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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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Edited by Johanna Gibson

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Pamela Andanda

The application of exceptions to copyright infringement in online news articles has become contentious with the widespread practice of aggregation. The specific concern is whether reproducing or adapting news articles that are published on competitors’ websites without permission falls within the scope of the exceptions to copyright infringement in respect of news articles or, alternatively, such conduct is protected by fair use.

This paper provides a South African perspective on the above concern by comparing the USA case of Meltwater 1 with the South African case of Moneyweb, 2 which has attempted to provide clarity on copyright in the context of online journalism. The paper first analyses the complexities of the rapid rise of online news, which raise questions such as whether hyperlinking is sufficient attribution and the difference between ‘scraping’ and aggregation, as well as the effects of these practices on competing media. It then considers whether the doctrine of fair use, which should arguably be flexible enough to adapt to the changing obligations in the context of new technologies, 3 is capable of providing clear guidance on reasonable online media practice beyond South Africa. The central argument is that the doctrine of fair use should foster online innovation and the sharing of public information while ensuring respect of copyright.

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Edited by Johanna Gibson

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Rob J Aerts

Although in the European Union (the Union) the substantive rules for the patenting of biotechnological inventions are governed by Directive 98/44, the actual examination and grant of patents in Europe is provided by the European Patent Office (EPO), which is not part of the Union legal order and acts according to a non-Union legal instrument, the European Patent Convention (EPC). This hybrid situation results in legal uncertainty and can lead to partly inconsistent applications of patentability requirements, since the EPO is not bound to Union law and cannot refer questions to the Court of Justice of the EU (CJEU). Thus, there is no guarantee that the Union and Unified Patent Court (UPC) judiciaries, on the one hand, and the EPO judiciaries, on the other hand, will come to comparable conclusions regarding the patenting of identical biotechnological subject-matter in the Union, irrespective of whether it concerns a classic European patent or a unitary patent. However, the unitary patent is introduced in the framework of fostering the functioning of the internal market and ensuring undistorted competition, and it provides uniform protection. The CJEU has given a very limited interpretation only to this concept of uniformity, leaving room for inconsistent decisions. Hence, it would appear that only intentional, determined harmonization efforts of the diverse judiciaries involved can increase consistency between decisions of the Union and the non-Union legal systems, although the judiciaries are unrelated. This call for coherency becomes even more pressing with the establishment of the unitary patent. Given this complex situation it may be questioned whether in the Union the law-makers of Directive 98/44 can fully achieve their aim in regulating and harmonizing biotechnology patenting.

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Philipp Maume

The interface between intellectual property law and competition law is complicated. The interaction between prohibited abuse of market power under EU competition law and national intellectual property rights has been a perennial issue for courts on both the EU and the member-state level. The issue became even more complicated by the ongoing standardization movement which raised concerns about the anticompetitive nature of standardization agreements and possible implications for compulsory licensing. The practical question was the availability of injunctive relief for infringements of patents that are essential to an established market standard. In July 2015, the Court of Justice of the European Union put an end to the simmering conflict between the European Commission and German patent litigation courts. The new ruling Huawei ./.ZTE is ground breaking and transcends the borders of competition law, partially harmonizing patent litigation practice in Europe.

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Edited by Johanna Gibson

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  • Elgar Intellectual Property Law and Practice series

Daniel J. Gervais