Protecting Intangible Creations

Creating Awareness of IPR

This newsletter aims to include the latest updates in the IP segment and recent statutory developments in this regard for creating awareness among all sections of the society about the economic, social and cultural benefits of IPR. The protection of such property can only be provided through well-defined laws which balance the interests of the public with those of the owners. This would commercialize the scope of such brands through digitization of government filings thereby relaxing the process of registration. The strengthening of the enforcement and adjudicatory mechanisms would require the involvement of various agencies coordinating with the IP owners for avoiding practices of piracy and infringement of rights. The judiciary in this regard has made robust progress for safeguarding the rights of innovators and bringing this regime in consonance with the international standards which would be highlighted in the following segment:

Google v. Oracle- API is not covered under Copyright Protection, Google has to pay USD 9 billion.

The dispute between the two started nearly eight years ago when Google claimed their use of Java’s Application Programme Interface “API” built by Oracle, to be fair. Java programming language was built for interoperability and multifunctional use, with the motto ‘write once, run anywhere’. Google, in 2005, acquired Android and began its development by utilizing Java APIs, for which Oracle sued it. The issue in the matter remained that whether such APIs are subject to copyright law? The clarification sought was on how does an API function, to which an explanation was provided stating that ‘they are a set of routines, protocols and tools for building software applications.’ Basically, an API specifies how software components should interact. Oracle claimed over the declaring code, as well as the sequence, structure and organization of the implementing code used by Google, who claimed that this code isn’t copyrightable. The District Court held that Oracle APIs were not copyrightable. Which was not agreed to by the Federal Court of Appeals and the case was remanded back to trial on the issue as to whether Google infringed Oracle’s copyright or whether the use of the APIs should be deemed as fair use. The jury returned a verdict favorable to Google declaring its use of APIs as ‘fair’. The case finally reached the Court of Appeals for the Federal Circuit wherein four non-executive statutory factors were considered namely; purpose and character, nature of the work, amount and substantiality of the copied portion used in relation to the work as a whole and the effect of the use on the potential market of or value of the copyrighted work. These factors went against the use of Google and held that their use was unfair thereby reversing the previous judgment. When the question of copyrightability of such software arose, the US Court said that the ruling had a cascading effect given that the uses of APIs have been without licenses, upon which further systems have been built, which are now imperiled. Therefore, to avoid monopolization of such software in question, the court denied any copyright protection to it. However, there are jurisdictions where the issue has been treated differently. The Chief Justice of European Union (CJEU) has declined copyright protection for APIs supporting the thoughts of US jury. On the other hand, India allows software to be copyrighted under the Copyright Act and even though the use of APIs do not clearly fall into the exemptions under Section 52 of the Act, the courts in India have recognized that when one party can use only that expression to build on its idea, then such expression cannot be copyrighted.

Alibaba failed to stop Alibabacoin, a Dubai cryptocurrency company

In April, 2018, Alibaba, the Chinese e-commerce platform, had accused Alibabacoin Foundation for unlawfully using the former’s renowned brand name. In the case of Alibaba Group Holdings Ltd v. Alibabacoin Foundation et al, Alibaba, the e-commerce giant has failed in securing any preliminary injunction against Alibabacoin Foundation, the Dubai cryptocurrency company. The US District Court of New York has refused to grant the injunction to restrain the latter company from using the name ‘Alibaba’ and supported its alleged effort to raise money in the cryptocurrency market. The Court rejected Alibaba’s suit because it failed to show that it possessed jurisdiction as Alibabacoin lacked sufficient ties to New York. The Group Company could not establish any effect on its customers in New York thereby not establishing sufficient grounds for awarding any injunction of non-usage of the name.

“Monkey Selfie” lawsuit shapes the contours of Copyright Laws.

