009819   Raju K D (Rajiv Gandhi School of Intellectual Property Law, , IIT Kharagpur-721 302, Email: kdr_jnu@hotmail.com) : Intellecutal property taxation: need for a comprehensive policy and law in India. J Intellect Prop Right 2008, 13(6), 563-73.

Taxation of goods, services and income is a concept that has been prevalent for a long time, all over the world. Different categories are taxed with different objectives and purpose. Sometimes economies may want to discourage use of foreign goods within their countries and consequently therefore the tax on imported goods will be high. However, interestingly, taxing of intellectual property is a recent phenomenon across the globe. Developments in science and technology and rapid communication have made it accessible to every country. In India, intellectual property is taxed in many ways, though indirectly. This paper examines various provisions of intellectual property taxation under different legislations in India. It argues that the lack of a comprehensive policy on intellectual property taxation acts as a disincentive to technology transfer and IP creation in India.

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009818   Kochhar S (Indian Council of Agricultural Research, , Krishi Bhawan, 1, Dr Rajendra Prasad Road, New Delhi-110 114, Email: skochhar2000@hotmail.com) : Institutions and capacity building for the evolution of intellectual property rights regime in India. VI - Obligations and opportunities in handling plant varieties and agricultural biotechnology*. J Intellect Prop Right 2008, 13(6), 605-11.

The evolving IPR regime is catered by government obligations and public opportunities as well as responsibilities. The central government timely enacted/amended various IPR laws conforming to the corresponding international agreements. But interception of IPR infringements for suitable action under the law is the prerogative of the title holders themselves rather than being a responsibility of the government. The IPR grants are territorial. Civil remedies may also come to the rescue or assertion in business. But holders of foreign IPR titles are generally in favour of stronger IPR regime. The small and medium enterprises (SMEs) and the public research organizations, particularly face the challenge of adaptation to the new regime. The invaluable extant material proposed to be protected and utilized for further growth, by the Indian law makers needs to be IPR-enabled on priority. Lack of sufficient experience in cross-sectoral partnerships in research and development in the country also poses limitations for appropriate growth and development under the IPR regime. Suitable remedial measures are called for. Also concerns of equity and biosafety are discussed.

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009817   Bele M H;Derle D V (NO, NDMVP's College of Pharmacy, Gangapur Road, Nasik, Maharashtra-422 002, Email: mrudulabele2002@yahoo.co.in) : Analysis of patents pertaining to superdisintegrants used in tablet manufacturing. J Intellect Prop Right 2008, 13(6), 601-4.

The objective of the present investigation is application of patent analysis tool in planning research on superdisintegrants in pharmaceutical tablets. Tablet disintegration has received considerable attention as an essential step in obtaining fast drug release. The major function of the disintegrants is to appose efficiency of the tablet binder and physical forces that act under compression to form the tablet. Superdisintegrants generally arc used at low level in solid dosage form, typically 1-10% by weight relative to the total weight of the dosage unit. They are important in formulation of novel tablet dosage forms like mouth disintegrating tablets. Not all research gets published in papers and a lot of information is made available to the public through patents. A detailed analysis of the granted patants as well as patent applications can provide information that may otherwise be found critical however, missing. By analysing patents on superdisintegrants, research gaps can be identified and the research work to be taken up can be focused. A complete analysis of the patents granted on superdisintegrants was done using various criteria such as patenting trends over the years, country wise distribution and different classes of superdisintegrants.

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009816   Ambast S (NO, National Law School of India Univ, Nagarbhavi, Bangalore-560 072, Email: sanhitaa@gmail.com) : Protecting performers rights: does India need law reform?. J Intellect Prop Right 2008, 13(6), 574-82.

The rapid growth in technology combined with an increased awareness of intellectual property has led to many countries recognizing importance of a well-developed performer protection regime. Such regimes, involving a combination of legal policy making and pragmatic piacation of myriad interest groups has resulted in a nebulous, but growing body of jurisprudence in different domestic jurisdictions. India, for one, has large stakes in creating strong performer protection laws, given the quantum of Indian entertainment exports and folklore which must be protected. Indian law today protects rights of performers through the mechanism of copyright law. This article critically evaluates this regime, and demonstrates that the performer protection regime in India today is inadequate in the context of what performers' rights purport to protect and accomplish. This article begins by understanding the terminology of the jurisprudence of performers' rights. It then compares prevailing American, English and international performer protection regimes to existing Indian law, and concludes by arguing that reform in the nature of sui generis protection for performers' rights in India is essential.

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008896   Vivekanandan V C (NO, NALSAR Univ of Law, 3-4-761, Barkatpura, Hyderabad-500 027, Email: vivek@nalsarpro.org) : Transplanting bayh-dole act-issues at stake. J Intellect Prop Right 2008, 13(5), 480-85.

The Intellectual Property Regime in India is in the midst of transition with TRIPS mandated provisions finding their way into the existing laws and also looking at comparative regimes for newer legislations. One of the serious issues is that of public funded research and its direction in terms of protection. The dominant argument is that to reap the benefits through licensing these rights to create resources for themselves, a protection system is needed. It is argued that such rewards will fund their activities in an environment where State funding is shrinking. In this context there have been efforts to bring in a legislation on the lines of the Bayh-Dole Act of US to push forward 'patenting efforts' of public funded research and also bring in academic-industry linkage. The Act in US itself is 25 years old and has come under the scanner of various critiques. In the Indian context it needs a critical analysis whether such a transplant will work. This article focuses on the issues at stake in bringing in such a transplant. It also traces the background of Bayh-Dole Act in US, its impact in the last two decades, its appropriateness in the Indian scenario and critical issues involved with such efforts to transplant.

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008895   Thomas Z (NO, , CR D II-12, Pandara Park, New Delhi-110 001, Email: zthomas@piercelaw.edu) : Legal issues in branding medicinal products. J Intellect Prop Right 2008, 13(5), 523-35.

Branding of a drug raises important trademark principles. Some of the important trademark law decisions have come up in the area of pharmaceutical branding. This article examines these decisions, practises in the market and analyses legal issues surrounding trademark in pharmaceutical field.

