What Is Intellectual Property?

The theory of property was based on Locke’s labour theory which basically said: ‘any product of my labour should belong to me.’ Extending this logic, any product of my intellectual labour, ought to be considered my property and I should have the exclusive right to use it to my benefit. This concept forms the basis of intellectual property. But this property right differs from the property rights in real property to a great extent.

 

Why Do We Need Laws On Intellectual Property?

The concept of Intellectual Property is a typical example of ‘legal fiction’. This means that it would not have existed had there not been a law stating that it does.

In the absence of intellectual property rights, artists, writers, scientists and other creators of art and pioneers of science and technology will not be able to hold on to the benefits of their intellectual creations.

The law aims to release new ideas and advancements into the public domain bridled by reins, in the control of the creators. There are different laws, with varying rights and liabilities that cover the different types of intellectual produce.

 

Point of Interest!

The various laws that come under the umbrella of Intellectual Property Rights did not evolve together, and they are dissimilar in many aspects. But with International Agreements to promote the protection of intellectual labour, these rights are being viewed together. However, the distinction remains that the Industrial Rights are trademarks, patents, designs, geographical indications and a few others whereas copyright is a broader and less commercial right.

Copyright Law

Introduction And Overview Of Copyright

The technology of printing was invented and widely established in the 15th and 16th centuries. The modern form of copyright law first took shape in Europe, where governments attempted to regulate the output of printers.  Printing allowed for multiple copies of a work, leading to a more rapid and widespread circulation of information. Although that was a favourable outcome of the invention, allowing the dissemination of Bibles and government information, works of dissent and criticism could also circulate rapidly. Consequently, governments began to regulate the printing sector and required them to have official licences to trade and produce books. The licenses typically contained the exclusive right to print particular works for a fixed period of years, and enabled the licensed printer to prevent others from printing the same work during the period specified.

Nature of copyright: We shall try to understand the nature of the right by examining the following aspects of the right.

1. Expression: It is a right granted over the expression of an idea, and not over the idea itself.

–> Example: So let us say Billoo has the plot of a play in his head and has not put it down in any form. At his friend’s birthday party, he discusses the plot with Shakeel, who then writes and publishes a play on exactly those plotlines.

Billoo will not be able to claim copyright over the idea and sue Shakeel for copyright infringement because copyright does not protect the idea.

–> Example: Taking Billoo’s situation further, let us say Billoo had indeed written a play and ‘fixed’ it in a medium. At his friend’s birthday party, he showed the play to Shakeel who was very impressed. Shakeel asked if he could borrow the copy so that he could read it intently. A month later, the play was published by Shakeel under his name.

Billoo would find it difficult to prove that the work was created by him, unless he could get witnesses to testify as such. Publication of a work results in registration of the work, and it thus becomes easy to validly prove that the work was created by him.

 

2. Monopoly: Copyright is a monopoly right, for a limited period of time. A monopoly right granted by the law gives the monopoly holder (in this case the author of the work under copyright) a bundle of powers to prevent anyone else from reproducing, performing or making derivative works from the same and from communicating the work to the public.

 

What is a monopoly? A situation where there is only one source in the market for a particular good or service, either by default or by the force of law, as in the present case.

Salient features of Copyright Act: The copyright Act aims to strike a balance between the rights of the author and the public by providing the author with the sole rights over his work and then providing for the work to lapse into the public domain. The concept of the ‘public domain’ is very important because it is a vast pool of literary, dramatic, artistic, and musical works over which any member of the public may exercise any of the rights previously held solely by the creators of those respective works.

Subject matter of copyright: Literary work; Dramatic work; Musical works; Artistic works; Cinematographic films; Sound recordings; Term of copyright: The duration for which the author’s rights extend over his creation is for the rest of his life + 60 years (for his estate) before the work lapses into the public domain; Computer software and copyright protection.
Author and ownership of copyright: The author is the one who creates the work, and acquires copyright and a moral right over his creation. He is also the owner the work. However, if he decides to assign the copyright to someone else, or license the rights to the work, he loses that aspect of ownership. However, he does not lose his moral right over the work.
Rights conferred by copyright: Copyright is a right that is acquired naturally and immediately upon the creation of the work.

