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TRENDS AND DEVELOPMENTS IN INTELLECTUAL PROPERTY RIGHTS WITH SPECIAL REFERENCE TO PATENTS MAHINDRA PRABU M ASSISTANT PROFESSOR OF LAW TAMIL NADU NATIONAL LAW SCHOOL TIRUCHIRAPPALLI

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Page 1: TRENDS AND DEVELOPMENTS IN INTELLECTUAL ...be a plagiarism. It is possible to plagiarize without violating copyright, and it is possible to infringe on another's copyright without

TRENDS AND DEVELOPMENTS IN INTELLECTUAL PROPERTY RIGHTS

WITH SPECIAL REFERENCE TO PATENTS

MAHINDRA PRABU M

ASSISTANT PROFESSOR OF LAW

TAMIL NADU NATIONAL LAW SCHOOL

TIRUCHIRAPPALLI

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WHAT IS INTELLECTUAL PROPERTY?

WHAT ARE INTELLECTUAL PROPERTY RIGHTS

Intellectual property refers to creations of the mind:inventions; literary and artistic works; and symbols, namesand images used in commerce.

Intellectual property rights are like any other property right.They allow creators, or owners, of patents, trademarks orcopyrighted works to benefit from their own work orinvestment in a creation.

Source: WTO

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CONCEPT OF INTELLECTUAL PROPERTY RIGHTS

Global Commons

New Idea / Creativity

(Anti Commons)

FixationProperty Rights

Intangible/Personal/Private

Term Protection

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INDUSTRY AND IPR CYCLE

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TRENDS & DEVELOPMENTSIN PATENTS

Source: ipindia.gov.in

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RANKINGS2015-16

(PATENTEES)

Source: ipindia.gov.in

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STATE WISE RANKINGS

2015-16

Source: ipindia.gov.in

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INDIAN APPLICANTS VS. FOREIGN APPLICANTS

Source: ipindia.gov.in

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PRE-GRANT OPPOSITION

[2015-16]

POST-GRANT OPPOSITION

Source: ipindia.gov.in

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WORKING OF PATENTS

AVERAGE PATENT GRANT TIME

Proposal to reduce average patent grant timefrom 5-7 years to 18 months by March 2018.

Source: ipindia.gov.in

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TYPES OF

PATENT

BIO-TECH PATENT

PLANT PATENT

UTILITY PATENT

SOFTWARE PATENT

BUSINESS METHOD PATENT

NANO-TECH PATENT

DESIGN PATENT

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BIO-TECH PATENTS

ANYTHING MADE BY MAN UNDER THE SUN IS A PATENTABLESUBJECT MATTER [DIAMOND V. CHAKRABORTHY, 447 U.S. 303(1980), US SUPREME COURT]

A PRODUCT OF HUMAN INGENUITY

GENETIC MODIFICATION/ GENETIC ENGINEERING / TRANSGENIC

MICRO-ORGANISM

SEEDS, PLANTS, ANIMALS AND HUMAN BEINGS

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PLANT PATENTS V. PLANT VARIETY PROTECTION

UNITED STATES: EXTENDED PATENT PROTECTION TO PLANTSPRODUCED BY EITHER SEXUAL OR ASEXUAL REPRODUCTIONAND TO PLANT PARTS INCLUDING SEEDS AND TISSUECULTURES (EX PARTE HIBBERD (1985) 227 USPQ 433).

INDIA: ALTERNATIVE PROTECTION – SUI GENERIS – PLANTVARIETY PROTECTION AND FARMERS RIGHT ACT, 2001 (PLANTVARIETY INCLUDES TRANSGENIC VARIETIES)

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UTILITY PATENTS

PETTY PATENTS

INCREMENTAL INNOVATION

JUGAAD / FRUGAL INNOVATION

NEEDS LEGISLATIVE BACKING IN INDIA

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SOFTWARE PATENT

SOFTWARE PERSE

EMBEDDED SOFTWARE

CRI – COMPUTER RELATED INVENTIONS

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BUSINESS METHOD PATENT

INDIA: NOT PATENTABLE

US: PATENTABLE

YAHOO v. CONTROLLER & REDIFF (IPAB, 2011)

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NANO-TECH PATENT

EFFICACY REQUIREMENT Section 3(d) of Indian Patent Act, 1970 clearly

provides that particle size cannot be the onlycriterion for patentability; the invention must alsopossess substantial differences in properties of thecomponents increasing its efficacy.