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008894   Thomas Z (NO, , U24 Hudcu Place Extn, New Delhi-110 049, Email: zthomas@piercelaw.edu) : IP case law developments. J Intellect Prop Right 2008, 13(3), 245-52.

Attempts to summarize some of the recently reported cases on intellectual property law to enable the readers to understand how the courts have applied the principles of intellectual property law to actual IP disputes. The cases are chosen from the cases reported in the January 2008 issue of the Patents and Trade Marks Cases (PTC), a leading ease law reporter on intellectual property laws.

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008893   Ragavan S (NO, University of Oklahoma College of Law, 300 Timberdell Road, Norman, OK 73034, Email: sragavan@ou.edu) : New paradigms for protection of biodiversity. J Intellect Prop Right 2008, 13(5), 514-22.

The most successful bioprospecting venture was established in 1989 in Costa Rica. Interestingly, the distinction of being a forerunner in exploiting bioprospecting goes to India. In 1979, a full decade before Costa Rica, India established the Tropical Botanic Garden and Research Institute (TBGRI) at Trivandrum. Yet, the TBGRI venture with the Kani tribes, which had the potential to become a beacon of bioprospecting success, is showcased as the exemplar of failure. In this era of trade regime, this paper asserts, bioprospecting ventures arc important tools for developing countries. Countries like India and organizations like TBGRI should learn from their failures and take leadership roles to evolve techniques to maximize returns by using biodiversity resources. With this as the background, this paper propounds three theoretical models for assigning bio-value to biotechnology products.

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008892   Pohl M (Pharmaceutical Patent Attorneys, , LLC, 55 Madison Avenue, 4th Floor, New Jersey 07960-7397 USA, Email: Mark.Pohl@LicensingLaw.net) : How to control the United States pharmaceutical API market using patents on new synthetic intermediate compounds. J Intellect Prop Right 2008, 13(5), 473-79.

The multinational pharmaceutical industry now out-sources a much higher volume of active pharmaceutical ingredients from manufacturers in non-regulated markets such as Brazil, India and China. This economic change presents an opportunity for API manufacturers to potentially control the market in the United States for certain APIs, by capitalizing on a particular provision of US patent law. Reviews this law, examines several actual case studies under this law, and provides a check list of characteristics useful to identify the most valuable Active Pharmaceutical Ingredient (API) manufacturing opportunities.

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008891   Ohly D C (NO, , Schiff Hardin LLP, 1666, K Street NW, Washington DC 20036, Email: dcohly@schiffhardin.com) : What's 'new'? - Isn't it obvious?. J Intellect Prop Right 2008, 13(5), 498-508.

A new approach to Section 3(d) of Indian patent law using common principles of statutory construction suggests that Section 3(d) should be viewed as a proviso to the general definition of an invention in the Indian Patents Act. As such Section 3(d) should be strictly construed. The term 'mere discovery' should encompass only natural things merely observed and not non-natural substances that result from human endeavour. The term 'efficacy' used as an exception to the proviso should be broadly construed to include more than 'therapeutic efficacy'. Construed in this traditional manner Section 3(d) may well comply with TRIPS.

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008890   Nair M D (NO, , A-11 Sagarika, 15, 3rd Seaward Road, Valmiki Nagar, Chennai-600 041, Email: mdnair@vsnl.com) : Compromising TRIPS: Brazil's approach to tackle the HIV/AIDS imbroglio. J Intellect Prop Right 2008, 13(5), 456-63.

The General Agreement on Tariffs and Trade (GATT), of which the TRIPS Agreement was an integral part, mandates the implementation of a harmonized patent system applicable to all member countries. Patents are instruments which provide exclusive rights for a limited period on the patentee for dealing with the product or process of his innovation and prevents others from using them without due authorization. These rights often result in monopolistic pricing of drugs making them unaffordable to large number of populations particularly from economically backward developing countries. A very relevant case is that of HIV/AIDS drugs which are not available at affordable prices to millions of patients living in African, Latin American and South East Asian countries. Attempts to understand the strategies adopted by one such affected country, Brazil. The compulsory licenses provisions under Articles 30, 31 of TRIPS as well as Para 6 of the DOHA Declaration of 2001 which proclaims that public interest will supercede private interests particularly in the area of health and drugs are yet to make an impact on the problem. Whether the Brazilian model is tenable across the cross section of countries similarly affected is yet to be established. Other strategies for making the required drugs available for the control of this and similar life threatening and intractable diseases also need to be explored side by side.

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008889   Nair G G (NO, , Gopakumar Associates, Patents & Trade Marks Agent, 3rd Floor, Shivamangal, Patankarwadi, Akurliu Road, Kandivili East, M, Email: gnaipr@vsnl.net) : Impact of TRIPS on Indian pharmaceutical industry. J Intellect Prop Right 2008, 13(5), 432-41.

After India became a founder member of WTO and acceded to the TRIPS Agreement, the product patent regime was reintroduced in India after a gap of 35 years. The significance of the new IP regime on pharmaceutical industry in India, the amendment to the Patents Act, 1970, in fulfillment of the obligations to comply with TRIPS, related developments in other fields of IP as well as enforcement of new IP/Patent regime on the pharmaceutical industry are comprehensively discussed herein. The regulatory interfaces of patents in the Indian and international context are also briefly dealt with. The historical evolution of IP with specific reference to patent regime in India is dealt with. Significance of IP such as patents, trademarks, industrial designs, trade secret and data exclusivity are elaborated. The key elements of the TRIPS Agreement which led to the three consecutive amendments to the Patents Act, 1970 are highlighted. The significance of the patent amendments in 1999, 2002 and 2005 and their highlights as well as the need for such amendments in fulfillment of TRIPS obligations have been described herein. Finally, the impact of post-TRIPS scenario in Indian pharmaceutical industry with specific reference to the international operations and the regulatory interfaces has been analysed. The related fields like biodiversity and plant varieties are also touched with.