 

Communicating To The Public

The meaning of ‘communicating to the public’ is very wide. Distribution or exposure of the work to any members of the public, without the permission of the author is unauthorised ‘communication to the public’. This is a sole right of the author of the work.

–> Example: Neha plays the latest Lady Gaga song loudly on her speakers in her hostel room, and disturbs her neighbours. Her IP law teacher, who is also the hostel warden, warns her that along with disturbing the peace, she is also committing copyright infringement.

‘Communication to the Public’ includes loudly playing music in a hostel room which can be heard by others in the hostel.

–> Example: Kanak wanted to produce a play in his son’s school, and he chose ‘The Bottled Spider’. He contacted the playwright and informed him that they would be adapting his play. Without confirming the playwright’s consent, they went ahead with the production and put it up in front of an audience.

This amounts to copyright infringement as dramatic works are a subject matter of copyright and any mode of communicating the work to the public is the sole right of the author.

Time for a Box!

Shina sings a cover version of a very famous song and uploads it on youtube. Will it amount to copyright infringement or not?

 

 

Assignment, Transmission And Relinquishment Of Copyright:

When the holder of copyright assigns his right, it amounts to a complete transfer of the copyright. The person who assigns the right is called the ‘assignor’ and the person to whom the right is assigned is called the ‘assignee’. When a copyright in a work is assigned, the assignor gives up his rights and interests in the work to the assignee. This may come attached with certain conditions and restrictions, such as a time bound right, or a right over a territory, but the bottom-line remains that all of the rights that a copyright holder has, are transferred upon assignment.

Granting a license, in contrast, is to give the licensee a right or some rights to do something, which, in the absence of those rights would have been illegal. A license does not grant any rights or interests that are not specifically mentioned in the license. The person who grants the license is the licensor and the receiver of the license is a licensee. The nature of license is that the rights can exist simultaneously along with the copyright holder’s rights.
–> Example: Assignment of cinematographic work to assignee in Africa, and piracy begins there. The pirated works are smuggled to India and sold in the black market. The assignment was as to the copyright in Africa. Here the assignee in Africa has the right to sue the producers of the pirated works.

–> Example:  Shyam wrote a novel and published it, and it was a roaring success. He licensed the rights of distribution to a foreign publisher to market it in China. The book was rampantly pirated in the black markets of China and the publisher lost significant profits. The license to distribute the book does not necessarily include the right to sue. The holder of copyright has the right to sue, and the copyright was retained by Shyam in this case. He only licensed out the distribution rights.

Infringement Of Copyright

Copyright infringement is the unauthorized or prohibited use of works covered by copyright law, in a way that violates one of the copyright owner’s exclusive rights, such as the right to reproduce or perform the copyrighted work in public, or to make derivative works.

–> Example: Suppose Michael is a prolific singer and comes out with a hugely successful album, and following this success, Nishchay decides to perform a dance to the song for a school program. By playing the song in front of the public he has reproduced the work without the author’s permission and is thus infringing Michael’s copyright.

 

Fair Use

Not all use of copyrighted material amounts to infringement. There is a provision in the copyright act that exempts certain uses from being found as infringement. This the fair use provision. Whether a particular work falls under fair use or not depends on the nature of the use. The Act has laid down 4 factors against which the nature of the use may be evaluated. These are:

(a) The amount of copyrighted material being used

(b) The commercial nature of the use

Point to be noted, milord!

Safe Harbour Provisions

A safe harbour is a provision of a statute or a regulation that specifies that certain conduct will be deemed not to violate a given rule. It is usually found in connection with a vaguer, overall standard. Analogously, “unsafe harbors” describe conduct that will be deemed to violate the rule.

 
Remedies Against Infringement Of Copyright

Infringement of copyright can give rise to civil or criminal remedies. Yes, infringement of copyright in a particular way may end up putting a person in prison. But most crimes and the corresponding punishments are civil in nature.

