P IV Intellectual Property Rights Full Notes

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Intellectual Property Rights FULL Notes
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INTELLECTUAL PROPERTY RIGHTS
UNIT I
Intellectual property (IP) is a term referring to a number of distinct types of creations of the mind
for which a set of exclusive rights are recognized and the corresponding fields of law. Under
intellectual property law, owners are granted certain exclusive rights to a variety of intangible assets,
such as musical, literary, and artistic works; discoveries and inventions; and words, phrases, symbols,
and designs. Common types of intellectual property rights include copyrights, trademarks, patents,
industrial design rights and trade secrets in some jurisdictions.
Although many of the legal principles governing intellectual property have evolved over centuries, it
was not until the 19th century that the term intellectual property began to be used, and not until the
late 20th century that it became commonplace in the majority of the world. The British Statute of
Anne 1710 and the Statute of Monopolies 1623 are now seen as the origins of copyright and patent
law respectively
History
George Alfred DePenning is supposed to have made the first application for a patent in India in the
year 1856. On February 28, 1856, the Government of India promulgated legislation to grant what
was then termed as "exclusive privileges for the encouragement of inventions of new manufactures"
i.e the Patents Act. On March 3, 1856, a civil engineer, George Alfred DePenning of 7, Grant’s Lane,
Calcutta petitioned the Government of India for grant of exclusive privileges for his invention - "An
Efficient Punkah Pulling Machine". On September 2, DePenning, submitted the Specifications for
his invention along with drawings to illustrate it’s working. These were accepted and the invention
was granted the first ever Intellectual Property protection in India.
History of Copyright Law in India
Modern copyright law developed in India gradually, in a span of more than 150 years. Copyright
law entered India in 1847 through an enactment during the East India Company's regime. According
to the 1847 enactment, the term of copyright was for the lifetime of the author plus seven years post-
mortem. But in no case could the total term of copyright exceed a period of forty-two years. The
government could grant a compulsory licence to publish a book if the owner of copyright, upon the

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death of the author, refused to allow its publication. The act of infringement comprised in a person’s
unauthorized printing of a copyright work for (or as a part of attempt of) "sale hire, or exportation",
or "for selling, publishing or exposing to sale or hire". Suit or action for infringement was to be
instituted in the "highest local court exercising original civil jurisdiction." The Act provided
specifically that under a contract of service copyright in "any encyclopedia, review, magazine,
periodical work or work published in a series of books or parts" shall vest in the "proprietor,
projector, publisher or conductor." Infringing copies were deemed to be copies of the proprietor of
copyrighted work. Importantly, unlike today, copyright in a work was not automatic. Registration of
copyright with the Home Office was mandatory for the enforcement of rights under the Act.
However, the Act also specifically reserved the 11 subsistence of copyright in the author, and his
right to sue for its infringement to the extent available in law other than the 1847 Act. At the time of
its introduction in India, copyright law had already been under development in Britain for over a
century and the provisions of the 1847 enactment reflected the learnings from deliberations during
this period.
In 1914, the then Indian legislature enacted a new Copyright Act which merely extended most
portions of the United Kingdom Copyright Act of 1911 to India. It did, however, make a few minor
modifications. First, it introduced criminal sanctions for copyright infringement (sections 7 to 12).
Second, it modified the scope of the term of copyright; under section 4 the "sole right" of the author
to "produce, reproduce, perform or publish a translation of the work shall subsist only for a period of
ten years from the date of the first publication of the work." The author, however, retained her "sole
rights" if within the period of ten years she published or authorized publication of her work a
translation in any language in respect of that language. The 1914 Act was continued with minor
adaptations and modifications till the 1957 Act was brought into force on 24th January, 1958.
History of Patent Law in India
The first legislation in India relating to patents was the Act VI of 1856. The objective of this
legislation was to encourage inventions of new and useful manufactures and to induce inventors to
disclose secret of their inventions. The Act was subsequently repealed by Act IX of 1857 since it had
been enacted without the approval of the sovereign. Fresh legislation for granting ‘exclusive
privileges’ was introduced in 1859 as Act XV of 1859. This legislation contained certain
modifications of the earlier legislation, namely, grant of exclusive privileges to useful inventions
only and extension of priority period from 6 to 12 months. The Act excluded importers from the
definition of inventor. The 1856 Act was based on the United Kingdom Act of 1852 with certain

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departures including allowing assignees to make application in India and also taking prior public use
or publication in India or United Kingdom for the purpose of ascertaining novelty.
The Act of 1859 provided protection for invention only and not for designs whereas United Kingdom
had been protecting designs from 1842 onwards. To remove this lacuna, the ‘Patents and Designs
Protection Act’ (Act XIII) was passed in 1872. This Act amended the 1859 Act to include any new
and original pattern or design or the application of such pattern to any substance or article of
manufacture within the meaning of ‘new manufacture’. The Act XV of 1859 was further amended in
1883 by XVI of 1883 to introduce a provision to protect novelty of the invention, which prior to
making application for their protection were disclosed in the Exhibitions of India. A grace period of 6
months was provided for filing such applications after the date of the opening of such Exhibition. In
1888, new legislation was introduced to consolidate and amend the law relating to invention and
designs in conformity with the amendments made in the UK law.
In 1911, the Indian Patents and Designs Act, 1911, (Act II of 1911) was brought in replacing all the
previous legislations on patents and designs. This Act brought patent administration under the
management of Controller of Patents for the first time. This Act was amended in 1920 to provide for
entering into reciprocal arrangements with UK and other countries for securing priority. In 1930,
further amendments were made to incorporate, inter-alia, provisions relating to grant of secret
patents, patent of addition, use of invention by Government, powers of the Controller to rectify
register of patent and increase of term of the patent from 14 years to 16 years. In 1945, another
amendment was made to provide for filing of provisional specification and submission of complete
specification within nine months. After Independence, it was felt that the Indian Patents & Designs
Act, 1911 was not fulfilling its objective. It was found desirable to enact comprehensive patent law
owing to substantial changes in political and economic conditions in the country. Accordingly, the
Government of India constituted a committee under the Chairmanship of Justice (Dr.) Bakshi Tek
Chand, a retired Judge of Lahore High Court, in 1949, to review the patent law in India in order to
ensure that the patent system is conducive to the national interest.
The Committee submitted its interim report on 4th August, 1949 with recommendations for
prevention of misuse or abuse of patent right in India and for amendments to sections 22, 23 & 13
23A of the Patents & Designs Act, 1911 on the lines of the United Kingdom Acts of 1919 and 1949.
Based on the recommendations of the Committee, the 1911 Act was amended in 1950 (Act XXXII of
1950) in relation to working of inventions and compulsory licence/revocation. In 1952, an
amendment was made to provide compulsory licence in relation to patents in respect of food and

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medicines, insecticide, germicide or fungicide and a process for producing substance or any
invention relating to surgical or curative devices, through Act LXX of 1952. The compulsory licence
was also available on notification by the Central Government. Based on the recommendations of the
Committee, a bill was introduced in the Parliament in 1953 (Bill No.59 of 1953). However, the bill
lapsed on dissolution of the Lok Sabha. In 1957, the Government of India appointed Justice N.
Rajagopala Ayyangar Committee to examine the question of revision of the Patent Law and advise
government accordingly. The report of the Committee, which comprised of two parts, was submitted
in September, 1959. The first part dealt with general aspects of the patent law and the second part
gave detailed note on the several clauses of the lapsed bill of 1953. The first part also dealt with evils
of the patent system and solution with recommendations in regard to the law. The committee
recommended retention of the patent system, despite its shortcomings. This report recommended
major changes in the law which formed the basis of the introduction of the Patents Bill, 1965. This
bill was introduced in the Lok Sabha on 21st September, 1965, which, however, lapsed. In 1967, an
amended bill was introduced which was referred to a Joint Parliamentary Committee and on the final
recommendation of the Committee, the Patents Act, 1970 was passed. This Act repealed and replaced
the 1911 Act so far as the patents law was concerned. However, the 1911 Act continued to be
applicable to designs. Most of the provisions of the 1970 Act were brought into force on 20th April,
1972 with the publication of the Patents Rules, 1972. This Act remained in force for about 24 years
till December 1994 without any change. An ordinance effecting certain changes in the Act was issued
on 31st December 1994, which ceased to operate after six months. Subsequently, another ordinance
was issued in 1999. This ordinance was later replaced by the Patents (Amendment) Act, 1999 that
was brought into force 14 retrospectively from 1st January, 1995. The amended Act provided for
filing of applications for product patents in the areas of drugs, pharmaceuticals and agro chemicals
though such patents were not allowed. However, such applications were to be examined only after
31st December, 2004. Meanwhile, the applicants could be allowed Exclusive Marketing Rights
(EMRs) to sell or distribute these products in India, subject to fulfillment of certain conditions.
The second amendment to the 1970 Act was made through the Patents (Amendment) Act, 2002 (Act
38 0f 2002). This Act came into force on 20th May, 2003 with the introduction of the new Patents
Rules, 2003 by replacing the earlier Patents Rules, 1972. The third amendment to the Patents Act,
1970 was introduced through the Patents (Amendment) Ordinance, 2004 with effect from 1st
January, 2005. This Ordinance was later replaced by the Patents (Amendment) Act, 2005 (Act 15 Of
2005) on 4th April, 2005 which was brought into force from 1st January, 2005.

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History of Trademark Law in India
While some form of proprietary protection for marks in India dates back several millennia, India’s
statutory Trademarks Law dates back to 1860. Prior to 1940 there was no official trademark Law in
India. Numerous problems arouse on infringement, law of passing off etc and these were solved by
application of section 54 of the Specific Relief Act, 1877 and the registration was obviously
adjudicated by obtaining a declaration as to the ownership of a trademark under Indian Registration
Act 1908. To overcome the aforesaid difficulties the Indian Trademarks Act was passed in 1940, this
corresponded with the English Trademarks Act. After this there was an increasing need for more
protection of Trademarks as there was a major growth in Trade and Commerce. The replacement to
this act was the Trademark and Merchandise Act, 1958. This Act was to provide for registration and
better protection of Trademarks and for prevention of the use of fraudulent marks on merchandise.
This Law also enables the registration of trademarks so that the proprietor of the trademark gets legal
right to the exclusive use of the trademark. The objective of this act was easy registration and better
protection of trademarks and to prevent fraud. The repeal of the Trademarks and Merchandise Act
gave rise to the Trademark Act 1999; this was done by the Government of India so that the Indian
Trademark Law is in compliance with the TRIPS obligation on the recommendation of the World
Trade Organization. The object of the 1999 Act is to confer the protection to the user of the
trademark on his goods and prescribe conditions on acquisition, and legal remedies for enforcement
of trademark rights.
Objectives of IPR
1. Financial incentive
These exclusive rights allow owners of intellectual property to benefit from the property they have
created, providing a financial incentive for the creation of an investment in intellectual property, and,
in case of patents, pay associated research and development costs. Some commentators, such as
David Levine and Michele Boldrin, dispute this justification.
2. Economic growth
Economists estimate that two-thirds of the value of large businesses in the U.S. can be traced to
intangible assets. "IP-intensive industries" are estimated to generate 72 percent more value added
(price minus material cost) per employee than "non-IP-intensive industries. A joint research project

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of the WIPO and the United Nations University measuring the impact of IP systems on six Asian
countries found "a positive correlation between the strengthening of the IP system and subsequent
economic growth.
CLASSIFICATION OF IPR
IPR is been classified into two categories
1. Industrial Sector
2. Copyright
1. Industrial Sector
The Industrial sector includes
1. Patent
2. Trade Mark
3. Designs
4. Geographical Indications
5. Trade secrets
2. Copyright
Copyright is used to protect original creative works, published editions, sound recordings, films and
broadcasts. It exists independently of the recording medium, so buying a copy does not confer the
right to copy. Limited copying (photocopying, scanning, downloading) without permission is
possible, e.g. for research. Publication of excerpts or quotes needs acknowledgement. An idea cannot
be copyrighted, just the expression of it. Nor does copyright exist for a title, slogan or phrase,
although these may be registered as a trade mark. Copyright applies to the Internet with web pages
protected by many different copyrights, so that permission should be asked to copy or print a page,
or insert a hyperlink to it. Material cannot be posted on a Web site (Intranet included) without
permission from the copyright holder.
The importance of IPR can be identified with following points
Intellectual Property Creates and Supports High-Paying Jobs

