Intellectual property

By
Y. SRINIVASA RAO,
M.A (English Litt.,)., B.Ed., LL.M., (Ph.D) Research Scholar in Torts. Principal Senior Civil Judge cum Assistant Sessions Judge.

Introduction:-

Property right confers an authority over resource. This has consequences for both political and economic freedoms with in a society as is noted by Professor Peter Drahos is an Australian academic and researcher specializing in the area of intellectual property rights. Michele Boldrin , an expert in economics, conducts ongoing research in dynamic general equilibrium theory, focusing specifically on business fluctuations, growth and technological innovations and intellectual property. David Knudsen Levine also conducts research on ”Intellectual property rights and and endogenous growth in dynamic general
equilibrium models. Till 19th century, the word ”Intellectual property” is not in wide usage. Trademarks, patents, industrial designs, etc., and copyright are come under the purview of Intellectual property. Copyright can be applicable to a wide range of creative, intellectual, or artistic forms, or “works”. The object of intellectual property law is to promote the creation of a wide variety of intellectual goods for consumers. One cannot violate intellectual property rights of others. If it is violated, it amounts ‘infringement’. Violation of intellectual property rights is an “infringement” with reagrd to copyright, trademarks, and patents. If any “misappropriation” of trade secrets, it amounts breach of civil law or criminal law, depending on the nature of intellectual property involved. Copyright infringement includes reproducing, distributing, displaying or performing a work, or to make derivative works without permission from the copyright holder who created the original work. If one party uses a trademark that is identical or confusingly similar to a trademark owned by another party, it amounts Trademark infringement.


WIPO :-
The World Intellectual Property Organization acknowledges that conflicts may exist between the respect for and implementation of current intellectual property systems and other human rights. This organization is popularly known as ”WIPO”. WIPO is one of the specialized agencies of United Nations. It was started in 1967. It encourages creative activity to protect the intellectual rights. In the present trend, intellectual property inclines to be governed by economic goals when it should be viewed principally as a social product; in order to serve human well-being, intellectual property systems must respect and conform to human rights laws. In addition to that WIPO started a network. It is WIPOnet, which is a global information network. The website wants to link over 300 intellectual property offices in all its Member States.


What are the Laws governing Intellectual Property Rights in India?


The following enactments govern the issues relating to Intellectual properties rights in India:-Trade Marks Act, 1999; The Protection of Plant Varieties; Farmers Rights Act, 2001 and The Information Technology Act, 2000The Patents Act, 1970 (amended in 2005); The Copyright Act, 1957; The Designs Act, 2000; The Geographical Indication of Goods (Registration and Protection) Act, 1999.
How to know whether an invention is obvious or not?
To find out whether an invention is obvious, the examiner shall examine and analyze and make factual findings on several questions such as what is the scope and content of the prior art? ; what are the differences between the prior art and the claims?; what is the level of ordinary skill in the art? and what, if any, is the evidence of secondary considerations? To say in short, the examiner shall resolve and adjudicate what the prior is and whether a person skilled in the art would have achieved the claimed invention based on the prior art. The Hon’ble Delhi High Court examined the scope of the ‘fair use’ doctrine and has held that photocopying copyrighted material during the course of educational instruction would not amount to copyright infringement. See. The Chancellor, Masters & Scholars of the university of Oxford & Ors. Vs. Rameshwari Photocopy Services & Anr.,


