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
1
9
9
9


2
0
0
0


2
0
0
1


2
0
0
2


2
0
0
3


2
0
0
4


2
0
0
5


2
0
0
6


2
0
0
7


2
0
0
8


2
0
0
9


2
0
1
0


2
0
1
1


2
0
1
2


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 the
Caribbean
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

0
50000
100000
150000
200000
250000
300000
350000
400000
450000
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 30
th
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