[Commons-Law] Raj Anand Moot Problem 2004

[sudhir at circuit.sarai.net]

Dear all

What follows is the patent law moot problem set for the 7th Raj Anand Moot
Court Competition - I've left the annexures out of this email but will be
happy to mail these across to anyone who's interested.

Best
Sudhir

   7TH   RAJ   ANAND   MOOT  COURT    COMPETITION
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NEW DELHI
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Sweet Doggy Inc., (SDI) is a company incorporated under the laws of
Delaware in the United State of America.  SDI has invented a transgenic
product called WAGGY which when administered to dogs keeps them happy. 
The happiness of dogs is measured, at least in some part, by an increased
wag to their tails.  SDI obtains a patent for a veterinary formulation in
the USA, the European Community, Japan and certain other key countries
determined on the basis of population of dogs.  SDI has a pending product
patent application in India.

The veterinary product has been tested on 1000 dogs in 30 cities in
Europe, USA and Japan. Bio-equivalence studies have been conducted in
certain other countries where such studies are required by the local laws.
 The data collected is compiled and consists of three categories, namely:
type 'A'which shows happy dogs;
type 'B' which shows no undue increase in dog appetite as a result of the
increased exercise;
type 'C' showing healthy increase in dog population.  The data is approved
by the Veterinary Board of India which then grants the SDI permission to
market the product.  An Indian company by the name of Smile Dog Smile
Limited (SDS) at its board meeting takes a decision to compete head on
with SDI although board members are cautious about intellectual property
rights and do not wish to violate the same.

The Chief Legal Officer of SDS has a meeting with the research, production
and marketing teams explaining the strategy of the company. Within three
months SDS produces and markets a formulation by the name of SMILOE.  SDI
files a suit in India and alleges:-

  its formulation has been copied by SDS in as much as it has copyrights
in the transgenic molecule and of the genetic information that is
comprised therein notwithstanding the fact that a patent has not been
granted to SDI in India. SDS claims that if there are no patents there
can be no protection in a gene sequence particularly since there was no
contractual or other privity between SDI and SDS;


  SDS has even copied their advertisement campaign (Annexure 'A' v.
Annexure 'B') and this is more than a theme although protection can be
granted to simply a theme.  SDS claims that ideas are not protected and
it is fair use for some one to take interesting ideas and use them in
advertising campaigns;


  the trademark WAGGY has been copied at key places in the defendant’s
advertisement (Annexure ‘B’).  This point is defended by SDS who claims
that WAGGY is descriptive and not protectable and in any case they have
used the term in a descriptive manner;


  that the data of clinical trials has been copied and this amounts to a
violation of trade secrets as also copyrights in the said data.  According
to SDS such data is not protected in India and can be freely copied; in
any event it has not copied the data but the veterinary board has only
used information from SDI’s data and applied the same to SDS.



Annexures
Annexure A
Annexure B