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Sherlock Holmes’ copyright (mis)adventures land him in the Public Domain

Justice Elena Kagan on Thursday dismissed the Emergency Petition filed by the Conan Doyle Estate Ltd. to block publication of a new collection of stories based on Sir Arthur Conan Doyle’s famous detective, Sherlock Holmes. Doyle’s heirs claim that “Sherlock Holmes and Dr. Watson were not static but dynamic literary characters who changed and developed throughout the Sherlock Holmes canon”. The Doyle heirs have been successfully guarding all literary, merchandising and advertising rights of his works. Anyone wanting to use Sherlock or his friend Dr. Watson had to typically pay the estate a license fee.

But Leslie S. Klinger, a Californian Lawyer and Editor of “The New Annotated Sherlock Holmes,” successfully challenged in the US Court of Appeals for the Seventh Circuit that Doyle’s characters are in the public domain and therefore, he did not need to get the estate’s permission — or pay a fee — to publish his upcoming collection, “In the Company of Sherlock Holmes: Stories Inspired by the Holmes Canon” (Pegasus). Klinger had previously published A Study in Sherlock and paid $5,000 (£2,923) as licensing fee for the rights, by the second time he was asked to pay, he had decided to challenge this practice.

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Role of Third Parties in your Patent Grant Process

The subject of today’s topic would probably leave a patent applicant feeling a bit like the reigns are slipping. A patent is not a piece of cake to acquire. The right owner of the invention be it an inventor or an applicant has to prove themselves beyond any doubt. It is the basic right of every individual to oppose the grant of any patent, in cases where such a grant would seem detrimental to a third party. Hence, it would be a justifiable opportunity for third parties to intervene in the procedure of patent grant.

Opposition

Under the Indian Patent Law, Opposition can be made twice during the life of a patent application. First is the Pre-grant representation under section 25(1) wherein any person may challenge the application for grant of a patent. Pre-grant opposition acts as a defensive shield to confirm the validity of patent applications before patents are granted. Post grant opposition under section 25(2) may be made only by any person interested at any time after the grant of patent but before the expiry of a period of one year from the date of publication of grant of patent.

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Silly Seating

How would you feel if you had to travel standing on your plane journey? Yes, a plane, not a bus. AirBus seems to be taking its name a tad too literally. At least that’s what their recently filed patent seems to say.

What does this mean?

Airbus filed a patent in December, 2013 for a new airplane seat design that would have travelers resting on bicycle-like seats for short-haul flights.

Why was this even proposed?

One guess would be to reduce costs. Airbus’ retractable bicycle seat design manages to add extra seats by reducing the width of passenger’s seating and leg room, minimizing the bulkiness of current airline seats. The smallest seat width on a short-haul flight is now 41.28 cms, while the smallest seat pitch or the distance from the same point on one seat to another, often referred to as legroom is 68.58 cms, according to Seat Guru.

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Common Reasons for delay in Grant of Patent

A Patent gives its owner a monopolistic right and protection against unauthorized use of anything under its protection. This is the reason that a patent only gets granted once it passes several levels of stringent scrutiny. This phase is called the examination of the patent application. Examination of the application determines whether the patent application is worthy of a patent grant and thus, unless the application fulfills all patentabilty criteria, it does not receive a grant.

For a patent application to be examined, a specific request has to be filed within a stipulated deadline, in accordance with the laws of the country that the application is filed in and the required fee, if any, has to be paid. Time and again we criticize Patent Offices for not promptly processing applications. Patent Offices, are usually overburdened with applications, since anyone can file as many applications as they please at any time. This has taken a toll on the prompt prosecution of an application. What has to be mulled over here is whether the applicants share any responsibility for the delayed prosecution of applications. Ways to minimize delays in examination of application can be:

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A life saving Patent Pool

A fresh breeze of air in the times where the tragedy of the anticommons has become a matter of worry in the health care industry where patents and regulatory exclusivity is coming in the way of access to health seems to be round the corner.

The UN backed Medicines Patent Pool  has announced sub-licensing agreements with seven pharmaceutical companies for the manufacture of two anti-AIDS drugs viz: atazanavir and dolutegravir.

What is interesting about this pool is that both these drugs are off patent and generic. So ideally anyone interested could manufacture and market these drugs without infringing on any exclusive rights. Then why exactly pool the drugs? Well, both these drugs are positioned for HIV AIDS treatment. Given the high burden of the disease throughout the world and the high cost of treatment, there is a need to pursue cost and time effective ways of making the drug. The pool aims at bringing together second generation patents (patents for improved processes, forms etc) which are superior to the generic base patents to ensure that the demand of the market is met for these drugs, which are critical in the HIV treatment regime. The model on which this pool group intends to work is by sub licensing the patents in the pool to local manufacturers who can produce the drug at much lower price.  Indian pharmaceutical companies such as Cipla, Aurobindo Pharma, Micro Labs, Emcure and Mylan have come together to form this pool.