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008888   Mathur H (NO, National Law Institute Univ, Bhadbhada Road, Barkheri Kalan, Bhopal-462 002A, Email: hmr088@gmail.com ) : Compulsory licensing under section 92A: issues and concerns. J Intellect Prop Right 2008, 13(5), 464-72.

As the patents laws continually soar in dynamic transition, burning controversy that rages up is compulsory licensing under Section 92A of the Indian Patents Act enabling exportation of patented drugs. This dissertation is a research-based factual analysis of patents as a real barrier to the accessibility to drugs and the extent to which compulsory licensing remodels the situation, in reference to the latest legal development- Natco v Pfizer which has hauled the key provisions before the legal eye for severe scrutiny. This paper is an endeavours to analyse the issue of patents v patients in the light of a possible outcome of this potentially landmark case.

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008887   Lalitha N (NO, Gujarat Institute of Development Research, Gota, Ahmedabad-380 060, Email: lalithanarayanan@gmail.com) : Doha declaration and public health issues. J Intellect Prop Right 2008, 13(5), 401-13.

Adhering to the TRIPS Agreement in the pharmaceutical sector poses several questions before developing countries and least developed countries concerning public health. These are: Would the TRIPS Agreement and product patent regime affect access to medicines for the public? What are the options available for countries that face health crises? The Doha DECLARATION provides for access to medicines particularly by simplifying the compulsory licensing (CL) clause. A brief look the countries that have utilized the CL option highlights that all such countries have been facing a rapidly spreading HIV/AIDS epidemic, medicines for which are produced under patents by multinationals. Hence, while some countries have actually issued a CL to a third party or a government department to produce or import the patented drug, some countries have used the CL option as a negotiating strategy to get a steep reduction in the price so as to facilitate access to medicines in the public health care. The amendments carried out by the Indian government also facilitate production of generic of patented drugs that would facilitate exports under the CL option as well. Though the Doha Declaration facilitates access to medicines, some of the free trade agreements are drafted in such a way that the least developed countries can not the flexibilities. However, in order to facilitate the options available in the Doha Declaration, countries will have to incorporate the necessary changes in their national laws.

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008886   Kumar J (NO, The George Washington Univ Law School, 2000 H Street, NW, Washington, DC 20052, USA, Email: jayantkumarr@gmail.com) : Insurance coverage in intellectual property litigation. J Intellect Prop Right 2008, 13(3), 234-8.

The initial phase of technology-driven market was to protect their intangible property through intellectual property. However, the phase continued for around two decades and people realized the risk attached with intellectual property and also the cost of litigating their IP rights in the courts. Thus, there arose a need for risk management and enforcement of intellectual property. The most efficient risk management device available to intellectual property owners is insurance. Due to high cost of litigation, attorneys' fee, damages or settlement in patent infringement litigation, the risk attached with patents is much more than any other form of intellectual property. This paper discusses the insurance as a mode of mitigating risk during patent litigation and its various modes.

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008885   Kuanpoth J (Faculty of Law, Wollongong Univ, NSW 2522, Australia, Email: jakkrit@uow.edu.au) : Appropriate patent rules in developing countries-some deliberations based on thai legislation. J Intellect Prop Right 2008, 13(5), 447-55.

TRIPS Agreement mandates adequate and effective protection for all inventions regardless of the field of technology. The fundamental questions are whether the extent of protection of Pharmaceuticals will be beneficial for the socio-economic development of developing countries and how can the impact of the new system be monitored and controlled in the interests of the concerned countries and their populations. Under the Thai Patent Law, Section 46.50 provides for the grant of compulsory licenses, which in practical terms arc difficult to implement so much so that no such licenses have been granted since 1979 when the Act came into force. Lack of know-how to work the patent in Thailand has also been a serious doierrent. Provision of a requirement for working of patented inventions is also part of the Thai Act. Section 36(2) of the Thai Patent Law authorizes parallel imports into Thailand if the products arc marketed abroad by the patentee or his licensee. Section 9 (4) of the Act adopts the principle that methods of treatment are not patentable. Section 31 permits opposition to be filed after the application is published by the Patent Office. The implication of TRIPS and the Thai Patent Act on the pharmaceutical sector and on the patients in Thailand arc discussed in this paper.

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008884   Kochhar S (Indian Council of Agricultural Research, , Krishi Bhawan, 1, Dr Rajendra Prasad, New Delhi-110 114, Email: skochhar.icar@nic.in) : Institutions and capacity building for the evolution of intellectual property rights regime in India: V - analysis of review of TRIPS agreement and R&D prospect in Indian agriculture under IPR regime. J Intellect Prop Right 2008, 13(5), 536-47.

The TRIPS Agreement provides for product patent protection in all fields of technology including food substances Pharmaceuticals and agrochemicals. The aim is to provide level playing field for developed and developing economies to promote economic development and alleviation of poverty. Yet the protection of trade-related intellectual property rights through public disclosure and their exclusive use under the control of the innovator may not be a sufficient, stand-alone measure to induce and achieve higher food and agricultural production. There is need to simultaneously recognize other relevant areas and mechanisms of global, regional and local importance and to harmonize world trade system with evolutionary necessities including socio-economics and the environment - sustainable development, environment protection, climate change, conservation of and access to biodiversity, biosafety, food safety, ethical issues related to manipulation of biological materials for improvement and development, issues of equity and commercial benefit sharing as pitted against intellectual property protection and royalties under the TRIPS Agreement, etc. This paper attempts to discuss review of TRIPS Agreement particularly in relation to patentability of bioresources and its harmonization with access and benefit sharing regime. R&D prospect in Indian agriculture under 1PR regime is also discussed.

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008883   Kochhar S (Indian Council of Agricultural Research, , Krishi Bhawan, 1, Dr Rajendra Prasad Road, New Delhi-110 001, Email: skochhar2000@hotmail.com) : Institutions and capacity building for the evolution of intellectual property rights regime in India: III- conformity and enforcement issues. J Intellect Prop Right 2008, 13(3), 239-44.