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Due to the emergence of strong IPR system in the global world and innovation technology has paved
the ways for employment and it is said that the IP industry will creates and support high paying jobs
in days to come.
Intellectual Property Drives Economic Growth and Competitiveness
Due to protection for innovation and emergence of technology, innovation, trade and commerce and
institutional frame work for the protection of IPR which will definitely leads to the economic growth,
competitiveness and Protect Consumers and Families. Further Strong IP rights help consumers make
an educated choice about the safety, reliability, and effectiveness of their purchases. IP rights foster
the confidence and ease of mind that consumers demand and markets rely on.
Intellectual property protection benefits consumers and society
IPR helps provide consumers with innovative products and services in virtually every area of life,
and helps protect consumers from counterfeit and pirated products. IPR encourages competition
among diverse product, function and quality offerings, giving consumers a greater choice among the
goods and services they want and need. IPR also provides important mechanisms to help address
many of society’s most important needs, from clean energy and reduced carbon emissions to health
care and a truly ‘digital economy’.
IPR promotes consumer trust and protection against counterfeit and pirated goods.
“Consumers benefit from IP not only from the stream of innovative products and inventions and
creativity that would not otherwise be created by firms but also from the rights that protect the
identities of well-known goods and services. Trademarks act as signposts of quality, preventing other
firms passing off one make of good as being the same as another.” This function of trademark
protects consumers in two related ways: promoting consumer trust and satisfaction, and helping to
protect consumers against injury and other harm. One of the principal functions of trademarks is to
provide information to the market. Trademarks help consumers distinguish easily between products,
and help consumers to identify those products that they trust and want to buy. Trademarks also give
the firms that own them as well as governments a useful tool for removing counterfeited and pirated
goods from commerce. Counterfeits of many types of trademarked medicine, automotive, food and
drink, electrical, chemical, household and other products can pose risks of harm sometimes severe
injury or even death to consumers.
Intellectual property protection promotes innovation

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Effective IPR increases funding for research and development and other innovation, including by
helping firms realize more value from innovations that are protected by IPR than those that are not.
IPR underpins development of cultural expression and diversity, and promotes broader dissemination
of innovations through publication and licensing.
Intellectual property protection helps small and medium enterprises
SMEs use IPR more extensively in many cases than large companies. SMEs that use IPR report
higher growth, income and employment than those that do not.
Intellectual Property Rights Encourage Innovation and Reward Entrepreneurs
Risk and occasional failure are the lifeblood of the innovation economy. IP rights incentivize
entrepreneurs to keep pushing for new advances in the face of adversity. IP rights facilitate the free
flow of information by sharing the protected know-how critical to the original, patented invention. In
turn, this process leads to new innovations and improvements on existing ones.
IPR makes your business strong
Because it
 protect it against infringement by others and ultimately defend in the courts your sole right to
use, make, sell or import it
 stop others using, making, selling or importing it without your permission
 earn royalties by licensing it
 exploit it through strategic alliances
 make money by selling it
2.1.1 Meaning of intellectual property rights
Innovation and protection for the same is key for development of economy and technology of a
particular country. To promote this idea concept of Intellectual property rights are introduced in
global sense, IPR basically gives protection and rights to persons over the creations of their minds.
Usually it gives exclusive right/monopoly right to the creator for a certain period of time.
Intellectual property rights gives a person or to a company exclusive rights to use its own plans,
ideas, or other intangible assets without the worry of competition, at least for a limited period of

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time. These rights can include copyrights, patents, trademarks, and trade secrets. These rights may be
enforced by a court via a lawsuit. The idea of intellectual property is to encourage innovation without
the fear that a competitor will steal the idea and / or take the credit for it. Any person without the
consent of IPR holder uses his creation for commercial purpose is considered to be infringement of
IPR and amounts legal action including imprisonment and fine.
UNIT II
Introduction
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a

sovereign state to an inventor or their assignee for a limited period of time in exchange for the public
disclosure of an invention. A patent is an exclusive right granted for an invention – a product or
process that provides a new way of doing something, or that offers a new technical solution to a
problem. A patent provides patent owners with protection for their inventions. Protection is granted
for a limited period, generally 20 years.
History of Indian Patent System
 The first legislation in India relating to patents was the Act VI of 1856. The objective of this
legislation was to encourage inventions of new and useful manufactures and to induce
inventors to disclose secret of their inventions. This legislation contained certain
modifications of the earlier legislation, like grant of exclusive privileges to useful inventions
only and extension of priority period from 6 months to 12 months. This Act was based on the
United Kingdom Act of 1852 with certain departures which include allowing assignees to
make application in India and also taking prior public use or publication in India or United
Kingdom for the purpose of ascertaining novelty.
 In 1872, the Act of 1859 was consolidated to provide protection relating to designs. It was
renamed as "The Patterns and Designs Protection Act" under Act XIII of 1872. The Act of
1872 was further amended in 1883 to introduce a provision to protect novelty of the
invention, which prior to making application for their protection were disclosed in the
Exhibition of India. A grace period of 6 months was provided for filing such applications
after the date of the opening of such Exhibition.

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 This Act remained in force for about 30 years without any change but in the year 1883,
certain modifications in the patent law were made in United Kingdom and it was considered
that those modifications should also be incorporated in the Indian law. In 1888, an Act was
introduced to amend and consolidate the law relating to invention and designs in conformity
with the amendments made in the U.K. law.
 The Indian Patents and Designs Act, 1911, replaced all the previous Acts. First time, This Act
brought patent administration under the management of Controller of Patents. This Act, 1911
was further amended in 1920 to enter into mutual arrangements with UK and other countries
for securing priority. Provisions relating to grant of secret patents, patent of addition, use of
invention by Government, powers of the Controller to rectify register of patent and increase
of term of the patent from 14 years to 16 years. In 1945, an amendment was made to provide
for filing of provisional specification and submission of complete specification within nine
months.
 It was found advantageous to enact comprehensive patent law owing to substantial changes in
political and economic conditions in the country. consequently, the Government of India
constituted a committee under the Chairmanship of Justice (Dr.) Bakshi Tek Chand, a retired
Judge of Lahore High Court, in 1949 t o review the patent rules and regulations in India in
order to ensure that the patent system is conducive to the national interest.
 The committee submitted its interim report on 4th August, 1949 with recommendations for
prevention of misuse of patent right in India and suggested amendments to sections 22, 23 &
23A of the Patents & Designs Act, 1911 on the lines of the United Kingdom Acts 1919 and
1949. The committee also observed that the Patents Act should contain clear indication to
ensure that food and medicine and surgical and curative devices are made available to the
public at the cheapest price commensurate with giving reasonable compensation to the
patentee.
 Based on the above recommendation of the Committee, the 1911 Act was amended in 1950in
relation to working of inventions and compulsory license/revocation. Other provisions were
related to endorsement of the patent with the words 'license of right' on an application by the
Government so that the Controller could grant licenses. In 1952 (Act LXX of 1952) an
amendment was made to provide compulsory license in relation to patents in respect of food

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and medicines, insecticide, germicide or fungicide and a process for producing substance or
any invention relating to surgical or curative devices.
 In 1957, the Government of India appointed Justice N. Rajagopala Ayyangar Committee to

examine the question of revision of the Patent Law and advise government accordingly. The
first part dealt with general aspects of the Patent Law and the second part gave detailed note
on the several clauses of the lapsed bills 1953. The first part also dealt with evils of the patent
system and solution with recommendations in regards to the law. The committee
recommended retention of the Patent System, in spite of its shortcomings. Most of the
provisions of the 1970 Act were brought into force on 20 th April 1972 with publication of
the Patent Rules, 1972.
 This Act remained in force for about 24 years without any change till December 1994. An
ordinance effecting certain changes in the Act was issued on 31st December 1994, which
ceased to operate after six months. Subsequently, another ordinance was issued in 1999. This
ordinance was consequently replaced by t he Patents (Amendment) Act, 1999 that was
brought into force retrospectively from 1st January, 1995. The amended Act provided for
filing of applications for product patents in the areas of pharmaceuticals drugs, and agro
chemicals though such patents were not allowed. However, such applications were to be
examined only after 31-12-2004.
 The second amendment to the 1970 Act was made through the Patents (Amendment) Act,
2002 (Act 38 0f 2002). This Act came into force on 20th May 2003 with the introduction of
the new Patent Rules, 2003 by replacing the earlier Patents Rules, 1972
 The third amendment to the Patents Act 1970 was introduced through the Patents
(Amendment) Ordinance, 2004 1st January, 2005. This Ordinance was later replaced by the
Patents (Amendment) Act 2005 on 4th April, 2005 which was brought into force from 1-1-
2005.
IMPROTANCE OF PATENTS
Patents, quite simply, are part of the engine that powers our nation's economy. From the standpoint of
the business community, patents are of utmost importance, since they provide the necessary

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protection for newly developed products or processes. And at times, basic inventions (protected by
patents) have created new industries and given rise to new companies. Patents provide incentives to
individuals by recognizing their creativity and offering the possibility of material reward for their
marketable inventions. These incentives encourage innovation, which in turn enhances the quality of
human life. Further once Patent is protected an invention cannot be commercially made, used,
distributed or sold without the patent owner’s consent. Patent rights are usually enforced in courts
that, in most systems, hold the authority to stop patent infringement. Conversely, a court can also
declare a patent invalid upon a successful challenge
by a third party.
MEMBERSHIP OF INTERNATIONAL TREATIES

India is member of the following treaties governing patents:
• Convention establishing World Intellectual Property Organization (WIPO)
• Trips Agreement under the World Trade Organization.
• Paris Convention for the protection of Industrial Property with effect from Dec. 7, 1998.
• Patent Cooperation Treaty (PCT) with effective from Dec. 7, 1998.
Valid requirements for patent

There are four valid requirements of patent
1. Novelty------------- Must be new
2. Utitility--------------Must be useful to public
3. Non-Obviousnes----------- Must not be alread existed in the market or known to people
4. Industrial sector-------- Invention must be in the field of industrial sector
Novelty (Newness) Requirement:
In order for an invention to be patentable, it must be new as defined in the patent law. This novelty
requirement states that an invention cannot be patented if certain public disclosures of the invention
have been made. The invention was known to the public before it was "invented" by the individual
seeking patent protection;
 the invention was described in a publication more than one year prior to the filing date; or
 the invention was used publicly, or offered for sale to the public more than one year prior to
the filing date.

