Jun 1, 2014 | General
Mysore Paints and Varnish Limited (MVPL) was founded in 1937 as Mysore Lac & Paints Limited, by Nalvadi Krishnaraja Wodeyar, the Maharaja of Mysore, for manufacturing paints and related products. It is the company that inks every voter’s fingertip in India, and it was converted to a public sector company in 1947. It is listed on the Bangalore Stock Exchange and the Karnataka Government holds 91.39% stake in the company.
MVPL is an integral part of the Indian Democracy and it was primarily established to provide employment opportunities for the people of Mysore with the effective utilization of national resources, like Lac, which was used for manufacturing sealing waxes. The company also manufactured and supplied paint to government departments and the defense departments.
MVPL is the only company authorized to produce indelible ink, which is used in the elections in India, and after its transition to a public sector company in 1947, it is owned and operated by the Government of Karnataka under the chairmanship of the Ex-Mayor of MCC –Mr. Anantha. In 1962, the Election Commission, along with the Law Ministry, National Physical Laboratory and National Research Development Corporation came to an agreement to select and authorize MVPL to manufacture inedible ink.
The inedible ink was used for the first time in the Third General Lok Sabha Elections in India, and since then it has been used in every Parliamentary election, every assembly election and local election. Until 1988, the company only manufactured ink and paint but in 1989 it expanded further and started manufacturing varnish and was renamed as the Mysore Paints & Varnish LTD. MVPL also manufactures and supplies primers, enamels, chemical resistant and decorative paints, industrial coating, distempers, sealing wax, postage stamp cancellation, polishes & thinners.
The Election Commission of India is the major customer of the inedible ink manufactured by MVPL, but the ink is also exported to Malaysia, Thailand, Nigeria, South Africa, Singapore and 25 other countries. MVPL’s inedible ink marker pens have also been used in the elections held in Afghanistan and in the elections held in Cambodia in 2008 & 2012. The sealing wax manufactured by MVPL is used by the Indian Post and by the Election commission to seal ballot boxes.
The inedible ink is produced to meet the needs of the Elections and it is supplied in vials with volumes of 5ml, 7.5, ml, 20ml, 50ml & 80ml. A 5ml vial can be used for about 300 voters and it is estimated that over a period of 45 years more than 300 million people have had this ink applied on their fingers. Initially the ink was provided in glass bottles, but it resulted in heavy losses due to breakage and leaks so, in 1979, the company switched to plastic bottles thereby reducing breakage and leaks from 15% to 1%.
The ink leaves an inedible mark on the fingernail of the voters which remains for nearly 20 days and is not easy to erase, thereby averting electoral fraud by preventing the voter from voting again. Silver Nitrate is one of the known ingredients of the inedible ink and it stains the nail on exposure to ultraviolet light. It cannot be washed off with detergent, soap or even chemicals and the ink last for a few weeks until the nail grows. The ink is photosensitive, so it is stored in amber colored bottles and is guarded against exposure to direct sunlight.
The inedible ink produced for elections is dispatched under strict security measures with the bottles scrutinized thoroughly and sealed in crates. The ink is not available for sale to the public, and it is only sold to those having legal and genuine need for it. Apart from being used in elections, the ink is also used in Pulse Polio campaigns and in hospitals to mark cancer affected areas of the body.
Since 1962, MVPL has been making the inedible ink based on a secret chemical formula devised by the National Physical Laboratory Of India (NPL), and so far the manufacturing process of the ‘Inedible Ink’ has been kept a closely guarded secret. Only two chemists of MVPL know the chemical formula of the ink, and they are required to pass it on to their successors when they retire.
The Inedible Ink is the time-tested gift of NPL, the measurement standard laboratory of India, to the spirit of democracy so the patent of the inedible ink rests with them
It is the duty of MVPL to safeguard and protect the chemical formula and the company has taken strict measures to ensure the safety by installing CCTV cameras, frisking staff and members, password protecting entries to certain areas and banning lunch boxes inside the factory. Additionally, guards seal the factory locks with the sealing wax produced by the factory every evening.
Author: Divesh Kumar, SDM Law College, Mangalore
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Apr 16, 2014 | IPR & Business, Patent
The concept of Drug Exclusivity can be perceived as a period or duration of time when a drug of a particular brand is protected from other generic drugs competition in the market. The conceptualization of Exclusivity was majorly evolved to induce and bring about a balance between new drug production and competition of generic drugs.
Initially, the concept of “exclusivity” was attributed to the protection of undisclosed data, and information that have highly commercialised value that needs to be protected in accordance with the TRIPS Agreement. Under the common law, these types of date have been protected as Trade Secrets.
Therefore, Data Exclusivity can be perceived as a transformational notion of protecting data by not disclosing the data to the general public which essentially is the protection of data in the form of trade secrets and the basis of principles such as equity and good faith. In addition, the invention whose information is kept protected must confine itself to the essentialities of a patent that is- the invention must be new, should be an inventive step and must be capable of being industrially applied.
Therefore, in specific pertinence to drugs, there arises a need to gauge and assess the existing conditions in the developing countries wherein a generic drug manufacturer might develop drugs at prices that are cheaper by manufacturing a biologically equivalent drug that is similar to the innovator company.
The concept of exclusivity acts as a conflict between the inventing company that has already availed protection under the existing patent laws and that of the public interest.
