading firms and companies like Amarchand & Mangaldas, Anand & Anand, Infosys & Ranbaxy Laboratories. One can also avail of the special 10% discount in the program fee only for readers of Spicy IP. Save Rs.12500 by registering through SpicyIP.

Program Title: Executive Post-Graduate Program in Enforcement and Management

Dates: 12th April 2010 to 28th May 2010 (full time)

Mission: To build professional skills in the field of patents.

Great things about the program:
• 175 hours of curriculum, covering three jurisdictions – India, US and EU.
• One to one mentoring sessions.
• Assessment methodology to include classroom assignments, group discussions and final examination.
• Special sessions on personality development, writing and presentation skills.

Eligibility:
• Graduates (science, engineering and other technical degrees) with 1-2 years of work experience or
• Post-graduates (science, engineering and other technical degrees) or
• Legal professionals (LL.B. & LL.M) and
• Compulsory proficiency in English.

The best part, assured placement:
All participants of the Program are assured placement with leading LPOs, KPOs, Law firms, Corporate, MNCs in India. Lead time for a candidate to join may vary between 30-45 days from the date of completion of the program.

Program Content:
I. Introduction
II. Patent Protection
III. Patent Enforcement
IV. Patent Management
(Please click here for a detailed curriculum)

Class Schedule: 10:00 am – 3:30 pm (Monday to Friday)

Venue: 45, FF, Okhla Industrial Estate, Phase III, New Delhi - 110020

Registration and Selection process:
Application form can be found on the GIIP website. The filled in application with a photograph and registration fee of Rs.5000/- has to be submitted at GIIP’s office on or before 31st March 2010.
Registration fee has to be paid through a cheque /DD drawn in favour of Global Institute of Intellectual Property Pvt. Ltd. payable at Delhi.
The selection team will short list and screen the candidates after the registration.

Important Dates:
Pre-registration: February 21, 2010 – March 31, 2010
GIIP’s list of short listed candidates: April 1, 2010
Corporate list of short listed candidates: April 8, 2010
Enrollment: April 8 2010 – April 2010
Program : April 12, 2010 – May 28, 2010.

Program Fee: Rs. 1,25,000 (One Lakh twenty five thousand only)

SpicyIP discount: Special 10% discount (Rs. 12500) for SpicyIP readers. Please mention on the application form that you are registering through SpicyIP to avail of the discount.
For more information about the program and registration click here.

Patent Job Vacancies in Bangalore

Great job opportunities at a leading law firm in Bangalore. If interested please mail your CV to spicyipjob@gmail.com.

Position Title: Trademark Attorney

Firm Profile: One of India’s leading law firms

Location: Bangalore

Roles and Responsibilities:
Covering broad areas of Trademark Law(India &International) including prosecution, litigation and research.

Required Qualification:
i. 1 year experience with law firms/companies in areas of trademarks and possess good academic credentials
ii. Law graduate
iii. Excellent communication skills in English, both written and verbal
iv. Computer literate

Salary:
Commensurate with the best in the industry

Guest Post by Feroz Ali: Making Patents Work

It gives me great pleasure to bring our readers a thought provoking piece by one of India's legal IP practitioners' - Feroz Ali Khader. Feroz Ali is an advocate practising at the Madras High Court and the founder of Ali Associates, a law firm which specialises in law and technology practice. He is the author of India’s first legal work on patent laws and pharmaceuticals titled “The Law of Patents – With a Special Focus on Pharmaceuticals in India”, published by LexisNexis Butterworths India, 2007 (hardback, paperback Student’s edition published in 2009). He authored “The Touchstone Effect: The Impact of Pre-grant Opposition on Patents”, published by LexisNexis Butterworths in 2008, a book which guides companies to have a strategy on pre-grant opposition. He is an alumnus of Trinity College, University of Cambridge, United Kingdom and National Law School of India University, Bangalore, India. He is a frequent speaker and a published writer. He is presently based in Chennai.

As will be witnessed below his mastery over the law is rivalled only by his mastery over the pen!

