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Edited by Arno R. Lodder and Andrew D. Murray

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Edited by Arno R. Lodder and Andrew D. Murray

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Marshall S. Shapo

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Edited by Arno R. Lodder and Andrew D. Murray

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Edited by Arno R. Lodder and Andrew D. Murray

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Arno R. Lodder and Andrew D. Murray

The editors of EU Regulation of E-Commerce: A Commentary, Arno R. Lodder and Andrew, introduce the European Union’s long history of investment in, encouragement for, and development of, electronic commerce and the strong, and mostly coherent, regulatory framework for the e-commerce sector. Besides this historical overview, they also discuss the move society has made from the physical to online and back again. Finally, all chapters contained in the book are briefly introduced. Keywords: EU policy, EU e-commerce, online, information society

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Shamnad Basheer

The Indian patent regime has been celebrated and censured in equal measure: celebrated by those that see in it the vestiges of a past, where nations could craft a patent policy to suit national priorities – without succumbing to the pressures of a global patent script and dictated largely by the industrial interests of the developed world – and censured by those who think that India's extensive use of TRIPS flexibilities to advance developmental priorities comes at the cost of global innovation incentives and a uniform patent paradigm.

Indeed, the present frame of the Indian patent regime contains a unique set of provisions not ordinarily found in other regimes. Patent working is one such provision. While most patent regimes demand ‘disclosure’, in that the patentee must elaborate the invention in full so as to educate the public and enable those skilled in the art to replicate it with relative ease, the Indian patent regime goes one step further. It requires that the disclosure even extend to the mode and manner in which patents are being worked for the greater public good. This information can then be used to trigger compulsory licences and even patent revocations. To this extent, the Indian patent regime not only grants exclusive IP rights, but also imposes a set of IP duties.

As an IP duty, patent working is central to the innovation ecosystem, for its disclosure helps foster greater transparency by inter alia pegging specific patents to products. This information is particularly valuable in the high technology sector, where it is often impossible to co-relate patents and the technological products that embody them, and vice versa. Unfortunately, Indian patentees routinely flout this important legal tenet, and the government has all but turned a blind eye to it.

This paper reflects on this important statutory mandate and its jurisprudential underpinnings, particularly in relation to two technology sectors: pharmaceuticals and high technology (IT and telecommunications). It highlights a writ petition filed by the author of this paper to showcase the sheer callousness with which the patent working requirement has been treated by both patentees and the government alike. It then discusses the ways in which the mandate could be strengthened so as to pave the way for a more meaningful patent regime and a more transparent innovation ecosystem.

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Edited by Johanna Gibson

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Magnus Strand

This first Chapter of the book presents the passing-on problem and identifies the major legal issues triggered by that problem that are discussed throughout the book. ‘Passing-on’ in this respect is the act of letting harm or loss incurred by a business pass through that business and thereby move on to burden its customers, i.e., the next level of the supply chain. This can be done, knowingly or otherwise, by raising selling prices in response to the harm or loss at issue. The point of departure in this chapter and throughout the book is that the passing-on problem is not a single and coherent legal problem that can be addressed as such, but a set of factual circumstances that gives rise, in turn, to several legal issues that need to be resolved in a consistent manner. Three main legal issues triggered by passing-on are identified: (1) Who in the supply chain will have access to court to bring an action in respect of the initial harm caused? (2) Will those parties be able to demonstrate sufficient proximity (within the meaning of applicable substantive law) to the original harmful act or unjustified transaction, as the case may be, to bring a successful claim? (3) Will a possibility for the claimant to pass on the alleged harm or loss be relevant to the estimation of the award? This chapter further identifies the different parties involved in the passing-on problem and their respective interests, introducing shorthand denominators for those parties that are used in the book. Finally the chapter outlines the various EU law contexts in which passing-on has or could occur, and presents the structure of the presentation to follow in subsequent chapters. Keywords: EU law, private enforcement, damages law, restitution law, passing-on, indirect purchasers
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Magnus Strand