Extension of Data Exclusivity to Drugs
In India, the Indian Pharmaceutical Alliance was brought notice about a rule change that was proposed by the Central Government to provide a longer duration of protection to drugs that are newly manufactured which would bring about an impact of generic and low cost medicines for the public in India.
This change was suggested in lieu of the United States Trade Representative (USTR), which falls under the United States government that is responsible for the enforcement of intellectual property from the US around the world. The proposed change by the central government was to increase the exclusivity period from the existing four years to that of ten years.
Data Exclusivity in essence includes the exclusion of registration data, and can be established as the period of not disclosing the chemical compositions, pharmaceutical compositions and any other form of agrochemical registration or test data. This is an individual intellectual property right and cannot be included under the protection that is provided by the other rights like the patents.
For Drugs, there are many clinical trials and tests that are conducted, the results of which cannot be disclosed as it is a resultant scientific discovery and the innovating company has invested expenses as well as time. A simple molecular discovery and development generally takes about a decade and is seen to be expending millions of dollars. Within this, the generation of test results takes 50% of the cost. Therefore, the data when publically disclosed might be taken advantage of by third parties.
Data and Drug exclusivity provide the innovating company with the right to secrecy and prevents third parties from utilising the data to obtain any marketing authorization for duration of time. But this right does not prevent any third parties from producing their own data.
Subsequent manufacturers could apply for their formulations and discoveries, but they have to get it sanctioned by the innovating company and prove the equivalence of the product with that of international standards. Otherwise, by simply making reference to the originator’s submitted information, they get an unnecessary benefit, as they have not played out any of the costly and tedious tests or presented any information to show the security and viability of their item. Therefore this process helps in securing and making sure that-
- The innovating company obtains exclusivity of the drugs for a specified period which would enable the company to recover the costs that would be incurred while obtaining approvals.
- The regulatory authority is not supposed to check the innovating company’s data, without the consent, while reviewing applications put forth by the subsequent manufacturers.
The subsequent generic manufacturers could apply for marketing sanctions if they are in a position to generate their own test results.
Without a drug data exclusivity period, subsequent registrants can bring identical items into the market solely based on bioequivalence tests without leading tedious and costly preliminary tests that are needed to show the effectiveness of the discovery. This would bring about extreme detriment to the innovating company, having made significant speculation and investments to their discoveries.
An Anatomization of Drug Data Exclusivity: A Global Frame of Reference
Data protection of drugs came into effect and gathered international limelight when the issue of unfair competition was undertaken in the Paris Convention and importance was attributed to undisclosed information. The Agreement on Trade-Related Aspects of Intellectual Property Rights, 1994 also advocates the exclusivity of information under Article 39(3).
Accordingly, the concept of drug exclusivity provides that there exists a predefined period where no subsequent manufacturer could demonstrate bioequivalence and stay away from a tests for adequacy, safety and different properties. A trade off is struck where the innovating company is permitted a specific timeframe to recover the costs engaged with the testing in; and the public premium objective of benefiting protected and proficient items in the commercial center, while empowering subsequent participant items to enter the market yet after a characterized period. The subsequent participant may not be permitted during this period to be absolutely or to some extent excluded from recording unique testing information by demonstrating bio-equality. This is a commitment of non-dependence, both by the authorities and that of the third parties.
A Reference to Indian Legal Framework
There has been immense tension on India from the nations like the US and the EU, as international embargoes on the issue of drug data exclusivity, obviously on the grounds that the vast majority of the drug monsters have a place with these nations.
As per The Official Secrets Act, 1923- has been enacted that binds the public servants and government official from using any information that is deemed to be confidential in an unauthorised manner which would ultimately affect the security, integrity and sovereignty of the country. An oppressed party might sue the Government in a Civil Court. Nonetheless, the extent of this enactment is exceptionally restricted as it doesn’t guarantee data protection, however is restricted to security against divulgence of the information which is just one of the components of information protection. There is no arrangement to address against unfair competition brought about by outsider to unlawfully depend on the innovative company’s exclusive information. Albeit, this resolution accurately concedes an oppressed party the option to guarantee harms in a common suit and get damages, it doesn’t proactively guarantee insurance against out of line business utilization of the information. Consequently, the Official Secrets Act, 1923 doesn’t guarantee information security according to TRIPS Article 39.3 principles.
Trade secret protection is a solution to forestall the revelation of information, yet it is a private cure that is untested against administrative experts in India. Moreover, regardless of whether such an apparatus might be utilized to limit the abuse of test information, it again doesn’t keep the regulatory authorities from depending on it themselves to allow endorsements to subsequent manufacturers.
The Indian Patents Act, 1970 is another significant enactment. In any case, the Patent Act is appropriate just to patentable developments and doesn’t secure new utilization of a known substance or definitions by blends. Further, patent security stretches out just to the creation yet not to the information produced by the originator.
Conclusion
The methodology suggested for drugs and pharmaceuticals includes a momentary period for which initial steps will be taken to carry out the process of minimum data protection for example to work on the protection information the board in the Drug Regulatory Authorities and to forestall unapproved revelation of information. This period will can be trailed by a post transition period which will involve a duration of 5 years in which the Drug Regulatory Authority would not depend on the information put together by the innovating company while giving second and ensuing marketing approvals.
