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Intellectual Property Law Introduction for B Tech

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Unit – I Intellectual Property Law
Introduction • Intellectual property law is the area of law that deals with legal rights to creative works and inventions. • It controls who gets to use creations including new products, artistic works and designs. • The purpose of intellectual property law is to allow the people who create and invent things to profit from their work. Lawmakers believe that it’s fair for creators to profit from their own work product.
Evolutionary past Historical Background: Ancient Times • Signatures on Paintings & Creations • Substantial and Identifiable Patterns & particularity in Architectures, Painting’s, Jewellery, Dresses etc. • Rewards and monopolies granted by Emperors • Stamping of Jewelers’ Initials on Jewellery made by them (Still followed by local Jewelers) • Concept of Copyright came only after invention of Printing Press.
Historical Background: Modern Times • Modern patents originated in Europe where European sovereigns commonly awarded "letters patent" to favored inventors. • The first U.S. patent laws were enacted by Congress in 1790 as part of the Constitution. • The first patent was granted by the Massachusetts General Court to Samuel Winslow in 1641 for a novel method of making salt. • George Washington signed the First United States Patent Grant on July 31, 1790. • Patent system in India was first introduced by British Government in 1856. • The Indian Patents and Designs Act, 1911, (2 of 1911) first enacted under the management of Controller of Patents with a patent term of 14 years. • The Patents Act (39 of 1970) came into force on 20th April 1972 . • Initially, the Patent Act, 1970, provided a term of 7 years for pharmaceutical, agro chemical and food products and 16 years for other categories.
Current IP Laws in India Copyright • Copyright Act of 1957 Customs • Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007 Designs • The Designs Act, 2000 • The Design (Amendment) Rules, 2008 Geographical Indications • Geographical Indications of Goods (Registration and Protection) Act, 1999 • Geographical Indications of Goods (Registration and Protection) Rules, 2002 Trademarks • The Trade Marks Act, 1999 • The Trade Marks Rules, 2002 Information Technology • The Information Technology Act, 2000 • The Information Technology Rules, 2000 • Cyber Regulations Appellate Tribunal (Procedure) Rules, 2000 Patents • The Patents Act, 1970 • The Patents (Amendment) Act, 2005 • The Patents Rules, 2003 • The Patents (Amendment) Rules, 2006 Plant • Plant Varieties Protection and Farmers' Rights Act, 2001 Semiconductor and Integrated Circuits • Semiconductor Integrated Circuits Layout Design Act 2000 • Rules for the Semiconductor Integrated Circuits Layout Design Act 2000
Salient Features: Indian Patent System Novelty • Invention would not be considered novel if it is used or published in India or elsewhere before the date of filing/priority. Term • The term of every patent granted is 20 years from date of filing. Publication: • Except where an early request for publication has been made, every patent will be published just after 18 months from the date of filing/priority and will be open for public on payment of fee prescribed. Opposition: • Provision of Pre-grant and Post-grant opposition has been introduced, where a pre-grant opposition can be filed by any person before the grant of patent, a post-grant opposition can be filed by any interested person after the grant of patent but before the expiry of 1 year.
Contdd.. • Revocation: A patent can be challenged and revoked anytime after the grant of patent on a petition of any interested person or Central Government by the Appellate Board or on a counter- claim in a suit for infringement of the patent by the High Court. • Compulsory license can be granted to any interested person after the expiration of 3 years from the date of grant for non-working, unreasonable price and fail to fulfill the demand of patented invention. • Intellectual Property Appellate Board (IPAB) has now been constituted to hear appeals against the decisions of the Controller under the Patents Act, 1970. • India is now recognized as an International Searching Authority (ISA) and an International Preliminary Examining Authority (IPEA). • E-filing: Facility for e-filing of for patent and trademark has been launched.
Basics of Intellectual Property Law • Patent Law • Copyright Law • Trademark Law
Patent Law • The history of Patent law in India starts from 1911 when the Indian Patents and Designs Act, 1911 was enacted. • The present Patents Act, 1970 came into force in the year 1972, amending and consolidating the existing law relating to Patents in India. • The Patents Act, 1970 was again amended by the Patents (Amendment) Act, 2005, wherein product patent was extended to all fields of technology including food, drugs, chemicals and micro-organisms. • After the amendment, the provisions relating to Exclusive Marketing Rights (EMRs) have been repealed, and a provision for enabling grant of compulsory license has been introduced. • The provisions relating to pre-grant and post-grant opposition have been also introduced. • An invention relating to a product or a process that is new, involving inventive step and capable of industrial application can be patented in India. • However, it must not fall into the category of inventions that are non- patentable as provided under sections 3 and 4 of the (Indian) Patents Act, 1970. • In India, a patent application can be filed, either alone or jointly, by true and first inventor or his assignee.
Copyright Law • Indian copyright law is at parity with the international standards as contained in TRIPS. • The (Indian) Copyright Act, 1957, pursuant to the amendments in 1999, 2002 and 2012, fully reflects the Berne Convention for Protection of Literary and Artistic Works, 1886 and the Universal Copyrights Convention, to which India is a party. • India is also a party to the Geneva Convention for the Protection of Rights of Producers of Phonograms and is an active member of the World Intellectual Property Organization(WIPO)
Trademark Law • Prior to statutory enactment of regulations governing trademark law and practice in India, the proprietary rights vested in a trademark were protected through common law principles and principles of equity. • Majority of Indian Laws owe their origin to English Laws which were substantially subsumed while formulating Laws for the Indian subcontinent prior to Independence. • The passing of the English Act, 1875, which provided for the protection of trademarks in England prompted passing of a similar Bill in India. • Subsequently, requests were made to the Bombay Government by the Bombay Chamber of Commerce and Mill Owners’ Association for introducing a Bill in the Bombay Legislative Council on the lines of the English Act. • The Central Government took up the matter and circulated the Trademark Bill for public opinion in 1879. • However, the Bill met heavy opposition from vested interests and commercial public and was not proceeded with further
Contdd.. • The need for a law exclusively addressing trademark practice and procedure in India was again sought for in the 19th century which eventually materialized into the Trademark Act, 1940. • The Trademark Act, 1940 predominantly reflected the provisions incorporated in the UK Trademark Act, 1938. • Subsequently, in the wake of ensuing trade and commerce development, the Trademark Act, 1958 was passed to address the lacunae being witnessed in the Trademark Act, 1940. • The Trademark Act, 1958 also consolidated the provisions associated with trademarks in the Indian Penal Code, Criminal Procedure Code and Sea Customs.
