Latest Available Text Of The CBD Decision On Access And Benefit-Sharing- from IP-watch

Note: the final decisions of convention on biological diversity governing body are available here

A decision on a way forward on a global access and benefit-sharing regime was reached at a meeting of the parties to the Convention on Biological Diversity from 19 to 30 May in Bonn.

The main body of the document describes steps needed to reach international consensus on the content of such a regime. Annex I of the document sets out a draft text for the international regime, and annex II contains terms of reference for expert technical and legal groups whose creation is mandated by the main text.

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Absence of Common Patent filing system in EU causes stear among the members and affected SMEs worst

Since 1970, European Union (then European Community) is trying to gain consensus on  the common patent filing  system. Till now an applicant has to filed application in all member countries in their individual language, which involved translations a costly affair for SMEs. However a proposal to file patent applications in English, French or German or in the official tongue of the country in which a firm is based, has spurt new controversy as French and Spanish are stuck to include their language as official language for any such system. Read more from Ip-watch

Intel faces trademark litigation on “Dual Core”

California-based ultramobile PC firm DualCor Technologies filed a suit accussing Intel of misappropriating the DualCor trademark.  DualCor applied for a trademark on its name in May 2004 and was granted the same by the U.S. Patent and Trademark Office in July 2006. read more on this from google news

Novartis’s challenge on validity of Indian patent laws was put down by Indian High Court

Swiss pharma giant, Novartis, faced another blow in India, when Chennai High Court rejected its writ petition challenging the validity of Indian Patent Laws.

Novartis had sought to declare Section 3 (d) of the Indian Patents Act as substituted by Patents (Amendment) Act (2005) as being “unconstitutional as it is vague, arbitrary and violative of Article 14 of the constitution (right to equality).”  The section denies patent protection to the discovery of new form of known substance which does not result in enhancement of the known efficacy of that substance.

Novartis also rasied concerns over the discretion of patent authorities to define and determine the “enhancement of efficacy”. The Bench rejected the concerns by saying that the amended section cannot be invalidated solely on ground that there was a mere possibility of misuse of power.

Since Novartis’s 1993 patent effectively disclosed both the free base, imatinib, and the acid-addition salt, imatinib mesylate and the crystalline forms of imatinib mesylate. The crystalline forms of imatinib mesylate claimed in the application in question does not differ significantly in properties with respect to efficacy. In fact, with respect to efficacy, the current specification of Novartis itself admits that wherever β-crystals are used the imatinib free base or other salts can be used. The various forms of imatinib mesylate can, therefore, very well be considered the “same substance” under section 3(d) of the Patents Act.   view of IP practitioner Swarup Kumar

Novartis unlikely to challenge High court ruling in Indian Supreme Court. Novartis faced first setback  in January last year, when the Indian Patent Office rejected a patent application of its leukaemia drug Gleevec. It had filed appeal against the patent office decision to Intellectual Property Appellate Board and a writ petition in Chennai High Court.

Overview of Chinese Patent Litigation System

An informative overview of Chinese Patent Litigation System "Patent Litigation in Chinese Courts" by J. Benjamin Bai, Helen Cheng and Peter Wang from JONES DAY appired on Mondaq.com A must read….

European Commission Proposes New I/P Directive

I/P Updates: European Commission Proposes New I/P Directive: “European Commission Proposes New I/P Directive

On 12 July 2005, the European Commission proposed a new directive on ‘criminal measures aimed at ensuring the enforcement of intellectual property rights.‘ Under the proposed directive, all intentional infringements of an intellectual property right on a commercial scale, and attempting, aiding or abetting and inciting such infringements are treated as criminal offences. The proposal for a framework decision also sets a threshold for criminal penalties including at least four years’ imprisonment if the offence involves a criminal organisation or if it jeopardises public health and safety. The applicable fine must be at least EUR 100 000 to EUR 300 000 for cases involving criminal organisations or posing a risk to public health and safety. However, the proposal allows Member States to apply tougher penalties.

According to the press release by the EC, ‘the Commission hopes that this clear political signal reflecting the determination to combat piracy and counterfeiting will be supported by concerted, long-term information campaigns by national and regional authorities and other interested parties to raise awareness, not only among key players in the fight against counterfeiting and piracy but also amongst the wider public as a whole.’

Click here for a primer on European Union law.”

The WTO angle and TRIPS

The WTO angle and TRIPS: “The WTO angle and TRIPS

By Lawrence B. Ebert

Of the Ballmer quote: ‘Someday, for all countries that are entering the [World Trade Organization], somebody will come and look for money owing to the rights for that intellectual property.’

Section 5, Article 27, paragraph 1 of TRIPS recites:

1. Subject to the provisions of paragraphs 2 and 3, patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application. (5) Subject to paragraph 4 of Article 65, paragraph 8 of Article 70 and paragraph 3 of this Article, patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced.

