NCLT on reviving Insolvency Applications after breach of Consent Terms

Recently, the Mumbai Bench of NCLT ceased a (questionable) practice, which is common at the admission stage under the Insolvency and Bankruptcy Code, 2016 (IBC). Generally, Insolvency Applications under Section 9 of the IBC are filed against Corporate Debtor(s) with an intent to recover an operational debt. By and large, such Insolvency Applications result in the parties entering into Consent Terms stipulating a repayment schedule of the operational debt so as to prevent an order of admission and consequential insolvency. Consequently, while passing final orders for such Insolvency Applications, some applications are either ‘dismissed’, or are ‘disposed of with the liberty to the Operational Creditor to revive the same in the event of default, if any, made by the Corporate Debtor’. An order granting permission to revive an application, used liberally by several benches, however, has no legal grounds. As noted by the Mumbai bench, in a case filed by Tata Power Trading Co. Ltd. against Indusar Global Ltd, there is no provision under the IBC enabling an Operational Creditor to ‘revive’ an Application previously withdrawn / disposed of in terms of Consent Terms. While in the Indusar Global case, the application was simply dismissed at the admission stage, it is unclear on what legal basis are these applications being granted the option of revival.…
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Alice framework not a ‘precise science’, says report

The first stage of the Alice v CLS Bank framework is not a “precise science”, according to a report analysing patent cases in Virginia. Challenging a registered patent under section 101 continues to be a successful defence tactic in patent infringement claims, added the report, which focused on the US District Court for the Eastern District of Virginia. Hunton & Williams released its annual “Intellectual Property Year in Review for the Eastern District of Virginia” report in February. The report, authored by IP attorneys Charles Ossola, Stephen Demm, and Wendy McGraw, identified key trends in IP cases in the Eastern District of Virginia over the previous year. Hunton & Williams claimed that challenging patent validity under section 101 continued to be a successful tactic employed by those accused of patent infringement in the district in 2017. For example in Virginia Innovation Sciences v Amazon.com the court engaged in a “detailed discussion” of section 101 and the two-step Alice inquiry, according to the report. It said the first stage of the Alice test is not a “precise science” and courts will often move to the second stage of inquiry without sufficiently determining the “character or focus of the patent” in the first step.…
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Mixed fortunes in IP infringement case received: Disney

A US Court has rejected a claim of copyright infringement against Disney, but also dismissed the company’s motion to throw out claims of patent infringement. Los Angeles Judge Dean Pregerson ruled that a combo pack’s two rental components — a Blu-ray disc and a DVD — are protected by the first sale doctrine, which allows a purchaser of a copyrighted work to resell it, just as a buyer of a book can resell it to a second-hand bookstore, including “Beauty and the Beast” and “Guardians of the Galaxy Vol. 2.”. The program captures the motion of the face to create images used in motion pictures. It captures an actor’s performance frame-by-frame to create “original contour program output files based on the performance, frame-by-frame”. The Mova Contour methods and systems are protected by US patent numbers 7,605,861, 8,659,668, 7,548,272, 7,567,293, and 8,207,963. However, Disney sued Oakbrook Terrace, Ill.-based Redbox in November 2017, accusing the company of facilitating copyright infringement and breach of contract. The claims of copyright infringement were dismissed without prejudice. The court ruled that any direct infringement claims are dismissed without prejudice, although it found that Rearden sufficiently alleged active inducement, and therefore the motion to dismiss the indirect inducement claims was denied.…
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Copyright blow for news outlets in Twitter image case

Justin Goldman filed the lawsuit after he uploaded an image of New England Patriots quarterback Brady, Boston Celtics General Manager Danny Ainge and others on a street in 2016 on the Social Media platform Snapchat. Post the upload, it got circulated n various platforms, thereby making it viral. It also reached Twitter. News outlets including Yahoo, The Boston Globe and Breitbart News published the image by using it in their tweets in the news articles. Goldman claimed that claimed that he never publicly released or licensed the photograph, and alleged that the defendants violated his exclusive right to the display his photo. “The fact that the image was hosted on a server owned and operated by an unrelated third party (Twitter) does not shield them from this result”, the judge stated. Judge Katherine Forrest contended that the server test has not been applied widely outside the Ninth Circuit. However, the words “tweet”, “viral” and “embed” evoked different meanings than they do now due to the development in technology. She drew a distinction between a search engine, where users voluntarily search for and click on an image, and a news site, where “where the user takes no action” to see it. “Google’s search engine provided a service whereby the user navigated from webpage to webpage, with Google’s assistance”, she wrote.…
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‘Copycat’ sued for imitating brand in China by Australian winery

