The Draft Patent (Amendment)Rules, 2021 (Draft Rules) were published by the Government of India vide the Department of Promotion of Industry and Internal Trade under the Ministry of Commerce and Industry on 9^th February, 2021 to further amend the Patent Rules, 2003. The proposed amendments are aimed at encouraging educational institutions which satisfy the criteria to file patent applications for protecting their inventions. The following changes have been proposed to Patent Rules, 2003:

1. Under Rule 2 which pertains to definitions, Sub Rule (ca) has been added, wherein, a new category of ‘eligible educational institution’ has been introduced and defined to mean “an educational institution established by a Central, Provincial, or State Act, which is owned or controlled by the Government, and which is wholly or substantially financed by the Government”.
2. Two amendments have also been proposed in Rule 7.The phrase ‘eligible educational institution’ has been added to the second proviso to Rule 7 (1) which relates to fees payable. Table 1 of Schedule 1 which lays down the fees payable by different entities has also been amended to include this category. The fee payable by eligible educational institutions is at par with the fee payable by natural person, startups and small entities, and the institutions must submit the Declaration under Form 28 to claim the benefits. Changes have been proposed in Form 28 under Second Schedule for the same. As per new Form 28 the applicant (Indian as well as foreign) needs to submit documentary evidence whether such institutions are established under a Central, State or Provincial Act, which is controlled or owned by the Government and wholly or substantially financed by the Government. Accordingly, Rule 7 (3) is also amended to include the new category of applicant.
3. Addition of clause (k) to Rule 24C which is about expedited examination of applications. Through clause (k) the provision of expedited examination has been extended to applicants who fall under the category of an ‘eligible educational institution’. Form 18 and 18A in Second Schedule are also updated to include this category.

The Draft Rules were open for submitting any suggestions and objections by any person affected by the proposed amendments. They were to be submitted within a period of thirty days from 9^th February, 2021 in order to be considered.

Draft Patent (Amendment) Rules, 2021: https://dipp.gov.in/sites/default/files/DraftAmendmentRules-10February2021.pdf

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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The Ministry of Law and Justice on 4th April, 2021 published the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021. The Ordinance amends certain Acts. The Ordinance has abolished Tribunals, Appellate Authority and Intellectual Property Appellate Board (IPAB) under various statutes.

Appeals against orders of the Board of Film Certification under The Cinematograph Act, 1952 will now lie with the High Court instead of the Appellate Tribunal. Similarly, appeals against orders of the Registrar of Copyrights under The Copyright Act, 1957  will no longer lie with the IPAB;  appeals against orders of the Customs Authority for Advance Rulings under the Customs Act, 1962 will no longer lie with Appellate Board;  appeals against orders of the Controller of Patents under Patents Act, 1970,  will no longer lie with the IPAB;  appeals against orders of the Registrar of Trademarks under The Trade Marks Act, 1999, will no longer lie with the IPAB;  appeals from the decision of the Registrar of Geographical Indications will no longer lie with the IPAB and the appeals against The Protection of Plant Varieties and Farmers’ Rights Act, 2001, will no longer lie with the IPAB. Under all these statutes, appeals will now lie with the High Court.

In relation to the Trade Marks Act, 1999, rectification petitions that could earlier be filed before the IPAB are now to be filed before the High Court instead. The Ordinance provides that even pending proceedings, appeals as well as rectifications, shall stand transferred from the concerned specialized Tribunal/IPAB to the High Court. The High Court will decide whether to pick up any proceeding from the stage at which it was at immediately before being transferred from the specialized Tribunal/IPAB or whether to pick it up from such earlier stage that it deems fit.

The Ordinance also deals with certain other aspects. Under the Copyrights Act, 1957, the Commercial Courts including the Commercial Division of the High Court are now empowered to determine whether a work has been published earlier. The Commercial Courts are also empowered to determine disputes with respect to assignment of Copyright. Prior to the Ordinance both these powers were vested in the Intellectual Property Appellate Board (IPAB). 

The Ordinance can be accessed at:  https://copyright.gov.in/Documents/Pdf/Tribunals_Reforms__Rationalisation_And_Conditions_Of_Service__Ordinance__2021.pdf 

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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Food appearance and layout, food items and banquet spreads have been subject matter of various artworks such as in famous paintings like Anne Vallayer-Coster’s 1781 Still Life with Lobster, Giuseppe Arcimboldo’s 1573 Summer, etc. However in the modern world, evolving from this conventional form of art, is a Chef’s art of food presentation on a plate.

Nowadays dining at any gourmet restaurant not only involves eating good food but it also involves the overall dining experience which depends on many factors. Among these, one of the most important factors is the presentation of food, so as to make an appetizing immediate impression, possibly even leave a lasting impression on customers. A Chef at such a restaurant may strive to create with utmost precision and perfection, an artistic presentation of dishes before serving them. This presentation likely involves the choice of colour combinations along with layering, textures and placement, which calls upon ingenuity, aesthetics, labour and skill on the part of a Chef. The same can be sought to be recreated by the Chef and he/she should be able to protect it from reproduction by any other person and ensure exclusivity in it. A photograph of such a dish can no doubt be accorded copyright protection, however, the presentation of food on a plate, being something which is intended for consumption, raises the pertinent question of its copyrightability.

As per the idea/expression dichotomy, copyright does not exist in mere ideas rather it exists in the original expression of ideas. Presentation of food on a plate can be said to be an expression of a Chef’s idea to showcase a particular dish with the use of his/her intellect and creativity.

