Showing posts with label Patents. Show all posts
Showing posts with label Patents. Show all posts

 Introduction

On the 20th of July 1969, for the first time in the history of space technology, Apollo 11 successfully landed on the lunar surface. After such a successful landing, many countries and organizations have used the same technology. For instance, this technology was used by the Luna 9 spacecraft[1] which was launched and successfully landed on many extra-terrestrial surfaces by the Soviet Union.

This tactic of reusing the same technology for different missions is not a new one. For instance, in India, Chandrayan 2 tried to follow the footsteps of Apollo 11 and recreate the moon landing, but it lost its connection and as a result, failed in its soft-landing attempt. Later, Chandrayan 3 was planned as the third lunar exploration mission by the Indian Space Research Organisation (“ISRO”). It is scheduled to be launched in early 2021.[2] The technology in Chandrayan 3[3] is not new, but the same as that of its previous mission. However, there are changes and improvements needed for there to be an increase in the chances of its success this time. Regarding the space laws and their legislation and the intellectual property rights in the dimensions of space, it would be interesting to see and observe that they both are contradictory in their fundamental nature.

While the idea of patents is not predominant in the space sector, compared to other manufacturers such as transportation, electronics, fast-moving consumer goods, chemical industry, pharmaceutical industry, etc.- in recent years, space patents have become increasingly crucial and into the center stage. According to the OECD[4], space patents at the global platform have almost quadrupled between the phase of 1991 and 2011. In the race for international influence, which helps a country to gain recognition and power in the field of Intellectual property and innovation in space, Canada is ahead of all the other countries comparing to its size, geographically, which is a signal of the potential that can be used to the technological advantage of the space sector in Canada. However, while space patents have shown immense potential, patenting space technologies presents some complications that are not so often encountered in more terrestrial areas of technology.

It is an extremely difficult task to measure or quantify innovation. There is no fixed or official indicator or test for innovation measurement. However, in the field of space patents, the annual production of patents is the principal and basic indicator for the quantification of innovation. This has led to the high need for protecting space inventions and work towards harmonizing space law with IP rights. The establishment of IP rights for space inventions, as it is a strong tool for the inventors to protect their inventions, will accelerate the formation of rights, breaking the boundaries of the conventional territory. Such protection will help the owner to claim the right over their inventions whenever the inventions are been exploited in space.

One of the most recent Patents, is by India in September 2019, when Chandrayan – 2 the lunar project tragically failed. Resurging in May 2020, the Indian Space Research Organisation intrigued the world community, when it announced a highly advanced patent[5] for protecting the unique and exclusive method and technique of manufacturing a simulant of highland lunar soil.

Such soil is made in bulk from indistinguishable samples of rock from ‘Sittampundi Anorthosite Complex’, which is 67km from Salem in Tamil Nadu. A crucial facet of the method-patent attained by ISRO explained that the soil had the following qualities:
Cost-effective
Reproducible
Highly scalable 

Such a lunar soil is similar to regolith (loose unconsolidated rock and dust that sits on top of bedrock) from the lunar highland region. It can be efficiently utilized for the command of the mobility of a rover for scientific exploration and discovery & in the study of the geotechnical and mechanical properties of the lunar soil. The innovation and invention ensure that it is a highly effective training stimulus for future missions on the surface of the moon.

Maria or Mare, which are flat areas in most cases, are the dark areas on the lunar surface. The high-altitude areas are mountainous and craterous. These areas comprise 83% of the lunar surface. The patent claim of the ISRO claims that while simulants produced and created by most of the countries represent this Lunar Mare region, the soil produced by ISRO can incorporate the fragmental regolith on the lunar surface. 

It is experienced and has been proved that the terrain of the lunar surface is highly illusionist and treacherous. This is the reason why several highly ambitious missions[6] across the globe have failed in the past like Columbia broke down re-entering earth, which estimates to around $16.2 billion[7] in today’s day and age. The tragic failure of Chandrayan – 2 is one such example. Replicating lunar soil in a controlled environment would provide a greater chance of success in future missions. The devices which are made especially for automated space and extra-terrestrial exploration would be conditioned to survive in this kind of terrain of the lunar surface. To understand civil engineering, as a subject to work, research, and learn from, the structures on the lunar surfaces for the reason of which a broad design philosophy will be postulated, for which a detailed research work will be performed. With the help of such mass-produced lunar-soil, for performing scientific extra-terrestrial explorations and discoveries, the operationality and the maneuverability would be improved.

In this newly explored area of regolith, the deepening of knowledge will help in the further study of the geotechnical and mechanical properties of lunar soil. ISRO has been extensively filing patents since 1973, till now ISRO database shows the number of around 270 patents, 45 copyrights, and 10 trademarks in the IP portfolio of the Indian Space agency. The creation of space laws and the space patents under IP rights are fundamentally clashing, which has led to many issues in the enforcement, questioning whether the territorial jurisdiction under intellectual property law permits the extension of each national (or regional) law to the objects which the respective country has registered and launched into outer space. Patent rights have the objective of preventing the use of the technology by any of the innovators or consumers. The space laws and the fundamental principles, “province of all mankind’, ‘common heritage of mankind’ and benefit of all countries promote the concept of shared benefit. The lunar soil patent of India’s ISRO will help India promising prospects for future missions to ensure a soft landing on the highland region.

NASA’s declassified patent of the creation of an artificial Sun

NASA has been describing the idea of creating an artificial Sun since the 1960s, locked the idea of an artificial sun between 1961- 66, where the patent of the system of artificial lighting was approved. Their plan is to, illuminate and try to replace Sun with the help of the artificial sun, maybe not for the entire globe, but at least for most of the area. They wanted to create a system where there is a facility to vary the intensity of the illumination in a wide range. But for using it for the simulation of sunlight and moonlight, there are no changes in the spectral distribution of the illumination. They have successfully brought this into reality. There are artificial suns of hexagonal shape at the time of sunrise and set. The sun drives the big reflector made by NASA into the sky from behind which allows the reflection of sunlight through itself, the artificial reflector would have to be adjusted in a way that simulates not only the sunlight but also the natural light of the earth and the moon. Most people are completely unaware of the sixty decades-old patent, but this same technology is now to be used as Nibiru, which means crossing or a point of transition. Their objective is mysterious till now and highly speculative.