Author: Haritha Dhinakaran, Symbiosis Law School, Pune
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Mar 19, 2014 | Exclusive Interview
Dr. Gautam has got many prestigious awards and fellowships. Presently, he is the Vice President of National Academy of Agricultural Sciences and Member of Executive Board of Global Crop Diversity Trust and Vice Chairman of Trust for Advancement of Agricultural Sciences
Below are his expert opinions on the issues of Plant Variety Protection, Farmer’s right and Government’s measures to National Biodiversity.
Origiin: Hello Dr Gautam. It is pleasure to have opportunity to interact with you.
Dr Gautam: Hello Sabina. At the outset, my New Year greetings to you and the Origiin.
It is nice to interact with you and through you the readers of Origiin.
Origiin: As you know that India has not been very aggressive regarding protection and enforcement of Intellectual Property Rights so far resulting in patents on our traditional knowledge by foreign companies. What has been sole reason for it?
Dr Gautam: In 1992, Convention on Biological Diversity acknowledged the sovereign rights of the nation on their biological resources and prior to this Convention, the bio-resources and associated traditional knowledge were regarded as common heritage of humankind. The Article 8(j) of the Convention further recognized the contribution of communities and indigenous local people in the conservation and preservation of biological resources and fair and equitable share in the benefits arising out of utilization of such knowledge. The Agreement on Trade related of Intellectual Property Rights (TRIPS) an international agreement administration by the World Trade Organization (WTO) laid down standards for many forms of intellectual property (IP) regulations. The TRIPS mandated the member countries to enforce minimum standards of IP protection for a wide range of intellectual properties. It’s Article 27.3 provided that member countries may exclude from patentability plants and animals other than micro-organism and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, members shall provide for the protection of plants varieties by patents or by an effective sui generis system and by combination thereof. Therefore, countries were free to choose their own effective sui generis regime for the protection of plant varieties. India being one of the members of the CBD, ITPGRFA and WTO, enacted Protection of Plant Varieties and Farmers Rights Act 2001 and Biological Diversity Act 2002. In addition, India amended Indian Patents Act 1970(amendments in 1999, 2002 and 2005) and enacted Geographical Indications of Goods (Registration & Protection,) Act 1999 and Trademarks Act 1999, and its amendment 2010.
The People’s Biodiversity Registers (PBRs) are being documented by the BMCs under the Biological Diversity Act, 2002 of India. So far, 1915 PBRs have been documented by different states. These registers include comprehensive codified and oral information about traditional knowledge associated with bio-resources and may help provide protection from patenting and their illegal exploitation. The Indian Council of Agricultural Research has initiated massive programmes for the registration of bio-resources of plants, animals, fish, microbes, insects etc.
Under the PPV & FR Act, 2001, the farmer’s varieties are being registered. So far, farmers and breeders varieties of 54 crop species have been registered. The PPV & FR authority is also developing compendia for documentation, indexing and cataloguing of all varieties including farmers’ varieties. It has identified 22 agrobiodiversity hotspots for focused attention on conservation and sustainable use of agrobiodiversity. It is also maintaining databases of NORV (Notified and Released Varieties of India) and IINDUS ( Indian Information System as per DUS guidelines-a database for released ,example and reference varieties of all notified crops).
Traditional knowledge has always been an easily accessible treasure and thus has been susceptible to misappropriation and bio-prospecting. It is often misappropriated, because it is conveniently assumed that being in public domain, communities have given up all claims over it. Traditional Knowledge includes both the codified (documented) as well as non-codified information. Bio-piracy of codified Indian traditional knowledge continues, since, this information exists in regional languages. The reliability of the traditional medicine systems coupled with the absence of such information with patent offices, provides an easy opportunity for business houses for getting patents on formulations derived from traditional medicine systems. The grant of such patents has been matter of great concern to the developing world. Patent literature, is usually wholly contained in several distinctive databases and can be more easily searched and retrieved whereas it is not so with non-patent literature prior art. Thanks to the efforts of CSIR and AYUSH, TKDL targeted Indian Systems of Medicine, viz., Ayurveda, Unani, Siddha and Yoga available in public domain. This has been documented collating the information on traditional knowledge from Sanskrit, Urdu, Arabic, Persian and Tamil in digitized format, which is available in five international languages – English, German, Spanish, French and Japanese. TKDL acts as a bridge between formulations existing in local languages and a Patent Examiner at a global level, since the database provides information on modern as well as local names in a language and format understandable to Patent Examiners. Today, India through TKDL is capable of protecting about 2.5 lakh medicinal formulations. TKDL access has been given to eight International Patent Offices viz. Indian, European, German, United Kingdom, United States , Canadian, Australian and Japanese Patent Offices under Access (non-disclosure) Agreement. Based on the evidences of prior art submitted by the TKDL team on the basis of the information present in the TKDL database, so far 88 patent applications of the pharma companies of United States, Great Britain, Spain, Italy, China, etc. have been either set aside or withdrawn/cancelled or declared as dead patent applications at no cost and within few weeks of submission of prior art evidences, whereas cancellations of patents have been known to take 4-13 years of complex and expansive legal battle. Considering the novelty, utility and its effectiveness in preventing the grant of wrong patents several countries and organizations have expressed their keenness in replicating the TKDL model for their own countries.
Although, India started these initiatives after the above mentioned global developments, good progress has been made thanks to the aggressive steps in protecting IPRs including the traditional knowledge.
Origiin: India is one of the few countries in the world to have exclusive legislation for Protection of Plant Varieties and Farmers’ Rights, which is extremely encouraging. How does it actually benefit the farmers?