Making Patents Work

Of all those who are likely to challenge the validity of the public notice dated 24th December, 2009 issued by the Controller-General of Patents, requiring periodic working statements on patents, I would expect Acacia Research to be in the forefront. I am making a big assumption here about Acacia’s interests in India (Disclosure: My interest in Acacia is purely botanical). For the record, Acacia holds many patents that are not worked. Yet as a business, Acacia works. It’s main source of revenue, by a business-model proved and tested over the last 18 years, comes from filing patent lawsuits–337 of them so far and still counting– and expecting settlements from infringers who actually ‘work’ (Patentspeak: infringe) the invention for which Acacia holds a patent. In early February this year, Acacia was awarded $12.4 million in a patent infringement case against Yahoo!

Some may call this lethargic-cum-exploitative behaviour trollish. In a milder version of patentspeak, those who don’t work their patents are called Non-Practicing Entities (NPEs). NPEs are entities that do not have the capabilities to design, manufacture, and distribute products that have features protected by patents. The Dual-SIM card case, elaborately covered in this blog, was one such Indian case involving an NPE.

NPEs are most-affected by the Controller’s public notice as they will now have to submit working statements by 31st March, 2010. The Public Notice requires all the patentees to furnish information in Form No.27 on working of patents prescribed under section 146 of the Patents Act read with rule 131 of the Patents Rules 2003. While the effort of the Patent Office to require information on the working of patents is laudable, and can take care of some issues involving NPEs, it does create difficulties for entities who propose to practice their patents (PPEs – Propose to Practice Entities). A PPE is an entity which is not able to fully commercialise their invention for financial, regulatory, and business reasons. PPEs defy classification. It could be a heavy-weight Pharma or your neighbourhood garage inventor.

PPEs may have their own reasons for challenging the public notice in a court of law.

Here are some interesting questions a PPE can raise, which do not meet the eye at first glance (they didn’t meet mine, anyway).

1. What is the justification for requiring working statements from patentees?
Working of a patented invention is not a requirement for the grant of a patent or for the continuance of the patent in the Register. A distinction has to be made between ‘using’ and ‘working’ of an invention. In fact, the Act defines an invention as a product or a process which is capable of industrial application, ie, the invention is capable of being made or used in an industry. ‘Use’ of an invention is one of the rights protected under section 48 and when the invention is found not useful it may be revoked under section 64(1)(g) of the Patents Act, 1970. Regardless of whether an invention is worked or not, the utility requirement is satisfied is the invention is capable of being made or use, which includes prospective use in the future.
The only justification for requiring the information could be with regard to Chapter XVI of the Patents Act which deals with Compulsory Licences (CL).

2. Is the requirement of working relevant only from the view point of compulsory licences?
You can do a ‘control+F’ for ‘working’ in the Indian Patents Act, 1970. Barring a couple of instances on how (prior) working can kill novelty, your search results will bring you back, time and again, to the chapter on compulsory licensing. All the hits on post-grant working are from Chapter XVI. Of course, there is section 146, the subject matter of deliberation here. That’s how relevant post-grant working is under the Indian Patents Act.
The requirement of furnishing a statement with regard to working of patented inventions on a commercial scale in India is mandated under the Patents Act, 1970 only in the context of compulsory licences (CL). The need to apply for a CL arises only after 3 years after the grant of a patent. So, leave the inventor alone at least for the first three years.
Should the interested person who applies for the CL have knowledge about the working of the patent? If yes, there could be some justification in the Controller calling for this information and publishing the same. The answer is ‘No’. All the applicant for a CL is required to make is an allegation [See section 84(2)] that the patented invention is not worked in India.
Does Form 27 give comprehensive information on the granting CLs? No again. Form 27 does not help the two other grounds in section 84(1)(a) and (b) under which CL can be granted.
I have heard some wonderful stories on the Chapter on Compulsory Licences. The best anecdote involves the first and probably the only Compulsory Licence that was granted by the Patent Office only to be stayed by the vigilant patentee who moved the court on the same day. Going by this account, we in India have had a CL in force only for few hours.

