Managing Patent

and

Copyright

By Group 12:

Sowmya Godise: PGP30108

Suhani Kejriwal: PGP30109

Sumedha Rani Aggarwal: PGP30110

Sumit Das: PGP30111

Sunita Seetharam: PGP30112

Contents:

Introduction

Patent

Copyright

Patent Law

Ownership and Enforcing Patents

Procedure for grant of Patent in India

National Law

International Law

Impacts of Technology

Managing Patents and Copyrights

Role of Business/Industry Associations

Role of NGOs/Civil Society Groups

IP Awareness Programme

Copyright Infringement

Patent Infringement

Conclusion

References

INTRODUCTION

Intellectual property(IP) is the creation of human mind.Under intellectual property law,

owners are granted exclusive rights to a variety of intangible assets, such as musical,

literary, and artistic works; discoveries and inventions; and words, phrases, symbols,

and designs. They usually give the creator an exclusive right over the use of his/her

creation for a certain period of time.

Types of Intellectual Property Rights:

1. Patents

2. Copyright

3. Industrial design rights

4. Trademarks

5. Trade dress

6. Trade secrets

PATENT

Patents are a form of recognition of intellectual property. A Patent gives a person

exclusive rights over an invention that is attributed to that person for a particular period

of time. In return for these rights, the person has to give a fully public disclosure of all

details of that invention.

A patent is generally granted by a central body/authority whose region of influence may

be a state/country, or the entire world. The extent of the rights of the patentee (or the

person who has been granted the patent) depends on the laws that govern the country

and international agreements between various countries. Thus, the rights granted to a

patentee are highly subjective and depend heavily upon the various factors applicable in

the country that the patent applies to.

For instance, the United States gives out right of control over the product as well as the

process when it comes to the pharmaceutical sector. Thus, any company that develops

a particular drug (life-saving or otherwise) has exclusive rights over the drug produced,

as well as the process to manufacture the drug, and the formula of the drug. If any other

company wishes to produce a similar drug using the same process, the company has to

pay royalties to the patentee.

As opposed to that, many developing countries like India give only product rights, not

process rights for life-saving drugs. Hence, if a company has to produce such drugs in

India, they need not pay any royalties to the patentee for using the same process to

produce a similar drug.

This became a big bone of contention between many major pharmaceutical companies

in India like Pfizer and Cipla. Pfizer filed a case against Cipla for violation of its patent

for production of the cancer drug, Sutent. Subsequently, the case was won by Cipla.

This happened because had the process patent been awarded to Pfizer, production

price of the kidney cancer drug would have become more expensive for Cipla. This

would have caused the price of the drug to rise. As the majority of population in India is

below poverty line, they would not have been able to afford the drug to save their lives.

According the World Trade Organization (WTO), under the Agreement on Trade-

Related Aspects of Intellectual Property Rights, all patents can be awarded to

applicants for all inventions in the field of technology. The patent is available for a

minimum of twenty years. However, there are variations on what is patentable and what

is not in different countries.

COPYRIGHT

Copyright gives the author or creator of an original work, exclusive control of how that

work is reproduced, distributed or performed, usually for a limited time with the intention

of enabling the creator to receive compensation for their intellectual effort.

An individual can relinquish copyright to a corporation. One reason for surrendering

copyright is that corporations may have better capabilities for marketing and distribution

of that work. In the recording industry, for example, an artist might transfer copyright to

the record label in exchange for royalties. The record label, in turn,would then ensure

that the recording is marketed and distributed widely in order to maximize the artists

royalties.

Copyrights don't manage themselves well --

they sit around and do nothing, except lock up your work practically forever

There are many aspects to effective management of ones copyrights, but important

ones are: the rights one preserve for oneself when you commercialize your work, and

the rights that you provide for others when you do not. For example, most books have a

productive economic life of about 2 to 7 years, but copyrights go on for approximately

100 years or more.This mismatch between the functional need for copyright and its

depth and breadth has led to the development of remarkable tools that allow authors to

trim the copyright of some of its excess girth.

Works covered by copyright include, but are not limited to:

literary works such as novels, poems, plays, reference works, newspapers and

computer programs; databases;

films, musical compositions, and choreography;

artistic works such as paintings, drawings, photographs and sculpture;

architecture; and

advertisements, maps and technical drawings.

Copyright protection extends only to expressions, and not to ideas, procedures,

methods of operation or mathematical concepts as such. Copyright may or may not be

available for titles, slogans, or logos, depending on whether they contain sufficient

authorship. In most circumstances copyright does not protect names.

PATENT LAW

A Patent awards the rights to excIude others from using, producing, exporting, seIIing,

offering or importing the invention that has been patented for the term for which the

patent has been awarded. That being said, it does not award rights to the patentee to

produce, seII, import, export or distribute the invention. It onIy awards excIusivity of

production to the patentee.

A government agrees to give excIusive rights to the patentee in return for compIete

pubIic discIosure of the invention. The patentee has to agree to discIose fuIIy aII

aspects of the production of the invention, and the invention itseIf. SimiIar to any other

right to property, it may be transferred, soId, mortgaged, Iicenced, gifted, assigned,

given away or abandoned.

Many times patents are aIso obtained for improvements of a particuIar previous

invention. If the improvement of a product has been patented, the patentee of the

product may be aIIowed to produce and seII his invention. But, this is subject to prior

approvaI of the permission and settIement of terms between the patentee of the new

invention, and the patentee of the product that has been improved. Thus, awarding a

patent does not award unrestricted rights of production and trade of a particuIar

inventions. Other factors aIso pIay a roIe. It onIy awards the patentee rights to stop

others from producing and trading his particuIar inventions.

OWNERSHIP AND ENFORCING PATENTS

A patent may be heId by individuaIs, organizations or corporates aIike. The inventors

may seII, transfer or abandon the patent as and when they wish. There is no Iimitation

to these rights to the hoIder of the patents. Thus, the patent is more Iiquefied as a

property.

