TechnolexIndia ( India Technology Law ))
Saturday, March 24, 2012
NewsLex: Americans are still politically divided on health care issue and both the political parties see a decision will be a key factor that could decide whether Obama gets a second term
Friday, March 23, 2012
The dispute between Design Company Aerolab and Force India has been settled, on 23rd March, 2012, at the High Court in London. Sahara Force India was directed by the London High Court judge to pay outstanding fees of more than £700,000 to Aerolab, although Force India was handed just under £21,000 in compensation for use of its intellectual property.
This penalty comes in as a part of the declaration of an intellectual property dispute between the two teams. Despite the High Court ruling, the Silverstone-based team now plans to refer the matter to the FIA for further consideration given that using the intellectual property of other teams is banned under F1 rules. The UK High Court judgement, in respect of the illegal copying, will now be referred for the consideration of Formula One's governing body, the FIA," the team said, "whilst the Italian criminal case against Mike Gascoyne, Tony Fernandes and Jean Claude Migeot remains ongoing.
With already prevailing difficulties around reports that Vijay Mallya's Kingfisher Airlines may collapse following rising debts, frozen bank accounts, cancellation of flights and delay in salary payments, verdict on Force India might come as another blow for the tycoon. Aerolab had worked with Force India until 2009, when its ended the relationship over unpaid bills – with the company then starting work with the new Caterham team (then running under the Lotus name) just days later. Vijay Mallya's Formula One team had also alleged Aerolab and Caterham's chief technical officer Mike Gascoyne of misusing the team's intellectual property. However, Justice Arnold stated Force India "has come nowhere near establishing that. Force India claimed that the Lotus T127 had featured a large number of parts copied from Force India's design and although the court stated that the intellectual property rights had been used as a 'shortcut' it threw out claims that there has been 'systematic copying' of the design and said Force India hadn't come close to proving that to be the case.
Force India, which had prized its car designs at 15 million pounds ($23.8 million), may witness another hearing on legal costs, in May. It is said that the bill could be the final straw for struggling Mallya, who may now cede control of Force India to 42.5 per cent shareholder Subrata Roy, another billionaire of India. Relating to the teams' two-year intellectual property dispute, the High Court in London, however, also charged Aerolab for misuse of confidential information, and has asked the company to pay Rs 16.7 lakh (€25,000) to Force India. Some parts created using Force India confidential information were used on the Team Lotus race cars in the early part of the 2010 season.
Monday, March 19, 2012
Prof. Mustafa has specialization on new areas of legal studies such as Copyright Law, Human Rights etc. He has authored around 10 books out of which two books on the Right to information in 1997 and 2002 published much before the Right to Information Act, 2005 came into existence. Besides being a visiting faculty to a number of reputed universities in India and abroad, he is the nominee of Chief Justice of India at various university bodies.
Friday, March 16, 2012
Article on Comparative Analysis of Copyright Protection of Databases: The Path to Follow” published in JIPR
The paper titled: "Comparative Analysis of Copyright Protection of Databases: The Path to Follow" , has been published today in the Council of Scientific & Industrial Research (CSIR) Journal of Intellectual Property Rights (JIPR). Please click the below links to see the article.
Wednesday, March 14, 2012
Yahoo Inc. on 12th March, 2012 filed a patent infringement lawsuit against Facebook, essentially accusing the social media giant of building a company based on the Web pioneer's technology.
The company filed its suit before U.S. federal court in San Jose, arguing that "for much of the technology upon which Facebook FB 0.00% is based, Yahoo got there first and was therefore granted patents by the U.S. Patent and Trademark Office to protect those innovations."
Yahoo cited patents related to "cutting edge innovations in online products, including in messaging news, feed generation, social commenting, advertising display, preventing click fraud and privacy controls."
"Yahoo! has invested substantial resources in research and development through the years, which has resulted in numerous patented inventions of technology that other companies have licensed. These technologies are the foundation of our business that engages over 700 million monthly unique visitors and represent the spirit of innovation upon which Yahoo! is built. Unfortunately, the matter with Facebook remains unresolved and we are compelled to seek redress in federal court. We are confident that we will prevail."