Contdd.. • The Trademark Act, 1958 was thereafter repealed by the Trademark Act, 1999 which at present governs trademark law and practice in India. • The Trademark Act, 1999 was enacted with the intent to revise the Act in congruity with latest developments witnessed in trading and commercial practices, rapid globalization and for harmonization with International trade laws.
Some of the epoch- making inclusions in the Trademark Act, 1999 inter alia include: • Provision was made for trademark registration in respect of services in addition to goods; • Statutory protection was extended to well-known trademarks; • Widened the scope and purview of ‘trademark’ in India; • Provision for registration of ‘collective marks’; • Incorporated provision to prevent use of trademark as a corporate or trade name by third party.
Types of Intellectual Property The four types of intellectual property include: • Trade Secrets • Trademarks • Copyrights, and • Patents.
Types of Intellectual Property
Types of Intellectual Property Patent Trademark Copyright Geographical Indication Industrial Design Trade Secret
Patent • A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. • To get a patent, technical information about the invention must be disclosed to the public in a patent application.
Patent • A Patent is a grant issued by the government through the Intellectual Property Office of the India. • It is an exclusive right granted for a product, process or an improvement of a product or process which is new, inventive and useful. • This exclusive right gives the inventor the right to exclude others from making, using, or selling the product of his invention during the life of the patent. • A patent has a term of protection of twenty (20) years providing an inventor significant commercial gain. • In return, the patent owner must share the full description of the invention.
NON-PATENTABLE INVENTIONS • Discovery • Scientific theory • Mathematical methods • Scheme, rule and method of performing mental act • Playing games • Doing business • Program for computer • Method for treatment – human or animal body by surgery or therapy & diagnostic method • Plant variety or animal breed or essentially biological • processes for the production of plants and animals • Aesthetic creation • Contrary to public order or morality
REQUIREMENT FOR PATENTABILITY • NOVELTY • INVENTIVE STEP • INDUSTRIAL APPLICABILITY
REQUIREMENTS FOR FILING A PATENT • Request for the Grant of Patent • Description of the Invention (Specification and Claim/s) • Drawings necessary for the Invention (if any) • Filing Fee
Copyright • "a person's exclusive right to reproduce, publish, or sell his or her original work of authorship (as a literary, musical, dramatic, artistic, or architectural work).“ • It's important to understand that copyright law covers the "form of material expression," not the actual concepts, ideas, techniques, or facts in a particular work
WORKS COVERED BY COPYRIGHT PROTECTION • Books, pamphlets, articles and other writings • Periodicals and newspapers • Lectures, sermons, addresses, dissertations prepared for oral delivery, whether or not reduced in writing or other material form • Letters • Dramatic or dramatic-musical compositions; choreographic works or entertainment in dumb shows • Musical compositions, with or without words
Contdd. • Works of drawing, painting, architecture, sculpture, engraving, lithography or other work of art; models or designs for works of art • Original ornamental designs or models for articles of manufacture, whether or not registrable as an industrial design, and other works of applied art • Illustrations, maps, plans, sketches, charts and three dimensional works relative to geography, topography, architecture or science • Drawings or plastic works of a scientific or technical character
Contd.. • Photographic works including works produced by a process analogous to photography; lantern slides • Audiovisual works and cinematographic works and works produced by a process analogous to cinematography or any process for making audio- visual recordings • Pictorial illustrations and advertisements • Computer programs • Other literary, scholarly, scientific and artistic works.
Trademarks • The Trade Marks Registry was established in India in 1940 and presently it administers the Trade Marks Act, 1999 and the rules there under. • It acts as a resource and information centre and is a facilitator in matters relating to trade marks in the country. • The objective of the Trade Marks Act, 1999 is to register trade marks applied for in the country and to provide for better protection of trade mark for goods and services and also to prevent fraudulent use of the mark. • The main function of the Registry is to register trade marks which qualifies for registration under the Act and Rules.
TRADEMARKS • "Mark" means any visible sign capable of distinguishing the goods (trademark) or services (service mark) of an enterprise and shall include a stamped or marked container of goods. • A trademark is a tool used that differentiates goods and services from each other. It is a very important marketing tool that makes the public identify goods and services. • A trademark can be one word, a group of words, sign, symbol, logo, or a combination of any of these. • Generally, a trademark refers to both trademark and service mark, although a service mark is used to identify those marks used for services only.
TRADEMARK PROTECTION • A trademark can be protected through registration. Registration gives the trademark owner the exclusive right to use the mark and to prevent others from using the same or similar marks on identical or related goods and services. • Before applying for trademark registration, it would help if you conduct a search in the trademarks database to determine if there are identical or similar marks that would prevent the registration of your mark. • This is to prevent future conflicts with marks that are already registered or with earlier filing dates.
Trade Secret • Broadly speaking, any confidential business information which provides an enterprise a competitive edge may be considered a trade secret. • Trade secrets encompass manufacturing or industrial secrets and commercial secrets. • The unauthorized use of such information by persons other than the holder is regarded as an unfair practice and a violation of the trade secret. • Depending on the legal system, the protection of trade secrets forms part of the general concept of protection against unfair competition or is based on specific provisions or case law on the protection of confidential information
Functions
Innovations and Inventions of Trade related Intellectual Property Rights • Innovation is not the same as invention. Innovation is a process, which begins from the conception of an idea to the launching of a new product/process in the market place • Inventions are the bedrock of innovation. An invention is a new solution to a technical problem and can be protected through patents.
Innovation • Generally put, an ‘innovation’ is developing a new idea and putting it into practice. • The term ‘innovation’ is used here to refer to the process of bringing valuable new products (goods and services) to market i.e., from the idea/concept formulation stage to the successful launching of a new or improved product in the marketplace, or the result of that process, so as to meet the explicit or implied needs of current or potential customers. • In other words, through innovation an enterprise seeks to deliver unique new value to its customers. In this context, ‘marketing’ is the understanding of that unique new value and communicating it to the current and potential customers of a business so that the product sells itself.
