The equivalent doctrine is a legal mechanism that enables the inventor to file an infringement claim for his patent. Such a claim can rightfully be made by the inventor even though the original product is not the exact same as the infringed product. Protection can be granted to inventions through the “Doctrine of equivalents.” The doctrine of equivalence instills fear in the minds of people. It stops them from making even minor changes to the already patented inventions. The inception of the doctrine of equivalents dates back toGraver Tank and Manufacture Co. v. Linde Air Prods., Inc. The court’s ruling, in this case, gave birth to the triple identity test. This test shall be discussed in detail in the latter segment of the article.
The standards to determine the equivalents in the doctrine of equivalent
There have been a number of tests prescribed to determine the equivalents in the Doctrine of Equivalents (DOE). These rules, claims, and tests have been discussed below:
1. The hypothetical claim
One of the ways in which a court determines the equivalents is through the hypothetical claim. The hypothetical claim is used to determine if there has been an infringement on an existing patent. The hypothetical claim particularly refers to infringement through the copying of prior art of the patented invention. The prior art of the original invention is copied in such a way that the consumer assumes the copied product serves the same purpose as that of the original one. An example of such a prior art being copied can be seen in the following case-Intendis GMBH v. Glenmark Pharmaceuticals Inc., USA.
A. Brief facts
A gel was manufactured by Bayer. It treated a skin condition. Bayer was associated with the GMBH company. The gel was a registered patent under‘070 patent. Glenmark on the other hand made a generic gel. It further claimed the patent did not apply. The contention by Glenmark was based on the datum that generic gel contained various inactive ingredients. Another important aspect that was in question was the lecithin content. Glenmark stated that there was no lecithin in the generic gel. However, Glenmark could not prove the same. Hence, it was concluded by the court that Glenmark had the same ingredients as Bayer’s.
B. Application of DOE in the case
The court, in this case, arrived at a conclusion that DOE applies even if the patent does not spell out the functions. This is because the gel manufactured by Bayer’s performed the same functions as that of Glenmark. Further, the ingredients of both the gel were not considerably different. Hence, the court ruled that DOE applies even if the patent does not spell out the results, way, and functions. It was concluded from this case that making minor changes to the product does not invalidate its patent. Hence, DOE rightfully applies even if a product is limited in its description.
Limitation of the DOE
Generally speaking, there are three major limitations to the DOE. They are:
The patent holders are limited by the claim that exists in their patent.
The difference between the two inventions ought to be minor.
Equivalents can’t be used to encompass the prior art.
The hypothetical claims usually address the third limitation. The hypothetical claim examines if an equivalent claimed by the inventor would have been granted in their original patent. If the same cannot be granted, it cannot be used in a DOE case. Three major purposes have been served through this. They are:
The inventions in the public domain are protected.
The powers of the Patent and Trademark Office are reserved in terms of governing the prior art.
Lastly, the defendants are prevented from the undue burden.
2. The “All Elements” test
The All Elements test categorically states that the DOE ought to be applied to all the individual elements of the claim and not the claimed invention as a whole. This test states that it is important to prove that every single element of the patented invention is present in the product of the accused. Such elements present in the product of the accused person should be substantial equivalents of the original product. This indicates that these elements should meet the requirements of the triple identity test. Further, equivalency should be considered only when a claim has been filed. The same should not be invoked when the product has been patented.
3. The triple identity test contends the following
If two devices accomplish the same task elementarily in the same manner and attain the same output, then they are considered to be the same even when there are variations in shape, size, and form. There are a number of factors related to sustainability. They have been discussed below:
If it was possible for a skilled person in the art to have known such an equivalence.
Whether an accused person intended to copy or did he just intend to design around and unintentionally arrived at the same results.
If the persons skilled at the art actually know about the existence of the equivalence of the claimed and the accused inventions.
Another significant aspect should be taken note of here. In the event there is equivalence between the process or the elements of the accused product and the claimed elements of the patented invention, it would amount to infringement. This shall hold good even when there is no infringement on the express terms of the patented claim.
4. The amending claims
A patent can be issued for a claim different from the one it was filed for. Patents can also be rejected numerous times. The claims for registration should be such that it both provides descriptive information and is narrower.
For Instance- Let’s consider an application being made to obtain a patent. And it gets rejected because of the prior art. Now the applicant in order to adjust the same, cannot make a claim broader than that of the prior art. The broader claims should be given up so that narrower claims can be approved. Hence, it means that the broader claims cannot be considered equivalent to the narrower claims.
Further, the US Patent and Trademark Office (PTO) and most of the patent offices around the world maintain a list of rejected patents. This history of amended and rejected patents is usually stored in a paper jacket called ‘File Wrapper.’ Due to this, a claim is rejected, and then the refilling happens after the claim is narrowed down.
Need for Doctrine of Equivalents
A patent in the general notion includes the following:
A specification,
One or more claims,
Drawings of the invention.
When it comes to the infringement of patents, the important thing which matters is the claim. In order to determine infringement, each and every claim is read and compared to the actual invention. In most cases, the infringement is quite clear. However, in some cases, it is not. In certain circumstances, an inventor might include differences into their invention to get away with infringement. Such small differences can make differences unclear. Hence, there is a fire requirement of DOE.
The DOE compares the inventions in adequate detail. The DOE appropriately examines how an invention works. It does not focus only on how the invention looks but goes beyond that. This subsequently allows the court to see superficial changes if there is an infringement present.
The Vitiation rule- The vitiation rule is considered to be a common defense to the DOE rule. The vitiation rule comes into the picture when the DOE is used to make a claim term meaningless. In the event the jury could not find any two elements to be equivalent, the vitiation rule applies. The primary idea set forth by the vitiation rule is- as long as two elements function the same way, it does not matter if they have been designed differently. For the vitiation rule to apply, the elements being examined should be so different that there is no equivalency to be established.
Conclusion
The DOE has been in existence for the past 150 years. However, there is still a need to jot down a legislative framework for the same. The absence of a legislative framework has created difficulty and ambiguity in terms of application. Speaking about the Indian scenario, very few cases of patent infringement on DOE have come to light. However, with the pace at which the technology is growing the judiciary is likely to face more and more cases in the coming year. Hence, there is a need to come up with a legislative framework for the same in both the Indian and the international scenarios.
References
Mary Green, The Doctrine and Equivalents and everything we need to know about it, Up Counsel, https://www.upcounsel.com/doctrine-of-equivalents (published on 12th July 2018).
Singh and Associates, Patent infringement and the Doctrine of Equivalents, Mondaq, https://www.mondaq.com/india/patent/898674/doctrine-of-equivalents-patent-infringement (published on 30 March 2020).
Preetesh Aggarwal, Understanding the Doctrine of Equivalent patents, iPleaders, https://blog.ipleaders.in/understanding-doctrine-equivalent-patents/ (published on 7th October 2020).
Students of LawSikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
This article is written by Rashmi Jha from Amity University, Mumbai. This article is regarding consequences and discussion about vaccine hesitancy.
Table of Contents
Introduction
In contrast to other drugs, vaccines are both individual and community-based. Although no vaccine is a hundred per cent effective, several diseases preventable by the use of vaccines can be eliminated, and some of those diseases can be eliminated only if widely used in communities. A high vaccine absorption rate, different for each vaccine-preventable disease, is required to achieve community-level immunity and reduce the risk of diseases above what vaccinal coverage alone would expect. There may even be clustered pockets or subgroups, where the rate of intake of vaccines is lower than needed to protect the community in countries with overall high national absorption rates. Over the last decade, the outbreaks and resurgences of these diseases have been linked with Measles, Mummy Berry, Haemophilus influenza B, Pertussis, and Polio in previously controlled countries.
At a meeting of the WHO Strategic Advisory Group of Experts on Immunization (SAGE) in 2011, the group noted with concern the effect of the refusal of vaccine uptakes in both developed and developing countries. They discussed hesitancy and the concern that was raised was that hesitancy has a negative impact on vaccine uptake rates. Several other issues had also been discussed, such as trust in vaccines (that is, vaccine safety), trust in healthcare workers, and confidence in those making vaccine approval decisions for a population that remain limited, covering only one category of factors influencing vaccination acceptance decisions, etc. These reports led SAGE to request a ‘Vaccine Hesitation Working Group’. The working group, while preparing a report on vaccine hesitancy, retained the term ‘vaccine’ rather than ‘vaccination’ hesitancy. It concluded that vaccine hesitancy on a continuum was insufficient because it neither defined nor implied the range of factors that influence hesitancy.
What is vaccine hesitancy and why is it important?
The term ‘vaccine hesitancy’ deals with absolute refusal of vaccination, the delay in use, acceptance of vaccines but their use is uncertain. Vaccination arguments are contradicted by an overwhelming scientific consensus on vaccine safety and effectiveness. Vaccine reluctance is viewed as one of the ten top global health hazards by the World Health Organization. The current COVID-19 pandemic, and subsequent development of several COVID-19 vaccines, have highlighted the urgent need to address vaccine hesitancy. Hesitation mainly arises from public discussions on vaccine-related medical, ethical and legal issues. Hesitancy in the vaccine stems from many key factors, which include lack of confidence of the individual (mistrust of the vaccine and/or the care provider), complacency (the need for vaccine or the value of the vaccine is not visible to the individual) and commodity (access to vaccines). The terms vaccine and vaccination have existed since their invention almost 80 years ago. Over time, the anti-vaccine supporters’ hypotheses have changed and the use of vaccines has increased. The hesitancy of the vaccine often leads to disease outbreaks and deaths from preventive diseases.
The working group (SAGE) concurred that hesitance happens when inoculated acknowledgement in specific areas is lower than anticipated, given the accessibility of immunization administrations and involvement with various geological departments. The purpose of the working group was that amidst safe and effective childhood immunizations, vaccine scepticism has emerged as a global issue that needs to be dealt with effectively. Vaccine hesitancy is, in this manner a conduct wonder which, given the accessible vaccination administrations, is quite surprisingly prevalent in today’s time. It is estimated on the assumption that it will achieve the specific immunisation inclusion objective. The working group agreed that, while vaccine tires may occur in situations where the absorption of vaccines is small, there may be several failures of a vacuum system:
Deficiencies of vaccine inventories;
Unfeasible journeys/distances to clinics;
Missing communication with vaccine programmes;
Vaccine-reduced services for disputes, natural disasters or incidents of conflict.
When vaccines are not received, individuals or communities are beyond the scope of the working group definition of vaccine hesitation and thus, estimates cannot be used as a trustworthy indicator of vaccine hesitation. If the main factor is lack of service, low consumption can cause doubt, but the first thing to think about would be a system failure that led to reduced vaccine access. In addition, the system failure is limited.
The vaccine hesitancy emerges on a spectrum between high vaccine demand and complete vaccine refusal, that is, no demand for available and offered vaccines. However, demand and hesitancy are not entirely in sync. Individuals or communities may accept vaccination without reservation, but they may not demand vaccination or a specific vaccine. Likewise, a vaccine-hesitant community does not accept vaccines at the expected rate because of the availability of services and the availability of vaccines, which leads us to mean lower demand than expected. On a personal and community level, the hesitation of vaccinations undermines the responsibility for immunization both personally and in the community. The hesitation of vaccines is at the heart of behaviour resulting from a decision process that reflects a constellation of factors influencing the decision to accept some or all vaccines according to the recommended schedule.
Models of vaccine hesitancy – vaccine hesitancy determinants
To further refine the definition of vaccine hesitation, the working group evaluated several conceptual models for the understanding and grouping of vaccine-hesitant determinants. Complexity and global applicability models have been considered and reviewed. These factors were assessed and evaluated for their potential utility in informing the development, survey questions, and interventions on the global and national hesitation indicators. The revision of these models has reinforced the complexity of the vaccine and does not depend on a single set of factors. The ‘Complacency, Convenience, and Confidence’ (3Cs) model was intuitive and thus the easiest to grasp. Furthermore, a comprehensive workgroup matrix was developed that better captured the complexity of contextual, group, and group influences. In the 3C model, certainty is characterized as:
Inadequacy and wellbeing of antibodies.