On February 16, Australia’s Treasury Wine Estates, the world’s largest standalone winemaker said it filed a lawsuit against a “copycat” it accused of imitating its prestigious Penfolds brand in China in the Federal Court. Adelaide-based winery Rush Rich is a “copycat” seller of its famous Penfolds brand thereby infringing Treasury’s trademark, alleged the Australian winemaker. As published on the website, Penfolds wine was established in 1844 and “has played a pivotal role in the evolution of winemaking with a history and heritage that proudly reflects Australia’s journey”. In China, Penfolds wines’ ultra-high-end Grange vintages are popular and profitable, and are sold under the brand name “Ben Fu”. Treasury alleged that Rush Rich produces imitations of the Penfolds brand by sourcing and bottling the product through bulk wine suppliers and exporting it into the Chinese market. Rush Rich’s products allegedly feature the Penfolds lettering and Chinese characters, in violation of Treasury’s trademark. “Of particular concern is the issue of copycat wine,” Treasury said in a statement. “[It] is believed to be sourced and bottled through bulk wine suppliers…then exported under labels that copy the look and feel of Penfolds wines, infringing TWE’s rights to the Penfolds and Ben Fu trademarks.” In an emailed statement, Treasury stated, “Our strong regulatory system is pivotal to our export success,” Tony Battaglene, Chief Executive of the Winemakers’ Federation of Australia “This success relies on the integrity and quality of our wine – a reputation that is put at risk by copycat wines.” Moreover, Mike Clarke, Treasury’s Chief Executive has also set up an intimate probe in China reportedly.…
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CBI books senior patent official over graft charges

Controller General of Patents, Designs and Trade Marks Chennai office’s Senior official, SP Subramaniyan, the Deputy Controller of Patents and Designs for the Indian Patent Office (IPO) has been allegedly detained by the anti-corruption branch of the CBI on charges of graft. His predecessor, TV Madhusudhan, has also been booked for demanding bribes to give patents to a private company. When a person’s arrest is written into official police records and they are fingerprinted and photographed is when the complaint is said to be booked, under the Indian Law. Subramaniyan had demanded Rs 3 lakh from GR Kaliaperumal in the year 2015, Proprietor of Radha Decors in Puducherry as bribe, for helping him issue patent rights to his invention ‘A composition, ornamental plaster mould and method of preparing the said mould thereon’. Apparently, he was made to wait for 5 years until giving the bribe and only then was he awarded the desired patent. After a post-grant opposition was filed against the patent, the two officials allegedly demanded a further bribe, an additional Rs 10 lakh ($15,500), to decide the case in the patent owner’s favour.…
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Adding economic value to knowledge through strategic management of Intellectual Property

Intangible form of property Intellectual property is an intangible form of property. It is a creation of human intellect which forms an integral part of our life. Starting from an alarm clock that annoys us in the morning to an interesting novel that makes us dream at night, we are surrounded by the fruits of human creativity and innovations. It serves to protect creative and inventive human expressions. Intellectual property rights, being imperative tools for the economic and industrial development of the nation, the laws protecting them have assumed great importance in the era of globalisation and privatisation. IP: Source of value and wealth generation The term “intellectual property” which was hardly known to the CEOs in early ‘90s has become one of the most significant parts of their business strategy.[1] Intellectual property has great significance for any large scale, medium scale or even a small startup as it has become an important source of revenue generation. In this age of knowledge and technology, generation of revenue is through creation of intellectual wealth. The intellectual wealth so generated requires strategic and structured approach towards identification, protection and exploitation for revenue generation. The source of value and wealth generation has moved from tangible to intangible assets.…
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Buy Social trademark, advertising campaign launched: SEBI

Both as members of the Social Enterprise Boost Initiative (SEBI) incubator and the SEBI open network, thirty-five social enterprises have received their official Buy Social trademark, nurtured by the (SEBI) to assist prospective consumers in identifying their products, services and social missions. Launched at the Terra Nova All Suite Hotel, Kingston, the Buy Social trademark and advertising campaign’s objective was that of increasing the consumer demand and enhance the management of their enterprises. Saffrey Brown, General Manager, JN Foundation said that the unique mark will signal to consumers that the business bearing it is a social enterprise. “When you buy from a social enterprise, you are choosing to spend your money with a business that is giving something back,” Brown explained. “They reinvest their profits to address the most pressing social issues in their community, such as unemployment.” Earlier in December, the four-month campaign started which include advertising on television, radio and newspapers; as well as, on buses and digital billboards, said the project manager. Scheed Cole, Manager of 360 Recycle Manufacturing, one of the social enterprises which will benefit from the initiative, said, “we are working with grassroots people, so that they can earn sustainable income. We need all the help we can get and, so I am in full support of Buy Social campaign.” Located on Rousseau Road in the western zone of Kingston, 360 Recycle Manufacturing uses plastic bottles, Styrofoam and paper to create construction materials such as blocks, flower pots and sculptures.…
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Bank of America’s patent application for “Cryptocurrency Transformation System”