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Useful Requirement:
The patent law specifies that the subject matter must be "useful." The term "useful" in this
connection refers to the condition that the subject matter has a useful purpose. I.e it must be useful, if
it is not useful to the public it will not be patented
Nonobviousness Requirement:
If an invention is not exactly the same as prior products or processes (which are referred to as the
"prior art"), then it is considered novel. However, in order for an invention to be patentable, it must
not only be novel, but it must also be a nonobvious improvement over the prior art. The invention
must not be already existed in the market.
Industrial sector
The invention which you have invented must be in the field of industrial sector, the invention
patentable only for the industrial sector.
Patents in India: Laws , Procedures, Registering and Challenging Patents
LEGISLATION
The Patent system in India is governed by the Patents Act, 1970 (No 39 of 1970) & The Patents
Rules 1972, effective from April 20,1972. Subsequently The Patents Act, 1970 is amended effective
from January 1, 1995 & The Patents Rules, 1972 is amended effective from June 2, 1999.
TYPES OF PATENTS
 Ordinary Patent
 Patents of addition
 Convention
WHO CAN APPLY

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Application may be made, either alone or jointly with another, by the inventor, assignee, legal
representative of deceased inventor or assignee. The inventor is entitled to be mentioned in the patent
if he applies to do so.
Application may be made jointly by two or more corporations as assignees.
PATENTABLE INVENTIONS
An invention means any new and useful art, process, method or manner of manufacture; machine,
apparatus or other article; or substance produced by manufacture, and includes any new and useful
improvement of any of them, and an alleged invention.
WHAT IS NOT PATENTABLE
(1) An invention that is frivolous or that claims anything obviously contrary to well-established
natural laws;
(2) An invention the primary or intended use of which would be contrary to law or morality or
injurious to public health;
(3) The mere discovery of a scientific principle or the formulation of an abstract theory;
(4) The mere discovery of any new property or new use for a known substance or of the mere use of
a known process, machine or apparatus unless such known process results in a new product or
employs at least one new reactant;
(5) A substance obtained by a mere admixture resulting only in the aggregation of the properties of
the components thereof or a process for producing such substance;
(6) The mere arrangement or rearrangement or duplication of known devices, each functioning
independently of one another in a known way;
(7) A method or process of testing applicable during the process of manufacture for rendering the
machine, apparatus or other equipment more efficient, or for the improvement or restoration of the
existing machine, apparatus or other equipment, or for the improvement or control of manufacture;
(8) A method of agriculture or horticulture;

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(9) Inventions relating to atomic energy.
In the case of inventions relating to substances prepared or produced by chemical processes

(including alloys, optical glass, semiconductors and inter-metallic compounds) & substances
intended for use or capable of being used as food. No patent will be granted in respect of claims for
the substances themselves, but claims for the methods or processes of manufacture will be patented.
DOCUMENTS REQUIRED FOR FILING AN APPLICATION
 Application form in triplicate.

 Provisional or complete specification in triplicate. If the provisional specification is filed it
must be followed by complete specification within 12 months (15 months with extension).
 Drawing in triplicate (if necessary).
 Abstract of the invention (in triplicate).
 Information and undertaking listing the number, filing date and current status of each foreign
patent application in duplicate.
 Priority document (if priority date is claimed).
 Declaration of inventorship where provisional specification is followed by complete

specification or in case of convention application.
 Power of attorney (if filed through Patent Agent).
 Fee in cash/by local cheque/by demand draft.
APPROPRIATE OFFICE FOR FILING AN APPLICATION
Application is required to be filed according to the territorial limits where the applicant or the first
mentioned applicant in case of joint applicants for a patent normally resides or has domicile or has a
place of business or the place from where the invention actually originated .If the applicant for the
patent or party in a proceeding having no business, place or domicile in India., the appropriate office
will be according to the address of service in India given by the applicant or party in a proceeding.

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EXAMINATION & PUBLICATION
All the applications for patent accompanied by complete specification are examined substantively. A
first examination report stating the objection(s) is communicated to the applicant or his agents.
Application or complete specification may be amended in order to meet the objection(s). Normally
all the objections must be met within 15 months from the date of first examination report. Extension
of time for three months is available, but application for extension therefore must be made before the
expiry of normal period of 15 months. If all the objections are not complied with within the normal
period or within the extended period the application will be deemed to have been abandoned. When
the application is found to be suitable for acceptance it is published in the gazette of India (Part III,
Section2). It is deemed laid open to the public on the date of publication in the gazette of India.
OPPOSITION
Notice of opposition must be filed within four months of notification in the Gazette. Extension of
one month is available, but must be applied for before expiry of initial four month period.
GRANT OR SEALING OF PATENT
If the application is not opposed or the opposition is decided in favour of the applicant or is not
refused the patent is granted or sealed on payment of sealing fee within 6 months from the date of
advertisement. However, it is extendable by three months.
REGISTER OF PATENTS
The Register of Patents will be kept in the Patent Office and its branch offices. Register of Patents
can be inspected or extract from it can be obtained on payment of prescribed fee. Register of Patents
contains full details of the Patent which include Patent number, the names and addresses of the
patentee; notification of assignment etc.; renewals, particulars in respect of proprietorship of patent
etc.
WORKING

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Annual reports as to the extent of working, by every patentee and licensee, are a statutory
requirement and must be submitted by March, 31 each year for the previous year ending December,
31.
COMPULSORY LICENSE AND LICENSE OF RIGHT
On failure to work a patent within three years from the date of its sealing, an interested party may file
petition for grant of a compulsory license. Every patent for an invention relating to a method or
process for manufacture of substances intended for use, or capable of being used, as food, medicines,
or drugs, or relating to substances prepared or produced by chemical process (including alloys,
optical glass, semi-conductors and inter-metallic compounds) shall be deemed to be endorsed
"Licenses of Right" from the date of expiry of three years from the date of sealing the patent.
ASSIGNMENT
Applications must be filed on the prescribed form with the Controller for the registration of
assignments and any other documents creating an interest in a patent in order for them to be valid. In
order to be valid, an assignment must be recorded within six months from the date of the document.
A six-month extension may be obtained.
LICENSE
Applications must be filed on the prescribed form with the Controller for the registration of licenses
and any other documents creating an interest in a patent in order for them to be valid. A license must
be recorded within six months from the date of the document.
Kinds of specifications of patent
1. Provisional specification
2. Complete specification
1. Provisional Specification
The provision specificaiton must also include;
 the name(s) of all inventors;

 inventor residence(s);

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 title of the invention;
 name and registration number of attorney or agent and docket number (if applicable);
 correspondence address; and
 any U.S. Government agency that has a property interest in the application.
Complete Specification
 The Complete Specification is a techno-legal document which fully and particularly describes
the invention and discloses the best method of performing the invention.
 As the Complete Specification is an extremely important document in the patent proceedings

it is advised that it should be drafted with utmost care without any ambiguity. The important
elements of the Complete Specification are further discussed below.
Complete Specification
Every complete specification shall:
a) fully and particularly describe the invention and its operation or use and the method by
which it is performed;
b) disclose the best method of performing the invention which is known to the applicant for
which he is entitled to claim protection;
c) end with a claim or set of claims defining the scope of the invention for which the
protection is claimed;
d) make reference to deposit of the biological material in the international depository authority,
if applicable; and
e) be accompanied by an abstract.
INFRINGEMENT
Patent infringement occurs when a product infringes one or more patents. To determine patent
infringement, firstly a product or a process is analyzed and compared with all relevant patents that
may claim an invention similar to the product. Secondly, the product or the process is scrutinized to
see if the product or the process .reads on. one or more patents and is substantially described by the
claims of the one or more patents.

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There are three basic types of patent infringements:
 Direct patent infringement
Direct patent infringement is the most obvious and the most common form of patent infringement. In
the most basic definition, direct patent infringement occurs when a product that is substantially close
to a patented product or invention is marketed, sold, or used commercially without permission from
the owner of the patented product or invention.
 Indirect patent infringement and contributory patent infringement:
Indirect patent infringement, suggests that there was some amount of deceit or accidental patent
infringement in the incident. If the patent is used without the intention of infringement is called
indirect infringement. Otherwise it is used for non-commercial purpose also be called as indirect
infringement. Further, if such a product is knowingly sold or supplied, it may lead to .contributory
patent infringement.
Remedies against infringement of a patented invention

1. Interlocutory Injunction
A patent owner at the start of a trial can request for an interim injunction to restrain the defendant
from committing the acts complained of until the hearing of the action or further orders. Permanent
injunction is given based on the merits of the case at the end of the trial.
2. Relief of damages: An award of damages focuses on the losses sustained by the claimant. A patent
owner is entitled to the relief of damages as compensation to the patentee and not punishment to the
infringer.
3. Account of profits: Account of profits focuses on the profits made by the defendant, without
reference to the damage suffered by the claimant at the hands of the defendant. The purpose of the
account is to prevent the unjust enrichment of the defendant by the use of the claimant’s invention.
The patent owner may also opt for the account of profits where he has to prove use of invention and
the amount of profit derived from such illegal use.
Penalties

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1) Contravention of secrecy provisions relating to certain inventions (Sec.118) - If any person fails to
comply with any directions given under section 35 or makes or causes to be made an application in
contravention of section 39 he shall be punishable with imprisonment up to 2 years or with fine or
with both. (Section 35 deals with secrecy directions relating to inventions relevant for defence
purposes and Section 39 deals with residents not to apply for patents outside India without prior
permission.
2) Falsification of entries in register etc (Sec.119) - If any person makes, or causes to be made, a
false entry in any register kept under this Act, he shall be punishable with imprisonment for a term
that may extend to 2 years or with fine or with both.
3) Unauthorized claim of patent rights (Sec.120) - If any person falsely represents that any article
sold by him is patented in India or is the subject of an application for a patent in India, he will be
punishable with fine that may extend to Rs.1, 00,000. The use of words 'patent', Patented', 'Patent
applied for', 'Patent pending', 'Patent registered' without mentioning the name of the country means
they are patented in India or patent applied for in India.
4) Wrongful use of words, "patent office" (Sec.121) - If any person uses on his place of
business or any document issued by him or otherwise the words “patent office” or any other words
which reasonably lead to the belief that his place of business is, or is officially connected with, the
patent office, he will be punishable with imprisonment for a
term that may extend to 6 months, or with fine, or with both. 5) Refusal or failure to supply
information (Sec.122) - If any person refuses or fails to furnish information as required under section
100(5) and 146 he shall be punishable with fine, which may go up to Rs 10,00,000/-. If he furnishes
false information knowingly he shall be punishable with imprisonment that may extend to 6 months
or with fine or with both.
6) Practice by non-registered patent agents (Sec.123) - Any person practicing as patent agent without
registering is liable to be punished with a fine of Rs 1,00,000/- in the first offence and Rs.5,00,000/-
for subsequent offence.
Process patent and product patent
PROCESS PATENT: It is granted for a new process of manufacturing an already known product or
for manufacturing a new product, or for manufacturing more articles of the same product that is
reducing the cost of the already known product.

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PRODUCT PATENT: It is granted when a new product has been invented by the person. The product
so invented may either be e more or less useful product than an already known product , or a new
product altogether.
Register of Patents
a. A register of patents is available to public at each Patent Office location and contains details about
the patentee, notifications in respect of assignments, transmissions, patents, licences under patents,
and amendments, extension and revocations of patents.
b. A copy of, or extracts from, the register of patents, certified to be a true copy under the hand of the
Controller or any officer duly authorized by the Controller is admissible in evidence in all legal
proceedings.
c. Upon grant of a patent, the Controller enters in the Register of Patents the names, addresses and
nationality of the patentee, title of the invention including the categories to which the invention
relates, date of the patent, date of granting thereof and address for service of the patentee. The fact of
payment of renewal fee shall also be entered in the register of patents.
d. The Controller shall also enter in the register of patents, particulars regarding proceedings under
the Act, before the Controller or in the Courts in respect of every patent.
e. An application for alteration of name, nationality, address or address for service as entered in the
register of patents may be made to the Controller in respect of any Patent. The Controller may
require such proof of the alteration as he may think fit before acting on the request. If the Controller
allows such a request, entries in the register are altered accordingly.
f. If a patentee makes a request in writing along with the prescribed fees for entering an additional
address for service in India and the Controller is satisfied that the request shall be allowed, the
additional address shall be entered in the register. Entries in the register for each patent are available
to the public on the official website.
USE OF INVENTIONS FOR PURPOSES OF GOVERNMENT AND ACQUISITION OF

INVENTIONS BY CENTRAL GOVERNMENT
99. Meaning of use of inventions for purposes of Government

