INTELLECTUAL PROPERTY LAW

Answer 1) A)

In the following case, Myzer is the developer of a drug that cures certain cancer that is
prevalent in the state of Qaharat. On the other hand, Sahas Pharma is applying for a
Compulsory License (hereinafter CL) to bypass the patent held by Myzer and produce a
generic version of the medicine.
In the following case facts what must be realised is that a compulsory license is an exception
to the privilege provided by a patent and must be granted keeping in mind the general welfare
to not render the motivation of patents void.
CL’s are covered by sections 84(1)1 and 84(6)2 of the Indian Patent Act, 1970. Jointly both
these sections layout various conditions that must be satisfied to be granted a CL.
- The patent must be granted 3 years prior
It is evident from the case facts that the patent was received by Myzer in 2015 and the
application for the CL has been made by Sahas Pharma in December 2018, thereby
satisfying the first condition laid down in section 84(1).
- The reasonable requirements of the public aren’t met
Since the beginning of its, production Myzer has been able to maintain global supply.
This is keeping in mind that it has invested large sums of money in the production and
the development of this drug and has set global quotas for the medication. Talking
more specifically from the standpoint of Qaharat where the application for the CL is
made, there are 20,000 active cases against which they receive 50,000 units of
medication. This means that they are adequately keeping supply met for the patient in
need of the medication. This is not an extremely common form of the daily disease
that would require unprecedented amounts of medication and can thereby be
reasonably supplied by one global player that has the resources and production
facilities already running and providing adequate stock.
- The patented product is not available at a reasonable price
While Myzer had originally overpriced the product at 3000 USD, it has subsequently
reduced its price to 1200 USD accompanied by a 35% discount on bulk purchase.
Given the large number of resources that have been financially pooled into the

1
Section 84 (1) – Compulsory licenses
2
Section 84(6) - Compulsory licenses further considerations

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 development of this product, it is reasonable to have a high dollar price on the
medication. This is because it is a result of thousands of dollars in investment to target
a niche illness. While amounting the discount on the new price only leaves a marginal
gap between the price Myzer is offering the medicine Vs the price Sahas pharma
would be offering it at. Thereby, the price of the drug isn’t unreasonably high that it
would render it out of public reach and thereby arise the need for a CL.
At the same time as per the provisions of section 84(6), it can also be seen that sufficient time
hasn’t elapsed from the date of the patent to the date of the application for Myzer to fully
utilize and pay for the amount it invested in the development of the drug. At the same time
due to adequate supply, there is nothing that Sahas pharma could do (apart from marginally
reducing prices) that would bring about any new public advantage. Another key point of
contention is that there have been no attempts made by Sahas Pharma to obtain a license of
production from Myzer which could push the case in favour of Myzer as per the precedent set
in the case of BDR Pharmaceuticals3.
Even if the per cent from Bayers4 case is to be considered, there are not enough grounds
apparent to break the patent and grant CL. In the case of bayers there was a substantial
difference in price amounting to almost INR 2,00,000. This was also accompanied by a
shortage in supply and therefore, it was in the best interest of the public to grant the license.
The same cannot be applicable here because Myzer has reasonable prices (given cost of
development) and has been able to maintain an adequate supply, thereby making the
application for granting of CL weak and giving Myzer a stronger claim over the patent.

Answer 1) B)

3
CS (COMM) 27/2020
4
CM Nos. 17922/2017

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Sahas Pharma would like to acknowledge that it has been producing the drug, however, it
denies any form of copyright infringement. This is because the drug is being developed to be
used for public research by a government institution(s) like ICMR alongside the Indian
institute of science (IISC).
Sahas pharma would also like to elaborate that it has made no monetary gains from the
production of the drug. All the production has been used for scientific research for public
welfare.
Sahas pharma would also like to highlight that patent violations are exempted based upon the
provisions of section 107(2)5 and 47(3)6 of the Indian patents act. Under the provisions of
these sections, any copyright violations arising due to research for public welfare is exempted
from the purview of patents.
As mentioned above, since the drug hasn’t been made publicly available by Sahas Pharma,
neither is there any monetary gain resulting from the research and therefore there is no valid
claim of violation of copyright that can be brought against Sahara Pharma by Myzer.

Answer 2) 1)

5
Section 107 – Defenses in suit of infringement
6
Section 47 (3) – Grant of patents with conditions

III
From the case facts it is evident that the question contends the originality of the artwork
“Take the Money and Run”, and subsequently could that be subjected to valid copyright
protection.
The artwork is a blank canvas that was framed that was to show the artists intent of running
away with the money that was provided by the gallery to paint an artwork that was painted
originally painted on money. However, in the following case, we see that the artist flees with
the money and uses that as an idea for his painting, the expression of which is two blank
framed canvases that were delivered and displayed in the gallery.
Section 2 of the Indian Copyright Act of 1957 7 allows for the copyright of art in the form of
paintings, however, there has been jurisprudence around it that requires an element of
creativity to be apparent to constitute a valid claim over copyright.