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DESIGN PATENT

US: PATENTABLE FUNCTIONAL DESIGNS NOT COVERED

INDIA: ALTERNATE PROTECTION – DESIGNS ACT, 2000. DESIGN: APPLIED TO ANY ARTICLE BY INDUSTRIAL

PROCESS AND APPEAL TO EYE

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ANTICIPATION BY

PUBLICATION

Section 102 of the US Act provides for a one year graceperiod under which, even if the invention disclosed in apatent specification is published not earlier than a yearbefore the filing of the patent, it does not anticipatethe application.

Section 31(d) of Indian Act states that an invention shallnot be deemed to have been anticipated by reason onlyof the description of the invention in a paper read by thetrue and first inventor before a “learned society” orpublished with his consent in the “transactions ofsuch a society”, if the application for the patent is madeby the true and first inventor or a person deriving titlefrom him not later than twelve months after thereading or publication of the paper, as the case maybe.

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Whether Publication of research findings in any Journal covers S.31(d) of Indian Patent Act?

If a paper is published in any journal, although it may bepublished by a learned society, it is not a transaction ofthe learned society and hence would serve as prejudicialdisclosure/anticipatory prior art. This is clearly evidencedfrom the wording of Section 31(d), which says“published in the transactions of a society” and not“publication of the transactions of the society”.

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COPYRIGHT AND

PLAGIARISM ISSUES

MAHINDRA PRABU M

ASSISTANT PROFESSOR OF LAW

TAMIL NADU NATIONAL LAW SCHOOL

TIRUCHIRAPPALLI

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What is Plagiarism?

Plagiarism when someone describes another’s thoughts orwording as though they were one’s own. This means that aplagiarism does not necessarily have to be about textualsimilarity. It could just as well be a question of structuralsimilarity or, for that matter, conceptual similarity.

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Self Plagiarism

Plagiarism involves the presentation of others’ ideas,text, data, images, etc., as the products of our owncreation.

Self-plagiarism, occurs when we decide to reuse inwhole or in part our own previously disseminated ideas,text, data, etc., without any indication of their priordissemination.

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What is Copyright Infringement?

Copyright infringement means violating the rights of acopyright holder. The following are the rights granted byIndian Copyright Act, 1957.

Right to Reproduction / Right to Copy

Right to Adaptation

Right to Publication

Right to Performance

Right to Display.

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What is the difference between Plagiarism and Copyright Infringement?

Plagiarism Ethical Concept

Academic Dishonesty

Ethical Offense

Intentional or Unintentional

Copyright Infringement Legal Concept

Violation of Exclusive Rights

Legal Consequences

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Key Observations

Not all plagiarisms are infringements and not allinfringements are plagiarisms.

A person can plagiarize almost anything, includingworks that are not protected by copyright.

It’s also worth noting that getting permission to use awork makes the use non-infringing though it might stillbe a plagiarism.

It is possible to plagiarize without violating copyright,and it is possible to infringe on another's copyrightwithout plagiarizing. It is also possible to bothplagiarize and violate copyright at the same time.

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UGC Guidelines, 2018

UGC (Promotion of Academic Integrity and Preventionof Plagiarism in Higher Education Institutions)Regulations, 2018.

Imposing penalty for both students, researchers,faculty and staff

Core work includes Abstract, Summary, Hypothesis,Observations, Results, Conclusions andRecommendations.

UG, PG, Masters, M.Phil., and Ph.D.

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THANK YOU