WE TARGET TO ENHANCE CLARITY IN INDIAN CORPORATE LAW/POLICY/INSTITUTIONS. WE ARE ALSO HERE FOR OBJECTIVE AND FAIR ANALYSIS/REPORTING OF CORPORATE LAW/INNOVATION/DEVELOPMENT POLICY FROM INDIA.
The U.S. Supreme Court's highly anticipated ruling in the Bilski case has the potential to alter the landscape for business method patents and send shockwaves through the tech transfer community. Though no one can predict for certain the outcome, many observers believe the days of business method patents are numbered.
For Technology Transfer Organisations, it's critical to prepare now and determine your patent portfolio's exposure to Bilski-related turmoil, decide how vigorously you want to defend affected patents, if at all, and explore alternatives for protecting relevant IP.
That's why you should be focused on the practical steps and strategies you can take now to prepare for the fall-out — and minimize any negative impact on IP in development, already-patented innovations, pending applications, and existing license agreements.
Now the technology transfer organisations must focus on the following issues in advance to avoid any adverse impact:
What's affected: The scope extends further than you might think, beyond software and IT
Understanding the machine-or-transformation test
Pre-disclosure: Working with faculty to configure innovations with M&T test in mind
Disclosure and triage/assessment: How should your investment and patent criteria change post-Bilski?
Alternatives to patent protection: trade secrets, know-how, copyrights
Assessing and minimizing impact on existing licenses
Recalibrating enforcement actions
A bright side? Impact on patent trolls
Patent strategy:
Impact on non-US rights
Using "do-not-publish" applications during pendency
Claim construction to match PTO guidance
Considering reissue applications for issued patents
The United States on Wednesday removed Saudi Arabia from a government list of alleged intellectual property rights violators, saying it has made "significant progress" in tackling the issue.
The decision to remove Saudi Arabia from the "Special 301 Watch List" resulted from a review of the effectiveness of IPR protection and enforcement in the kingdom, the top US trade official said.
"Saudi Arabia has made significant progress in improving protection for intellectual property rights during the past year," said US Trade Representative Ron Kirk.
"Over the last several years, Saudi Arabia has stepped up its enforcement actions, strengthened its legal framework, and demonstrated a commitment to fostering innovation and creativity," he said.
Kirk's office publishes a "Priority Watch List" and a "Watch List" annually as required under the law to identify countries that "deny adequate and effective protection for IPR or deny fair and equitable market access for persons that rely on intellectual property protection."
Last year, the Priority Watch List comprised China, Russia, Canada, Indonesia, Algeria, Argentina, Chile, India, Israel, Pakistan, Thailand and Venezuela.
Saudi Arabia was among 33 trading partners on the lower level Watch List, meriting what the USTR office called "bilateral attention to address the underlying IPR problems."
Others were Belarus, Bolivia, Brazil, Brunei, Colombia, Costa Rica, Czech Republic, Dominican Republic, Ecuador, Egypt, Finland, Greece, Guatemala, Hungary, Italy, Jamaica, Kuwait, Lebanon, Malaysia, Mexico, Norway, Peru, Philippines, Poland, Romania, Spain, Tajikistan, Turkey, Turkmenistan, Ukraine, Uzbekistan and Vietnam.
On February 12, 2010, U.S. Attorney General Eric Holder announced the formation of a new Department of Justice Task Force on Intellectual Property as part of a Department-wide initiative to confront the growing number of domestic and international intellectual property (IP) crimes. The Task Force, to be chaired by the Deputy Attorney General, will focus on strengthening efforts to combat intellectual property crimes through close coordination with state and local law enforcement partners as well as international counterparts. It will also monitor and coordinate overall intellectual property enforcement efforts at the Department, with an increased focus on the international aspects of IP enforcement, including the links between IP crime and international organized crime. Building on previous efforts in the Department to target intellectual property crimes, the Task Force will also serve as an engine of policy development to address the evolving technological and legal landscape of this area of law enforcement.
Barry Sookman tweeted yesterday about a new study analyzing data on 125 countries to establish a property rights index. The Index focuses on three areas: Legal and Political Environment, Physical Property Rights, and Intellectual Property Rights, and is being to used to promote the importance of intellectual property. Looking at the data, India's overall ranking is ahead of the China (India is 50th, the China is 63rd).