Under the WorId Trade Organization (WTO) agreements, the Agreement on Trade-

ReIated Aspects of InteIIectuaI Property Rights (TRIPS Agreement), the inteIIectuaI

property rights were introduced in the worId of internationaI trade for the first time in

such a comprehensive manner. The agreement sets down minimum standards for many

forms of inteIIectuaI property rights and reguIations to be appIied to other members of

the WTO agreement. Thus aII nationaIs who Iive in countries which have signed the

TRIPS Agreement are under the purview of the reguIations Iaid down in the agreement.

Patents are aIso enforced through Iawsuits, which may be civiI or criminaI, depending

on the country in which the Iawsuit has been fiIed. WhiIe patent vioIations attract civiI

Iawsuits in most countries, there are a few countries Iike France in which vioIation of

patent Iaws may have criminaI penaIties. To prove a vioIation of his patent, the patent

hoIder must prove that his rights to excIusivity have been vioIated, in one or more

manners in entirety.

PROCEDURE FOR GRANT OF PATENT IN INDIA

A patent appIication must first be fiIed by the true and first inventor, or his assignee. The

appIication may be fiIed by a singIe person, or can be jointIy fiIed my many individuaIs,

or an organization or corporate. After this, a request for examination of the appIication is

to be fiIed.

Once the examination of the appIication has been conducted, the First Examination

Report is issued. The appIicant is aIIowed to give reasons and justify the objections

raised (if any) in the First AppIication Report. If the requirements of the First AppIication

Report are not compIied with within 12 months of the report being issued, the

appIication is treated to have been abandoned by the appIicant.

The term of every patent in India is a period of 20 years, taken from the date at which

the appIication for the patent was first fiIed. The patentee is required to renew the

patent every year. This is done by payment of the renewaI fees, which may be paid

year-on-year, or as a Iump sum.

REGISTRATION PROCESS OF PATENTS

National Law

IP Iaws in India comprehensiveIy cover the requirements of internationaI standards set

by TRIPS. Since Indias aIignment with TRIPS in 1995, most of these Iaws have been

frequentIy redesigned and amended.

FoIIowing are the IegisIations reIated to IP in India:

a) Patents: The Patent Act of 1970 (Amended in 1999)

b) Copyright: Copyright Act of 1957 (Amended in 1983,1984, 1992, 1994 and 1999) \

A. Patent:

Patent Act (1970-amended in 2005) and Patent ruIes (2003-amended in 2006) are the

TRIPS compIiant patent Iaws in India.

Patent activities are under the controI of the Patent Registrar from the ControIIer

GeneraI of Patents, Designs and Trade Marks, a sub-division of Ministry of Commerce

and Industry.

India foIIows a first-fiIe-first-serve poIicy which is significantIy different from procedures

foIIowed in some other countries where first-invented-first-serve poIicy is the norm.

Patents in India are vaIid for 20 years, with the constraint of payment of annuaI fees.

There are some constraints that decide whether a patent is admissibIe:

a) NoveIty: For an innovation to be noveI, it shouId not appear in the form of prior art

b) Inventiveness: If the invention is not obvious to the art expert, it can be considered

inventive

c) UsefuIness: Patents shouId onIy be awarded to products with utiIity

History of Indian Patent System:

1856: Introduction of the Patent concept. 14 yrs. Privileges awarded to inventors based

on British law on patents (1852)

1859: Act modified to form ACT XV to include selling and using inventions in India

1872: Act drafted into ACT XIII The Patterns and Design Protection Act

1883: Act drafted into The Protection of Inventions Act

1888: Consolidated as the Inventions and Design Act

1911: Act drafted into the Indian Patents and Design Act

1972: ACT 39, The Patents Act came into effect

1999: Patents Amendment Act (1999) came into force

2002: Patents Amendment Act (2002) came into force

2005: Patents Amendment Act (2005) came into force

Acts related to Patents:

a) The Patents Act (1970)

b) The Patents (Amendment) Act, 1999

c) The Patents (Amendment) Act, 2002

d) The Patents (Amendment) Act, 2005

Rules related to Patents:

a) The Patent Rules, 2003

b) The Patent (Amendment) rules, 2005

c) The Patent (Amendment) rules, 2006

Inventions not Patentable in India

a) An invention which is lighthearted or which claims anything contradictory to aIready

weII recognized or traditionaI naturaI Iaws

b) An invention, the primary or pIanned to use or commerciaI operation of which wouId

be contrary to pubIic order or ethics or which causes serious discrimination to human,

animaI or pIant Iife or heaIth or to the environment

c) The simpIe discovery of a scientific principIe or the formuIation of an abstract theory

or discovery of any Iiving thing or non-Iiving substance occurring in nature

d) The simpIe discovery of a new form of a known substance which does not resuIt in

the improvement of the known effectiveness of that substance or the simpIe discovery

of any new property or new use for a known substance or of the simpIe use of a known

process, machine or apparatus unIess such known process resuIts in a new product or

empIoys at Ieast one new reactant

e) A substance obtained by simpIy adding admixture which resuIts into onIy in the

accumuIation of the properties of the components thereof or a process for producing

such substance

f) The simpIe arrangement or re-arrangement or copying recognized devices each

functioning independentIy from one another in a renowned way

g) A method of agricuIture or horticuIture

h) Any process for the medicinaI, surgicaI, curative, prophyIactic, diagnostic, therapeutic

or other treatment of human beings or any process for a simiIar treatment of animaIs to

render them free of disease or to increase their economic vaIue or that of their products

i) PIants and animaIs in whoIe or even any part hereby other than micro-organisms

incIuding seeds, varieties and species and vitaI bioIogicaI processes for production or

propagation of pIants and animaIs

j) A mathematicaI or business method or a computer programme per se or aIgorithms

k) A Iiterary, dramatic, musicaI or artistic work or any other aesthetic creation

whatsoever incIuding cinematographic works and teIevision productions;

I) A simpIe scheme or ruIe or method for performing mentaI act or method of pIaying

game;

m) A presentation of information

n) Topography of integrated circuits

o) An invention which in effect, is traditionaI knowIedge or which is an aggregation or

dupIication of known properties of traditionaIIy known component or components.

p) Inventions relating to atomic energy and the inventions prejudicial to the interest of

security of India.