The patents in space are an emerging and highly competitive market in their scope and potential. Experiments, ideas, innovations, and inventions carried out in the field of patents and intellectual property rights in space are encouraging and boosting the urge and need for patent protection. Every innovation comes with its price in this business and creativity-driven world. Patent protection in the field of space technologies and the space sector is extremely important when it comes to its extensive usage and role. The patent protection in hand is an asset for an individual, organization, or country. With the multiplication in the patent protection of the space technology innovations, the income and monopoly come in which creates a space for the innovator to gain some profits, name, and explosibility. The patent in space is an important and crucial tool that protects the innovators’ innovativeness. The innovation can be misused by using the same innovation, which is born out of the mind of an individual and his/her intellect, and unethically using it for monetary and other benefits such are the recognition out of such inventions.
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Author: Saptak Pandya, The Maharaja Sayajirao University of Baroda














[1] BBC ON THIS DAY | 3 | 1966: Soviets land probe on Moon


[2] Chandrayaan-3 to be launched in first half of 2021: Govt | Technology News,The Indian Express


[3] Chandrayaan-3: India plans third Moon mission - BBC News


[4] The Space Economy at a Glance 2014 | en | OECD


[5] Made in India ‘moon soil’: ISRO gets patent | Hindustan Times


[6] The Most Expensive Failed Space Missions Of All Time (businessinsider.com)


[7] The Most Expensive Failed Space Missions Of All Time (businessinsider.com)

Introduction

India is well known for its judiciary and its constitution. But when it comes to the speed and the fast decisions, somewhere the game of judiciary fades away. India is always haunted by pending cases. Coming the statistics to as an evidence to the previous statement, there are 9.2 million cases pending in the District courts, 3.7 million cases pending in the High Courts of India in states like Allahabad, Rajasthan, Madhya Pradesh, Patna, Orissa, Bombay. The total of 37.7 million cases pending including high courts, district and taluka courts across India.[1] The main reason for the pendency of the cases is the judicial vacancy. Due to judicial vacancy there are cases pending. For example, U.P where there are the greatest number of judicial vacancies, the numbers pending are highest in the Allahabad High Court, U.P. 
Arbitration has emerged as a solution for the pending cases as a dispute resolution forum. With that in the trend, also the courts, who are suffering take the favour of the arbitration procedure, they are active in the enforcement of the arbitration clauses.[2] The courts are supporting and promoting the policy of ‘minimal interference’.[3] The size of any organization does not ever stop them from having a Intellectual Property Portfolio, where everyone are involved in some type of licencing agreements. The role and indulgence of intellectual Property has been increasing in the global spectrum, as a result arbitration, due to its rapid resolution of the disputes is gaining the importance that it deserves. 

The Supreme Court in Booz-Allen & Hamilton Inc. v. SBI Home Finance Ltd. Had discussed about the dimensions of arbitrability, giving 3 facets.
1. Nature and subject matter of the dispute i.e. if can be solved by arbitral tribunals or fall under the court jurisdiction.
2. The list of disputes should include specifically the dispute to be solved by arbitration
3. Identification of the dispute in the arbitration joint list
The dispute arising out of rights in personam[4] are acceptable to be arbitrable, even if are a subset of rights in rem and not which arise out of rights in rem.[5] The primary nature of the IP rights is right in rem, with that attached is also a minute presence of right in personam (licencing agreements or enforcing IPR). The farrago continues in this matter.
April 12, 2016, Eros International Media Limited v. Telemax Links India Pvt. Ltd. Bombay High Court held that disputes arising out of breach of contractual terms of licencing or any other are arbitrable. It shouldn’t be held directly that non-arbitrability of IP rights is equal to non-applicability of all the IP disputes in arbitration. 

Similarly, October 13, 2017. Lifestyle Equities Cv vs Qdseatoman Designs Pvt. Ltd. Madras High Court observed that patent licence disputes are arbitrable, except when it is in respect to the validity of the patent. Arbitration is an effective method to resolve the disputes arising out of Intellectual Property and Standard-Essential Patent (SEP) licensing agreements. The objective of using arbitration for the objective of resolving IP disputes, is that the efficiency in terms of time period and the speed with which it resolves the dispute. 

The nature of the Intellectual Property disputes is such that they are highly technical and analytical in nature[6]. The parties in disputes are allowed to choose their arbitrators freely who will perform the arbitration process. It will have benefit of ensuring of the panel that has the knowledge of the domain of dispute. When the clauses of the selection of such arbitrators are drafted, the qualifications of the arbitrator can be included with other requirements so that the resolution process is faster and efficient.
The confidential and sensitive information which is kept secret and confidential in the arbitration process, consists of high-stake trade secrets, proprietary rights over technology or intellectual property[7]

The other side which is litigation is not trustworthy and the secrets and sensitive data is not secure. The disputes come with negative publicity, as the firms and corporates have a fundamental weapon with them which is their goodwill and reputation which is prevented from harm in arbitration. Litigation is famous for its multiple proceedings and delay in the decisions, in arbitration, a single proceeding will resolve the dispute which will increase the predictability and preparatory phase of the parties. Once the final decision is taken and awarded, the decree holder has to divert or rather concentrate on the following of the relevant award rather than other litigation process. The additionary benefit is that whenever the arbitration clause is ben drafted it should be checked for the arbitrableness of the clause.
 
The crucialness of the clauses dealing in the scope of arbitration, the legislations which control the arbitration and the qualifications, at the time of draft making of the arbitration clauses in IP and SEP licensing agreements. As held and discussed in Booz-Allen & Hamilton Inc. v. SBI Home Finance Ltd, regarding which 3 facets were discussed, and that the clauses should include, the ones which cover all the claims in the issue, as the drafting which is mediocre in its approach ends up in the hands of litigation. The sides or parties which are included in the case are free to select their rules of arbitration proceedings. This is because there are certain institutions which have specially created rules and regulation which are specifically for Intellectual property.
  1. American Arbitration Association – Resolutions of Patent Disputes | Supplementary rules[8].
  2. World Intellectual Property Organization (WIPO) - WIPO Arbitration Rules[9]
The parties are free to choose their own rules which control and procedure of the arbitration[10]
The freedom to chose your own arbitrator is helpful as the importance and requirement of the arbitrator who is well versed with IP laws, SEP and fair, reasonable and non-discriminatory (FRAND) practices.
 
The situation in which the licensee has acted beyond the limit and scope of the agreement of licencing of patent, the defence which will put will be the following:
1. Approaching Intellectual Property Appellate Board (IPAB) with the objective of the revocation petition u/s 64 (1) Indian Patent Act, 1970.
2. Filing a counterclaim in the infringement suit
The tribunal cannot decide on the defence put up; it is the IPAB which will decide the same. Regarding the counterclaim, the high court alone can be taking it into its control. This is a problem for the respondents because they would not have a wide scope, rather will have a limited scope in their defence in the arbitration. The arbitration will be superfluous even if hypothetically they get the opportunity.
There are two ideal types in the field of arbitration for India, one is of Hong Kong, the other is of Switzerland.
Hong Kong – Any dispute (infringement, ownership, validity enforceability, scope, duration, transaction, compensation) is arbitrable which is related to Intellectual Property Rights. The third parties are not subject to any awards, only the party in disputes. In case if he disputes is between a party and a third party then the award will not affect the subsequent proceedings. 

Switzerland – The capability is both, the infringement and invalidity disputes is there. The award in which it is declared that the patent is invalid then, it will be under the Swiss Institute for Intellectual Property Rights[11], the same manner as a judgment or order to the same effect. There is a practice of prejudice against the third party which was not involved in the proceedings of the arbitration.
The empirical side will be chosen by India and will boil down to the model of Hong Kong, keeping the third parties outside. 