Dr Gautam: Yes, India is one of the pioneers in enacting the legislation providing rights to breeders, researchers, communities and farmers under the PPV& FR Act .The Act recognizes farmer as cultivator, conserver and breeder. The Act provides the following rights to the farmers:
- Right on seed to save, use, sow, re-sow, exchange, share or sell their farm produce including seed of protected varieties(except branded seed of protected variety under the Act) as were entitled before coming into force of the Act (Sec. 39(1)(iv)).
- Right to register existing farmer varieties fulfilling the laid out requirements (Sec.39 (1) (iii)).
- Right for award, reward and recognition from National Gene Fund (Sec. 39(i)(iii)& Sec.45(2)(C)).
- Right for compensation in case of non performance of the variety as claimed by the breeder of protected/ registered variety (Sec. 39(2)).
- Right for protection against innocent infringements (Sec. 42)
- Exemption from registration fee for registration of framer’s variety and any fee for legal proceedings related to infringement or other causes in courts, tribunal etc. (Sec.44)
- Right for access to quality seeds of protected varieties at reasonable price(Sec. 47)
- Right for benefit sharing, if genetic material conserved by tribal or rural families is used by a breeder in the development of a protected variety (Sec.26)
- Prior authorization in respect of use of farmer’s variety by the breeder for commercialization of essentially derived variety (Sec.34(c))
Origiin: In terms of biodiversity, India is one of the richest countries in the world. Unfortunately this has also led to exploitation of the same resulting in extinction of many plant varieties. In this scenario, how does implication of PPV&FR Act helps?
Dr Gautam: India is one of the mega diverse countries. There is global interdependence on plant genetic resources and hence access to such resources has to be facilitated, on mutually agreed terms and prior informed consent, by the countries as per commitments of CBD and ITPGRFA. Due to the extensive monoculture of crops, climate change, land and habitat destruction,and alien species, there had been erosion of traditional crop varieties. However, India has long history of systematic programmes for exploration, collection,characterization and conservation of germplasm. Resultantly, nearly 4 lakh germplasm of 1586 crops has been conserved under the umbrella of NBPGR/ ICAR.
The PPV & FR Act provides for protection of farmer and breeder varieties and their seeds are maintained in the gene bank of the Authority. This seed may be used for initial multiplication of a variety, in the event of invoking compulsory licensing by the government. In normal course, the seed is to be transferred to National Gene Bank of NBPGR after the period of protection of a particular variety is over. Hence, the legislation is becoming an effective instrument for protection and conservation of the farmers varieties.
Origiin: Under Protection of Plant Varieties and Farmers’ Rights Act, there are various Awards, Rewards & Recognitions for the farmers. Please tell us briefly about it.
Dr Gautam: The Act provides for establishment of National Gene Fund. Its Section 70(2) specifies that the gene fund shall be applied to support and reward farmers, community of farmers, particularly the tribal and rural communities engaged in conservation, improvement of genetic resources in areas identified as agro- bio diversity hot spots. It is also used for capacity building on ex-situ conservation at the level of local body, and supporting in-situ conservation, particularly in identified agro- bio diversity hot spots. The PPV & FR authority has instituted the following awards from National Gene Fund to encourage and recognize the self less services of the rural folks in ensuring the continuous availability of biodiversity for plant breeding purposes:
- Plant genome savior community awards (5 per year) of Rs. 10 lac each
- Plant genome savior farmer rewards (10 per year)of Rs. 1 lac each
- Plant genome savior farmer recognitions (20 per year) to the farmers engaged in the conservation of the genetic resources of land acres and wild relatives of economics plants and their improvement through selection and preservation.
Origiin: What is difference between Seed Act 1966 and Plant Varieties and Farmers’ Rights Act 2001?
Dr Gautam: Until 1966 there was no central legislation on seeds. With the advent of high yielding varieties in food crops in 1960s, India realized the need for a seed law so as to create a climate for making available good quality seeds to the farmers. This lead to enactment of the Seeds Act, 1966 which was implemented in its entirety in October 1969.This Act and its rules were amended in 1972, 1973, 1974 and 1981. The enforcement of the provisions of Seeds Act in 1969 marked the beginning of systematic arrangements for large scale seed certification. Seeds Act, 1966 and its rules 1968 provide certification and minimum quality standards of notified kinds/ varieties. Hence, it provides for regulating the quality of certain seeds ( of notified and truthfully labeled varieties) for sale to the farmers . Hence, Seeds Act, 1966, Seeds Rules 1968 with Seeds (Control Order) 1983 are the legal instruments for regulating the production, distribution and the quality of certain seeds for sale and for matters connected therewith. The PPV&FR Act, 2001 grants the proprietary ownership of the variety to the concerned plant breeder or farmer. Intellectual Property Rights are the private rights which confer to the legitimate owners exclusive rights to produce sell, market, distribute, import or export the variety registered under the PPV & FR Act. The PPV &FR Act provides for the establishment of an effective sui-generis system for protection of plant varieties, the rights of farmers and plant breeders and to encourage the development of new varieties of plants. India being member of WTO and signatory to the TRIPS enacted this Act. The Act is unique in the world as it has granted right to both breeders and farmers simultaneously under one Act. It has taken the farmers rights concept forward and genuinely addressed the concern of the farmers as breeders, innovators, cultivators, conservers etc. It has incorporated the features of UPOV, CBD, TRIPS and ITPGRFA along with certain distinctive features of its own as per requirements of the farmers. Its main objectives are:
- To provide an effective system for protection(in terms of IPRs) of plant varieties and rights of farmers and plant breeders
- To recognize and protect rights of farmers in respect of contribution made at any time in conserving, improving and make available PGRs for development of new varieties.