B. Copyright:

Copyright act in India, amended in 1999, does not require the authors to register since

they are eligible to receive international protection. Registration if required, however,

can be made at the Copyright Office, a section of the Ministry of Human Resource

Development.Copyright law protects expressions of ideas rather than the ideas

themselves.

Protection of copyright in India generally extends for a period of up to 60 years from the

authors demise.

Rules and Acts related to copyrights:

a) The Copyright (Amendment) Act, 2012

b) Copyright Act, 1957

c) Copyright Rules, 1952

d) International Copyright Order, 1999

Indian Judiciary Response:

The response of Indian judiciary regarding copyright protection can be grouped under

the following headings:

(1) Ownership of copyright,

(2) Jurisdictional aspect,

(3) Cognizance taken by the court,

(4) Infringement of copyright,

(5) Availability of alternative remedy, and

(6) Rectification of copyright.

International Law

Many countries of the world follows national phase patent applications which is based

on "world patent applications" (WO publications) formed under the Patent Cooperation

Treaty (PCT). The World Intellectual Property Organization (WIPO) is the organization

which looks and maintains a database of WO published international patent applications

(also known as PCT applications). The Patent Lens database has all of the World

patent applications publications for the life sciences made across the world. Many of

these patent applications which are applied may get pass or are granted Iater on in

many countries of the worId but many of them are aIso rejected in many countries.

Patents are specific to particuIar jurisdictions of each and every country. There is

nothing Iike an internationaI patent. Even though there is a reguIatory body as WorId

patent appIication.

A patent is given or awarded by the government of a particuIar country to the inventor

and is vaIid onIy within its territory. To obtain a vaIid patent in a specific country, a

request has be made first in that country's patent office. However, there are some

countries which have different administrative organization aIong with their regionaI

offices such as the European Patent Office (EPO). To note, No specific warrant wiII be

awarded to the vaIidity of specific Iink or patent made in any country's patent Iaws.

In a country where a patent hasn't been granted or has expired or Iapsed, aIready made

and accIaimed invention detaiIed in the patent appIication is free to use in the pubIic

domain. Thus there are some instances where compositions that are cIaimed in patent

are not put to constrain in few countries. In any case, the matters mentioned in the

patent can be an important source of information, regardIess of whether the patent

cIaimed in your country.

However, there are few traps which has to be taken care of. Iaws in every countries that

are member of WTO (World Trade Organization) need to require permission from a

current patent-holder, not only to use the patented technology, but also to import any

products made or developed by the patented technology. An example of this is 35 USC

271, laws that made to stop importing products into the USA made in countries where

processes or parts used or developed but are not patented, because if they are made

in US , are not allowed or infringed by US patents. Recently, cases have come out into

eyes of laws in computer and pharmaceutical products. There are certain narrow

exceptions. Many countries of the world follows and accept patent applications which

are based on filing of patent applications "claiming priority to" patent applications obtain

in other country within a specified time.

A. Patents

1. According to U.S. patent law

Rights, granted to inventors by the federal government, pursuant to its power under

Article I, Section 8, Clause 8, of the U.S. Constitution, that permit them to exclude

others from making, using, or selling an invention for a definite, or restricted, period of

time.

The U.S. system of patent is formulated to encourage inventions that are applicable and

useful for the development of society by allowing inventors the absolute right to exclude

everyone else from applying or making profit from their invention or patented product for

a specific interval of time, disclosing the details of the invention to the public. Once a

patent has expired, the rights of inventions is given access to public to use, make, or

sell the invention. Once patent is given a grant, it is regarded as the Personal Property

of the inventor. An inventor's property rights in an invention itself are freely transferable

and assignable. In addition, a patent holder, or patentee, can give permission or license

to another for use the invention in return for payment or a royalty.

Three types of patents:

(1) Design patents,

(2) Plant patents,

(3) Utility patents.

2. Intellectual property rights in Australia

Intellectual property Australia is the Australian Government agency whose function is to

look for and monitor intellectual property (IP) rights and legislation related to patents,

plant breeder's and designs rights and trademarks. They are agency within the

Department of Industry Below objectives are standard, so it cannot be changed.

By granting IP rights, IP Australia helps to:

a) Develop a secure environment for investment in innovation

b) Enable firms to build brand value and business reputation

c) Encourage the disclosure of inventions and the transfer of knowledge and technology

d) Provide a legal framework for trading intellectual assets

They focus on making sure that:

a) The Australian IP system meets business needs

b) The international IP system meets the needs of Australians

c) Our people work together in an environment where we continually Iearn in order to

succeed

d) We provide our customers with quality services that meet their needs

e) Our operations are cost effective

3. Patent Law in Europe

According to unitary patent of European patent office

The main features of the regulations related to unitary patent protection, and the

EPO's role

The European patent with unitary effect ("unitary patent") will be option for users

besides already-existing national patents and well known patents made in Europe. A

unitary patent will be a patent granted by the EPO under the provisions of the European

Patent Convention in which 25 participating states is given after grant, at the patentee's

request under the unitary effect in their specific boundary.

However, the EPO focuses on various additional tasks. It is solely responsible for

gathering, administering and charging renewal fees for every unitary patents and for

keeping a register of unitary patents which does include legal-status information.

The details of the procedure to request and making a valid a unitary patent, and also

the level of renewal fees and the key under which the fees is distributed to the each and

every participating states, which has to be prepared by the selected committee of the

Administrative Council of the European Patent Organization.