India has no bar on the arbitrability of the disputes of the IPR. There is a surety that the IP licencing disputes are bound to arise, in such case arbitration is the most comfortable and relevant method of resolution. It has proved itself as the apposite substitute for the litigation method which has a lot of downsides. The problem of handling multiple jurisdictions is been solved by Arbitration. Though there is an option that incorporation of clause of arbitration in the licencing agreement after the dispute, it is advisable and wise to incorporate it at the time of the negotiation of the agreement. Which helps the parties to be intact to the arbitration method. As the field of arbitration, especially on the IPR side, is emerging in its full potential, countries, especially like India should try and improve and adapt to the new method of resolving disputes as India is full of talents and potential. The method of arbitration should be used more and more to improve and polish in the same, the young lawyers and the experienced policy makers can merge themselves and make this happen. 

References

[1] National Judicial Data Grid (NJDG)
[2] M/S Icomm Tele Ltd. vs Punjab State Water Supply And, 11 March, 2019 
[3] Vijay Karia & Ors. v. Prysmian Cavi E Sistemi SRL & Ors. Civil Appeal No. 1544 of 2020, decided on 13 February 2020
[4] A right which is imposed upon determinate individuals (Single person or group)
[5] A right in rem is available against the world at large
[6] https://www.wipo.int/amc/en/arbitration/why-is-arb.html
[7] https://www.natlawreview.com/article/growing-importance-international-arbitration-intellectual-property-disputes
[8]https://www.adr.org/sites/default/files/Resolution%20of%20Patent%20Disputes%20Supplementary%20Rules.pdf
[9] https://www.wipo.int/amc/en/arbitration/rules/index.html
[10] https://uk.practicallaw.thomsonreuters.com/9-502-0625?__lrTS=20171014041831054&transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1
[11] https://www.lexology.com/library/detail.aspx?g=5b72f5e7-1b20-45a8-9351-3df4d1f6f6f2#:~:text=Hence%2C%20an%20arbitral%20award%20declaring,order%20to%20the%20same%20effect
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Interface of Patent Pool and Competition

Patent pools are voluntary agreements among two or more patent holders to license their patents to each other or to third parties. Mostly, pooling is linked with technologies that are multifaceted and require complementary patents to impart effective technical results. Patent pools provide protection to developed technologies. Patent pools are viewed both from legal as well as economic perspective. At the same time, through sharing of intellectual properties they can be advantageous to competition and innovation, as firms can mature novel products and thereby, reduce costs of transaction. Simultaneously, patent pool can provide opportunities for anti-competitive practices like co-operation among competitors however, it can be viewed as a cartel. Sometimes, the “patent-thickets” can lead to increased transaction costs and chilling effects on the development of new products”. 
The categories of pooled patents/technologies for gauging the impact on competition are complementary or substitutes and, in case of a standard environment, they are essential or non-essential. Patents are known to be substitutes only when they shield alternative technologies and do not block each other. The technology under substitute patents do not infringe the other patent and are applicable in parallel thus, competing with each other. Since, in the method of production complementary patents are to be used together therefore, in order to produce the anticipated output, it is necessary to be the holder or licensee of that complementary patent.

Since, substitute patents compete with one another and should not be tied in a pool, if tied it will eradicate competition. However, it is not applicable to complementary patents as competition is not diminished. Therefore, pooling complementary patents is regarded as pro-competitive in the U.S and Europe antitrust commendations. While pooling complementary patents may impact the succeeding innovation and besides that, the innovation may be slowed down too. As a result, outside firms may be discouraged to invest in the research and development (“R&D”).

In the notion of standardization, technical standards are to be met by essential patents. Accordingly, since they are standard-essential, they are always complementary and patent pooling of such patents are not problematic when viewed from the perspective of competition. Moreover, based on the demand of the consumers patents can be commercially viable and therefore, should be “essential” when the impending threats on competition which are created out of a pool are assessed. If the substitutes are available to the technology covered then, patents are considered as non-essential and patent pools comprising of such patents are problematic when viewed from competition’s perspective.

Concept of Medicine Patent Pool (“MPP”)

MPP was established by Unitaid, a UN backed body in 2010 for financing HIV, malaria, and tuberculosis treatments. MPP’s goal is to make the drugs available at a lower price and at the same time ensuring that the generic companies can make a “reasonable profit” in order to remain sustainable in the market.

How will pooling help in combating Covid-19?

The coronavirus infection is disseminating across the globe at a menacing pace and causing deaths. Similar to the outbreak of HIV/AIDS, the outbreak of COVID-19 drew worldwide attention to the difficulties in accessing life-saving drugs in developing and least developing countries and conflicts between a human right that is, right to health and patent rights. Due to the underlying principle of “winner-take-all”, patent law represents challenges to imperative development of health technologies by disclosing the results of useful research timely. The law of patents dejects sharing of unpatentable inventions that might possibly lead to patentable inventions after certain improvements. Moreover, the patent holders have an exclusive right over their patents which adversely impacts the affordable and worldwide supply of pioneering technologies of health as there is presence of supra-competitive pricing and restrictions on manufacturing across the world.

The MPP proclaimed to take account of drugs and diagnostics for combating Covid-19 in their licensing pool on April 3, 2020. However, this enlargement in the MPP is temporary. There is no assurance of accessibility with the emerging Covid-19 treatments therefore, there should be a move from nationalism to internationalism and a shift from exclusivity to inclusivity. Only through the newly launched global Covid-19 IP Pool, a centralised information pool under WHO’s authority, the shift will remain secured. All these will be freely accessible or can be licensed on rational and cost-effective terms. Eventually, there will be improved advancements and affordable treatments.

The two important trepidations with respect to COVID-19’s control and treatment are; firstly, the exigent development of technologies related to health and secondly, equitable and reasonably priced access to such technologies. Hence, assurance is required for the medical technologies to be developed and tested urgently, efficiently, and universally available to all the countries.[i] Likewise, Costa Rica’s proposal for a world-wide intellectual property pooling approach had consideration as it addressed the trepidations.

In the 73rd Assembly of the World Health Organization (“WHO”) a Resolution had taken place which stated that the member-states should make collaborative efforts to provide technologies universally accessible to fight the ongoing pandemic. The access to technology must respect “the provisions of relevant international treaties, including the provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights Agreement (“TRIPS”) and flexibilities within the Doha Declaration on TRIPS and Public Health”. This access to technology concerns vaccines and other necessary components like masks. Lately, there is a persistent demand for protection for intellectual property rights (“IPRs”) to battle the pandemic.

On May 29, 2020, the WHO launched COVID-19 Technology Access Pool (“C-TAP”) accompanied by a Solidarity Call to Action. It is distinct from the existing MPP due to its universal tactic. It includes existing and future rights in patented inventions and designs, regulatory test data, know-how, cell lines, copyrights and blue prints for manufacturing diagnostic tests, devices, drugs, or vaccines. All of these should be universally obtainable as global public goods. C-TAP’s object is to share research and information and pace the development of vaccines and medicines and also, increase the manufacturing capacity for any products, if developed. The WHO also stated the actions to be undertaken by the government or R&D funders under C-TAP. The Pool also requests the supporters to licence products to the MPP.

