Moot memorial of specific cases ina moot court competition, Cheat Sheet of Law

Download Moot memorial of specific cases ina moot court competition and more Cheat Sheet Law in PDF only on Docsity! COMMONWEALTH MOOT COURT COMPETITION (INDIA 2019) BEFORE THE HONOURABLE PATENT TRIAL AND APPEAL BOARD STATE OF PARSINIA 2019 JSA V. OJIBWE INDUSTRIES JSA (ON BEHALF OF STATE OF TOQOI) --------------------- PETITIONER OJIBWE INDUSTRIES --------------------- RESPONDENT WRITTEN SUBMISSION ON BEHALF OF RESPONDENT 1 COMMONWEALTH MOOT COURT COMPETITION (INDIA 2019) TABLE OF CONTENTS SL.NO CONTENTS PAGE.NO 1 TITLE PAGE 2 TABLE OF CONTENTS 3 INDEX OF AUTHORITIES 4 STATEMENT OF JURISDICTION 5 STATEMENT OF FACTS 6 SUMMARY OF ARGUMENTS/PLEADINGS 7 ARGUMENTS SUPPORTED BY THE AUTHORITY 8 CONCLUSION/PRAYER 2 COMMONWEALTH MOOT COURT COMPETITION (INDIA 2019) 1.BASMATHI RICE CASE US PATENT NUMBER 5663484 ON SEPTEMBER 2 1997 2.MEXICAN BEAN CASE JOURNALS REFERRED 1. ALL INDIA REPORTERS 2. SUPEREM COURT CASES 3. INTELLECTUAL PROPERTY RIGHTS 4. US PATENT AND TRADEMARK OFFICE(OFFICIAL WEBSITE) 5. INDIAN CONTROLLER GENERAL OF PATENTS(OFFICIAL WEBSITE) BOOKS REFERREED;- 1. CHARTERED INSTITUTE OF PATENT ATTORNEY,CIPA GUIDE TO PATENT ACT.12(1980) 2. N.S GOPALAKRISHNAN & T G AGITHA,PRINCIPLES OF INTELLECTUAL PROPERTY,13(2009) 3. P.NARAYAN ,INTELLECTUAL PROPERTY LAW,7(2017) 4. N.K ACHARYA,TEXTBOOK OF INTELLECTUAL PROPERTY RIGHTS 85(2014) 5 COMMONWEALTH MOOT COURT COMPETITION (INDIA 2019) 5. DR.LILLY SRINIVASAN,LAW AND MEDICINE.415(2013) 6. S.SHANTHAKUMARI,INTRODUCTION TO ENVIRONMENTAL LAW253 (2012) DATABASE REFEERRED:- 1. http://www.lawoctopus.com 2. http://www.manupathra.com 3.http://www.westlaw.org 4. http://www.indiankannon.com 5. . http://www.european patent trade mark office.org 6 COMMONWEALTH MOOT COURT COMPETITION (INDIA 2019) 7 COMMONWEALTH MOOT COURT COMPETITION (INDIA 2019) treatment which involves the use of any traditional medicine. The traditional medicines are being prepared by Kehuaras from the medicinal plants which they conserve nurture and preserve for centuries. One of the key traditional medicines the community use is a combination of (i) Strychnos nux-vomica also known as nux vomica; (ii) Rauwolfia serpentine also known as snakeroot and (iii) Limonia Acidissima also known as elephant apple, for curing blood pressure related heart diseases. All three species are endemic to the region where the State of Toqoi is geographically located and are listed in the endangered plant species list of the State of Toqoi. ∙ The concoction is prepared using various parts of the plants by indigenous methods which involve boiling the plant parts in milk, fermenting and cooling processes. The concoction needs to be consumed by the patient immediately as the toxic properties of the plant parts will be active after two hours of its preparation. In the past, during the period between 1990 -2005, 3 MNCs have tried to develop relation with Kehauras and attempted for carrying out certain bio-prospecting to get some lead information relating