The unitary patent can be requested from 1 January 2014 and can be force of the

Agreement on a Unified Patent Court.

B. Copyright

International Copyright A Network of Treaties and Conventions

There are a number of international treaties and conventions that provide protection for

creative works that are subject matter of copyright. Generally, these international

agreements provide protection for copyrightable works once they are created. The

Berne Convention for Protection of Literary and Artistic Works is the most important

international treaty that addresses international protection for copyright. The United

States acceded to that treaty in 1989. Almost all of the world's most important countries

now belong to the Berne Union with Chinas accession in 1992 and Russian Federation

in 1995.The Copyright Office publishes listing of countries that are parties to Berne

Convention and also other international copyright treaties like Universal Copyright

Convention.

The central feature of the Berne Convention is that it prohibits member countries from

imposing "formalities" on copyright protection, in the sense that the enjoyment and

exercise of copyright cannot be subject to any formality except in the country of origin.

For over a hundred years, the United States resisted joining the Berne Union, in part

because of the desire to maintain the formalities U.S. law required. In order to be

eligible to join the Berne Union, Congress had to amend the Copyright Act to dispose of

the many formalities the Act required. Therefore, while the United States Copyright Act

can impose a requirement that the owner of a United States work must register the

copyright with the Copyright Office before filing an infringement suit in federal court, it

cannot impose that same obligation on foreign nationals. Likewise, foreign jurisdictions

cannot impose similar formality requirements on U.S. copyright owners as a condition to

filing suit in their national courts, even though they can impose those requirements on

their own nationals.

The other main characteristics of the Berne Convention are the concepts of "minimum

standards" and "national treatment." "Minimum standards" are the baseline that all

nations must provide to non-domestic claimants. The "national treatment" principle in

copyright law states that authors should enjoy the same protection for their works in

other countries as those countries accord their own authors. Therefore, a country that is

a member of the Berne Union must afford copyright protection to foreign nationals

without a requirement of any formalities (like use of a copyright notice or a registration

requirement). Foreign nationals must be afforded the same rights and treatment that a

domestic copyright holder would receive.

The result then, is that a United States author automatically is entitled to protection

against the infringement of his work in a foreign jurisdiction that is a member of the

Berne Union. The U.S. author does not have to register the work in the foreign

jurisdiction or comply with any other formalities required in the foreign jurisdiction. In

fact, there are few benefits, if any, from registering the work in a foreign jurisdiction.

However, if an act of infringement occurs in a foreign country, then the infringement

lawsuit must be brought in the courts of the foreign country, and will be prosecuted

under the terms of the foreign jurisdiction's copyright law, not under the United States

Copyright Act.

BERNE CONVENTION

The Berne Convention was concluded in 1886, and now has over 100 member

countries. It aims to protect the rights of authors by providing certain established

standards of protection for their works. Two major international principles underlying the

Berne Convention are:

the principle of national treatment; and

the principle of automatic protection.

The principle of national treatment allows the courts of a country to apply their national

law to acts that occur within that country, rather than a foreign law. Decisions are

therefore more likely to be soundly based, since judges will apply a law with which they

are familiar.

Under the principle of automatic protection, a work will be granted protection even if it

fails to satisfy formalities, such as registration or legal deposit, under the national law of

a member country.

The Berne Convention covers a wide range of works including books, pamphlets and

other writings, lectures, dramatic works and illustrations. Translations, adaptations,

arrangements and collections are also protected. Generally, works are protected for 70

years after the author's death.

The works of nationals of all Berne Convention member countries are protected. Some

works of authors who are not nationals of Berne Convention member countries may

also be protected if the work was first or simultaneously published in a member country.

The Berne Convention gives authors certain exclusive rights, including making or

authorising translation, reproductions and public recitations; and protection of moral

rights.

Each member country may permit certain uses of works in its legislation, such as a

statutory licence for reproduction and communication of works by educational

institutions. The Berne Convention limits the impact of such exceptions to the copyright

owners exclusive rights by providing that the normal exploitation of the work and

legitimate interests of the author must not be affected.

Buenos Aires Convention

The Buenos Aires Convention was a treaty signed by most North and South

American countries, which allows for protection of all creative works as long as they

contain a notice informing that the creator claims copyright on it. The Buenos Aires

Convention also instituted the rule of the shorter term, where the length of the copyright

term for the work in a country was whichever was shorter - the length of the term in the

source country, or the protecting country of the work.

All Buenos Aires countries are now also parties to the Berne Convention, but elements

from Buenos Aires are still used in the modern era, such as the rule of the shorter term.

UNIVERSAL COPYRIGHT CONVENTION (UCC)

The UCC was concluded in 1952 under the auspices of the United Nations Education,

Science and Cultural Organisation (UNESCO) in an attempt to incorporate a greater

number of countries into the international copyright community. UCC protection is lower

and more flexible than the Berne Convention. It was felt that it was better suited to the

needs of developing countries.

The UCC embodies the principle of national treatment, but not automatic protection. A

UCC member country is not required to give a foreign work automatic protection if

national formalities for protection have not been met. Consequently, the symbol,

name and date of first publication should be placed on the work to give reasonable

notice of claim of copyright.

Literary, scientific and artistic works are protected by the UCC. Generally, works will be

protected for a minimum of 25 years beyond the life of the author.

The UCC requires member countries to provide minimum rights to rightsholders.

Exceptions to these rights may be made as long as they do not conflict with the spirit

and provisions of this Convention.

REFORM OF THE CONVENTIONS

The Berne Convention and UCC have been developed through revision meetings at

which all member states discuss reform. These revisions have been necessary to keep

pace with technological developments. For a treaty to be revised, all the signatory

States must agree to the revision.

INTERNATIONAL ENFORCEMENT

The enforcement of rights is one of the features of the Trade Related Aspects of

Intellectual Property (TRIPS) Agreement under the General Agreement on Tariffs and

Trade (GATT). Signatories to the GATT are required to implement national laws of a

basic international standard and establish procedures for the effective enforcement of

the copyright of national and foreign rightsholders.