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(1) For the purposes of this Chapter, an invention is said to be used for the purposes of Government
if it is made, used, exercised or vended for the purposes of the Central Government, a State
Government or a Government undertaking.
(2) Without prejudice to the generality of the provisions of sub-section (1), -
a. the importation, by or on behalf of the Government, of any invention being a machine,

apparatus or other article covered by a patent granted before the commencement of this Act,
for the purpose merely of its own use; and
b. the importation, by or on behalf of the Government, of any invention being a medicine or
drug covered by a patent granted before the commencement of this Act –
(i)for the purpose merely of its own use; or
(ii) for the purpose of distribution in any dispensary, hospital or other medical institution maintained
by or on behalf of the Government or in any other dispensary, hospital or other medical institution
which the Central Government may, having regard to the public service which such other dispensary,
hospital or medical institution renders, specify in this behalf by notification in the Official Gazette,
shall also be deemed, for the purposes of this Chapter, to be use of such invention for the purposes of
Government.
(3) Nothing contained in this Chapter shall apply in respect of any such importation making or using
of any machine, apparatus or other article or of any such using of any process or of any such
importation, using or distribution of any medicine or drug, as may be made by virtue of one or more
of the conditions specified in section 47.
100. Power of Central Government to use inventions for purposes of Government
At any time after an application for a patent has been filed at the patent office or a patent has been
granted, the Central Government and any person authorised in writing by it, may use the invention
for the purposes of Government in accordance with the provisions.
(2) Where an invention has, before the priority date of the relevant claim of the complete
specification, been duly recorded in a document, or tested or tried, by or on behalf of the
Government or a Government undertaking, otherwise than in consequence of the communication of
the invention directly or indirectly by the patentee or by a person from whom he derives title, any use

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of the invention by the Central Government or any person authorised in writing by it for the purposes
of Government may be made free of any royalty or other remuneration to the patentee.
(3) If and so far as the invention has not been so recorded or tried or tested as aforesaid, any use of
the invention made by the Central Government or any person authorised by it under sub-section (1),
at any time after the acceptance of the complete specification in respect of the patent or in
consequence of any such communication as aforesaid, shall be made upon terms as may be agreed
upon either before or after the use, between the Central Government or any person authorised under
sub-section (1) and the patentee, or, as may in default of agreement be determined by the High Court
on a reference under section 103:
Provided that in the case of any such use of any patent in respect of any medicine or drug or article
of food the royalty and other remuneration shall in no case exceed four per cent of the net ex-factory
sale price in bulk of the patented article (exclusive of taxes levied under any law for the time being in
force and any commissions payable) determined in such manner as may be prescribed.
(4) The authorisation by the Central Government in respect of an invention may be given under this
section, either before or after the patent is granted and either before or after the acts in respect of
which such authorisation is given or done, and may be given to any person, whether or not he is
authorised directly or indirectly by the applicant or the patentee to make, use, exercise or vend the
invention or import the machine, apparatus or other article or medicine or drug covered by such
patent.
(5) Where an invention has been used by or with the authority of the Central Government for the
purposes of Government under this section, then, unless it appears to the Government that it would
be contrary to the public interest so to do, the Government shall notify the patentee as soon as
practicable of the fact and furnish him with such information as to the extent of the use of the
invention as he may, from time to time, reasonably require; and where the invention has been used
for the purposes of a Government undertaking, the Central Government may call for such
information as may be necessary for this purpose from such undertaking.
(6) The right to make, use, exercise and vend an invention for the purposes of Government under
sub-section (1) shall include the right to sell the goods which have been made in exercise of that
right, and a purchaser of goods so sold, and a person claiming through him, shall have the power to

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deal with the goods as if the Central Government or the person authorised under sub-section (1) were
the patentee of the invention.
(7) Where in respect of a patent which has been the subject matter of an authorisation under this
section, there is an exclusive licensee as is referred to in sub-section (3) of section 101, or where
such patent has been assigned to the patentee in consideration of royalties or other benefits
determined by reference to the use of the invention (including payments by way of minimum
royalty), the notice directed to be given under sub-section (5) shall also be given to such exclusive
licensee or assignor, as the case may be, and the reference to the patentee in sub-section (3) shall be
deemed to include a reference to such assignor or exclusive licensee.
101. Rights of third parties in respect of use of invention for purposes of Government
(1) In relation to any use of a patented invention, or an invention in respect of which an application
for a patent is pending, made for the purposes of Government -
a. by the Central Government or any person authorized by the Central Government under
section 100; or
b. by the patentee or applicant for the patent to the order made by the Central Government,
the provisions of any licence, assignment or agreement granted or made, whether before or after the
commencement of this Act, between the patentee or applicant for the patent (or any person who
derives title from him or from whom he derives title) and any person other than the Central
Government shall be of no effect so far as those provisions -
(i) restrict or regulate the use for the purposes of Government of the invention, or of any model,
document or information relating thereto, or
(ii) provide for the making of payments in respect of any use of the invention or of the model,
document or information relating thereto for the purposes of Government (including payments by
way of minimum royalty), and the reproduction or publication of any model or document in
connection with the said use for the purposes of Government shall not be deemed to be an
infringement of any copyright subsisting in the model or document.
Acquisition of inventions and patents by the Central Government

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(1) The Central Government may, if satisfied that it is necessary that an invention which is the
subject of an application for a patent or a patent should be acquired from the applicant or the patentee
for a public purpose, publish a notification to that effect in the Official Gazette, and thereupon the
invention or patent and all rights in respect of the invention or patent shall, by force of this section,
stand transferred to and be vested in the Central Government.
(2) Notice of the acquisition shall be given to the applicant, and, where a patent has been granted, to
the patentee and other persons, if any, appearing in the register as having an interest in the patent.
(3) The Central Government shall pay to the applicant, or, as the case may be, the patentee and other
persons appearing on the register as having an interest in the patent such compensation as may be
agreed upon between the Central Government and the applicant, or the patentee and other persons;
or, as may, in default of agreement, be determined by the High Court on a reference under section
103 to be just having regard to the expenditure incurred in connection with the invention and, in the
case of a patent, the term thereof, the period during which and the manner in which it has already
been worked (including the profits made during such period by the patentee or by his licensee
whether exclusive or otherwise) and other relevant factors.
103. Reference to High Court of disputes as use for purposes of Government
(1) Any dispute as to the exercise by the Central Government or a person authorised by it of the
powers conferred by section 100, or as to terms for the use of an invention for the purposes of
Government thereunder or as to the right of any person to receive any part of a payment made in
pursuance of sub-section (3) of that section or as to the amount of compensation payable for the
acquisition of an invention or a patent under section 102, may be referred to the High Court by either
party to the dispute in such manner as may be prescribed by the rules of the High Court.
(2) In any proceedings under this section to which the Central Government is a party, the Central
Government may, -
a. if the patentee is a party to the proceedings, petition by way of counter-claim for revocation
of the patent on any ground upon which a patent may be revoked under section 64; and
b. whether a patentee is or is not a party to the proceedings, put in issue the validity of the patent
without petitioning for its revocation.

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(3) If in such proceedings as aforesaid any question arises whether an invention has been recorded,
tested or tried as is mentioned in section 100, and the disclosure of any document regarding the
invention, or of any evidence of the test or trial thereof, would, in the opinion of the Central
Government, be prejudicial to the public interest, the disclosure may be made confidentially to the
advocate of the other party or to an independent expert mutually agreed upon.
(4) In determining under this section any dispute between the Central Government and any person as
to terms for the use of an invention for the purposes of Government, the High Court shall have
regard to any benefit or compensation which that person or any person from whom he derives title,
may have received, or may be entitled to receive, directly or indirectly in respect of the use of the
invention in question for the purposes of Government.
(5) In any proceedings under this section, the High Court may at any time order the whole
proceedings or any question or issue of fact arising therein to be referred to an official referee,
commissioner or an arbitrator, on such terms as the High Court may direct, and references to the
High Court in the foregoing provisions of this section shall be construed accordingly.
(6) Where the invention claimed in a patent was made by a person who at the time it was made was
in the service of the Central Government or of a State Government or was an employee of a
Government undertaking and the subject-matter of the invention is certified by the relevant
Government or the principal officer of the Government undertaking to be connected with the work
done in the course of the normal duties of the Government servant or employee of the Government
undertaking, then, notwithstanding anything contained in this section, any dispute of the nature
referred to in sub-section (1) relating to the invention shall be disposed of by the Central Government
conformably to the provisions of this section so far as may be applicable, but before doing so the
Central Government shall give an opportunity to the patentee and such other parties as it considers
have an interest in the matter to be heard.
Rights of the Patentee (Sec.48 of Patents Act, 1970)
Where a patent covers a product, the grant of patent gives the patentee the exclusive right to prevent
others from performing, without authorisation, the act of making, using, offering for sale, selling or
importing that product for the above purpose.
Where a patent covers a process, the patentee has the exclusive right to exclude others from

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performing, without his authorisation, the act of using that process, using and offering for sale,
selling or importing for those purposes, the product obtained directly by that process in India.
Where a patent is granted to two or more persons, each of those persons will be entitled to an equal
undivided share in the patent unless there is an agreement to the contrary.
Restoration of lapsed patents

Where a patent has ceased to have effect due to failure to pay the renewal fee within the prescribed
period, the patentee or his legal representative can within 18 months from the date on which the
patent ceased to have effect make an application in Form 15 for restoration of the patent. If the
Controller is satisfied that failure to pay the renewal fee was unintentional and that there has been no
undue delay in the making of the application, then the patent will be restored.
PATENT OFFICE
Patent system in India is administered under the superintendence of the Controller General of
Patents, Designs, Trademarks and Geographical Indications. The Office of the Controller General
functions under the Department of Industrial Policy and Promotion, Ministry of Commerce and
Industry. There are four patent offices in India. The Head Office is located at Kolkata and other
Patent Offices are located at Delhi, Mumbai and Chennai. The Controller General delegates his
powers to Sr. Joint Controller, Joint Controllers, Deputy Controllers and Assistant Controllers.
Examiners of patents in each office discharge their duties according to the direction of the
Controllers. The Patent Information system (PIS) at Nagpur has been functioning as patent
information base for the users. The PIS maintains a comprehensive collection of patent specification
and patent related literature, on a world-wide basis and provides technological information contained
in patent or patent related literature through search services and patent copy supply services to
various users of R&D establishments, Government offices, private industries, business, inventors and
other users within India.
Hierarchy of Officers in Patent office

• Controller General of Patents, Designs, Trademarks & GI
• Examiners of Patents & Designs
• Assistant Controller of Patents & Designs

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• Deputy Controller of Patents & Designs
• Joint Controller of Patents & Designs
• Senior Joint Controller of Patents & Designs
Jurisdiction of Patent offices in India

An applicant or first mentioned applicant in case of joint applicants can file application for patent at
the appropriate Patent Office under whose jurisdiction he normally resides or has his domicile or has
a place of business or the place from where the invention actually originated. For the applicant, who
is non-resident or has no domicile or has no place of business in India, the address for service in
India or place of business of his patent agent determines the appropriate patent office where
applications for patent can be filed.
India: Revocation Of Patents According To Indian Patent Act, 1970: Insight
1 What is revocation of a patent?

When a patent has been sealed or granted, it is not always the case that the patent shall stay
unhindered by any third party till the life of the patent. The patent can be challenged by certain
people on different grounds, and a method to cause the same is by filing a revocation petition/ post-
grant opposition proceedings. This article focuses on the revocation proceedings.
2 Why does one file a revocation petition?

As the Patent Act does not presume Patents granted to be valid, rights granted on such Patents cannot
be absolute. Third parties which are required to seek permission from Patentee for practicing any of
the exclusive rights bestowed upon him are also given a chance to challenge the validity of the
Patents. This challenge can be instituted on own as well as on Patentee asserting infringement of
Patent rights.
3 Who can file a revocation petition?