Additionally, there is no process of registration of the work, nor is there any standard for the work to be eligible for copyright. This means that as soon as you create the work, and put it down in a form – known as ‘fixing’ – that falls under any of the categories specified, it becomes a copyrighted work.

The remedies include injunction, damages, destruction of infringing copies, account of profit, etc.

any person who knowingly infringes or abets the infringement of the copyright in a work, or any other right conferred by the Act is said to have committed a criminal offence and in such cases copyright infringement, if proved, in a Court of Law, carries a minimum sentence of imprisonment of six months extendable to 3 years and minimum fine of Rs. 50,000 which can extend up to Rs. 2 lakh.

–> Example: In case of pirated copies of books being sold on the streets, it is not possible to get an account of profits made. Thus, the remedy that the copyright holder has in this regard is to avail damages and have the infringing copies destroyed.

–> Example: A person who knowingly allows a printing press for pirated books to be set up on his property is said to be knowingly abetting the infringement of copyright and is thus criminally liable for the same.

Chapter Two: Law of Patents

Patent Law

Patents are a form of monopoly granted to inventors or innovators for their idea. The justification is to promote research and further invention by providing an incentive to the inventors in the form of a monopoly over the making, selling or using of the product without the authorization of the patentee.

However, the idea has to be transformed to a product or an invention that will avail the patent. If X has a brilliant idea for air transport, and Y invents the product that will take the idea forward, Y gets the patent on the product. This product must satisfy certain conditions to be eligible for a patent, such as novelty, non-obviousness, industrial application.
Patents mostly cover the innovations and developments in various fields of technology, such as pharmaceuticals, biotechnology, computer hardware etc., and there exists a patent office in every country that has patent laws, which reviews the patent application to decide upon the eligibility for a patent.

–> Example: A group of scientists discover a fundamental law of physics that affects all electromagnetic forces. They cannot get a patent on this as it is a discovery and not an invention.

–> Example: A man invents a machine that carries out automatic and sustainable waste disposal. He will get a patent on the product as long as it is novel and non-obvious and has industrial application.

 

Prior Art: This constitutes all the information that has been made available to the public, in any form before a given date, which might be relevant to a patent applicant’s claim of novelty.

–> Example: For a particular invention in the nature of a tablet computer, the smartphone and the laptop computer would be the prior art that is relevant to examine while considering an application for a patent.

 

State of the Art: ‘State of the Art’ is said to be everything made available to the public by means of a written or oral description, by use, or in any other way, before the date of filing of the patent application.

–> Example: If I invented something and wrote about it for a scientific journal, and then applied for a patent, I would not be eligible for it any longer. This is because any kind of publication or dissemination of the information makes the granting of the patent redundant.

 

Eligibility Criteria

The review of the patent application is done in the patent office by the patent examiner, who uses 3 main criteria to determine the patentability. These 3 criteria are:
(i) Novelty

(ii) Non-obviousness

(iii) Industrial Application

 
The first requirement is that the subject matter is completely new, and is not known or recorded anywhere else in the world. This is a difficult standard in itself, in a world where there has already been considerable scientific and technological advancement.
The second requirement is that of non-obviousness, which means that the so-called invention must not be obvious to a person skilled in the art.
How does one determine what is ‘obvious’? It is a necessary but difficult assessment. Anything may appear obvious after the fact. When Sherlock Holmes solves a mystery, Scotland Yard marvels at how the solution was out there all along, and may dismiss it as an easy deduction. However, if that were so, why didn’t Scotland Yard solve the mystery themselves?

 

Therefore, some tests have been developed that try to make that determination. So, the Patent Office examines the application in the eyes of a person who is considered ‘skilled’ in the field in which the present invention is made.
The question is whether this person, with all the knowledge amassed so far in that field, could arrive at such an idea easily. Granted it is not an accurate test, and it could never be, it is the closest we can come to an objective assessment.
There is also another condition that the invention be suitable for industrial application: A patent right is basically an economic right. The inventor or innovator is given a right of monopoly over the market in that invention.
In India, a patent is granted for a period of 20 years after which the monopoly lapses.