Contdd.. • Technological innovation may be classified in several ways: – Product vs. Process, – Radical (basic or fundamental) vs. Incremental (improvement), and – Disruptive vs. Sustaining (sequential and/or complementary). • Other important types of (non-technological) innovations that do not result from scientific and/or technological R&D, but are often crucial for profitably marketing the products and services resulting from the investment made in R&D are: – Marketing Innovation, – Institutional Innovation, – Complementary Innovation.
Role of IP in Innovation • As there are many players involved in facilitating the market success of an innovation, the effective use of the tools of IP will play an important role in reducing risk for the players involved, who may then be able to reap acceptable returns for their participation in the process. • IP plays an important role in facilitating the process of taking innovative technology to the market place. • At the same time, IP plays a major role in enhancing competitiveness of technology-based enterprises, whether such enterprises are commercializing new or improved products or providing service on the basis of a new or improved technology. • For most technology-based enterprises, a successful invention results in a more efficient way of doing things or in a new commercially viable product. • The improved profitability of the enterprise is the outcome of added value that underpins a bigger stream of revenue or higher productivity.
Agencies The agency of the government in charge of the implementation of the Intellectual Property Code is the Intellectual Property Office which replaced the Bureau of Patents, Trademarks and Technology Transfer. It is divided into six [6] Bureaus, namely: • Bureau of Patents • Bureau of Trademarks • Bureau of Legal Affairs • Documentation, Information and Technology Transfer Bureau • Management Information System and EDP Bureau • Administrative, Financial and Personnel Services Bureau.
AGENCIES RESPONSIBLE FOR INTELLECTUAL PROPERTY REGISTRATION • United States Patents and Trademark Office • INTERNATIONAL ORGANIZATIONS, AGENCIES AND TREATIES – International Trademark Association (INTA) – World Intellectual Property Organization (WIPO) – Berne Convention for the Protection of Literary and Artistic Works (the Berne Convention) – Madrid Protocol – Paris Convention – North American Free Trade Agreement (NAFTA) – General Agreement on Tariffs and Trade (GATT)
India – Convention and Treaty • Berne Convention (Literary and Artistic Works) w.e.f. April 1, 1928 • Geneva Convention (Unauthorized Duplication of Phonograms) w.e.f. February 12, 1975. • World Intellectual Property Organization (WIPO) w.e.f. May 1, 1975 • Nairobi Treaty (Olympic Symbol) w.e.f. October 19, 1983 • Convention on Biological Diversity w.e.f. February 18, 1994 • World Trade Organization (WTO) Member and Signatory to TRIPS Agreement w.e.f. January 1, 1995 • Paris Convention w.e.f. December 7, 1998 • Patent Cooperation Treaty (PCT) w.e.f. December 7, 1998 • Budapest Treaty (for deposition of microorganisms) w.e.f. from December 17, 2001
Infringement Regulatory Type of Intellectual Property Infringement Patent Make, Use, Offer, Sale, Import Trademarks Used in Commerce Copyrights Copying, Etc Trade Secrets Misappropriation
Over use or Misuse of IP • Intellectual property abuse, basically, is a defence for a suit of IP infringement. • When such defence proves to be justified in a case, then the defendant is spared from the liability of granting immediate relief to the plaintiff. • However, the misuse doctrine does not prevent the party to rely on the courts in case of any future infringement. • The intellectual property owners may return to court once they have “purged” the misuse, for example, by striking anti-competitive provisions in their licensing agreements. • A transparent and somewhat definite legal and judicial take on abuse of intellectual property rights has largely remained limited to patent misuse, later extending to copyright misuse, which branched out of the former. • Both trademark and trade secret misuse are still subjects of academic debate and lack any practical application in courts.
Different forms of Intellectual Property Rights abuse have been elaborated under the following heads: • Patent misuse • Copyright misuse • Patent trolls • Tax Avoidance • Harmonization of IPR and Competition Laws: TRIPS • Compulsory Licensing
Patent Misuse • At times, patent owner wrongfully uses the patent surpassing its legitimate scope. Patent misuse is the unjustified use of the acquired patent rights. • Examples of patent misuse include illegal tying of products and services to the patented invention, price fixing, fraudulently making the customers pay royalties on items the patent of which has expired, and the like. • The concept of patent misuse first surfaced in the case of Adams v Burke, decided by the US Supreme Court in 1873. • The court held that after the first authorized sale of a patent product by the patentee, the product becomes the complete property of the purchaser, rendering the patentee devoid of his monopoly rights over the product. • Subsequent purchasers acquire the same rights over the product as the seller had, and may use it in the same way the owner could have used. This came to be known as the exhaustion doctrine.
Contd… • However, in the 19th century, not many facets of patent misuse were acknowledged by the judges. • In the famous case of Henry v. A.B. Dick Co, the United States Supreme Court upheld the validity of licensing the use of tied or other related products along with the originally patented product. • Usually known as the Inherency doctrine, this theory states that it was the inherent right of a patent owner, in lieu of his having exclusive rights over his product, to exercise the right to license the product on any terms and conditions he chose.
Contdd. • In 1917, the United States Supreme Court overruled the A.B. Dick case in Motion Picture Patents Co. v. Universal Film Mfg. Co. • In this case the Supreme Court held that ‘the scope of every patent is limited to the invention described in the claims. • The patentee can claim nothing beyond them.’ It condemned the licensing of materials which formed no part of the patented invention and were merely necessary for its operation. • In Brulotte v. Thys Co. (1964), the United States Supreme Court held that a patent holder’s attempt to collect royalties beyond the term of the patent constitutes misuse of the patent.
Contd.. • An essential condition for using patent misuse defence is that it must hamper the competition in the market. • When a company accuses a patent owner of misuse, then the allegation must fulfill 2 conditions: – The valid patent was used as a way to change business outcomes – The anti-competitive effects extended outside of the patent’s scope
Contd.. • The patent misuse doctrine requires that the alleged infringer show that the patentee has impermissibly broadened the ‘physical or temporal scope’ of the patent grant with anticompetitive effect. • Patent misuse does not affect a patent’s validity. • Since the 20th century, there have been significant developments through various legislations and judicial decisions that have further broadened the scope and understanding of the patent systems so as to eliminate the loopholes and make it more user- friendly.