Arrangement of conveyance, including the unwavering quality and ability of the wellbeing administrations and medical services experts.
Strategy producers’ inspirations for choosing which immunizations are vital.
There is a risk of vaccine-preventable diseases being detected in lower cases and vaccination is not considered an appropriate preventive action. The pleasure of a vaccine, in general, is influenced by many factors, such as other life/health responsibilities at this point that may be considered more important. Paradoxically, the success of the immunization program may result in complacency, and ultimately hesitation because people weigh the vaccine risks from uncommon diseases.
The degree to which self-efficacy is determined by hesitancy is also affected by self-perceiving and the ability of an individual to take action to vaccinate themselves. The convenience of vaccines is measured in terms of physical readiness, affordability and readiness to pay, geographical availability, capacity to understand (linguist and literate health), and the impact on the ability to use immunization services.
The quality of the service (true and/or perceived), and the degree to which immunization is provided at a given moment and in a convenient and comfortable cultural environment, also influence the choice of vaccine and may result in vaccine hesitancy. Reasons behind vaccine hesitancy are complex and encompass more than just a knowledge deficit.
The working group focused on various ways that are in progress, since the delay on immunization is a complicated issue, and setting explicit time, place and the antibodies change with a heap of conceivable hidden determinants is another thing to work upon. Even though there are best practices to address the faltering, more exploration is required. The deliberate survey and audit of mediation methodologies featured certain successful systems, albeit not all identified with wavering, for improving immunization take-up. While further work is needed, immunization programs must integrate vaccine-friendly programs and resources into their programs. Since vaccine programs must establish close ties with civil society organizations, they can help to foster vaccine support, increase demand for vaccines, and to tackle vaccine reactions based on the hesitancy factors underlying the vaccine.
Effects of vaccine hesitancy and refusal phenomenon
According to the World Health Organization, in the past ten years, about one-fifth of the world’s children have not received routine life-saving vaccinations, and 1.5 million children have died from vaccine-preventable diseases. However, despite this appalling data, some European countries and the United States are still generally reluctant to adopt the recommended national vaccination plan.
The dynamic anti-vaccine campaign mainly carried out through self-cited blogs, forums, and frequent reports of uncontrolled or misunderstood scientific evidence has led to a decline in immunization coverage in some communities.
A 2008 survey showed that 20% of parents from EU countries expressed doubts about their children being vaccinated. The decline in vaccination rates in several European countries and the United States may have led to the outbreaks of various vaccine-preventable diseases observed in recent years; for example, in the past five years, several countries in the European Union, including Belgium, Bulgaria, France, and Italy Russia, Romania, Spain, and most recently Germany, have reported an increase in Measles and Rubella epidemics; in addition, according to the European Commission’s Ministry of Health, EU countries have achieved the 95% coverage target.
Two doses of Measles vaccine, more than 667 measles cases were reported in July, 2014 and July 2015. The situation in the United States is the same. In the United States, low vaccination rates are considered to be the cause of multiple vaccine-preventable disease outbreaks, such as measles in California in 2014 and 2015. Most of the infected people were either not vaccinated and whosoever is vaccinated, their vaccination status is not shown.
Measuring delays in vaccination is essential for proper planning and tracking of strategies to increase vaccination coverage. It is also important to pay attention to the degree and type of fluctuations, as they may change temporarily. In addition, vaccine variants may be specific to one or more, but not all, vaccines. Determining vaccination coverage is not a reliable tool for measuring vaccine turnover, as it may be related to access issues. In addition, high vaccination coverage does not necessarily mean timely vaccination. Refusal of vaccination can be measured with tools such as the Vaccination Confidence Scale. Experts in the field recognize the continuity between vaccine acceptance and vaccine withdrawal. Uncertainty and rejection are closely related to suspicion of vaccination.
Political and social aspects
The vaccination decision needs to be understood in a broader socio-cultural context. Vaccination is part of the ‘broader social world’, which means that various factors (medical service experience, family history, sense of control, talking with friends, etc.) will affect vaccination decisions. HobsonWest emphasized – “Vaccination is just one of the many choices that parents face”.
Other daily issues regarding children’s health and nutrition may at some point be prioritized or affect the willingness to vaccinate. Strickland and colleagues use the ‘local vaccine culture’ one to describe how they share – ‘convictions about the cause of disease, the effectiveness and effectiveness of modern medicine, and views on the necessity of preventive measures and ‘local health services and vaccination’.
In a real postmodern environment that questioned the legitimacy of science, experience, and medical authority, it is not surprising that more and more people question the relevance of vaccination. It may be due to the emphasis on lifestyle and personal measures to promote health, as well as the rise of healthcare consumerism, which means that patients participate in their own health decisions. The emergence of informed patients has changed the traditional place of power. Doctors act as sole proprietorship and patient care leaders, with collaborative decision-making by health professionals and patients who want to actively participate in their health decision-making process.
In addition, vaccination has caused a lot of controversy and fears about vaccination since its formation. These controversies have affected the adoption of vaccines in varying degrees and often appear in specific contexts. For example, the link between the Hepatitis B vaccine and France’s multiple sclerosis has led to the suspension of the general vaccination program. In the 1990s, many studies did not find any evidence of this connection. Some of these vaccination threats have crossed national borders. The recent and well-known is the fraudulent link between the MMR vaccine and Autism. This link first spread widely in the UK but then quickly spread all over the world. Today, fear of autism is still a vaccine safety issue, and parents often report it in various situations. There are as many reasons for hesitation as background, and we assume there are some factors. The public has played a key role in the apparent growth of this phenomenon in developed countries.
How can India combat vaccine hesitancy?
In India, complacency is a major contributor to vaccine hesitancy. With the restrictions lifted, most people feel that the worst is over. However, they fail to take into account that the Spanish flu has devastated the world for over two to three years. COVID-19 has seen waves of ups and downs in the US, Europe, and the Middle East. The Indian Council of Medical Research has warned that India could face further waves in the coming months.
Recent serological epidemiological data show that approximately 80% of the Indian population is still at risk. Several variants of the virus have emerged. The infectivity of B.1.1.7 UK is about 50% higher. It has been found in more than 70 countries around the world. The B.1.351 line that appeared in South Africa in December reduced the effectiveness of some vaccines, accounting for 90% of cases there. Researched variants that may be imported from other countries.
With the current level of vaccination, it will take another two to three years for everyone to be vaccinated. Only through natural infection or vaccination to form herd immunity on a global scale can it be possible to get rid of the pandemic. This infection will continue to pose a threat to the rest of the world. Several countries have tried to prevent and restrict cross-border movement to curb the spread of the virus, but so far have had little success. If the virus mutates, resistance to the vaccine is most likely to appear. If we do not prevent the virus from spreading around the world, infectious or virulent strains will plunge us into a vicious circle.
Conclusion
To break the chain of COVID-19 transmission and eliminate the pandemic, mass vaccination is the only solution. The current vaccination campaign should be strengthened. This can be done on several levels. First of all, everyone who is vaccinated should receive a badge marked “I am protected” to highlight their identity. The vaccinated frontline fighters will receive gifts, which has been happening in the United States and the United Kingdom for several months. We can imitate the Brazilian rap star MC Fioti, who recorded a song called “Vacina Butantan”, which swept the country as a hymn to vaccines. Emphasis on the importance of protection is a must. Print, electronic, and social media must be used to highlight the need to turn vaccination hesitation into vaccination envy.
The Digital Millennium Copyright Act (DCMA) plays a pivotal role with respect to copyright complaints on Twitter. The complaints that are submitted under the DCMA are responded to by Twitter. Section 512 of the DCMA acknowledges two important aspects. Firstly, it provides for the statutory requirements that are needed for filing a copyright infringement complaint. Secondly, it also provides for how an affected party can rightfully appeal for the removal of the complaint. This appeal can be made for removal by submitting a counter-notice.
Twitter responds to alleged copyright infringements. Such infringements could be unauthorized usage of a copyrighted video or even the usage of a copyrighted picture as someone’s profile picture.
Aspects that should be taken into consideration before filing a copyright complaint on Twitter
Before one files a copyright complaint on Twitter, one should check if such a usage comes under fair use. After the aspect of fair use is taken into consideration by the complainant, if the complainant still wishes to continue with the infringement complaint, the following should be done:
Reach out to the user directly
First, reach out to the user. See if the matter can be resolved with the user himself. This can be done by directly messaging the user. The aggrieved party can ask the user to remove the copyrighted content from his Twitter account.
The complainant to be aware of 17 U.S Code Section 512
If the matter is not resolved by approaching the user directly, the complainant shall have to go ahead with the second step. The second is the filing of a formal complaint with Twitter. Before doing so, the complainant needs to educate himself about 17 U.S Code Section 512. In the event the complainant willfully misrepresents the infringement of copyrighted work, he shall be liable to pay damages. The damages shall include the attorney’s fees and costs incurred by twitter or its user. This happens when the complainant knowingly misrepresents that the material posted on Twitter is infringing his copyright.
Contact an attorney
In the event, the complainant is unsure as to whether the material he is reporting is being infringed, then the complainant should ideally consult an attorney. This would make things simpler for the complainant.
Information that is required to process a copyright complaint
While a complainant files a notice for copyright infringement, the following information should be produced:
Signature of the copyright owner
Either an electronic signature or a physical signature of the copyright owner. Typing the full name of the copyright owner would also suffice. Even the person acting on behalf of the copyright owner can also submit his signature (in physical or electronic form).
The copyrighted work to be identified
The copyrighted work that is claimed to be infringed needs to be identified. The copyright owner should attach a link to his original work. The copyright owner can also provide a clear description of the work that he claims to be infringed on.
The infringing material should be identified
The infringed material should be identified. Further, the copyright owner should give reasonable information about the infringed material so that Twitter would be able to locate such a piece of information on its platform.
Contact details of the copyright owner
This shall include the phone number, address, and even the e-mail address of the copyright owner.
No authorization by the copyright owner
The complainant should include a statement that the use of the copyrighted material was not authorized by him or by his agent or even by the law.
The authenticity of the information
The complainant should also state that the information provided by him in the complaint is accurate and precise. In the event of a penalty for perjury, the person should be able to prove that he has been authorized by the copyright owner to act on his behalf.
If the content of a tweet is being reported
In such a scenario, the complainant should provide a link to the tweet. He should also specify if the infringement lies in the header or the body of the tweet.
Filing of the copyright complaint: How does it happen?
To report the infringement of copyright, one can use Twitter’s Help Center and file a copyright complaint by using this link – https://help.twitter.com/en/forms/ipi. If the complainant is already logged into the Twitter account, the Twitter Help Center can be directly accessed by clicking on the Help Tab. This Help tab is located in the sidebar of the Twitter app.
Filing a DMCA complaint
Filing a copyright infringement complaint through DCMA is the initial stage of the legal process. Such a complaint will further be reviewed for completeness, accurateness, and legitimacy. If the complaint satisfies all these requirements, Twitter shall take appropriate action. This action shall entail forwarding the notice copy of the notice. The notice shall include the phone number, email address, and the full name of the complainant. The same shall be forwarded to the user who posted the alleged copyrighted material in question.
If the complainant is concerned about his contact details being forwarded to the accused party, he may use an agent for the sake of filing the complaint. In doing so, the contact details of such an agent shall be transferred to the accused party.
Processing of the claim: How does it happen?
The copyright claims are processed by Twitter in the order in which they have been received. Once a ticket is submitted by the complainant, he shall receive an email confirming the acknowledgement of the ticket. In the event the complainant does not receive the email, he will be required to re-submit the ticket as the same would not have been received by Twitter. Nevertheless, it should also be noted that if a duplicate copyright complaint is submitted it can result in a delay in processing.