Cross-licensing: A cross-licensing agreement is a contract between two or more parties where each party grants rights to their intellectual property to the other parties, in exchange for the license to use the other party’s intellectual property.

Point of Interest!

Orville Wright and Wilbur Wright had a patent on the ‘flying machine’, which they flew for the first time in 1903. During World War I, the US Government the U.S. government, pressurised the industry to form a cross-licensing organization, the Manufacturers Aircraft Association. The Manufacturers Aircraft Association was an early example of a government-enforced Patent Pool. It has been used as an example in recent cases, such as dealing with HIV antiretroviral drug patents to give access to otherwise expensive treatments in Africa.

 

TRIPS Agreement

The TRIPs is an international agreement among the member countries of the World Trade Organisation (“WTO”) on the trade related aspects of Intellectual Property Rights.

It came into being in the year 1995 and sought to standardise the laws and regulations related to intellectual property laws (in the fields of copyright, patents, trademarks, geographical indications, plant varieties [check if there are others]) and provide for a uniform degree of protection of intellectual property of the citizens of any member country in all other member countries.

Salient Features of TRIPS

It applies uniformly to all members of the World Trade Organization, and requires that there should be no discrimination between intellectual properties created by any citizens of the member countries to the TRIPs.

The Agreement provides for a minimum standard of protection for intellectual property, this means that the domestic laws of any country can provide for a higher degree of protection for intellectual property but cannot go below the standard prescribed by the Agreement.

 

Also, since the Agreement is among the members of the WTO, a member country that wants to air its concerns may approach the body that has been set up to address those concerns, the Dispute Settlement Body of the WTO.

 

TRIPS and Indian IPR

In the area of copyright and related rights (i.e. rights of performers, producers of phonograms and broadcasting organizations), the Agreement requires compliance with the substantive provisions of the Berne Convention.

The provisions of this Agreement affect our patent laws to a great extent, and the Indian legislature had to amend the Indian Patents Act by a significant degree to incorporate the provisions in the TRIPs agreement into domestic law.

The Indian Patents Act and the TRIPs Agreement

The Indian Patents Act was amended in 2005 to bring it into conformity with the TRIPs Agreement. Now, the term of patent and the criteria for patentability are as required by the TRIPs Agreement.

The TRIPs sets the minimum standards for patentability, so member countries may make the rules stricter than as laid down in the agreement.

Point of Interest!

The Section 3(d) Controversy

The TRIPs requires patents to be given for inventions in all fields of technology, but Section 3(d) of the Indian Patents Act has fallen into a grey area as regards this provision.

Section 3(d) of the Act says that if only a new use is discovered for a known substance, it cannot be patented.

This was done to prevent something known as ever greening. A patent holder may discover a new use for his product and then wait until the expiry of his first patent term so he may patent it again, providing its new use as the invention.

Novartis, a global pharma giant is fighting a case on the constitutionality of this provision in the Indian courts.

 

Compulsory License: When a technology or an invention is too important and essential in public interest or the nation at large, the Government may require the patent holder to compulsorily license his invention to make it widely available and accessible to the people.

(a) The reasonable requirements of the public with respect to the patented invention have not been satisfied; and

(b) The patented invention is not available to the public at a reasonable price.

(c) The invention is not worked commercially to fullest extent in territory of India.

The circumstances constituting “failure to meet the reasonable requirements” of public in respect of a patent, are inadequate manufacture in India or non-working of the patent on a commercial scale etc.

 

–> Example: The Indian Government recently commenced discussion on whether to issue compulsory licenses on essential medicines such as cancer drugs, which are unaffordable by the vast majority of the patients.

Chapter Three: Trademark Law

Trademark Law

A trademark is a distinguishing mark or sign that represents a particular brand or company. It is used to authenticate goods or services produced by the company and indicate to the consumers the origin of the goods or services.

This system also seeks to prevent others from using the same mark to pass off their own goods as those made by the company.