Copy Right Act:-

The Copyright Act was enacted ―to amend and consolidateǁ the law relating to copyright. Copyright forms part of the bouquet of intellectual property rights and I have wondered whether copyright is also a natural right or a common law right which vests in the author or composer or producer of the work and thus whether in the absence of anything to the contrary contained in the Copyright Act, the attributes of ownership, as with respect to other forms of property, would enure to copyright also. Mention may be made of K.T. Plantation Pvt. Ltd. Vs. State of Karnataka (2011) 9 SCC 1 where a Constitution Bench of the Supreme Court held that Article 300A of the Constitution proclaims that no person can be deprived of his property save by authority of law, meaning thereby that a person cannot be deprived of his property merely by an executive fiat, without any specific legal authority or without any support of law made by a competent legislature and that the expression ‘property’ in Article 300A is not confined to land alone but also includes intangibles like copyright and other intellectual property and embraces every possible interest recognised by law. See. The Chancellor, Masters & Scholars of the university of Oxford & Ors. Vs. Rameshwari Photocopy Services & Anr.,
A Division Bench of this Court in Time Warner Entertainment Company, L.P. Vs. RPG Netcom (2007) 140 DLT 758 held that copyright cannot be claimed and suit for infringement of copyright cannot be maintained de- hors the Copyright Act and that the Common law rights to copyright were abrogated, earlier by Section 31 of the Copyright Act, 1911. It was held that a person is entitled to copyright only under the provisions of the Copyright Act and any other statutory enactment in force. Supreme Court also, in Entertainment Network (India) Ltd. supra held that copyright unlike trademark is a right created under the Act and that when a author claims a copyright, the right has to be determined with reference to the provisions of the Act. Recently, in Krishika Lulla Vs. Shyam Vithalrao Devkatta (2016) 2 SCC 521, copyright was held to be a statutory right requiring statutory conditions to be satisfied. Ultimately in See. The Chancellor, Masters & Scholars of the university of Oxford & Ors. Vs. Rameshwari Photocopy Services & Anr., the Hon’ble Delhi High Court held that Copyright as a natural or common law right has thus been taken away by the Copyright Act.


The court concluded in this case that there can be no copyright in any author, composer or producer save as provided under the Copyright Act. See. The Chancellor, Masters & Scholars of the university of Oxford & Ors. Vs. Rameshwari Photocopy Services & Anr.,


Point of Jurisdiction as to Intellectual Property Rights:- In Ultra Tech Cement Ltd. & Anr. v. Shree Balaji Cement Industries & Ors. [2014 (58) PTC 1 (Bom.)], the Hon’ble High Court held that it has the jurisdiction as the plaintiff carries on business within the jurisdiction of the court and plaintiff No.1 has registered office and plaintiff No.2 has corporate office within the jurisdiction of the said court, though the defendants did not carry on business nor do they have place of business within the jurisdiction of that court. The facts of the instant cases and the question posed is different which did not come up for consideration in any of the aforesaid decisions rendered by the High Courts and even otherwise any observations in any of aforesaid decisions contrary to our decision cannot hold the field. Interpretation of provisions cannot be so wide so as to open it to be misused, it has to be subject to object of the Act as explained above. In Wipro Ltd. & Anr. v. Oushadha Chandrika Ayurvedic India (P) Ltd. & Ors. [2008 (37) PTC 269 Mad., the High Court at Madras has observed that the provisions of section 20 CPC are not applicable as far as the High Court at Madras is concerned. Therefore, the scope of section 62 of the Copyright Act and section 134 of the Trade Marks Act, cannot be curtailed by reference to section 20 CPC or clause 12 of the Letters Patent. In Hindustan Unilever Ltd. v. Ashique Chemicals & Ors. [2011 (47) PTC 209 (Bom.)], the Bombay High Court has dealt with the territorial jurisdiction and held that section 134 of the Trade Marks Act conferred upon the plaintiff the benefit of bringing an action stipulated therein notwithstanding the provisions of the Code of Civil Procedure or any other law.


How to challenge Patent Right?
The Hon’ble Supreme Court held that challenge to a patent u/s. 64(1) of the Patents Act, 1970 is available under three circumstances, (i) on a petition by any interested person (ii) on a petition by Central Government and (iii) by way of counter claim in a suit for infringement of a patent. Third one is adjudicable by Jurisdictional High Court, while former two before Appellate Board Section 64, thus, provides two remedies, (i) revocation petition and (ii) counter claim. The Apex Court further held that under Section 25(1) any person, not just a person interested can represent by way of opposition against an application for grant of patent Under Section 25(2), only a person interested (not any person) may challenge grant of patent by issuing a notice of opposition. On subject of locus, Section 25(2) and Section 64(1) are alike though forums different Provisions in Section 64 are subservient and deferential to other provisions in the Act . See. Dr. Aloys Wobben and another Vs. Yogesh Mehra and others – 2014 (5) ALT(D.N.)(SC) 43.3 ( D.B. ) .