Once Twitter decides to remove or disable the material, the same shall be informed to the affected user. The affected user/s shall be provided with a copy of the complaint pertaining to copyright infringement. This copy shall also include instructions for the filing of a counter-notice. Further, Twitter shall also forward a copy of the complaint to Lumen.
Lumen is a database that receives and analyses legal complaints and requests for the removal of online materials. Further, it also helps the citizens to know their rights online. However, while forwarding the complaint to Lumen, the personal information of the complainant shall be removed from the copy.
What kind of information is forwarded to the reported users?
As already discussed above, the reported user/s get a copy of the complaint which explains how there was an infringement of copyright. Further, if the complainant intends to not make his personal information available to the report, he may appoint an agent. The agent here shall be required to file a formal complaint under the DMCA.
While filing such a complaint, the agent shall also have to give valid information and state that he is representing the complainant.
What next: what happens after the complaint is appropriately filed?
Once the complaint has been filed and officially acknowledged by Twitter, it is either removed or there are restrictions placed on the access of such a piece of information. When such removal happens or restrictions are imposed on accessing the information, the following happens:
Twitter shall in good faith make efforts to get in touch with the affected account holder. Twitter shall send the user a full copy of the complaint. Further, Twitter shall also provide the affected user with instructions for the filing of a counter-notice, if the affected user intends to do that.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
In the current scenario, patents tend to have enormous importance. This article sheds light on the concept of patenting a combination of two existing patents. It would be interesting to note that Glenn T Seaborg was the sole inventor of two patents. Seaborg was a Nobel prize-winning American chemist. The patents granted to Seaborg are considered to have the shortest independent claims ever.
A patent is a legal document issued to an inventor by the government. This right provides the inventor with an exclusive legal right to use and even sell his invention. Additionally, patents also have validity and expiry period. An inventor can make a patent claim to make improvements to his already existing invention.
The primary objective behind the patent is to acknowledge the individuals. The hard and fast rule for patenting remains the same around the world. It gives exclusive rights to the inventor and prevents others from recreating such an invention.
Various types of patents
Primarily there are three different kinds of patents available. They have been discussed below:
Design patents– these patents deal with the surface and shape of the physical objects.
Utility patents– Such patents cover inventions that have industrial applications. Nevertheless, India does not acknowledge utility patents.
Plant patents– these patents include under their ambit asexually reproducing plants.
There are certainly other important facts about patents. A patent shall be granted to an inventor only if it meets certain requirements. These requirements are- Novelty, usefulness, and even inventiveness. These aspects have been discussed in detail in the following segment of the article.
Combination patent: What is it?
Patent law grants the ability to the inventors to have exclusive control over their inventions for a particular period of time. In the event the patent is obtained from the US Patent Office the duration is 20 years.
A combination patent is a patent that is granted to an invention that combines, modifies and boosts the usability of two existing patents. The components of such a patent function in an unexpected way to yield distinctive results. The two components work in unison. However, these two components remain distinct in the ways in which they function individually.
Further, a mere combination of two patents cannot guarantee a combination patent. If the working of the combination invention is the same as that of the individual functions of the two patents, then such a combination would not be eligible for grant of patent. This is because such a combination would not fulfil the non-obviousness and novelty criteria. Nevertheless, the combination inventions that meet all the below criteria would be successfully patented.
Novelty– The term novelty signifies something new. An invention that is already known cannot be patented. It would be unethical to deliberate economic benefits from something that is already known.
Inventive– If a particular invention is obvious to a skilled person, such an invention cannot be patented. The invention should be inventive in terms of the process used in coming up with the invention.
Non-prior use– If the invention has already been in use, the same would not be qualified to be patented.
Industrial Application– the term industrial application has been defined under Section (ac) of the Patents Act, 1970. The term signifies that such an invention must have practical utility. The invention must not be abstract.
History of combination patent
Obtaining a combination patent was more simplistic in the past. Nevertheless, in the current times, the process has become rather complicated. Various patent agencies and lawyers have been helping inventors in obtaining a patent for their inventions. This segment of the article shall discuss how the laws to obtain combination patents have evolved over time.
Combination patents: The 1999 standards
As per the 1999 standards, meeting the non-obviousness criteria was much simpler. According to the standards used by the US Patent Office and the lower courts, an invention would be non-obvious if there existed no prior teaching, suggestion, or even motivation in the art to combine the elements. This is also known as Teaching-Suggesting-Motivating (TSM) test.
Combination patent standards: Post-2007
The landmark case of KSR v. Teleflex changed the perspective of combination patents. The facts and the judgment of the case have been discussed below:
KSR v. Teleflex, 550 U.S 2007
Brief facts: Teleflex is a company in Pennsylvania. It held a patent which was a combination of two well-known elements. The two components were:
An electronic sensor. It sensed and transmitted the position of the pedal to the car’s adjust computer.
A gas pedal can be relatively adjusted depending on the driver’s seating position.
Another competitive company, KSR operated in the same market. KSR supplied General Motors with the same products, that is- Adjustable gas pedals. Teleflex filed an application to patent ‘adjustable pedal assembly with electronic throttle control’. The exact same components were also being used by KSR Company. The only innovative work accomplished by Teleflex was to combine these two obvious components and use them.
The issue before the court: Whether the combination of an adjustable gas pedal with a sensor on it can be considered obvious under the Patent Act, 1952?
Judgment– The Supreme Court was called upon to resolve the matter. The court decided that ordinary innovation cannot be patented. The court further stated that in the present case, the two components performed their ordinary individual functions. The only task undertaken by Teleflex was combining the two components. Hence, the Supreme Court ruled that the adjustable gas pedal was not patentable, even if it passes the TSM test.
This decision of the court in the KSR v. The Teleflex case brought a change in the way combination patents were granted. The court interpreted the term ‘Obviousness’. It was defined as an ordinary task accomplished by Teleflex. Once the judgment was delivered in KSR v. Teleflex, obtaining a combination patent became rather complicated. The inventors were required to showcase truly novel developments to obtain patents for their inventions.
The way forward: Current status of the patenting combination patents
The judgment on KSR v. Teleflex changed the perspective of combination patents. Post KSR v. Teleflex scenario showcased, ordinary engineering performed by engineers in their day-to-day lives can no longer be patented. The bar for obtaining a combination patent was raised by the U.S Supreme Court in the 2007 case. However, the deciding factor with respect to combination patents depends on the particular case that comes up before the patent office. The primary aspect to be fulfilled is that the invention should bring something new to the table. Such an invention should not be something ‘obvious’ or ‘ordinary’.
More inventions being patented in a combinatorial process
The statistical data makes it clear that more and more combination patents are being registered. Between the years 1970 to 2010, more than 77% of the patents granted have been a combination of two technologies. Hence, with the growing technology, the way the patent functions has also been changing over time.
Concept of synergies in combination patents
The term synergy plays a significant role in patent law. It is a combined action of two or more elements. This action has a greater effect than the sum of the effect produced by individual elements. Previously, synergy was not accepted as a standard for patentability, however, it is quite useful in obtaining patents. The non-obviousness and synergism are the two important phenomena that are crucial in obtaining a patent.
Conclusion
A combination of two patents can indeed be patented. However, in the year 2007, the landmark judgment was delivered in KSR v. Teleflex. Subsequently, the process of obtaining a patent became relatively tougher. The court’s interpretation of the term ‘Obviousness’ created a significant effect. Post-2007, the patent applications had to go through stringent rules and processes. However, combination patents have been on a rise in recent times despite there being stricter rules and processes for obtaining the same.
With there being advancements in technology, the competition with respect to obtaining a patent has also increased over time. Hence, the stricter norms and guidelines in place ensure the proper registration of patents. It has also helped in getting away with inventions that do not qualify for registration. Therefore, the stringent rules for the registration of patents in recent days have been advantageous to various entities.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
The Courts may have gone virtual during the pandemic, but that does not mean that they are resting. In the past six months, the Courts have adjudicated on various interesting topics ranging from whether intellectual property rights infringement cases are bailable or not to whether the right to privacy can survive post-death. This article attempts to recap the year 2021 so far in the intellectual property rights landscape by the means of interesting and precedential judgements given by the Indian Courts and those abroad.
The Indian Performing Rights Society Ltd. v. Entertainment Network (India) Ltd., Delhi High Court
Royalty rights in underlying works in sound recordings
The case before the Delhi High Court was for adjudication based on a claim of infringement by IPRS (brought before the Court in 2001) that stated that songs infringed upon involved rights in both the sound recordings and the underlying literary and musical works and therefore separate licenses were required to be taken for all the categories. A second suit Phonographic Performance Ltd. (PPL) in a similar infringement case with similar contentions was also settled along with the first one.
The Court considered the idea of whether underlying musical works come under the purview of ‘work-for-hire’ as under Section 17 of the Copyright Act, as adjudged by a 1977 Supreme Court judgment. For this purpose, the Court discussed whether communication of sound recording also amounts to the communication of underlying works.
In the final order, the Court has stated that underlying works are not utilized when utilizing a sound recording and therefore do not incur royalty when the sound recording is used and neither is any permission required to be sought from the authors of such underlying works.
The Court relied on the 2012 Amendment of the Copyright Act for the purpose of this case that introduced a proviso to Section 17 explicitly removing from the ambit of automatic assignment literary, musical, dramatic or artistic work incorporated in a cinematograph film, as a means of bringing economic justice to the authors of such works. However, the interpretation of the Court has severely limited the scope of commercialization of the underlying works leading to the question of whether that was the intention of the legislature in bringing the amendment in the first place.
Frank Peterson v. Google LLC & Ors. and Elsevier Inc. v. Cyando AG, European Court of Justice
Online platforms are not liable for infringing works uploaded to their sites
The German Federal Court of Justice (BGH) approached the European Court of Justice (ECJ) for interpretation of the 2001 Copyright Directive in a preliminary ruling regarding the liability of online platforms and operators in case of copyrighted material that is illegally uploaded on these sites by the users.
The issue was brought to the forefront when YouTube was sued by Frank Peterson, a music producer, in 2008 for hosting his copyrighted works uploaded by users without permission. The order of the BGH in the matter in 2015 had stated that YouTube’s conduct cannot be classified as “communication” as under Article 3(1) of the Copyright Directive. This, therefore, left it to be determined whether YouTube could be exempt from liability as under Article 4(1) of the Directive of Electronic Commerce. Additionally, a matter between Elsevier Inc. and Cyando AG on similar contentions were also brought before the ECJ and clubbed together with the above matter for consideration.
The opinion of the ECJ was that the BGH was correct in adjudging that hosting of information on its site does not amount to “communication to the public” unless the platform operator contributes to providing access to such infringing works beyond the mere provisions of hosting, especially if the platform has the knowledge of the infringement and does not take measures to delete or block access to it, expeditiously so that the possible delay does not disproportionately harm the right holder. Additionally, the Court noted that the platform must take appropriate measures to combat infringement on the site in an effective manner.
This case has brought a long-running battle between the creative industry and online platforms to an interesting and decisive turn of events and stands to be compared to India’s take under the newly formed Intermediary Guidelines, 2021.
InterDigital Technology Corp. & Ors. v. Xiaomi Corp. & Ors., Delhi High Court
Anti-anti-suit injunction in a patent infringement case
InterDigital Corp filed a suit before the Delhi High Court on 29th July 2020 for infringement of their Standard Essential Patents by Xiaomi Corp praying to the Court for determining the fair, reasonable and non-discriminatory (FRAND) royalty rates. However, before the said suit was filed, Xiaomi Corp had filed a suit for setting royalty rates before the Wuhan Court on 9th June 2020 in which an anti-suit injunction was passed against InterDigital on 23rd September 2020. It is against this anti-suit injunction that InterDigital applied for relief before the Delhi High Court.
The question before the Court was whether this anti-suit injunction was restrictive of InterDigital’s right to seek prosecution on the ground of infringement (which was not a matter of contention before the Wuhan Court) and if in such a scenario the Delhi High Court could forgo the principle of Comity of Courts by granting an anti-execution or an anti-anti-suit injunction.
