eChapters

Abstract

Patent is a monopoly right which is granted by the Government to the applicant for the full disclosure of an ‘invention’ which is ‘new’, ‘inventive’ and ‘industrially applicable’. Thus, before filing a patent application, the inventor must be sure that the work done by him is new and inventive. Further, during the examination of the patent application, it is required to be verified that the invention claimed in the disclosure/specification is new, inventive and industrially applicable. Since the search for the ‘Novelty’ of the invention is carried worldwide, it becomes all the more important for the inventor and the examiners to search for the prior art thoroughly. Searching for the prior art (i.e. state of the art) across the globe in around millions of documents both patents and non-patent documents, is like ‘searching a needle in the haystack’. However, by using proper keywords and classification techniques, it is possible to arrive at the closest prior art available. Each patent application is classified by the Indian Patent Office and thus attributed to one or several fields of technology. The classification scheme applied is the International Patent Classification (IPC).

Abstract

Patent infringement is the act of unauthorized making, using, offering for sale or selling any patented invention within the India. In case of patent infringement it is necessary for the patentee to compare the claims granted to him with the allegedly infringing product an check whether there is an infringement – whether the infringing product falls within the scope of the claims of the patent. In such a case the patentee may sue for relief in an appropriate court. The patentee may ask for permanent injunction and damages on account of the infringement. It is the crusade of the inventor asserting his rights against an infringer and the law recognizes the importance of this right; because, without such positive and assertive rights, industrial progress would be hard to come by

“Necessity is the mother of invention”, all of us must have heard this statement at some juncture in our lives. Most of us may even have even gone through the motion of inventing something when needed. However, more and more inventions happening today may not necessarily be necessities. These inventions definitely perform the task of improvingand making convenient our overall living environment. Past few years have seen an increasing awareness and understanding in the field of intellectual property. Among all aspects, one aspect of intellectual property that is gaining increasing attention of intellectual property owners is management of the intellectual property rights.

This brings to our minds one question, how was intellectual property management practised by early mankind? We all do know that early mankind has left no stone unturned to make theabove statement”Necessity is the mother of invention”, a reality. Mankind prospered by leaps and bounds on account of sharing their various discoveries and inventions. Way back then knowledge was meant to be shared, as aptly captured in the Sanskrit Sloka:

Introduction

In the perspective of the accelerating national growth rate of 8% recorded at the end of the 10th Plan to a projected growth rate of 10% by the end of the 11th Plan, yielding an average GDP growth rate of about 9% it was appearing that the nation is going to have a strong footing of development. However, it could not be fully achieved due to several reasons including the global recession and other factors related to international economic setback which may deter achieving a projected growth rate of 10% in the 12th Plan. In consideration of the international scenario of growing complicacy in economic growth more emphasis should be given on further efficient utilization of natural resources and intellectual properties of grass root innovators to improve per capita income leading to a promising national structure of economics ensuring wide spread benefits to the society. In this regard, true development of a nation like India can be primarily realized by recognition of wide spread enthusiasm of its innovative human resources living in village and rural areas. It can be made possible only through working with them by appreciating their struggle for survival using all round innovative measures coming out of their daily life experiences and traditional knowledge. Technopreneur Promotion Programme (TePP) is a unique scheme of Government of India for development of society especially by promoting the intellectual properties of grass- root level innovators coming out from the society with a source of inspiration arising out of their daily life struggle for existence. In spite of its limited publicity in remote areas an awareness of this programme has often been found to raise great hope to the villagers to do something for their society exploring the ideas generated from the experiences of life with the help of local resources. Such naturally grown innovation can be found undoubtedly novel and the idea can change their world of dreaming for a more prosperous life by bringing changes in socioeconomic pattern of trade and employment in rural areas with proper support from Government if India through the scheme like TePP.

Abstract

The paper discusses patentability aspect of subject matter. Patentable subject matter must satisfy three basic criteria i.e. novelty, inventiveness and industrial applicability, though few subject matter satisfying all the three basic criteria stated above may still be not patentable in specific jurisdiction based on certain circumstances or as stated in the patent act of the specified jurisdiction. Therefore grant of a patent is subject to certain limitations mentioned in the section 3 and 4 of the Indian Patent Act for Indian jurisdiction. The aim of this paper is to study such limitations in detail.

