| |9 August 2018HIGHERReviewThe former is an invention pro-tected by Patents Act across the world based on the criteria of "nov-elty", "inventive step" and "capabil-ity of industrial application", while the latter is a plant variety protected under the Protection of Plant Variety and Farmer's Right Act (PVP law) based on the NDUS criteria of "nov-elty", "distinctiveness", "uniformity" and "stability". The question is, whether the lit-igants understand the differences in the laws and whether their lawyers have the technical capability to dif-ferentiate between the biotech in-vention and mere cross-breeding. And do the Courts understand this fine line demarcation in the two dif-ferent types of research so that val-id biotechnological patents are not judicially revoked. Besides this patent / PVP dichot-omy, the IP holders also mull over whether to protect under patent or retain as a trade secret, to patent computer-implemented invention or copyright the computer programme, whether to protect a product shape under Trade Marks Act or the Design Act and so on. As the technology gets more sophisticated, the IP owners' prefer to avoid never-ending litiga-tion in courts where jurisprudence has yet to develop (where it is avoid-able) by opting for negotiations and alternative dispute resolution.IP creators prefer services that would help create a robust IP port-folio, maintain the same and as-sist in commercialization through sound strategy and tactics especially where oppositions and revocations are filed more by way of anti-com-petitive practice to stop successful commercialization. This is signif-icant for the IP Holders since the Intellectual Property Offices are re-stricted to examining the criteria of protection under IP law while the Courts and limited to looking into a narrow interpretation of infringe-ment often viewed from the public access perspective.Two instances are cited here to highlight the gap between commer-cialization as viewed the IP holders and IP law as understood by courts and IPO respectively:(a) In a pharmaceutical infringe-ment case, the application for vaca-tion of ex-parte interim injunction was not heard for over 4 years by the Delhi High Court. Further, the defence of trade secret was brushed aside by the Judge as being of no con-sequence. The rationale adopted was that if the invention was so signifi-cant why was a patent not filed? The court viewed "trade secret" with no consequence while in fact it is a very significant and ancient business tool. Unfortunately, this observation was not in writing and therefore could not be argued on merits.(b) The trademark application for an already registered trademark was recently granted the Delhi Trade Mark Registry without any evidence of use to support honest concurrent use. This means that for no fault of the first registrant he has to now go for additional legal intervention of opposition wasting important re-sources. One wants to know how the latter identical mark was regis-tered without evidence of use? How does one explain to the client that the trademark search and market due diligence performed before adopting the trademark was futile because the trademark registry `erred'?The new-age enterprises and start-ups have indeed shifted focus on ease of doing business and prefer good IP strategy, resourceful thinking and reasonable predictions on chances of successful commercialization.IP creators prefer services that would help create a robust IP portfolio, maintain the same and assist in commercialization through sound strategy and tactics especially where oppositions and revocations are filed more by way of anti-competitive practice to stop successful commercialization
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