Facebook quickly struck back, calling the action "puzzling" and noting that Yahoo has benefited from its association with the social network. One analyst called Yahoo's suit "a desperation move."Shares of Yahoo were up less than 1% in after-hours trading.
For example, Yahoo argued that Facebook's "entire social network model, which allows users to create profiles for and connect with ... persons and businesses is based on Yahoo's patented social network technology."
Yahoo is seeking damages that it argued should "be trebled in view of the willful and deliberate nature of the infringement."
This is pertinent to mention that the watered-down patent bill that was eventually signed into law by President Barack Obama in September mostly pleased the pharmaceutical industry, yet it failed to include the reforms sought by tech companies such as Apple Inc., Cisco Systems Inc. Dell Inc. and Intel Corp.
In the end, the "first-to-file" provisions in the America Invents Act tilted the playing field even further in favor of large, established players who can afford to employ armies of attorneys.
If the flurry of patent lawsuits over mobile computing and wireless technology that have been filed since the bill's passage is any indication, the legislation will end up being no more than a full-employment act for patent lawyers.
Facebook vowed to defend itself against the Yahoo suit.
The Facebook is disappointed that Yahoo, a longtime business partner of Facebook and a company that has substantially benefited from its association with Facebook, has decided to resort to litigation. The Facebook said to the media persons that they will defend themselves vigorously against these puzzling actions.
As per the media reports BGC Partners analyst Colin Gillis called Yahoo's lawsuit "a desperation move," which is unlikely to derail Facebook's much-awaited public offering. "It does give the impression of a desperation move on Yahoo's part.
Yahoo is considered a pioneer of the Web, but the company has struggled against bigger and more innovative rivals led by Google Inc. Facebook is seen as a pioneer in social networking, considered the next big wave on the Web. The company has filed for an initial public offering and is expected to go public later this year, one of the most anticipated IPOs in years.
Yahoo, meanwhile, has seen its business shrink in recent years.
Now, in advance of Facebook's initial public offering, Yahoo is doing to the social-networking leader what it did to Google just before its IPO: sue over technology that Yahoo pioneered yet failed to implement successfully.
In 2004, Google ended up issuing pre-IPO shares to Yahoo to settle that dispute, and there's a chance we could see Facebook doing the same.
After last year's failed attempt at patent reform, the current system is the one that tech companies will be living with for the foreseeable future. That means we'll likely see more lawsuits like Yahoo's.
That's great news for patent lawyers, but bad news for consumers.
The Complaint of the Yahoo! is attached herewith with the blog.
To read the original complaint by Yahoo against the Facebook click the link below
Monday, March 12, 2012
Sunday, March 11, 2012
There is a lot of hue and cry to a controversial the U.S. Court of Appeals for the 7th Circuit ruling on February 29th,which says it is now legal for police to search cell phones without a warrant. Due to that the expanding conflict between constitutional rights and technological advances has taken another turn. The United States of America v. Abel Flores-Lopez arises from the original Indiana case involving Mr. Flores-Lopez, who was arrested for allegedly selling methamphetamine. Flores-Lopez was reportedly arrested during a sting operation. Police then searched his phone for numbers. Those numbers were later linked to a drug dealing ring. He was subsequently convicted and sentenced to 10 years in prison. Police never had a warrant or his permission to search the phone. Flores-Lopez appealed, claiming his 4th amendment rights were violated. The 7th circuit U.S Court of Appeal turned down his request and sided with the officers.
The court said that the possible invasion of privacy from doing so was slight enough that it would not violate Fourth Amendment rights against unreasonable search and seizure. The presiding judge determined that since police officers can search a diary for information such as addresses and phone numbers, they also have the right to search cellphones for pertinent information.