The TRIPS Agreement under the GATT agreement is managed by the World

Trade Organisation (WTO). As a WTO member, Australia has already amended its

copyright legislation to comply with the requirements of the TRIPS agreement.

RELEVANT INTERNATIONAL ORGANISATIONS

World Intellectual Property Organisation (WIPO)

WIPO is a specialised agency of the United Nations, responsible for the administration

of international intellectual property instruments, including the Berne Convention. Based

in Geneva, WIPO establishes international norms and standards, encourages the

conclusion of new international treaties and the modernisation of national legislation. It

also provides technical assistance to developing countries and assembles and

disseminates information to interested parties.

International Federation of Reproduction Rights Organisations (IFRRO)

IFRRO links together collecting societies known as Reproduction Rights Organisations

(RROs) with national and international rightsholderorganisations, representing hundreds

of thousands of creators worldwide, as members. IFRRO is eligible to speak before

major international copyright organisations, including WIPO and UNESCO.

IMPACTS OF TECHNOLOGY

The number of patents being claimed worldwide has seen an upward trend over the last

few decades. Technology is the primary contributor for this trend. Some countries have

showed increasing tends, while others have maintained numbers, and a few have also

shown decreasing trends. The number and the quality of patents coming out of a

country can be an indicator of the technological advancement of the country. China for

example has shown a steep increasing curve in the number of patents filed over the last

few years. The advancement in technology has also been a contributor for the increase,

better accuracy, accountability and piracy curtailer for patents and copyrights.

Technology patents include both utility patents and design patents.

Number of patents / Year

Source: WIPO

http://ipstats.wipo.int/ipstatv2/

0

100000

200000

300000

400000

500000

600000

700000

19

99

20

00

20

01

20

02

20

03

20

04

20

05

20

06

20

07

20

08

20

09

20

10

20

11

20

12

China

Germany

India

Japan

United States of America

Once you know the technology, you can come up with some new, useful, and

unobvious improvement thereto and one may be granted a patent for the same.

Technological information is disseminated through patents. You can reach almost all

technologies through patents.

With the advent of technology, the number of patentable inventions has hit the roof.

There is a global participation in the collective effort to achieve immense advancement

in science and technology. The sheer volume of patents and copyrights associated with

technology and technology organizations is a driving factor for improved patenting

procedures in terms of accuracy and clear jurisdiction formations.

However organizations also tend to use patents as a sword in order to attain better

business positions and challenge the competitors unfairly to some extent. In some

cases, this kind of approach has proved counterproductive as the competitors overlook

further research on the works involving the claimed patents. Since pursuing efforts by

competitors generally involve loss of finances and also effort at times

For example:

Michael Phillips the owner of the company Vlingo, spent 3 million dollars on law suits

imposed on him by Nuance for property rights that in reality Vlingo had not pirated.

Even though eventually won the case, he did lose the money and more importantly

there was stagnation of time and effort on Vlingo, which would have helped in

technology improvement. And eventually Michael Phillips had to sell his company to

Nuance itself.

Usage of patents for organization specific interests is an issue that needs to be

curtailed!

There are situations when a protected patent has very little visibility and openness,

which affects the works of others. For example many scientists or companies are not

currently aware of the implications of patents and IP restrictions on their work. They

may find out after spending years, and large amounts of money on their projects, that

because they used technology that they do not have the legal right to use, they cannot

supply any deliverables that can be incorporated in a product.Such situations need to

be addressed effectively, which is possible only through better visibility via technology.

Many universities, and many research organizations, use patented technologies in the

hope that patent holders will not prosecute them. Also, researchers believe that no

license is required to practice patented methods in research. This may or may not be

true in ones jurisdiction. Technology has resulted in these scenarios, and technology is

needed to solve these scenarios effectively

Intellectual property rights:

Intellectual property rights (IPRs) give the owners of ideas, inventions, and creative

expression the right to exclude others from access to or use of their property for a

certain period of time.

International treaties and the laws of the various countries differ significantly and hence

the patents and copyrights are jurisdiction based. However some advantages and

minimum standards for the protection and enforcement of intellectual property do exist

under treaties or other international agreements. For example, copyright protection is

automatic in all Berne and WTO countries.

Technology Copyrights and Patenting in India

In India computer programs have copyright protection. But the IT industry says

computer programs should have patent protection, which is more comprehensive. In

recent times, the patent law worldwide has emerged as a powerful means of protecting

computer programs as a patent has inherent advantages over a copyright, which India

is still unsure about patents protect software against reverse engineering. For example,

under the Indian Copyright Act copying from an engraving is an infringement of

copyright, but an engraving produced independently from the same picture is not. The

IT Act, 2000, also does not provide any lead in this direction.

Cyber Laws

Indian law-enforcing authorities have many gray areas to address as the country is new

to Cyber domain. Analysts feel that the Indian IT Act merely integrates law and

technology and they are unhappy at the ignorance of intellectual property. Net-specific

laws covering intellectual property are inadequate and need to be addressed.

How technology helps in achieving the legal compliance?

1. Accountability

Considering the number of patents that are granted every year worldwide, it is

inconceivable to have accurate accountability for the thousands of patents without the

use of impact of technology. Over the years there have been prolonged problems with

patent disputes and piracy concerns. Technology equips one to solve the problems

effectively.

Continent Wise Intellectual property distribution (Year 1999 2012)

2. Genuine and accurate patent claim

There have been numerous patents and copyrights over history that is challenged by a

claimant to be disputed due to the lack of accuracy in the patent claim. The primary

reason being, the fact that, patents are generally jurisdiction restricted. With the advent

of technology, the accuracy of the patents claimed these days is highly standardized

and can be termed comparatively genuine.