As per Section 64 of the Patent Act, 1970, the following persons can file the petition in the High
Court:
 any person interested1;
 the Central Government

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 the person making the counter-claim in a suit for the infringement of a patent
4 Where can a revocation petition be filed?
Thus, a revocation petition can be filed in the Intellectual Property Appellate Board by the interested
person or the Central Government, or it can be filed as a counter-claim in a suit for infringement at
the High Court.
To bring in the aspect about jurisdiction of suits of infringement and the corresponding revocation
petitions, Section 104 of the Patents Act, 1970 states that no suit of infringement can be brought
before a court inferior to the District Court having jurisdiction to try the suit and in the event of a
counter-claim for revocation of the patent made by the defendant, such suit for infringement and the
said counter-claim must be transferred to the High Court.
5 What are the grounds under which a revocation petition can be brought?
Under Section 64, the following are the said grounds:
the invention, so far as claimed in any claim of the complete specification, was claimed in a valid
claim of earlier priority date contained in the complete specification of another patent granted in
India;
the patent was granted on the application of a person not entitled to apply therefor;
the patent was obtained wrongfully in contravention of the rights or the petitioner or any person
under or through whom he claims;
the subject of any claim of the complete specification is not an invention;
the invention so far as claimed in any claim of the complete specification is not new, having regard
to what was publicly known to publicly used in India before the priority date of the claim or to what
was published in India or elsewhere in any of the documents referred to in Section 13;
the invention so far as claimed in any claim of the complete specification is obvious or does not
involve any inventive step, having regard to what was publicly known or publicly used in India or
what was published in India or elsewhere before the priority date of the claim;
the invention, so far as claimed in any claim of the complete specification, is not useful;
the complete specification does not sufficiently and fairly describe the invention and the method by
which it is to be performed, that is to say, that the description of the method or the instructions for the
working of the invention as contained in the complete specification are not by themselves sufficient
to enable a person in India possessing average skill in, and average knowledge of the art to which the

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invention relates, to work the invention, or that it does not disclose the best method of performing it
which was known to the applicant for the patent and for which he was entitled to claim protection;
 that the scope of any claim of the complete specification is not sufficiently and clearly
defined or that any claim of the complete specification is not fairly based on the matter
disclosed in the specification;
 that the patent was obtained on a false suggestion or representation;
 that the subject of any claim of the complete specification is not patentable under this Act;
 that the invention so far as claimed in any claim of the complete specification was secretly
used in India, otherwise than as mentioned in sub-section (3), before the priority date of the
claim;
 that the applicant for the patent has failed to disclose to the Controller the information
required by section 8 or has furnished information which in any material particular was false
to his knowledge;
 that the applicant contravened any direction for secrecy passed under section 35
 that leave to amend the complete specification under section 57 or section 58 was obtained by
fraud.
 that the complete specification does not disclose or wrongly mentions the source or
geographical origin of biological material used for the invention;
 that the invention so far as claimed in any claim of the complete specification was anticipated
having regard to the knowledge, oral or otherwise, available within any local or indigenous
community in India or elsewhere.
What are the other provisions concerning revocation?
Under Section 65, if a patent is claimed to be related to atomic energy, a revocation petition can be
filed against it. Such patent shall not be granted under the Atomic Energy Act, 1962 and shall be
revoked. Under Section 66, if the Central Government is of the opinion that a patent or the mode in
which it is exercised was mischievous to the State or prejudicial to the public, after giving an
opportunity to the patentee to be heard, it may make such declaration in the Official Gazette and the
patent shall stand revoked.
UNIT II TRADEMARK
What is Trademark?

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Visual representation of a particular goods or a commodity is called as trademark. A mark which is

capable of distinguished goods from one and another is called as trademark. A trade mark (popularly
known as brand name) in layman’s language is a visual symbol which may be a word signature,
name, device, label, numerals or combination of colours used by one undertaking on goods or
services or other articles of commerce to distinguish it from other similar goods or services
originating from a different undertaking.
• The selected mark should be capable of being represented graphically (that is in the paper
form).
• It should be capable of distinguishing the goods or services of one undertaking from those of
others.
• It should be used or proposed to be used mark in relation to goods or services for the purpose
of indicating or so as to indicate a connection in the course of trade between the goods or
services and some person have the right to use the mark with or without identity of that
person.
Trade Marks are distinctive symbols, signs, logos that help consumer to distinguish between
competing goods or services. A trade name is the name of an enterprise which individualizes the
enterprise in consumer’s mind. It is legally not linked to quality. But linked in consumer’s mind to
quality expectation.
Key Features of Trademark
• Trademark must be Distinctive
• Trademark must be used in Commerce
Types of Trademark
• Trademark,
• Servicemark,
• Collectivemark,
• Certification Mark
Functions of Trademark

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Trademark performs four functions –
• It identifies the goods / or services and its origin;
• It guarantees its unchanged quality;
• It advertises the goods/services;
• It creates an image for the goods/ services.
Trade Marks law of India

The Trade Marks Act, 1999 and the Trade Marks Rules, 2002 govern the law relating to Trade Marks
in India. The Trade Marks Act, 1999 (TMA) protects the trademarks and their infringement can be
challenged by a passing off or/and infringement action. The Act protects a trade mark for goods or
services, on the basis of either use or registration or on basis of both elements.
Who can apply for Trademark?

Any person claiming to be the proprietor of a trade mark used or proposed to be used by him may
apply in writing in Form TM-1 for registration. The application should contain the trade mark, the
goods/services, name and address of applicant and agent (if any) with power of attorney, period of
use of the mark and signature. The application should be in English or Hindi. It should be filed at the
appropriate office.
History of Trademark Law in India

While some form of proprietary protection for marks in India dates back several millennia, India’s
statutory Trademarks Law dates back to 1860. Prior to 1940 there was no official trademark Law in
India. Numerous problems arouse on infringement, law of passing off etc and these were solved by
application of section 54 of the Specific Relief Act, 1877 and the registration was obviously
adjudicated by obtaining a declaration as to the ownership of a trademark under Indian Registration
Act 1908.
To overcome the aforesaid difficulties the Indian Trademarks Act was passed in 1940, this
corresponded with the English Trademarks Act. After this there was an increasing need for more
protection of Trademarks as there was a major growth in Trade and Commerce. The replacement to
this act was the Trademark and Merchandise Act, 1958. This Act was to provide for registration and
better protection of Trademarks and for prevention of the use of fraudulent marks on merchandise.
This Law also enables the registration of trademarks so that the proprietor of the trademark gets legal

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right to the exclusive use of the trademark. The objective of this act was easy registration and better
protection of trademarks and to prevent fraud. The repeal of the Trademarks and Merchandise Act
gave rise to the Trademark Act 1999; this was done by the Government of India so that the Indian
Trademark Law is in compliance with the TRIPS obligation on the recommendation of the World
Trade Organization. The object of the 1999 Act is to confer the protection to the user of the
trademark on his goods and prescribe conditions on acquisition, and legal remedies for enforcement
of trademark rights.
TRADEMARK REGISTRY
The Trade Marks Registry was established in India in 1940 and presently it administers the Trade
Marks Act, 1999 and the rules thereunder. It acts as a resource and information centre and is a
facilitator in matters relating to trade marks in the country. The objective of the Trade Marks Act,
1999 is to register trademarks applied for in the country and to provide for better protection of trade
mark for goods and services and also to prevent fraudulent use of the mark. The main function of the
Registry is to register trade marks which qualify for registration under the Act and Rules.
BASIC PRINCIPLES FOR REGISTRATION OF TRADEMARK IN INDIA

It is not any trade mark which is registrable. To be registrable the trademark should be distinctive and
should not be similar to any other trade mark registered for the same or similar goods or used by a
competitor whether registered or not. In the case of a similar mark used by a competitor but not
registered difficulties for registration will arise only if the owner of the mark chooses to oppose the
registration. In choosing a trade mark therefore one has to see whether the mark satisfies the
requirement of distinctiveness contained in section 9 of the Trade and Merchandise Marks Act, 1958.
This is not very difficult. Thereafter the applicant has to verify as far as possible whether a similar
mark, has been registered or used by others for similar goods. The applicant can make a search in the
indexes kept for public inspection at the Trade Marks Office with or without professional assistance
from practitioners of trade mark law. In the alternative a request for a search report may be made to
the Registrar of Trade Marks in the prescribed form. It may be advisable to do both as it will provide
some sort of evidence of bona fide of the applicant in adopting the mark which is very important.
While choosing a trade mark it is dangerous to start from some existing trade mark and then make
modifications. However, after independently adopting the mark, it should be ascertained whether a
similar mark has been registered or used or already applied for registration. If the investigations
disclose the existence of a similar mark, it is best to discard the mark chosen and start again the

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whole process. It is not always easy to decide whether two marks are similar. The best way to
determine the question is to consider one`s reaction and apply common sense.
Basic Principles of Registration of Trademark

The purpose of the Trade and Merchandise Marks Act is to provide for the registration and better
protection of trade of trademarks and to prevent the use of fraudulent marks on merchandise. In
consonance with this object the following fundamental principles of trade mark law are embodied in
the various provisions of the Act:
(i) Since registration confers on the proprietor a kind of monopoly right over the use of the mark
which may consist of a word or symbol legitimately required by other traders for bona fide trading or
business purposes, certain restrictions are necessary on the class of words or symbols over which
such monopoly right may be granted. Thus descriptive words, surnames and geographical names are
not considered prima facie registerable (See Section 9 of the Trade and Merchandise Marks Act,
1958).
(ii) Registration of a trade mark should not interfere with the bona fide use by any person of his own
name or that of his place of business, or the use of any bona fide description of the character or
quality of the goods. (See Section 34 of the Act)
(iii) Property rights in a trade mark acquired by use are superior to similar rights obtained by
registration under the Act. It, therefore, follows that prior users of trademarks should be protected
against any monopoly rights granted under the Statute (See Section 33 of the Act)
(iv) There are obviously two main interests to be protected when a trademark is presented for
registration. There is first the interest of the public. A trade mark ought not to be registered if its use
will be apt to mislead the public as to the origin of the goods they are purchasing. There is also the
interests of other traders who are entitled to object if the use of the trade mark proposed for
registration will be calculated to enable the applicant`s goods to be passed off on the public as such
other traders` goods. Thus a mark which is similar to a mark already registered or used for similar
goods will not be allowed registration. (See Section 11 and 12 of the Act)
(v) It may so happen that a trader honestly used a trade mark for a number of years although an
identical or similar mark has been registered or used by another. It will obviously cause hardship to
such a trader if he is deprived of the benefits of registration. There is, therefore, provision for
registration of such marks subject to suitable conditions and limitations. (See Section 12(3) of the
Act).
(vi) Broadly speaking, the life of a trade mark depends on its use; and continued non-use may lead

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to its eventual death. There is, therefore, no equitable or logical basis for the continuance of the
protection afforded by registration where the mark is no longer in use for a sufficiently long period.
The principle is recognized in the Act by providing for removal of a mark from the register on the
ground of non-use.( See Section 46 of the Act)
(vii) A trade mark is recognized as a form of property. The term “proprietor of a trade mark” is used
in the definition of a trade mark and also in various other provisions of the Ac. It should, therefore,
be assignable and transmissible as in the case of other forms of property. Having regard to the
peculiar nature of this property, the Act has taken care to impose various restrictions and conditions
for the assignment or transmission of property rights in a trademark, whether registered or
unregistered. (See Section 36-44 of the Act)
(viii) Granting the benefits of registration under the Statute is not only a matter of interest to the
applicant seeking registration, but is a matter in which the public is also interested. It is, therefore,
necessary that any member of the public who wants to object to the registration should be permitted
to do so. The Act accordingly provides for advertisement of the application and opposition thereto by
any interested party.
Trademarks not registerable

The following trademarks are not registerable:
(i) a trademarks the use of which would be likely to deceive or cause confusion ; (Section 11(a) of
the Act.)
(ii) a trademark the use of which would be contrary to any law for the time being in force (See
Section 11(b) of the Act)
(iii) a trademarks comprising or containing scandalous or absence matter ; (See Section 11(c) of the
Act)
(iv) a trademark comprising or containing any matter likely to hurt the religious susceptibilities of
any class or section of the citizens of India ; (See Section 11(d) of the Act)
(v) a trademark which would be disentitled to protection in a court of law ; [Section 11(e) of the
Act.]
(vi) a trademark which is identical with or deceptively similar to a trade mark already registered in
respect of the same goods or goods of the same description ; [Section 12(1) of the Act.]
(vii) a word which in the accepted name of any single chemical name or chemical compound in
respect of chemical substances ; [Section 13 of the Act.]
(viii) Trademarks prohibited under the Emblems and Names Act. Whether a trademark comes, within