Abstract

An intellectual property infringement is the violation of an intellectual property right of the owner. Infringement is established based on the law governing appropriate IPR in the concerned country. Both civil and criminal remedies are available under the concerned law. The present paper introduces the patent infringement as per Indian Patent Act, 1970. It discusses various modes and types of infringements which can take place. It further discusses a procedure to formulate opinion about product infringing a granted patent. In the end some usual defenses against patent infringements have been discussed. Some case studies have also been presented along with the damages awarded for the patent infringement.

The main purpose of this lecture note is to provide basic information on patent drafting skills and train applicants for drafting a patent in clear and concise manner.

We will see the components of Complete Specification through the following Case studey (1) of a solar water heater. The figures are provided below for reference and better understanding.

Technology transfer is an important commercial tool for leveraging and optimizing the value of intangible assets in the present era of globalization which has deepen the process of integration of the economic resources including the free movement of goods, merchandise, services, capital and intellectual property rights. This economic integration is facilitated by a legal framework of World Trade Organization (WTO) under various agreements including the Trade Related Aspects of Intellectual Property Rights (TRIPS). There are other International Institutions i.e., World Intellectual Property Organization (WIPO), World Customs Organizations (WCO) and United Nations Conference on Trade and Development (UNCTAD) to regulate and provide guidance for the protection and enforcement of IPRs. The present global economy is geared and triggered by knowledge and almost 80 % of the global wealth comes from knowledge based intangible assets and helps optimization of the limited global resources. Technology transfer is a tool for leveraging the value of IPRs and also for sharing knowledge around the world. Knowledge is weightless and in today’s era, knowledge is driven by Information and Communication Technology (ICT) which adds to productivity in all aspects of economic life.

The term “Technology transfer” broadly connotes transfer of knowledge from one legal entity to another legal entity within and outside the national territories of the legal owner of the Patent holder at a consideration, known as license fees or technical fees or royalty. This may happen as a part of Foreign Direct Investment (FDI) or as a part of pure technological collaboration. In other words, Transfer of Technology (TOT) and Technology Commercialization allows the transfer of the technology by a patent holder to a user for further development and exploitation of the technology into new products, processes, applications, material or services. Patent provides an exclusive right to the patentee to exclude others from using an invention without his consent and the technology transfer is the process to include the licensee as the legal user without infringing the rights of the patentee. The exclusive right granted to a patentee is the right to prevent others from making, using, selling, or distributing the patented invention without his permission. The technology transfer allows the user to use the patented technology with the consent of the patent holder.

Abstract

The main aim of the article is to identify the strengths, weaknesses, opportunities and threats of current IPR system in context to Indian regime and also to understand overall planning as well as important tactics and means to use IP legal protection system to fully safeguard one’s legitimate rights and interests, obtain and maintain competitive edges, restrain competitors and seek optimal economic performance by selection of appropriate IP strategies. This article also proposes ways to select IP strategy based on BCG matrix and product mix.

Introduction

‘IP’ refers to unique, value-adding creations of the human intellect that results from human ingenuity, creativity and inventiveness. An IP right is thus a legal right, which is based on the relevant national law encompassing that particular type of intellectual property right. Such a legal right comes into existence only when the requirements of the relevant IP law are met and, if required; it is granted or registered after following the prescribed procedure under that law. All countries around the world have a national legal system of intellectual property rights which has developed over varying periods of time during the last 150 years or so. It has enabled the grant of property-like rights over such new knowledge and creative expression of mankind, which has made it possible to harness the commercial value of the outputs of human inventiveness and creativity. This is usually done by its orderly use, exchange or sharing it amongst various types of business partners in a complex network of strategic relationships that generally work harmoniously during the new product development process for creating and marketing new and improved goods and services in domestic and export markets.

IPR is a tool for Innovation and reward for it. Innovations are concerned with the commercialization of new ideas; in contrast, an ‘invention’ may not be directly associated with commercialization. As such, innovation may be seen as a process of interaction and feedback during the various stages of the new product development process. An invention is considered as the generation of a new idea or knowledge, which aims to solve a specific technical problem. Inventions could relate to products or processes and are characteristically protected by trade secrets, utility models/petty patents or patents. Utility models/petty patents or patents are granted/registered under the relevant national/regional law by the relevant national or regional patent office. As not all inventions are commercialized, so it is clear that not all inventions result in innovations.

Abstract

The two most important tasks for a patentee to undertake after being granted a patent, in any patent regime, would be to pay the renewal fees necessary to keep the patent alive, and provide proof of having worked the patent in the jurisdiction. This article seeks to highlight features of India’s legal requirements with regard to the working of patents on a commercial scale. The number of patents granted in a country is an indicator of the technological strength of the country. However, it should be noted that actual technological growth depends upon the working of patents. Working of a patent means the commercial exploitation of the invention that is embodied in the patent.