THE ARTWORK AND ORIGINALITY

The first contention when considering copyright is that of originality. Original thought and
idea, and their tangible expressions and deserving of copyrights. It is imperative to mention
that it’s the tangible expression that can be copywritten and not the idea itself. When
considering originality there must be an element of actual labour that must go into the work
alongside original expression. India currently works as per the provisions of the doctrine of
the modicum of creativity as laid down in the case of Eastern Book Company V D.B.
Modak8. The doctrine provides that there must be some element of creativity that must be
present within the expression to make it worthy of copyright. This doctrine sets a higher bar
than the doctrine of sweat and brow, whereby it states that there is no need for a radically
new idea, but some element of novelty that requires protection from infringement.
In the following case, we see that the canvases are blank and have merely been framed, which
cannot be adequately described as sufficient creative nexus. It was also laid down in an
English case of British Northrop Ltd. Vs Texteam Blackburn Ltd 9, that a mere line on a
canvas could not constitute creativity. This could then be extended to understand that if a line
on a canvas could not constitute creativity, then a blank canvas with no expression could not
constitute any form of original thought that could require protection. The artist in this case

7
Section 2 (c)(i) – Copyright of Art in form of Paintings
8
Appeal (civil) 6472 of 2004
9
"BRITISH NORTHROP LIMITED AND OTHERSV.TEXTEAM BLACKBURN LIMITED AND
ANOTHER". Vol 91, no. 3, 1974, pp. 57-81. Oxford University Press (OUP), doi:10.1093/rpc/91.3.57.
Accessed 30 Sept 2021.

IV
has a personal signature of painting on currency notes, something that he was commissioned
to do, however, the blank canvases don’t constitute original execution or an element of a
personal stamp.
This then leads us to believe that there is more emphasis on the meaning and the idea rather
than its physical manifestation. This leads us to the idea-expression dichotomy.

IDEA EXPRESSION DICHOTOMY

It is a set principle within IP law that ideas cannot be copywritten 10. This is to say that the
idea that the artist ran with the money and hence the canvases are blank does not constitute
valid original expression. Therefore, we see that in this context, there is a greater emphasis on
protecting the idea, rather than its expression. And since there are no valid claims that can be
held on the idea, there can be no copyright given for framed fabric that has not been worked
upon. The expression derives its meaning from the context and not the expression. Since the
context is irrelevant when deciding on copyright protection (which looks at the expression in
isolation).

Therefore, from the above analysis, there is no valid claim for a copyright, it’s this modern
art expression derives primarily from the idea and does not have sufficient originality in its
expression. Since the current understanding of IP laws only protects the expression (which in
this case is a blank canvas) there would be no valid case for copyright.

Answer 2) 2)
10
"Idea-Expression Dichotomy Under Copyright Law - Intellectual Property - India". Mondaq.Com, 2021,
https://www.mondaq.com/india/copyright/536650/idea-expression-dichotomy-under-copyright-
law#:~:text=There%20exists%20no%20copyright%20in,what%20that%20makes%20a%20difference.

V
This question deals with the right between authorship and ownership. In the most
rudimentary sense, the creator of the work, in this case, the artist would have the strongest
claim to the copyright (with the assumption that the copyright is granted). However, in the
provision of section 17(b) of the Indian Copyright Act of 1957, when the work is
commissioned for a specified consideration, then the copyright and the rights that accrue
from it are vested in the person commissioning the work and not the artist who is made it.
therefore, in the following case, the artist received separate amounts of money that were to be
used for the painting and one set that was to be used as the consideration for the commission.
Therefore, in this case, since the artwork was created against a pre-determined sum of money
for the gallery, the gallery would have full rights over the copyright of the artwork and no
rights would be bestowed upon the artist because of the fact that he is the author of the
artwork.

