NLIU Journal of Intellectual Property Law

NLIU Journal of Intellectual Property Law Volume No. 4 August, 2015 National Law Institute University Kerwa Dam Road, Bhopal, India-462 044 The NLIU Journal of Intellectual Property Law is published by the Cell for Studies in Intellectual Property Rights (CSIPR) of National Law Institute University, Bhopal. Cell for Studies in Intellectual Property Rights publishes material on subjects of interest to the legal profession. The NLIU Journal of Intellectual Property Law invites unsolicited manuscripts for publications. Such manuscripts should be sent in MS Word (.docx format) to [email protected]. All citations and text conform to The Bluebook: A Uniform System of Citation (19th Ed.) All rights reserved. No article or part thereof published herein may be reproduced without the prior permission of the NLIU Journal of Intellectual Property Law. For all matters concerning rights and permissions, please contact at [email protected] The views expressed in the articles published in this issue of NLIU Journal of Intellectual Property Law are those of the authors and in no way do they reflect the opinion of the NLIU Journal of Intellectual Property Law, its editors or National Law Institute University, Bhopal. Recommended Form of Citation 4 NLIU J. of IP Law (2015) I PATRON-IN-CHIEF Hon’ble Justice Ajay Manikrao Khanwilkar Chief Justice, Madhya Pradesh High Court EDITOR-IN-CHIEF Prof. (Dr.) S. S. Singh Director, National Law Institute University, Bhopal EDITOR Prof. (Dr.) Ghayur Alam Professor of Business Law & IPR, MHRD Chair of IP Law, NLIU Bhopal II This publication has been published due to the time and effort of the following persons: Convenor Co-Convenor Ashima Gulati (Current, Session 2015-2016) Devyani Gupta (Current, Session 2015-2016) Preena Salgia (Ex., Session 2014-2015) Aditya Vijay Singh (Ex., Session 2014-2015) Editorial Board Ankita Sharma Kanchan Modak Shruti Nandwana Ananya Awasthi Sakshi Upadhyaya Sanya Panjwani Haneen Iqbal Siddiqui Surbhi Sharma Tweisha Mishra Aishwarya Srivastava Manasvi Tewari Varnika Taya Management and Technical Board Shashwat Gupta Devyani Gupta Robin Singh Rathore Udyan Arya Shrivastava III PATRON-IN-CHIEF’S NOTE IV FROM THE DESK OF THE EDITOR-IN-CHIEF V CONTENTS EDITORIAL.....................................................................................................................VII PATENT RIGHT WRONG …………………………....……………....……………………1 THE MELTDOWN OF HOT NEWS...............................................................................35 “HIS PRODUCTS ARE NO GOOD”: IS DISPARAGEMENT ALL THAT SIMPLE?..45 FRAGRANCE TRADEMARKS - DO THEY FIT INTO THE JIGSAW OF PRACTICALITY?...............................................................................................................55 FACILITATING COMPULSORY LICENSING IN RESPONSE TO HEALTH CRISES IN DEVELOPING COUNTRIES.......................................................................74 PAY FOR DELAY DEALS: INHERENT CONFLICT BETWEEN PATENT LAW AND ANTITRUST?...........................................................................................................88 COPYLEFT – THE NEW COPYRIGHT........................................................................100 TRANSFORMATIVE USE: MOVING TOWARDS UTILITARIANISM AND AN INDIAN PERSPECTIVE.................................................................................................118 VI EDITORIAL It is a matter of great pleasure to announce the publication of Fourth Volume of the NLIU Journal of Intellectual Property Law. This Journal was inaugurated in 2012 with the primary objective of generating meaningful debate and discourse to help build a fair and equitable IP law regime. Intellectual Property Rights (IPR) are increasingly acquiring new dimensions and are generating new debates. IPR is influencing everyone including authors, musicians, performers, producers of films and sound recording, artistes, innovators, inventors, breeders of plants, creators and the legal fraternity, and common men and women. The articles included in the present Issue of the Journal seek to help rethink the conventional stands, revisit ongoing debates and reassess the roadblocks in the field of IPR. The articles in this Journal deal with a whole spectrum of issues and ideas. They are wide ranging in their subject matters and, with a discursive ease, they provide new viewpoints and show previously undiscovered dimensions of ongoing debates. We have included eight articles in this Issue. In the article Patent Right Wrong an attempt has been made to cull out the propositions relating to determination of (non)infringement of patent in the light of relevant statutory provisions and Indian cases by examining the hypothesis that a claim rather than being only a determiner of patent