Appellate Board Research Articles

Whose Stats are They Anyway? Analyzing the Battle Between Major League Baseball and Fantasy Game Sites

This article provides an in-depth analysis of the ongoing legal battle in C.B.C Distribution & Mktg., Inc. v. Major League Baseball Advanced Media, L.P. and particularly examines the Eastern District of Missouri’s and Eighth Circuit Court of Appeals’ analysis of the right of publicity, the First Amendment, and copyright law. In 2006, the Eastern District Court of Missouri handed down a decision that promised to have a wide-ranging effect on the future of online fantasy sports. In 2007, that decision was affirmed in a divided 2-1 vote by an Appellate Board for the Eighth Circuit. While the district court judge held that players do not have a right of publicity in the names and playing statistics as used in an online fantasy baseball game, the appellate court held that players do in fact have a right of publicity. While the two courts came down differently on this issue, both agreed that even if a right of publicity existed here, the First Amendment trumps that right. District Judge Medler’s decision (affirmed by the Eighth Circuit) has broad reaching implications for the entire genre of fantasy sports operations. The ultimate decision in C.B.C Distribution will go a long way toward determining the course of the multi-billion dollar industry of fantasy sports. Web sites such as ESPN.com and Yahoo.com are able to generate revenue in a variety of ways. Both sites feature stories, advertisements, a variety of games, and other sections of interest. For CBC, its sole source of revenue is its fantasy sports games. The site does not offer other content, stories, or sections that appeal to the masses. Fantasy baseball requires a niche audience that has a fascination with statistics and how a player performs throughout the season. Fantasy baseball is the lifeblood of CBC’s business operation. If the U.S. Supreme Court were to r everse this ruling in favor of Advanced Media, it would initiate a slippery slope, creating a scenario in which a famous person’s name could never be used for entertainment value. Trivial Pursuit, Cranium, and other trivia -based board games use the names of famous people for the purpose of asking questions. Where does the line begin and end with respect to what is considered a legal use of a person’s name? Trivial Pursuit would have to eliminate two entire categories of questions if it was not permissibl e to use names. Two Pop Culture versions are now ma de – they include categories such as movies, TV, sports, and ames. In these versions, players are asked questions on hot gossip, celebrity trivia, and movie information. You cannot have a game based o n popular culture without using the athlete and celebrity names that make up Pop Culture, because the Arts & Entertainment and Sports questions are so heavily based on the use of athlete and celebrity names. Cranium has a new Pop version that asks questions and requires acting out. On an even simpler level, any time you go to the movie theater, trivia questions and scramble puzzles appear on the screen prior to the start of the previews. These questions almost always include the name of a celebrity or athlete. Is every theater across the country licensing the names of these famous folks? It is highly doubtful.

Legal & Intellectual Property Dimension of Health & Access to Medicines in India

Trade- Related Aspects of Intellectual Property Rights (TRIPS) Agreement, 1995 established synergy with human rights laws in realization of right to health, access to medicine and sustainable development. The Doha Declaration on Public Health, 2001; Sustainable Development Goals, 2015-2030 and United Nations Secretary- General’s High- Level Panel on Access to Medicines Report, 2016 promote innovation of health technologies in developing countries. It is estimated that 75 per cent of the world’s population is health deficient and medicine starved due to patenting requirement of pharmaceutical industries. India passed Patents (Amendment) Act, 2005 dealing with exclusive marketing right, product patent and process patent to protect the interest of the generic drugs in compliance of TRIPS Agreement, 1995 under public interest. In post Patents (Amendment) Act, 2005 phase India faced formidable challenge of the Swiss drug maker Novartis’ patent application for Gleevec in Madras High Court, 2006; Intellectual Property Appellate Board (IPAB) in 2009 and Supreme Court in 2013. The judicial exuberance struck a balance between patent right, health right and access to medicine in Indian socio-economic context. It is followed by spelling out of the National Intellectual Property Right (IPR) Policy, 2016 focused on enhancing access to healthcare as human right.