3. If working information is required only in the context of compulsory licences, which may or may not come through, then why mandate periodic statements for all the patentees?
That’s precisely my point. The scale of cost, time and resources involved in filing regular worksheets to the Patent Office is one thing which should be avoided. You can well imagine the Patent Office starting a new database containing working information about all the patents that are renewed regularly in the hope that someone someday will file a CL for working the same in India on a commercial scale.

4. If not Form 27, how will the public know about the working of a patent then?
Section 146(1) allows the Controller to call for any information as opposed to limited information that a patentee will file under Form 27. Under section 84(2), all that is required for the applicant of a CL to make is an ‘allegation’ of non-working. An interested person (the ones who can apply for a CL – not the general public) can be expected to have a fair knowledge about the grant and the working of the patents in which he is interested.

5. What about the abuse that can flow from filing Form 27 by a patentee who proposes to work his invention?
Notice that there is no ‘propose to work’ box in Form 27 to be ticked. Even if the PPE needs time to work her invention, she will have to tick ‘Not worked’. If the activities of PPE, who let us assume has invented something of substantial value but also needs substantial funds to bring the same into the market, are followed by some persons who are interested in busting the patent all they need to do is file a CL under section 84 after 3 years stating that the patent is not worked. When the CL is granted, another person (who could be the proxy of the one filing the application for CL) can wait for another two years and file for revocation under section 85. Our PPE will helplessly witness the patent revoked for not working right before her eyes. This may be a worst case scenario, but it is a probable one under the present scheme of things.
As patents are applied for at an early stage in the life of an invention, inventors will require time to further develop and commercialise their inventions. For the sake of innovation, they should be left alone.

I would propose that the Controller does not take any action, like the threatening action under section 122 (which finds mention in the public notice) in case patentees do not comply with the public notice. The Controller is anyway vested with wider powers under section 146(1) which he can discretionarily use on a case to case basis, rather than mandatorily warrant some stray information on working under section 146(2). Section 146(2) may also inflict a culture of lying or speaking the crooked truth, which can merit a separate post, on which I am ..., eh, propose to work.

SpicyIP Tidbit: Patent Office upgrades the Indian Patent Information Retrieval System (IPIRS) to provide for 'application status'

SpicyIP is thrilled to inform its readers that the Indian Patent Office has comprehensively revamped its 'Indian Patent Information Retrieval System' (IPIRS) to not only make it more asthetically pleasing to the user but also provide an extremely useful search feature on the 'application status' of pending applications.

As our readers may know SpicyIP has always been an ardent advocate of an effective digital patent database since such a database would go a long way in increasing transparency and strengthening the patent system in India.

Coming back to the new 'application status' feature – this feature requires the person to key in the application number to check the status of the application. On keying in the number of the application the user is provided with the following details:

(i)Applicant name;
(ii)Date of filing;
(iii)Priority Date;
(iv) Title of Invention;
(v)Publication date under Section 11(A);
(vi)Post-Grant Journal Date under Section 43(2);
(vii)Status of the application.

It was also a pleasure to notice that this search feature is compatible even with new browsers like Chrome since interactive government websites usually work with only Internet Explorer.

I think we should give credit where it is due and congratulate the patent office on its continued efforts to digitize the patent database.

Rin v. Tide: Calcutta HC Stays the Rin Ad

According to news reports, the Calcutta High Court has stayed HUL's Rin Ad and has said that the ad is a clear case of disparagement. An injunction has been granted on the grounds that the voice-over in the ad spoke of Tide whereas the ad showed Tide Naturals and that there were inherent defects in the affidavits submitted by HUL to support its claim of superior whiteness.

HUL has been asked to withdraw the ad to which the company pleaded that due to difficulties with satellite feeds, it could not withdraw the ad, but has said it would reduce the frequency of the ad.