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Patent Invalidation in the US: The Good, the Bad and the Ugly

After studying citations from patents that were invalidated by US Judges, researchers from the London School of Economics commented, “Patent invalidation has a significant impact on cumulative innovation in the fields of computers and communications, electronics and medical instruments (including biotechnology). We find no such effect in fields involving drugs, chemicals or mechanical technologies.” Let us now take a look at why this discrepancy exists.

What is patent invalidation?

The Patents Act outlines circumstances under which a granted patent can be revoked on certain grounds.

Who is affected by this and how has this come to be?

Start-ups seem especially vulnerable to bad patent policy because they may not have the legal or the economic negotiating power to deal with big business. The researchers commented that when large patentees are involved, bargaining breakdown occurs and small firms are normally less capable of resolving disputes cooperatively, without resorting to the involvement of courts.

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Yamaha’s Tesseract: The future is a four-wheeled Motorcycle!

The Tesseract that we speak of here is Yamaha’s most recent contribution to the motorcycle world, most likely deriving its name from the four-dimensional hypercube, a physical form of which is known to possess unimaginable power, according to the popular movie, The Avengers. The allusion to a four-dimensional hypercube may be an indicator of the presence of four-wheels in the motorcycle! A prototype was unveiled at the 2007 Tokyo Motor Show and although the bike has four wheels, its ability to lean to the side like a regular motorcycle sets it aside from all known motorcycles and ATVs.

The Tesseract boasts of housing several innovations such as:

Hybrid Engine: Powered by a combination of liquid cooled V-twin gasoline engine and an electric motor.

Dual-Scythe Suspension: Has unique suspension that enables cornering with a lean (banking) like a motorcycle despite the presence of four wheels. The patent US 8,251,375 discloses the technology behind the Tesseract’s lean control system. 8,251,375 claims a body leaning control system comprising a support mechanism arranged to support a pair of wheels to be movable upwards and downwards in relation to the vehicle body, a resistance applying mechanism arranged to apply a resistance to the support mechanism of the pair of wheels, a lean amount acquiring device arranged to detect an amount of lean of the vehicle body and a controller. The controller, based on results received from the lean amount acquiring device, sets the resistance of the resistance applying mechanism when the lean amount of the vehicle body exceeds a required angle, inhibiting the vehicle body from leaning in excess.

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Mediation seems to be the new trend for settling Drug Patent wars

Big Pharma companies are all set to mediate with Indian generic drug companies to end the tug of war in courts. This seems to be a new welcome trend.

After Roche-Cipla initiated mediation in the recent case involving the Erlotinib patent after a long court battle, Merck and Glenmark follow suit as they attempt to resolve the issue involving Januvia. Whereas Roche-Cipla moved to the path of mediation only following court orders, it is to be really appreciated that it was Merck who initiated this surprising move and applied to the courts earlier in July this year to refer the case to the mediation centre. As the Defendant, Glenmark also agreed to end the long dispute outside of court, the application was allowed by the court. As per the court order, the matter would be listed before the mediation and conciliation centre of the Delhi High Court on July 14th, 2014 and would be dealt with by two “seasoned and experienced” mediators in consultation with the counsels of the parties.

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The right time and means to Publish a Patent Application

If an invention has been published or publicly displayed, it will not be eligible for patenting except for in certain cases. As part of this post, we will look at an essential stage in the patenting process called Publication. We will also discuss the exceptions, where prior publication may not hinder the patenting of an invention.

In India, once an application for a patent has been made, the application shall be published by the Patent Office for public inspection, before the expiry of 18 months from filing or priority date. Under Section 11A of the Indian Patent Act, 1970 it is mandatory to publish patent applications for public inspection in the Official Gazette. Such publications in the Official e-Journal, shall be published every Friday by the Patent Office.

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US Federal Circuit clarifies on Software Patenting in Digitech case

The US court of Appeals of the Federal Circuit upheld a decision by the District Court that the patent held by Digitech Imaging Technologies (a division of Acacia Research, one of the most active ‘Patent Trolls’ ) is invalid.

To provide a background to the case, Digitech had filed suits against multiple companies (including Xerox, toshiba, Leica, Fujifilm, Sigma, Pentax, Ricoh, Asus and so on) claiming that they were infringing US patent 6,128,415. The first suit was filed by Digitech in the US District Court for the Central District of California. The District Court ruled that the patent was invalid under 35 U.S.C. §101, as the enforced claims (claims 1-6, 9 and 26-31) were directed towards a “collection of numerical data (a device profile) that lacks a physical component or physical manifestation”.  Also, the District Court ruled that the method claims were directed towards generating a device profile by organising data through mathematical correlations. Digitech appealed the decision to the Federal Court, which upheld the decision of the District Court.

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