India favoured sui generis option to provide IPR protection to new plant varieties rather than resorting to the more stringent alternative, i.e., the patent provision. The Protection of Plant Varieties and Farmers' Rights Act, 2001 has been enforced in India to give effect to the TRIPS Agreement vis-a-vis national scenario and needs. This paper analyses and assesses conformity of this Indian IPR law with the international agreements, treaties and conventions, and their enforcement in the country. In conclusion, much is unclear in terms of access and benefit sharing issues in the absence, so far, of (i) unconcluded intergovernmental negotiations on genetic resources, traditional knowledge and folklore, and (ii) any Indian case law on the sui generis IPR on plant varieties.

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008882   Khader F A (NO, , 226, Law Chambers, Madras High Court, Chennai-600 104, Email: feroz.ali.k@gmail.com ) : Transcending differences: the challenge for pharmaceutical in the post-TRIPS Indian patent regime. J Intellect Prop Right 2008, 13(5), 424-31.

In the absence of a universal patent law with global jurisdiction members of the World Trade Organisation (WTO), have adopted and legislated national laws in their respective countries though some what different interpretations of the TRIPS Agreement. While the Patent Cooperation Treaty (PCT) was the first attempt for a near harmonized system by accepting a common application, PCT has little use during the prosecution phase of patent applications. One of the important issues which have been differently interpreted is related to the patentability criteria and exceptions to patentability dealt with under Articles 27.2 and 27.3 of the TRIPS Agreement. Thus Section 3(d) of the Indian Patents Act has turned out to be a contentious issue, the resolution of which may have serious consequences on inventions related to Pharmaceuticals. The Novartis case on the Gleevec patents is a case in point. While the Act provides for granting of patents even for known substances if substantial enhancement of activity vis-a-vis known activity is established, in practical terms several obstacles to a fair assessment of what is substantial has turned out to be difficult. The provision for pre-grant opposition in the Indian Patents Act has led to a large number of applications from patent groups, pharmaceutical companies and non-governmental organizations. These and related matters are discussed in detail in this paper.

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008881   Janodia M D;Chauhan A;Hakak S M;Sreedhar D; Ligade V S;Udupa N (Pharmacy Management Dep, Manipal College of Pharmaceutical Sciences, Manipal Univ, Manipal-576 104, Email: manthan.j@manipal.edu) : Data exclusivity provisions in India: impact on public health. J Intellect Prop Right 2008, 13(5), 442-46.

One of the contentious issues of intellectual property rights is related to data exclusivity. Data exclusivity relates to protection of data generated by the innovator from disclosure to third party in order to prevent 'unfair commercial use'. The debate has serious implications for pharmaceutical companies where substantial amount of data is generated during discovery and development of a new drug. The data is in the form of clinical trials data, reports of pharmacological and toxicological profile of drug, its use and indications etc. This data which is submitted to regulatory authorities of concerned countries for marketing approval is generally referred by regulatory authorities for approval of generic medicine. Multinational companies based in developed countries argue that this data generated during drug discovery and development needs to be protected in the form of 'data exclusivity' which is mandated under Article 39.3 of TRIPS Agreement. Developing countries state that 'data exclusivity' is not mandatory according to TRIPS Agreement. So far India has not provided for 'data exclusivity'. India's position on 'data exclusivity' with respect to other countries of the world is subject to recommendations and suggestions of the committee set up by the Government of India to look into issue of 'data exclusivity' which is discussed.

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008880   Harshwardhan;Keshri S (NO, Hidayatullah National Law Univ, HNLU Bhawan, Besides Raj Bahwan, Civil Lines, Raipur-492 001, Email: harsh_hnlu@yahoo.co.uk) : Trade secrets: a secret still to unveil. J Intellect Prop Right 2008, 13(3), 208-17.

Trade secret forms the core of all industrial activities, but as an IPR in the true sense is found in textbooks on intellectual property. In practice it still remains a secret for our intellectual property regime which has been indiscriminate in affording it any protection. It is yet to unveil itself; people are yet to realize its potential as an IPR. Regardless of the fact that trade secrets remain neglected they have distinguished advantages over other IPR. Analyses these advantages which it can accrue to country like India and provides how these advantages can be exploited effectively. It also analyses new developments in the field of trade secrets and their legal protection in India. The contemporaneous conditions in India are conducive and compelling to have a statutory law on trade secrets, even courts have also seen increased trade secret litigation in the recent past. Legislative protection of trade secrets and possible ingredients of such law has been suggested.

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008879   Gopalakrishnan N S (NO, Cochin Univ of Science & Technology, Cochin-682 002, Email: nsg@cusat.ac.in) : TRIPS agreement and public health: and overview of international issues. J Intellect Prop Right 2008, 13(5), 395-400.

Deals with brief overview of the developments of international provisions on IPR related to public health. It discusses flexibilities before and after TRIPS Agreement and difficulties faced by developing countries in implementing TRIPS obligations and protecting public health. Also discussed are the reasons for the Doha Declaration and issues relating in implementation of Para 6 of the Declaration. Discusses the inadequacy in the compulsory licence based approach to solve public health crisis and argues for a more comprehensive approach to find a long term solution to the public health issues.

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008878   Deepak J S (Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur, West Bengal-721 302, Email: jsaideepak@gmail.com) : Protection of traditional handicrafts under Indian intellectual property laws. J Intellect Prop Right 2008, 13(3), 197-207.

Protection of collective rights and individual innovations in traditional handicrafts has been discussed. in view of their importance to the cultural heritage of traditional groups native to India. Further, inadequacies of the Indian intellectual property laws, specifically, the Geographical Indications of Goods (Registration and Protection) Act 1999, Designs Act 2000 and Copyright Act 1957 in protecting traditional handicrafts and rewarding individual creativity have been discussed in detail. Parallels have been drawn with the initiatives launched by China and a few other nations to protect their traditional handicrafts. Finally, a blend of Geographical Indications and ancillary rights has been suggested as a way of encouraging ingenuity in traditional arts.