In the case of Naruto v. Slater, an Indonesian macaque took an unattended camera owned by the latter and clicked some selfies back in 2011 of publishable nature which were released by the photographer in 2014. After such publish, the People for the Ethical Treatment of Animals, Inc. (“PETA”) sued as Naruto’s ‘Next Friend’ for copyright infringement. The issue addressed by the court was that whether a monkey may sue humans, corporations and companies for damages and injunctive relief arising from claims of copyright infringement. The District Court dismissed the case saying that Naruto had no statutory standing of filing a case under Copyright Act and under Article III of the Constitution as interpreted, after which the appeal was allowed. The Court then questioned the relationship between PETA and Naruto and referred to the precedent Cetacean Cmty. v. Bush, but did not rely on the same as the case talked about ‘individuals’ or ‘persons’. The Court held that they doubted if PETA could act as the monkey’s “next friend” and lay that they can sue the photographer only if; (1) there is a sufficient reason that they can’t do it themselves and (2) that you have some significant relationship with and that you are truly dedicated to the best interests of the person concerned. Well, Naruto couldn’t do it himself because he was a monkey, and PETA was dedicated to its own interests and not the monkey’s. They at last decided to simply look into it if an Act of Congress states expressly that animals have statutory standing, only then they have a statutory standing otherwise the case stands dismissed. The Copyright Act does not expressly authorize animals to file copyright infringement suits under the statute. Therefore, Naruto got no copyright protection but his next friend owes attorneys’ fees. “Animals have no legal ability to hold copyrights claims and PETA seems to employ Naruto as an unwitting Pawn in its ideological goals” held the Court of Appeals.

Nuziveedu v. Monsanto- BT Patent not patentable u/s 3(j) of the Patents act.

Monsanto Technology LLC held two patents in the Indian Patent Office, one with respect to the isolated, purified and modified gene sequences and other with respect to the methods of inserting the gene sequences into the cells. Such gene sequence was named Bacillus thuringiensis (BT) Delta-endotoxin (“BT Plant”) which provided Bollworm resistance in plants. However, the claims with respect to transgenic plants, hybrid varieties and seeds that formed part of the patent application were rejected during prosecution by the Indian Patent Office. Nuziveedu Seeds Ltd. was a licensee of Monsanto’s BT Patent, first challenged the ‘trait fee’ charged by Monsanto, and later challenged the license validity based on claims of patent invalidity. Nuziveedu contended invalidity of the Monsanto’s BT Plant because the subject matter falls within the scope of excluded inventions under Section 3(j) of the Patents Act. Section 3(j) excludes plants and their parts, seeds and essential biological processes from the scope of patentable inventions. So the issue that arose was whether gene sequences which are a part of the BT Plant Patent are excluded from the purview of the Act as exempted under Section 3(j). A reference was made to the case Dilworth v. Stamps Commissioners wherein Supreme Court looked at the legislative intention of having ‘includes’ and concluded that these words or phrases must be construed as comprehending, not only the express contents of the provisions but also the things which interpretation declares that they shall include. Following which they went to the dictionary meaning of ‘microorganism’ as the same is not a part of Section 3(j). The Court concluded that gene sequences cannot be considered as microorganisms because they have no existence of their own, and that they are useful only after their introgression at a particular place and because seed materials must undergo hybridization to suit local conditions. The Court finally decided that transgenic plants cannot be patented in India and therefore, gene sequences that form part of transgenic plants are also not patentable. Thereafter, the Court called the gene sequences inert and inanimate and that they are relevant only as parts of seeds and plants. In other words, the Court stated that because plants, seeds and breeding processes are not patentable under the Section 3(j), gene sequences and processes related to them are also not patentable as the essential biological process starts after the sequences are introduced in the plant and prior to the same there stands no relevance of the gene sequences. Monsanto has not challenged the decision keeping in mind the BT Cotton Case and the hearing for the same is to be held on July 18, 2018 in the Supreme Court of India.

Microsoft accused of Patent Infringement.