India’s TRIPS-Compliant Patent Decade – The Tumultuous Journey in Search of a Pragmatic Equilibrium

During the first decade of India’s TRIPS compliance (2005–2015), the country witnessed numerous patent-related disputes, mostly from the pharmaceutical sector on various issues pertaining to patent protection, enforcement of patent rights and compulsory licensing of granted patents. Even the non-pharmaceutical sector saw an increase in the number of various patent disputes. India, while enacting its three amendments, had tried to leverage the flexibility provided by the TRIPS Agreement to its member states, and to a great extent these amendments have resulted in an increase in patent-related disputes. This paper focuses on the patent disputes which have come up in the last ten years in order to analyse the approach of the Indian Patent Office and other quasi-judicial bodies such as the Intellectual Property Appellate Board and the higher judiciary.

Patents at the Intellectual Property Appellate Board: The First Ten Years

In the first decade of operation, the patent side of the Intellectual Property Appellate Board (IPAB) received a total of 769 cases which included appeals from the Patent Office and revocation petitions filed directly. In our empirical study of all the patent cases before the IPAB, we found that only 207 cases were decided by the IPAB, which includes both appeals and revocation applications. Over 70% of the patent cases filed are either pending in some stage or are yet to be taken up for admission. With an average disposal rate of about 20 patent cases a year, the wisdom of divesting the powers of the High Courts and constituting the patent bench at the IPAB needs to be reconsidered.

The erring trends shaping Indian FRAND case law: towards a new approach

Smiriti Tripathi is a student at the National University of Study and Research in Law, Ranchi. FRAND (fair, reasonable and non-discriminatory) litigation, unlike every other traditional litigation, requires some clarity on the background. It is important to understand what standard essential patents (SEPs) are, how they differ from regular patents or even compulsory licences and why they are so important. And most importantly, it is vital to understand the standing of relevant standard-setting organizations (SSOs), their functioning, policies, approach and their limitations. With a brief review of such concepts, I explain why the determination of royalty rates is a tricky concept in FRAND and that they should be left to technical bodies like the Intellectual Property Appellate Board (IPAB). Then again, there is no written word of law which prohibits the courts from adjudicating upon royalty rates. It is advisable, however, if the same is referred to the technical bodies instead, which becomes more imperative from the Hon’ble Delhi High Court’s act of granting temporary injunction in SEP litigation unlike any other leading court, thus influencing the ongoing negotiation process between the parties. Furthermore the Competition Commission of India is the only anti-trust body which has assumed jurisdiction in a FRAND matter. I have provided a number of recommendations and the approach that should have been followed by the Hon’ble High Court and the Competition Commission of India. With issues like non-disclosure agreements, double dipping, issuance of interim injunctions and rates, it might not be possible to ascertain the direction in which Indian jurisprudence is moving, but one thing is sure: FRAND litigation is under the spotlight!

Analysis of the Disposition of Intellectual Property Cases by the Intellectual Property Appellate Board of India

The establishment of a specialized Board to deal with IP appellate matters was to ease the burden off the shoulders of the various High Courts before which, such appellate matters previously, would lie. The value of intellectual property, unlike tangible property, depreciates with time. Considering the economic significance of intellectual property delay in disposition of cases leads to loss of IP value. The Intellectual Property Appellate Board was established for the speedy disposal of Intellectual property matters. The present study analyses and reviews the performance of the Intellectual Property Appellate Board based on empirical study of the cases between 2003-2011.

Whither the 'six-year rule'? Reconstructing India's law on the presumption of patent validity

Backed by a study of over 1,200 decisions by India's Intellectual Property Appellate Board (IPAB) over the last five and a half years, this article seeks to reconstruct the much maligned ‘six-year rule’, which imputes a presumption of validity to patents in India, even though India's Patents Act appears to prohibit such a presumption. This article first disentangles India's confused judicial history of the presumption of validity and the six-year rule. It then highlights statistical trends from patent revocation proceedings decided by the IPAB and employs these trends in an attempt to recast the six-year rule in a three-phase structure with a graduated presumption of validity in a manner that addresses the needs of patentees and is consistent with Indian statute and precedent.