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008877   Damodaran A D (NO, , Sudharma, 9, Mangalam Lane, Sasthamangalam, Trivandrum-695 010, Email: alathurdamodaran@yahoo.co.in) : Indian patent law in the post-TRIPS decade: S&T policy appraisal. J Intellect Prop Right 2008, 13(5), 414-23.

The basic objectives within which patent laws are enacted in any country are: (a) promotion of 'R&D of possible industrial use' through rigorous legal definition of inventions and their associated attributes in terms of patents and providing them limited monopoly in the form of intangible intellectual property rights through law (b) encouragement of national techno-economic advance by making such rights conditional upon local manufacture, thereby leading to rapid techno-economic development of the country and (c) controlling potential misuse of the limited monopoly rights through compulsory licensing measures serving ultimate societal progress. To quote from the US Trade Commission itself, the basic objective is 'to promote innovation through proper balance of competition and patent law and policy' ('To promote Innovation: The Proper Balance of Competition and Patent Law Policy', A report by the Federal Trade Commission, October 2003). In essence, contents of a patent law are 'not created (per se) in the interest of the inventor, but in the interest of national economy. The rules and regulations of the patent system are not governed by the civil or common law but by political economy', to quote the well-known Patent Attorney and scholar, P J Michel, a point substantiated later also by the Lord Swan Committee (1948). In fact, the Indian Patents and Designs Act, 1911 enacted under the erstwhile colonial regime basically served to protect imported machineries and technologies against possible indigenous reverse engineering by Indians or other foreign trade/manufacturing agencies working in India. The First Patent Enquiry Committee Report (1949) and subsequently the 1970 Patents Act meticulously formulated through the Justice Rajagopal Ayyangar Committee Report (1959), however, reversed this process thereby giving rise to development of India as an 'advanced developing country'. Consequent to India I joining the WTO in 1995, the Act has now been made TRIPS compliant. A first level S&T appraisal of the post-TRIPS decade seems to indicate that major policy initiatives are needed to retain the past gains and to put the nation-building process truly on the forward path, failing which the existing 'knowledge barriers' may become even wider beyond the scientific-technological capabilities.

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008876   Damodaran A (Indian Institute of Management, , Bannerghatta Road, Bangalore-560 076, Email: damodaran@IIMB.ERNET.in) : Traditional knowledge, intellectual property rights and biodiversity conservation: critical issues and key challenges. J Intellect Prop Right 2008, 13(5), 509-13.

Based on a survey of the major national and international initiatives undertaken to protect Traditional Knowledge (TK) since 1990s, the paper states that the task of reconciling TRIPS with CBD and other related TK laws is fraught with difficulties. After examining various IPRs in relation to TK, the paper argues that there are clear limits to which former can accommodate the latter especially when it comes to positive protection of TK and related cultural expressions. The main argument in this paper is that sui generis legislations are more effective for the protection of TK and related cultural expressions. A sui generis legislation that views TK as a composite resource, having both economic and cultural features has a better prospect of ensuring protection of TK, besides enabling benefit sharing. By having international regulations that harmonize protection measures, it is guaranteed that national efforts at protection arc not wasted due to absence of reciprocity.

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008875   Chindalia S (NO, The WB National Univ of Juridical Sciences, NUJS Bhavan, 12 LB Block, Sector-III, Salt Lake City, Kolkata-700 098, Email: schindalia@gmail.com) : Open source software: the future ahead. J Intellect Prop Right 2008, 13(3), 218-24.

The proliferation of computer technology and advent of Internet have created many new relationships and problems that raise questions about traditional legal and economic principles. The development of 'open-source software' is an example of this phenomenon.^l Open source software is one, where the source code is available and the user can modify the software to suit his needs. Though the open-source software industry has not completely replaced the conventional software industry, there has been a considerable invasion into its space. The entire discourse is centred around innovation and growth on the one hand and proprietary rights on the other. The object of this article is to understand open source software, by analysing the manner in which it uses principles of copyright law to provide free access to software. Further, it also looks into the implications of such a movement on software programming. The article divided into four parts, traces the history of the movement, thereby understanding the concept of open source software. This part also looks into the paradoxical situation whereby norms of copyright law have been used as 'copyleft' to counter the impediments put forward by copyright law. The second part of the article discusses increasingly important role played by the open source software in the development and dissemination of software programs. The third part discusses the long-term implications of this movement on the software industry and thereby restricting to the most famous open source license i.e. GNU GPL. The last section contains concluding remarks.

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008874   Chakravarty S;Shukla G;Suman Malla;Suresh C P (Forestry Dep, Pomology and Post Harvest Technology, Faculty of Horticulture, Uttar B, Pundibari-736 165, Email: c_drsumit@yahoo.com) : Farmers right in conserving plant biodiversity with special reference to North-East India. J Intellect Prop Right 2008, 13(3), 225-33.

Traditional plant varieties and wild species are disappearing irreversibly and this process has resulted in the disappearance of farming know-how and the genetic information is entailed. North Eastern states of India are also no exception in regards to genetic erosion. This is because the rights of communities, food producers and herbalists to these genetic resources are not recognized. Only with adequate recognition, protection and reward will these resources be conserved and appropriate compensation is granted to the communities. Central to this is the right to 'Prior Informed Consent', ensuring communities to know what they are agreeing to. A means must be found to reconcile conservation and development by involving local populations more closely in the decision-making process and by taking the interactions between 'societies' and biodiversity more fully into account. The Protection of Plant Varieties and Farmers' Rights (PVPFR) Act rightfully takes this into account. The Indian legislation is the first in the world to grant formal rights to farmers in a way that their control over genetic resources and their self-reliance in agriculture is not jeopardized. The innovative Indian legislation has opened up interesting possibilities for developing a platform for regulating breeders' and farmers' rights so that both are acknowledged and protected. The Indian law now recognizes the farmer not just as a cultivator but also as a conserver of gene pool and a breeder who has bred several successful varieties. Moreover, the recognition of tribal laws as tribal rights vis-a-vis farmers' rights will address the conflicts between customary and statutory laws and regulations related to forest ownership and natural resource use while ensuring conservation of genetic resources by the local communities of the North East.