- To accelerate agricultural development in country, protect PBRs and stimulate investment in R&D in public/ private sectors for varietal development.
- To facilitate growth of seed industry to ensure availability of high quality seeds and planting materials to the farmers.
Origiin: What is National Gene Fund and how can farmers make use of it?
Dr Gautam: Section 45 of the PPV& FR Act provides for establishment of National Gene Fund by the central government. The fund has been constituted by the Central Government to promote, recognize and reward those farmers who are engaged in the conservation of genetic resources of land races and wild relatives of economic plants and their improvement through selection and preservation in the agro-biodiversity hot-spots and also to a farmer who is engaged in conservation of genetic resources of landraces and wild relatives of economic plants and their improvement through selection and preservation provided material so selected and preserved has been used as donor of genes in varieties registered under the Act. This fund would be augmented through benefit sharing received from varieties registered under the Act, annual fee payable to the Authority as royalty by the breeders of registered varieties, compensation deposited in gene fund under section 41(4), contribution from any national and international organizations and other sources. The Fund shall be applied for the following purposes:
- Paying benefit sharing under section 26 (5)
- Compensation payable under section 41(3)
- Expenditure for supporting conservation and sustainable use of genetic resources including in-situ and ex-situ collections and for strengthening capability of the panchayat in carrying out such conservation and sustainable use and the expenditure of the scheme relating to benefit sharing under section 46 of the Act. In this respect, there could be linkages between the provisions of this Act and the Biodiversity Management Committees established at the Panchayat/Local Body level under the Biodiversity Act.
- The central government may frame one or more schemes on the items indicated therein, to fulfill the purpose of section 41 and 45 of the Act
- Supporting, recognizing and rewarding the farmers, community of farmers, particularly the tribal and rural communities engaged in conservation, improvement and preservation of genetic resources of economic plants and their wild relatives particularly in identified agro bio-diversity hot spots.
Origiin: Thank you so much Dr Gautam for your valuable inputs.
Dr Gautam: Thank you Saikia. I trust and believe the information will be useful to the readers and the stakeholders.
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Oct 13, 2013 | IPR & Business
In 1877, Dr. Kellogg created a mixture of flour, oats, and cornmeal, which he baked twice and broke into small pieces to serve after a patient broke her tooth on a biscuit version of the mix. In his opinion, baking whole grains at high temperatures would produce the simple sugar dextrose, which would make them more easily digestible. John Kellogg baked a wheat dough for the first time at extremely high temperatures to break down the starch in the grain into the simple sugar dextrose. He called this process dextrinization. For years, Dr. Kellogg and Will worked together to create dextrinized flaked cereals – first with wheat, then with corn. At first, the cereals were ready to eat without sugar or milk. While W. K. Kellogg was a pioneer in the mass marketing of the cereal to the public, he also noticed the potential benefits of mixing the cereal with milk.
The first cyanoacrylates were discovered in 1942 when a team of scientists at the B.F. Goodrich Company, led by Harry Coover Jr, were making clear plastic gun sights during World War II. They developed a formulation for cyanoacrylates but rejected it for use in gun sights because it was too sticky.
At Eastman Kodak, Coover and a colleague (Fred Joyner) discovered that cyanoacrylate had commercial potential in 1951. After testing hundreds of compounds, Dr. Coover and his colleague Fred Joyner found that the lenses were not detachable when they spread the 910th compound, cyanoacrylate, between two lenses. They developed the formula for sale as an adhesive, which was first sold as “Eastman #910” in 1958.
Percy Spencer was an engineer at Raytheon in 1945, when he noticed that a candy bar in his pocket began to melt while he was working near the magnetrons that created microwaves. Spencer later patented the invention together with Raytheon. Spencer built the first microwave after two years and launched it for commercial use after two years. He was inducted into the National Inventors Hall of Fame in 1999.
Wilson Greatbatch designed the first practical implantable pacemaker working as an assistant professor of electrical engineering at the University of Buffalo. While constructing a heart rhythm recording device, he used the wrong-sized resistor and created the first practical implantable pacemaker. The oscillator required a 10 KΩ resistor, but Greatbatch misread the color coding and got a 1 MΩ resistor instead. The new circuit produced intermittent electrical pulses, rather than continuous pulses, and Greatbatch immediately realized the device could drive a human heart. Veterans Administration hospital doctors demonstrated that this two cubic inch device could control a dog’s heartbeat on May 7, 1958.
Sir Alexander Fleming, a Scottish bacteriologist at St. Mary’s Hospital, introduced penicillin to cure bacterial infections. According to a legend, Dr. Fleming noticed that a mould called “Penicillium notatum” had contaminated his Petri dishes after returning from a summer vacation on September 3, 1928. The story is only partly true, however.
Fleming did notice a mould growing in a petri dish that prevented the growth of bacteria, however, it was not immediately apparent to him that the mould was useful. This is because he didn’t know precisely why bacteria weren’t growing. It took around 14 years – and the effort of many researchers – to isolate the active agent that prevented bacteria from growing – penicillium – and to make enough to use.