Copyright misuse • Copyright misuse occurs when a company or an individual makes unjustified use of a copyright which is beyond its legal capacity and in violation of the Copyright Act of the concerned country. • A copyright owner could commit misuse by violating any public policy choices embodied in the Copyright Act, such as by using a license agreement to extend the length of its copyright monopoly. • Copyright misuse can also occur when the assertion of copyright is aimed at suppressing speech. • It is believed that Copyright misuse derives its basis from patent misuse as, while patent abuse finds mention in various cases since the 19th century, copyright misuse found recognition in the legal fraternity only a few decades ago.
Contd. • Morton Salt Co. v. GS. Suppiger (1942) case, decided by the United States Supreme Court, laid the foundation of the concept of copyright misuse. While the reasoning given by the court refers to patent misuse, the commentary and the dicta address the issue of copyright misuse. • In the case Tekla Corporation v. Survo Ghosh, decided by the Delhi High Court on 16th May 2014, Justice Endlaw of the Delhi High Court held that “copyright misuse does not constitute a legitimate defense for copyright infringement in India.”
Contd… • In Alcatel U.S.A., Inc. v. DGI Technologies (1999), it was held that the defense of copyright misuse has its historical roots in the unclean hands doctrine, i.e, which means that the suit of infringement filed by the plaintiff, who himself has abused the privilege conferred upon him by the copyright, is not itself justified. • In the instant case, the Court found copyright misuse where the holder of a copyright in software licensed its use on the condition that the licensee also use it only in conjunction with the copyright holder’s hardware. • It prescribed the use of the copyright to secure an exclusive right or monopoly, which is not granted by the Copyright Office of a country and which is contrary to public policy to grant. • Upon the improper use of a copyrighted work, the work will provide no copyright rights to its owner. • In order to retain the rights, it is important that the activity constituting the misuse must be ceased.
Patent trolls • Patent Trolls, formally known as ‘Non-Practicing Entities (NPEs) or Patent Assertion Entities (PAEs)’, are companies which tend to earn a fortune from frivolous patent infringement lawsuits. • While normal companies use their patents to protect their product from being counterfeited and sold in the market, patent trolls often acquire patents cheaply from bankrupt companies and, instead of using such patents in operations, these companies charge hefty licensing fees on other persons or businesses which appear to infringe any of their acquired patents. • Fees can range from ten to hundred thousand dollars, whereas patent lawsuits can cost the individuals or companies in millions. • Hence, when such are the costs, many companies prefer to concede and settle, even if they believe there to be no patent infringement.
Contd. • This practice is a lucrative option for making money with minimal risks. • Small mobile and software companies, mostly startups, are most vulnerable in this case and an easy target of patent trolls. • According to the RPX Corporation (RPXC) “NPE Litigation Report,” around 4,500 patent infringement lawsuits were filed in 2014. • Out of those, patent trolls were responsible for 2,791 cases, i.e. 63% of the total, whereas actual operating companies filed only 1,667.
Contd.. • A landmark case that came as a relief for companies in the United States, as it would mitigate the threat of phoney patent suits, was decided by the United States Supreme Court recently. • The Court, in TC Heartland v. Kraft Foods (2017), unanimously ruled that patent cases should be tried where the defending company is based, rather than in a court of the plaintiff’s choosing. • Until now, patent cases could be heard anywhere throughout the country, causing the companies to find the courts where the odds would be in their favour, often resulting in biased results and over burdening of certain courts.
Tax Avoidance • According to Prof. Andrew Blair-Stanek of University of California, Multinational Corporations use Intellectual Property (IP) to avoid taxes on a massive scale, by transferring their IP to tax havens for artificially low prices. • He states that there are two main reasons which make acquired intellectual property rights ideal for tax evasion. – First, unlike workers or physical assets like factories or stores, IP can easily be moved to tax havens via mere paperwork. – Second, the uniqueness of every piece of IP makes a precise fair market value nearly impossible to establish, allowing multinationals to justify low valuations that result in the least tax. Virtually all IP-based tax-avoidance schemes involve assigning an artificially low price to a piece of IP at some point in time.
Harmonization of IPR and Competition Laws: TRIPS • While the negotiations over the TRIPS Agreement were going on, many countries expressed their serious concern over the regulation of unfair competition and abusive monopoly powers of the IP rights holder. • Subsequently, after much deliberations, Article 40 of the TRIPS agreement was inserted to address the issue of IPR misuse and combat it through necessary government intervention:
Article 40 • Members agree that some licensing practices or conditions pertaining to intellectual property rights which restrain competition may have adverse effects on trade and may impede the transfer and dissemination of technology. • Nothing in this Agreement shall prevent Members from specifying in their legislation licensing practices or conditions that may in particular cases constitute an abuse of intellectual property rights having an adverse effect on competition in the relevant market. • As provided above, a Member may adopt, consistently with the other provisions of this Agreement, appropriate measures to prevent or control such practices, which may include for example exclusive grant back conditions, conditions preventing challenges to validity and coercive package licensing, in the light of the relevant laws and regulations of that Member. • Article 40 of the Agreement empowers the member countries to specify any exploitation of monopoly rights and adopt such laws that may be necessary to curb the abuse of IPR.
Compulsory Licensing • According to World Trade Organisation, • Compulsory licensing is when a government allows someone else to produce a patented product or process without the consent of the patent owner or plans to use the patent-protected invention itself. • It is one of the flexibilities in the field of patent protection included in the WTO’s agreement on intellectual property — the TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement. • The right over the product still rests with the owner, who is entitled to royalty by the users. This is an effective statutory measure to deter complete control of the owner over the unfettered use (or misuse) of the product. • Article 31 of the TRIPS agreement provides for the grant of compulsory licensing under certain exceptional situations such as national emergency or other circumstances of extreme urgency or inadequate exploitation of the patent in the country.

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Intellectual Property Law Introduction for B Tech

  • 1.
  • 2.
    Introduction • Intellectual propertylaw is the area of law that deals with legal rights to creative works and inventions. • It controls who gets to use creations including new products, artistic works and designs. • The purpose of intellectual property law is to allow the people who create and invent things to profit from their work. Lawmakers believe that it’s fair for creators to profit from their own work product.
  • 3.