Answering in affirmative, the Court granted India’s first-ever anti-anti-suit injunction stating that the subject matter of the commercial suit before them and the suit before the Wuhan Court was different and the enforcement of foreign interest cannot be given precedence over that of a domestic forum.
A common point of dissatisfaction with this order says that the Court overlooked the fact that even the infringement suit if proven, would result in the determination of FRAND royalty rates which is already the subject matter of the Wuhan case thereby overlapping the two because of which the anti-suit injunction was given and would lead to further confusions in the matter.
Golden Tobie Pvt. Ltd. v. Golden Tobacco Ltd., Delhi High Court
Arbitrability of trademark disputes
This matter examines Section 8 of the Arbitration and Conciliation Act, 1996 that talks about the power to refer the parties to arbitration where there is an arbitration clause in the agreement. Arbitrability of Trademark is a question of dispute here due to the Supreme Court’s decision in the Vidya Drolia matter that declares the issue and registration of patents and trademarks as exclusive matters of governmental functioning. The Delhi High Court in the present matter has therefore examined the same with reliance on the facts of the case.
A dispute that arose upon the termination of a trademark licensing agreement was to be referred to arbitration as per the explicit clause in the said agreement. When Plaintiff, Golden Tobie Pvt. Ltd. took the matter to Court upon termination, Defendant Golden Tobacco cited the arbitration clause, leading to the Court deliberating on arbitrability.
The Court found that, while in the Vidya Drolia matter, the Supreme Court had specifically stated that matters which directly arise from issues of Intellectual Property would not be arbitrable, the current matter was concerning the terms of the agreement and not the trademark itself. The Court concluded the right in question was a right derived from the licence agreement and not from the law on trademarks. Trademark assignment, in this case, was by agreement rather than by law, and it, therefore, did not involve any exercise of governmental functions.
This judgment attempted to clarify the uncertainty that had arisen over the arbitrability of any disputes related to Intellectual Property Rights and clarified that the Supreme Court’s view was only to impose a limitation over matters concerning the grant or registration of a trademark.
Engineering Analysis Centre for Excellence Pvt. Ltd. v. Commissioner of Income Tax, Supreme Court
Applicability of doctrine of copyright exhaustion on computer programmes
To be able to correctly ascertain the status of a sale in this matter, the Court had to examine and interpret the Doctrine of Exhaustion of Copyrights or the Doctrine of First Sale with respect to software and other digital products and whether it can be restricted by the means of an End-User Licensing Agreement (EULA).
The Supreme Court considered two appeals arising out of High Court judgments that adjudged that the sale of software included an interest in its Copyright, which would be deemed to be income as under Income Tax Act requiring deduction of tax at source.
The Court answered in affirmative regarding the applicability of the Doctrine of Copyright Exhaustion to computer programmes by examining the legislative intent for removing the phrase “regardless of whether such copy has been sold or given on hire on earlier occasions” from Section 14(b)(ii) in the Copyright Amendment Act, 1999 as a statutory recognition of the doctrine of exhaustion specifically concerning computer programmes. However, the Court also stated that a EULA can impose reasonable restrictions, therefore overriding the doctrine of exhaustion. Additionally, the Court held that conveying the product to a distributor does not amount to the first sale.
The recognition of the doctrine in software aligns India with the rest of the world and also sheds light on the effect of EULA on it.
Patent Case G01/19 Applicant: Bentley Systems (UK) Ltd., European Patent Office Enlarged Board of Appeal
Patentability of simulation software
Under Application No. 03793825.5, Bentley Systems applied for a system of computer-implemented simulation of the movement of an autonomous entity such as a pedestrian crowd through environments. The said application was rejected on grounds of lacking an inventive step since simulations do not contribute to the technical character of an invention.
In an appeal, the Enlarged Board of Appeal considered the application based on the exclusion of patentability of computer programmes as per Article 52(2)(c) of the European Patents Convention (EPC), if the computer simulation creates a problem-solving technical effect that goes beyond the simulation’s implementation to a computer.
The Board in its decision agreed to apply the COMVIK approach to computer-implemented simulations in the present dilemma which adjudges the inventions that have both technical and non-technical features in it by only considering the technical or structural parts for assessment of inventive steps. The technical effect can also occur by the means of computer-implemented processes and does not always require a link with physical reality.
The decision of the Board is important for the Indian perspective due to the similarity in wording of Section 3(k) of the Patents Act, 1957 to the EPC provision in question and can be taken into context for patent claims related to simulations under the Indian laws as well.
Google LLC v. Oracle America, Inc., United States Court of Appeals
The doctrine of fair use triumphs over copyright ownership
In a dispute that lasted for more than ten years, coming to a fruitful end in April 2021, Google, in developing its Android system, had made use of a substantial amount (over 11,500 lines) of the Application Programming Interface (API) of the Java Programming language that is currently owned by Oracle America.
The contentions before the Federal and District Courts that finally led to a Certiorari writ before the Supreme Court was whether due to the global nature and extensive use of the Android systems, this act infringement could be considered under the Doctrine of Fair Use for public interest and further innovations of smartphone technology. Another question that was deliberated upon during the early years of this dispute was whether APIs, being computer software, was copyrightable. The answer was later assumed to be in the affirmative to answer the greater fair use question.
The judgment that was divided 6 to 2, was of the view that the Android system was never supposed to be a market substitute for the Java SE and therefore did not contribute to any market harm to Oracle America. Additionally, even though the number of lines copied was substantial, it could still be covered under the doctrine of de minimis. Therefore, focusing on the creativity-related harm that could be caused to the public, the Court ruled the case in favour of Google by declaring the act as fair use.
The dissenting minority ruling in the judgement is important in its stance on the legality of the copyright laws and the focus on the copyrightability of software. The fact that the judgement skews in favour of innovation instead of rights could lead to a reinterpretation of the intellectual property rights involved.
Jorawar Singh Mundy v. Union of India, Delhi High Court
Right to be forgotten versus the right to be informed
The Right to Erasure or the Right to Forgotten gives a person the right to delete personal data related to them from the public domain. Statutorily, the first law to recognise this was the EU General Data Protection Regulation under Article 17. Indian Courts have attempted to define and interpret this law, balancing between the right to be de-linked from a source of information and the right to information of the general public.
In the present case, a person acquitted in a case under the Narcotics Act, 1985 applied before the Court for the judgment to be removed from online platforms in the exercise of his right to privacy. Therefore the Court deliberated upon whether the removal of the Court order infringed upon the duty to maintain transparency in judicial records.
In an interim order, the Court observed that the petitioner had been ultimately acquitted of all charges in the case and references to a narcotics case could lead to irreparable prejudice in his life. Therefore, agreeing on his entitlement to interim relief while the case was argued further, the Court ordered Google to remove the judgment from the search results while India Kanoon was ordered to block the judgment from being accessed by using search engines such as Google or Yahoo.
The opinion of various Indian Courts on the Right to Be Forgotten swings in both directions with no consistent outtake and therefore will be dependent on the observations of the Courts before which the matters come. With the Personal Data Protection Bill, 2019 still being in the pipeline, the statutory fate of the right remains unstable with the conflicting observations of the judiciary.
Krishna Kishore Singh v. Sarla A. Saraogi & Ors., Delhi High Court
Right to privacy and post-mortem personality rights
In a petition filed by the father of late actor Sushant Singh Rajput, relief was sought against the defendants to injunct them from using the late actor’s name, likeness, lifestyle or any similar thing in any forthcoming films or ventures as they would be violative of his personality rights and no permission had been taken from his legal heirs. The prayers also included a request for an Ashok Kumar order against any such future acts by any persons.
In coming to a decision the Court combined privacy rights and personality rights since the personality rights arise out of the right to privacy. The Court also considered whether these rights are perpetual and transcend the event of death. Relying on the opinion in the landmark Puttaswamy v. Union of India case, which states that the right to privacy emerges with the individual and extinguishes upon his death, the Court extended the rule to personality rights. Therefore, no injunctive relief was granted in the case, and an appeal has been favoured on this order by the plaintiff.
The existence of post-mortem personality rights has been argued and adjudicated upon by many forums in the country in various cases such as Jayalalitha’s biopic case, along with various important cases on the right that create a wide network of rules in the matter. In the presence of such extensive material, the Court seemed to have overlooked the factual arguments in favour of the legal ground these rights currently stand on.
Piyush Subhashbhai Ranipa v. The State of Maharashtra, Bombay High Court
The Court in this matter deliberated whether offences under the Copyright Act and the Trademark Act that are punishable with imprisonment which “may extend to three years” were bailable or not. The basis of the issue was the statutory provision under CrPC that classifies non-IPC offences punishable with “imprisonment for less than 3 years” as non-cognizable and bailable while offences punishable with “imprisonment of 3 years and upwards” as cognizable and non-bailable.
In December 2020 Jain Irrigation System (Complainant) accused Piyush Ranipa, CEO of Tera Flow Pipes (Applicant) of infringing their trademark “Jain HDPE” and dealing with products bearing the mark. The present case arose when Piyush Ranipa filed an anticipatory bail application in the matter.
The Bombay High Court relied on the decision in Nathu Ram v. State of Rajasthan where it was held that offences, where the punishment may extend up to three years, would fall in the category of cognizable and non-bailable, declaring that the matter was no longer res-integra.
However, the Court does not take into account the impact of such a judgment on cases where free speech could lead to possible infringement of copyright and trademark-based rights leading to stifling of creativity and legitimate criticism.
Conclusion
The year is only halfway through and the Courts have come up with some very interesting judgments, some of which have the making of really opinable debates. What is now left to see is how these precedents and persuasive opinions of the Courts are taken and analyzed by their peer forums and the higher Courts, and whether they will stand the test of the times to come. Laws and regulations are always balanced on a tightrope between the intentions of the creator and the understanding awarded to them over the years by use and deliberation, and sometimes the distance between the two becomes a wide chasm. The need of the hour in these situations becomes clear and indisputable interpretations that do not harm the right holders and the citizens.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
British design makes an important and considerable contribution to the economy. The government identifies that it’s a neighbourhood of possible growth. The designs command within the UK is honestly difficult and covers a variety of various rights. As there is a connection between these different rights, one product can be covered by quite one design right at a time. Earlier on intellectual property achievement day, there have been four design rights available within the UK. They are UK registered design rights, UK unregistered design rights, registered community designs (RCDs), and unregistered community designs (UCDs). This design rights help in protecting the designer’s designs with no infringements. Those that depend upon the unregistered UK or EU design rights that too if they are members of ACID (Anti Copying in Designs) then they will send their designs into the FREE and unlimited use of the ACID Design Data Bank to offer dated evidence of the start of styles, arenas, and offers. This article talks about how Britain protects unregistered design rights.
What are design rights?
Design protections have taken on an increasingly important role in recent years since their arrival and external shape now plays a fundamental role within the success of a product. Designs are now applicable to a good range of products involving industry, fashion, and crafts, and must be protected to ensure the creator’s moral and financial benefits. Design rights protect the way a product looks. If the planning features a technical function or the appearance of the product comes naturally as a result of the function that it performs, then a design right might not be suitable. Designs were originally protected as artistic creations under the support of copyright law. As society began to acknowledge the worth in several sorts of creativity, from books to fabrics to fine arts, and as technological developments simplified copying of these different art forms, the law responded during a disjointed fashion, consulting copyright protection upon whichever sorts of the design was under threat at the time. Design can have an excellent influence on the marketable success of a product. For a few products, the design could also be the sole characteristic feature. Therefore, it is important for businesses that depend on the design to make sure that they need legal protection for the looks of their products.
The EU Commanded national design protection rules across all EU Member States by requiring them to guard designs by registration and to define design because the appearance of the entire or a neighbourhood of a product resulting from the features of the lines, outlines, colours, shape, texture or its ornamentation. To receive protection, the planning must be innovative and have its only character. During this situation, innovation means that there are not any identical designs already available to the general public. A design has individual character if the entire impression, from an informed user’s point of view, is different from other designs available to the general public. Under UK national law, there are two types of protection available for designs, which are unregistered design rights and registered designs rights.
