Reported by Ritvik M. Kulkarni, III BSL LLB, ILS Law College, Pune
Hello everyone, and welcome to IP Week 2015, the first event in the ILS Law College wherein resource persons from all walks of an IP life get together with the students to share their expertise, experiences and intellectual findings with the latter. Interitus IP will be exhaustively, and exclusively, be covering each session of each event on this blog. In addition to a brief note on the subject matter on the presentations (made by the resource persons), I will also be sharing with you a link / PPT file of the presentation itself. So hold tight, there’s an IP tsunami coming your way; and yes, you would love to drown in this one.
Interitus Reports: Day 1, IP Week
With Mr. Abhishek Sahay pulling the patent trigger, the IP Week has certainly begun with a bang.
Mr. Sahay’s agenda was simple: to educate the attendees on the various issues, hurdles and trends revolving around the law, practice and commercialization of patents between two consecutive sessions. These topics, through Mr. Sahay’s oration, magnetically flowed into the minds of the attendees in a swift motion; right from 2:00p.m till until three hours thereafter.
In the first session, the attendees mainly learnt the basic concept(s) of the law of intellectual property rights, its nature, its branches and its scope for protection (mainly) in India. It was brought to light by Mr. Sahay that IPRs are nothing but a modified form of property rights; and that to that extent the two laws are overlapping. Both rights find their culmination in negative rights, which confer the right upon the property or IP owner to prevent any other person from making, using, earning profit or otherwise access the former’s property without his permission.
As the presentation progressed, Mr. Sahay also dealt with certain seemingly similar, yet actually distinctive, feature of groups of IPRs; such as designs and patents which can be distinguished on the basis of its aesthetic value and utility respectively. A case study of Coca-Cola’s trade secret was also briefly discussed by the Presenter. After what may seem like an unfamiliar move in academic territory, Mr. Sahay was successful in identifying multiple IPRs in one product by using an image of a branded scotch whiskey bottle.
The fact that drafting patent applications, claims and specifications are the holy trinity of patent law was firmly established. The procedure of registration and the consequences of filing inadequate or wrong claims were also explained. Mr. Sahay relied on the following case laws to substantiate the importance of the art of filing patent claims and specifications and instances of patent infringement:
- Polaroid v. Kodak [867 F.2d 1415 (Fed. Cir. 1989)]
Polaroid had patented camera technology prior to Kodak. In their claims, they had sufficiently included Kodak’s model within the scope of its claim. Kodak was sued for patent infringement and had eventually had to cough up nearly USD 1 billion in damages in addition to a 15-year exile from the market.
- Bajaj v. TVS [2008 (36) PTC 417 Mad]
Revolving around Bajaj’s DTSi technology, this patent infringement suit culminated in an interim injunction against TVS for one year; causing losses running in the millions. Defending the suit also caused great litigation costs and a steep drop in the share price. This case also shows that product marketing heavily depends upon innovation; since Bajaj applies most focus on its patented DTSi technology to promote its bikes (products).
“Even a comma, full stop or a single word have cost patent owners protection over their inventions; only because their filing procedure and approach were inefficient”, said Mr. Sahay.
He analyzed the need for smart filing through a beautiful anecdote:
Apple Inc., while filing for a patent in The I-Pod, specified the scope of the claim to include a media-retrieval device; even though in fact the product was meant to serve the purpose of an audio retrieval device. Consequently, Apple would still be protected by patent laws even when a third person manufactured anything that fits within the scope of the words “media-retrieval” device.
This small yet smart move on Apple’s part has allowed them stronger protection and a greater competitive edge in the market. In a way Apple preempted competitive innovation in the market by applying for a wider scope in the patent application than it actually intended to act upon.
To this, an attendee raised a question: “Is it not correct, that by widening the scope of the patent application, patentees such as Apple Inc. are blocking future patents?”
Mr. Sahay: “No, it doesn’t. The simple reason for this is that since once the audio-retrieval device is patented, arriving at a video or other media retrieval device would become obvious to an expert in the field. Therefore any subsequent patent application for a video-retrieval device will be struck for not meeting the requirement of non-obviousness. It is therefore more profitable for Apple itself to extend the scope, so that in the future, the company can introduce video-retrieval devices and still remain protected by a patent.”
The Session concluded at 3:30, at which time the meeting took a short tea-break. Don’t leave your eyes off the screen; Interitus IP will be coming up soon with a report on the Second Session of the first day of IP Week!
PPT files of the presentations will also be uploaded in good time.