Concept of eminent domain and its key components, whether could be read into Article 300A ?
The Hon’ble Apex Court considered an important in the case of K.T.Plantation Private Ltd. question, ”If Article 300A of the Constitution is construed as providing for deprivation of property without any compensation at all, or illusory compensation, and hence providing for expropriation and confiscation of property, whether the said Article would violate the rule of law and would be an arbitrary and unconscionable violation of Article 14 of the Constitution, thus violating the basic structure of the Constitution? In this case, the Apex Court observed that Right to life, liberty and property were once considered to be inalienable rights under the Indian Constitution, each one of these rights was considered to be inextricably bound to the other and none would exist without the other. Of late, right to property parted company with the other two rights under the Indian Constitution and took the position of a statutory right. Since ancient times, debates are going on as to whether the right to property is a natural right or merely a creation of social convention' andpositive law’ which reflects the centrality and uniqueness of this right. Property rights at times compared to right to life which determine access to the basic means of sustenance and considered as prerequisite to the meaningful exercise of other rights guaranteed under Article 21.


The Hon’ble Supreme Court further held that Article 300A proclaims that no person can be deprived of his property save by authority of law, meaning thereby that a person cannot be deprived of his

property merely by an executive fiat, without any specific legal authority or without the support of law made by a competent legislature. The expression ‘property’ in Art.300A confined not to land alone, it includes intangibles like copyrights and other intellectual property and embraces every possible interest recognised by law.


The Apex Court in State of W. B. and others v. Vishnunarayan and Associates (P) Ltd and another (2002) 4 SCC 134, while examining the provisions of the West Bengal Great Eastern Hotel (Acquisition of Undertaking) Act, 1980, held in the context of Article 300A that the State or executive offices cannot interfere with the right of others unless they can point out the specific provisions of law which authorises their rights. Article 300A, therefore, protects private property against executive action. But the question that looms large is as to what extent their rights will be protected when they are sought to be illegally deprived of their properties on the strength of a legislation. Further, it was also argued that the twin requirements of public purpose and compensation in case of deprivation of property are inherent and essential elements or ingredients, or inseparable concomitants of the power of eminent domain and, therefore, of entry 42, List III, as well and, hence, would apply when the validity of a statute is in question. On the other hand, it was the contention of the State that since the Constitution consciously omitted Article 19(1)(f), Articles 31(1) and 31(2), the intention of the Parliament was to do away the doctrine of eminent domain which highlights the principles of public purpose and compensation.


Designs Act, 2000 :-
In Bharat Glass Tube Limited Vs. Gopal Glass Works Limited – 2009 (4) ALT(D.N.)(SC) 21.2 ( D.B. ) , the respondent claimed to be the originator of new and original industrial designs, applied by mechanical process to glass sheets. In this case, the Hon’ble Apex Court held that burden was on the complainant to show that the design was not original or new.
Patents (Amendment) Act, 2005:-
In In J. Mitra & Co. Pvt. Ltd’s case, the Apex court held that quite often the commencement of an Act is postponed to some specific future date or to such date as the Appropriate Government may, by notification in the Official Gazette, appoint. At times provision is made for appointment of different dates for coming into force of different parts of the same Act. In J. Mitra & Co. Pvt. Ltd. Vs. Asst. Controller of Patents & Desig. and others – 2009 (2) SCJ 267 ( D.B. ), it was held that an Act cannot be said to commence or to be in force unless it is brought into operation by legislative enactment or by the exercise of authority by a delegate empowered to bring it into operation.
Applying the above tests to the present case, the Hon’ble Supreme Court held that by Patents (Amendment) Act, 2005 for the first time a dichotomy was inserted in the Patent Law by providing vide Section 25(1) for ​​opposition to pre-grant and vide Section 25 (2) for opposition to post-grant of patent. By reason of Patents (Amendment) Act, 2005, the kind of opposition available under the said 1970 Act is different from what existed earlier. Previously, there was no post-grant opposition. Previously, the only provision of challenge by an interested party was a pre-grant challenge under Section 25 (1) as it then stood. Therefore, the Courts had evolved the `rule of caution as the patent had not faced any challenge at the hands of interested parties. There is, however, a radical shift due to incorporation of Section 25(2) where an interested party isgranted the right to challenge the patent after its grant. The ground of challenge under Section 25(1) is identical to Section 25(2) of the said 1970 Act. However, Section 25(1) is wider than Section 25(2) as the latter is available only to a person aggrieved. The main difference between Section 25(1) and Section 25(2), as brought about by Patents (Amendment) Act, 2005, is that even after a patent is granted, post-grant opposition can be filed under Section 25 (2) for a period of one year. The reason is obvious. In relation to patents that are of recent origin, a higher scrutiny is necessary. This is the main rationale underlying Section 25(2) of the said 1970 Act. Therefore, the Legislature intended an appeal under Section 117A(2) to the Appellate Board from any decision, order or direction of the Controller, inter alia, under Section 25(4) [which refers to the power of the Controller to maintain, amend or revoke the patent].