I. CHALLENGES TO CYBERSPACE

The problems and prospects of copyright and information technology need to be deliberated in the context of present day jurisprudence. The subject is referable to the extensive use of information technology all over the world which has resulted in enhanced efficiency, effectiveness and optimum use of resources. The copyright law is concerned with the negative right of preventing copying of the physical material in the field of literature and arts. Trade and Merchandise Marks Act protects the patent, trade mark and design giving the registered proprietor an exclusive right to the registered material. The prohibition contained in rights in patent and copyright extend to the unauthorised manufacture or reproduction, so long as the exclusive right rests. Copyright has been held to be not the mere creature of the statute but a natural and civil right. The moral basis of the copyright is that the man is entitled to the fruits of its mental faculties as much as he is entitled to the fruits of his mechanical labour. The law rests on the English Commandment - thou shall not steal. It does not permit one man to make a profit and appropriate himself what has been produced by the labour, skill and capital of another. Blackstone in his commentaries Vol.II at page p.406 has stated:

There is still another aspect of property and this is the right which an author may be supposed to have in his own original literary compositions: so that no other person without his leave may publish or make profit of the copies. When a man by the exertion of his rational powers has produced an original work, he seems to have clearly a right to dispose of that identical work as he pleases and any attempt to vary the disposition he has made to it appears to be an invasion of that right.

I. INTRODUCTION

The Websites are soaked in information, much of it with varying degrees of copyright protection. In fact, the reality is that almost everything on the Net is protected by copyright law. E-business Websites are a composition of materials, often consisting of words, graphics, audio, and video that are expressed to the consumer as information content. The owners and Website developers carefully select the content to sell the company’s product or service. The subject matter expressed in the site is an electronic publication of this content. Since, designing, producing, and maintaining a sophisticated Website is very expensive, protecting content ownership is extremely important. Electronic commerce will continue to be highly competitive. As Websites become more and more interactive with consumers, their creation, design, and maintenance place enormous demands on innovative marketing techniques that should be legally protected.

Never before has it been so easy to violate a copyright owner’s exclusive right to copy the material. Everyone with a computer and an Internet connection creates his own Web pages and thus become a publisher. Hence the rules that once applied to only a few companies bind million of people now. Imagine having paid a Website developer hundreds of thousands of rupees to launch a killer application and acquiring millions of Rupees from a venture capitalist firm, only to discover that another e—business is using your online material. Or consider a scenario where your Website is linked to an e-business that displayed copyrighted material without the owner’s consent. Could your company be liable under a theory of copyright infringement? This paper highlights the scenario when contents of your Website are exploited by others without your permission or knowledge. The discussion is centered on copyright issues involved in the practices of linking, inlining and framing technologies which are normally being used on the Internet.

I. INTRODUCTION

Information technology has heralded a new era of Communication System. It has revolutionized the whole commercial world. The mother earth looks like a global village where people sitting thousands of miles away can talk face to face, like people sitting across the table. Business men and consumers are using computer to create, transmit and store information in the electronic form. Traditional form of paper documents are being discarded for the reason that electronic method is Cheaper, easier to store, retrieve and communicate. Though these advantages are obvious but people were reluctant to transact business in electronic form due to lack of legal frame work, validating these transactions. All the paper transactions involved writing and signature to conclude them. These writings and signatures posed a great hurdle for electronic governance and electronic commerce for validating and enforcing them. The law of Evidence is based on paper made documents which should have been signature. Since electronic commerce eliminates the need for paper based transactions, hence to facilitate e-commerce the need for legal change has become an urgent necessity. International trade, though the medium of e-commerce, is growing by leaps and bounds for the past few years. Many countries have switched over from traditional paper based commerce to e-commerce. The instantaneous means of communications through internet have been a great menace to copy right in different areas David Teather from London has reported that the International Federation of the Phonographic Industry say that the market in year 2000 was worth $36.9 billion, a fall of 1.3 per cent on the previous year. The biggest decline in the sale of C.D. singles was 39% and globally it fell by 14%. The growth in popularity of Napster and to contain the damage. Napster is in the process of removing copyrighted material from its site.¹ But the powers of the computer are so great that the law enforcement agencies are facing a real challenge to contain its onslaught. Internet telephony is a common sight at cyber cafe, despite the fact that it is illegal.2 B.B. Nanda and R.K.Tewari observe that “ internet paedophilia, computer network break-ins, industrial espionage, Child pornography password sniffling, spoofling, telecommunications fraud, software piracy, e- mail bombing and spamming, and the availability of illicit or unlicensed products and services are offences already making themselves felt. Emerging problems include credit card fraud, cyber terrorism, cyber laundering and criminal use of secure internet communications. The huge growth of internet will breed cyber fraud with great ease especially in the area of share-holdings of companies.3 The present weak electronic system of payment without adequate safeguard is posing a serious risk for unauthorised withdrawals from banks and counter money laundering operations. Software piracy is a boom business and video and phonographic industries are sinking day by day globally.4 The UNCITRAL Model law provides for equal legal treatment of users of electronic communication and paper based communication. In pursuance of a declaration made ‘by Member Countries, the World Trade Organisation (WTO) is about to form a work programme to handle its work in this area including the formation of multilateral trade deals through the medium of electronic commerce. The paper discusses, briefly, the meaning of cyber space the origin and development of intemet and e commerce its uses and abuses. Certain provisions relating to Information Technology Act, 2000 have been briefly discussed to apprise oneself about its effectiveness in meeting the challenges posed by e commerce in different areas.