to Kehauras ethno botanical knowledge and practices. However, Kehauras have neither revealed the secret formula of their concoction nor any knowledge relating to their plants and its various uses. 10 COMMONWEALTH MOOT COURT COMPETITION (INDIA 2019) ∙ In 2005, two young members of the Kehaur community, Ms.Arikara Hopo and Mr.Bannock Hopo, joined the Toqoi Institute of Environment and Bio Diversity studies (TIEBS) to pursue their higher education. TIEBS has some international collaboration with foreign universities for students’ and faculty exchange programmes. Ms.Arikara Hopo and Mr.Bannock Hopo after completing their post graduation from TIEBS, later got admission in a prestigious research programme of Inter University Centre for Bio-diversity and Ethno Medicine (IUCBEM). As a part of an academic exchange programme, ”the Adsila-Ojibwe Scholarship” between the Toqoi University and the Mayford University of State of Parsania, Ms Arikara and Mr Bannock were sent to State of Parsania, in 2010 for a period of two years with a fully funded fellowship . However, as per the TOR of the fellowship, their status would remain as a bonafide student of TIEBS. The State of Parsania is a developed nation and is one of the leading industrialized countries. ∙ The Adsila-Ojibwe Scholarship is one of the ‘Skill Parsania’ efforts of the Ojibwe Industries Inc. (OII), at the Mayford University and the company- OII completely sponsors the scholarship. The Ojibwe Industries Inc is a bio-agro multinational company, with its registered headquarters in Parsania, and had interests in varied corporate sectors 11 COMMONWEALTH MOOT COURT COMPETITION (INDIA 2019) like crop science; horticulture, consumer health; pharmaceuticals; ethnobotany, animal health, animal husbandry, and other business services. ∙ OII has its own specialized R&D wing; the company has more than 100 patents applications pending in multiple jurisdictions relating to various medicinal preparations and processes. As per TOR of the scholarship, the ownership of any intellectual property created during the scholarship period will exclusively vested with the OII., although the individual will be recognized as the inventor/creator as per the law. This mandatory term was also agreed in the Memorandum of Association between the IUCBEM, Toqoi University and the Mayford University. ∙ As part of their academic activities and the terms of Adsila-Ojibwe Scholarship, Ms Arikara and Mr Bannock were required to complete a project in the field of bio-ethnic medicine concoction of their indigenous community, which involved the use of Strychnos nux-vomica, Rauwolfia serpentine and Limonia Acidissima. However, instead of indigenous method of boiling, fermenting and cooling method, they used advanced biochemical distilling method and included tools like genomics, proteomics, and bioinformatics in the process. The biological pathways, such as gene and protein expression, modulation and regulation and cell signaling were also applied by them and they created a drug-Rausilux, which