Saturday, June 10, 2017

Interesting Posts on Injunctions in India on SpicyIP

In recent weeks the SpicyIP Blog has published some interesting posts on injunctions in India, most recently one from May 11 by Maitreyee Dixit titled Lighting Up Injunction Jurisprudence:  US v. India and another from May 9 by Professor Shamnad Basheer titled And the US Issues Yet Another Compulsory License!  The latter notes, among other things, the discrepancy between the U.S.'s position regarding other countries' threats to impose compulsory licenses for patented inventions and the U.S. courts' actual practice under eBay--including the Federal Circuit's recent (and in my view, problematic) decision in Nichia v. Everlight (see my post here).  The author adds in a postscript, however, that "while US courts do a fairly decent job of explicating the standards for an injunction and largely adhering to them, Indian courts have made a hotchpotch of these criteria and we’re left with little to no clarity on this," and refers to the (then-forthcoming) Dixit post. Dixit discusses, among other matters, the lack of consistency among the Indian courts on the the meaning of the "public interest" factor--which the judge in the Bayer v. Ajanta decision from earlier this year interpreted as including "‘loss of employment’ and ‘revenue to the state,’" though two other more recent decisions including Bayer v. BDR have not followed this approach--and on the meaning of "prima facie case"   On the Ajanta and BDR matters, Dixit also links to this post and this post by Balaji Subramanian.  On the prima facie case issue, she also cites this post by Rupali Samuel and this paper by Shamnad Basheer, Jay Sanklecha and Prakruthi Gowda, titled Pharmaceutical Patent Enforcement:  A Development Perspective, the abstract to which reads as follows:
Although standards for the grant of intellectual property rights often take center stage in the literature on intellectual property and development, intellectual property enforcement is largely ignored. This paper seeks to fill this gap, albeit to a limited extent, by focusing on the standards for the grant of injunctions in patent infringement suits.
This is particularly relevant, as a number of developing countries, such as India, are faced with burgeoning patent disputes disputes that have enormous implications for the future of innovation and the issue of access to patented goods, notably pharmaceuticals. Given that interim injunctions are largely dispositive of intellectual property disputes in many cases, this chapter focuses largely on such injunctions.
The standards for the grant of injunctions ought to be calibrated in a manner that appropriately balances the interests of the patentee in securing timely and effective enforcement of her rights with the public interest in guarding against erroneous injunctions (i.e. where the patent turns out to be invalid or not infringed after trial). Such wrongly granted injunctions harm not only competitors against whom they are granted, but also consumers who are forced to pay a monopoly price during the subsistence of the injunction/restraining order.
We recommend that, when faced with a complex patent dispute where it is difficult to legitimately assess the strength of each party’s case at the interim stage and effectively predict who is more likely to win at trial, courts move directly to the trial stage - a suggestion that is coming to be increasingly adopted by the Indian Supreme Court. We argue that this is a TRIPS flexibility that developing countries, such as India, can legitimately exploit. We also highlight issues of institutional capacity and ask: Should developing countries such as India institute specialist intellectual property courts to decide patent infringement suits? Would this make for more optimal intellectual property adjudication? Though specific to India, most of the suggestions in this chapter could prove useful for a number of other developing countries, particularly those that follow common law and are yet to experience a significant number of patent infringement cases.
Finally, the post also links to a 2015 SpicyIP series on interim injunctions, here.

Readers also might be interested in this June 5 post by Prashant Reddy titled 143 patent infringement lawsuits between 2005 and 2015: Only 5 judgments.  From my less-than-perfect vantage point, it does seem to me that many of the most important Indian decisions on patent remedies in recent years have been from interim proceedings.  In addition, the blog has published some interesting posts recently on punitive damages for copyright and trademark infringement, here, here, here, and here.  See also my blog post of September 11, 2015.

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