About registered and unregistered designs
The register rights are attained through an application procedure, and unregistered rights can arise automatically once a design has been recorded but generally provide weaker protection compared to register rights. A registered design may be a monopoly right approved by the government. An identical design employed by a competitor may infringe regardless of whether it is a replica. If protection is required out of the country, then corresponding registrations could also be obtained to support the United Kingdom application. Whereas an unregistered design right is extremely limited. It can only be imposed if it is often shown that the assumed infringer copied the planning. And an identical design created independently does not infringe. Design right is not automatically available to all or any designers worldwide.
After adopting the EU Instruction, which already provided rights for registered designs, the European Union decreed EU Regulation, which executed a placement, unique design right covering unregistered designs within the EU. The EU Regulation resulted in two sorts of EU design rights referred to as registered community designs (RCDs) and unregistered community designs (UCDs). Registered and unregistered community designs are having the funds for different rights within the EU. A registered community design right may protect the looks of a product or a part of a product. The appearance may result from the form, lines, contours, ornamentation, colours, texture, or materials of the merchandise. during this context, a product means any industrial or handicraft item except a computer virus and includes parts intended to be assembled into a posh product, packaging, get-up, graphic symbols or, fonts. Whereas unregistered community designs are useful in protecting short-life products like products within the style industry in the light of the very fact that the registration process is often costly. These UCD (Unregistered Design Rights) are available to a person, or company, regardless of nationality.
Protection of unregistered designs in Britain
The United Kingdom’s unregistered design rights have their own and individual origin from the Copyright, Designs and Patents Act 1988 (CDPA) and are not matched by EU law. Unregistered design rights are essential rights within the protection of a design, from the starting time the planning is first recorded in either a design document or a piece of writing is formed to the planning. For a design to be qualified for cover under UK unregistered design, it must be a unique design. This means that the design must be created by the designer, not be a replica of a common one within the design field within the query which is quite an unimportant step of skill, work, and, the choice was involved within the creation of the planning. UK unregistered design right only protects the planning right holder from third parties copying the planning. Hence, within the event the assumed infringer can show that they are here at the planning independently, they are not going to be held to infringe. Basically, only the creator of the original owner of the unregistered design right within the design is understood to be the designer. It is not applicable unless the design is formed during the course of employment, during which instance where the creator of the primary owner is that the employer.
UK unregistered design right protects the design for ten years from the top of the civil year during which articles thereto design were first placed on the market, or for 15 years from the top of the civil year during which the planning was recorded in a design document, either period expires first. Two-dimensional designs are not protected by UK unregistered design rights, though designs for curtain fabric, wallpaper, or similar could also be protected as copyright artistic works. Community unregistered design rights offer protection for less than three years for qualifying designs, the three years running from the date it had been first made available to the general public within the community.This is often referred to as supplementary unregistered design rights or continuing unregistered community design. The scope of what is often protected under a community unregistered design right is suggestively different from what can be protected under UK unregistered design right. For instance, community unregistered design rights can cover designs of colour, texture, and materials. It is focused on protecting the presence of a product and caninclude two-dimensional designs. It protects designs that are new and have individual character.
Conclusion
Therefore, by this text, one can understand clearly that the United Kingdom government with the assistance of the supplementary unregistered design right protects the appearances of the unregistered designs also alongside the designs. Actually, in both registered design rights and unregistered design rights, the plaintiff may pursue damages or accounts of the returns, or an injunction trying to find for further violation. UK design law also offers for a UK unregistered design right under the CDPA, but it does not just match the registered community design right, which can be of concern post Brexit. An unregistered design right holder must avoid the copying of the planning by the third party with the intention of commercially producing articles that are identical or considerably almost like the planning. So, that it is going to help in the decline of the conflict of infringement. The bulk of UK unregistered design rights protects any new design of the entire or a part of a piece of writing, as long in the light of the fact it is not common within the related practical field, is protectable intentionally right.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
This article is written by RA. Dhanshitha from Symbiosis law school, Pune, 1st year BBA LLB (Hons).
Table of Contents
Introduction
The concept of bailment has been a part of the daily lives of the people from time unknown through a variety of transactions, activities not only in the commercial realm but also in ordinary activities. It could be in the form of hiring (bailment for hire) or also wherein a friend lends his book to another person (gratuitous bailment).
The concept of bailment has been covered extensively in the Indian Contract Act, 1872 under Chapter IX. The main conflict here revolves around the concept of whether only a pre-existing contract would be the threshold for establishing bailment since the Indian Contract Act provides for the same in the definition.
But there are circumstances in our daily lives where bailment could arise by the virtue of a person possessing another person’s property (For example, finder of goods). But the clash is with respect to consensus ad idem which is one of the most important components of a valid contract and contract, in turn, being a part of bailment’s definition. Thus, the concepts to be demystified will relate to consensus ad idem and a contract’s existence when it comes into the new realm of involuntary bailments which the courts have given.
Meaning
What is bailment?
Bailment as enshrined under Section.148 the Indian Contract Act, 1872 is basically delivering possession of good (movable) to another person under a contract for a specific purpose and a time period, wherein after its fulfilment of the purpose, good has to be re-delivered (or disposed according to directions) to the person who gave it.
The person who is delivering the good is termed as the “bailor” and the person on the receiving end is called a “bailee”.
The very essential point to note here is the existence of a pre-condition which is a “contract” which means that it should satisfy all the requirements as given under Section.10. As under Section.10, it should be a mutual agreement and that is where consensus ad idem comes into picture. (Only if all the conditions mentioned under S.10 are satisfied, does an agreement become a contract).
What is involuntary bailment?
Involuntary bailment happens when a person accidentally leaves his/her property in the possession of another person. According to Norman Palmer, it is when a person is completely aware and knows the fact that he has possession of a chattel, but it had happened through events which he had no prior control over and “no effective prior consent”.
What is consensus ad idem?
Consensus ad idem basically means “meeting of minds” where there is a mutual agreement between the parties while entering into the contract where they agree on the same terms.
Evolution of concepts
Contractual consensual concept (traditional)
Previously the bailment concept was strictly placed under the realm of contract and that was a must to give rise to a bailment. Mr. TA Street had clearly put forth his views on what he termed as “true bailment” which contained that bailment not only required passing of possession but also entailed that it must require a consensual passing from the owner of the goods to a person who is not the owner.
This view was also supported by Blackstone, Jones who reiterated that bailment could only arise out of a contract – implied or expressed.
One of the oldest cases for involuntary bailment is the case of Howard v. Harris wherein a scriptwriter had sent his script to a theatre operator who was unaware about and subsequently lost the script.
The Court held that there was no contract of bailment and there was no duty of care since there was no prior consent since there was no subsisting contract.
In the case of Lethbridge v Philips wherein a painting was delivered to the defendant and he was not held liable when the goods were destroyed because there was no bailment contract coupled with the reason that there was no consent.
In the case of Wechser v Picard Importing Co. wherein a swindler who was sharing a room with two cotenants in the defendant’s name ordered some goods from the plaintiff to be delivered to the defendant’s room.
The second co tenant had permitted the swindler to take the goods even before the defendant had arrived, after which the swindler absconded. Here it was again held that there was no bailment since there was no contract, consent or any sort of mutual agreement. Similarly, in the case of Krumsky v Loeser and Coons v. First National Bank of Philmont, it was held that bailment could not arise unless and until there was an express or implied contract in existence.
This was according to the view that:
Contract was necessary for bailment and
A person cannot be made a bailee of a person’s property without prior consent Due to these reasons, there can be no liability placed upon the bailee at any point of time.
Non contractual consensual concept
For a long time, it was believed that only a contract either express or implied could only give rise to bailment. It also had some connection with the ambit of tort law and the evolution of “detinue sur trover” after which it became the sui generis concept.
Hiort v. Bott was one of the first cases where the court had relied on the concept of involuntary bailment wherein the defendant who had not ordered barley had endorsed it to a fraud who absconded.
The Court in the case of Cowen v. Presspirch followed the non-contractual consensual route. The defendant had placed an order of X bond of the plaintiff, who sent a Y bond by mistake through a runner who dropped the same in the slot in the defendant’s address. But discovering the mistake, the defendant called out for the runner.
But an imposter took the bond and absconded. In this case, it was held that the defendant had entered into an involuntary bailment, even though there was no contract of bailment since the possession was passed to him knowingly and he had the duty of care.
In Heugh v. Northern London Railway & Co, The Court had held that the carriers were involuntary bailees but since they found the goods under some accidental circumstances and they weren’t negligent since they had a lower duty of care. In the case of Foulkes v. New York Consolidated RR, it was clearly stated that it was the lawful possession and the duty to account for another’s property was created, regardless of whether that possession was passed by a contract or not.
What is the logic/basis of involuntary bailment?
Willinston had introduced that “rightful possession of goods by someone who is not always the owner” is bailment. It is not entirely correct but the notion trying to be expressed here is that bailment is something that happens by the relationship (possession) that one enters into with the chattel and is not only strictly based on the contract.
The concept can be explained with what Mr. Cave JR said in the case of R v Ashwell wherein he purported that a person cannot be held liable for the goods while having ‘simple possession (he does not have the knowledge that the owner’s goods are in his possession).
Thus, the liability does not arise until he has the knowledge of it and also assents to that good being in his possession. For example, if a person has left a ring in my car, then I will not be liable until I have the knowledge of the same and eventually assent to it being in my possession.
Again, the reasonability aspect comes in when expressed by Cave JR that a man can expel a stray horse if it was grazing on his field, but should not throw a ring out of his car since he should take reasonable care and prevent it from being exposed to further hazards.
What happens if a person does not want to consent to it? It must be understood that law in some cases gives very little leave to reject it.
In certain cases, “constructive knowledge” can be implied wherein in the case of Ridgley Operating Co. v. White, where the tenant had left his trunk among other things in the hallway of the apartment and the trunk was stolen.
Even though the landlord did not have the particular knowledge of possession of that particular trunk, he had a general knowledge of all the things being in his possession. It was held that even though there was no contract or mutual agreement, it would amount to bailment.
As put forth in the case of Ryan v. Chown, the Court looks at the consent objectively and the court will imply the knowledge/consent even when there was no subjective knowledge/consent. Once that has been established, it is hard to wriggle out of bailment claiming that there was no consent.
But usually, the court is not very harsh and in cases like Theobald v. Satterthwaite, it was held that it was not a bailment when a customer hung her coat in an unattended room which was subsequently lost after the completion of her service since none of them were aware of the coat being there in the salon and the consent was not plausible.
Another case, Hunter v Reed Sons wherein a customer had left 41 dollars and a diamond ring in the shop’s dressing room, he was able to recover from the shopkeeper for the money through implied acceptance, but could not avail it for the ring because the Court restricted it to only things which are carried generally around in the pockets of prudent people.
Sections applicable in India
In India, the sections applicable for involuntary bailment are the same as contractual consensual bailment. I.e. chapter IX on bailment in the Indian Contracts Act. Along with that, another important section that comes into the picture is the quasi-contractual obligation vested on the finder of goods as under Section.71 of the Indian Contract Act, 1872.
This section clearly lays down that a finder of goods has all the obligations of that of a bailee. This point further supports the point that the Indian Contract Act also does not rely upon the old contractual consensual concept of bailment.
Another important factor to highlight is the duty of care placed on the involuntary bailee which is the same as that of a normal bailee as under Section.151, unlike the three levels of diligence as under the common law which also depends on the facts of each case.
Thus, once the finder takes it into his possession, he is consenting to keep the well safe and also must take relevant steps to find the owner, and if after reasonable notice, the owner does not respond, he can part with the goods.
The 13th Law commission report also stated that the law relating to bailment should not be changed but an additional section pertaining to “quasi-contract of bailment” must be inserted so as to clearly specify that even in such instances they would have the same responsibilities of that of a bailor and bailee as under an express or implied contract as provided in Section.148.