Albert Alexander was a policeman with an uncontrollable bacterial infection after being scratched by a rose. He was the first person treated with penicillin in 1941. Despite a dramatic response to penicillin, he relapsed ten days later.
Alfred Nobel, a Swedish chemist and engineer, dedicated his life to the study of explosives. He attempted to stabilize nitroglycerin, a highly unstable and explosive chemical. To make nitroglycerine easier to handle, Nobel realized it must be absorbed by some kind of porous material. A type of porous, absorbent sand or diatomaceous earth was found nearby the place he was staying in Germany. In the “Kieselguhr”, nitroglycerine forms a stable paste that can be safely kneaded, shaped, transported and even ignited without triggering an explosion.
In 1867, he patented his product. Dynamite was soon used in blasting tunnels, cutting canals, building railways and roads, and also in warfare. Nobel established the Nobel Prize in his will in November 1895 to promote world peace.
Undoubtedly, the discovery of the X-ray was a breakthrough in medicine. Wilhelm Conrad Röntgen deserves credit for the discovery. He noticed a glow coming from a nearby chemically coated screen while testing whether cathode rays could pass through glass.
He discovered that the mysterious light would pass through most substances, but leave shadows of solid objects. Since he did not know what the rays were, he called them “X-rays”.
The discovery of X-rays by Roentgen enabled him to see the bones and tissues beneath human tissue. In 1897, doctors used X-rays to detect bullets and broken bones inside patients during the Balkan war.
Chemist Roy J. Plunkett was involved in the research of Freon refrigerants. Tetrafluoroethylene gas (TFE) was produced by Plunkett and stored in small cylinders at dry-ice temperatures before being chlorinated. He discovered that a frozen canister had spontaneously polymerized into a white, waxy solid to form polytetrafluoroethylene (PTFE).
Plunkett was fascinated by the mysterious chemical and began categorizing its properties. He realized the TFE had polymerized to produce this substance – later named Teflon. DuPont assigned other teams to investigate the substance, and Plunkett was transferred to DuPont’s tetraethyl lead division, which made the additive which was used to increase gasoline octane for many years.
Frank Epperson, a 11 year-old boy, mixed soda powder and water with a wooden stirrer one night in 1905. The California native left the glass outside in the cold overnight. In the morning, he noticed that the soda mixture was frozen solid.
He removed the ice pop from the class by running the glass under hot water and using the stick as a handle. When Frank came up with this great idea, he named the treats “Epsicles” and started selling them around town.
“Popsicle” is actually a brand name, but frozen juice on a stick is known by different names around the world. It’s called a popsicle in the USA, but an ice lolly in England, icy poles in New Zealand and freeze pop in Ireland.
Arms manufacture increased dramatically in the UK in the years immediately before the First World War, but practical difficulties were encountered due to erosion (excessive wear) of the inner surfaces of gun barrels. Brearley began researching new steels that could better resist erosion (rather than corrosion which was a common misconception) caused by high temperatures. As chromium was known to raise steel’s melting point, he began to examine what would happen if chromium was added to steel.
A 20th-century arms manufacturer hired metallurgist Harry Bearly to create rust-resistant gun barrels. On the side, he conducted a few experiments of his own. After the metal held up against corrosives such as lemon juice, he saw the potential for food-grade silverware and the elimination of the nightly routine of washing, polishing and putting away silverware. However, stainless steel appliances were still a bit out of his league.
Henri Becquerel and Mother Nature are both to be commended for this success. In 1896, the chemist was trying to make fluorescent materials produce X-rays through sunlight. There was a week of clouds and overcast, so he left the supplies in his drawer. He opened the drawer and found the uranium rock he was using imprinted on a nearby photographic plate- all without any exposure to light.
Cathode ray fluorescence was the focus of Becquerel’s research. There were some uranium salts next to the photographic plates by chance. Despite being protected from sunlight, the plates appeared to be exposed later on. A photographic plate marked by uranium salts was found emitting a ‘penetrating radiation’. This radiation was proved to be new and not X-ray radiation as per further studies.
- POTATO CHIPS AND FRENCH FRIES
During the summer of 1853, a customer at Moon’s Lake House in Saratoga Springs, New York, ordered French fries. As a chef at that hotel, Crum served his standard thick-cut French fries to his customers with a fork. However, the customer complained that they were extremely thick and soggy. The ‘Gordon Ramsay’ of his day, George Crum was easily angered but resourceful. He made another batch of thinner French Fries to satisfy the customer, but he again complained that they were too thick and refused them. After becoming frustrated with his annoying customer, this time he decided to teach him a lesson and made another batch, cutting the potatoes thin so that they were difficult to eat with a fork and heavily salting them. He was surprised when the customer loved them and asked for more, as did other diners. As a result of a complaint from an annoying customer and an act of mischief by George Crum, the invention “Potato Chip” was born. Moon’s Lake House served potato chips called “Saratoga Chips”.
Even though you should always wash your hands before eating, there are instances where a bathroom break would change history. If chemist Constantin Fahlberg had washed his hands before dinner in 1879, it would have removed all the coal tar from his skin. He would not have tasted how sweet his food was due to the saccharin in the tar. (This is the exception, though- please exercise good health and grooming habits.)
Sugar substitutes – such as high-intensity sweeteners – have many times the sweetness of sucrose, common table sugar. Therefore, much less sweetener is required, and the energy contribution is often negligible. These compounds cause a different sweet sensation than sucrose (the sweetness profile), so they are often used in complex mixtures to achieve the most intense sweetness.