3. Ease of patenting

With improvements in information technology and the era of internet, the various

patenting activities have now become very accurate and easier. Compared to the slow

pre technology era of patenting, the overall time invested in the patenting procedures

has reduced. The patenting and copywriting procedures involve

a. Applying for a patent

b. Opposition for the patent

c. Renewal of the Patent

Africa

Asia

Australia

Europe

Latin America and theCaribbean

North America

d. Licensing of the Patent

e. Copyright Protection

f. Patent Protection

4. Effective piracy curtailment

There is a well-established statutory, administrative and judicial framework to safeguard

intellectual property rights in India. Well-known international trademarks have been

protected in India. The Indian Trademarks Law has been extended through court

decisions to service marks in addition to trademarks for goods. Piracy is considered a

criminal offense in India post multiple anti piracy acts.

5. Provide property rights

Over the years there have been many efforts to help provide rights for intangible

products like art, authorship, creative aspects etc. It was seemingly impossible to

account for and tabulate each and every patent uniquely, prior to the advent of

technology. It would be a state of meaninglessness to patent something as intangible as

a software, assuming the number of companies and individuals that are involved with

software. The number of redundant patents would be enormous and very misleading.

Intellectual property rights form an integral part of patenting such works as software.

Technology in terms of evaluating and tracking is an inherent part of the intellectual

rights.

World Intellectual Property Organization helps maintain the statistics on patents and

copyrights. The technology implementation by organizations like WIPO and others help

potential patent applications and also layman to take note of the patents

a. Accurate due diligence of existing patents

At the click of a button the extent and coverage of a patent can now be verified,

with the advanced technology that the patents and copyright granting

organizations use

b. Country and product wise details about patent

The figure below constructed from WIPO is an example

Country Wise Intellectual property distribution (Year 1999 2012)

Source: WIPO

6. Universal Visibility & Tracking of patents has become easier and effective with

usage of Technology

7. Data mining and Analysis (Example: WIPO)

8. Possibility of sub categorized patenting due to availability of accurate information

9. World Intellectual property distribution can easily be acquired and analyzed to

visualize trends

050000

100000150000200000250000300000350000400000450000

Technology helps account for the patents of especially creative works which are

otherwise quite tedious and duplicity prone. The creative works broadly fall under the

below categories.

Literary works

Pictorial, graphic, and sculptural works

Musical works

Sound recordings

Dramatic works

Pantomimes and choreographic works

Motion pictures and other audio-visual works

Architectural works

Suggestions to make the existing legal, regulatory and managerial systems and

procedures to deal the problem in a more effective and proactive manner

The above section has details about the various problems and successes that patents

and copyrights are prone to. The volume of patents filed has increased appreciably

owing to the technology era.

The current legal and regulatory framework in India has the below features

The administrative and judicial framework to safeguard intellectual property rights

in India with respect to patents, trademarks, copyright or industrial designs is well

established

International trademarks are protected in India even when they were not

registered in India

Computer software companies have successfully curtailed piracy through court

orders and Computer databases are very well protected.

Right to piracy which is not protected in many countries is recognized in India

Protection of intellectual property rights in India continues to be strengthened further

According to the 1994 Act, those infringing the Act can be tried under both civil

and criminal laws.

India is also a party to the Geneva Convention for the Protection of Rights and is

an active member of the World Intellectual Property Organization (WIPO) and

United Nations Educational, Scientific and Cultural Organization (UNESCO)

Indian enforcement agencies are working effectively and there has been decline

in the levels of piracy

The Indian government has introduced an intellectual property law that protects

inventions. This law, under the Copyright Act, 1957, provides copyright protection

to computer software programs as well.

There are also many loop holes for the effective and just enforcement of

business laws with respect to patents and copyrights. Vlingo example mentioned

above in the report is a clear example.

Some of the suggestions to deal with the problem more effectively are mentioned below

Stringent rules need to be put forward especially in potential monopoly situations,

where in the big bully companies tend to effect power of size on patents of

smaller companies

Acquiring of smaller companies that are involved in any law suit by a bigger

company should be made difficult and thoroughly examined. (Vlingo Example)

Even though effective piracy policies have been introduced in India, a big

percentage of software and technologies are illegally prevalent in markets. A

more transparent regulatory structure needs to be put in place

There should also be increased formal visibility on the copyrights that have

already been finalized. Many occasions the existence of the patent/copyright

surfaces only after application of another, which results in disqualification and

waste of effort

There should be humanitarian call on approving protected patents which could

be of public use, especially in areas of health and technology

Currently computer programs have copyright protection only. Looking into the

possibility of patenting computer programs may curb reverse engineering and

clone production

MANAGING PATENTS AND COPYRIGHTS

Protecting Your Patents

Following points should be kept in mind while protecting the patents :

1.Maintain trade secrecy

A controlled system of information flow is to be maintained that allows development

detail to filter down only to those who actually need to know. Sensitive information

should be kept secret until there is a patent pending or in effect.

2.Enforce formal ownership agreements for IP

A formal contract agreement among the business, product developers, and other

founders or partners of the business venture has to be formed. A clear agreement has

to exist on who gets what ownership stakes in any pending patents and how intellectual

property will be divided among all those included.

3. Patent the inventions and IP as soon as possible

Initially, focus should be on domestic protection. An excellent temporary protection

strategy is the provisional application for patent which allows to temporarily protect

the IP and inventions with much less bureaucratic hassle while waiting for a formal

patent approval.

Protecting the copyrights

Following points should be kept in mind while protecting the copyrights:

1. Mark the ownership officially and unofficially

For any written material that is published, ownership of the business needs to be noted

with a small copyright marker or the word "copyright" along with the year of publication.

2. Clearly define copyright ownership

If the written materials, such as blog posts, website content, and other business

promotional materials are being written by third parties, a contractual agreement should

exist between the business and the third party to clearly establish the company as the

copyright holder.