Person Interested Under Indian Patent Law

According to Section 2(t) of the Indian Patent Act, person interested includes a person engaged in, or in promoting, research in the same field as that to which the invention relates. The definition of person interested is inclusive and thus it was observed in Lord Watson in Dilworth v. Commissioner of Stamps that the word include is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. According to the judgment, the word include is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to mean and include, and in that case it may afford an exhaustive explanation of the meaning which, must invariably be attached to these words or expressions.Person interested has to play wider role under Indian Patent law during post grant opposition and revocation of a patent application where it says that 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 a patent, any person interested may give notice of opposition to the Controller in the prescribed manner on prescribed grounds. Similarly a patent granted may, be revoked on a petition of any person interested by the Appellate Board or on a counter-claim in a suit for infringement of the patent by the High Court on any of the prescribed grounds under Section 64(1).

Ms P Sita: nothing ordinary about her

In 2013 the Intellectual Property Appellate Board (IPAB) issued several decisions, including the one discussed in this note, whereby it sought to raise the standard of non-obviousness of an invention in India by ruling that the legal fictitious person who serves as a reference for determining or evaluating whether an invention involves an inventive step and thus is non-obvious is Ms P Sita (a person skilled in the art, who has more than average knowledge of the state of the art and who also has some common sense). Such person is not at all ordinary and is not the same as Mr PHOSITA (the person having ordinary skill in the art) as referenced by US patent law and who is ordinary by definition.

The Indian Novartis Case: Finding the Right Balance between Access and Innovation

On the 1st of April, 2013, the Indian Supreme Court delivered the much awaited judgment in the appeal filed by Novartis against the refusal of the Indian patent office to grant a patent on its cancer drug, Glivec. The patent office and the Indian Intellectual Property Appellate Board had both decided that Novartis’ patent application failed to meet the requirements of section 3(d) of the Indian Patents Act. Section 3(d) prohibits the grant of patents on new forms of known drugs unless the patent applicant can demonstrate that the new form has ‘enhanced therapeutic efficacy’ over the previously known drug. In its decision, the Indian Supreme Court equally held that Novartis had failed to meet the requirements of section 3(d).

Cross Retaliation under the WTO-DSM

The WTO dispute resolution system provides mechanism for finding out a solution for dispute occurred between the member nations. In respect to the same Dispute Settlement Body (DSB) authorized sanctions to be imposed when a member country is unwilling to comply. However, the retaliation process has some ambiguities and difficulties and also has undesirable economic features. In fact, in the traditional retaliation, trade concessions may cause economic loss to the less powerful member using them. Hence term cross retaliation is invented and the same is used as a weapon against the developed nations to make them comply with the World Trade Organization (WTO) obligations. This chapter discusses in brief the dispute settlement process, traditional retaliation and its drawbacks, the introduction of cross retaliation in the WTO dispute settlement process. The leading cases in which cross retaliation is allowed by the appellate board and use of cross retaliation under the Trade-Related Aspects of Intellectual Property (TRIPS) agreement.

Empirical Analysis of Indian Patent Cases Post-2005

Can we say today that India has woken up to patent protection and patent litigation or do we still have a long way to go? Have our courts become proactive in taking up patent cases and deciding them on merits or are they summarily decided? And in how many cases is there a substantial discussion on the technology and science involved in the patent and how many are decided on procedural matters of the patent law? And many more questions on similar lines arise when we look at the patent cases that come up before courts today and look back at the past decades for comparison. However the bright side of things is that our patent procedural law which has been evolving and can be said to have become a lot more robust than before and at the same time meeting India’s obligations towards TRIPS agreement. The most significant recent amendment to our Indian Patent Act, 1970 has been the 2005 Amendments. In this paper the author has tried to bring out an empirical study of the cases that have been brought before the courts - High Courts, Supreme Court and the Intellectual Property Appellate Board (IPAB) - keeping 2005 as the benchmark owing to the changes brought about by the amendment and in general changes taking place with more awareness of IP rights.