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the prohibition of any of the above categories arises for consideration at the time of examination of
the application by the Registrar, opposition and rectification proceedings and infringement and
passing off actions.
DECEPTIVE SIMILARITY
‘Deceptive similarity’ is one of the vital tribulations that is sought to be resolved by the Trademarks
Act, 1999. As per section 2 (h) a mark shall be deemed to be deceptively similar to another mark if it
so nearly resembles that other mark as to be likely to deceive or cause confusion and mark as per
section 2 (m) includes a device, brand, heading, label, ticket, name signature, word, letter, numerical,
shape of goods, packaging or, combination of colors or any combination thereof.
In Bombay Metal Works (P) Ltd v. Tara Singh & Ors 2006 (33) PTC (Bom.)(DB), is one such case
where even after obtaining an injunction, the plaintiff is forced to make attempts to sustain the
protection of marks.
Facts of the case
Tara Sing & Ors were restrained by an injunction order, from manufacturing, selling, offering for
sale, advertising directly or indirectly dealing in cycle parts under the impugned Ball Head Racers
and Screw Head Racers or any other packing which could be substantially similar to that of Bombay
Metal Works Ltd.
Despite the said order, Tara Singh continued the manufacturing and selling of the goods there by
violating the said order. Aggrieved by the non-compliance of the order, Bombay Metal Works filed a
contempt application under section 2 (a), 11 and 12 of the Contempt of the Court Act. Surprisingly
the Judge not only rejected the contempt application, but also gave a finding that the impugned
packaging of Tara Singh cannot be considered as deceptively similar to the packing of the Bombay
Metal Works. Aggrieved by the said order, Bombay Metal works preferred the appeal.
Contentions
The main contention of the Tara Singh was that the appeal is not maintainable and that it shall lie to
the High Court only if the contemnor has been punished and not in any other case. On the other
hand, Bombay Metal Works contented that they have filed the appeal not as contempt appeal but as
the First Appeal Order (FAO) and hence it is maintainable.
Judgment
The Appeal court on perusal of earlier single bench orders found that the parties had virtually settled
their dispute and Tara Singh had given an undertaking that they shall change the color scheme and

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outlook of their packaging. The Appellate Court further opined that as Tara Singh had agreed to
change the color scheme and design of the packing, there is a prima facie breach of an interim
injunction order and hence Tara Singh & Ors are estopped from acting contrary to their undertaking.
Holding the above line, the Court upheld the appeal.
This case underlines the difficulty of protecting the marks. The undertaking by the respondents in the
case itself proves that they are accepting that their packing is deceptively similar to that of the
appellants. One of the significant tactics primarily applied by new manufactures is to pass off their
goods as that of another. The trademark holder needs to be alert of the infringements and the
prospective infringements. Close monitoring of the developments has emerged as a key factor.
Timely judicial intervention is another prime factor that has become inevitable to the protection of a
trademark.
The factors to be taken in consideration for the deceptive similarity are as follows:
 The nature of the marks i.e. whether coined/ descriptive/ non-descriptive/ surname/
geographical origin/ device/ letters/ numerals/ combination of two or more of the above
 The degree of resemblance between the competing marks and essential features thereof i.e.
phonetic, visual or structural.
 The nature of the goods in respect of which they are used or likely to be used as trade marks.
 The similarity of the nature, character, and purpose of the goods of the rival traders.
 The class of purchasers who are likely to buy the goods bearing the marks.
 The mode of purchase of the goods or of placing orders for the goods.
Correction and amendment of registration application

An applicant for registration of a trade mark can before the registration of the mark, apply in Form
TM-16 for correction of any error in connection with his application. But the correction should not
alter the trade mark that has been applied for or substitute a new specification of goods or services
not included in the application.
Assignment of Trademark

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Trademark assignment is the transfer of ownership of a trademark application or trademark

registration from one entity to another. The transferring party called the assignor; transfers to the
receiving party called the assignee its property rights in the trademark. The License is the grant of
mere permission to use a mark in some limited manner. When a license is granted there is no transfer
of property rights in the trademark.
The essentials of a valid assignment are that the assignment must:
 be given for consideration, or else made under seal

 clearly identify the marks
 clearly identify the assignor and assignee
 clearly indicate that goodwill is included
A trademark assignment can be proven by oral evidence. However, a written assignment is preferred
to an oral assignment. However, there must be evidence of an intention on the part of the assignor to
transfer ownership of the mark and the associated goodwill to the assignee to make a valid
assignment.
Trademark Registration Procedure
STEP 1: Trademark Search:
A Trademark search is the first step in the Trademark registration procedure. A search is to be
conducted in order to determine the uniqueness of the mark, and its similarity to other, pre-existing
marks. It is very much advisable to conduct a Trademark search before registering or using a
Trademark. Without a search, there are chances for being sued for Trademark infringement, the
rejection of the Trademark application, and a third-party challenging the Trademark application.
STEP 2: Filing of Trademark Registration Application:
The second step in the Trademark registration procedure is filing of Trademark registration
application after getting the positive search report. After receiving of the acknowledgement the
applicant can use the symbol TM along with the applied mark. If the application for the registration
of Trademark filed through efiling system of Trademark registration than the acknowledgement of
the application along with the government receipt generate immediately after the filing. If the

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application for the registration filed manually than the acknowledgement provided only after 15-20
days.
STEP 3: Examination of Trademark Registration Application:
Third step in the Trademark registration procedure is issuance of examination report by the
Trademark office. Upon receipt of Trademark registration application, the Registrar issues an
examination report after examining the application. Applications are examined to ensure that they
comply with the requirements of the law and that they do not conflict with marks which are already
registered, or which are the subjects of earlier pending applications.
STEP 4: Publication of Mark in Trademark Journal:
Fourth step in the Trademark registration procedure is the publication of the mark in the Trademark
journal. If the Registrar considers the mark as a distinctive mark or after the removal of the
objections, if any, raised by the Registrar he may cause the application to be advertised in Trademark
journal. If no opposition to the mark is filed within 90 days from the date of publication, or 120 days
if request for extension of time is given to the opponent and opposition is refused, mark proceeds for
the acceptance of Registration.
STEP 5: Trademark Registration:
Fifth step in the Trademark registration procedure is the issuance of Trademark registration
certificate. After the application for Registration of Trademark is accepted by the Registrar, the
Registrar shall issue to the applicant a Certificate of Registration under the seal of the Trademark
Registry.
Time Duration:
If there is no objection and /or opposition raised, the process of Registration of Trademark usually
takes 15 to 18 months.
Trademark Registry

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The Trade Marks Registry was established in India in 1940 and presently it administers the Trade
Marks Act, 1999 and the rules thereunder. It acts as a resource and information centre and is a
facilitator in matters relating to trade marks in the country. The objective of the Trade Marks Act,
1999 is to register trade marks applied for in the country and to provide for better protection of trade
mark for goods and services and also to prevent fraudulent use of the mark. The main function of the
Registry is to register trade marks which qualify for registration under the Act and Rules.
Rectification of Trademark/Register
Rectification means correction or alteration. According to the Trademark Act, 1999 the proprietor or
any other person having an interest in the trademark can file an application to rectify certain entries
related to the trademark in the register of trademark.
Who can file the application?
Any person who is interested in altering or removing the trademark can file the application. This
includes people who are not the registered proprietors of the mark.
What is the procedure to be followed?
The application should be accompanied with a statement of reason and facts for which the change is
requested. Within 2 months (+30 days) from the receipt of the statement of facts and a copy of the
application, the proprietor shall send a counterstatement to the Registrar.
What can be altered or corrected?
 Alteration of address in the register

 Correction of entry in register
 Alteration of Registered trademark
 Re-classification of goods
a. Alteration of address in the register;
Alteration in cases where the address has been wrongly entered in the register, can be rectified by
filing Form TM 34. The Registrar shall make suitable changes if he is satisfied. Alteration in case the

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address: The Registered proprietor can file Form TM 50 to make the appropriate changes in the
register.
b. Correction of entry in register;
Where an application has been made for correction, change, cancellation or striking out of goods or
services, the Registrar may require additional evidence such as affidavits
c. Alteration of Registered trademark
Applicant can alter the trademark by filing Form TM-38 and furnishing 5 copies of the altered mark.
After which the Registrar shall advertise the new mark and invite the public to raise objections. In
case there are no objections raised within 3 months (+30 days) the Registrar shall make the necessary
alterations in the register.
d. Re-classification of goods
A registered proprietor can change the class in which his mark has been registered in by filing Form-
40. The Registrar shall then check to see if there are any existing marks which are similar to the
applicant’s mark. In case there are no similar marks, then the Registrar shall advertise the mark in the
journal. Where there are no objections raised by the public, the Registrar shall make the necessary
changes in the register
Infringement Of A Trade Mark
Infringement occurs when someone else uses a trademark that is same as or similar to your registered
trademark for the same or similar goods/services. Trademark infringement claims generally involve
the issues of likelihood of confusion, counterfeit marks and dilution of marks. Likelihood of
confusion occurs in situations where consumers are likely to be confused or mislead about marks
being used by two parties. The plaintiff must show that because of the similar marks, many
consumers are likely to be confused or mislead about the source of the products that bear these
marks. Dilution is a trade mark law concept forbidding the use of a famous trade mark in a way that
would lessen its uniqueness. In most cases, trade mark dilution involves an unauthorized use of
another's trade mark on products that do not compete with, and have little connection with, those of
the trade mark owner. For example, a famous trade mark used by one company to refer to hair care

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products might be diluted if another company began using a similar mark to refer to breakfast cereals
or spark plugs.
The concept of infringement can be explained with the help of the following case laws:
In the case Castrol Limited Vs P.K. Sharma. Facts of the case: Plaintiff is the registered owner of the
trade marks Castrol, Castrol Gtx And Castrol Gtx 2 in respect of oils for heating, lighting and
lubricating. During the month of December 1994, plaintiffs came to know that the defendant was
carrying on business of selling multigrade engine oil and lubricants under the trade mark 'Castrol Gtx
& Castrol Crb' IN IDENTICAL containers as used by the plaintiffs. Plaintiff filed a suit for perpetual
injunction.
In Ranbaxy Laboratories Ltd. Vs. Dua Pharmaceuticals Ltd.2 , the plaintiff company manufactured
drugs under the trade name "Calmpose". The defendant company subsequently floated its similar
product under the trademark "Calmprose". The said two trade marks having appeared phonetically
and visually similar and the dimension of the two strips being practically the same including the type
of packing, the colour scheme and manner of writing, it was found to be a clear case of infringement
of trade mark and the ad interim injunction granted in favour of the plaintiff was accordingly made
absolute.
Acts Not Constituting Infringement:-
Following acts do not constitute infringement of the right to the use of a registered trademark:
 When a person uses a trademark in accordance with honest practices in industrial and
commercial matters that do not take unfair advantage.
 When a person uses a trade mark in relation to goods or services indicating character, quality
or geographical origin
 When a person uses a trade mark in relation to services to which the proprietor has already
applied the mark or registered user the object of the use is to indicate that the proprietor or the
registered user has performed the services.
 When a person uses a trademark, which is subject to any conditions or limitations, beyond the
scope of such conditions or limitations will not constitute infringement.