Role of Business/Industry Associations

Indias patent reforms represent a shift in Indias policy from being opposed to patents

to revising patent laws according to the WTO, to one of compliance with many aspects

of TRIPs (Trade Related Intellectual Property Rights) Agreement.

Industry and civiI society had opposed the on IPRs (InteIIectuaI Property Rights), and

initiaIIy pIayed a significant roIe in preventing reforms of Indias patent Iaw. WhiIe

Industry was worried about the Iosses and price rises in drugs that wouId occur if TRIPs

was adhered to, NGOs pointed out the negative impIications on farmers, access to

medicines and the appropriation of traditionaI knowIedge.

India has recentIy changed its patent regime, Ied by important industry groups who

revised their positions, and new NGOs that promoted reform. NGOs that emerged to

support patent reform aIso pIayed a roIe in directing poIicy towards protecting traditionaI

knowIedge.

EXPLAINING INDUSTRY SHIFTS

Why did certain industry groups shift their position on patent reform? What Ied to

changes in poIicy preferences on the part of these firms?

ExternaI trade pressure can be seen as one factor that may have promoted changes in

the strategy of firms. The United States exerted both biIateraI and muItiIateraI pressure

on India to change its patent Iaws. However, externaI pressure provides onIy a partiaI

expIanation. What we witness in the case of India is that industry groups started

become votaries of reform and began focusing on the gains that couId accrue from the

new regime. The poIicy debates shifted from that of the negative impIications of patents

to the benefits that Indian industry couId achieve through InteIIectuaI Property.

.

Role of NGOs/Civil Society Groups :

NGOs OPPOSITION TO REFORM

Enormous protest against impIementing TRIPs, arose from non-governmentaI

organizations in India. Their most effective and forcefuI argument was that the IPR

system as outIined in TRIPs recognizes onIy innovations of corporations, but ignores

informaI innovations of farmers and communities, especiaIIy in deveIoping countries.

These NGOs not onIy pointed out the negative impact of patents on industry, heaIth and

prices but aIso highIighted the issue of bio-piracy. Bio-piracy refers to the utiIization of

traditionaI knowIedge or resources by industriaIized nations to create profitabIe

products without compensation. NGOs effectiveIy raised pubIic opinion in India that

changing patent Iaws wouId affect IocaI knowIedge.

NGOs, NEW IDEAS AND CHANGE

The emergence of pro-reform NGOs enabIed a shift in the view on the negative

impIications of patents on traditionaI knowIedge. Non-governmentaI organizations who

took the position that IPRs were not necessariIy harmfuI if India protects its genetic

resources provided an important counter- argument against those who spoke of bio-

piracy. UntiI this time, NGOs mainIy focused on the harmfuI impact of patents on

genetic resources/traditionaI knowIedge and were abIe to raise enormous pressure

against reforming patent Iaws. The rise of NGOs that took an aIternative view paved the

way for changes in India. The pro-reform NGOs pointed out that a more strategic means

of securing gains from inteIIectuaI property was to extend it to traditionaI knowIedge

rather than to protest against patents per se. These NGOs utiIized the same

internationaI debates used by anti-IPR NGOs but reframed these arguments to caII for

IPR reform.

Confederation of Indian Industry (CII) in association with the Ministry of Micro

SmaII & Medium Enterprise, (Mo MSME) Govt. of India has estabIished an InteIIectuaI

Property Rights FaciIitation Centre (IPFC) at Indore,Mysore and Gandhinagar. This is

the first of its kind in the state of Madhya Pradesh, Karnataka & Gujarat to be Iaunched

with a primary objective to Boost IP cuIture which wouId enhance the inteIIectuaI

capitaI that is vitaI for the economic deveIopment of the state.

Objectives

The objectives of the IPFC:

To enabIe MSMEs from states in understanding, Identifying & using InteIIectuaI

Property for Competitive Advantage.

To Provide Services such as IP Protection, IP Awareness & Training,

CounseIing& Advisory Services.

To hand hoId MSME for identifying InteIIectuaI Property in their day to day

business & Ieverage it for Business ExceIIences.

To provide MSME, the strategic management of TechnoIogy and IPR

To create a deIivery mechanism for comprehensive awareness & training in IPR

to aII stake hoIders of IP in the corresponding states

Functions

The IPFCs are focussed with respect to seIected sectors on:

IPR Protection FaciIitation

IP Capacity BuiIding: Awareness & Training

IP Information Services

IP CounseIIing& Advisory Services

IPR Protection FaciIitation

The IP CeII wiII be working cIoseIy with SMEs in the state to identify PotentiaI

Innovations/ Inventions which couId be channeIised into IPRs. The Short Iisted Product/

Process wouId then be assessed for suitabIe IP Protection. This wouId be undertaken

by a Techno IegaI team constituted by the IP CeII.

AII forms of IPR Protection faciIitation wiII be undertaken eg: FiIing of Patents,

Trademarks, Copyrights, Design, and GeographicaI Indications & Integrated Circuits.

FICCIs efforts emphasize the enhancing of the working of the Indian Patent Office,

thereby, bringinggreater transparency in its working, and faciIitating the Government in

deveIoping a poIicy for India.In todays highIy competitive gIobaI economy, IPRs are

giving companies the cutting edge and increasing their competitiveness. With recent

changes in IP Iaws, various IP reIated issues have sprung up, which are highIy compIex

in nature. FICCI envisions itseIf as the thought Ieader in the fieId of IPR. FICCI aIso

views itseIf as being capabIe enough to assist the government and the industry

captains in aII IP reIated matters.Showcasing its unparaIIeIed capabiIities in this

sphere, FICCIs IPR division organises the WorId IP Day on ApriI 26th every year. In

fact, on WorId IP Day 2010, FICCI prepared and submitted a discussion paper on the

NationaI IP PoIicy to the Government of India. In 2011 as weIl, FICCI submitted a brief

report to the Government of India, with a view to safeguarding Indias interests in the

fields of traditional knowledge and traditional cultural expressions, at the International

Governmental Committee meeting at WIPO.