This "lack of severity" was due to the fact that the search revealed only the telephone number of the arrestee's seized cellphone. "If police are entitled to open a pocket diary to copy the owner's address, they should be entitled to turn on a cell phone to learn its number," Judge Richard Posner wrote for the three-judge panel. "If allowed to leaf through a pocket address book, as they are...they should be entitled to read the address book in a cell phone. If forbidden to peruse love letters recognized as such found wedged between the pages of the address book, they should be forbidden to read love letters in the files of a cell phone."
Extrapolating on this cell phone-equals-diary analogy, the judge further contended that both were "containers," as "any object capable of holding another object...an object that can contain anything else, including data, is a container...And since a container found on the person of someone who is arrested may be searched as an incident to the arrest even if the arresting officers don't suspect that the container holds a weapon or contraband, and thus without any justification specific to that container...the government urges that a cell phone seized as an incident to an arrest can likewise be freely searched."
Thus, the court ruled that a search "incident to the arrest" of someone does not violate that person's Fourth Amendment rights. Yet the Fourth Amendment itself states that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
How has this apparent contradiction been adjudicated? Two Supreme Court rulings regarding "search-incident" doctrine, based on the need for officers to quickly determine if containers associated with an arrestee contain evidence of the offense itself, or anything that might endanger the safety of police officers and others, have been somewhat contradictory. In United States v. Robinson (1973), a police officer stopped a car based on reliable information that Mr. Robinson's driver's license had been revoked. After being arrested on that charge, Robinson was searched and a crumpled cigarette package containing heroine was found. The Court ruled "in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the 4th Amendment, but is also a reasonable search under that Amendment."
Yet in Arizona v. Gant (2009), Rodney J. Gant, was also arrested for driving with a suspended license, but was already walking away from his vehicle when police detained him. After securing Gant and other suspects in patrol cars, police searched his vehicle, where they found narcotics and a weapon. In that case, the Court ruled that police are not allowed to search an arrestee's car after the arrestee had been handcuffed and there was no realistic possibility that he could gain access to any evidence or weapons in his vehicle.
Flores-Lopez contended that the latter case was applicable because, when narcotics officers searched his cellphone, it was safe in police custody, therefore requiring a warrant to conduct additional searches.
The 7th Circuit Court disallowed the argument, noting that Gant involved the search of a vehicle, and further noting that it was reasonable for investigators to believe that the number of the cellphone in the defendant's possession could be used as evidence to link him to other conspirators in the drug-trafficking operation under investigation. With respect to the evidence-preservation and officer-safety rationales contained in Robinson, the Court contended that the "conceivability" that co-conspirators could initiate a remote wipe of the contents of the defendant's cellphone (evidence preservation) and the availability of stun guns shaped like cell phones (officer safety) made a warrantless search "reasonable," even if the possibility of a remote wipe was not "probable."
The unresolved issue? Though discussed by the court, it declined to decide what facts would be required to conduct a warrantless search more extensive than a search for the cell phone's number. "We need not consider what level of risk to personal safety or to the preservation of evidence would be necessary to justify a more extensive search of a cell phone without a warrant, especially when we factor in the burden on the police of having to traipse about with Faraday bags or mirror-copying technology and having to be instructed in the use of these methods for preventing remote wiping or rendering it ineffectual," wrote Posner–who then cut to the heart of the issue. "We can certainly imagine justifications for a more extensive search," he added.
Given contradictory rulings in this arena, including a California State Supreme Court ruling allowing law enforcement officers to go through any content on a suspect's cell phone, and an Ohio State Supreme Court ruling that such searches violate the Fourth Amendment, it seems likely that the Supreme Court will have to clarify such justifications.
As of now, both sides of the issue were framed by their respective proponents in the law enforcement community. Former Dallas FBI Agent Danny Defenbaugh defended the ruling, claiming it gives law enforcement officials an advantage in fighting crime. "I think not only will it help them, but it could be life saving," he said. Paul Coggins, former U.S. Attorney for the Northern District of Texas, was far less sanguine. "Does (the ruling) mean officers now have the right to search through your phone, search through your search history, your photographs, your e-mails and the rest, because it could all be wiped clean?" he asked.