Further, the flexibilities under the TRIPS can be applied by governments to ensure that IPRs do not become an obstruction in case of innovation and accessibility of health technologies required for Covid-19. Under Article 73(b) of the TRIPS, a country can take action essential for the protection of its indispensable security interests including deferment of the grant of patent protection and indemnity against enforcement actions. A country can embark on parallel importation of desirable products, including the countries where they are originally produced under compulsory licenses. Articles 7 and 8 of the TRIPS provide for technology transfer for mutual advantage which is conducive to technology transfer and stability of rights and right of member nations to undertake measures which beneficial for the health of public and public interest respectively. Therefore, with the increase in number of Covid-19 cases several measures can be implemented by the developing countries in accordance with the TRIPS. The countries can amend the existing laws, rules and regulations or make new laws. Countries like Chile, Germany, Canada are focusing on granting compulsory licenses or authorisations by government with certain countries providing indemnity against infringement of IPRs and usage of competition law.

Countries can adopt procedures for anti-competitive use of IP protected technologies for combating COVID-19. As, the European Commission (“EC”) instigated a preliminary investigation for the abuse of dominant position by Roche, a pharmaceutical company in the Dutch market, as it refused to share the trade-secret for generating a buffer solution that is required for use in testing kits of Covid-19. During the pandemic, the EC will monitor the undertakings taking undue advantage and violating the competition law by entering into anti-competitive agreements or abusing the dominant position of the European Union (“EU”).

The developing countries, in all probability, can use competition law to prevent anti-competitive behaviour by holders of IPR over products which are crucial for COVID-19, The usefulness of fair, reasonable and non-discriminatory (“FRAND”) licensing, in cases of providing licenses for standard essential patents like medicines would help out in licensing of medicinal patents and through this sub-licensing a generic competitive tendency would be generated and it would be regarded as a healthy form of competition. Despite initiatives like MPP, there are criticisms of not being equitable and just in providing access to the facilities. The involvement of politics is omnipresent and it prevents access to vaccines by not favouring the idea of voluntary patent pooling and thus, making it inaccessible for the common good of the global population. These geopolitical and interagency conflicts are to be dealt with in order to make patent pooling a reality on a global level at present and also for future prospects. 

Reference

[i] Baker Brook, “Rationale For Supporting Costa Rica’s Proposal For Emergency Covid-19 Technology IP Pool For All Countries” <http://infojustice.org/archives/42137> accessed October 1, 2020 

Introduction

The Copy Right Act of 1957 has etched Section 55 within it, to provide civil remedies in case of violation of intellectual property rights. Section 55 stipulates that, when a copyright is infringed, “the owner of the copyright shall be entitled to all such remedies by way of injunction, damages, and accounts and otherwise as are or may be conferred by law for the infringement of a right”. Today’s advanced technology coupled with the various loopholes in law facilitates malefactors to hide behind their masks and catching them is often next to impossible without the help of a third party. One of the most fascinating interlocutory weapons used in the fight against the pirating of intellectual property rights is the Norwich Pharmacal Order. Even though, this weapon was built to aid plaintiffs in bringing the wrongdoers to justice, NPO is criticized by some legal scholars to be a double-edged sword that fights crime with crime. 
The origin of the Norwich Pharmacal Order can be traced back to the judgment granted in the year 1974 by the House of Lords for the case; Norwich Pharmacal Co. v Customs and Excise Commissioner. The patent rights of the appellants of the case were infringed by an anonymous group of people who manufactured and imported the unique chemical compound created by the appellants. Due to the anonymity of the wrongdoers, the appellants approached the Custom and Excise commission seeking the names of the importers but they refused to share the confidential information. In this historically important case in the field of IPR, the House of Lords ordered the Custom and Excise commission to produce the names and addresses of the culprits. Henceforth the Norwich Pharmacal Order has been used by common law countries as an interlocutory measure that commands a third party to disclose necessary information or documents to the plaintiff. 

Over time, the employment of the Norwich Pharmacal Order has evolved with the expansion of technology. Currently, the biggest targets against whom this weapon is deployed is the Internet service providers or the website and database hosts. Many users around the globe are maneuvering the internet which is a vast labyrinth as a decoy to perpetrate the transgression of intellectual property rights. The legal conundrum arises with the conflict instigated by the NPO between privacy, data protection, and safeguarding of the intellectual property rights. Some legal scholars argue that, while trying to remedy the IPR breach, the NPO stabs the justice system in the heart by violating the fundamental rights like privacy while infringing data protection rights. In the landmark case of Golden Eye (International) Limited v Telefonica UK Limited, his Lordship Arnold J noted that “The grant of the order sought will invade their privacy and impinge upon their data protection rights”.

Through this paper, I argue that the bringing in of privacy and data protection agendas is a red herring aimed at luring the court to move away from imparting justice. In the case EMI Records (Ireland) ltd v UPC Communications (Ireland), the Irish High Court held that “Criminals leave the private sphere when they infringe the rights of others or conspire in that respect”. The presiding judge, Charleton J stipulated that by upholding the privacy violation contention, the court will be endorsing the “mass copyright infringement”. In Golden Eye International Limited, the Court of appeal authorized the implementation of the Norwich Pharmacal Order. The House of Lords went on to say that the argument pertaining to the breach of privacy and data protection is merely harboring the transgressors of intellectual property rights.

The irony for the need for data protection in an online world is something that cannot be missed. Through platforms like the various social media sites, blogs, online chat rooms, and so forth, individuals furnish personal information for the world to see. This easily available data can be helpful in catching an offender via the internet service providers or any other third party for that matter. The question then arises, even if the user is protected from being recognized, is he or she right for infringing the copyright of another individual on the basis of the anonymity assured to them by the internet service providers? If the service providers do not corporate, these offenders will grow in number and cause large scale violations of intellectual property rights that can cause irreparable damage.

There are strict conditions that are laid down by the court which calls for the rightful application of the NPO. In order for a plaintiff to be granted an NPO, he or she has to provide and prove sufficient interest in the disputed matter. Another mandatory condition that needs to be adhered to is the need for the plaintiff to display before the court that there are no other means to acquire the necessary information. Moreover, the third-party should have information about the malefactors that can be crucial to deciding the case. By adhering to these conditions the court can ensure that the NPO does not violate the fundamentals of the legal system by only sanctioning it in needful legal situations. Hence NPOs are not a double-edged sword; instead, it’s a weapon to attain justice for the copyright proprietors.