A bulking agent may be needed if sucrose (or other sugar) has contributed to the texture of the product. Soft drinks or sweet teas labelled as “diet” or “light” often contain artificial sweeteners and often have an unusual “mouthfeel”, or table sugar replacements containing maltodextrins and an intense sweetener to achieve a pleasing texture.
Richard James, a naval mechanical engineer stationed at the William Cramp & Sons shipyards in Philadelphia, developed springs that could stabilize sensitive instruments aboard ships during rough seas in 1946. During World War II, Richard James tried using springs to keep sensitive instruments steady. But when he dropped one of the springs, it landed upright and recoiled on its own – much to James’ amusement. During the next year or so, James experimented with different types of steel wire, and eventually discovered one that would “walk” on its own. His wife, Betty, was hesitant to admit its potential, but after the toy was fine-tuned and neighbourhood children expressed excitement about it, she changed her mind. The toy was dubbed Slinky (meaning “sleek and graceful”) after she found the word in a dictionary and decided that it aptly described the sound of a metal spring expanding and collapsing.
Pemberton, a Civil War veteran who achieved the rank of Lieutenant Colonel, suffered a sabre wound to his chest at the Battle of Columbus in April 1865 and soon became addicted to morphine. Chemist Pemberton tried several opium-free alternative painkillers and experimented with coca and cola wines until he discovered a recipe containing extracts of cola nuts and damiana that had a taste which was not heard of before.
Using flowery rhetoric, he described his new invention as a “valuable brain tonic” that would cure headaches, relieve exhaustion and calm nerves. As a medicine, he called it “delicious, refreshing, pure joy, exhilarating and invigorating”. He named his accidental product “Pemberton’s French Wine Coca”.
Pemberton’s product became an instant success, but due to growing public concern over an alcohol addiction, he changed the recipe to make it non-alcoholic and blended the base syrup with carbonated water, which was also an accident.
Incorporating the names Coca and Cola into the composition of this new beverage, he called it “Coca-Cola”. Another factor for its global success was the fact that General Eisenhower ordered millions of Coca-Cola bottles for American soldiers fighting the Germans in North Africa during the 2nd World War. 200 years after Coca-Cola had last been marketed as a medicinal product, there is some empirical evidence from researchers and doctors that it has some inherent health benefits.
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Aug 29, 2013 | General
Businesses usually register their trademarks in order to protect their brands and to prevent third parties from taking advantage of the goodwill and reputation they have built in the economy. They register their trademarks all over the world and proactively seek to prevent any infringement by taking quick legal action against infringers. There are some landmark cases with respect to trademark infringement in India which clearly show how registration protects the company and prevents loss.
- Starbucks Corporation v. Sardar Buksh Coffee & Co
Starbucks is an American multinational chain of coffeehouses, established in 1971. It is headquartered in Seattle and is currently the largest chain of coffeehouses in the world.
In India, Starbucks is known as Tata Starbucks Private Limited and branded as Starbucks “A Tata Alliance”. It is a 50:50 joint venture between Starbucks Corporation and Tata Consumer Products. In 2001, Starbucks registered their trademark- the name STARBUCKS along with their world-famous logo of the long-haired crowned maiden.
In 2015, a small local vendor started small coffee chain in Delhi with the name SardarBuksh Coffee & Co. Using this name, the business grew in size and popularity and soon was converted into a private limited under the name SardarBuksh Private Limited. Not only did their name sound similar to that of Starbucks but their logo also resembled the coffee giant’s.
Starbucks sued the chain in the Delhi High Court under the grounds of “Duplicitous word mark and logo” and deceptively similar analogy (derived from Section 2(1)(h) read in Section 11 of Trademarks Act 1999) . The court took into account that the products offered by the two companies are similar. In the event that the offerings are different, then having a similar or near identical name does not constitute an infringement.
The Defendant agreed to change their name within 2 months and their new name is Sardardji Bakhsh Coffee & Co. They added the condition that no other business can use the word Bakhsh and they reserve the right to sue if used. The logo has not been changed.
This is not the first time Starbucks has filed suits for the infringement of their trademark. Restaurants and coffee shops in Texas, Oregon and even in Canada have been at the receiving end of notices and suits for infringement from the multinational giant.
A small café in Pakistan known as Sattar Buksh also received notice of IP violations. Fortunately they were not taken to court as they contested that their name has been in existence for over 500 years. Unlike Sardarji Bakhsh, they did change their logo to avoid yet another potential legal battle.
- The Coca-Cola company v. Bisleri International Pvt Ltd
The Coca- Cola company is an American multinational beverage corporation established
In 1892. It is headquartered in Atlanta and is famous for the sugary drink Coca-Cola. The Coca-Cola company is engaged in the manufacture, production, retail and marketing of alcoholic as well as non-alcoholic beverages, syrups and concentrates. It is the largest
Coca Cola purchased and acquired the intellectual property and formulation rights as the goodwill of Maaza from the Indian beverage company Bisleri International Private Limited. The two companies signed a deed containing the following chief clauses:
- Goodwill acquisition
- IPR transfer
- No-use, no-compete clause
- Relinquishment and compensation of the rights to franchise
In 2008 Bisleri filed an application to register the trademark Maaza in Turkey and subsequently began export under the same trademark. They were under the impression that the agreement signed was related only for any transactions or use in India and was not to be considered in case of any exports. Coca-Cola soon filed a suit for trademark infringement in the Delhi High court once they became aware of the situation.