The objective of having a Trademark is to provide a distinct mark of origin of a class of goods, and to distinguish those goods from others that do not belong to the same brand. It also confirms that the goods have the same quality and standard as established by the brand, besides serving as a form of advertisement for the brand.

Now, we shall deal with the precise nature of the rights which a person can acquire in respect of a Trademark. A trademark is a negative right, like most intellectual property rights. It gives the right-holder the right to prevent others from using the same mark on goods that do not originate from the same brand. If any other company that makes similar goods uses a very similar mark that may deceive a customer into believing that they are of the same brand, the right-holder can go to court to ask that the company stop using that mark on its goods. The right-holder can also make a claim for damages on the profits that the other company has made by using that similar mark on its goods. The rationale behind this is that the customers were under the impression that the goods belonged to the right-holder’s brand, and thus there was a loss of actual business for the right-holder.

 

Registration of Trademarks: The marks are to be registered at the Patents and Trademark Office and the legal right on the mark lasts for 10 years, after which it can be continuously renewed for 10 year periods.

 

Transfer: The Rights in a Trademark may be transferred by Sale or Assignment or License. But this transfer does not amount to a transfer of goodwill.

Functions of a Trade Mark

1. It identifies the product of its origin
2. It guaranties its unchanged quality, and breeds goodwill.
3. It advertises the products
4. It creates an image for products.

 

What Is A Good Trade Mark?

Brand creators generally use a few pointers that make a good Mark. It should be distinctive, the best trademarks are invented or coined words. It should be easy to pronounce and remember; if it is a word mark and it should not be descriptive (such as ‘quick’ or ‘powerful’).

Selection of a geographical name is prohibited, as no one can have a monopoly right on it. (For that purpose, we have Geographical Indications) And, it should not belong to the class of marks prohibited for registration.

 

What Are The Types Of Trademarks That Can Be Registered?

Under the Indian trademark law the following are the types of trademarks that can be registered:

• Product trademarks: are those that are affixed to identify goods.
• Service trademarks: are used to identify the services of an entity, such as the trademark for a broadcasting service, retails outlet, etc. They are used in advertising for services.
• Certification trademarks: are those that are capable of distinguishing the goods or services in connection with which it is used in the course of trade and which are certified by the proprietor with regard to their origin, material, the method of manufacture, the quality or other specific features
• Collective trademarks: are registered in the name of groups, associations or other organizations for the use of members of the group in their commercial activities to indicate their membership of the group.

 

The regulatory authority for Trademarks is the Trade Mark Registrar within the department of the Controller General of Patents, Designs and Trade Marks. The police now have more robust powers in enforcing trade mark law, including, the ability to search premises and seize goods suspected of being counterfeit without a warrant. But these powers are tempered – or, from the perspective of rights owners, made much less effective – by the requirement for the police to seek the Trade Mark Registrar’s opinion on the registration of the mark before taking action. This adds to the delay and may result in counterfeit goods being removed or sold.

Infringement and Passing Off:

 

Infringement gives rise to a criminal remedy whereas Passing Off is a common law right.

The specific description of passing off is not given in the Trademark Act but the courts have drawn its meaning from common law that, if the infringement of trademark is done in such a manner where the mark is not only deceptively similar to the trademark of the other company but also succeeds in confusing the consumer, resulting in losses for the company.

 

–> Example: Boat is a match manufacturing brand that has a logo and design deceptively similar to the Ship matches. However, the matches are off poor quality and the brand does not take off. Ship sues Boat for passing off although it resulted in no losses for Ship. It will not succeed.

 

–> Example: Tantra is a registered brand of clothing which manufactures t-shirts with clever or catchy messages. Some people register Mantra as a brand of clothing which manufactures similar t-shirts. Tantra has a claim for trademark infringement against Mantra.