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008873   Basheer S;Kochupillai M (NO, Oxford Intellectual Property Research Centre, UK, Email: shammad@gmail.com) : 'Exhausting' patent rights in India: parallel imports and TRIPS compliance. J Intellect Prop Right 2008, 13(5), 486-97.

India's amendment to her patent regime in 2005 to introduce pharmaceutical product patents attracted unprecedented attention, both domestically and globally. While multinational pharmaceutical companies were concerned that the Act withered away their exclusive rights, civil society activists decried the new product patent regime, fearing that it would cause steep hikes in the price of life saving drugs. This politicization of patent law produced some interesting results; most recently, a recent Delhi High Court case that denied an injunction to a multinational patentee on the ground that it sold a more 'expensive' drug than the infringing generic manufacturer. While some provisions in the new patent regime, such as Section 3(d) continue to attract a lot of attention, others have been lost in the legalese. One such provision is Section 107A(b)-dealing with parallel imports, which, if read in a strict literal manner could have far reaching implications for the rights of a patentee. This paper aims to highlight this particular provision, which has thus far not attracted the attention it deserves. It explores the ambiguities inherent in this section and discusses the gaps in the Indian law pertaining to exhaustion and parallel imports. Lastly, it goes on to suggest statutory amendments in order to remove ambiguities inherent in the section and expand the scope of exhaustion envisaged therein, whilst at the same time remaining TRIPS compliant. The paper is divided into four sections: The first section explains the concept of exhaustion/parallel importation in relation to patents. Section two examines the ambiguities inherent in Section 107A(b). It also explores the gaps in the law relating to exhaustion in India and assesses the TRIPS compatibility of the current provision. The third section recommends a creative way of interpreting the current statutory provision so as to remove the ambiguities, and balance out the rights of patentees and parallel importers in an optimal manner without violating the TRIPS Agreement. The final section recommends statutory amendments.

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007026   Thomas Z (NO, , CR D II-12, Pandara Park, New Delhi-10 001) : IP case law developments. J Intellect Prop Right 2009, 14(2), 153-63.

Attempts to summarize some of the recently reported cases on intellectual property law to enable readers to understand how the courts have applied principles of intellectual property law to actual IP disputes. Widely discussed cases on, trademark law, copyright law and patent law are covered.

007025   Suman Y;Nishy P;Gupta V K (NO, NISTADS, K S Krishnan Marg, Pusa, New Delhi-110 012) : Trends in IT patents filed from India: an analysis. J Intellect Prop Right 2009, 14(2), 149-52.

Analyses trends in patents filed/owned from India in the area of information technology (IT). The Delphion Database was searched for finding the patents filed/owned in IT where assignee address contains string "India". This also includes patents filed by foreign companies operating through their centres in India. These patents were then analysed on the basis of nature of the inventive activities and assignee category. It was found that foreign private companies were leading in the patenting activities. Among government institutes and public sector industry CSIR emerged as leading patent owner/filer.

007024   Shridhar M;Jain S K;Gautam V (NO, , Room No 329, Armsdale Building, Himachal Pradesh Secretariat, Shimla, Himachal Pradesh) : Patent activity by patent agents in India. J Intellect Prop Right 2009, 14(2), 142-8.

Post TRIPS and WTO India's journey to intellectual property compliance has not been an easy one. In particular patent reform has been triggered by panel rulings against India in the dispute settlement body that articulate the ambivalent approach followed by the government. As there is some evidence of the tumultuous activity at the government level, it is worthwhile to examine patent activity effectively taking place. A patent is granted by the national patent office as patent law is territorial in its application while the World Intellectual Property Organization (WIPO) administers Patent Cooperation Treaty (PCT) provides for the filing of a single international patent application which has the same effect as national applications filed in several designated countries. Patent activity may be examined in a number of ways: Study of industry that is involved in patenting, information from the patent office, etc. An analysis of the activity of patent agents' has been undertaken to determine the extent and type of patent activity taking place in the country.

007023   Shirwaikar P (NO, , 25, River Drive South, Apt 507, Jersey City, NJ 07310, USA) : Fashion copying and design of the law. J Intellect Prop Right 2009, 14(2), 113-21.

Provides an overview of the existing arguments towards grant of property rights in fashion creations, including a historic perspective of the fashion industry, piracy paradox as explained by Professor Raustiala and Professor Sprigman, and the current global fashion industry. In doing so, the article questions social cultural function of fashion as a subset of IP policy. As an integral constituent of 'negative spaces', fashion creations stand largely unprotected. Takes into account development of American and European jurisprudence to propose a regime for protection of fashion creations in India.

007022   Saha S (NO, Hidayatullah National Law University, Civil Lines, Near Raj Bhavan, Raipur, Chattishgarh-492001) : Patenting of internet and e-commerce: an international view. J Intellect Prop Right 2009, 14(2), 131-41.

The large growth of the software industry has lead to an increase in the desire to protect software-related inventions. e-Commerce basically is doing business using computer systems and software, the rise of e-Commerce has led to a large increase in the number of patents on computer-implemented methods of doing business. Keeping in mind that software patents are a relatively new phenomenon, deals with (i) the legal issues concerning patenting of Internet and e-Commerce and (ii) certain pitfalls in regard to e-Commerce patenting. The paper also touches upon various views of the US courts in regard to e-Commerce patenting.

007021   Nair M D (NO, , A-11, Sagarica, 15, 3rd Seaward Road , Valmiki Nagar, Thiruvanmiyur, Chennai-600 041) : TRIPS, WTO and IPR - impact on developing countries. J Intellect Prop Right 2009, 14(2), 166-7.

The World Trade Organization (WTO) was set up in 1995 and has been the custodian of all matters related to the implementation of the TRIPS Agreement endorsed by the 152 member countries. WTO is therefore the most important body which monitors and influences working of global intellectual property rights protection in all the member countries. Thus starting from March 2009 there will be an opinion column on the issues related to WTO, TRIPS and IPR.