References

1. Section 55, Indian Copyright Act 1957.
2. Hoffmann, Leonard. “Changing Perspectives on Civil Litigation.” The Modern Law Review, vol. 56, no. 3, 1993, pp. 297–306. JSTOR, www.jstor.org/stable/1096669
3. [1974] AC 133, 175B-C, per Lord Reid
4. Cripps, Yvonne. “Judicial Proceedings and Refusals to Disclose the Identity of Sources of Information.” The Cambridge Law Journal, vol. 43, no. 2, 1984, pp. 266–289. JSTOR, www.jstor.org/stable/4506652
5. Udwadia.M.Yazad. “Remedies in case of IPR Violation.” Intellectual Legal Solutions.
6. Hoy, Ruth. “The Intersection Between Data Protection and Trademark Rights: Balancing Fundamental Rights.” https://www.inta.org/wp-content/uploads/public-files/advocacy/committee-reports/81452413_2_UKMATTERSINTA-Data-Protection-Article.pdf
7. Golden Eye (International) Limited v Telefonica UK Limited [2012] EWHC 723, [119]
8. Ibid
9. EMI Records (Ireland) ltd v UPC Communications (Ireland) Ltd [2010] IEHC 377
10. Ibid
11. Supra Note 7
12. Bellamy, Jonathan. “PROFESSIONAL LIABILITY CLAIMS: NORWICH PHARMACAL PROCEEDINGS AND HUMAN RIGHTS.” http://www.39essex.com/docs/articles/Norwich_Pharmacal_Presentation_Paper_PNLA.pdf
13. Ibid Image Source -Elizabeth Sathish Jindal Global Law university, Delhi

Introduction

Music label T-Series has filed a copyright infringement lawsuit against Roposo, a short-video app owned by advertising technology company InMobi. The lawsuit, filed in the Delhi High Court and reviewed by ET, alleges that Roposo is “blatantly, extensively and wilfully” infringing on T-Series’ copyrighted works. The music label has sought a permanent injunction to stop Roposo from using its copyright material. When contacted, Roposo declined to comment. “The app is infringing content under the user-generated content,” said T-Series president Neeraj Kalyan. “They are offering our music in their library and enticing users to upload our content in exchange for cash rewards.
 Their venture capitalists have not done due diligence, they are hand in glove.” The lawsuit has also named Roposo investors Tiger Global and Bertelsmann. Like wise there are several copyright infringements across the music industry which are only acted upon when they are identified. Before identifying, they need to be copyright protected. It’s like a vaccine taken for prevention and immunity to a disease. Music is the line that connects all the dots. Individuals of different cultural background perform together and music is heard by people no matter the language or any other cultural barrier.
 Pandit Ravi Shankar, the great Indian Sitar maestro performed with the legendary band The Beatles. George Harrison, the lead guitarist of the band was a student of the Pandit, who was a major inspiration for the music composed by the band. India has contributed maestros and inspirations for the western fraternity. Indian classical is also used and made a fusion of Indian classical music and western pop music and EDM.
Indian musicians worked with the western music fraternity like A.R Rehman and Hariharan. There are a lot of western musician who contribute songs in the Indian music industry which is a treat for audience of both the backgrounds to enjoy their respective musician in a different zone and avatar. Songs and musician do not have any geographical and language barrier. Psy’s “Gangnam Style” is one such example, also can be Despacito, a fusion of American Spanish by Luis Fonsi featuring Puerto Rican rapper Daddy Yankee.
Some of the examples of the fusion of Bollywood and foreign musicians are:
1. Tata Young, Dhoom
2. Kylie Minogue, Blue
3. Akon, Ra. One
4. Snoop Dogg, Singh is Kinng
5. Rishi Rich, Hum Tum
It is important that something as precious as music should be protected and conserved. Intellectual property is the saviour.

Aspects of IPR related to Music:

Copyright

In the music industry, in order to protect their work, they must obtain a copyright. Music has been around before anyone could obtain a copyright and after the invention of computer, it made it easier for someone to steal another artist's intellectual property with the help of the internet. When the Copyright Act of 1976 was enacted works created after January 1, 1978, are automatically given statutory copyright protection for life of the author plus 70 years[i]. For someone to go against the rules of a copyright this is called a copyright infringement.

Trademark

[ii]A trademark is a type of intellectual property consisting of a recognizable sign, design, or expression which identifies products or services of a particular source from those of others, although trademarks used to identify services are usually called service marks. The trademark owner can be an individual, business organization, or any legal entity. For the sake of corporate identity, trademarks are often displayed on company buildings. It is legally recognized as a type of intellectual property.
The question arises that why is the role of intellectual property rights extremely important when it comes to the music industry:

1. Source of Income:

The main source of income for a musician or for the producers is via sales of their produced music or piece. The merchandise generates the most income where they value their piece in terms of monetary value for their work and creativity. The music industry is another type of “industry” where business is done. The artists and musicians have different businesses, better put it as more than one source of income which is because of the volatility of the industry. They also earn money by performing live and appearances. So, what is the role of IP in this source of income factor is the curiosity aroused. Put is straight away, music is their money earner, their music will work for them earning them money. When they produce a music or piece, they are creating a product out of their time, efforts, creativity and experience which is valued for monetary gains.
 If that music is been copied by anyone and sold, the product for which they were going to gain profit or on which they had rights is robbed. This is a theft of their production piece. Piracy is highly prevalent in the entertainment industry and especially in the music industry. Copyright, extremely important helps in protecting the musicians and the producers from being robbed. The recording studios usually hold the rights over the material and as they have the distribution rights. The major share is earned by them and at the same time the loss suffered is majorly felt by them.
 Copyright protection even protects the sound and the written work of the musician for the lifetime of the owner of the copyright and then an additional sixty years after the owner’s death. It is just like a security plan for any of your material. In the case of a group of owners, the sixty years are added after the passing of the last owner.
The materials in the Copyright protection radar includes books, songs, poetry, sound and video recordings, and more. For a music creative, this is extremely important. It serves as a proof of ownership and prevents producers and musicians from being robbed of their own work. It gives the right to the owner to claim rights for use of it.

2. Distribution and Broadcasting:

The music created by artist is not willed to be trapped with them just like a fixed deposit, left to be untouched and unobserved. The creative material created by the artist or musician is objectively made to be heard by the people across various platforms. Method of making it available to the people across various platforms is Distribution and broadcasting. Distribution is a way in which the material is made accessible to the consumers. This makes it possible for the music to be purchased in stores or downloaded or streamed online. Distribution companies sign deals with record labels, which gives them the right to sell that label's products. 
Traditionally, the distributor takes a cut of income or commission from each unit sold and then pays the label the remaining balance. After the 20th century, the game of distribution has changed after the arrival of internet. Downloading brought radical changes to the music industry at the turn of the 21st century. Fans downloaded millions of tracks from a wide range of artists at no charge through companies. The composer can choose to broadcast his creation and distribute it as he is willing. This is a source of revenue for the composer.

3. Licensing and Assignment:

You would have heard the remix and recreations of old 90s songs. The song which was made in the 90s can be recreated by a person after taking the permission, paying the royalty charges to the owner. The songs of the independent singer’s and artist’s albums are used in the movies because it already has a fan base. Giving authorization for any person to make use of the composition can be done in exchange for money. This is part of a licensing agreement which helps the composer make maximum use of his creation. After the royalty charges are paid, with terms and conditions and certain limitations, song can be reused, recreated, and remixed.

