SpicyIP Weekly Review (August 2 – 8)

Madras HC on the Right to be Forgotten: A Welcome Development?

Forget-me-not (Myosotis arvensis). Hand drawn botanical vector illustration

In Part I of a two-part guest post, Sriya Sridhar discussed a Madras High Court case where the petitioner sought his name to be redacted from a judgment in a case where he was ultimately acquitted of allegations relating to offences under Section 417 (Cheating) and Section 376 (Rape) of the IPC. He claimed that he is entitled to redaction of his name from the judgment given that he is identified as the accused even after being acquitted, which has caused harm to his reputation. In the interim order, it was found that there is a prima facie case to uphold the petitioner’s RTBF, based on (1) the protection of his right to privacy and reputation both online and offline, and (2) providing an acquitted person the right to have their name redacted and stop being identified as an accused person. In the final arguments, the petitioner invoked the right to privacy under Article 21, citing precedents from EU and the US as well as personal data protection frameworks such as GDPR and the pending PDP Bill in India. The Respondents, Additional Registrar Generals of the Court and the Registrar for IT in addition to Indian Kanoon, called for a balancing act between the right to privacy of the petitioner and the right to information of the public, pointing out that a judgment is a public document, forming part of the public record which should not be redacted post facto, especially given that the petitioner hasn’t faced any harm with respect to seeking public employment or similar matters.

In Part II, Sriya analyses the final order which reverses the finding of the interim order. She explains the various reasons the court provided against an RTBF finding, including how right to privacy cannot affect matters of public record, High courts are courts of record and cannot issue writs of mandamus against themselves, the demands of open justice and lack of statutory backing. Sriya supports this, as the petitioner dangerously sought to destroy the information at the source itself as opposed to de-linking of the judgment from access through search engines. Further, RTBF is not an automatic product of the Puttaswamy decision, but can be brought within its umbrella in limited circumstances where the personal information is no longer necessary, relevant, and serves no legitimate interest. She also cautions against the equation of protecting the identities of victims, primarily women and children, to that of an accused person who is ultimately acquitted, as these are no parallels. She agrees with the observation that a broader principle of RTBF was undesirable here, in the interest of judicial transparency that would likely invite litigation from those with influence and means, regardless of the circumstances of the acquittal and what evidence or perceptions it was based on. She concludes that a nuanced approach to RTBF is required, considering the purpose of the information, relevance to the public, freedom of speech, among several other aspects.

Dapagliflozin Patent Receives Another Blow: Same Old Coverage-Disclosure Story 

Farxiga (DAPA) logo (image from here)

I wrote about the recent Delhi High Court decision where it refused to interfere with two orders by Shakdher J. and Gupta J. denying injunctions to AstraZeneca against 9 generic drugmakers manufacturing its anti-diabetic drug Dapagliflozin. I recounted how AstraZeneca claims that sale of Dapagliflozin violates not one but two of its patents: the genus which expired in October 2020, and the species which specifically disclosed the drug and is set to expire in 2023. The court rejected this, opining that allowing multiple patents to subsist on a single invention would defeat the legislative intent to limit the term of exclusivity. The court then scrutinized an extract from the complete specification of the two patents and found them to be nearly identical. It observed that if the common inventor, who was in the best position to know the technical advancement between the patents, has not described them differently, AstraZeneca’s arguments cannot be accepted at a prima facie stage. I conclude that while the decision is sound on the point of law, i.e., coverage-disclosure dichotomy, it does not offer detailed and convincing analysis on the question fact as to whether Dapagliflozin was indeed disclosed in the second patent. Moreover, while the court refused to allow the appellants the advantage of the difference in reasoning by two different interim orders, it is necessary to note that the reasoning differs significantly on points of law, i.e., coverage-disclosure dichotomy and thus needs attention.

Call for Abstracts: NLIU International Trade Law Journal Inaugural Edition [Submit by August 31]

We informed our readers that the National Law Institute University (NLIU), Bhopal has recently established the International Trade Law Journal and is inviting abstracts for papers for the inaugural issue of the same. Authors willing to contribute to the journal are required to send in extended abstracts by 31st August, 2021 on the acceptance of which, full papers shall be submitted by 30th November, 2021. For further details, please read the post.

Other Developments

Decisions from Indian Courts

  • Delhi High Court in Sulphur Mills Limited v. Dharmaj Crop Guard Limited & Anr. directed the Plaintiff to place on record the complete file relating to the certain proceedings within eight weeks in a suit on the infringement of a patent with agricultural compositions [August 3, 2021].
  • Madras High Court in Karthick Theodre v. The Registrar General, Madras High Court, refused to recognize the right of an accused pronounced not guilty to be forgotten, and have his name removed from the judgment [August 3, 2021 – See Sriya’s posts on it here and here].
  • Delhi High Court in M/s Copenhagen Hospitality And Ors v. M/s. A.R. Impex & Ors rejected the Defendant’s application to return the plaint on the ground of lack of territorial jurisdiction in a suit seeking permanent injunction, restraining infringement of trademark and passing off; infringement of copyright, trade dress, breach of confidentiality; misappropriation of trade secrets in Plaintiff’s ‘LA PINO’Z PIZZA’ [July 29, 2021].

News from India

  • PV Sindhu is reportedly set to take legal action against brands cashing on her popularity without permission by using her image and name in their products.
  • Several multinationals and Indian technology companies are in a standoff over the applicability of tax on copyright after a Supreme Court ruling laid down that payments made by local users for the purchase of software from foreign companies or distributors cannot be taxed as royalty.
  • ITC logo

    Sunfeast has modified the packaging of its products, ‘Sunfeast Farmlite 5-Seed Digestive’ and ‘Sunfeast Farmlite Veda Digestive’, ending its dispute with Britannia Industries over the infringement of Britannia’s product packaging trademark due to the similar design of their biscuits.

  • KVIC has secured Patent registration for its innovative plastic-mixed handmade paper developed to reduce plastic menace from nature.
  • A TV show initially titled ‘Comedy Factory’ has been forced to change its title to ‘Comedy Show’, after stand-up comedian Manan Desai won a trademark infringement suit filed against it in Bombay HC.
  • The GI expert Dr. Rajani Kant of Human Welfare Association has been entrusted with the task of registration of 1000 authorised users and skill training of 300 artisans of GI products.

Other News from Around the World

  • The National Music Publishers’ Association (NMPA) in the US representing a group of indie and major music publishers has sued popular gaming platform Roblox for copyright infringement, claiming USD 200 million in damages.
  • In a first-of-its-kind decision, the Australian Federal Court has ruled that an artificial intelligence (AI) can be a named inventor but that non-humans cannot apply for patents.
  • Twitter users reportedly accused Anu Malik of copying Israel’s national anthem in his popular patriotic song ‘Mera Mulk Mera Desh’ released in 1996.

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