Mr Muscle creams CIF in Delhi HC

The on-going dispute in the Tide/P&G vs Rin/HUL comparative advertising matter reminded me of a recent order of the Delhi High Court lying in my inbox for a few weeks, dealing with a comp ad dispute in the domain of kitchen cleaners - between Mr Muscle Kitchen Cleaner and CIF Cream. (You can download the case from the DHC website here: case title: SC Johnson & Son, Inc vs Buchanan Group Pty Ltd)

This case does not entirely apply to Rin vs Tide, simply because CIF's ad - which came under scrutiny - did not mention any competing product by name, leaving some room for ambiguity, and a possible defence.

Sai has already discussed the Good Knight vs Odomos judgement delivered in February this year. That is a more comprehensive decision, certainly, but I highlight this case because Justice Rajiv Shakdher here, while granting a temporary injunction in favour of Mr Muscle, (I'll keep my pun-frequency low, I promise) made some relevant observations about intention to compare by innuendo and the effect of an advertisement on sales.

A brief run-through the facts:

Mr Muscle alleged that CIF's advertisement was derogatory of its own product: the CIF ad shows, among other things, an orange-coloured container with a unique indentation and nozzle/trigger (similar to Mr Muscle's container), and presents that an advanced product like CIF can remove tough kitchen stains better than any others. This ad ran on television from August 2009 to October 2009, after which the ad was unilaterally withdrawn. However, it continued to live a life of its own online (no luck with my searches so far, though).

CIF et al (I know, you ask, can a kitchen cleaner be a man?, but do humour my Latin, for I learnt only Sanskrit) raised various defences including the 3-month delay on the part of Mr Muscle in coming to court. That contention was anyway shot down, since CIF failed to assure the court that they would not run the ad again.

CIF also ran the court through a frame-by-frame description of the ad, and pointed out several issues for the defence, including that CIF is compared with a blue coloured container in the final frame, implying that the comparison with "other" kitchen surface cleaners is generic, and can't be deemed to attack Mr Muscle; and the statement that the cleaning efficacy of CIF due to micro particles in the product was a statement of fact backed by laboratory tests.

The court's observations, while allowing the temporary injunction, were as follows:

A. Attempt to compare by innuendo:

In the ad, CIF is shown to be more efficacious than other kitchen cleaners, which are shown in containers of various colours, including an orange one with the nozzle in the form of a trigger. However, there were several other orange-coloured containers available in the market similar to the one shown, and neither the colour nor the trigger-nozzle could be said to be unique to Mr Muscle.

"But these differences by themselves, prima facie, cannot come to the rescue of the defendants as there is by innuendo a reference to plaintiffs product amongst others. The advertisement .. runs for ...perhaps not more than 30 seconds. The time frame available to a consumer to appreciate the difference is so minimal that the fine distinctions pointed out in court can have no meaning. ...The defendants' insistence on having [an orange coloured container with a nozzle in the form of a trigger] included in the impugned advertisement, prima facie lends credence to the plaintiffs' assertion that there is an attempt to compare."

On whether such an attempt to compare amounted to denigration, the court noted that the ad showed CIF could clean "tough kitchen stains" (I repeat, do not look for puns) with least effort as compared with competing products. In showing thus, it did denigrate Mr Muscle, according to the court, since "it comes within the test of [CIF] alluding to a "specific defect" or "demerit" in [Mr Muscle]t."

My comments - I feel there was room for the court to have been clearer in its observations here. It clearly agrees with CIF and establishes that the ad compared their product with multiple other products, including one available in an orange-coloured container, and one in a blue-coloured container. If multiple containers, then how can Mr Muscle alone claim disparagement? By extension, does this open up the floor for manufacturers of kitchen cleaners sold in blue-coloured containers to protest as well?

B. Is claim of superiority based on lab test results a statement of fact?

Not surprisingly, Mr Muscle questioned the credentials of the laboratories and the veracity of the test results. The court believed that whether such claims were statements of fact required trial, and could not be decided upon at the present stage.

C. Effect of advertisement on sales:

Sales figures had been bandied about by the parties to justify claim for damages, but the court noted that the impact of the ad on sales could be measured only post-August 2009. Even then, the impact of an ad would not be "necessarily felt in close proximity."

