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An introduction to IPR and SOFTWARE BASED INVENTIONS

R.KUMARAVENKATESAN M.L(IPR).,

Educative approach

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Knowledge of patents- WHY

i. Enhances my employment opportunity

ii. I can register my own invention

iii. I can commercially exploit my own patent

iv. It is an official record of my inventor ship

v. It shows my intellectuality to the world

vi. It is a record of my achievement or success

vii. It differentiates me and distinguishes me.

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PROPERTY

Owned by a person

Registered under an authority

Claimed / prevent others from claiming

Assignable, transferable, mortgageable

PROPERTY

TANGIBLE PROPERTY

MOVABLE PROPERTY IMMOVABLE PROPERTY

INTANGIBLE PROPERTY

RIGHT TO INDIVIDUL REPUTATION

INTELLECTUAL PROPERTY

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INTELLECTUAL PROPERTY RIGHT

INTELLECTUAL- CAPACITY,CREATIVITY,IDEA,KNOWLEDGE,

PROPERTY- OWNED,REGISTERED,POSSESSED

RIGHT- CLAIMED,EXERCISED,EXPLOITED

THE RIGHT ASSOCIATED WITH THE IDEA OR CREATION OF MIND WHCH IS APPLIED,

OWNED AND EXPLOITED BY A PERSON

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INTELLECTUAL PROPERTY CLASSIFICATION

INDUSTRIAL PROPERTY LITERARY PROPERTY

PATENTS

TRADE MARKS

DESIGNS

INTEGRATED CIRCUITS AND LAYOUT DESIGNS

COPY RIGHTS

NEIGHBOURING RIGHTS

PERFORMERS RIGHTS

BROADCASTING REPRODUCTIONRIGHTS

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Maximum period of protection of various IP rights

PATENT

TRADEMARK

COPYRIGHT

DESIGNS

LAYOUT DESIGNS

GEORAPICAL INDICATIONS

PLANT VARIETIES

20 years (renewed every year)

No limit (renewed every 10th year)

Life time of the author plus 60 years / (vary between type of work)

10 +5 year(renewed after 10th year)

10 years

No limit (renewed every 10th year)

18 years, 15 years (renewed after 6th year/9th year)

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I P LEGISLATIONS IN INDIA

1. PATENTS ACT , 1970

2. TRADE MARKS ACT, 1999

3. COPY RIGHT ACT , 1957

4. DESIGNS ACT , 2000

5. SEMICONDUCTOR INTEGRATED CIRCUITS AND LAYOUT DESIGNS ACT, 2000

6. GEOGRAPHICAL INDICATIONS OF GOODS (REGISTRATION AND PROTECTION) ACT,1999

7. THE PROTECTON OF PLANT VARIETIES AND FARMERS RIGHTS ACT,2001

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Patent definition

Latin term patere, "to lay open" (i.e., to make available for public

inspection), In English term letters patent, royal decree granting

exclusive rights to a person.

Patents in the modern sense originated in 1474, in the

Republic of Venice

A patent is a form of intellectual property. It consists of a set of

exclusive rights granted by a sovereign state/government to a true

and first inventor or their assignee for a limited period of time in

exchange for the public disclosure of an invention.

Patent is an exclusive right granted to a person who has invented

a new and useful article or an improvement over an existing article.

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Need for the protection of Patents

Encouragement Inducement Reward Transfer and dissemination of technology Commercial exploitation by the inventor Preventing others from exploiting the right Healthy competition Development of a nation Reveal the intellectual capability of the

inventor

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Patent right

Exclusive right(monopoly) Granted for a limited period of time Territorial in nature Assignable, licensable, transferable and mortgage able

right Proprietary right Legally enforceable Registrable before a competent authority Commercially exploitable

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Persons entitled to apply for patents

True and first inventor

Assignee of the true and first inventor

Legal representative of any deceased person who immediately before his death was entitled to make such application

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Rights of patentee An exclusive right over the patented product and patented process to;

a) Manufacture

b) Use

c) Offering for sale, selling or importing in to India for sale

d) Prevent others from make, use, sell, import the patented product /

product directly obtained through that patented process and

commercially exploiting the patent.