right is first of all a determined. In The Meltdown of Hot News an attempt has been made to understand if facts can be copyrighted. Though this question cannot withstand the scrutiny of the law laid down by the Supreme Court of India in R. G. Anand v. Delux Films for the Court categorically declared that “facts cannot be copyrighted.” Let us see if the author of this Article has succeeded in handling the question. Further the Article delves into the questions such as whether a quasi-property right can be created on match scores, whether the modicum of creativity test sufficient for awarding copyright and of the relevance of the hot news doctrine. This article attempts to answer these questions and provide a fresh perspective in light of the NBA Judgment handed down by the US Supreme Court and a case currently pending in appeal in the Supreme Court of India, on the issues at hand. Another article seeks to understand the current position of the law on disparagement. Disparagement cases are difficult to deal with in light of its uncertain effect on the consumer and VII the need for ascertainment of the special damage. The paper questions the current position in law to put disparagement under the unfair trade practices. The author seeks to highlight the pertinent need for a legislation to provide adequate remedy while acknowledging the lack of objectivity that exists in such cases. In Pay for Delay Deals: Inherent Conflict Between Patent Law And Antitrust?, an attempt has been made to critique Reverse Payment Settlements between drug manufacturing companies and generic drug manufacturing companies, their implications, their validity and most importantly the coherence of the patent regime as a whole specifically in light of its impact on the consumer. The author, through this paper, seeks to understand the evolving positions in the United States of America and the relevance of such agreements in India and analyse the relevant legal provisions in the country. The issue of compulsory licensing and response to health crisis in developing countries has also been visited in one article. In Fragrance Trademarks- Do They Fit into the Jigsaw of Practicality?, the author has traced the development of fragrance marks across different jurisdictions and has sought to propose practical solutions to problems with respect to granting such non-conventional trademarks. In Copyleft – The New Copyright, the author seeks to describe the evolving copyleft movement, which emerged from open source movement pertaining specifically to software programs, and examine the suitability of copyleft to different forms of creativity. In Transformative Use: Moving Towards Utilitarianism and an Indian Perspective, the jurisprudence and evolution of the doctrine of transformative use is traced by examining a catena of judgments. The author makes an attempt to justify the borrowing of the principle of transformative use and its application to cases where there is substantial public or societal interest involved. The author refers to the Delhi University Photocopying case and examines the applicability of the principle to it. The student body of the Journal has done a tremendous job in screening and evaluating the papers. It would not have been possible for us to bring out this Journal without the support of our students, especially without the efforts put in by Ms. Preena Salgia and Mr. Aditya Vijay Singh, Convenor and Co-convenor of Cell for Studies in Intellectual Property Rights (CSIPR) 2014-2015, and Ashima Gulati and Devyani Gupta, Convenor and Co-convenor of the Cell for the year 2015-2016. We take this opportunity to thank the Patron-in-Chief, Hon’ble Justice Ajay Manikrao Khanwilkar, Chief Justice of the Madhya Pradesh High Court, for his continuous encouragement. VIII We are thankful to the Editor-in-Chief, Prof. (Dr.) S.S. Singh, the Director of National Law Institute University, Bhopal for his guidance and support. All the contributors to this Journal deserve special thanks for they made this endeavour a success. We invite comments and criticism on the Articles and Case Comments published herein. Kindly feel free to make suggestions and comments for improving the quality of this Journal. Ghayur Alam Professor in Business Laws & Intellectual Property (Ministry of HRD Chair on IPR) The National Law Institute University, Bhopal IX X Patent Right Wrong [ Aug. 2015 PATENT RIGHT WRONG PROF. (DR.) GHAYUR ALAM AND ABHINAV PRADHAN Patent right is a negative right. It is not a positive right. Because of a patent, the patentee does not get a right to make, use, sell, offer for sale or import the patented invention. The positive right to do any aforementioned five act is either affirmed, recognized, or is conferred by the Constitution of

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