    Evolutionary past Historical Background:Ancient Times • Signatures on Paintings & Creations • Substantial and Identifiable Patterns & particularity in Architectures, Painting’s, Jewellery, Dresses etc. • Rewards and monopolies granted by Emperors • Stamping of Jewelers’ Initials on Jewellery made by them (Still followed by local Jewelers) • Concept of Copyright came only after invention of Printing Press.
  • 4.
    Historical Background: ModernTimes • Modern patents originated in Europe where European sovereigns commonly awarded "letters patent" to favored inventors. • The first U.S. patent laws were enacted by Congress in 1790 as part of the Constitution. • The first patent was granted by the Massachusetts General Court to Samuel Winslow in 1641 for a novel method of making salt. • George Washington signed the First United States Patent Grant on July 31, 1790. • Patent system in India was first introduced by British Government in 1856. • The Indian Patents and Designs Act, 1911, (2 of 1911) first enacted under the management of Controller of Patents with a patent term of 14 years. • The Patents Act (39 of 1970) came into force on 20th April 1972 . • Initially, the Patent Act, 1970, provided a term of 7 years for pharmaceutical, agro chemical and food products and 16 years for other categories.
  • 5.
    Current IP Lawsin India Copyright • Copyright Act of 1957 Customs • Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007 Designs • The Designs Act, 2000 • The Design (Amendment) Rules, 2008 Geographical Indications • Geographical Indications of Goods (Registration and Protection) Act, 1999 • Geographical Indications of Goods (Registration and Protection) Rules, 2002 Trademarks • The Trade Marks Act, 1999 • The Trade Marks Rules, 2002 Information Technology • The Information Technology Act, 2000 • The Information Technology Rules, 2000 • Cyber Regulations Appellate Tribunal (Procedure) Rules, 2000 Patents • The Patents Act, 1970 • The Patents (Amendment) Act, 2005 • The Patents Rules, 2003 • The Patents (Amendment) Rules, 2006 Plant • Plant Varieties Protection and Farmers' Rights Act, 2001 Semiconductor and Integrated Circuits • Semiconductor Integrated Circuits Layout Design Act 2000 • Rules for the Semiconductor Integrated Circuits Layout Design Act 2000
  • 6.
    Salient Features: IndianPatent System Novelty • Invention would not be considered novel if it is used or published in India or elsewhere before the date of filing/priority. Term • The term of every patent granted is 20 years from date of filing. Publication: • Except where an early request for publication has been made, every patent will be published just after 18 months from the date of filing/priority and will be open for public on payment of fee prescribed. Opposition: • Provision of Pre-grant and Post-grant opposition has been introduced, where a pre-grant opposition can be filed by any person before the grant of patent, a post-grant opposition can be filed by any interested person after the grant of patent but before the expiry of 1 year.
  • 7.
    Contdd.. • Revocation: Apatent can be challenged and revoked anytime after the grant of patent on a petition of any interested person or Central Government by the Appellate Board or on a counter- claim in a suit for infringement of the patent by the High Court. • Compulsory license can be granted to any interested person after the expiration of 3 years from the date of grant for non-working, unreasonable price and fail to fulfill the demand of patented invention. • Intellectual Property Appellate Board (IPAB) has now been constituted to hear appeals against the decisions of the Controller under the Patents Act, 1970. • India is now recognized as an International Searching Authority (ISA) and an International Preliminary Examining Authority (IPEA). • E-filing: Facility for e-filing of for patent and trademark has been launched.
  • 8.
    Basics of IntellectualProperty Law • Patent Law • Copyright Law • Trademark Law
  • 9.
    Patent Law • Thehistory of Patent law in India starts from 1911 when the Indian Patents and Designs Act, 1911 was enacted. • The present Patents Act, 1970 came into force in the year 1972, amending and consolidating the existing law relating to Patents in India. • The Patents Act, 1970 was again amended by the Patents (Amendment) Act, 2005, wherein product patent was extended to all fields of technology including food, drugs, chemicals and micro-organisms. • After the amendment, the provisions relating to Exclusive Marketing Rights (EMRs) have been repealed, and a provision for enabling grant of compulsory license has been introduced. • The provisions relating to pre-grant and post-grant opposition have been also introduced. • An invention relating to a product or a process that is new, involving inventive step and capable of industrial application can be patented in India. • However, it must not fall into the category of inventions that are non- patentable as provided under sections 3 and 4 of the (Indian) Patents Act, 1970. • In India, a patent application can be filed, either alone or jointly, by true and first inventor or his assignee.
  • 10.
    Copyright Law • Indiancopyright law is at parity with the international standards as contained in TRIPS. • The (Indian) Copyright Act, 1957, pursuant to the amendments in 1999, 2002 and 2012, fully reflects the Berne Convention for Protection of Literary and Artistic Works, 1886 and the Universal Copyrights Convention, to which India is a party. • India is also a party to the Geneva Convention for the Protection of Rights of Producers of Phonograms and is an active member of the World Intellectual Property Organization(WIPO)
  • 11.
    Trademark Law • Priorto statutory enactment of regulations governing trademark law and practice in India, the proprietary rights vested in a trademark were protected through common law principles and principles of equity. • Majority of Indian Laws owe their origin to English Laws which were substantially subsumed while formulating Laws for the Indian subcontinent prior to Independence. • The passing of the English Act, 1875, which provided for the protection of trademarks in England prompted passing of a similar Bill in India. • Subsequently, requests were made to the Bombay Government by the Bombay Chamber of Commerce and Mill Owners’ Association for introducing a Bill in the Bombay Legislative Council on the lines of the English Act. • The Central Government took up the matter and circulated the Trademark Bill for public opinion in 1879. • However, the Bill met heavy opposition from vested interests and commercial public and was not proceeded with further
  • 12.
    Contdd.. • The needfor a law exclusively addressing trademark practice and procedure in India was again sought for in the 19th century which eventually materialized into the Trademark Act, 1940. • The Trademark Act, 1940 predominantly reflected the provisions incorporated in the UK Trademark Act, 1938. • Subsequently, in the wake of ensuing trade and commerce development, the Trademark Act, 1958 was passed to address the lacunae being witnessed in the Trademark Act, 1940. • The Trademark Act, 1958 also consolidated the provisions associated with trademarks in the Indian Penal Code, Criminal Procedure Code and Sea Customs.
  • 13.