The Copyright Act, 1957 confers protection to original artistic works under Section 13(1)(a) and as per Section 2(c)(iii), “artistic work” means “any other work of artistic craftsmanship”. So, for a Chef to claim copyright protection over his/her presentation of food on a plate, there must be evidence of sufficient creativity to qualify the originality standard. Also, the presentation of food must be unique and should involve his/her skill along with the artistic precision of arrangement or presentation of food on the plate. This would make food plating qualify as an original artistic work and hence, capable of protection under the Copyright Act. The author believes that providing copyright protection to food plating not only ensures that a Chef’s art is rewarded by helping get rid of knock-offs and safeguard the exclusivity in his/her artistic dishes but it also fosters creativity in the food industry.

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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As Covid-19 continues to wreak havoc there is an urgent need to make available related health technologies all across the globe. Cooperation among various key stakeholders is the need of the hour. Medicines Patent Pool (MPP) is one such procedure enabling access to Intellectual Property (IP) in a non-profit voluntary licensing mechanism with improving public health as one of its objectives.

The global health agency ‘Unitaid’ founded MPP in 2010 [1] with an objective of facilitating the creation of patent pools. MPP helps in negotiations of patent license agreements with patent holders by placing them in a pool and making them available to licensees sometimes in return for royalties. These licensing agreements are published on MPP’s website thereby maintaining transparency. Patent pools have long been recognized as a vital tool in removing obstacles in patent regimes and ensuring development of new products.

Collaboration, cooperation and solidarity have been at the core of tackling the pandemic. In such a scenario merging the patent license agreements negotiated by MPP with the manufacturing capability of generic companies will help in improving the availability of Covid-19 related drugs and vaccines in low and middle income countries (LMIC’s). In the past also MPP has worked out license agreement with companies like Bristol Myers Squibb, ViiV Healthcare [2] allowing generic manufacturers to supply over 15 billion doses [3] of Hepatitis B and HIV drugs to LMIC’s.

Another important feature of MPP is its patent and license database, MedsPaL. It is a free resource having a repository of selected patents, helping pharmaceutical entities in determining patents hindering access to new inventions, if not licensed properly. Through this MPP regularly updates the status of patented candidate products for example- Remedesivir, Favipiravir, Ritonavir and other emerging potential drug candidates [4]. Another feature was included to MedsPaL in March, 2020 wherein patent information about treatments currently being used to treat Covid-19 was added to the database.

Recently as many as 21 leading generic manufacturers including Hetero Labs, Sun Pharma, Lupin [5] etc joined a collaborative effort initiated by MPP by signing an open pledge for ensuring access to affordable Covid-19 treatment. Creating such patent pools will help in accelerating the production, distribution and timely access of vaccines, medicines and diagnostic kits in regions which are in dire need and who are facing an acute shortage of these products.  Non exclusive voluntary licensing mechanisms like MPP if negotiated efficiently will help in bolstering the production of crucial life saving medicines at a fraction of a cost.

References:

1. https://medicinespatentpool.org/who-we-are/about-us/

2.  https://medicinespatentpool.org/news-publications-post/covid-19-generic-pledge-press-release/#:~:text=The%20companies%20joining%20the%20effort,easily%20accessible%20for%20generic%20manufacturers.

3. Ibid

4. https://www.lexology.com/library/detail.aspx?g=ba09f470-2269-4ae3-92c0-c52f769633ac

5. Supra 2.

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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For assessment of damages in infringement matters, some of the factors to be considered are natural and direct consequences of the infringement and loss of goodwill and reputation due to the infringing activities. In order to get punitive/ monetary damages from the other party, it is required to produce the necessary legal evidence of such damage and a valuation thereof.

Whereas it is feasible to calculate the actual loss caused due to loss of business and loss of profit, courts often take the easier route to calculate the damage caused due to loss of goodwill and reputation. It has been seen in several cases that while the court does recognize infringement action and takes appropriate steps to prevent and stop abuse of someone else’s rights, damages for loss of reputation/goodwill are not often awarded. The court simply applies the ‘Double and Treble Formula’ to calculate damages for loss of reputation/goodwill. In the case of Time Incorporated vs Lokesh Srivastava And Anr. [1], for example, the High Court of Delhi, simply doubled the punitive damages to compensate for the loss of reputation and goodwill. But this formula is not justifiable in all cases.

It is important that we have specified and more sophisticated guiding principles or factors to calculate damages for loss of reputation and goodwill. We currently do not have any framework of clear principles for calculating damages in diverse and complex cases, especially for the damage caused due to the loss of reputation and loss of goodwill. From a practitioner’s perspective, there is uncertainty about what types of evidence are to be produced to enable the court to assess the monetary damages to compensate for the loss of reputation or goodwill.

Simply doubling or tripling the punitive damages of the actual loss may not be reasonable or sensible. Time, money and effort invested in building reputation and goodwill can hypothetically be less or more and even significantly less or more than the worth of the reputation and goodwill. The damage caused to reputation and goodwill by infringement or passing off can be a variable fraction of the worth of the reputation and goodwill. It is important that the computation of damages be alive to these subtleties. The application of mind to these various considerations is required for this jurisprudence to grow and mature and be equal to the demands of economy and society. Currently this jurisprudence is quite underdeveloped. Hence, there is a case for framing a fixed set of guidelines for calculation of damages for loss of goodwill and reputation.

End Notes:[1] 2006 131 CompCas 198 Delhi.  https://indiankanoon.org/doc/1152738/

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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