Sowing the Seeds of Change? Patent Policy and Section 3(D) of the Indian Patent Act, 1970

This article makes an attempt to view the interpretation of Section 3(d) by the Intellectual Property Appellate Board (IPAB) in the case of Novartis v. UOI, from a policy perspective. The IPAB rejected the patent application filed by Novartis for Glivec/Gleevec on the grounds that it was a “mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance”, and hence, barred by Section 3(d) of the Patents Act, 1970. The decision of the IPAB was appealed almost immediately before the Hon’ble Supreme Court of India in 2009. However, hearings on the matter in the Supreme Court of India were delayed for a number of reasons and as on date, the matter is being argued before the Supreme Court of India.Having said that the article analyzes the decision from a policy perspective, we should clarify that this article does not deal with the public policy objective of Section 3(d); to the extent that Section 3(d) was intended to curb certain illegitimate patent practices which, among others, have been termed as ‘evergreening’ of patents, this issue has been briefly addressed in our previous articles. Rather, we will consider the practical and policy implications of the manner in which Section 3(d) has been interpreted by the IPAB and how it is likely to be applied in future cases as a result. While there are, of course, a number of issues and questions which are to be decided by the Hon’ble Supreme Court of India, the scope of our policy analysis is limited to the question of the evidentiary basis for the rejection of Novartis’s patent application and its possible implications on how the efficacy requirement may be met in future cases. What, for example, is the standard of proof required to fulfill the efficacy requirement? On whom does the burden of proof lie and at what stage must it be discharged? More importantly, how may the burden of proof be discharged? Most significantly, how would this affect the incentives of applicants to innovate and to patent their innovations? None of these questions have been deliberated, even in passing, in the various decisions by the Madras High Court, the IPAB and the Patent Controller, nor has it been considered in the limited literature that has been generated on the issue of Section 3(d). These are important questions that face the Indian intellectual property regime. Indeed, these questions must be faced, and answered, by any jurisdiction which hopes to attempt to curb the illegitimate ‘evergreening’ of patents whilst also encouraging legitimate incremental innovation in all fields of science and technology. This, therefore, is our attempt at providing answers to some of these questions facing jurisdictions hoping to implement a provision similar in effect to Section 3(d). It must be understood, of course, that none of the answers we hope to provide can be definitive; indeed, we would not wish them to be – controversial questions of policy are not, and should never be, susceptible to rigidly definitive answers. Instead, our attempt is as much to provide answers as it is to provoke thought and stimulate further debate and discussion on these contentious issues. Our self-imposed limitation will not limit the scope of our analysis, since we hope to show that such an analysis of the policy aspects and practical implications of implementing and enforcing a provision such as Section 3(d) is an important one. For one thing, such an analysis will serve to inform decision makers within the Indian legal system, especially the judiciary and the executive, as to how best one might approach the task of interpreting and applying Section 3(d). More importantly, if at all a unique provision such as Section 3(d) is to be considered a successful legislative achievement which ought to be implemented elsewhere, the policy aspects as well as the practical implications (including, but not limited to evidentiary requirements) of Section 3(d) can and should be given due consideration and regard. With the arguments before the Supreme Court already underway, it is important to visit the implications of the impugned IPAB decision and the factors that the Hon’ble Supreme Court of India may take into consideration in deciding the matter.

Implications of Enercon India v. Aloys Wobben for Technology Theft in India?

Abstract On 2December 2010, in the case Enercon India v. Aloys Wobben the Intellectual Property Appellate Board (“IPAB”) at Chennai invalidated 12 of AloysWobben’s patents in India. The case received a lot of criticism in Germany and the IPAB was soon accused of bias and “technology theft”. The case, which is set in the energy sector but could very well be placed in the technology sector, deals with extremely interesting questions regarding intellectual property law and how a foreign company can operate and exit a joint venture with an Indian partner. At the heart of the matter are questions regarding Indian patent law, Indian civil procedure law and how a German company should act as a joint venture partner in India (and what it should not do). This article will initially analyze the decision of the IPAB and why the parties ended up in the legal dispute before the IPAB. Itwill then go on to examinewhether in fact there was a bias involved and will close with a general remark on joint ventures between German and Indian (technology) firms.