I. INTRODUCTION

In a global, knowledge-based economy, Intellectual Property Rights (IPRs) are a key to the international competitiveness of both nations and firms. International competition in the traded goods increasingly contains a high degree of innovation. IPRs have thus; become a trade issue and a major component of the World Trade Organisation (WTO). Adequate IP protection at an international scale has become essential for appropriating global revenue streams to support investments in developing state of- the- art technology. Although the concept of intellectual property is very old, there appeared the need to harmonize laws to facilitate international trade and free flow of technology. This became very necessary because it was difficult to obtain sufficient protection in the other countries of the world, in view of the disparity in the laws in each country. As per World Intellectual Property Organisation (WIPO) definition, intellectual property refers to creations of the mind, inventions, literary and artistic works, symbols, names, images and designs used in commerce. Broadly, intellectual property is divided into two categories. The first category covers industrial property, which includes patents, industrial designs and trademarks, all of which have industrial applications. The other refers to copyright laws, which are applied to such things as literary, dramatic and artistic works; rights relating to performing artists, the production phonograms and rights of broadcasters in their radio and television programs.¹ Patented inventions have, in fact, pervaded every aspect of human life, from electric lighting and plastic, to ballpoint pens and microprocessors. During a time when the future of many industries seems uncertain, one industry in particular appears to be positioned for expansion and enduring success. This is the biotechnology industry, which according to some analysts will be a major driving force behind the new economy of the 21st century.2 This seemingly lofty prediction is based in large part on the immense promise offered by biotechnology. The innovations developed with biotechnological techniques promise to prolong and improve our lives and the world we live in by achieving advancements in health care, agriculture, food products and production, industrial processes and environmental preservation. Biotechnology is not a new science and it has existed in some form or the other for centuries. Biotechnology in one form or another has been part of human development since the dawn of agriculture. Human ingenuity has led to increased production and greater diversity and quality of livestock and varieties of crops. Today’s food crops and domestic animals embody the benefits of many generations of selection and breeding. However, the advent of genetics has opened exciting opportunities in this sector, because of its numerous applications, which range from improvement of human health and food production to reduction of environmental damage. These opportunities are also coupled with controversies that not only challenge the laws within which society functions, but also our ethical and religious beliefs.

I. INTRODUCTION

Over the last few decades, protection of intellectual property rights (IPRs) has become a global issue. The existing international intellectual property rights regime has been governed by the Trade- Related Aspects of Intellectual Property Rights (TRIPS) Agreement.1 Inspite of maturity of intellectual property laws in post TRIPS era it still desiderate to established coherence with human rights laws particularly right to health and maintain a distance with the socio-economic dimension of intellectual property protection. On the other hand the international human rights instruments from the very beginning appear to be considerable to make certain links with intellectual property rights.2 The issue that is now debated that the adoption of the TRIPS Agreement provisions have serious impact on the realization of certain basic human rights such as the right to health because of non availability and affordability of much needed medicines for the poorer populations of the world particularly in majority of developing countries. Meanwhile TRIPS flexibilities as confirmed by the Doha Declaration on Public Health were adopted in 2001 by the global community to address medicines as public health issue.3 Keeping in view the above developments the problem of right to health and the relationship between medical patents and access to medicine in the case of the HIV/ AIDS and T.B epidemics is complex challenge in the context of the 2030 Agenda for Sustainable Development Goals in 2015 adopted by Member States of the United Nations in Sep, 2015. One of the aims of the agenda is to ensure healthy lives and promote the well-being of people of ages.4 In such a situation it is high time to revisit the existing intellectual property regime in the broader context to protect everyone who is likely to be negatively affected by intellectual property standards imposed by developed nations. Under this backdrop the present paper wishes to examine the various kinds of potential impacts of intellectual property regime on the realization of access to medicine as part of human right to health as universal entitlements amongst the most disadvantaged and marginalized peoples and communities in the broader context of sustainable development goals.