It said that the impact of an ad on sales "is neither known immediately nor is it directly proportional. Like with every product there are some negative factors which drag the sales while there are others which give it a fillip. Depending on which factor has greater impact the sales may increase or decrease. Therefore, increase in absolute terms does not give the entire picture."

While agreeing that the advertisement had "the necessary portends of impacting [Mr Muscle's] revenue", the court relegated that decision to the trial that will follow.

With that flourish, CIF was (temporarily) cleaned out by Mr Muscle. (Serious stuff, no puns, remember.) Meanwhile, how will the Rin vs Tide story play out, I wonder.
Image from here.

Rin v. Tide: P&G Goes to Court

According to latest news reports, P&G which owns “Tide” has knocked the doors of the Calcutta High Court in relation to HUL’s controversial Rin advertisement.

According this news report, a few weeks back, Tide Natural’s advertisement which claimed a special fragrance was challenged by HUL before the Madras High Court on grounds that the claim was false. The Court too seemed to hold the same view since P&G couldn’t prove its claim. We'll discuss this judgment in a later post.

This piece of information piqued my interest and I ran a search for other matters involving the same parties and learnt that this is the second matter before the Calcutta High Court in a matter of just over 15 days involving the two parties. The earlier one was decided on February 15, 2010 and that too was a case of disparagement. In that judgment, HUL claimed disparagement of its fairness cream by P&G and sought an interim injunction. But the Court held there was no prima facie disparagement and refused the grant of an interim injunction. The main suit however is yet to be decided.

It appears both the companies have decided to cast off their gloves and bare their knuckles. For now, we’ll watch the current proceedings before the Calcutta High Court.

Rin v. Tide: Opinion Poll

We have started an opinion poll on the Rin-Tide controversy and we would like to know the opinion of our readers on the advertisement. The poll's open for 6 days, tell us what you think. Make yourself count!

SpicyIP Tidbits:More on the Bayer Patent Linkage

Updating our readers more on the Bayer Patent Linkage case, the Supreme Court today has admitted a special leave petition filed by Bayer. (For a more detailed report, see here ). We thank our reader Manish for bringing this to our notice.

The case seems to be gaining more momentum owing to the apprehensions surrounding patent linkage as it potentially undermines the public health safeguards.The matter,as report earlier,has been listed in the third week of April for further hearing.Hopefully,the wait will be worth it.

Rin v. Tide III: ASCI Steps into the Picture

If news reports are to be believed, the Advertising Standards Council of India (ASCI) has received complaints against HUL from two consumers against the controversial Rin advertisement .

The general secretary of ASCI, Allan Collaco has said that a notice to HUL will be issued on Wednesday and HUL will be given a 15-day period to respond.

Apparently, there are a few complaints pending against HUL in connection with other ads too. Last month, P&G reportedly lodged a complaint against HUL for a shampoo ad. Interestingly, last year, HUL’s market share in the Rs.11,000 Crore laundry industry slipped by 4 percent and last month, Rin’s market share stood at 4.8 percent, against Tide’s 8.8 percent...

Watch out this space for more updates.

From Pranab, with love...are the budgetary sops going to bowl IP lovers over?

The present financial budget has brought in a host of good news for the pharma industry with tax sops serving as the perfect holi gift from the Government.

I am yet to go through the fine print of the budget,but on the face of it there seems to be a reason to rejoice for the pharma industry as the weighted deduction on in-house R&D expenditure has been hiked from 150% to 200%.The primary benefit to be accrued by means of this sop would be for the cost incurred in filing international patents as well as carrying out clinical trials outside the country. However, as Kiran Mazumdar Shaw of Biocon states ,this would be only meaningful provided the sops are insightful and not mere cosmetic changes.

There is also increase in the weighted deduction on the payments to be made to the national research laboratories from 125% to 175% .Owing to this pragmatic move of the Government,it is expected that the R&D will get a boost in most pharma companies and innovation would be promoted.

