SpicyIP Weekly Review (September 27 – October 3)

Zolgensma and the Inadequacies of the Compulsory Licensing Regime

Poster for Zolgensma

In a guest post, Akhil wrote about Zolgensma, Novartis’ gene therapy medication prescribed for treatment of Spinal Muscular Atrophy (‘SMA’). Akhil discusses the compulsory licensing provisions in the TRIPS Agreement, as well as the objectives and principles relating to safeguarding public interest in Articles 7 and 8 and how they find reflection in India’s Patent Act. Breaking down the 3 tests of reasonably meeting the requirements of public, reasonable affordability and patent working in India under Section 84, he assesses the case of Zolgensma, of which an estimated 3,00,000 children suffer. Due to the fact that medications like Zolgensma operate without a large enough target demographic to be addressed as public need, they do not get the necessary attention to have the accessibility issue addressed. From the pharma perspective, Akhil finds that the returns on drugs like Zolgensma, are made almost exclusively by charging exorbitant sums from the very few people suffering from this affliction. He then recounts the CL regime in the country as per the Doha Declaration and national jurisprudence on the matter, opining that the regime has to be reworked to cover within its ambit, the pharmaceutical needs of those suffering from afflictions that might not necessarily affect the ‘public’, but still drastically affects the fundamental right to life.

GNLU logo

Webinar on ‘Traditional Knowledge as Intellectual Property: Opportunities and Challenges at the International Level’ [October 13]

We informed our readers that the Microsoft IPR Chair and the DPIIT IPR Chair at Gujarat National Law University (GNLU), Gandhinagar are jointly organising a webinar on ‘Traditional Knowledge as Intellectual Property: Opportunities and Challenges at the International Level’ on 13th October, 2021. For details, please read the announcement.


JDCIL-ESYA Article Writing Competition [Submit by September 30]

We informed our readers that the Jindal Digest for Competition and Innovation Laws, in collaboration with Esya Centre, is organizing an article writing Competition, with an aim to encourage academic research on the intersections of competition, IP and technology laws. For details, please read the announcement.

Webinar on Digital Sequence Information (DSI): Implications on Access & Benefit Sharing [October 4-7]

We informed our readers that the DPIIT IPR Chair of Inter University Centre for Intellectual Property Rights Studies at the Cochin University of Science and Technology (CUSAT) is organizing a four day webinar on “Digital Sequence Information (DSI) – Implications on Access and Benefit Sharing” from October 4-7 2021. For further details, please read the announcement.

Other Developments

Decisions from Indian Courts

  • Supreme Court premises

    The Supreme Court in Saregama India v. Next Radio set aside the Madras High Court’s judgment that had modified the application of Rule 29(4) of Copyright Rules, 2013 applicable to the statutory licensing regime under Section 31D of the Copyright Act, finding that it rewrote the words of the statute [September 29, 2021].

  • Bombay High Court in Franco-Indian Pharmaceuticals v. Juzer Mukhiya ordered that Defendants be restrained by a temporary order and injunction from using in relation to their medicinal and pharmaceutical preparations and/or as part of their trading name or corporate name the trade mark and/or the word FRANCO/ FRANCO REMEDIES or any mark deceptively similar to the Plaintiffs trademark and trade name FRANCO INDIAN PHARMACEUICAL PRIVATE LIMITED and form passing off [September 29, 2021].
  • Delhi High Court in Reddys Laboratories Limited v. West-Coast Pharmaceutical Works directed the Registry to draw up a decree-sheet per the terms of settlement between the Defendants and the Plaintiffs with regard to the case of infringement of Plaintiff’s OMEZ trademark by Defendant’s OMES [September 28, 2021].
  • Delhi High Court in Entertainment Network India Limited vs PPL directed that status quo be maintained in respect of payment of royalty for broadcast of sound recordings by the Petitioners, with effect from 1 October 2021, as per rates determined by IPAB in its Order dated 31 December 2020, pending final determination of revised statutory royalty rates by the Court [September 27, 2021].

Other News from the Country

  • The DPIIT has introduced the Patents (Amendment) Rules, 2021 on 21st September 2021.
  • IPRS has launched a three-month-long campaign ‘License Liya Kya’ to educate music users on the different licensing needs and kinds of music licenses available and highlight the benefits of music licensing and the ease of procurement.
  • A Puducherry-based firm providing sustainable solutions for agriculture has moved the Madras High Court alleging infringement of its registered design of a ‘solar insect trap’ by a Vellore based company.
  • The Income Tax Appellate Tribunal (ITAT) has held that Shell India is not taxable in India for consideration received from resale/use of the computer software through EULAs/distribution agreements since the amount does not constitute ‘royalty’ within the meaning of section 195 of the Income Tax Act, 1961.
  • Geographical indication tag has been awarded to seven indigenous products from Uttarakhand including Kumaon’s chyura oil, Munsyari rajma, Bhotia dann (a rug made by Bhotias, a nomadic community), aipan (traditional art made on special occasions), ringal craft (art of making items by knitting bamboo strands), copper products and thulma (blankets spun from locally-sourced fabric).
  • A piece in the Indian Express examines the Sci-Hub copyright infringement case at length.
  • Former Joint Secretary KL Sharma has published his book ‘Healing the Pharmacy of the World’, on drug regulation in India.

News from around the World

  • Mahindra & Mahindra-owned Peugeot Motorcycles lost a patent infringement case against talian two-wheeler maker Piaggio Group and has been banned from selling three-wheeled scooter Peugeot Metropolis in France and Italy.
  • Jaguar Land Rover Automotive Plc has reportedly ended rifts with Volkswagen over the use of a certain feature in luxury SUVs that seek to ease off-road driving capabilities for drivers who may not be quite well-versed to taking their cars beyond tarmac.
  • The Walt Disney Company filed numerous lawsuits in courts in New York and California seeking to invalidate copyright notices issued by painters and illustrators associated with Marvel characters.

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