    Contdd.. • The TrademarkAct, 1958 was thereafter repealed by the Trademark Act, 1999 which at present governs trademark law and practice in India. • The Trademark Act, 1999 was enacted with the intent to revise the Act in congruity with latest developments witnessed in trading and commercial practices, rapid globalization and for harmonization with International trade laws.
  • 14.
    Some of theepoch- making inclusions in the Trademark Act, 1999 inter alia include: • Provision was made for trademark registration in respect of services in addition to goods; • Statutory protection was extended to well-known trademarks; • Widened the scope and purview of ‘trademark’ in India; • Provision for registration of ‘collective marks’; • Incorporated provision to prevent use of trademark as a corporate or trade name by third party.
  • 15.
    Types of IntellectualProperty The four types of intellectual property include: • Trade Secrets • Trademarks • Copyrights, and • Patents.
  • 16.
  • 17.
    Types of IntellectualProperty Patent Trademark Copyright Geographical Indication Industrial Design Trade Secret
  • 18.
    Patent • A patentis an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. • To get a patent, technical information about the invention must be disclosed to the public in a patent application.
  • 19.
    Patent • A Patentis a grant issued by the government through the Intellectual Property Office of the India. • It is an exclusive right granted for a product, process or an improvement of a product or process which is new, inventive and useful. • This exclusive right gives the inventor the right to exclude others from making, using, or selling the product of his invention during the life of the patent. • A patent has a term of protection of twenty (20) years providing an inventor significant commercial gain. • In return, the patent owner must share the full description of the invention.
  • 20.
    NON-PATENTABLE INVENTIONS • Discovery •Scientific theory • Mathematical methods • Scheme, rule and method of performing mental act • Playing games • Doing business • Program for computer • Method for treatment – human or animal body by surgery or therapy & diagnostic method • Plant variety or animal breed or essentially biological • processes for the production of plants and animals • Aesthetic creation • Contrary to public order or morality
  • 21.
    REQUIREMENT FOR PATENTABILITY •NOVELTY • INVENTIVE STEP • INDUSTRIAL APPLICABILITY
  • 22.
    REQUIREMENTS FOR FILINGA PATENT • Request for the Grant of Patent • Description of the Invention (Specification and Claim/s) • Drawings necessary for the Invention (if any) • Filing Fee
  • 23.
    Copyright • "a person'sexclusive right to reproduce, publish, or sell his or her original work of authorship (as a literary, musical, dramatic, artistic, or architectural work).“ • It's important to understand that copyright law covers the "form of material expression," not the actual concepts, ideas, techniques, or facts in a particular work
  • 24.
    WORKS COVERED BYCOPYRIGHT PROTECTION • Books, pamphlets, articles and other writings • Periodicals and newspapers • Lectures, sermons, addresses, dissertations prepared for oral delivery, whether or not reduced in writing or other material form • Letters • Dramatic or dramatic-musical compositions; choreographic works or entertainment in dumb shows • Musical compositions, with or without words
  • 25.
    Contdd. • Works ofdrawing, painting, architecture, sculpture, engraving, lithography or other work of art; models or designs for works of art • Original ornamental designs or models for articles of manufacture, whether or not registrable as an industrial design, and other works of applied art • Illustrations, maps, plans, sketches, charts and three dimensional works relative to geography, topography, architecture or science • Drawings or plastic works of a scientific or technical character
  • 26.
    Contd.. • Photographic worksincluding works produced by a process analogous to photography; lantern slides • Audiovisual works and cinematographic works and works produced by a process analogous to cinematography or any process for making audio- visual recordings • Pictorial illustrations and advertisements • Computer programs • Other literary, scholarly, scientific and artistic works.
  • 27.
    Trademarks • The TradeMarks Registry was established in India in 1940 and presently it administers the Trade Marks Act, 1999 and the rules there under. • It acts as a resource and information centre and is a facilitator in matters relating to trade marks in the country. • The objective of the Trade Marks Act, 1999 is to register trade marks applied for in the country and to provide for better protection of trade mark for goods and services and also to prevent fraudulent use of the mark. • The main function of the Registry is to register trade marks which qualifies for registration under the Act and Rules.
  • 28.
    TRADEMARKS • "Mark" meansany visible sign capable of distinguishing the goods (trademark) or services (service mark) of an enterprise and shall include a stamped or marked container of goods. • A trademark is a tool used that differentiates goods and services from each other. It is a very important marketing tool that makes the public identify goods and services. • A trademark can be one word, a group of words, sign, symbol, logo, or a combination of any of these. • Generally, a trademark refers to both trademark and service mark, although a service mark is used to identify those marks used for services only.
  • 29.
    TRADEMARK PROTECTION • Atrademark can be protected through registration. Registration gives the trademark owner the exclusive right to use the mark and to prevent others from using the same or similar marks on identical or related goods and services. • Before applying for trademark registration, it would help if you conduct a search in the trademarks database to determine if there are identical or similar marks that would prevent the registration of your mark. • This is to prevent future conflicts with marks that are already registered or with earlier filing dates.
  • 30.
    Trade Secret • Broadlyspeaking, any confidential business information which provides an enterprise a competitive edge may be considered a trade secret. • Trade secrets encompass manufacturing or industrial secrets and commercial secrets. • The unauthorized use of such information by persons other than the holder is regarded as an unfair practice and a violation of the trade secret. • Depending on the legal system, the protection of trade secrets forms part of the general concept of protection against unfair competition or is based on specific provisions or case law on the protection of confidential information
  • 31.
  • 32.
    Innovations and Inventionsof Trade related Intellectual Property Rights • Innovation is not the same as invention. Innovation is a process, which begins from the conception of an idea to the launching of a new product/process in the market place • Inventions are the bedrock of innovation. An invention is a new solution to a technical problem and can be protected through patents.
  • 33.
    Innovation • Generally put,an ‘innovation’ is developing a new idea and putting it into practice. • The term ‘innovation’ is used here to refer to the process of bringing valuable new products (goods and services) to market i.e., from the idea/concept formulation stage to the successful launching of a new or improved product in the marketplace, or the result of that process, so as to meet the explicit or implied needs of current or potential customers. • In other words, through innovation an enterprise seeks to deliver unique new value to its customers. In this context, ‘marketing’ is the understanding of that unique new value and communicating it to the current and potential customers of a business so that the product sells itself.