007020   Gupta V K (NO, National Institute of Science, Technology and Development Studies, Dr K S Krishnan Marg, New Delhi-110 012) : Indian patents output in nanotechnology. J Intellect Prop Right 2009, 14(2), 164-5.

The potential benefits of nanotechnology have been so compelling that several countries have taken initiatives to create capacity for the development of new technologies and products in the field of nanotechnology. India launched its national nanotechnology initiative in 2000. This technical note analyses Indian contributions in the field of nanotechnology as reflected in the patents output.

007019   Demunshi Y;Chugh A (Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology , Kharagpur, West Bengal-721 302) : Patenting trends in marine bioprospecting based pharmaceutical Sector. J Intellect Prop Right 2009, 14(2), 122-30.

The 'marine world' boasts of innumerable life forms, each with a unique characteristic, making its genetic make-up the most sought after field for marine researchers. An array of research arenas and products ranging from cosmetics to pharmaceuticals are now harnessed from marine bioresources and patented for generating high revenues. Evolving intellectual property regime provides an insight into the current research trend of this interesting and challenging field. Patents based on six commercially important marine organisms were chosen for the patent landscape study. The study demonstrates that pharmaceuticals is the primary field of application followed by nutraceuticals. Diseases ranging from cancer to AIDS are considered curable using these marine bioresources and seaweeds, jellyfish are common dietary constituents. The study also indicates that the number of PCT filings far exceeds the number of patents filed in regional patent offices. In the study of the International Patent Classification (IPC), A61K and A23L emerged as the major codes under which patents have been filed. Another facet of the investigation analysed the present patenting scenario in India in the field of marine bioresource based pharmaceutical sector.

006058   Ramanujan A (NO, National Law University, NH-65, Nagour Road, Mandore, Jodhpur-342 304) : Methodology of claim construction after Phillips v AWH corp: the need for an alternative approach. J Intellect Prop Right 2009, 14(1), 28-45.

Patents are considered as one of the most important and critical intellectual properties. This is so not just because patents serve to develop scientific temper and thereby result in scientific progress, which is very critical for any civilization to develop. This is also because, economically, patents are the most reaping. The emergence of the TRIPS regime has only served to underscore its significance. Given that patents are of much significance, patent claims, which define the area of the patentee's monopoly - play the most important role. Despite their significance, the author feels that patent claims have not received as much importance as they deserve. This is especially so with reference to principles of claim construction. World over, courts and patent offices seem to be meandering and wavering in their approaches towards claim construction and the USA is no exception. This article attempts to critically analyse the recent en banc decision of the Federal Circuit in Phillips v AWH Corp and trace the evolution of principles of claim construction as applied in the USA. The implications, ramifications and faults with the approach in the Phillips case are observed and the author has proposed an alternative approach to construe and interpret claims.

006057   Nagori B P;Mathur V (NO, Lachoo Memorial College of Science and Technology (Pharmacy Wing), Sector A, Shastri Nagar, Jodhpur, Rajasthan-342 003) : Basics of writing patent non-infringement and freedom-to-operate opinions. J Intellect Prop Right 2009, 14(1), 7-13.

Non-infringement and freedom-to-operate (FTO) opinions are legal advice given by a patent attorney with an objective to avoid infringement of other's patent(s) by his client. These opinions set forth the attorney's viewpoint on the non-infringing position of the client's proposed product/process/technology. The basics of writing both the opinions are same except that rendering a FTO opinion requires comprehensive searching of existing relevant patents by the attorney, whereas a non-infringement opinion is rendered on one or more relevant patents already identified by the client. In a competent non-infringement or FTO opinion, the patent attorney analyses each claim of every identified relevant patent in a step-by-step manner through a process called as infringement analysis. The infringement analysis is based upon certain legal principles, which help the attorney in determining non-infringing position of the client's proposed product/process/technology. Nowadays non-infringement or FTO opinions are frequently used as important business strategic tools by companies since these opinions assist greatly in critical decision areas like launching of a new product, acquisitions and mergers, contract manufacturing and designing of R&D strategy.

006056   Mukherjee U (NO, National Law University, Jodhpur NH-65, Nagour Road, Mandore, Jodhpur, NE 34230 Rajasthan) : Currency patents - the anticipated bust of an economy. J Intellect Prop Right 2009, 14(1), 52-62.

The effect of fluctuations in the value of a currency is a matter for serious thought. Patents are heralded to be the future of the world, providing stepping stones to a better future. But the effect of holding a patent on a currency is a problem that has not yet come to the fore. This paper is an attempt to bring out the possible impact of patents held on various components of currencies -'currency patents' on the value and operation of the currencies in which they are incorporated. The paper is based on the current trends of economies and general behaviour of market and highlights why exactly an economic breakdown can occur because of currency patents.

006055   Jain S (NO, ILS Law College, Law College Road, Pune-411 004) : Parallel imports and trademark law. J Intellect Prop Right 2009, 14(1), 14-27.

Parallel importation has assumed much importance with the opening up of global markets and effective implementation of price differentials. While exponents of this practice often quote economic benefits that accrue to the ultimate consumers as a result of parallel importation, its critics usually assert monopoly rights of the owner over his products and their disposition. In this context, a study of the avenues available, especially under trademark law, to the owner to protect his rights and the exceptions thereto are imperative. Outlines concept of trademark, its territorial application, and principle of exhaustion as a counter measure against stifling effect of trademark territoriality. It identifies parallel importation as a practise that exploits the principle of exhaustion. Discussion on advantages and disadvantages of parallel importation has lead to the conclusion that a via media needs to be adopted to ensure a balance between owner's right and consumer's interest. The rules regulating parallel importation in two major jurisdictions, United States and European Union (more aptly the European Economic Area) are discussed followed by the Indian position. Due to the lack of discussion on the topic by jurists or by judiciary, there is ample room for creative arguments from both sides of the debate.

