Articles

Geographical Indications (GI) are signs which identify goods as originating in a specific geographic location. Being a collective right, it seeks to protect the economic interests of an entire community of producers from a particular region who specialize in the making or manufacturing of a native product. Although many products of Indian origin such as Basmati are not adequately protected under TRIPS, at the domestic level India ensures that GI protection is uniformly available to all types of products. While such protection has the potential to bring about economic prosperity of marginalized sections of society, the conferment of GI status to products like Tirupati Laddu have raised concerns regarding the standards followed by the authorities while registering a GI. Critics point out that the grant of GI tag to the Laddu dilutes the very essence of GI protection and facilitates the commercialization of faith symbols by a religious shrine. This paper examines the controversial issues surrounding the conferment of GI designation to Tirupati Laddu.

The strict standards of patentability envisaged by TRIPS posed a challenge to India’s pharmaceutical industries, whose success depended on the ability to produce generic drugs at much cheaper prices than their patented counterparts. A robust patent system would severely curtail access to expensive life saving drugs. Therefore, although India amended the Indian Patent Act, 1970 to protect genuine innovations, it did not extend protection to “incremental innovation” on existing medicines unless such innovation significantly increased the efficacy of the original drug. This article explores the prevailing tension between § 3(d) of the Indian Patent Act, 1970 which excludes “incremental innovation” from patent protection, and pharmaceutical companies pressing for the recognition of the same. Firstly, the article examines the specific reasons behind excluding “incremental innovation” from § 3(d). Secondly, it distinguishes between “evergreening” and “incremental innovation” and argue that the latter is vital for development of new medicine and thus deserves patent protection. Thirdly, it highlights the ambiguity in the language of § 3(d) and enumerates the changes which are necessary to make the provision workable. In this respect, two recent judgments, namely Novartis AG v. Union of India and F. Hoffman–La Roche v. Cipla are analyzed, in light of the impact of this provision on the pharmaceutical sector. It concludes by emphasizing on the need to strike a balance between two seemingly conflicting interests: general public interest sought to be protected by § 3(d) and the incentive for research and innovation which necessitates protection of “incremental innovation”.

Certain legal terms are only capable of illustration and lack a precise definition. Definitions provide clarity but where the definition is not exhaustive there is uncertainty regarding its ambit. H.L.A Hart has attributed this indeterminacy to the ‘open texture’ of certain legal terminology. According to him, every term applies to a standard set of circumstances contemplated by the Legislator and in unforeseen situations giving rise to ‘hard cases’ the Court has to resolve this ambiguity. The first part of this paper analyses this aspect of Hart’s theory of open texture of language and delves into the criticisms put forth by scholars such as Dworkin and Fuller. The term good faith is used as an illustration to demonstrate the application of open texture of language. Good faith is a general principle of public international law and its meaning in the context of international trade law is the focus of this paper. An attempt has been made to analyse cases involving interpretation of good faith arising before the Dispute Settlement Body of the WTO using Hart’s interpretation of open texture of language to discern whether the theory finds application in the area of WTO law.

The use of corporate entity in tax planning is permissible as long as it is not used as a colourable device. The Vodafone judgment in 2009 applied lax standards to lift the corporate veil. If the tax claim eventually becomes successful, it can make any tax planning involving a corporate entity difficult. From provisions related to General Anti- Avoidance Rule, residence of a foreign company, Controlled Foreign Corporations and Double Tax Avoidance Agreements under the proposed Direct Taxes Code, it can be inferred that the use of a corporate vehicle for tax planning shall become more difficult when it comes into application, and may have uncertain results. Although the ruling of the Authority for Advanced Rulings in E*Trade in the same year is favourable towards using corporate entity for tax planning, it does not set a precedent and is binding only on the parties involved. Thus, the paper suggests a cautious approach in using a corporate entity for tax planning.

Genes hold the blueprint of the human body. Since genetic code contains all the necessary information for the continued physiological functions of the organism, patent over a gene can potentially determine all the downstream inventions. In light of genes modified with significant human intervention being considered a valid patentable subject matter under the Patents Act, 1970, this article explores the conflicts between gene patents and the right to health at four different levels, viz., availability, accessibility, quality & acceptability of better healthcare. The propensity to infringe right to health calls for a prudent and vigilant approach. The relevant provisions of Patents Act, 1970 and Competition Act, 2002 may help in this endeavor. The best solution, however, is to expressly exclude genes from patentable subject matter under the Patents Act invoking the rationale in the recent Myriad judgment