4. Make it common:

The more the restrictions are placed on the material’s uses, the less it will be accessible and usable and in fact used by the people. The lesser the exclusivity the easier it is for customers to obtain. If you want to earn more money then this can be done. There are various songs used in the background music and memes. In the world of social media, memes are used where, certain songs are used extensively, making it available to every person penetrating deep into the ecosystem of consumers. For example: iTunes helps in collecting music by providing an easy platform to collect music. A percentage of the sales goes to the creator, this way all parties are benefitted.
With changing world which is dynamic in nature, the habits change, so do the ways of loot of creative pieces change. With each changing way of the working of the industry and the introduction of the trends, then the ways of protecting it too change. Changing with the waves and trends in the dynamic world is the key. 

References

[i] (Miller R. J., 2011, pp. 125-126)
[ii] https://en.wikipedia.org/wiki/Trademark

Introduction

The noteworthiness of Competition Law is broadly perceived in the drug market which is one of the significant business sectors that contributes for the economic development in the country. Truth be told it is significant to make reference to that it is this market that is inclined of parcel of unlawful exchanges and monopolistic competition given the way that medication is one of the indispensable items that each consumer needs and the sellers or market players utilize this chance to exchange their items and achieve monopoly or control the prices of the products. By the institution of the Competition Act, 2002 different guidelines were brought into power to manage the market competition in the diverse business sectors.

Given the significance of general wellbeing that is in thought in this drug segment it is important to comprehend the utilization of Competition law in this segment. This article attempts to reveal insight in the overlapping of the IP rights and the competition law in the pharma sectors and attempts to draw out a comprehension of how improvement of pharma part has set off the opposition in the market. Facilitating which the article will advance a few proposals. So as to valuably comprehend the market rivalry in drug area, the advancement of the pharma part assumes a significant job.

Development of Pharma Sector:

In India before 1970 the pharma markets were pre-dominantly caught by the Foreign organizations after which the Patent Act[i] in the year 1970 came into force. Despite the fact that the organizations in the pharma sector was making good revenue in the Indian market their trade activities were limited because of statutory enactments. After the liberalisation policy in the year 1990 the Indian pharma sector become a worldwide player with colossal piece of the overall industry across nations. While glancing back at the advancements it very well may be seen that the entry into the Indian pharma market by the Foreign organizations began to increase by 1990 which prompted the slow improvements of the Indian organizations and consequently the medication in India were patented to foreign companies and had huge demand in the India market with excessive costs.

One of the outstanding advancements in the pharma sector was by the Amendment to Patent Act in the year 2005 which presented the idea of "product patent" before which only the processes were patented which permitted the companies to find alike manufacturing process to arrive at the same product after product patent the whole product and the process of making such product was patented and granted protection for the period of 20 years. This implied that that there can no longer reverse engineer the process and make generic medicine. This product patent regime infused the lot of incentive for the developers of the new medicine. It was argued that one of the reasons to bring about this change was that it shall protect the rights of the innovator and also enrich the research and development process in the Indian market. In any case, this argument didn't end up being successful as I would like to think since this triggered the import of the medications from the foreign nations which expanded the competition in the Indian Market.

The pharmaceuticals sector attracted FDI inflow worth of Rs.87,814.31crores between April 2000 and March 2020 according to the data released by Department for Promotion of Industry and Internal Trade (DPIIT)[ii]. This explains how much the pharmaceutical sector has to contribute to the economy. The significant need for the regulation of competition in the pharmaceutical sector is that the demand for the product is inelastic because of its importance in life saving and the substitute for the product might be very less. It is for this reason the competitors tend to have illegal agreements controlling the prices and supply of the medicines creating artificial demand in the market.

IP & Competition Act.

The hardship in regulating the market is that on one hand there is a need for making the medicines available at standard prices and on the other hand the innovators’ interest has to be secured. Hence it involves the issue of regulation and protection of rights of the creators. The Competition Act, 2002 prohibits certain type of agreements[iii] which restrict the supply, demand, price of a product at the same time it also tries to bring a balance by protecting the rights of the creators[iv]. The failure for not accomplishing the market regulation in this sector is that the core objective of the protection of intellectual property and regulating the market for the ease of doing business and protecting the consumers doesn’t align together. 
 In the case of Madhya Pradesh Chemists and Distributors Federation v. Madhya Pradesh Chemists and Druggist Association & Ors[v], in addressing the contention that the CCI doesn’t have the jurisdiction to adjudicate the matter related to the drugs and pharmaceuticals, the CCI held that the whole intention behind the legislation is to regulate the competition and unfair trading and it has jurisdiction to deal with such issue related to different sectors of business. Hence by the Competition Act, the jurisdiction to deal with the issue related to competition is exclusively granted to the Competition commission of India instead of other courts.

The TRIPS agreement makes it clear that the protection of the product should be in alignment with the welfare of the country[vi] but whether it is really being implemented or not is the question is left unanswered. But on the brighter side the concept of Compulsory licensing[vii] plays an important role in regulating the prices of such drugs if its not sold in the affordable prices in the market. It can be seen that by the way of compulsory licensing, intellectual property rights and competition act goes hand in hand in regulating the pharmaceutical market. What makes the pharmaceutical market different from other markets in regulating competition is that the significant market share of the drugs.

SSNIP test

The Small but Significant Non- transitory Increase in Price (SSNIP) test is the test that is used to determine the market power held by a product. The SNIPP tests analyses if a price for a product is increased to a small extent, whether it creates a shift in the consumers preference to choose if it’s answered in affirmative the that product holds a significant market share. when there are number of alternatives of a particular drug i.e. in the case of drugs for headache or stomach pain a slight increase in price of one type of medicine for the headache will let the consumer shift to the other type of alternative. This regular type of competition that persist in the other industries or sectors of business. The other type is for instance, if a disease like TB has one drug that is held for curing TB and even if the prices increases the consumers would still choose the same product because there is isn’t any other drug that can cure TB. It is the same case for many diseases. Hence generally a particular drug tends to hold a significant market share. Since, the demand is inelastic the illegal agreements are created to run the market. The later type of competition is what makes the pharmaceutical sector more complex to regulate.

Conclusion

The important aspect that calls for the attention of Competition Commission of India is that the even the medical practioners sometimes tend to prescribe certain type medication and act in support of these illegal agreements these are called as collusive activities. In fact, such collusive activities can hamper the research and development activities as the market for new entrants are blocked the collusive activities. Further the exploitation of Intellectual property rights to increase the incentive for the drug can lead to violation of Competition laws. Therefore, standard set of competition market guidelines with respect to intellectual property rights holders need to be set forth to avoid such exploitations and to promote competition advocacy in India. 