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 When a person uses a mark in relation to goods to which the mark has been lawfully applied,
or where the registered proprietor has consented to the use of the mark. This applies to cases
where goods are purchased in bulk and sold in retail applying the mark.
 When a person uses a mark in relation to parts of a product or accessories to the goods in
respect of which the mark is registered if the use is reasonably necessary to indicate that the
goods so adapted.
 When a person uses a mark or a similar mark in the exercise of a right conferred by
independent registration.
 When a person assigns a trademark to another, this will not affect the right of that person to
sell or deal in the goods bearing that mark.
PASSING OFF
A misrepresentation made by a trader in the course of trade to prospective customers of his or

ultimate consumers of goods or services supplied by him, which is calculated to injure the business
or goodwill of another trader (in the sense that this is a reasonably foreseeable consequence) and
which causes actual damage to a business or goodwill of the trader by whom the action is brought or
will probably do so."
"(The ) making of some false representation to the public, or to third persons, likely to induce them
to believe that the goods or services of another are those of the plaintiff. This may be done, for
example, by counterfeiting or imitating the plaintiff's trade mark or trade name, his wrappers, labels
or containers, his vehicles, the badges or uniforms of his employees, or the appearance of his place of
business. "The test laid down in such cases has been whether the resemblance is so great as to
deceive the ordinary customer acting with the caution usually exercised in such transactions, so that
he may mistake one for the other."
"In an action for passing off, it would have been necessary for the appellant to show that the
respondent intentionally or negligently misled consumers into believing its restaurant services
originated with the appellant and that the appellant thereby suffered damage."
DOMAIN NAME

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A domain name is a unique name that identifies an internet resource such as a website. It is an
identification string that defines a realm of administrative autonomy, authority or control on the
Internet. Domain names are formed by the rules of the Domain Name System (DNS). Any name
registered in the DNS is a domain name. The functional description of domain names is presented in
the Domain Name System article. Broader usage and industry aspects are captured here. Domain
names are used in various networking contexts and application-specific naming and addressing
purposes. In general, a domain name represents an Internet Protocol (IP) resource, such as a
personal computer used to access the Internet, a server computer hosting a web site, or the web
site itself or any other service communicated via the Internet. In 2014, the number of active
domains reached 271 million.
Domain Name Registration Process
After you have chosen a domain name, you will need to submit your domain name registration
request to a registrar.
You will need to submit the following information to the registrar:
 the desired domain name

 The name and contact information (including email address, physical address and contact
phone number) for the domain's registrant, administrative and billing contacts.
 the desired domain registration term
 payment information
Once you have provided your registrar with all these information, they will then initiate the domain
name registration process for you. The registrar will send your domain name request, and the
contact and technical information of the domain name to the registry. The registry also adds your
domain zone files to the master servers. These master servers tell other servers on the Internet
where your website is stored. Your domain is considered registered and ready-to-use when all
information has been updated.

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UNIT III CYBER LAW
Introduction
Rapidly evolving area of civil and criminal law as applicable to the use of computers, and activities
performed and transactions conducted over internet and other networks.
Cyber laws prevent or reduce large scale damage from cybercriminal activities by protecting
information access, privacy, communications, intellectual property (IP) and freedom of speech
related to the use of the Internet, websites, email, computers, cell phones, software and hardware,
such as data storage devices.
The increase in Internet traffic has led to a higher proportion of legal issues worldwide. Because
cyber laws vary by jurisdiction and country, enforcement is challenging, and restitution ranges from
fines to imprisonment.
Cyber law is important because it touches almost all aspects of transactions and activities on and
concerning the Internet, the World Wide Web and Cyberspace. Initially it may seem that Cyber laws
are a very technical field and that it does not have any bearing to most activities in Cyberspace. But
the actual truth is that nothing could be further than the truth. Whether we realize it or not, every
action and every reaction in Cyberspace has some legal and Cyber legal perspectives.
History of cyber law in India
The information Technology Act is an outcome of the resolution dated 30th January 1997 of the
General Assembly of the United Nations, which adopted the Model Law on Electronic Commerce,
adopted the Model Law on Electronic Commerce on International Trade Law. This resolution
recommended, inter alia, that all states give favourable consideration to the said Model Law while
revising enacting new law, so that uniformity may be observed in the laws, of the various cyber-
nations, applicable to alternatives to paper based methods of communication and storage of
information.
The Department of Electronics (DoE) in July 1998 drafted the bill. However, it could only be
introduced in the House on December 16, 1999 (after a gap of almost one and a half years) when the
new IT Ministry was formed. It underwent substantial alteration, with the Commerce Ministry

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making suggestions related to e-commerce and matters pertaining to World Trade Organization
(WTO) obligations. The Ministry of Law and Company Affairs then vetted this joint draft. After its
introduction in the House, the bill was referred to the 42-member Parliamentary Standing Committee
following demands from the Members. The Standing Committee made several suggestions to be
incorporated into the bill. However, only those suggestions that were approved by the Ministry of
Information Technology were incorporated. One of the suggestions that were highly debated upon
was that a cyber café owner must maintain a register to record the names and addresses of all people
visiting his café and also a list of the websites that they surfed. This suggestion was made as an
attempt to curb cyber crime and to facilitate speedy locating of a cyber criminal. However, at the
same time it was ridiculed, as it would invade upon a net surfer's privacy and would not be
economically viable. Finally, this suggestion was dropped by the IT Ministry in its final draft. The
Union Cabinet approved the bill on May 13, 2000 and on May 17, 2000; both the houses of the
Indian Parliament passed the Information Technology Bill. The Bill received the assent of the
President on 9th June 2000 and came to be known as the Information Technology Act, 2000. The Act
came into force on 17th October 2000.
With the passage of time, as technology developed further and new methods of committing crime
using Internet & computers surfaced, the need was felt to amend the IT Act, 2000 to insert new kinds
of cyber offences and plug in other loopholes that posed hurdles in the effective enforcement of the
IT Act, 2000. This led to the passage of the Information Technology (Amendment) Act, 2008 which
was made effective from 27 October 2009. The IT (Amendment) Act, 2008 has brought marked
changes in the IT Act, 2000 on several counts.
Cyber law encompasses laws relating to:

1. Cyber Crimes
2. Electronic and Digital Signatures
3. Intellectual Property
4. Data Protection and Privacy
Need for Cyber Law
There are various reasons why it is extremely difficult for conventional law to cope with cyberspace.
Some of these are discussed below.
1. Cyberspace is an intangible dimension that is impossible to govern and regulate using
conventional law.

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2. Cyberspace has complete disrespect for jurisdictional boundaries. A person in India could break
into a bank’s electronic vault hosted on a computer in USA and transfer millions of Rupees to
another bank in Switzerland, all within minutes. All he would need is a laptop computer and a cell
phone.
3. Cyberspace handles gigantic traffic volumes every second.
4. Cyberspace is absolutely open to participation by all. A tenyear- old in Bhutan can have a live
chat session with an eight year- old in Bali without any regard for the distance or the anonymity
between them.
5. Cyberspace offers enormous potential for anonymity to its members. Readily available
encryption software and steganographic tools that seamlessly hide information within
image and sound files ensure the confidentiality of information exchanged between cyber-citizens.
6. Cyberspace offers never-seen-before economic efficiency.
7. Electronic information has become the main object of cyber crime. It is characterized by extreme
mobility, which exceeds by far the mobility of persons, goods or other services. International
computer networks can transfer huge amounts of data around the
globe in a matter of seconds.
8. A software source code worth crores of rupees or a movie can be pirated across the globe within
hours of their release.
CYBERSPACE AND IPR

Information Technology is one of the fastest growing industries in India, with the Internet completely
revolutionizing the way we get information. However, regardless of the positives, the Internet is
serving as a breeding ground for cyber crimes. There is a interface between cyberspace and IPR
which is essential to understand.
INTELLECTUAL PROPERTY (IP)
Intellectual property (IP) refers to creations of the mind: inventions, literary and artistic works, and
symbols, names, images, and designs used in commerce.
INTERLINKAGE BETWEEN CYBERSPACE AND INTELLECTUAL PROPERTY RIGHTS

(IPR)
Information Technology is one of the fastest growing industries in India, with the Internet completely
revolutionizing the way we get information. However, regardless of the positives, the Internet is

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serving as a breeding ground for cyber crimes. One of the menacing problems spurred by the Internet
growth is the infringement of copyright. Copyright infringement or copyright violation is the
unauthorized use of works that are exclusive rights of the original copyright holder.
Theories of Liability for Internet Service Providers
One of the main threats faced by a copyright holder these days is online piracy. The liability for
copyright infringement is based on the three principles:
 Direct Infringement: When the exclusive rights of a copyright holder are violated by
another person, it is direct infringement
 Vicarious Liability: When a person with the ability and right to prevent an infringement fails
to do so (mainly because of the benefits derived), it is vicarious liability.
 Contributory Liability: When a person or party contributes to or induces an infringement
activity carried out by another, it is contributory liability. There have been arguments in the
past pertaining to the liability of a service provider in the infringement of copyright, as it is
they who connect users to the Internet.
The following are few points to throw light on the linkage between cyberspace and IPR:
 Legal protection of intellectual property is the lifeblood of the IT industry.
 Internet copyright infringement is a form of intellectual property theft, and it can lead to
significant legal penalties and security issues. Common Internet copyright violations include
illegally downloading music files and movies as well as pirating certain types of software
applications. Posting a copyrighted work, such as a drawing or writing, online without
 permission from the owner may also constitute Internet copyright infringement.
 Online copyright infringement can result in a range of legal problems for unauthorized users.
Typically, the penalties for Internet copyright infringement vary based on the severity of the
crime. People found guilty of lesser types of infringement, such as illegally downloading a
couple of music files, may simply be fined. Greater violations, however, can lead to jail time.
 People who participate in illegal Internet downloading can inadvertently put their computer
security systems at risk. Computer hackers often capitalize on web sites that provide users
with the ability to illegally download music, videos, and software. Some hackers purposely
infect the files on these sites with harmful codes that can be difficult to uncover and
eliminate. An Internet user’s computer may become infected when one of these contaminated
files is downloaded on it.

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 An author, according to copyright law, is the creator of an original expression in a work. The
author is also the owner of the copyright unless they have entered into a written agreement
assigning the copyright to someone else, or an entity like a publisher.
CYBER SPACE
Cyberspace is "the notional environment in which communication over computer networks occurs.".
During this period, the uses of the internet, networking, and digital communication were all growing
dramatically and the term "cyberspace" was able to represent the many new ideas and phenomena
that were emerging.
The parent term of cyberspace is "cybernetics", derived from the Ancient Greek introduced by
Norbert Wiener for his pioneering work in electronic communication and control science.
As a social experience, individuals can interact, exchange ideas, share information, provide social
support, conduct business, direct actions, create artistic media, play games, engage in political
discussion, and so on, using this global network. They are sometimes referred to as cybernauts. The
term cyberspace has become a conventional means to describe anything associated with the Internet
and the diverse Internet culture. The United States government recognizes the interconnected
information technology and the interdependent network of information technology infrastructures
operating across this medium as part of the US national critical infrastructure. Amongst individuals
on cyberspace, there is believed to be a code of shared rules and ethics mutually beneficial for all to
follow, referred to as cyber ethics. Many view the right to privacy as most important to a functional
code of cyberethics. Such moral responsibilities go hand in hand when working online with global
networks, specifically, when opinions are involved with online social experiences.
What is software piracy?
Unlike other things you purchase, the software applications and fonts you buy don't belong to you.
Instead, you become a licensed user — you purchase the right to use the software on a single
computer, but you can't put copies on other machines or pass that software along to colleagues.
Software piracy is the illegal distribution and/or reproduction of Adobe software applications or fonts
for business or personal use. Whether software piracy is deliberate or not, it is still illegal and
punishable by law.
Piracy comes in many forms. Here are some common piracy methods:

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 Licensed user duplication for unlicensed users

 Illegal Internet distribution
 Illegal use of Adobe® Acrobat® over a network
 Distributing specialized education versions to unauthorized markets
 Distribution of inauthentic Adobe software or fonts
Licensed user duplication for unlicensed users
When someone copies software without buying the appropriate number of licenses, it is copyright
infringement. Each of these activities is a form of software piracy:
 An individual copying software for a friend