  • 34.
    Contdd.. • Technological innovationmay be classified in several ways: – Product vs. Process, – Radical (basic or fundamental) vs. Incremental (improvement), and – Disruptive vs. Sustaining (sequential and/or complementary). • Other important types of (non-technological) innovations that do not result from scientific and/or technological R&D, but are often crucial for profitably marketing the products and services resulting from the investment made in R&D are: – Marketing Innovation, – Institutional Innovation, – Complementary Innovation.
  • 35.
    Role of IPin Innovation • As there are many players involved in facilitating the market success of an innovation, the effective use of the tools of IP will play an important role in reducing risk for the players involved, who may then be able to reap acceptable returns for their participation in the process. • IP plays an important role in facilitating the process of taking innovative technology to the market place. • At the same time, IP plays a major role in enhancing competitiveness of technology-based enterprises, whether such enterprises are commercializing new or improved products or providing service on the basis of a new or improved technology. • For most technology-based enterprises, a successful invention results in a more efficient way of doing things or in a new commercially viable product. • The improved profitability of the enterprise is the outcome of added value that underpins a bigger stream of revenue or higher productivity.
  • 36.
    Agencies The agency ofthe government in charge of the implementation of the Intellectual Property Code is the Intellectual Property Office which replaced the Bureau of Patents, Trademarks and Technology Transfer. It is divided into six [6] Bureaus, namely: • Bureau of Patents • Bureau of Trademarks • Bureau of Legal Affairs • Documentation, Information and Technology Transfer Bureau • Management Information System and EDP Bureau • Administrative, Financial and Personnel Services Bureau.
  • 37.
    AGENCIES RESPONSIBLE FOR INTELLECTUALPROPERTY REGISTRATION • United States Patents and Trademark Office • INTERNATIONAL ORGANIZATIONS, AGENCIES AND TREATIES – International Trademark Association (INTA) – World Intellectual Property Organization (WIPO) – Berne Convention for the Protection of Literary and Artistic Works (the Berne Convention) – Madrid Protocol – Paris Convention – North American Free Trade Agreement (NAFTA) – General Agreement on Tariffs and Trade (GATT)
  • 38.
    India – Conventionand Treaty • Berne Convention (Literary and Artistic Works) w.e.f. April 1, 1928 • Geneva Convention (Unauthorized Duplication of Phonograms) w.e.f. February 12, 1975. • World Intellectual Property Organization (WIPO) w.e.f. May 1, 1975 • Nairobi Treaty (Olympic Symbol) w.e.f. October 19, 1983 • Convention on Biological Diversity w.e.f. February 18, 1994 • World Trade Organization (WTO) Member and Signatory to TRIPS Agreement w.e.f. January 1, 1995 • Paris Convention w.e.f. December 7, 1998 • Patent Cooperation Treaty (PCT) w.e.f. December 7, 1998 • Budapest Treaty (for deposition of microorganisms) w.e.f. from December 17, 2001
  • 39.
    Infringement Regulatory Type ofIntellectual Property Infringement Patent Make, Use, Offer, Sale, Import Trademarks Used in Commerce Copyrights Copying, Etc Trade Secrets Misappropriation
  • 40.
    Over use orMisuse of IP • Intellectual property abuse, basically, is a defence for a suit of IP infringement. • When such defence proves to be justified in a case, then the defendant is spared from the liability of granting immediate relief to the plaintiff. • However, the misuse doctrine does not prevent the party to rely on the courts in case of any future infringement. • The intellectual property owners may return to court once they have “purged” the misuse, for example, by striking anti-competitive provisions in their licensing agreements. • A transparent and somewhat definite legal and judicial take on abuse of intellectual property rights has largely remained limited to patent misuse, later extending to copyright misuse, which branched out of the former. • Both trademark and trade secret misuse are still subjects of academic debate and lack any practical application in courts.
  • 41.
    Different forms ofIntellectual Property Rights abuse have been elaborated under the following heads: • Patent misuse • Copyright misuse • Patent trolls • Tax Avoidance • Harmonization of IPR and Competition Laws: TRIPS • Compulsory Licensing
  • 42.
    Patent Misuse • Attimes, patent owner wrongfully uses the patent surpassing its legitimate scope. Patent misuse is the unjustified use of the acquired patent rights. • Examples of patent misuse include illegal tying of products and services to the patented invention, price fixing, fraudulently making the customers pay royalties on items the patent of which has expired, and the like. • The concept of patent misuse first surfaced in the case of Adams v Burke, decided by the US Supreme Court in 1873. • The court held that after the first authorized sale of a patent product by the patentee, the product becomes the complete property of the purchaser, rendering the patentee devoid of his monopoly rights over the product. • Subsequent purchasers acquire the same rights over the product as the seller had, and may use it in the same way the owner could have used. This came to be known as the exhaustion doctrine.
  • 43.
    Contd… • However, inthe 19th century, not many facets of patent misuse were acknowledged by the judges. • In the famous case of Henry v. A.B. Dick Co, the United States Supreme Court upheld the validity of licensing the use of tied or other related products along with the originally patented product. • Usually known as the Inherency doctrine, this theory states that it was the inherent right of a patent owner, in lieu of his having exclusive rights over his product, to exercise the right to license the product on any terms and conditions he chose.
  • 44.
    Contdd. • In 1917,the United States Supreme Court overruled the A.B. Dick case in Motion Picture Patents Co. v. Universal Film Mfg. Co. • In this case the Supreme Court held that ‘the scope of every patent is limited to the invention described in the claims. • The patentee can claim nothing beyond them.’ It condemned the licensing of materials which formed no part of the patented invention and were merely necessary for its operation. • In Brulotte v. Thys Co. (1964), the United States Supreme Court held that a patent holder’s attempt to collect royalties beyond the term of the patent constitutes misuse of the patent.
  • 45.
    Contd.. • An essentialcondition for using patent misuse defence is that it must hamper the competition in the market. • When a company accuses a patent owner of misuse, then the allegation must fulfill 2 conditions: – The valid patent was used as a way to change business outcomes – The anti-competitive effects extended outside of the patent’s scope
  • 46.