Price and prejudice: examining the Glivec glitch

The ground of commercial exploitation as rendered and analysed in the Glivec pre-grant opposition appeal heard at Intellectual Property Appellate Board (IPAB) is explored in this article. The author seeks to understand the rationale behind the applicability of the ground, in view of the legislative intent behind the scheme of the Indian Patents Act, while criticizing the applicability of the provision by the IPAB to the case at hand. The article attempts to revisit the course of proceedings over the years in the Glivec saga, while criticizing the last decision rendered in the appeal to the pre-grant opposition order. In the author's opinion, the applicability of Section 3(b) of the Patents Act, 1970 is inaccurate in the present case, the reasons for which have been elucidated. Exclusions from patentability may form a major ground while contesting a pre-grant opposition. The Glivec application was opposed on several grounds including the subject matter being ‘contrary to public order or morality’, owing to the price of the drug. This article looks at the incorrect applicability of the provision in this case, since the threat of the same acting as a precedent to pre-grant oppositions filed on similar grounds cannot be negated.

INTELLECTUAL PROPERTY Novartis again lose Gleevec patent case in India

India's Intellectual Property Appellate Board has ruled that Novartis' patent on the cancer drug Gleevec is not valid in that country. The decision marks the third time in four years that Novartis has failed in attempts to legally enforce its patent on the drug. Concurring with earlier decisions, the board ruled that Gleevec is nothing but a crystal modification of an older drug that was initially patented in 1993 and therefore does not qualify as a new invention. Under patenting rules that India began implementing in 2005, only drugs invented after 1995 are eligible for patent protection. Novartis says it is “reviewing the decision and will look at the various options available.” Gleevec, a company spokeswoman says, already enjoys patent protection in 40 countries. “We believe the same should be the case in India,” she says. Ever since the legal battle over the Gleevec patent began in India, the case has been more about ...

Citizen Review of the Police

The research presents the summary and analysis of ten-year data (1991-2000) involving the People's Law Enforcement Board (PLEB). It describes the types of police officers and the police departments that had cases before the People's Law Enforcement Board (PLEB). It also examines the types of cases that were handled by these civilian review boards as well as the manner of dispositions of these cases, the number of times its decisions were affirmed, reversed, or modified by an appellate board, and the composition and qualifications of the members of the boards. The data indicate that the propensity of police officers for receiving complaints in the boards may be a function of both rank and assignment. The data also suggest that the PLEB tends to be lenient in its disposition of cases. However, the People's Law Enforcement Board appears to make good quality decisions as indicated by the appellate boards' upholding of PLEB decisions.

Response: What's Good for the Goose Is Good for the Gander

Our case for journal appellate review is straightforward. We characterize the editor as an impartial judge in deciding whether to accept/reject a manuscript. However, the editor is put into the position of self-review if his/her final decision is challenged by an author. We contend that replacing self-review with external review by a journal appellate board will improve the quality of editorial decision-making at reasonable cost. We do not contend that an appellate board is needed to correct the imbalance of power existing between editor and author, as alleged by Stefanou and Brandt (S&B). Although this might be an added benefit, we do not argue it for two reasons. First, to our knowledge, the AAEA does not currently grant authors a constitutional guarantee of due process or fairness in their professional dealings with association journals. The editorial staff can decide to reject manuscripts with little or no process. Second, we agree with S&B that the primary purpose of the editorial staff is quality control-not fairness. We state this in the first sentence of our initial commentary. Agricultural economists, and academicians in general, should be very comfortable with the connection that we draw between external review and

Ruling on Prisoners' Grievances

In this article, the author describes his experience as an active participant on a central review board designed to hear appeals by prisoners front adverse decisions made by local prison grievance and disciplinary boards. The invitation to serve as “citizen member” on this appellate board came to the author as a result of his earlier work on inmate grievance procedures, reported in a previous Journal article. The present article gives a close-up account of the types of inmates and inmate problems encountered while serving on such a board and of the difficult role conflicts that the board members face in trying to make decisions that are both fair and realistic. The article also gives a first-hand impression of the flavor of prison life.