e) Assign, transfer and issue license

f) Surrender the patent

g) Sue in case of infringement

h) Claim remedies upon proving the infringement

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Patentability Patentability is the ability / character of the invention to make itself eligible for a grant

of patent by the patent offices. The criteria of eligibility includes;

1. Novelty

2. Inventive Step

 3. Industrial Applicability

4. Utility and in addition

5. The invention should not fall under the category of inventions ‘INVENTIONS

NOT PATENTABLE’ mentioned under Sections 3 and 4 of the Patents Act,1970

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Patentability - novelty

it does not form the state of the art

it has not been described orally

it has not been published before the date of filing the patent

application 

It has not been used before the date of filing the patent

application 

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Patentability-inventive step

Technical advance as compared to the existing knowledge or

Having economic significance or

Both technical advance and economic significance and

All the above mentioned features makes the invention non obvious to a person skilled in the art.”

Besides the above features the invention can able to be manufactured in an industry and It must possess utility ( usefulness) to the mankind

 

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Inventions  patentable

EXHAUSTIVE LIST NOT LIMITED

Art(technology), Process, Method of manufacturing;

Machine, apparatus, instrument or other Articles;

Substances, compositions or formulations produced by Manufacturing process;

Computer Software to be applied in a Technical application to Industry or programmed in a hardware

Food products / Chemicals / Medicines and bulk drugs/ fertilizers

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Inventions not patentable Frivolous or obvious and contrary to natural laws

Contrary to public order or morality or prejudicial to human,

animal or plant life and health or to the environment.

Mere discovery of the scientific principle or the formulation of

an abstract theory or discovery of any living thing or non-living

substances occurring in nature

Mere discovery of new form of known substance without any

enhancement in the efficacy new property or mere new use

for known substance or the mere use of a known process,

machine or apparatus-unless the known process results to

new products or employs at least one new reactant.

Mere admixtures of substances.

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INVENTIONS NOT PATENTABLE

Inventions not patentable

Mere arrangement / rearrangement or duplication of known devices functioning independently in a known way.

Method of agriculture and horticulture;

Any process for the medicinal or surgical, curative prophylactic, diagnostic, therapeutic or other treatment of human beings, animals to render them free of disease or to increase their economic value or that of their products;

Plants and animals in whole or any part thereof other than micro-organisms but including seeds, varieties and species and essentially biological process for production or propagation of plants and animals;

A mathematical or business method or algorithms.

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Inventions not patentable

literary, dramatic and musical works and aaesthetic creations including cinematography and television production.

Method for performing mental act or playing game.

Presentation of information. Topography of Integrated Circuits. Invention which in effect, is traditional knowledge

or which is an aggregation or duplication of known properties of traditionally known components.

Inventions relating to Atomic Energy

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Patent prosecution - Stages

I. FILING OF APPLICATION under section.7 or 54 or 135 or 7(1A)

II. REQUEST FOR EARLY PUBLICATION under section.11A(2) PUBLICATION AFTER 18 MONHS under section.11A

III. REQUEST FOR EXAMINATION under section.11B

IV. EXAMINATION under section under section12

V. SEARCH FOR ANTICIPATION BY THE EXAMINER under section.13

VI. CONSIDERATION OF ‘FER’ BY CONTROLLER under section.14

VII. REFUSAL / AMENDMENT OF THE APPLICATION under section.15

VIII. ANTICIPATION PROCEEDINGS IF ANY under section.18

IX. OPPOSITION PROCEEDINGS IF ANY under section.25

X. SECRECY DIRECTIONS IF ANY under sections.35 to 42

XI. GRANT OF PATENTS under section.43

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PATENTING IN COMPUTER SCIENCESCOMPUTER BASED

INVENTIONS

SOFTWAREPROGRAMMES

SOFTWARE APPLIEDSYSTEM/MACHINE HARDWAR

E

NEEDS TO BE DISCUSSED PATENTABLE PATENTABLE

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SOFTWARE PATENTS

Operating Systems, File Systems

Graphics and Windowing Systems

Compilers and Simulators

Cryptography and data compression ,MultimediaWord processors, Spreadsheets

micro-blogging patents

audio-video patents

Webpage and web service

patents

XML patents

Image processing patents

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Software patents

"patent on any performance of a computer realized by means of a computer program".