is 12 COMMONWEALTH MOOT COURT COMPETITION (INDIA 2019) COMMUNITY? A) THE PATENTING OF RAUSILUX WILL NOT AMOUNT TO BIO PIRACY AS THE EXACT COPYING OF THEPRODUCT IS NOT DONE IN THIS CASE. IT IS EXACLTY A NEW PRODUCT VERY MUST DIFFERENT FROM KEHAUR COMMUNITY. THE INVOLOVEMENT OF KEHAURIANS SHOWS THAT THERE IS NO BIO PIRACY. B)THERE IS NO MISAPPROPRIATION OF TRADITIONAL KNOWLEDEGE AS THIS MEDICINE WILL BE A LIFE SAVING DRUG TO THE ENTIRE WORLD AND THIS CONCEPT IS NOT UTILIZSED WRONGFULLY . 2)WHY CANT THE GRANTED PATENT OF RAUSILUX BE REVOKED ON THE BASIS OF ANTICIPATION AND PRIOR -ART? A) THERE IS NO PROBLEM REGARDING THE POINT OF ANTICIPATION AS THEY HAD PASSED ALL CLINICAL TRIALS AND SUCCESSFULLY BROUGHT TO MARKET. B) PRIOR -ART MEANS ANY ART WHICH WAS DONE IN ANY WHERE IN THE WORLD. HERE THERE IS NOTHING REGARDING PRIOR –ART AS MEDICINE BY KEAHURIANS AND MEDICINES BY OJIBWE INDUSTRIES ARE DIFFERENT IN MANY ASPECTS. SO THERE IS NO PROBLEM REGARDING PRIOR-ART. AGUMENTS SUPPORTED BY AUTHORITIES. 15 COMMONWEALTH MOOT COURT COMPETITION (INDIA 2019) 1)HOW THE PATENTING OF RAUSILUX WILL NOT AMOUNT TO BIOPIRACY AND MISAPPROPRIATION OF TRADITIONAL KNOWLEDGE OF KEHAUR COMMUNITY? 2)WHY CANT THE GRANTED PATENT FOR RAUSILUX BE REVOKED ON THE BASIS OF ANTICIPATION AND PRIOR ART? ∙ THE STUDENT INVENTORS INVENTED A CONCOCTION BASED ON THE KNOWLEDGE WHICH THEY HAD , MODIFIED THE CONCOCTION BY INCREASING THE SHELF-LIFE FROM TWO HOURS TO SIX MONTHS AND BETTER AVAILABILITY TO THE PEOPLE AS AN ANTI-COAGULANT OF DVT AND IT HAS NO RELATIONSHIP WITH THE MEDICINE USED BY THE KEHAUR COMMUNITY FOR THE TREATMENT OF BLOOD PRESSURE RELATED HEART PROBLEMS. THE ONLY SIMILARITY BETWEEN THEM IS THE PLANTS THEY USED, BUT SIMILAR INGREDIENTS THEY USED WILL NOT LEAD TO THE SAME MEDICINE. ∙ THERE ARE MANY MEDICINES WHICH CURES MORE THAN ONE DISEASES, SUCH AS ECOSPRIN 75mg TABLET IS AN ANTI-PLATELENT DRUG WHICH IS USED TO PREVENT CLOT IN BLOOD VESSELS AND ALSO RELIEVES PAIN AND INFLAMMATION. IT CAN BE TAKEN IN COMBINATION WITH OTHER ANTI-PLATLETS FOR BETTER ACTION. HERE 16 COMMONWEALTH MOOT COURT COMPETITION (INDIA 2019) SAME MEDICINE IS USED FOR MORE THAN ONE PURPOSE. ECOSPRINE 35mg TABLET WHICH IS USED AS AN ANTI-COAGULANT FOR STROKE. EVEN THOUGH THESE MEDICINES SOUNDS THE SAME BUT THEY DIFFER IN THEIR PURPOSE. 1 PARACETAMOL ALSO KNOWN AS ACETAMINOPHEN AND APAP, IS A MEDICINE USED TO TREAT PAIN AND FEVER. IT IS TYPICALLY USED FOR MILD TO MODERATE PAIN RELIEF, EVIDENCE FOR ITS USE TO RELIEVE FEVER IN CHILDREN IS MIXED. IT IS OFTEN SOLD IN COMBINATION WITH OTHER MEDICATIONS SUCH AS COLD,COUGH, ETC. THERE ARE VARIOUS MEDICINES USED FOR TREATMENT OF PAIN RELIEF COUGH, COLD,ETC SPECIFICALLY. PARACETAMOL BEING A MEDICINE THAT COVERS THE TREATMENT OF FORMER DISEASES DOESN’T MEAN THAT THOSE MEDICINES WHICH ARE SPECIFICALLY MADE WITH SIMILAR INGREDIENTS SHOULD NOT GET PATENT. ∙ THE MEDICINE CREATED BY THE INVENTORS AND THE MEDICINE USED BY THE KEAHUR COMMUNITY FOR CENTURIES DIFFER IN THEIR PROCESS, EFFECT AS WELL AS THEY USED BIO-GENETIC MATERIALS