Reference

[i] Patent Act, 1970
[ii] FDI_Factsheet_March20_28May_2020.pdf, https://dipp.gov.in/sites/default/files/ (last visited Aug 23, 2020).
[iii] Section 3, Competition Act, 2002
[iv] Section 3(5), Competition Act, 2002
[v] Distributors Federation v. Madhya Pradesh Chemists and Druggist Association & Ors, CCI Case No. 64 of 2014.
[vi] Article 7, TRIPS Agreement.
[vii] Section 84, The patent Act, 1970

Introduction

Copyright is one of most common form of Intellectual Property. Copyright provides ownership and protection to the author for his original work such as literary, dramatic, musical, cinematographic and artistic work.[1] An important element of copyright is that it does not protect the idea but only its expression. It is often regarded as a “bundle of rights” as it provides not only economic benefits but also other rights such as right of paternity (right to claim authorship) and integrity (right to prevent alteration) to the author.[2] In India, the Copyright Act 1957 is the main legislation covering the various aspects of copyright protection in the country.[3] The law been amended several times till now to make it at parity with International agreements such as the Berne Convention for Protection of Literary and Artistic Works, 1886 and the TRIPS agreement. 

What amounts to Publication?

Publication of the work by the author is an important aspect in attaining copyright protection as it serves two important purpose of copyright law, first it makes the original work of the author available to the public in general for their benefit and secondly its date of publication helps in setting out the time period for which the copyright will subsist. As per the Berne convention, publication is referred as to make the work available to public.[4]

The Indian Copyright Act does not provide any specific manner for the publication of the work. Although section 3 and 4 of the Act lays down the circumstances when the publication of the work is deemed or not deemed to be so, as was laid in the case of Warner Bros. Entertainment Inc. and Ors. v Mr. Santosh V.G.[5]
Section 3 of the Act provides that, "publication means making a work available to the public by issue of copies or by communicating the work to the public.”[6] Section 4 states that “except in relation to infringement of copyright, a work shall not be deemed to be published or performed in public, if published, or performed in public, without the license of the owner of the copyright.”[7]

What amounts to unpublished works?

So what amounts to unpublished work, can it simply mean the work which is not made available to the public? Statutory ambiguity exists in this regard but there are certain factors which affect and play an important role in determining whether a work is published or unpublished such as the manner in which the work is to made available, the number of people that can constitute public, the intention of the author in making the work known to other people. To illustrate this point, certain sections of the Indian Copyright law are discussed hereafter:

Section 52(1)(p) of the act states that, “reproduction, for the purpose of research or private study or with a view to publication, of an unpublished literary, dramatic or musical work kept in a library, museum or other institution to which the public has access’ is not infringement of copyright.”[8] It can be clearly inferred from this provision that an unpublished work can even be a work which is made available to the public. Thus an unpublished work cannot simply mean as to not available in public domain, for it to be a published work it has to be made available in a particular manner or with such intention.
Section 31A (1) of the act entails the provision whereby a person can apply for a compulsory license to publish unpublished works or certain published works.[9] But for a person to apply for compulsory license for publication of an unpublished work, he/she must have the knowledge of the existence of such unpublished work. Therefore, it can be observed that even if an unpublished work is known to a person or a group of person, it does not make it published as such. A work can remain unpublished even it being in knowledge of some persons.

Explanation to section 2(ff) of the act which defines the term ‘communication to the public’ further enumerates this observation. It states that “For the purposes of this clause, communication through satellite or cable or any other means of simultaneous communication to more than one household or place of residence including residential rooms of any hotel or hostel shall be deemed to be communication to the public.” It clearly indicates that the term ‘public’ is not wholly related to the number of people. As in such a case, even two persons may be termed as ‘public’. Thus, publication is not equated with the number of people to whom the work has been made available.
Thus it can be established that for a work to be published it is not wholly dependent on any single factor like the knowledge of it among certain person or the number of people but more to the intention of the author and the manner in which it is made known.

Publication not a pre-requisite

Since copyright protects an original expression, copyright in a work subsists as soon as an idea is put into an expression so as to form an original work of the author. There is no explicit requirement for it to be published. To explain this point various sections of the India Copyright Law are illustrated hereafter:

Section 13 of the act is titled as “works in which copyright subsists.” Sub-section (1) states that subject to other clauses of the section and the other provisions of the Act, copyright subsists in original literary, dramatic, musical and artistic work, cinematographic films and sound recordings.[10] None of the five sub-sections of this section provides for the requirement of publication for subsistence of copyright in a work. Thus, no distinction is made on the basis of publication of a work for it to be protected under the Act.
Section 16 of the provides that, “No person shall be entitled to copyright or any similar right in any work, whether published or unpublished, otherwise than under and in accordance with the provisions of this Act.”[11] It can be noticed that section 16 nowhere hints at the exclusion of unpublished work from the domain of copyright law. Rather by using the words both “published and unpublished”, the legislators had cleared their intention to cover each of such works under the act.

Further an interesting observation can be drawn from the wording of section 18 of the act which deals with assignment of copyright. It provides that the prospective owner of the copyright in a future work may assign to any person the copyright, but in such a case the assignment shall take effect only when the work comes into existence.[12] Thus, it can be inferred that copyright in a work exists as soon as it is put into an expression and not wait for it to be published.

Conclusion and Opinion

Thus it is clear that copyright subsists in a work as soon as it is written or given an expression, provided it is an original work of the author. There is no mandatory requirement for it to be communicated, seen, heard or enjoyed by the public to get copyright protection for a work. The main reason here is to protect the exclusive work of the author and his labour by preventing any misappropriation of his work before it is published. It is done to promote new development in these fields by safeguarding their interests. However in a case where the work remains unpublished and only with the author (in his computer, notepad, drawer etc.) and a conflict arises with respect to its ownership or authorship, it can be really challenging for the actual author to prove his bona fide ownership. The burden of proof will be on the person claiming the work as his own to prove how the alleged infringer had the knowledge of his work and could access it, which generally can be rather difficult. Thus, the relevance of publication cannot be undermined.

Furthermore, publication plays an important role in determining the time period for copyright protection. According to section 22 and 23 of the Indian Copyright Act, copyright subsists for a period of 60 years from the year of its publication. An unpublished work hence does not come within the ambit of these sections and since it’s not made clear anywhere, the question whether the copyright subsists in such a work for eternity remains unanswered. 

Reference

[1] N. M, Anjaneya & Aswath, Lalitha. Understanding Copyright Laws: Infringement, Protection and Exceptions, INTERNATIONAL JOURNAL OF RESEARCH IN LIBRARY SCIENCE 2455-104X, (2016).
[2] Thurston, Morris A, A Bundle of Rights, JOURNAL OF MORMON HISTORY, Vol. 28, no. 1, 2002, pp. 67–79. JSTOR,www.jstor.org/stable/23288646.
[3] The Indian Copyright Act, 1957, http://copyright.gov.in/Documents/CopyrightRules1957.pdf
[4] Summary of the Berne Convention for the Protection of Literary and Artistic Works (1886).
https://www.wipo.int/treaties/en/ip/berne/summary_berne.html.
[5] Warner Bros. Entertainment Inc. and ors. v Mr. Santosh V.G. (CS (OS) No. 1682/2006).
[6] Section 3, The Indian Copyright Act, 1957
[7] Section 4, The Indian Copyright Act, 1957
[8] Section 52(1)(p), The Indian Copyright Act, 1957
[9] Section 31(A)(1), The Indian Copyright Act, 1957
[10] Section 13, The Indian Copyright Act, 1957
[11] Section 16, The Indian Copyright Act, 1957
[12] Section 18, The Indian Copyright Act, 1957

What is a Gene?