    Contd.. • The patentmisuse doctrine requires that the alleged infringer show that the patentee has impermissibly broadened the ‘physical or temporal scope’ of the patent grant with anticompetitive effect. • Patent misuse does not affect a patent’s validity. • Since the 20th century, there have been significant developments through various legislations and judicial decisions that have further broadened the scope and understanding of the patent systems so as to eliminate the loopholes and make it more user- friendly.
  • 47.
    Copyright misuse • Copyrightmisuse occurs when a company or an individual makes unjustified use of a copyright which is beyond its legal capacity and in violation of the Copyright Act of the concerned country. • A copyright owner could commit misuse by violating any public policy choices embodied in the Copyright Act, such as by using a license agreement to extend the length of its copyright monopoly. • Copyright misuse can also occur when the assertion of copyright is aimed at suppressing speech. • It is believed that Copyright misuse derives its basis from patent misuse as, while patent abuse finds mention in various cases since the 19th century, copyright misuse found recognition in the legal fraternity only a few decades ago.
  • 48.
    Contd. • Morton SaltCo. v. GS. Suppiger (1942) case, decided by the United States Supreme Court, laid the foundation of the concept of copyright misuse. While the reasoning given by the court refers to patent misuse, the commentary and the dicta address the issue of copyright misuse. • In the case Tekla Corporation v. Survo Ghosh, decided by the Delhi High Court on 16th May 2014, Justice Endlaw of the Delhi High Court held that “copyright misuse does not constitute a legitimate defense for copyright infringement in India.”
  • 49.
    Contd… • In AlcatelU.S.A., Inc. v. DGI Technologies (1999), it was held that the defense of copyright misuse has its historical roots in the unclean hands doctrine, i.e, which means that the suit of infringement filed by the plaintiff, who himself has abused the privilege conferred upon him by the copyright, is not itself justified. • In the instant case, the Court found copyright misuse where the holder of a copyright in software licensed its use on the condition that the licensee also use it only in conjunction with the copyright holder’s hardware. • It prescribed the use of the copyright to secure an exclusive right or monopoly, which is not granted by the Copyright Office of a country and which is contrary to public policy to grant. • Upon the improper use of a copyrighted work, the work will provide no copyright rights to its owner. • In order to retain the rights, it is important that the activity constituting the misuse must be ceased.
  • 50.
    Patent trolls • PatentTrolls, formally known as ‘Non-Practicing Entities (NPEs) or Patent Assertion Entities (PAEs)’, are companies which tend to earn a fortune from frivolous patent infringement lawsuits. • While normal companies use their patents to protect their product from being counterfeited and sold in the market, patent trolls often acquire patents cheaply from bankrupt companies and, instead of using such patents in operations, these companies charge hefty licensing fees on other persons or businesses which appear to infringe any of their acquired patents. • Fees can range from ten to hundred thousand dollars, whereas patent lawsuits can cost the individuals or companies in millions. • Hence, when such are the costs, many companies prefer to concede and settle, even if they believe there to be no patent infringement.
  • 51.
    Contd. • This practiceis a lucrative option for making money with minimal risks. • Small mobile and software companies, mostly startups, are most vulnerable in this case and an easy target of patent trolls. • According to the RPX Corporation (RPXC) “NPE Litigation Report,” around 4,500 patent infringement lawsuits were filed in 2014. • Out of those, patent trolls were responsible for 2,791 cases, i.e. 63% of the total, whereas actual operating companies filed only 1,667.
  • 52.
    Contd.. • A landmarkcase that came as a relief for companies in the United States, as it would mitigate the threat of phoney patent suits, was decided by the United States Supreme Court recently. • The Court, in TC Heartland v. Kraft Foods (2017), unanimously ruled that patent cases should be tried where the defending company is based, rather than in a court of the plaintiff’s choosing. • Until now, patent cases could be heard anywhere throughout the country, causing the companies to find the courts where the odds would be in their favour, often resulting in biased results and over burdening of certain courts.
  • 53.
    Tax Avoidance • Accordingto Prof. Andrew Blair-Stanek of University of California, Multinational Corporations use Intellectual Property (IP) to avoid taxes on a massive scale, by transferring their IP to tax havens for artificially low prices. • He states that there are two main reasons which make acquired intellectual property rights ideal for tax evasion. – First, unlike workers or physical assets like factories or stores, IP can easily be moved to tax havens via mere paperwork. – Second, the uniqueness of every piece of IP makes a precise fair market value nearly impossible to establish, allowing multinationals to justify low valuations that result in the least tax. Virtually all IP-based tax-avoidance schemes involve assigning an artificially low price to a piece of IP at some point in time.
  • 54.
    Harmonization of IPRand Competition Laws: TRIPS • While the negotiations over the TRIPS Agreement were going on, many countries expressed their serious concern over the regulation of unfair competition and abusive monopoly powers of the IP rights holder. • Subsequently, after much deliberations, Article 40 of the TRIPS agreement was inserted to address the issue of IPR misuse and combat it through necessary government intervention:
  • 55.
    Article 40 • Membersagree that some licensing practices or conditions pertaining to intellectual property rights which restrain competition may have adverse effects on trade and may impede the transfer and dissemination of technology. • Nothing in this Agreement shall prevent Members from specifying in their legislation licensing practices or conditions that may in particular cases constitute an abuse of intellectual property rights having an adverse effect on competition in the relevant market. • As provided above, a Member may adopt, consistently with the other provisions of this Agreement, appropriate measures to prevent or control such practices, which may include for example exclusive grant back conditions, conditions preventing challenges to validity and coercive package licensing, in the light of the relevant laws and regulations of that Member. • Article 40 of the Agreement empowers the member countries to specify any exploitation of monopoly rights and adopt such laws that may be necessary to curb the abuse of IPR.
  • 56.
    Compulsory Licensing • Accordingto World Trade Organisation, • Compulsory licensing is when a government allows someone else to produce a patented product or process without the consent of the patent owner or plans to use the patent-protected invention itself. • It is one of the flexibilities in the field of patent protection included in the WTO’s agreement on intellectual property — the TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement. • The right over the product still rests with the owner, who is entitled to royalty by the users. This is an effective statutory measure to deter complete control of the owner over the unfettered use (or misuse) of the product. • Article 31 of the TRIPS agreement provides for the grant of compulsory licensing under certain exceptional situations such as national emergency or other circumstances of extreme urgency or inadequate exploitation of the patent in the country.