Among large corporations who have had filed recent blockchain technology patents including Mastercard (which has developed an instant blockchain payment system) and Goldman Sachs, the most recent one appears to be Bank of America Corporation (BAC), a multinational banking and financial services corporation headquartered in Charlotte, North Carolina. According to a notification released on December 5, 2017, BAC was successful in its recent patent application for a “Cryptocurrency Transformation System.” The inventors were James G. Ronca (Decatur, GA), Joseph B. Castinado (Northglenn, CO), Heather Dolan (Sarasota, FL), Thomas E. Durbin (Waynesville, NC), and Richard H. Thomas (Charlotte, NC). The Cryptocurrency Transformation System comprises a memory operable to store a customer account, a first float account, and a second float account and also comprises a processor communicatively coupled to the memory. The processor may receive an electronic request for a currency exchange and determine exchange rates for exchanging a first currency for a second currency and may also determine an optimal exchange rate. In response to determining the optimal exchange rate, the processor may determine a first amount of the first currency and associate the first amount with the customer account. The processor may also transfer the first amount of the first currency into the first float account and determine a second amount of the second currency.…
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Patent war continues between AMEC and Veeco Shanghai

The patent war that began on July 13, 2017 between Advanced Micro-Fabrication Equipment Inc. (AMEC)—China’s leading provider of advanced process technology to global manufacturers of semiconductors and solid-state lighting (SSL) products—and Veeco Instruments Shanghai Co. Ltd.—a market leader in MOCVD, MBE, Ion Beam, and other advanced thin-film-process technologies—has now gone to the next level. On December 8, according to an announcement by AMEC, the Fujian High Court of the Republic of China granted AMEC’s motion for an injunction against Veeco Shanghai, prohibiting Veeco Shanghai from importing, manufacturing, selling, or offering for sale to any third party any MOCVD systems and wafer carriers used in MOCVD systems that would infringe AMEC’s patent CN 202492576 in China. Patent CN 202492576 covers AMEC’s proprietary wafer carrier and spindle-locking and synchronization technology. The injunction covers Veeco’s TurboDisk EPIK 700 system, EPIK 700 C2 system, and EPIK 700 C4 system, as well as the related wafer carriers used in the MOCVD systems. According to AMEC, the ruling should also cover Veeco’s EPIK 868 system and related wafer carriers because the EPIK 868 system also uses AMEC’s patented technology involved in the action. Notably, this ruling is unappealable and takes effect immediately. The stringent injunction terms expose the nature of Veeco Shanghai’s flagrant violation of AMEC’s intellectual property (IP) and confirms that Veeco Shanghai does not respect AMEC’s IP rights.…
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Weak patent infringement case attracts payment of defendant’s attorney fees

On December 8, the U.S. Court of Appeals for the Federal Circuit said that Inventor Holdings LLC, a patent holding company, must cover about $1 million in attorneys’ fees Bed Bath & Beyond Inc incurred defending a patent infringement case. The Court affirmed a lower court ruling that Inventor Holdings brought an exceptionally weak patent infringement case against Bed Bath & Beyond and should cover some of the latter’s costs. According to an appeal from the United States District Court for the District of Delaware, even if a patentee’s initial complaint was reasonable, the patentee can be liable for attorney fees under 35 U.S.C. § 285 if it does not reassess the merits of its case in view of new controlling law. In December 2013, the district court denied two motions to dismiss asserting invalidity of the patent in suit under § 101.  In June 2014, the Supreme Court decided Alice, construing § 101. The parties continued to litigate the case until BBB filed a § 101 motion based on Alice in February 2015, which the district court granted.  After the Federal Circuit affirmed that decision, the district court found that the case was “exceptional” under § 285 and awarded attorney fees for all time spent after Alice through appeal.  The patentee, Inventor Holdings, appealed.…
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Ericsson wins $75 million in patent infringement case against TCL

On December 7, Ericsson Inc, a multinational networking and telecommunications company, won a $75-million verdict in a patent infringement case it brought against Chinese multinational electronics company TCL Corp. According to a federal jury in Marshall, Texas, the infringement was willful, meaning that the judge could decide to increase damages. Therefore, the Texas jury ruled that TCL should pay damages for selling smartphones that infringe on an Ericsson patent relating to network security technology. The patent covered controlling access to terminals that transmit voice communications, which was infringed by TCL and Alcatel OneTouch phones and tablets, the jury decided. Four other patents that Ericsson sued over were ruled invalid.…
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