Earlier last month when the excise duty on drugs was restored to 8 % from the present 4%,most pharma companies did hope for tax sops in the Union Budget especially in the R&D sector with some being hopeful of a complete tax exemption on the exports extended to the pharma companies.

The Association of Biotechnology led Enterprises (ABLE) opines that "the complete liberalization of pricing and payment of technology transfer fee, trademark, and brand name and royalty payments will augur well to attract fresh investments in the industry".

Apprehensions however exist in sops being more beneficial to the pharma companies than the pure biotech firms though some biotech firms do believe that the much needed sops will provide them with a much needed global edge.

Amidst these,one can only hope that innovation gets the much needed boost and the chips fall where they may.

PS- Special thanks to Shouvik for the title of the post!

SpicyIP Tidbits x 2: Of cow urine and Indian politicians!

Be not fooled by the title of this post, dear readers. Merely combining two very interesting tidbits having caught the SpicyIP Team's eye this week, and not trying to draw any parallels here :-)

Cow Urine brings possible relief to Diabetics

Cow urine has long been advocated by some members of the Indian community for supposed medicinal properties. Indeed one of its most famous patrons was our former Prime Minister Morarji Desai, who lived 100 years.

However, reports indicate that its properties are now being re-discovered by members of the scientific community. Indeed, this report suggests that some Indian researchers have discovered molecules that may help in curing diabetes.

Interestingly, on a hunch, a background check on the use uses of cow urine reveals the following:
(a) There seem to be several articles on the uses of cow dung and cow urine (including on this website which seems to have dedicated itself to the protection of Cows).

(b) This report suggests that a patent has been sought/ granted (unsure about the specifics) in 2002 for the life span enhancing properties of cow urine.

(Image courtesy: http://profy.com/wp-content/blogs.dir/1/images/hm2cow.jpg)

(c) This website claims that a gentleman has already been granted a patent for the innovation and discovery of uses of cow urine. While the patent number mentioned therein seems wrong, this page from the Patent Office website indicates that a patent has been granted for the same, though the complete specification seems inaccessible.

In this light, I am wondering whether a patent will actually be granted even if these very dedicated researchers do continue their hard work on discovering the hidden properties of urine.

Politicians using IP terms as catch words!
Recently, Swaraj posted here on India featuring high on the Google trends for Intellectual Property. Well, from this news report in The Hindu, it seems that apart from SpicyIP, our politicians may have a large part to play in that as well.

This really hilarious article has the spokesperson of the BJP, Mr. Ravi Shankar Prasad (a lawyer himself) remarking that the Congress did not hold the "patent" to visit Dalit households! It's quite heartening to see our politicians embarking upon use of terms ,we here at SpicyIP consider quite close to our hearts.

All hail IP trendy India- from cows, dedicated researchers and politicians- we seem to have all bases covered!

Rin v. Tide II: Has Tide (P&G) Gone to Court?

In the last two posts, I had discussed the facts of the Rin-Tide controversy and the position of the law on comparative advertising. It appears that mainstream media has finally woken up to the matter.

A column in the Economic Times today reports on the controversy and adds that a source from HUL has said that Procter and Gamble, the owner of Tide has gone to Court on the advertisement. The source further informed ET that employees at HUL have been asked to keep mum on the issue.

As for HUL’s official line, here’s what its spokesperson had to say on the matter:

“This advertisement reinforces the promise to Rin consumers that Rin delivers superior whiteness. This claim is based on laboratory tests done through globally accepted protocols in independent third-party laboratories.”

The advertisement apparently was timed to coincide with the weekend and Holi to catch enough eye-balls. Here’s what P&G had to say on the issue:

“We are aware of a disparaging advertisement on air against one of our brands. We will, however, continue to stay focused on growing our share via delighting consumers and focusing our communication on the benefits of our brand. As per company policy, we do not comment on any future plans...”

This certainly doesn’t seem to be the end of the matter and we at SpicyIP shall keep our eyes and ears open to further developments.