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Answer 5)

The Alice case laid down the two-part Alice test 11. The test is used to consider patent illegible
ideas and consider whether anything new has been added to the process that could make
abstract patent illegible ideas into patentable substance. Abstract ideas are one of the three
underlying non-patentable realms under the provisions of section 101 12 (amongst law of
nature and natural phenomenon).
The courts in the cases of Mayo13 and Bilski14 highlighted that there must be an addition of
substantive fresh ideas, that could take from abstract non-patentable ideas and transform them
into something patent worthy. The courts in these cases further highlighted that merely
picking natural phenomena and creating a computer programme about it, or digitising
existing processes like hedging did not paramount to something original enough to be worthy
of a patent.
When looking at patents it must be seen that there must be a difference between picking up
pre-existing building blocks of general knowledge but finding the element that adds to them
in a manner that makes them unique and patentable.
The case highlighted that merely an abstract idea does not make a valid claim for a patent,
this is because it still lacks that original element that is to ‘transform’ it to something
tangible, something that wields results that haven’t been mapped in general thought before. It
is that element of uniqueness that transforms patent-ineligible concepts like abstract ideas to
become patentable.
It is the creation of an inventive step that would make the idea patentable. There is no place
for mere ideas to be patented within the understanding of IPR law. Therefore, the Alice test
allows for the judges to highlight the exact point where the abstract idea ceased to be abstract
and was turned into something that hasn’t generally existed. This is the core of Alice when
considering patentability.
When patents are provided to the turning factor that transformed the abstract idea, the
abstract idea remains patent-free. It is the transformed nature of the abstraction that becomes
patent-eligible and therefore prevents one from having a monopoly over an abstract idea.
Therefore, by the principle of being able to identify and highlight the turning points the Alice
test helps remove the chances of patents being used to monopolise ideas, whilst at the same ti,
11
573 U.S. 208
12
35 USC 101
13
566 US 66
14
561 US 593

VII
there is availability for original ideas that took from abstract concepts and are built upon them
to get patent protection for their original thought and new discovery.

Answer 7)

VIII
Trademarks refer to marks and symbols that are protected with the intent to differentiate
brand image and identity from that of its competitors. It is defined by section 2 (1) (z b) of the
Indian Copyright act 1999.
Transborder reputation alongside its jurisprudence now allows Indian courts to protect
trademarks and brand identity of entities that might not be actively trading in India but hold
international presence and reputation.
Initially, as a closed economy, Indian courts were likely to favour Indian brands when
considering trademarks given the lack of knowledge of foreign entities. But much has
changed ever since. The first case that actively took cognizance of trans-national reputation in
India was that of M/s Kamal trading Co. Vs Gillette UK Ltd 15. this case opined that the brand
identity could not be limited to a country and did not depend on product availability.
Therefore, even though Gillette products weren’t available in India, it did share a brand
reputation within the Indian market. This was followed by the cases of Apple Computer Inc
Vs Apple Leasing and Industries16 and N R Dongre V Whirlpool Corporation17 that
embedded the principle that global large-scale promotion and advertisement gave sufficient
nexus for the brand identity to transfer, and no apparent transfer of product was needed. It
was the consideration that global players that spend large amounts of money on
advertisement, in turn, create a brand image that is not restricted by borders and could
thereby not be contented purely because the brand didn’t supply products in India.
It was then followed by the judgement of Milmet Oftho Industries Vs Allergan Inc. 18 that led
to the concept of entering the global markets first. In this case, it was held that even If a brand
did not use its trademark in India, the mere first international presence was sufficient for it to
receive copyright protection in India, owing to its international presence and early entrance.
Finally, the landmark judgment of Austin Nicholas and Co. Vs Arvind Behl 19 focuses on the
importance of globalization and media access. It showed how increased global presence and
media exposure blurred territorial bounds in the case of trademarks and made information
universal. The courts opined that first use in the international market held superior standing
that the first use in the Indian market owing to globalization and access to knowledge.

15
(1988) PTC 1 (Bom-DB)
16
(1993) IPLR 63 (Del)
17
(1996) 5 SCC 714
18
(2004) 12 SCC 624
19
(2006) 32 PTC 133 (Del)

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This is however juxtaposed by the Toyota case20, which brought into contention territoriality
vs universality again, whereby the trademark of Prius was handed to the Indian competition
on the assumption that Toyota brand name had not sufficiently penetrated the Indian market
at the time the Indian company set its roots and thereby did not violate trademark.
Therefore, there has been while there has been a progression in transnational reputation and
trademark laws, whereby increased access to knowledge and media has made international
presence synonymous with domestic presence and thereby providing protection to logos and
trademarks that are internationally present, the same still requires polishing into strict
jurisprudence. While the dominant favour the international presence, there are still one-off
judgements that don’t accept the linear route like the Toyota judgement. Therefore, while
there is an element of territorial supremacy in India, there is a slight progression towards
accepting the universality of trademarks. While Indian courts slowly progress towards that
understanding and accept that international brands have also almost been made domestic,
regardless of their presence due to increased internet and information access.

20
AIR 2018 SC 167