Genes are the distinct units of DNA sequence that encode individual proteins. DNA has been considered as a person’s book of life which provides insights into the many dimensions of the person’s future. Each person has two replicas of each gene, one inherited from each parent. Genes are arranged sequentially, on a structure called chromosomes. Human beings have approximately 20,000 genes organized on their chromosomes. 


What is Gene Patent?

A gene patent corresponds to the exclusive right for a specific sequence of DNA (a gene) given by a government to someone who claims to have first identified the gene. Once it is granted, the patent holder controls how the gene can be used, in both business settings, such as clinical genetic testing, and in non-business settings, including research. This provide companies sole ownership on the genetic testing of patented genes. It generally contains a variety of claims but the most controversial of those are the so-called ‘isolated DNA’ namely a portion of DNA that have been removed from a cell. Gene Proponents often defend themselves by arguing that they didn’t patent the gene in the human body, but patented an isolated gene; which is true but it also means you can’t give your gene to your doctor and ask him to look at it say if it has any mutations without the permission of patent holder since they have all the exclusive rights over that gene. Long story short, the patent holder acquires the right to prohibit anyone from using that gene in research or clinical testing.

Can Genes be patented?

The very first question that comes in mind is that whether granting of patent rights over a gene will infringe the zone of personal privacy.[i] The patenting of genes and gene sequence may cause obstruction with privacy rights as it permits an intervention with bodily part. DNA is the foundational structure of life which is merely a product of nature whether it’s inside our bodies or sitting in the bottom of a test tube.

It is reserved exclusively to none to claim ownership, as Justice Sotomayor has rightly proclaimed that DNA is just nature sitting there.[ii]
Gene Patent is granted over two things-
1. Isolated and Purified Genes.
2. cDNA
An isolated gene is the one in which is introns are removed and cDNA is one which are synthetically created. In Association for Molecular Pathology v Myriad Genetics[iii] case two prominent issues were raised;
1. Whether isolated gene are patentable?
2. Whether cDNA is patentable?

It was held that the isolated genes or naturally occurring DNA is not patentable because it’s a product of nature but cDNA being made from scratch to a gene is patentable as they are synthetically created by human invention and does not come under the doctrine of ‘product of nature’.

Criteria for Patentability-

The basic standards for patentability of an invention in India are sought forth below: -
Novelty – the invention should be new and original which must not be known to general public prior to such making.
Non-obviousness – the invention should involve an innovative feature which shall be unique in nature from the prior inventions made in the same field.
Industrial application – the invention should be capable of being made or used in an industry and it must have economic significance.

Position in India

Section 2(m) of the Patent Act, 1970 confines patentable subject matter to inventions, which is further limited by certain non-patentable inventions described u/s 3. Section 3(c) and section 3(j) are relevant here which when read together provides that mere discovery of any living thing occurring in nature, animals in whole or in part, and an essential biological process for production and propagation of plants and animals are non-patentable subject matters.

A gene is a product of nature/occurs in nature and shall therefore be regarded as non-patentable according to section 3(c) of the said act. A product of nature can only be discovered by us and no one can create/invent it. One cannot patent a product of nature in its original form. The Patent Office and the courts have never affirmed to give patentability to claims on what have been regarded as ‘true product of nature’. Alternatively, it may be said that lack of novelty makes that product non-patentable.
There is a difference between discovery and invention. A discovery adds to the human knowledge by revealing something which was already in existence but which has not been seen before, whereas an invention adds to the human knowledge by creating a new product or processes involving a technical advance as compared to the pre-existing knowledge. [iv]

Position in United States

The case of Dimond V Chakrabarty[v] marked the groundwork of a new era for the US Patent system which paved the way for patents connected with genetic technology. The court held that patent is claimed on a micro-organism which constituted a "manufacture" and thus qualified as patentable subject matter. The court found that patent claimant had produced a new bacterium with distinct characteristics from any found in nature and which had the potential for significant utility. The Court opined that the bacterium was altered to an adequate extent to qualify as an 'invention' and thus the mutated organism fulfilled the criterion of novelty and cannot a be considered as a product of nature. The Supreme Court adjudicated opining that patent umbrella can be expanded to anything that ‘man has made under the sun’.

However, recently the court changed its stance in the case of Myriad Genetics[vi] the Supreme Court unanimously ruled that naturally occurring genes and genetic sequences are ineligible for patent because naturally occurring DNA segment is a “product of nature” and does not become patent eligible merely because it has been ‘isolated’.
Although the Supreme Court ruled that genes cannot be patented, the controversial bill proposed tries to change the settled jurisprudence pushed by biopharmaceutical corporations and patent lawyers. The draft bill erases a precedent the Supreme Court laid out in the three unanimous rulings between 2012 and 2014. [vii] The bill proposed allows genes to be patented. It not only brings in the question of privacy as a right but it also reverses the settled jurisprudence of patent law on the ‘products of nature’.

Conclusion

Granting Gene Patents is nonetheless a great benefit to the society at large, provided it is only done for developmental purposes such as innovating cures of incurable diseases, innovating new advances in technologies etc. When the goal of these patents is only to build monetary benefits from that particular invention then the very purpose of granting patents is defeated (development and encouraging new inventions) and it becomes socially and morally wrong. The particular invention can be of great significance but the greedy nature of man will not allow him to extend gene patenting on a societal and global scale. However, owning patents over majority subject matters will also exploit and impact every developing and underdeveloped country. Since the country who has had maximum number of genes patented will overshadow the interests of the common people because they’ll be made available to the common public at insanely exorbitant prices which cannot be afforded by the majority section of the society.

References

[i] Macklin R. (1999) The Ethics of Gene Patenting. In: Thompson A.K., Chadwick R.F. (eds) Genetic Information. Springer, Boston, MA. https://doi.org/10.1007/978-0-585-34586-4_12
[ii] Tania Simoncelli, Should you be able to patent a human gene?, (Speech at TEDxAmoskeagMillyard, November 2014) https://www.ted.com/talks/should-you-be-able-to-patent-a-human-gene?
[iii] Association for Molecular Pathology Vs Myriad Genetics, Inc., 133 S. Ct. 2107 (2013)
[iv] Draft Patent Manual, 2008, para 4.4.1., p. 56.
[v] Diamond Vs Chakrabarty, 447 U.S. 303 (1980)
[vi] Association for Molecular Pathology Vs Myriad Genetics, Inc., 133 S. Ct. 2107 (2013)
[vii] Paige Winfield Cunningham, ' The Health 202: The Supreme Court banned patenting genes. But Congress might change that.’ (http://www.washingtonpost.com2019) https://www.washingtonpost.com/news/powerpost/paloma/the-health-202/2019/06/03/the-health-202-the-supreme-court-banned-patenting-genes-but-congress-might-change-that/5cf1987f1ad2e52231e8e91b/