Three issues were raised in the court:
- Is there any infringement of the Trademark or passing off?
- Does Delhi High Court have jurisdiction over the matter?
- Does the Plaintiff is entitled to get a permanent injunction?
The Plaintiffs argued the trademark Maaza was assigned to Coca-Cola. Thus, any manufacture, whether within India or for export using the trademark will account to infringement. The Defendants argued that the product was sold in Turkey and not in India and thus there is no infringement of rights. They further added that the trademark was registered by them worldwide and they could use and sell the product using the trademark anywhere in the world except India.
On considering the facts and issues in the case, the court was of the opinion that any delivery of goods from one’s own country to another (exports) will constitute a transfer by sale within the country of origin of the goods exported itself. If any trademark is infringed in the process, it will be considered as infringement. The court ordered an interim injunction against the Defendant that would prevent them from using the trademark Maaza in India or abroad. It also answered the issue with regard to jurisdiction: since the Defendant is a manufacturer from India, the Delhi High court can entertain this case.
- Yahoo! Inc. v. Akash Arora & Anr
Yahoo! Inc is an American web service provider and search engine. It was established in 1994 and provides a range of services such as Yahoo mail, news, sports, finance and even an advertising platform. The Defendant in this case, Akash Arora, started providing his own web-based services which were similar to Yahoo!’s while also using a trademark that phonetically resembled theirs. This case is considered as a landmark case of cybersquatting in India.
The Plaintiff, Yahoo! Inc, has registered the trademarks Yahoo as well as Yahoo.com since 1995 and have an established reputation and goodwill associated with the same. The trademark was registered in 69 countries but was not registered in India. The Defendant offered services under the name Yahoo India and also applied for registration of this trademark which was approved.
Yahoo! Inc sued Akash Arora for deceptively employing a trademark that was almost identical to their own as well as offering nearly identical services as theirs. They sought a permanent injunction against the Defendant.
The issue of the case being:
- Whether a website or domain name is eligible for protection under the ambit of intellectual property rights
- Where the Defendant’s act of carrying out near identical services and registering the domain Yahoo India can be considered as an infringement of the trademark of the Plaintiff.
While the Defendant put forth very logical and reasonable arguments, the Delhi High court felt that Akash Arora was trying to take advantage of the high reputation and goodwill of Yahoo! Inc by making use of an identical name and providing the same services. The court was of the opinion that using near identical domain names might fool the users into believing that both are the same source. Akash Arora was held responsible for passing off and an injunction was passed restraining from further and future use of any such deceptive and similar marks.
- Zara Fashion v. Zara Food
Zara is a Spanish apparel retailer established in 1975 in Spain. It specialises in fast fashion and is famous globally. Zara is currently part of the Inditex group (the largest apparel retailer in the world).
In 2013, the global retailer (Plaintiff) sued a Chennai based restaurant (Defendant) for infringing their trademark. The restaurant was named Zara Tapas Bar.
The Plaintiffs argued that ZARA was a trademark which was registered by them in more than 85 countries and was a very well established and reputed brand. They have had a presence in India since 1986 (when it started its assembling operations) even though their first store opened only in 2010. In 2003, the Defendant opened their restaurant with the name Zara Tapas Bar. Two years later, the Plaintiff became aware of the Defendant’s intention to register the mark Zara Tapas Bar and sought to contradict the application. The Defendant’s hope for a co-existence agreement was refused and dismissed by the Plaintiff.
The Defendants argued that they were using the mark Zara Tapas Bar and not just Zara but this was contradicted by evidence. On social networking site, the name Zara was more often used. They added that they had been using the same for more than 10 years and that Zara was a common dictionary word and typical name in several countries. They also said that the mark had become public property (Publici Juris) and that several marks had the name Zara in them as well. On further investigation, it was discovered that it was after an outing to Paris that the Defendant decided to adopt the name where there are over 40 stores of Zara.
The court found out that the word Zara is not a dictionary word nor is it non-exclusive and this showed that the Defendant was using the name to take advantage of the apparel brand’s success and reputation. Thus, the Delhi High court ruled in favour of the Plaintiff and ordered the restaurant to change its name. Even the Defendant’s arguments that the services offered were vastly different and thus there would not be confusion among consumer were dismissed by the court. The court also ruled that with respect to the argument on Publici Juris, the Plaintiff had the right to decide whether to sue or take legal action against other infringers if they wish.
Author: Smriti Subramanian, Student of Christ (Deemed to be University)
References:
- https://www.sbs.com.au/language/english/starbucks-sues-india-s-sardarbuksh-for-copycat-brand-name-and-logo
- https://lawcirca.com/the-coca-cola-company-vs-bisleri-international-pvt-ltd-20-october-2009/
- https://blog.ipleaders.in/5-landmark-cases-for-trademark-infringement-in-india/
- https://www.legalwiz.in/blog/5-famous-trademark-cases-for-businesses-to-learn-from
- https://online.yu.edu/cardozo/blog/famous-intellectual-property-cases
- https://lawcutor.com/2020/06/06/yahoo-inc-vs-akash-arora-anr/
- https://www.sonisvision.in/blogs/post/case-study-on-zara-fashion-or-food
- https://www.dotnice.com/zara-vs-zara-a-trademark-tale/
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