I. INTRODUCTION

Procedural remedies for the infringement of one’s right are not enough by themselves unless they result in some reliefs of substantive nature whereby it can reasonably be said that these reliefs, temporary or permanent, as the case may be, are enough in the circumstance to make good or, say, compensate the genuine loss of the aggrieved party to an infringement suit. The substantive remedies available to a successful plaintiff at any stage in any suit for patent infringement could, however, be derived from the express as well as by necessary implication of the provisions of the Patents Act, 1970 dealing with the “Reliefs in suit for infringement”. Its Sec. 108 declares in terms quoted below:

I. INTRODUCTORY OUTLINE

The post-Vienna legal phase is remarkably known for revolutionary changes across the global wherein the third generation of human rights became the hallmark for the comity of nations and a liberational instrument to come out of nightmarish experiences of poverty and hunger.1 On the other hand the post-GATTised legal ordering is known for much publicized and debatable conclusion of Trade Related Aspect of Intellectual Property Rights (TRIPs) and creation of World Trade Organisation (WTO).2 This new jurisprudential polemics soon evoked fierce scrutiny from the stand point of human right and poverty among third world countries.3 At home, it is dubbed as ‘bleeding operation with the dubious promise of benign global competition’, ‘de facto nullity of constitutional goal of social welfare’ and ‘contra- constitutional coup.4 Since India has become a member of WTO it indulged into massive rehabilitation and fundamental mutation of IPR regime. Despite the fact that it has a stark distinction of being a grain- surplus and food and livelihood insecure country. An inventory of over forty five million tonnes of wheat and rice in granaries remains ready for consumption. On the other hand over two hundred fifty million people generally go to bed partially hungry every day. There is a near consensus on the need to banish hunger but the realities on the ground remain that even at the risk of raising hopes the goal of food security may not be realized for generations.5 At home under the cover of food security the government is keeping millions of tonnes of food out of reach of the poor people.6 In fact India’s record breaking 200 plus million tonnes harvest is the result of steep fall in purchasing power of poor. The myth of surplus is based on sending hundreds of millions of human being hungry to their beds.7 Taken to its logical end we have abundance of food, surplus of hunger and scarcity of vision under the garb of food security.8

I. MANDATE OF COPYRIGHT LAW

The importance of intellectual property rights has arisen in recent years to a great extent. The law of copyrights protects original forms of expression i.e. Novels, Movies, Musical compositions and computer software etc. Earlier it was mainly confined to the -published Work and owner of it could prevent others from getting it published in the form of books or articles in order to get benefit in terms of money or goodwill or reputation. In case of such undue enrichment, the owner had a valid cause of action. The owner of the copyright has a valid cause of action against the violator. At present even in case of its adoption and translation or abridgement, it is obligatory to have consent of author. The main purpose and object of copyright law is to protect the expression in any other form from unauthorized use. Since 1847, the copyrights law is in developing stage so, many legislations has been enacted.1 With the changing of times, the meaning of expression also changes and the style of exhibit the things also changed. The right of author who gives expression in any form is protected from unauthorized use.

I. INTRODUCTION

Nations are growing with pace in technology and technological advancements. Till the end of 20th century development was the priority of entire planet earth but in the ending of the 20th century it was realized by almost all countries that development cannot go alone but it has to have the social, economic and environmental concerns. It was realized by the United Nations in Rio Conference on Environment and Development, 1992 that there is need of sustainable development. Now in 21st century the technological advancements are needed to be utilized for saving the planet earth from the curse of climate change and global warming reducing the carbon emissions across the entire planet earth. The argument in this paper is based on, how far technological advancements and technology transfer, by developed countries to developing countries can be facilitated in reduction of the carbon emission and greenhouse gases, through legally binding norms? How there should be synergy in between technologies reducing carbon emission and IPR issues?