Protection of Plant Varieties and Farmers’ Rights Act, 2001:-
In Nuziveedu Seeds Pvt. Ltd., Hyderabad rep. by its Dy. General Manager, Mr.S.Sartaj Mohammed Khan Vs. Protection of Plant Variety & Farmers Rights Authority, rep. by its Registrar, National Academy of Agricultural Sciences, New Delhi and another – 2012 (2) ALT 477 ( D.B. ), it was held that every farmer who asserts intellectual property rights over his plant varieties wherever he is, can submit his objections to the plant variety sought to be registered – Any violation of the prescribed procedure by competent authority would give rise to a cause of action to such farmer to question the same at the place where he suffers the effect of such failure to follow the procedure – Writ petition can be maintained by a person ever if his legal right is threatened to be infringed – A farmer or breeder of plants, therefore, need not wait till competent authority completes registration of a plant variety in violation of his rights. The threat posed by impending registration contrary to the prescribed procedure is enough to constitute a cause of action to file writ petition.


Conclusion:-

To find out whether an invention is obvious, the examiner shall examine and analyze and make factual findings on several questions such as what is the scope and content of the prior art? ; what are the differences between the prior art and the claims?; what is the level of ordinary skill in the art? and what, if any, is the evidence of secondary considerations? To say in short, the examiner shall resolve and adjudicate what the prior is and whether a person skilled in the art would have achieved the claimed invention based on the prior art. In The Chancellor, Masters & Scholars of the university of Oxford & Ors. Vs. Rameshwari Photocopy Services & Anr., the Hon’ble Delhi High Court opined that the provisions of section 62 of the Copyright Act and section 134 of the Trade Marks Act have to be interpreted in the purposive manner. With regard to point of jurisdiction, a clear law is laid down in Ultra Tech Cement Ltd. & Anr. v. Shree Balaji Cement Industries & Ors. [2014 (58) PTC 1 (Bom.); Wipro Ltd. & Anr. v. Oushadha Chandrika Ayurvedic India (P) Ltd. & Ors. [2008 (37) PTC 269 Mad. And Hindustan Unilever Ltd. v. Ashique Chemicals & Ors. [2011 (47) PTC 209 (Bom.). Piracy is a big problem in India. Data Protection laws refer to a collection of privacy laws, policies, and procedures which are intended to curtail the privacy intrusions caused by the collection, storage, and dissemination of personal data. The Information Technology Act, 2000 is designed to render a legal recognition of transactions pursued through electronic data interchange and other means of electronic communication involving the use of alternative to paper-based methods of communication and storage of information with governmental agencies. The Copyright Act saves the right of artistic endeavors which includes painting, sculpting, drawing, engraving, photography, artistic craftsmanship, dramatic work, literary work,

musical work, sound recording, and cinematography.

IT Act

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