Patents granted to software programming techniques and computer-implemented inventions are generally grouped under the term software patents.

Only from 1981 in US software patents were allowed.

The patent was granted on August 17, 1966 in British for "A Computer Arranged for the Automatic Solution of Linear Programming Problems" (efficient memory management for the simplex algorithm) FIRST SOFTWARE PATENT

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SOFTWARE -INDIAN PATENT SCENARIO AND ISSUES

Section: 3(k) a mathematical or business method or a computer program

per se or algorithms;

3(m) a mere scheme or rule or method of performing mental act or

method of playing game;

software is different from other engineering and mechanical inventions.

Software technology is evolving much faster than other industries, the

period of protection is longer.

Softwares, per se, are intangibles and not protected by patents,

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Software copyright law in India

Indian copyright act of 1957 is amended to extend its coverage to computer software also. Computer programs received statutory recognition as a `literary work'

India has one of the most modern copyright protection laws in the world.

Major changes to Indian Copyright Law introduced in June 1994 include :

the definition of computer program, explains the rights of copyright holder, position on rentals of software, the rights of the user to make backup copies, and punishment and fines on infringement

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Rights under copy right protection: 1) To reproduce the work in any material form including the

storing of it in any medium by electronic means; (2) To issue copies of the work to the public not being copies

already in circulation; (3) To perform the work in public, or communicate it to the public; (4) To make any cinematographic film or sound recording in

respect of the work; (5) To make any translation of the work; (6) To make any adaptation of the work; (7) To do, in relation to a translation or an adaptation of the work

any of the acts specified in relation to the work in the above; (8) To sell or give on commercial rental or offer for sale or for

commercial rental any copy of the computer program.

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Patents V/s Copyright in software patents

Patent protection is much stronger whereas copyright protection is longer.

Patent law protects the functional elements. Copyright protects the form in i.e.

originality of expression

In case of patents if different code achieve same function then it violates patent

law.

Copyrights become effective the moment they are published whereas patents

need to be registered.

Copyrights last for authors’ life plus 60 years whereas patents are granted for a

period of 20 years in India.

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No need to patent the same inventive concept for every invention,

patenting once is enough. Whereas, copyright protection is effective for

that creation only and needs registration/ publishment for all the other

creations even though with same concept.

Patents provide much stronger protection to software.Development of

software using known algorithm or logic but using different language is is

a patent violation but not a copyright violation.

Under copyright laws, protection is available only to the form or

expression of an idea and not to the idea itself.

algorithms are mere ideas and cannot be protected under the copyright law.

Patents V/s Copyright in software patents

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COMPUTER AIDED INVENTIONS/ FIELDS

e-commerce, e-gambling, e-banking, e-money, e-publishing

Computer aided design, computer aided management, computer aided monitoring, computer aided education, computer aided manufacturing,

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PROVISIONAL SPECIFICATION

COMPLETE SPECIFICATION

PUBLICATION

REQUEST FOR EXAMINATION

FIRST EXAMINATION

REPORT

RESPOND TO OFFICE

ACTION

FURTHER EXAMINATIO

N REPORT

WITHIN 12 MONTHS FROM PROVISIONAL SPECIFICATION

AFTER 18 MONTHS FROM PROVISIONAL

WITHIN 48 MONTHS FROM THE PROVISIONAL

WITHIN 6 MONTHS FROM THE DATE OF REQUEST WITHI 12 MONTHS

FROM THE FERGRANT

OF PATENT

PATENT PROSECUTION STAGES

EARLY PUBLICATION (OPTIONAL)

PRE GRANT OPPOSITION IF ANY

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THANK YOU FOR YOUR KIND RECOGNITION