IP AWARENESS PROGRAMME

Automobile industry is one of the fastest growing industries in India. In order to survive

and monetize their innovations, some automobile manufactures like Tata Motors,

Hyundai, Maruti, Ford and General Motors have their own patent portfolios to keep

themselves potent among the competitors.

India is transforming into a global R&D hub for the automotive and auto components

sectors as most auto giants are setting-up R&D centers in the Country. The country

offers several key advantages to global auto majors: lower R&D costs, availability of

skilled manpower, and a potentially large domestic market that justifies the investment.

Having established itself as a small car hub, India is now becoming a formidable choice

for performing R&D activities. The focus on R&D in Auto ancillary units has further

scope for expansion in the country over the next decade.

Patenting activity in India has grown significantly in recent years. The administrative

measures by the government have helped strengthening the countrys IP infrastructure.

IP awareness is growing, which is evident from the increased number of patent filings

and IP litigations. It is obvious that Indian corporates need to formulate their patenting

strategy carefully to stay competitive. This will entail creating more innovations,

protecting these innovations with the relevant form of IPs, respecting others IPs

and extracting value from own IPs through licensing, commercialisation and

enforcement.

In a bid to bring awareness on the issues of Patents, Design & Trademark in the

country, commercializing it and to suggest a viable road-map for ensuring India rightful

place as worlds favorite destination for Research & Development, ASSOCHAM with

support of Controller General of Patents ,Designs and Trademarks (Department of

Industrial Policy and Promotion, Ministry of Commerce & Industry, GOI) is hosting

this one day Seminar on 30th July , 2013 in Pithampur for Auto clusters in the State of

M.P.

COPYRIGHT INFRINGEMENT

Factors determining infringement:

1. Copying:

Casual Connection

Subconscious Copying

Indirect Copying

2. Substantial Taking:

Unaltered copying

Character of Plaintiffs and Defendants works

Nature and Extent of Plaintiffs Effort

Copyright Infringement:

1. Direct Infringement: Direct infringement is a strict liability offence and guilty intention

is not essential to fix criminal liability. The requirements to establish a case of copyright

infringement under this theory are:

(1) Ownership of a valid copyright; and

(2) Copying or infringement of the copyrighted work by the defendant.

2. Contributory infringement: The contributory infringement pre-supposes the

existence of knowledge and participation by the alleged contributory infringer.

Vicarious Infringement: Vicarious copyright infringement liability evolved from the

principle of respondent superior. It focuses not on the knowledge and participation but

on the relationship between the direct infringer and the defendant.

Internet and copyright infringement theories: The advent of information technology has

made it difficult to apply the traditional theories to various cyberspace entities and

organizations. These cyberspace players can be grouped under the following headings:

(1) Internet Service Providers (ISPs),

(2) Bulletin Board Services Operators (BBSO), and

(3) Commercial Web Page owner/operators

PATENT INFRINGEMENT

Patent infringement is the commission of a prohibited act with respect to a patented

invention without permission from the patent holder. it occurs when someone violates

the patent rights an inventor has in his invention has in his invention by making, using or

selling the invention without the patent owner's permission in a way not permitted by the

license.

Types of Patent Infringement:

1. Direct Infringement:

Manufacture patented technology

Use patented technology

Offer patented technology for sale

Sell patented technology

Import patented technology

Pass off the patented

2. Indirect infringement:

Sell parts that can only be realistically used for a patended invention

Sell an invention with the instructions on using a certain method that infringes on

a method patent

License an invention that is covered by another's patent

Sell material components that have been specially made for use in a patented

invention and have no other commercial use

CONCLUSION

India has made important efforts to improve its intellectual property legal framework and

enforcement system and has taken several initiatives to modernize its administration.

Some major achievements include an increase in the level of computerization, providing

Internet connectivity among the various offices, creating an online facility for filing and

processing patent and trademark applications, and computerizing intellectual property

records to create databases.

These are the achievements made but still there are few barriers.

BARRIERS:

Lack of central coordination

Lack of prioritization by police authorities of commercial crimes.

Quality of enforcement varies greatly from region to region.

Underfunded resources for existing specialized IPR units within state police

forces and a lack of dedicated IPR enforcement units at the national level

Effective IPR police enforcement units should be undertaking operations

independently of industry.

The High Court system is overburdened.

Reluctance to apply strong penalties and deterrent-level sentencing.

RECOMMENDATIONS:

Give political priority to IPR crimes through a national declaration of their

importance at the highest levels of government.

Provide additional funding to existing IP cells at the state level.

Expand the number of individual dedicated IPR cells in police jurisdictions around

the country.

Work with provinces to help prioritize enforcement related concerns among

enforcement infrastructure in individual jurisdictions.

Increase existing funding, bonus, and pay rewards systems to include an

incentive rewarding police officers for focus on economic crimes.

Develop a national level database to track IP criminal cases

Adopt statutory damages in civil cases

Enhance automation of IPR related judicial processes

REFERENCES

file:///C:/Users/Honey1/Downloads/ValueOfIP_India_FINAL_LR.pdf

http://www.marketingprofs.com/articles/2012/9674/branding-and-nine-legal-issues-

related-to-patent-trademark-and-copyright

http://www.igidr.ac.in/pdf/publication/WP-2003-006

http://www.cii.in/uploads/IPFC-CII%20website.pdf

http://www.ficci.com/sector/24/Project_docs/IPR-profile.pdf

http://www.iipta.com/ipr/blog/new-ipr-authority-suggested-assocham-1026

http://copyright.lib.utexas.edu/cprtmgt.html

http://www.michaelbest.com/files/Uploads/Documents/Publications/Steps-in-Analyzing-

a-Patent-Strategy_ONE_THIRD_ARTICLE.pdf

http://www.lib.berkeley.edu/scholarlypublishing/copyright.pdf