 

Differences Between Passing Off And Infringement
They are slightly different from each other:

 

Trademark Infringement	Passing Off
Statutory remedy is available for infringement.	The action for passing off is a common law remedy.
For an infringement action, one only needs to establish that the infringing mark is identical or deceptively similar to the registered mark	In case of a passing off action, one needs to prove that the marks are identical or deceptively similar which is likely to deceive or cause confusion and result in losses to the company.
When a trademark is registered, registration is given only with regard to a particular category of goods and hence protection can be given only to these goods and action of infringement would be taken	In a passing off action, the defendant’s goods need not be the same; they may be related or even different.

 

In an action involving infringement or passing off, a court may grant relief of injunction and/or monetary compensation for damages for loss of business and/or confiscation/destruction of infringing labels and tags etc.

 

Point to be noted, milord!

Where the conflict is between two parties where one party has been a prior user of an unregistered trademark which is very similar to a subsequent user of a registered mark, the priority is given to the party who was a prior user of the mark, as long as he was using it consistently.

 

Non-usage of the mark for a period of 5 years or more can result in cancellation of the mark if any aggrieved person makes such an application.

Geographical Indications

What is a Geographical Indication?

• It must originate from a specific geographical territory.
• It is used to identify agricultural, natural or manufactured goods
• The manufactured goods should be produced or processed or prepared in that territory.
• It should have a special quality or reputation or other characteristics

Some instances of Indian Geographical Indications include:

Basmati Rice: This type of rice has been grown in the foothills of the Himalayas for thousands of years. It has long grained and has its own aroma which enhances flavours, this can be attributed to the fact that special procedures are applied while growing and storing the grain. There was a dispute between India and the US recently over the fact that a patent had been granted to a US company for basmati rice, while a Geographical Indication protection already existed on it.

–> Example: Kanchipuram Silk Saree This garment merits a Geographical Indication because of its distinctiveness in fabric, manufacturing procedure, silk weaving traditions and many other factors.

Legal protection is available for geographical indications and this realm of law is governed by the Geographical Indications of Goods (Registration & Protection) Act, 1999.

Geographical Indications of Goods are defined as that aspect of industrial property which refers to the country or place of origin of that product. Typically, such a name conveys an assurance of quality and distinctiveness which is essentially attributable to the fact of its origin in that it is a defined geographical locality, region or country.

A Geographical Indication is accepted at the international forum as an Intellectual Property Right. They are covered in the Paris Convention on Industrial Property and the TRIPs Agreement.

 

Trade Secrets Law

With the increasing rivalry in every commercial and technological field, businesses must ensure that they adequately protect their business processes, technical know-how and confidential information from their rivals.

Like other intellectual property rights, trade secrets can be vital to a company’s growth and even critical for its sustenance as a business venture. But there is no specific law in India that governs trade secrets and thus businesses may not know how best to protect their confidential information.

What is a Trade Secret?

A trade secret refers to data or information relating to the business which is generally kept secret from the public and the owner reasonably attempts to prevent the spread, publication or dissemination of the information.

Trade secrets generally give the business a competitive edge over their rivals. Almost any type of data, processes or information can be referred to as trade secrets so long as it is intended to be and kept a secret, and involves an economic interest of the owner.

For example, a business may have certain software that it uses to compile and process relevant data that give it an edge over its competitors. This could be regarded as a trade secret.

The Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) under the auspices of the World Trade Organisation lays down the following three criteria for regarding any information as undisclosed information (or trade secrets):

• It must not be generally known or readily accessible by people who normally deal with such type of information
• It must have commercial value as a secret
• The lawful owner must take reasonable steps to keep it secret.

Customer lists, business information, employee details, financial records, data compilations, business plans and strategies, formulae, designs, drawings, algorithms et al, could all amount to trade secrets.

It is important to bear in mind that a trade secret need not be something that is novel nor should it have any real or intrinsic value to be protected. The only important requirement is that it must be a secret.

 

Traditional Knowledge

“Traditional knowledge” refers to knowledge systems, creations, innovations and cultural expressions which have generally been transmitted from generation to generation, as a ‘tradition’. They are seen to pertain to a particular group of people or a territory. Another aspect of its nature is that it is constantly evolving in response to a changing environment.