006054   Hidalgo A (Business Administration Dep, Universidad Politecnica de Madrid, Jose Gutierrez Abascal 2, Madrid 28006, Spain) : Analysis of the commercial use of Spanish inventions protected by patents between 1996 and 2006. J Intellect Prop Right 2009, 14(1), 63-9.

Patents are indicators of the organization's output and reflect its level of technological development. Today they have become a key commercial asset, which is why there is increasing interest in their study from the perspective of their monetary value and their economic use. However, the exact number of actually used patents and their actual implementation is not known. In this study, the level of commercialization of Spanish patents granted by the Spanish Patent and Trademark Office (SPTO) during the period 1996-2006, and their rate of economic return has been identified and analysed for the agents developing them. The results obtained show there is still a wide margin for the economic agents to make more efficient use of this intellectual property tool.

006053   Gopalan R (NO, National Law School of India University, 7201 Nagarbhavi, Bangalore-560 072) : Bioinformatics: scope of intellectual property protection. J Intellect Prop Right 2009, 14(1), 46-51.

Bioinformatics is a new field of science which marks amalgamation of one of the oldest areas of research and deliberation in human civilization, life sciences, with one of the latest and still largely developing areas, information technology. This paper is a study of this field of bioinformatics and scope and application of intellectual property rights (IPR) to this area. The paper seeks to understand basics of bioinformatics, through an examination of varied definitions on offer. Various streams of research, which constitute, or rather create a need, for bioinformatics are looked upon. The paper examines trend of growth in this field, and analyses factors which necessitate contemplation of applying IPR. Objections that have been raised to the application of IPR to the innovations and inventions in this field are also covered. Finally, the paper makes an assessment of the exact nature of IPR which will best suit the field of bioinformatics.

004049   Deshpande S C (P G Dep of Studies in Law, Karnataka Univ, Dharwad-580 003, Email: Shweta_shurpali@yahoo.co.in) : Copyright protection of performers rights. DESIDOC J Libr Inf Technol 2008, 28(3), 66-8.

Deals with copyright protection of performers rights. It defines the term performers rights and discusses the provisions of copyright law which deal with the protection of performers rights.

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002008   Vidyadhar Bhatt C (Judicial Dep, , High Court of Andhra Pradesh, Hyderabad-500 066, Email: cv_bhatt@hotmail.com) : Is digital rights management an IRP?. DESIDOC J Libr Inf Technol 2008, 28(5), 39-42.

The relationship between law and technology has to be strengthened to raise the level of present electronic era. Though it is a challenging task, as per the latest know-how, it is the time to respond to new technologies. Till recently, the law makers handled problems presented by technology without breakdown of legal resources. Convergence of computers and Internet has posed a much graver problem, which legal policy makers find difficult to address. Music and film industries are also facing the heat of Internet piracy. Their reliance on traditional laws pertaining to copyright or other laws have not produced the expected results. In this scenario, a new emerging revolutionary digital technology, that could enable the originator to manage, control, permit usage of digital content is most welcoming. Discusses the possibilities of paper management of IPR becoming digital management of IPR and surmise that DRM is becoming an important tool to manage digital products.

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002007   Shashi Nath S;Sridhara B;Joshi C M;Kumar P (Defence Metallurgical Research Laboratory, , Kanchanbagh, Hyderabad-500 058, Email: sshashinath@gmail.com) : Intel lectual property rights: issues for creation of institutional repository. DESIDOC J Libr Inf Technol 2008, 28(5), 49-55.

The present scholarly publishing system, at best can be described as a monolithic complex tangle of monopolistic publishers and their stringent copyright policies for content, which to say the least, are not in the author's or society's interest. The open access (OA) movement has brought a whiff of fresh air and is fast emerging as a possible solution to the problem of 'chained content'. It has spawned several initiatives, which in their own way propose to change the way people publish and share scholarly content. Institutional repository (IR) is becoming one of the most popular tools for self-archival and dissemination of an organisation's intellectual or scholarly output. The primary objective is not just preservation or changing the scholarly publication process, but showcasing the institution's research or work to the outside community. The IR serves as A tangible indicator of an institution's quality, thus increasing its visibility, prestige, and public value. One of the biggest roadblocks to self-archiving is the copyright policies of publishers, which may not allow or allow self-archiving with associated riders. Intellectual Property Rights (IPRs) issues and content licensing are major policy issues from creation and depositing content in an IR. Examines the implications of copyright in the context of populating IR.

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002006   Kumar A R (NO, , Plot No.491, Road No. 10 Jubilee Hills, Hyderabad-560 073, Email: ashokramkumar@gmail.com) : Practical and legal protection of computer databases. DESIDOC J Libr Inf Technol 2008, 28(5), 43-8.

In India, the legalities of computer software are often poorly understood by the programmers, authors, and the software industry. Indian software industry, being one of the top most foreign exchange earners, needs to take a close look and safeguard its market and intellect of its many programmers since computer database is a new type of intellectual property of growing importance in today's world. The Indian software industry has to change its orientation and stress the protection of intellectual property. Only by doing so, there will be a good scope for original product development. The article discusses the practical and legal methods of protecting computer databases from unauthorised copying and use, and areas of trade secrecy and non-disclosure.

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002005   Gohel B M (NO, P.G. Centre, Gijubhai Badheka Marg, Bhavanagar-364 002) : Patents and patenting in India: some aspects. Indian J Inf Libr Soc 2007, 20(3-4), 113-19.

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000041   Roberts G (Kilburn and Strode, 20 Red Lion Street, London, WCIR 4PJ, UK, Email: groberts@kstrode.co.uk) : Modern patenting - quantity and quality. J Intellect Prop Right 2007, 12(6), 562-71.

Current debate on 'quality patents' against the backdrop of a practical assessment of the considerations that go into drafting patent applications together with an example of how the drafting process might go forward, demonstrating the amount of care that needs to go into these documents and attempting to undermine the suggestion that there is a problem with the quality of patents. It also highlights the delicate balance that needs to be struck between commercial and legal requirements in a patent application, stresses that although numerous considerations need to be taken into account simultaneously, those considerations are manageable, and clearly shows the skill that the attorney must demonstrate.