The specific intellectual property rankings are also notable as they highlight the absurdity of the IIPA's ongoing campaign characterizing India as weak on IP. Canada's ranks 50th in the survey for intellectual property rights, tied with countries such as France, the UK, and New Zealand . The ranking is all the more remarkable since one of the primary data sources for the ranking is the IIPA itself. In other words, even after using IIPA data, India ranks alongside many other countries that are typically applauded by the IIPA for their IP policies.
In fact, the IIPA recommended ten countries for inclusion on the USTR Special 301 Priority Watch List: Argentina, Canada, Chile, Costa Rica, India, Indonesia, Mexico, People's Republic of China, the Philippines and Russia.
Argentina - 67
Canada-13th
Chile - 49
China - 63
Costa Rica - 67
India - 50
Indonesia - 108
Mexico - 59
Philippines - 63
Russia - 72
The attempt to characterize Canada as a laggard in the class with countries like China and Russia - alongside claims that supporting open source software makes a country weak on IP - are just some of the reasons the IIPA claims have been roundly criticized by many countries in the past. It is also why the CCIA's submission, which rightly notes that Canada that meets the adequate and effective standard, is the more credible assessment of the current state of the law.
The IPR Division of the Federation of Indian Chambers of Commerce and Industry (FICCI) is inviting applications for internships from law students.
Those who are interested can contact to Sheetal Chopra, Deputy Director and Team Leader, IPR Division atsheetal.chopra@ficci.com or may apply to FICCI IPR Division at hr@ficci.com
The internship may range from 15 days to 2 months. The Interns will get a very good opportunity to research on various intricate policy issues covering the whole instruments of Intellectual Property Law including trade marks, geographical indications,patents, copyrights, etc.
The management will fight to protect intellectual property of its Great Value label; applications filed in '08
Wal-Mart Stores Inc., which recently launched several of its global private labels in India, through joint venture Bharti-Walmart Pvt. Ltd, is facing opposition to efforts to register its flagship brand Great Value (GV) here, according to information from the Indian trademark office's website.
"Wal-Mart has registered Great Value in various countries including India and we aggressively protect it as our intellectual property," a Bharti-Walmart spokesperson said in an email statement.
The spokesperson, however, denied knowledge of any opposition.
"Currently, Wal-Mart is not aware of any opposition to our GV brand but, if necessary, we will take necessary steps to protect our intellectual property," the spokesperson added.
Bharti-Walmart, the US retailer's joint venture with Bharti Enterprsies Ltd, had filed in 2008 about a dozen applications to trademark Great Value's logo: 'GV' in a circle emblazoned with 'Great Quality. Low Prices.' The applications were in various categories—baby food, dental wax, dried fruits, jellies and jam, bleaching preparation, soap, cosmetics, hair lotions and others, according to information from the trademark office. Most of those applications are being opposed, according to the trademark office's website.
Bharti-Walmart has already launched several Great Value products including tea, snacks, ketchup, dish-washing bar, toilet cleaner and glass cleaner; it plans to launch more in coming months, according to the company.
It takes about two years for India's Controller General of Patents, Designs and Trademarks to scan and process any application before they are put in the public domain. Any kind of opposition to a trademark application can be made within four months from the day the trademark office makes any application public, trademark lawyers say. Bharti-Walmart's applications were made public late last year and most of its applications are being opposed.
Mint couldn't ascertain the identity of the individuals or companies opposing the Bharti-Walmart applications. Bharti-Walmart had earlier filed dozens of trademark applications seeking to trademark Indian-sounding names including Sankskar, Sabhyata, Cimran, Sur, Sitrali, Pranay, Srishti, Jovaki, Amokhya but the company faced opposition to most of the applications. It now says it will not contest the opposition.
"The application for registration of Astitva and a few other names was filed in August 2008. However, based on consumer feedback and legal opinion we went ahead with the brand name Astitva as our private label brand for Indian ethnic products. Some of the other names that had been filed for registration (except for Astitva) will lapse as we will not be pursuing them further," the Bharti-Walmart spokesperson added.