And lest anyone think encrypted cell phone passwords are the solution, because requiring one to divulge one's password would violate the Fifth Amendment's protection against self-incrimination, think again: in January, a Colorado judge ordered a woman to decrypt her own computer so prosecutors could use the files in it against her in a criminal case. That case will likely end up in front of the U.S. Supreme Court as well–which recently ruled 9-0 that affixing a GPS device to a vehicle for 28 days constitutes a search requiring a warrant. But even in that case, they left open the question of whether GPS monitoring for shorter periods of time would require a warrant.
Technology is rapidly eliminating anything resembling a genuine the right to privacy. Sadly, in a nation of people enthralled with posting the details of their lives on Internet websites, or loading substantial portions of those lives into cellphone and other portable devices, much of that elimination has been voluntary. Law enforcement officials, more often than not, are more than willing to exploit that enthusiasm. It behooves the courts to constitutionally temper that enthusiasm.
The case gave the court an occasion to examine just how far police can go when it comes to searching electronic gadgets.
"Lurking behind this issue is the question whether and when a laptop or desktop computer, tablet, or other type of computer (whether called a 'computer' or not) can be searched without a warrant," Judge Richard Posner wrote for the three-judge panel.
He raised the example of the iCam, which allows someone to use a phone to connect to a home-computer web camera, enabling someone to search a house interior remotely.
"At the touch of a button, a cell phone search becomes a house search," he wrote.
Prosecutors argued that in an age when people can wipe their cell phones clean remotely, officers are under pressure to obtain data before it is destroyed.
The court acknowledged that the actual risk that one of the suspects would have been able to destroy the phone's contents was minimal in this case. But so was the invasion of privacy, limited to telephone numbers.
The court left the question of just how far police can go in searching a phone's contents for another day.
Moreover, the remedy does not represent an over-correction towards privacy since law enforcement would still have the opportunity to obtain a warrant to search Facebook or any other social networking site without having to directly seize a suspect's phone.
These changes would be consistent with the widely supported theory that the Bill of Rights, collectively, was added to the Constitution "to keep the precincts of belief and expression, of the press, of political and social activities free from surveillance."Blanket government surveillance of speech on Facebook not only presents privacy concerns of a different scale, but it squarely conflicts with Justice Brandeis' belief in the "freedom to think as you will and to speak as you think." Granted, Justice Brandeis' statement that "[o]nly an emergency can justify repression" is consistent with rules allowing post-arrest searches to ensure officer safety or protect other citizens from imminent danger. But the cell phone searches sometimes done in the name of "emergency" or "safety," but rather, to conduct fishing expeditions for potentially useful evidence. The marginal benefit of such epic searches is not offset by considerations of the hazards of "discouraging thought" and stifling "public discussion."
Thus, the combination of current criminal procedure doctrine with Facebook's extensive database and emerging cloning technology easily provides an arresting officer with a profile database that rivals those found in once-hyperbolic Orwellian science fiction.
This is a classic overbreadth problem—except that there is no overbreadth doctrine in Fourth Amendment jurisprudence.
Without an immediate correction, the result of the status quo is clear: We must assume that any speech on the internet will eventually be copied and cataloged by the government. And in a democracy such as ours, the unwarranted law enforcement license to "listen in" to every conversation in our 21st century town square should be seen as a grave threat to democracy and the ideals of self-governance.
The government's ease in justifying the search of an arrestee's Facebook account and its ability to maintain a cloned copy of this speech—which not only could date back over a decade, but also could create an archive of his friends' speech—create not just a chilling effect, but perhaps a freezing effect on speech. From exposing anonymous identities to revealing associational ties, a post-arrest Facebook search not only deters an arrestee's core political speech, but the single search ices the communication and consumption of many persons.