Infernal Technologies and Term Reality has sued Microsoft for the “egregious and willful” patent infringement of the Infernal Engine. It has been accused of infringement of two patents; one pertaining to graphical lighting and the other to shadowing methods. Term Reality has many licensees for their patent ‘Internal Engine’ including Microsoft. Microsoft’s games like Gears of War 4, Halo 5 and Sea of Thieves show clear infringement as it matches the game engine. According to the filing, Term Reality and Microsoft had started their trade relations back in 1995. They contended that Microsoft is well aware of the patents which stem from a patent filing of its own, back in 2005, relating to “the use of precomputed shadow fields in lighting and shading techniques used in video games” as they were rejected again and again keeping in mind Term Reality’s patents which is the subject matter in this suit. Microsoft after giving up from the continuous rejections told Term Reality in 2009 to develop a Star Wars game during which time it asked for the access to the source code for Internal Engine which was duly granted. Term Reality claimed that the accused company is very much aware of the infringement caused or that they have willfully ignored that their acts are inducing such infringement of the patents in question. The question of validity of the patents stands concluded as EA challenged the same against Term Reality in 2016 and their claim was rejected. The filing company has requested for an adequate compensation and a reasonable royalty from Microsoft.

Amazon, Netflix go against SET TV, obtain injunction.

In U.S. District Court in Central California, the all-star list of plaintiffs including Amazon, Netflix, Disney, 20th Century Fox, Sony Pictures, Columbia Pictures, Universal and Warner Bros have filed a copyright infringement suit against Set Broadcast. The Set TV Service, an internet TV service, provides access to over 500 TV channels and on-demand shows. The studios alleged that the latter party provides access to pirated works. It is rare to see what amounts to an entire industry coming together to sue a single company. But the proliferation of third-party streaming networks and associated set-top boxes promising access to nearly endless content is making it harder to tell what is legitimate and what is piracy. In this case, the streaming services and studios allege that Set TV connects customers to unauthorized streams of live and on-demand content and disguises them as legitimate. The lawsuit is seeking $150,000 per infringed work of the studios and an injunction against any further working of Set TV.

UP grabs two Geographical Indications.

Uttar Pradesh has successfully added two more geographical indications to their many already acquired. Varanasi soft stone undercut work, applied by Banaras Handicraft Development Society and facilitated by Banaras Handicraft Development Industrial Cooperative Society Limited and Ghazipur jute wall hanging, applied by Nisha Craft Vikas Samiti, have been granted GI registration. Both the GIs have been facilitated by Human Welfare Association. The most popular product is the undercut elephant carvings. Similarly, the Ghazipur jute wall hanging is popular for its golden fiber jute yarn and fabric. The GI expert and facilitator Dr. Rajni Kant of Human Welfare Association said that the GI certification was granted to soft stone undercut work (registration number 556) and Ghazipur jute wall hanging (registration number 555) on March 30, 2018. Now, the East UP has a total of 10 GI products including Banaras brocade & saree, Handmade carpet of Bhadohi, Banaras gulabi meenakari craft, Varanasi wooden lacquerware & toys, Mirzapur handmade dari, Nizamabad black pottery, Banaras metal repouse craft and Varanasi glass beads.

Brazil & EU has rejected Gilead’s patent on hepatitis C & HIV drugs to save lives

The European Court of Justice has invalidated the extension of Gilead’s patents protection for the HIV drug Truvada in order to remove the unmerited patents from the list and give the patients the treatment they require free of cost, thereby moving towards global development. After a few days from this ECJ judgment, the Brazilian coalition Grupo de Tralbalho sobre Propriedade Intelectual, also rejected one of Gilead’s many patents for sofosbuvir, a medication used for the treatment of hepatitis C. If Gilead’s challenged patents are overturned, I-MAK estimates that U.S. taxpayers could save more than $10 billion on Sovaldi(R) and more affordable generics could come to market 14 years earlier. A recent I-MAK report illustrates how unmerited patents are reducing market competition and artificially raising drug prices, while millions in the U.S go without vital treatment.

Electronic Voting Machine using fingerprint scanner- Patented.

With the country ready to vote in the coming year for the central elections, this electronic voting machine, invented by Mr Anand Pramod Mishirikotkar who is from Maharashtra, could bring the election commission the much needed relief from allegations of a plethora of faults in the present EVMs. The abstract of the invention titled “ELECTRONIC VOTING MACHINE USING FINGERPRINT SCANNER” where the machine uses fingerprint scanner or QR code scanner in EVM as a result of which one person can vote only once as otherwise the machine would lock that fingerprint or Aadhar number for the next 24 hours or as per the requirement for voting.