Due to fast growth of biotechnological research units at different parts of world, coming days will witness more of development of transgenics that can meet the challenges due to climatic changes, environment pollution and enhanced production from unit land. This will definitely boost the growth of Intellectual Property (IP) in the state. Since technologies are now available for transfer of gene across taxa and there is greater scope for genetic manipulation, 21st century will witness trade of gene across boundary. Protection to traditional knowledge associated with agriculture is also required to forestall any attempt by other institutions/countries from acquiring illegal rights on them.
Orissa being a gene rich state can derive full advantage from this trade provided suitable measures are taken for conservation and protection of genetic resources. Similar steps need to be taken in case animal, fish, and microbial genetic resources. This can be achieved through systematic survey, collection and publication in appropriate media including the digital ones. Through the genetic manipulation of different crop species and their wild relatives either conventionally or through biotechnological approach, the state can produce wide array of plant varieties/transgenics for commercial exploitation.
Orissa rich in agro-biodiversity has vast potential for plant variety development. Being the hot spot of rice and many other crops including medicinal plants, cucurbits. brinjal, pulses, the state is rich in genetic resources. Orissa being a state-known for its excellence in art and craft and traditional knowledge can take this opportunity in its favour. Government has already initiated steps for the registration of Kotpad Saree and Baragarh Saree dying technology under this act to protect the interest of producers of these two GI. Similar scope exists in the field of agriculture that needs to be identified and steps need to be taken for their registration at GI Registry Chennai.
This will enhance the export potential of agricultural goods services and provide protection against misuse of GI by unscrupulous traders/unauthorized users. Literary creations, musical works, dramatic works, sculptural works, motion pictures, computer software, gene sequences etc. can be protected under copyright Act. Wealth can be generated from their protection and exploitation in the trade and commerce.
Enforcement of Protection of Plant Varieties and Farmers Right Act-2001 and initiation of registration of plant varieties since February 2007 provides scope of not only registering the extant plant varieties of the state developed by public/private R & D, units but also registration of farmers' variety developed by the farming community. Any community/group of farmers, farmer's society, claiming to be the breeder and successor of breeder of any farmer's variety can register their variety (ies) and derive full commercial benefit from their trade. Funds are being provided from the national gene fund for rewarding gene saviours and for conservation of threatened genetic resources. State government should initiate appropriate steps in this regard so as to take full advantages of different provisions of the PPV and FR Act. Geographical indications (Registration and Protection) Act, 1999 provides protection (Gl) to geographical indications of the country.
Besides the act has also made provision to recognize and reward farmers/farming communities who have played the role of saviour of the genetic resources of any crop/species through their age old effort in conserving, maintaining the traditional varieties, land races and agro-biodiversity of crops. Steps to boost such kind of activity and protection to both existing and new creations and exploiting them in commerce will definitely help to improve the economic condition of individuals agencies associated with such activity. This will facilitate flow of knowledge in the society and conservation of creations which are either in unsafe state or in a state of erosion. Wide scope also exists in the state for boosting design trade particularly in agro industry sector.
The said discussions are only a few of many points available for development of agriculture in the state through generation, protection and commercialization of knowledge associated with agriculture and allied sector. Hope state can take full advantage of globalization process and IP regime to make it prosperous and developed in a highly competitive world. Design of agricultural machinery, equipments, and containers of different agricultural product can be protected under Indian design Act 2000 and can be commercially exploited for the growth and development of this sector. Agricultural Industries, food processing plants, traditional healers of disease can protect their IP even through Trade mark or Trade secret.
Industries/Institutions providing services and goods can protect their goodwill in business through registration of trademark or through appropriate confidentiality agreement in case of protection intended through trade secret. There is very good news for Orissa peoples that recently by cooperation with various stakeholders in the School of Biotechnology, KIIT University a business incubation centre is established. I am also cooperating with centre as an Intellectual Property Law advisor. Now peoples are coming with different IP issues and getting proper solutions that is providing further motivation to the IP creators.
References:
1. Gupta, Anil, K.; and Vikas Chandak (2005) competitive strategies for agricultural technology development and export through value addition: the International property right prospective.
2. Mashalkahr, R.A. (2005). Intellectual Property Rights and the third world. Current Science 81(8): 955 965.