But Facebook, I submit, presents additional concerns that are unique to the popularity of the social network. Unlike diaries, laptops, blogs, or even Twitter, its structure means that government access to one person's private account essentially constitutes government access to the private accounts of the user's friends, which could number in the thousands. Never before has any technological innovation meant that searching one person's gadget was the equivalent to searching over a thousand's person gadgets. While a personal diary might reveal personal information about another, it's unlikely that any person's diary is the equivalent of carrying around every friend's diary, as well.
Even though Facebook's policies ban Facebook users from providing false information or creating an account in another person's name, government agencies regularly create them in hopes that suspects (or suspects' friends) will approve the request and instantly allow them to access private information, map social networks, and begin the process of luring them into incriminating revelations. In one section on working undercover on social networking sites, the document poses but does not answer the question: "[i]f agents violate terms of service, is that 'otherwise illegal activity'?" No caselaw provides a clear answer. However, given the general legality of undercover operations in which officers violate crimes in order to prevent crimes, there seems to be no legal barrier to these fake profile tactics and ultimately diluting the main object of right to self incrimination.
Friday, March 09, 2012
NGO's, activists and others protested recently outside Novartis's annual shareholders meeting in Basel, Switzerland, and also at Novartis offices in New York, Washington, and Cambridge, Mass., demanding that the company drop the case. Demonstrators complain that Novartis is trying to stop generic reproductions of its drugs that millions in poor countries depend on. The problem started when the Chennai HC approved the Govt. of india's decision not to grant patent to Gleevec. Novartis appealed in the Supreme Court of India, and the case has been winding through for the last six years and now the Court is preparing to hear final arguments this month. It represents a high-stakes showdown between defenders of intellectual property rights, who say the generic knockoffs stifle innovation by drug makers, and Indian drug companies and international aid groups, who warn that a ruling in favor of Novartis could dry up the global supply of inexpensive medicines to treat AIDS, cancer, and other diseases. The said drug is approved by United States Food and Drug Administration in 2001. The drug, which is sold outside the United States by Novartis as Glivec and known generically as imatinib mesylate, has turned deadly chronic myelogenous leukemia into a manageable chronic disease for many patients. It is also used to treat a form of gastrointestinal cancer.
India is the world's third-largest drug producer by volume and exports about $10 billion worth of generic medicines every year, more than any other country, primarily selling to other fast-growing developing countries that are expected to become significant new markets for big drug companies. The decision could also help determine how much Western drug companies invest in India at a time when they want to increase sales in emerging markets to compensate for slowing business in the United States and Western Europe. India resumed granting drug patents in 2005 as part of a World Trade Organization agreement on patents, but medicines created before 1995 did not qualify. And that's where the disagreement arises over Gleevec The case before the Supreme Court revolves around Section 3(d) of The Indian Patent Act 1970, that prohibits a newer form of a known substance from receiving a patent unless it significantly improves the medicine's "efficacy," or effectiveness. The standard was aimed at preventing a practice known as evergreening, in which a pharmaceutical company makes minor changes to existing drugs and earns new patents, thereby providing many more years of protection from generic competition. Gilead Sciences, for instance, is appealing India's rejection of a patent application for its drug Viread, or tenofovir disoproxil fumarate, which is used to treat H.I.V. infection. And Roche is fighting several court cases to uphold its patent on the anticancer drug Tarceva, or erlotinib, that Indian drug makers argue does not meet the effectiveness standard. Courts have allowed generic versions of that drug to be sold in India while the case is being litigated. India's patent law does not define "efficacy" or say how it should be measured. Novartis is arguing that the term should encompass modifications that might make a drug safer or easier to use, not just more effective in treating a disease. It says more than 40 other countries have granted a patent on Gleevec.Novartis maintains that the current version of Gleevec is 30 percent easier for the body to absorb than an older chemical that it developed but never marketed as a drug. The older compound was patented in the United States, Europe and elsewhere in the early 1990s, but not in India because India did not allow patents on drugs at that time.