At the present time a consensus has emerged on two points involving the constitutional status of social and economic rights, the so-called “second generation” rights. First, such rights are properly included in modern constitutions, and second, they are enforceable to the same extent as first-generation rights to political participation, free expression, equality, and the like. After explaining the current status of social and economic rights in modern constitutions, these reflections identify two important matters that continue to arise: the forms of enforcement and remedies are appropriate for second- generation rights, and some continuing concerns about effective enforcement. Important recent scholarship develops new concepts to supplement older ones, and the new vocabulary is likely to be quite helpful as scholars consider the directions the law takes in different jurisdictions…

The access versus profit debate is a worldwide phenomenon in the pharmaceutical industry and India is no exception. In recent times however, India’s increasingly visible, pro-access stance has developed new teeth. In a spate of patent cases, the judiciary has made it clear that public interest is of prime importance and India will not tolerate the exploitation of its masses by drug giants looking to reap benefits. It was in this vein that the IPAB rendered its decision in Natco v. Bayer. Unfortunately however, the base created by the ruling remains weak at best. Not only does it fail to address crucial issues that could shape the future of Indian law in this area, but it also fails to consider the logical corollaries of its reasoning in some aspects. This note seeks to critically analyse the judgment in this light and explore the way forward. It argues that the decision’s overall interpretation of law, though sound in the factual matrix of this case, is problematic in the larger picture. The note concludes by outlining the possible effects of the decision on India’s pharma-patent regime and setting out the lessons to be learnt by the drug manufacturers.

The practice of granting patents to business methods is antithetical to the core concepts of intellectual property rights. Patent protection is afforded to novel creations which have industrial and technical application. A business method can be understood as an effective method of conducting commercial transactions. These methods are a result of business instinct and creativity. An external ‘patent’ incentive is not required to motivate the creation of such methods. Competition and first mover advantage are mechanisms that have ensured that novel business methods are created continuously. Moreover, such methods are purely transactional in nature, lacking in physical instantiation and hence not patent eligible. Despite the apparent clarity on the treatment of such subject matter, software, a gift of the Information Age, has confused our understanding of business methods. This confusion is evident in the leading US cases – State Street Bank Co. v. Signature Financial Group Inc. and In Re Bilski, where the court grappled over whether a business method executed through software could amount to a patentable ‘invention’. Even the Agreement on Trade-Related Aspects of Intellectual Property Rights (‘TRIPS’) does not address this ambiguity. In contrast, the Indian law, under § 3(k) of the Indian Patent Act, 1970, clearly excludes granting of patents to business methods. Despite this express exclusion, along with the Competition Act, 2002 and the Yahoo v. Controller of Patents decision, our empirical study shows that the Indian Patent Office still grants patent protection to business methods! The paper seeks to address these issues in detail and suggests that judicial decisions and legislative provisions be reconsidered so that the disparity between law and practice in India can be addressed in an expeditious manner.

The decision of the Bombay High Court in Vodafone’s challenge to a $1.7-billion tax notice served on the company related with the acquisition of majority stake in Hutchison Essar Limited has wide ramifications for large, cross-border transactions. The ruling states that the Income Tax Department has the jurisdiction to send notice to Vodafone to pay Rs 12,297 crore as tax liability for its 2007 Hutch- Vodafone deal. It based its ruling on the reason that Vodafone’s transaction with Hutchison Telecommunications International has a nexus with India which is enough to hold its payments subject to withholding tax under § 195 of the Income Tax Act, 1961. It is the aim of this article to analyze the ruling of the Court with regard to § 195. The article seeks to prove, firstly, how the Vodafone transaction did not have any nexus with India enough in the eyes of law to tax it under the Act. Subsequently, the authors will attempt to draw attention towards the much ignored test of nationality which should be utilized in interpreting § 195 and its provisions dealing with withholding tax on payments made to non-residents.

Many negotiators—as well as their clients—hold fast to the traditional, adversarial approach to negotiation as necessary to achieve maximum gains while avoiding exploitation by their opponent. This approach has been proven ineffective in many negotiation situations and may contribute to adverse effects to the psychological well-being of both the practitioner and the client. This paper advocates the application of therapeutic jurisprudence principles to the techniques of negotiation, much in line with the gradual evolution the field of negotiation has experienced towards minimizing adversarial methods. A therapeutic jurisprudence approach involves a more collaborative process integrating aspects of the social sciences to more effectively address the needs of the client, maximize the bargaining zone, and reduce inimical aspects of conflict resolution. This process attains greater overall gains and increased satisfaction with the process and results achieved. While many of the examples herein focus on the American legal system, the concept of therapeutic jurisprudence is a universal one which could offer significant benefits to any adversarial-based system, including that of India.