Paragraphs 2 and 3 don’t say anything about business method or software patents.

[http://www.wto.org/english/docs_e/legal_e/27-trips_04c_e.htm#5]

David Berlind writes: Given the significant overlap between the members of the WTO and the European Union [EU], I’m having a tough time imagining how, if Europe can’t uphold patents on software, the WTO can. One poster observed that the EU could take the position that business methods/software are not a ‘field of technology’ or perhaps even ‘inventions.’ Further, if the USA did even try to get WTO to force a change in the EPC, the EU would counter-attack with TRIPS complaints about various aspects of the US patent system which currently favour US-based inventors. –> Mutually assured standoff.

Berlind also wrote of the WTO remark: ‘the easiest way to get rid of a potential customer forever is to sue them. Especially when that customer is a government. Governments usually have pretty big budgets.’

Within the US, patent holders have sued customers. Go back to the days of the Selden patent on the automobile. One of the advertising slogans for licensed cars was ‘Don’t buy a lawsuit.’ Henry Ford said that this tactic by the Selden patent holder (ALM) launched Ford’s business. In the pharma business today, many claims on drugs are written such that patients, doctors, and pharmacists could be sued for use of competitor’s infringing drugs. For example, this could have happened with omeprazole. But, of course, it didn’t. In the area of copyright, there have been some exemplary suits brought by the RIAA against consumer-infringers, but this is tricky business.

A different website gives a different example.
http://www.linuxworld.com.au/index.php/id;1874419189;fp;4;fpid;1

–>Up to now, not many users have faced such threats. When asked for an example of a user actually getting sued over intellectual property rights, Microsoft spokesmen go back four years.

In 2000, Allan Konrad, a computer scientist, sued three dozen corporations, including General Motors, Ford Motor, The Boeing Co., Daimler Chrysler, United Air Lines and Eastman Kodak. Konrad held three patents and ownership to the mechanism of Web-based delivery of information. He went after corporations serving Web information from back-end databases.

‘Microsoft worked to get IBM, Sun and AOL, whose products were also implicated, to step in collectively on behalf of our customers. We hired one law firm to defend them, paid the cost of that. The outcome was very positive, the infringement claims were thrown out,’ said David Kaefer, director of business development at Microsoft.

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Navigating the patent maze: Nap Hal

Navigating the patent maze: Nap Hal – Comments Addressed: “Nap Hal – Comments Addressed

An interested reader commented on the post in which I expressed approval for the decision of the Indian Government to not oppose the European Patent, now owned by Monsanto, that used Nap Hal. The reader raised several points that I would like to address. I also hope that it evokes more discussion on this topic area.

(Sidebar – there are currently 5 parties opposing this patent, including Greepeace and the European Flour Milling Association)

The reader raises several points. The first point, quoted below, speaks to whether the patent claims are in violation of the European Patent Convention.

The Patent in question explicitly claims a wheat variety, and so is squarely in violation of the European Patent Convention.??

The short answer is that the patent in question (EP 0 445 929) does not claim any plant varieties. The claims are directed to soft-milling wheat with particular characteristecs, flour prepared from that wheat, dough or batter prepared from the flour, edible products made from the dough or batter, and biscuits made from the flour.

The second point of the reader is that ‘the disclosure of the patent shows that the genetic traits which are key to the patent (double null allele in glu-D1 gene) were wholly derived from the landrace developed in India, namely, Nap Hal.’

I’m not sure what the reader’s objection is other than the landrace came from India. In fact, the landrace was obtained from a public germplasm bank. The accession was placed prior to the Convention on Biological Diversity, so that treaty does not control the situation. Until the CBD, typically there were no restrictions on accessions or, in the case of the CGIAR the restrictions regarding intellectual protection placed on germplasm held in FAO Trust were limited to the variety itself and did not extend to derivatives (such as the wheat claimed in the Monsanto”

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No Progress on Bio/TK Disclosure for Patents

I/P Updates: TRIPS: No Progress on Bio/TK Disclosure for Patents – News and Information for Intellectual Property Practitioners: “TRIPS: No Progress on Bio/TK Disclosure for Patents
According to an article in BRIDGES Trade BioRes, Vol. 4 No. 17 23 September, 2004
, the Council for Trade-related Aspects of Intellectual Property Rights (TRIPS) considered a proposal by Brazil, India, Pakistan, Peru, Thailand, and Venezuela on September 21, 2004 suggesting a checklist of issues to be covered in negotiations on biodiversity, traditional knowledge and folklore. The proposal elaborates on possible disclosure requirements in patent applications relating to the source and country of origin of a biological resource and/or traditional knowledge used in an invention.

The US and Japan again voiced their opposition to using the checklist. No substantive progress was made and the meeting closed after one day rather than the scheduled two. The next TRIPS Council is reportedly scheduled for December 1-2.
posted at 1:58 PM “

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