Generally when drug companies discovered a compound that fits some specifications in a test tube or animal study, they patented it to protect themselves from copycats. But that initial compound is often not suitable for use as a drug because it might not be absorbed into the bloodstream well enough, or it might be chemically unstable, or unsafe. So, modifications are made until a suitable form is found, and that new form is then also patented. The United States and European Union often grant patents for chemical modifications of existing drugs.The chances are there that the victory for Novartis would not shut off the production of generic Gleevec or of other existing generics, but could impede the ability of Indian manufacturers to develop generic versions of future drugs. The decision of the case will clarify about what kind of innovation is and is not patentable in India. The court while interpreting Section 3 (d) of the Patent Act 1970, must keep in mind the balance of the need for innovation and public health.
Thursday, March 08, 2012
There are grey areas in the current immigration and nationality law issues affecting international adoption, surrogacy, Assisted Reproductive Technology and same-sex marriage as well as more conventional international families. We have to explore trustee and lawyer liability for setting up structures which help (even inadvertently) a client evade the tax laws of his/her country of residence, and how the courts in other countries are helping the country of residence enforce its tax laws. Many trustees and tax practitioners are concerned, particularly after the UBS scandal, about setting up offshore structures for nationals of other countries and they no longer wish to turn a blind eye to those countries' tax laws. Many foreign nationals come from countries where it is practically a way of life to have unreported offshore income and assets, but their countries of residence are suddenly beefing up their enforcement activities. Under what circumstances should a trustee or tax practitioner seriously consider turning away a client, and do those circumstances vary depending upon the client's country of residence?
There is a great need of comparison of the various ways that different countries handle child custody matters, including international child relocation, and information about various attempts to create uniformity. We have to find the information on entering into a prenuptial agreement, religious prenuptial agreements, and difficult conflicts of laws issues related to the enforcement of such agreements in different jurisdictions.
There are issues in Islamic Family Law like jurisprudential history of recognizing Islamic marriage and marital dissolution (talaq and mahr) procedure; current appellate trends, litigation strategy, custody under Sharia law and reciprocal recognition of custody orders. And issues like what to do for a client who owns foreign assets, or one who believes the other spouse or heirs have foreign assets. What if money has been hidden in offshore jurisdictions or placed in trusts or foundations abroad? There are issues that how to bring them into a divorce action or estate dispute either in a particular country or in countries with forced heir-ship and what may need to be done abroad. We have to resolve that how to pierce offshore asset protection trusts to repatriate and divide marital assets that have been transferred to avoid jurisdiction of the forum court. Sometimes there are questions that how to divide major marital assets located in multiple foreign jurisdictions under varied applicable laws and tax regimes and formulate an integrated, cohesive agreement acceptable in the forum court.
Still there is no clarity on how to apply Brussels II, the 1980 Hague Convention, the 1996 Hague Convention and/or conflict of laws between the Hague conventions and Brussels II regulation in recognizing foreign court orders with regards to custody, visitation and relocation orders. Now the comparison is required on the conflicts of laws rules that many countries apply in divorce cases; and a consideration of the ways that courts resolve conflicts between jurisdictions (e.g. stays; forum non conveniens; international treaties).
Sometimes there is a problem in fixing tax rights when married couples move from one country to another. In that case how the property deemed to be held for tax (and other legal) purposes if the former jurisdiction was a community property or civil law jurisdiction and the new jurisdiction is a common law jurisdiction, or vice versa?
Keywords: conflict of laws, international family, hague convention, tax
From: SlideShare <email@example.com>
Date: 8 March 2012 18:01
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Dr. Tabrez Ahmad on behalf of all the authors Wishes the Blog Readers a Very Happy, Colourful & Safe Holi. Due to the kind of faith and confidence shown by various readers the Technolexindia, IPlex, & ConfrenceLex have got lot of name and fame not only in India but also in different parts of the world. There are around Two Thousand e-mail subscribers of our various blogs. Hope the same kind of cooperation, comment and suggestions will be provided to us and that will further help to upgrade the standards of blog postings.
Thanks you all once again on the eve of Holi for all cooperation and encouragement shown to us in the last one year.