In short, it does not fit very snugly into the Intellectual Property paradigm, but many developing countries have successfully argued for its inclusion into the sphere of protected rights. The fact also remains that volumes of useful knowledge have been garnered through these traditional means.

It tends to be developed in a way that is closely related to the immediate environment in which traditional communities dwell, and to respond to the changing situation of that community.

The way Traditional Knowledge is created and processed may not be formally documented in the way that much scientific and technological information is recorded. The apparent non-systematic manner of creation of traditional knowledge does not diminish its cultural value or the value of its technical benefit.

The international agreement known as ‘Convention on Biodiversity’ (CBD) also notes the importance of Traditional Knowledge. India is a party to the CBD, and every party to the CBD is obliged and encouraged to:

• protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements,
• Develop and use indigenous and traditional technologies, in pursuance of the objectives of this Convention.

Some Western scientists were rediscovering already existent knowledge in medicine or therapy in the course of their research. For instance, two American scientists of Indian origin applied for a patent in the U.S. on the property of Neem to heal wounds. The Council for Scientific and Industrial Research objected to the patent and produced some Sanskrit literature as Prior Art.

A similar situation took place with respect to rediscovering the fungicidal properties of the Neem plant.

The Government of India observed with the Neem case and the Turmeric case, that a lot of undocumented traditional knowledge was being disregarded due to the publication requirement of ‘prior art’. This resulted in many patents on inventions and innovations that were part of traditional knowledge.

There is now a new initiative to compile and publish all the existing traditional knowledge in something known as the Traditional Knowledge Digital Library and allow open access to it, so that prior art searches may be conducted on it. This is to ensure that frivolous patents are not granted and purveyors of traditional knowledge are given due acknowledgements and benefits of their contribution.

Exercise

1. Principle: In Patent Law, non-obviousness is one of the requirements for grant of a patent, along with novelty and industrial applicability. It is determined by whether the application made would be obvious when the existing prior art is taken into account.

Lokeya was the first company to develop a phone that also had a video camera facility. The technology for the phone was already existent, and so was the technology to produce the camera. Will Lokeya get a patent on the technology to combine the two, in the new product?

(a) Lokeya did not invent the technology for the camera or the phone, so it will not get the patent on the combination of the technologies.

(b) Lokeya invented the technology to integrate the two facilities and therefore, it must get a patent on the technology that has brought about the integration.

(c) Lokeya will not get a patent as the invention becomes obvious once the prior art of a camera and a phone are considered.

(d) Lokeya will get a patent as the invention is new, non-obvious and has industrial application.

Ans: (b)

Lokeya developed the technology that helped put the camera and the phone into one instrument. Since this invention is novel, non-obvious and has industrial applicability, it will get a patent.

2. Principle: Copyright is given to original works, and the owner of copyright reserves the right to make adaptations or any other kind of derivative works or translations from the original work.

Kona Biswas published a book that contained excerpts of dialogues from her favourite English films and her descriptive analyses of the films themselves. Will she get a copyright on the work?

(a) No, the copyright rests with the scriptwriters of the films, who are the authors of the works she adapted.

(b) Yes, Kona will get a copyright on the work because she has added her own originality to the work.

(c) No, the copyright rests with the publisher of Kona’s book.

(d) Yes, Kona gets a copyright as to the extent of her original contribution.

Ans: (d)

3. Principle: Products which have Geographical Indications must indicate a unique and distinctive nexus with the place of origin or manufacture. It is this aspect of the product that makes it eligible to get a Geographical Indication upon its name.

There are a particular brand of dolls being manufactured in many factories around Gandhinagar, Gujarat that do not possess anything distinctive about them. However, these dolls are mass manufactured in Gandhinagar, providing employment and they are marketed as ‘Gandhinagar girls’. Is it eligible for a Geographical Indication?

(a) The distinctive aspect of the dolls is that they are manufactured at a large scale in Gandhinagar providing employment to many residents of Gandhinagar.

(b) There is nothing geographically distinctive about dolls being mass manufactured in a factory. It could be done in any other geographical location as well.