Statutory bailment
Regardless of the “mutual agreement” which happens in the case of a contract of bailment where there is consensus ad idem, as mentioned above, the Indian Contract Act places an obligation on the finder of goods under Section 71 as in the case of the State of Gujarat v Memon Mahmoud, wherein the plaintiff’s motor truck was seized by the customs authorities for non-payment of import duties.
The revenue tribunal decided the case in favour of the plaintiff, but the customs officials had disposed of the vehicles for which the plaintiff sued for damages. Even though the defendants argued that there was no contract of bailment, the Court drew upon Section 71 and took the non-contractual consensual approach by classifying the defendants as involuntary bailees who had to take reasonable care of the goods.
Sometimes there might be a situation when a certain person or an entity might turn into an involuntary bailee from being a voluntary bailee. This could happen in the case of port authorities who are governed by the Port Trust Act, 1963 which clearly mentions the application of the bailment principles as provided for in the Indian Contracts Act, 1963 who will be responsible for the goods.
This could happen in cases where the consignee does not pick up the goods beyond the stipulated contractual time. Thus, in these circumstances, it can be seen that even though there is no particular consensus ad idem, the law imposes certain duties on the person by the virtue of possession of goods of another party.
Conclusion
Even though there is no express or implied “mutual agreement” and or meeting of minds/ consensus ad idem, the position of an involuntary bailee, relies more on the dynamic concept of possession and implied consent by virtue of the knowledge of such possession and does not blatantly disregard the important concept of knowledge.
UK has an Act by the name of Unsolicited Goods and Services Act, 1971. This clearly mentions that lack of response from the possessor of the unsolicited goods does not amount to consent for safekeeping or providing consideration. This extinguishes the possible cases for involuntary bailment as implied consent from the bailee to safeguard the goods. India could pass similar legislation to resolve some confusion with respect to unsolicited goods.
This article is written by Reet Balmiki, from NALSAR University of Law. This is an exhaustive article which deals with the rules of the prisons in India, the need for reform in these rules and suggests a few reforms to be brought.
Table of Contents
Introduction
“It is not the prisoners who need reformation, it is the prisons”.
The age-old prison rules in India are futile in the present world and are often not adhered to. The above quote by Oscar Wilde, rightly emphasizes the urgent need for reformation of the prison rules and their application. This is crucial as it ensures that the prisoners fulfil their purpose in society. instil
The prisoners are kept under inhumane conditions and are often deprived of their basic rights. They are often seen as deserving of such treatment due to the wrongs that they have committed against society.
The idea that the ill-treatment of these warranted captives is justified is completely flawed as such treatment of punishing prisoners by denying them their basic human rights is entirely opposed to the purposes these prisons seek to serve.
The prisons provide a chance for rehabilitation by way of activities designed to change criminals into law-abiding citizens. This reduces the chances of commission of crimes by prisoners in the future and provides them with a way to redeem themselves.
In addition, prisons also deter people by warning them of the consequences of committing such crimes. They also separate the prisoners from society to avoid any further harm being caused to innocent people.
Therefore, for prisons to rehabilitate and allow the reformation of the prisoners, there is a need to change the approach from entirely retributive to reformative, which cannot be achieved in the present situations of the prisons. Thus, there is a need to reform prison rules and protect the rights of prisoners.
Current prison rules – an insight
The Prisons Act, 1894
The Prisons Act, 1894 is one of the oldest and most important legislations implemented to govern the laws related to prisons in India. The Act came into effect on 1st July 1894 and exhaustively covers the aspects of smooth functioning of the prisons.
Section 3 of the Act defines the terms ‘prisons’, ‘criminal prisoner’, ‘convicted prisoner’ and ‘civil prisoner’. The Act also deals with the maintenance and officers of the prison and appoints the Inspector General in charge of discharging all functions directed by the state. Under Section 8-20, the Act also lays down the duties of each of the officers appointed.
In addition, the Act covers aspects of the admission, removal and discharge of prisoners and lays down a few essential disciplines of the prisoners. The Act also provides directions for taking care of the health of the prisoners under Chapter 8.
Though the Act is exhaustive and covers several aspects of the functioning of the prisons, these provisions are outdated and cannot be applied in the current time due to several reasons that will be further discussed.
International laws
In addition to the national laws governing the functioning of the prisons, several international laws include provisions relating to the rights and treatment of the prisoners.
The Universal Declaration of Human Rights (UDHR)
The United Nations adopted the Universal Declaration of Human Rights (UDHR) to promote human rights around the world. Articles 1 and 2 of the Declaration uphold the freedoms and dignity of every individual and entitles everyone to the rights guaranteed under the Declaration. These provisions are to be applied to “all human beings” including prisoners.
Article 3 states that everyone has the right to life, liberty, and security of person. This is one of the basic human rights and is available to both the prisoner and freemen. In addition, Article 5 of UDHR protects every individual from being subjected to torture or cruel, inhuman or degrading treatment or punishment. This protects the prisoners from being subjected to inhuman treatment in the prisons.
International Covenant on Civil and Political Rights (ICCPR)
There are several provisions under the International Covenant on Civil and Political Rights (ICCPR) regarding the treatment of prisoners. Like the UDHR, the ICCPR upholds the prisoner’s right to life and protects them from being subjected to torture or inhumane treatment. In addition to this, Article 10 of the ICCPR provides that, “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”.
This provision is important as it segregates the accused from the convicted persons and separates the juvenile accused from the adults. It also provides that the essential aim of the system shall be their reformation and social rehabilitation.
Other rules and principles established by the United Nations
In addition to the above-mentioned international instruments, the UN has also implemented the United Nations Standard Minimum Rules for the Treatment of Prisoners which contains many rules regarding the rights and treatment of prisoners. Apart from this, the United Nations Basic Principles for the Treatment of Prisoners has been adopted to ensure that all prisoners be treated with due respect for their inherent dignity and value as human beings and be allotted universal human rights and fundamental freedoms guaranteed to everyone.
Rights of the prisoners
Rights guaranteed under the Indian Constitution and various statutes
Protection of all the rights and freedoms (guaranteed under Article 19 of the Constitution of India).
Protection of life and personal liberty (guaranteed under Article 21 of the Constitution of India). There are several rights implicit under Article 21, these include:
Rights of inmates of protective homes;
Right to free legal aid;
Right to a speedy trial;
Right against cruel and unusual punishment;
Right to a fair trial;
Right to health and medical treatment;
Right against custodial violence and death in police lock-ups or encounters;
Right to live with human dignity;
Right to compensation for wrongful arrest, detention and torture;
Right against delayed execution;
Right against public hanging;
Right of release and rehabilitation of bonded labour.
Accommodation and sanitary conditions for prisoners (as per Chapter 8 of the Prisoners Act).
Provisions relating to the examination of prisoners by a qualified Medical Officer (as per Section 38 of the Prisoners Act).
Separation of prisoners – containing female and male prisoners, civil and criminal prisoners and convicted and undertrial prisoners (as per Section 27 of the Prisoners Act).
Supply of clothing and bedding to civil and unconvicted criminal prisoners (as per Section 33 of the Prisoners Act).
Right to seek Remission (as per the remission system established under the Prisoners Act).
Role of Indian judicial system in prison reforms
The Indian courts have, in several cases, upheld the basic rights of the prisoners and have expressed their concern over the need for reforms in the prison rules in the country.
The Honourable Supreme Court dealt with the most important question concerning the rights of the prisoners in the case of Sunil Batra v. Delhi Administration (1979). The main issue, in this case, was whether or not the fundamental rights guaranteed under the Constitution of India extend to the prisoners.
The Court rejected the hands-off doctrine and held that “the fundamental rights do not flee the person as he enters the prison although they may suffer shrinkage necessitated by incarceration”. Therefore, all prisoners, whether accused or convicted, have certain basic rights that are to be protected. This landmark decision filled the lacuna in the Prisoners Act, 1894.
The Court took up the issue of custodial violence and abuse of police power in the case ofD.K. Basu, Ashok K. Johri v. State Of West Bengal, State Of U.P (1996). The court held torture during custody to be a gross violation of the fundamental rights of the prisoners. The court also established that in case such violence is undertaken against a prisoner, the prisoner must be provided with monetary or pecuniary compensation.
The need for reform in prison rules
The Prisons Act, 1894, which governs the rules of prisons, was enacted more than a century ago and is not befitted to be applied in the present times. This is because:
The Act focuses on keeping the prisoners alive rather than enabling reform and rehabilitation.
In addition, there is no separation between hard and petty criminals under trial and they are thus treated alike.
Despite there being provisions for ensuring proper healthcare and other basic facilities, the reality in the management of prisons is often quite the opposite. The prisons lack proper and nutritious food, basic healthcare facilities, etc., which has serious health implications.
The number of pre-trial detainees considerably overshadows the number of convicts in prison. Though the pre-trial detainees should be considered innocent until convicted before the court and be treated as such, they are often treated similar to or worse than the convicted prisoners.
As per the NCRB 2019 data, 69.05% of the total prisoners were under trial which amounts to around 3.3 lakh people. Out of this over one-fourth have remained in prison for at least one year. Detention of mere accused for such long periods violates their rights and restricts several freedoms. These include the right to liberty, freedom of movement, freedom of occupation, freedom of dignity and the legal right to vote.
There is a severe problem of overcrowding in the prisons which has impacted the hygiene in the prisons and has resulted in no separation of offenders based on the crime committed. As per the NCRB 2019 data, the occupancy rate in 2019 was 118.5%, increasing by 1.1% from 2018.
A large part of the overcrowding is among under-trial detainees. To overcome this issue, there is a need for faster clearance of cases to reduce the pendency of cases.
Apart from overcrowding, there is also a problem of understaffing of prison officials. The actual number of officials is significantly lesser than the sanctioned strength. This has often resulted in the shortage of jail staff, medical staff, women jail staff, etc. However, post the COVID-19 surge, the number of pending cases increased, amounting to 4.4 Croce in April 2021.
There has been poor spending on the healthcare and welfare of the inmates including food, clothing, medical expenses, vocational/educational, welfare activities and others.
While several innovative activities are undertaken in a few prisons, others mainly focus on vocational training programs which are outdated. There is a need for well-planned prison programmes providing structured daily activities, vocational training, pre-discharge guidance and post-prison monitoring.
The physical abuse of prisoners by prison guards and officials is a major concern. In many parts of the country, unwarranted beatings are considered a part of prison life and often go unnoticed by those outside the prisons. This violates the rights of the prisoners and allows the officials to walk without any consequences for such actions.
Women prisoners are more vulnerable than men to abuse. In addition to being subject to physical violence, they are often prone to sexual abuse from male inmates, prison guards or officials. Such servitude has led to the women prisoners being harassed, abused and even tortured.
In addition to this, due to a lower level of awareness and legal education, women often serve longer terms. They are also more likely to be dejected by their family which adds to their mental trauma.
The rules in the prisons focus more on punishing and restricting the prisoners than reforming them. There is a need to provide regular reformative programs and rehabilitation to the prisoners to enable them to return to society as law-abiding members.
Suggested reforms
The Parliament must thoroughly revise the existing legislation which was enacted a century ago. There is a need for the Prisoners Act, 1984 to be updated and re-written in light of the recent social, political and economic developments of the country. The legislation is silent on many aspects affecting prisoners and many of its provisions are obsolete in the current times.
The government must establish a committee to ensure proper implementation of the prison rules and proper functioning of the prisons. This will enable it to keep a check on sanitation, healthcare, management, food, clothing, etc. in the prisons.
There is a need to ensure the under-trial accused are detained for minimum periods only and not for unreasonably long periods. This will reduce the problem of overcrowding in prisons while not excessively restricting the rights of the accused.
Women prisoners should be treated more generously and be kept mentally and physically fit. Those who have suffered sexual abuse should be given the relevant remedy and ensures proper treatment in the prisons thereon. There is an urgent need to keep a check on the physical and sexual abuse of all prisoners.