FROM THE SAME SPECIES OF PLANTS . THUS, THIS PATENT SHOULD NOT BE REVOKED ON THE BASIS OF BIO-PIRACY AS THESE YOUNG INVENTORS INVENTED A 17 COMMONWEALTH MOOT COURT COMPETITION (INDIA 2019) OF THIS CASE THAT, THE AROGYAPAACHA LEAVES WERE USED BY THE KANI TRIBE PEOPLE AND THE RESEARCHERS USED ∙ FOR AN INVENTION TO BE PATENTABLE, IT MUST BE DIFFERENT FROM ALL PUBLISHED ARTICLES, KNOWN TECHINIQUES AND MARKETED PRODUCTS. HERE, AN INVENTION LITERALLY MEANS “FINDING OUT SOMETHING WHICH HAS NOT BEEN FOUND BY OTHERS”.A PATENT REPRESENTS QUID PRO QUO (A FAVOUR OR ADVANTAGE GRANTED IN RETURN FOR SOMETHING). ∙ TALKING ABOUT THE PATENT LAW , HERE ANTICIPATION TALKS ABOUT THE PRIOR INVENTION OR DISCLOSURE OF THE CLAIMED INVENTION BY ANOTHER, OR THE INVENTOR’S ON DISCLOSURE OF THE CLAIMED INVENTION , SALE, PUBLICATION OR OFFER TO SELL PRIOR TO THE INVESTOR’S APPLICATION FOR A PATENT. IN SIMPLE WORDS, IF SOMEONE ELSE KNOWS ABOUT OR USED THE INVENTION BEFORE THE PATENT APPLICANT APPLIES FOR A PATENT THEN THE PATENT APPLICANT WILL NOT BE ELIGIBLE FOR PATENT. ∙ A PATENT IS AN EXCLUSIVE RIGHT GRANTED TO A PERSON WHO HAS4 INVENTED A NEW AND USEFUL ARTICLE OR AN IMPROVEMENT OF AN EXISTING ARTICLE OR A NEW PROCESS OF MAKING AN ARTICLE. IT CONSISTS OF AN EXCLUSIVE RIGHT TO MANUFACTURE THE NEW ARTICLE 4 Intellectual Property Law, Authored by P. Narayanan Pg-11 20 COMMONWEALTH MOOT COURT COMPETITION (INDIA 2019) INVENTED OR MANYUFACTURED AN ARTICLE ACCORDING TO THE INVENTED PROCESS FOR A LIMITED PERIOD. AFTER THE EXPIRY TO THE DURATION OF THE PATENT, ANYBODY CAN MAKE USE OF THE INVENTION. ∙ THE GRANTED patent for Rausilux be revoked on the basis of anticipation and prior- art. ∙ The granted patent of Rausilux can’t be revoked on the basis of anticipation and prior art as this drug passed all clinical test and their will be no technical problem regarding the technical side of Rausilux .Considering the side of prior-art as the term prior art refers to any art which is previously invented or used anywhere but in this case both medicines that is the medicines by kehuarians and the medicine invented by ojibwe industries are different in many aspects the medicines by the people of kehuar community can be used only for two hours and the medicine by the ojibwe industries can be used up to 6 month thus it becomes a life saving drug since the contents are same the essences and the entire process differs so there is no prior-art . PRAYER FOR RELIEF 21 COMMONWEALTH MOOT COURT COMPETITION (INDIA 2019) WHEREFORE, IN LIGHT OF THE FACTS STATED,ISSUES RAISED,AUTHORITIES CITED& ARGUMENTS ADVANCED MAY THIS HON’BLE COURT BE PLEASED TO ADJUDGE &DECLARE THAT : 1. THE PATENT SHOULD NOT BE REVOKED ON THE BASIS OF BIO –PIRACY 2.THE RESPODENT DID NOT MISSAPROPRIATED TRADITIONAL KNOWLEDGE 3.THE PATENT MADE AVAILABLE A LIFE SAVING DRUG TO ALL PEOPLE WIDELY AND PASS ANY OTHER ORDER THAT IT MAY DEEM FIT IN THE INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCE.ALL WHICH IS MOST HUMBLY PRAYED ON BEHALF OF RESPONDENT COUNSEL OF THE RESPONDENT 22