(c) The words ‘Gandhinagar Girls’ are eligible for trademark protection, but the products are not eligible for Geographical Indication protection.

(d) None of the above.

Ans: (b)

As the dolls could be manufactured in any factory irrespective of its geographical location, the ‘Gandhinagar Girls’ do not merit Geographical Indication protection.

4. Principle: Traditional Knowledge is sufficient to act as prior art to prevent patent applications on already existing knowledge.

There is a plant that grows in the islands of Lakshadweep which has excellent therapeutic properties and the tribes of the island use the plant for medicinal purposes, although they do not know how it works. A group of scientists conducting research on the island observe the usage of the plant and develop a drug from it, which they intend to patent. Will they receive a patent on the product?

(a) The scientists invented the drug as opposed to the tribal who were merely using it without knowing how it works.

(b) The tribal deserve a patent on the drug as they provided the building blocks for the development of the drug.

(c) The traditional knowledge that the tribes possessed acts as prior art, thus the application’s requirement of novelty is not fulfilled.

(d) The drug will be eligible for patent as the scientists worked out how the plant works and used it to invent the drug.

Ans: (c)

Logical Reasoning

1. Premise: An invention may be patented if it satisfies the following criteria: (a) novelty (b) non-obviousness (c) industrial application

Based on this, which of the following will get a patent:

(a) A mathematical formula

(b) An improved version of an existing drug

(c) A new technology that results in waterproof glass

Ans: (b) and (c)

A new technology that results in waterproof glass is an invention that is novel, is non-obvious and has industrial application.

An improved version of an existing drug is not patentable under the Indian Patents Act but will be patentable based on the criteria mentioned above.

 

2. Which of the following is an invention under the Act? Under the Act: (1) a new use of a known substance is not patentable (2) Software programs per se are not patentable (3) traditional knowledge that has been documented in some form.

(a) Roots used traditionally for therapy refined into medicine which have been documented in the Traditional Knowledge Digital Library.

(b) A birth control pill that does not cause hormonal imbalance.

(c) A software program that performs an essential function of security.

Ans: (b)

 

In the following 3 questions, there will be an assertion and a reason provided. You have to decide whether the assertion is right, and then decide whether the reason provided for it is valid.

3. Assertion: In the Internet Age, the copyright laws need an overhaul.

Reasoning: Copying is an essential function to get any information, as a copy is made each time a page is opened.

(a) Both assertion and reason are right, but the assertion is not an effect of the reason.

(b) The assertion is not valid, but the reason provided is a valid statement.

(c) The assertion and reason are both false and invalid.

(d) The assertion and reason are both right, and the assertion is a natural consequence of the reason.

Ans: (d)

 

4. Assertion: Ever greening is prohibited under Indian law, through the provision that prevents improvements upon patents from being patented.

Reasoning: A patent provides a limited monopoly, and if the inventor has not recovered his investment by the end of the monopoly period, it will result in losses for him.

(a) Both assertion and reason are right, but the assertion is not an effect of the reason.

(b) The assertion is not valid, but the reason provided is a valid statement.

(c) The assertion and reason are both false and invalid.

(d) The assertion and reason are both right, and the assertion is a natural consequence of the reason.

Ans: (a)

Although both statements are correct, the first statement is not an assertion based on the reasoning provided in the second statement, thus leaving us with option (a).

5. Assertion: The Goodwill in a trademark cannot be transferred upon licensing out the trademark.

Reasoning: Goodwill is the reputation and reliability that a brand has built over time with its own hard work and a good track record.

(a) Both assertion and reason are right, but the assertion is not an effect of the reason.

(b) The assertion is not valid, but the reason provided is a valid statement.

(c) The assertion and reason are both false and invalid.

(d) The assertion and reason are both right, and the assertion is a natural consequence of the reason.

Ans: (d)

Goodwill does not get transferred along with the other rights in a trademark license because goodwill is a value that a brand accrues of its own accord, and it cannot be bestowed on the transferee.