The existing rules regarding the restrictions and scrutiny of postal mail of inmates should be liberalized. This shall instil trust and faith among inmates for the prison officials.
There is also a need for a provision granting the prisoners who were wrongfully detained or suffered harm due to the negligent acts of prison personnel the relevant compensation.
The quality of education provided in the prisons should be improved as proper education will provide the prisoners with a chance to earn a livelihood after serving their sentence.
There is a need for the government to take steps to change the public attitude against prison institutions and their management. In addition, there is a need to fight the social stigma that convicted offenders face even after the completion of their sentence.
Conclusion
“Hate the crime, not the criminal”
-Mahatma Gandhi
The above quote deters the violence and social stigma against prisoners and promotes reformation and rehabilitation. There are also several issues such as overcrowding, physical abuse, stigmatization, custodial violence, lack of proper healthcare, basic facilities, etc., which have emerged after the formulation of the prison laws.
These violate the rights and freedoms enshrined to everyone by the Constitution of India. There is a need to incorporate reformative programs along with fresh provisions to reform the present prison laws to the recent issues faced in the prisons. There have been several developments since the enactment of the Prisons Act, 1894. There is a dire need to revise the legislation and bring in reforms based on the current needs and problems faced in the prisons.
Like in any other agreement or contract, the software development contract also consists of two parties. This contract specifically states the wants and expectations of both parties. It defines what the aim of the project is and they will be delivering the same. Furthermore, it also states the responsibility that lies with each party if there is any dispute between the parties.
This contract can be customized according to the expectations of the parties. After the completion of the contract, what both parties are going to receive is also mentioned in this customized contract. There are specific things that the parties need to agree on in order to enter into a software development contract.
In general, this contract defines the terms on which a developer party sells and transfers the customized software to a client. The client will use the software in their products, services, or servers. If you are a software developer who covets to understand how the legalities of Software Development contracts work, this article is for you!
Table of Contents
What is a software development contract?
An intellectual property created by a software developer using his programming knowledge and skills is termed as “computer software”. Usually, the software is created and customized in a way to meet the requirements and specifications mentioned by the company.
The rights and duties of the software developer are protected under the Copyright Act, 1957 regarding the software created, as the ownership rights are vested upon him. However, by signing an agreement or a contract, he is authorized to transfer his rights to a third party. A contract or an agreement entered into between a software developer and a company is termed as “software development contract”.
Purpose of drafting software development contracts
The main aim of drafting a software development contract is to delineate the extent of rights of both parties concerning the software. The requirements and concepts of the company are specifically mentioned in the contract.
Considering the requirements and time limits specified by the company, the software developer creates or develops the software. The developers in these types of contracts are usually hired for creating computer software for software companies where it can be used for commercial as well as private purposes. The software development contracts specifically mention the terms and conditions regarding the use of software and any use beyond that is prohibited.
Types of software development contracts
When it comes to custom software development contracts, there are different types of contracts to choose from. Your first step is to make sure that you are entering into the right contract while signing the contract.
To customize software development contracts, there are essentially four types viz.
Time and materials
This type of contract usually deals with how many hours are spent on your software by the developer and how you will pay them. In simpler words, there is a trade between money and hours. It is beneficial for both parties. The developer does not rush into creating software to get done with it quickly.
The company knows exactly what they are paying for. They can make changes according to their customized needs as the software development progresses. The developer is aware of the fact that throughout the project, there will be quite a bit changes in the original agreement.
Hence, even though the timeline for the project is longer than expected, this contract makes sure that the developer will be paid. It provides both parties the flexibility needed to focus on a project. As a result, stronger trust and communication between both parties are ensured.
Fixed Bid
The developer and the company agree on a fixed price for the software that needs to be delivered in this type of contract. The company cannot change the scope of the software after finalizing the same with a specified price. In a larger budget software project, the time and costs of the project could exceed the fixed bid for the developer, but he cannot ask for more once agreed upon a final price, thus the same can be beneficial for the company as it is low-risk for them.
However, in a project with a specific budget, it will be comparatively easy to plan and get things done with a fixed bid. Additionally, the developer may choose to remain within the specified budget by choosing less expensive tools for the project.
Fixed budget
The fixed bid is a variant of the fixed budget. The developer and the company, in this type, agree on a fixed price for software that can be changed as the project development progresses. The developer needs to complete the project and create as much as possible within the agreed budget. This type is suitable for projects with a tight budget, but it may not work for a project with larger expectations.
Capped budget with accelerated bonus
This type is also a variant of the fixed budget with a slight change. The developer and the company agree on a stipulated price for software that needs to be delivered. If the developer delivers the project before the deadline, he receives a bonus from the company.
However, there are two possibilities in this type of software development contract- firstly, the developer may get encouraged by the bonus to work efficiently, and secondly, in order to get done with the project as soon as possible, the quality of the project may deteriorate.
Essential clauses of a software development contract
Scope of services to be provided
The details of the project, as agreed by the developer and the company, must be specifically mentioned while writing a software development contract. The procedure for modifications shall also be mentioned if there are any changes to the original details and the same shall be verified by the parties.
Example:
The Company has a requirement for software in respect of its business.
The Developer has expertise in software development for commercial purposes.
The Company (in reliance on the Developer’s software development expertise) wishes to appoint the Developer to develop the Software in accordance with the type, time, cost and the terms of this Agreement.
Project type, time, and cost
The time and cost required for the project to be delivered shall be mentioned along with the type of software development contract being used by the parties. If the developer needs an extension of the deadline, the procedure for the same must be included in the agreement.The process of how the payment needs to be done shall be mentioned in the agreement along with the bank details.
Example:
This Contract is a type of Fixed Budget, where the budget of software is agreed by both the parties.
The Developer agrees to develop the required software within 60 days of the date of execution of this Agreement. However, if the Developer needs an extension, which shall not exceed for more than 15 days, he shall inform the Company 3 days prior to the deadline.
The Company shall pay the Developer the Fees which shall be Rs. 30,000/-
The Developer shall render invoices to the Company in respect of the Fees as follow:
30 percent of the amount on the execution of this Agreement.
20 percent of the amount before Acceptance testing.
50 percent of the amount on successful confirmation of the Acceptance Tests.
Acceptance testing
The parties shall carry out the acceptance testing to ascertain if the software is prepared according to the requirements of the company. It is a good practice for the developer to deliver the project only after he has carried out the acceptance testing of the project, but it can be carried out by the company also.
The agreement shall specify the details about who will do the testing, what will be the process to conduct testing, how they will communicate the testing results, and so on.
Example:
Before installing the Software, the Developer undertakes to provide the Client with evidence of all system testing of the Software carried out by the Developer, specifying the test data used and the results achieved.
The Company within ten (10) days of receipt of the completed design of the Software by the Developer inform the Developer and seek the Developer’s agreement to the number of days the Company expects the Acceptance Testing will take (hereinafter mentioned as ‘Acceptance Testing Period’)
The Company will prior to the commencement of the Acceptance Testing provide to the Developer written details of the nature and purpose of the Acceptance Testing and the results expected to be achieved by carrying out the Acceptance Testing.
During the Acceptance Testing Period, the Company must perform Acceptance testing with the co-operation and assistance of the Developer.
If the Software fails to pass the Acceptance Testing, the Developer must at its own cost within 30 days after the end of the Acceptance Testing Period, correct the Software so that it provides the functions and meets the performance criteria set out by the Company and agreed by the Developer.
The Software will be deemed to have passed the Acceptance Testing if the Company provides to the Developer written confirmation of the successful Acceptance Testing of the Software prior to the end of the Acceptance Testing Period; and if the Acceptance Testing Period expires without the Company making any written complaint or incident report to the Developer concerning the Software.
Intellectual property rights
The intellectual property rights, i.e. the ownership clause must be clearly defined in the software development contract; so that any kind of infringement is avoided by the parties after the product is delivered.
The company shall state that they will be the rightful owner of the product after it is delivered to them. By doing so, the reuse of the project or the product by the developer would be prevented. The legal rights of the company shall be specified in the contract.
Example:
The Company holds the Intellectual Property Rights of the Software developed by the Developer under the terms of this Agreement.
The Developer warrants to the Company that the use of the Software by the Company will not infringe the Intellectual Property Rights of any person.
If a claim is made that the Software infringes the Intellectual Property Rights of any person, the Developer must use its reasonable endeavours to:
procure promptly for the Company the right to use the Software free of any claim or liability for infringement; or,
replace promptly the Software with non-infringing substitute software.
Confidentiality
If there is an exchange between the parties about any type of confidential information, it should be mentioned in the contract and the same must be verified and agreed upon by both parties. Many times, the contracts survive because of the confidentiality clause itself and hence, it must be stipulated in the contract.
Example:
Each of the parties agree and undertake to the other that they shall each, during and after the term of this Agreement preserve the confidentiality of, and not directly or indirectly reveal, report, publish, disclose or transfer or use for its own or any other purposes Confidential Information except:
in the circumstances set out in clause below;
to the extent otherwise expressly permitted by this Agreement; or
with the prior consent in writing of the party to whose affairs such Confidential Information relates.
The circumstances referred to in clause above are:
where the Confidential Information is in the public domain;
where the Confidential Information enters the public domain otherwise than as a result of a breach of the obligations of the party in this clause;
if and to the extent the party makes disclosure of the Confidential Information to any person in compliance with any requirement of law, in response to a requirement of any applicable regulatory authority to which the party is subject where such requirement has the force of law, or in order to obtain tax or other clearances or consents from the Inland Revenue or other relevant taxing or regulatory authorities, or to the employees directors, agents, consultants and professional advisers of the party.
The restrictions contained in this clause shall continue to apply after the termination or expiry of this Agreement without limit in time.
Term and termination
The parties shall decide the type of software development contract and then the term for the contract may be decided by the parties. The term may not be specific, but it can be approximate, depending on the nature of the software required by the company.
The termination, upon infringement of any clause, or whatever the condition for termination of the parties may be, shall be specified in the contract.
Example:
The appointment of the Developer shall have effect from the date of execution of this Agreement until the Company provides the Developer with written confirmation of the successful outcome of the Acceptance Testing of the Software or earlier termination in accordance with the terms of this Agreement.
This Agreement may be terminated by the Company immediately upon written notice to the Developer if:
the Developer fails to provide the Software Ready for Use within 60 days from the date of execution of this Agreement.
the Developer breaches any other provision of this Agreement and fails to remedy the breach within 15 days after receiving the written notice requiring it to do so.
This Agreement may be terminated by the Developer immediately by giving written notice to the Company if the Company failed to pay any amount due under this Agreement and then fails to make that payment within 15 days after receiving notice from the Developer requiring it to do so.
This Agreement may be terminated by either party immediately:
if the other party breaches any provision of this Agreement and fails to remedy the breach within 15 days after receiving written notice from the non-defaulting party requiring it to remedy the breach; or
by written notice from the non-defaulting party to the defaulting party if the defaulting party breaches a material provision of this Agreement and that breach is not capable of being remedied.
Dispute resolution
Like in any agreement, the clause of “Dispute Resolution” is one of the most important clauses in the custom software development contracts. It defines how the parties will resolve the dispute without going to court, what will be the procedure accepted by parties for dispute resolution, and other such things are mentioned in this clause. This clause aims to avoid the expensive and time-consuming process of going to court.
Example:
If any dispute or difference arises out of or in connection with this Agreement, the Parties shall seek to resolve the Dispute amicably by using an alternative dispute resolution (ADR) procedure agreed upon between the Parties.
If the Parties reach an agreement as to the resolution of the Dispute, such agreement shall be recorded in writing and signed by the Parties, whereupon it shall become binding upon the Parties.
If the Dispute has not been resolved to the satisfaction of all parties, or if any Party fails or refuses to agree to or participate in the ADR procedure, then the Parties shall be free to litigate in accordance with governing law and jurisdiction clause.
Developer warranties
The developer shall give a warranty to the company about the software and development of the software. The developer shall also mention that the software delivered to the company is under the ownership of the company and the software shall not violate any rights of either party.
If there is any problem regarding the software, the warranty for the same must be given by the developer to fix the issue. However, they can stipulate the time for the warranty to be considered.
Example:
The Developer warrants to the Company that the Software:
will be compatible with the Hardware and the applicable system software;
will provide the functions and meet the performance criteria set out by the Company.
will be free from material defects (viruses and errors).
If at any time before the 12 months after the date the software is Ready for Use, the Developer becomes aware or the Company advises the Developer of any failure of the Software to comply with the warranties given under the above clause, the Developer must promptly correct that failure.
All remedial work or replacement of the whole or any part of the Software carried out by the Developer is warranted by the Developer to the same extent as the Software from the date the work was completed or the part was replaced as the case may be.
Force majeure
In case there are any unforeseen consequences, even if the contract is well-drafted, the parties shall be ready for everything. So, in a custom software development contract, the force majeure clause must be mentioned.
The force majeure may contain anything like a flood, wars, etc. In present times, the force majeure clause generally applies due to government orders or quarantine situations. If the contract doesn’t contain this clause, the party cannot invoke it. If they do, it may be considered as a violation.
Example:
‘Force Majeure’ means anything outside the reasonable control of a party, including but not limited to, acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage or failure, epidemic, quarantine restriction, labour dispute, labour shortage, power shortage, failure or delay in transportation, including any act or omission (including laws, regulations, disapprovals or failures to approve) of any government or government agency.
If a party is wholly or partially precluded from complying with its obligations under this Agreement by Force Majeure, for more than 60 days then without prejudice to any of its other existing rights, the Company shall have the right to immediately terminate the Agreement.
Non-solicitation
If the contract is terminated by the parties, for whatever reason, the parties shall not defame each other and they shall not offer employment to any employee of the other party. This clause must be well-mentioned in the contract.
Example:
During the period of this Agreement and for 60 days thereafter, regardless of the reason or cause for that termination, neither Party will directly or indirectly engage in any conduct that will substantially diminish the value of the other Party’s business including, without limitation:
Solicit or attempt to solicit any business from any of the other Party’s customers, clients, or prospects;
Offer employment to or hire any employee or subcontractor of the other Party.
Miscellaneous (boilerplate clauses)
The general conditions or the general clauses of governing law, notices, no waiver, assignment, excusable delays, etc shall be mentioned while drafting the custom software development contract.
Example:
This Agreement shall be governed by the laws of India. Such Courts shall (subject to the exhaustion of the procedure set out in the foregoing for alternative dispute resolution) have exclusive jurisdiction for the settlement of all disputes arising under this Agreement.
All notices to be given under this Agreement will be in writing and will be served by hand or courier to the address of the recipient shown on the front page of this Agreement or any other address the recipient may designate by notice given in accordance with this clause.
No delay or failure by either party to exercise any of its power, rights or remedies under this Agreement will operate as a waiver of them nor will any single or partial exercise of any such powers, rights or remedies preclude any other or further exercise of them. Any waiver, to be effective, must be in writing.
Conclusion
It is very important to think of all the circumstances while drafting any agreement or contract. The contract of custom software development is no exception. The clauses must be well-drafted to avoid any confusion and overlapping. The parties shall wisely choose their preferred type of contract. A contract that suits the requirements of both the parties and their project, i.e. software that needs to be delivered, may be beneficial.
This article is written by Ishan Arun Mudbidri, pursuing B.A.LLB from Marathwada Mitra Mandal’s Shankarrao Chavan Law College, Pune. This article talks about the punishment given for framing or preparing an incorrect record under the Indian Penal Code.
Table of Contents
Introduction
Public servants are supposed to do their duty with utmost honesty and sincerity. Before joining public service, they take the oath of abiding by the rules and dispensing their duty in an unbiased manner. But sometimes they come under political pressure or pressure from some underworld elements. Also sometimes, they are even threatened with loss of life or harm to their families. Sometimes, they may even be tempted with bribes. So, they tend to get pressured and give false reports. There should be some provision for the protection of these public servants if they refuse to toe the line of the offenders (mafias) so that they can give a fair and just report without fear.
Overview of Section 218 of IPC
Chapter 11 of the Indian Penal Code 1860, deals with offenses related to false evidence and opposing public justice. These offenses are divided into two categories:
Offences relating to public servants are very important. These offences make sure that the public servants do not misuse their powers, commit crimes and then get away with it. Chapter 9 of the Indian Penal Code deals with such offences committed by public servants but, Section 166,Section 167, and Section 218 of the Code deal with the conduct of the public servants wherein, they have to obey the law while preparing documents, records, filing of FIRs and other writings.
In this context, Section 218 of the Code is of utmost importance. According to this Section, any public servant, who was tasked to prepare a record or any other document prepares it erroneously, intending to cause loss or injury, or know it to cause loss or injury to any person, or trying to save a person from getting punished, or property from forfeiture will be punished under this Section. Punishment under this offence will amount to three years of imprisonment or a fine, or both. The offence is non-cognizable, bailable, and non-compoundable.
This Section requires that the public servant must commit this offence during his time as a public servant. Further, there must be an intention on the part of the public servant to cause loss or injury to the other. Lastly, there must be an intention to save another person from getting punished or any property from forfeiture.
For example,
Preparing a fake document by a customs official for allowing the smuggling of gold because he was a part of the gang of smugglers, will amount to an offence under this Section.
A police officer preparing to file a false FIR for his personal gains will amount to an offence under this Section.
A village officer for his personal gains prepares a false record of two men who were illegally occupying a certain piece of land. Here the village officer will be held liable under Section 218 of IPC.
Difference between Sections 167, 193, and 218 of IPC.
These three Sections look similar and it is also believed that Section 218 is the same as Section 193, just less elaborate. So what is the difference between all these three offences? Firstly, the assumption that Section 218 is a minor form of Section 193 is wrong. Both these offences are distinct. Section 193 deals with giving and fabricating false evidence which must be done to use it at any stage of a judicial proceeding. Section 218 deals with preparing an incorrect record or other writing by a public servant to cause loss or injury to another person or save a person from punishment. Section 218 nowhere involves a judicial proceeding. Further, any person’s fabrication of false evidence can be done whereas, preparing an incorrect record must be done by a public servant.
The distinction between Section 167 and Section 193, was resolved in the case of A.J Joseph v State of Kerala (1934). The Court, in this case, held that Section 167 relates to the incorrect preparation of public record whereas, Section 193 is applied when the record forms a part of the judicial proceeding.
Further, all three offences are non-cognizable, bailable, non-compoundable, and triable by the Judicial Magistrate of the First Class.
The case of Maulad Ahmed v. State of Uttar Pradesh
This case, Maulad Ahmed v State of Uttar Pradesh(1962) was one of the first instances where Section 218 of the code was examined in depth by the Supreme Court.
Background of the case
Chauhan, the main accused in this case, was headed to Bhitra for a shoot, accompanied by some railway officers. Chauhan was carrying a gun. Some people got down from the train and fired their guns towards the forests. In this process, two persons were shot dead. Chauhan deposited the gun in the police station and took help from the petitioner, a head constable, to prepare a piece of false evidence and make other false entries in his favor in the diary of the police station. All the people involved in this incident including Chauhan and the petitioner were charged under Section 304A, Section 201, Section 109, Section 218, Section 120B of the Indian Penal Code. They were also charged under Section 26 of the Indian Forest Act(1927). All the mentioned accused were acquitted by the Allahabad High Court except for the petitioner who was prosecuted under Section 218 of the code. The petitioner filed a Special Leave Appeal against the judgment. However, this appeal was dismissed by the High Court. Hence, the case went to the Supreme Court.
Contention of parties
The counsel arguing on behalf of the petitioner had just two questions:
The first question was that, if the main offender Chauhan and the other persons involved were acquitted then, the petitioner should also be acquitted under the same circumstances.
The second question was that the prosecution against the appellant was launched three months after the appellant made the false entry in the police station diary hence, this prosecution is not applicable under Section 42 of the Police Act(1861).
Findings of the Court
The Court examined the facts of the case and concluded that there was no direct evidence that Chauhan and the other accused killed the two persons. Irrespective of the fact whether Chauhan was guilty or not, there was enough evidence that the petitioner had made entries in the diary intending to save Chauhan and others from legal punishment.
Further, the Court found that the petitioner intentionally prepared a false record to save Chauhan due to which Chauhan’s signature was not found on 13th December 1956 when the gun was deposited and also on 18th December 1956 when the gun was returned. Hence there wasn’t enough evidence to prove whether Chauhan had abetted the petitioner to make a false record and false entries in the diary. The acquittal of Chauhan has no connection with the conviction of the petitioner.
The second issue was whether the conviction falls under section 42 of the Police Act. Section 42 of the Police Act states that any actions that were taken against a person, which are lawfully done under the provisions of this Act, or under the police powers, shall be taken within three months after the act has been committed. The period of three months for prosecutions is only applicable to the person for something done under the provisions of this act and not any other act. According to Section 36 of the Police Act, nothing in this act shall prevent a person from being prosecuted for any other Regulation or Act, or a much higher punishment or penalty. Hence, both these sections make it clear that a police officer cannot be stopped from getting prosecuted under any other regulation or act. The current prosecution of the Police officer is for an offence committed under Section 218 of the Indian Penal Code for which the punishment is much higher. Thus Section 36 and Section 42 of the Police Act, 1861 cannot be applied to this prosecution.
The Court dismissed the appeal by concluding that, any police officer who manipulates the police records such as diary, will mean the end of honest criminal investigation in the country and will be liable to strict punishment for the offence.
Other instances
Section 218 of the Code was used in other judgments which are as follows:
Sardul Singh Petitioner v. State of Punjab
In Sardul Singh Petitioner v State of Punjab (2013), the petitioner who worked as a local authority for maintaining records and collecting taxes, also known as a patwari, was accused of manipulating a forged will. He was summoned under Section 218 IPC. The petitioner alleged that he was falsely implicated. The petitioner also pleaded that the entries made in the will were according to the documents provided. The beneficiary of the will was mentioned in column No.2. The counsel for the respondent argued saying the fact that the beneficiaries were mentioned in column No. 2, does not mean that the allegations against the petitioner can be quashed. The counsel also submitted evidence under Section 319 Cr.P.C. The Court finally quashed the plea of the petitioner
S. Ravi Kumar v. Selvaraj
In S Ravi Kumar v Selvaraj (2016), the petitioner filed a complaint under Section 218 of IPC against the respondent alleging that he conducted a false investigation when he was a police inspector and filed a false report in a case filed by his client to save the accused. The Court dismissed the complaint. It further stated that an advocate must explain on what basis the complaint was filed on behalf of his client under Section 200 Cr.P.C.
Dipti Bharadwaj v. State of Haryana
In Dipti Bharadwaj v State of Haryana (2012) the appellant was charged under Section 218 of the Indian Penal Code for, preparing the MLR (medical-legal report) to help the accused persons in a rape case of two minor girls. The prosecution examined 10 witnesses wherein, one of the witnesses saw the elder brother of one of the accused talking to the appellant but had not heard what they talked about. The accused persons were already charged under Section 376 of the IPC. However, the fact that the witness had seen the appellant with the elder brother of the accused had not been recorded while taking her statement under Section 313 of Cr. P.C in 1992 hence, there was a delay in the judgment. The Court further observed that the witness himself had not heard what the elder brother of the accused and the appellant were talking about. Hence, there is no circumstantial evidence to meet the requirements of Section 218 of the Indian Penal Code, as it is necessary that the appellant had acted intending to save the accused which is an important ingredient of Section 218. Hence, the Court sustained the order of remand.
Conclusion
Hence as seen above, the intention is the essence of any offence. In the context also, the public servant’s intention to help the accused in preparing a false report or framing an incorrect record decides the outcome of the case. Section 218 of the IPC stands out as one of the most important sections when it comes to punishing public servants for the offences committed by them.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
Allow notifications