 A business underreporting the number of computers using the software
 Including copies of Adobe fonts when sending files
Illegal Internet distribution
Be cautious when ordering software over the Internet. Many resellers with Internet storefronts or
those who sell from auction sites knowingly distribute copies of software illegally. Estimates reveal
that as much as 90% of software sold over Internet auction sites is either bootlegged or gray market.
Some Web sites promise prospects free software downloads. These sites are distributing software
illegally. There is also no guarantee that the software is secure or will work properly when installed.
The only time it's legal to download Adobe software free of charge is when special tryout promotions
are offered. Typically, you'll find these only on Adobe.com. These offers enable the use of the
software only for a limited time.
Distributing specialized education versions to unauthorized markets
Adobe creates special versions of its software to meet the needs of the education market. These
versions are clearly labeled to avoid confusion with other market segments. Duplication of these
specialized versions for distribution to other markets is prohibited. To find out who qualifies for
educational pricing, visit Adobe in Education.
Copyright infringement of software

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The copyright infringement of software (often imprecisely referred to as software piracy) refers to
several practices which involve the unauthorized copying of computer software. Copyright
infringement of this kind is extremely common. Most countries have copyright laws which apply to
software, but the degree of enforcement varies.
Salient features of the Information Technology (Amendment) Act 2008
The Information Technology (Amendment) Act, 2008 has been signed by the President of India on
February 5, 2009. A review of the amendments indicates that there are several provisions relating to
data protection and privacy as well as provisions to curb terrorism using the electronic and digital
medium that have been introduced into the new Act. Some of the
salient features of the Act are as follows:
Aims and Objectives of the Information Technology Act, 2000 The preamble of the Information
Technology Act, 2000 reads An Act to provide legal recognition for transactions carried out by
means of electronic communication, commonly referred to as electronic commerce which involve
the use of alternatives to paper-based methods of communication and storage of information, to
facilitate electronic filing of documents with the Government agencies.
The aims and objectives of the Act make it:

(a) a facilitating Act,
(b) an enabling Act, and
(c) a regulating Act
(a) A Facilitating Act
The Information Technology Act, 2000 is a facilitating Act as it facilitates both e-commerce
and e-governance. Interestingly, the UNCITRAL Model Law of E-commerce on which this
Act is based has made no reference to e-governance. But it was the collective wisdom of the
legislature, which saw the necessity of introducing concepts like e-governance in this Act. In
fact, the entire Chapter III of the Act is devoted to e-governance and egovernance practices.
There are 7 sections in the aforesaid Chapter III of the Act, from section 4 to section 10,
which deal with e-governance issues. These sections form the basic law related to electronic

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governance rights, which have been conferred to the persons and the Government(s) both
Central and State Governments. It is applicable to the whole of India, including the State of
Jammu and Kashmir.
It is important to understand that the Information Technology Act, 2000 is the first enactment
of its kind in India, which grants e-governance rights to the citizens of India.
(b) An Enabling Act
The Information Technology Act, 2000 is an enabling Act as it enables a legal regime of
electronic records and digital signatures. That is, in order to be called legally binding all
electronic records, communications or transactions must meet the fundamental requirements,
one authenticity of the sender to enable the recipient (or relying party) to determine who
really sent the message, two messages integrity, the recipient must be able to determine
whether or not the message received has been modified en route or is incomplete and third,
non-repudiation, the ability to ensure that the sender cannot falsely deny sending the
message, nor falsely deny the contents of the message.
(c) A Regulating Act
The Information Technology Act, 2000 is a regulating Act as it regulates cyber crimes. As
stated above, cyber crime is a collective term encompassing both cyber contraventions and
cyber offences. The Act not only demarcates contraventions from offences, but also provides
a separate redressal mechanism for both.
Features Act
Information Technology Act 2000 addressed the following issues:
 Legal Recognition of Electronic Documents

 Legal Recognition of Digital Signatures
 Offenses and Contraventions
 Justice Dispensation Systems for Cybercrimes
Intellectual Property Rights in Information Technologies

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Copyright
What information technology is protected by copyright?
Copyright is currently a primary source of protection for software programs, user manuals,
databases, websites and other information technology works in Canada, provided that they meet the
requirements of the federal Copyright Act.
To be the subject-matter of copyright, the work must be "original", meaning that it originated from
the author and was not copied (a higher standard of skill and judgment is required for the protection
of databases). Further, for a work to garner copyright protection in Canada it must be fixed. Fixation
is not always clear, especially with respect to information technology.
Who owns the copyright in information technology?
"Intellectual Property," the author of an information technology work is generally considered to be

the first owner of the copyright in it. An exception to this rule is where the author is an employee and
the work is created in the course of his employment, in the absence of an agreement to the contrary,
the first owner of the copyright is the employer not the employee. Canada does not have the U.S.
equivalent concept of a "work made for hire".
Is software a copyright work?
Computer programs are protected under the Copyright Act as literary works. Canadian courts have
recognized that the writing of a computer program is a creative "art form" and therefore computer
programs will typically meet the minimal originality requirement to obtain protection under the
Copyright Act. Updates or enhancements to software are subject to independent copyright protection.
The fact that a computer program is created using well-known programming techniques or contains
unoriginal elements may not be a bar to copyrightability if the program as a whole is original.
UNIT IV GEOGRAPHICAL INDICATIONS

A geographical indication is a sign used on goods that have a specific geographical origin and
possess qualities, a reputation or characteristics that are essentially attributable to that place of origin.
The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights defines "geographical
indications" as indications that identify a good as "originating in the territory of a Member, or a

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region or locality in that territory, where a given quality, reputation or other characteristic of the good
... A geographical indication (GI) is a name or sign used on certain products which corresponds to a
specific geographical location or origin (e.g. a town, region, or country). India, as a member of the
World Trade Organization (WTO), enacted the Geographical Indications of Goods (Registration and
Protection) Act, 1999 has come into force with effect from 15 September 2003. GIs have been
defined under Article 22(1) of the WTO Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS) Agreement as: “Indications which identify a good as originating in the
territory of a member, or a region or a locality in that territory, where a given quality, reputation or
characteristic of the good is essentially attributable to its geographic origin.” The GI tag ensures that
none other than those registered as authorised users (or at least those residing inside the geographic
territory) are allowed to use the popular product name. Darjeeling tea became the first GI tagged
product in India, in 2004-05, since then by September 2010, 184 had been added to the list. Prior to
1999 there was no specific legislation to regulate geographical indication. It was in the year 1999
that India in compliance with its obligation under TRIPS Agreement enacted the Geographical
Indications of Goods (Registration and Protection) Act, 1999. This act seeks to provide for
registration and better protection GIs relating to goods. It excludes unauthorized persons from
misusing GIs. This would protect the interest of producers, manufacturers and thereby consumer
from being deceived by the falsity of geographical origin to economic prosperity of the producer of
such goods and promote goods bearing GIs in export market. Unless a geographical indication is
protected in the country of its origin, there is no obligation under the agreement under Article 22 of
the TRIPS Agreement on for other countries to extend reciprocal protection. It is in this context that
the act was enacted.
Features of Geographical Indication
 It is an indication
 It originates from a definite geographical territory.
 It is used to identify agricultural, natural or manufactured goods
 The manufactured goods should be produced or processed or prepared in that territory.
 It should have a special quality or reputation or other characteristics
Examples of Indian Geographical Indications -
 Solapur Chaddar
 Solapur Terry Towel

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 Darjeeling Tea
 Kanchipuram Silk Saree
 Alphanso Mango
 Nagpur Orange
Importance of Geographical Indications

A. Preserving the Knowledge and Heritage
Every society develops a certain knowledge base over a long period of time Development of such
knowledge base owes its origin to the geographical environment and human interactions and
becomes an important part of their economy and tradition. In a globalize society these are vulnerable
to misuse, hence the process of preserving the knowledge and heritage is important. The process of
manufacturing or only traditional knowledge which has developed over a period of time, throughout
which the locals have put their effort, must be rewarded in the context of contemporary market
economy. Article 37 of International conference on Intellectual property has declared overtly that the
skill and heritage of any local community must be protected from unfair competition and should be
adequately paid. GIs are quite suitable for the protection of traditional knowledge since they are
based upon collective traditions and collective decision making process. GIs protect and reward
traditional knowledge besides promoting their evolution24. GIs emphasizes for a belonged
relationship among human culture, economy and traditional knowledge.
B. Fair Competition
Copying of things is quite easy in current electronic phase. Such copying gives rise to unfair
competition. There are laws at the international level to protect these things. Unfair competition
gives rises to damages. Due to unfair competition courts have recognized four types of damages.
These are loss to existing trade and profit, loss to potential trade, loss of potential trade and damage
to reputation and dilution. Geographical indications are one of the best options for fair competition
among the countries in the national and international level.
C. Promote International Trade

Intellectual property is an integral part of international trade. Since an intelligent and effective use of
knowledge always contributes in the national economic prosperity. At the international level TRIPS
agreement is there to maximize the use of intellectual property for the economic prosperity TRIPS
has safe a mechanism which ensures to stamp out unfair competition and promoting environmental
protection. TRIPS agreement in several provisions has made very clearly about promoting
Geographical indications for the promotion of international trade.

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History of Geographical Indications in India

A geographical indication (GI) is a name or sign used on certain products which corresponds to a
specific geographical location or origin (e.g. a town, region, or country). India, as a member of the
World Trade Organization (WTO), enacted the Geographical Indications of Goods (Registration and
Protection) Act, 1999 has come into force with effect from 15 September 2003. GIs have been
defined under Article 22(1) of the WTO Agreement on Trade-Related Aspects of Intellectual
Property Rights(TRIPS) Agreement as: “Indications which identify a good as originating in the
territory of a member, or a region or a locality in that territory, where a given quality, reputation or
characteristic of the good is essentially attributable to its geographic origin.”
SALIENT FEATURES OF THE GI ACT, 1999
Prior to 1999 there was no specific legislation to regulate geographical indication. It was in the year
1999 that India in compliance with its obligation under TRIPS Agreement enacted the Geographical
Indications of Goods (Registration and Protection) Act, 1999. This act seeks to provide for
registration and better protection GIs relating to goods. It excludes unauthorized persons from
misusing GIs. This would protect the interest of producers, manufacturers and thereby consumer
from being deceived by the falsity of geographical origin to economic prosperity of the producer of
such goods and promote goods bearing GIs in export market. Unless a geographical indication is
protected in the country of its origin, there is no obligation under the agreement under Article 22 of
the TRIPS Agreement on for other countries to extend reciprocal protection. It is in this context that
the act was enacted.
 It confers legal protection to Geographical Indications in India

 Prevents unauthorized use of a Registered Geographical Indication by others
 It provides legal protection to Indian Geographical Indications which in turn boost exports.
 It promotes economic prosperity of producers of goods produced in a geographical territory.
INFRINGEMENT AND ITS REMEDIES
When any of the rights of proprietor or authorized user is violated there would be an infringement of
the rights. A registered GI is infringed by a person who, not being an authorized user thereof, (i) uses
such GI by any means in the designation or presentation of goods that indicates or suggests that such
goods originate in some other geographical area other than the true place of origin of the goods in a

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manner which misleads the public, or (ii) uses any GI in such manner which constitutes an act of
unfair competition including passing off in respect of registered GI, or (iii) uses another GI to the
goods which, although literally true as to the territory, region or locality in which the goods originate,
falsely represent to the public that the goods originate in the region, territory or locality in respect of
which such registered GI relates. The registered proprietor or the authorized users of a registered
geographical indication can initiate an infringement action.
Remedies for infringement of a geographical indication

The remedies available for protection of geographical indications may broadly be classified into two
categories.
(i) civil remedies; and
(ii) criminal remedies.
Civil Remedies
The Act provides for the following civil remedies for infringement of a registered geographical
indication;
(a) Injunction
(b) Damages or account of profits
(c) Delivery up of the infringing labels and indications.
These remedies are inclusive, not exhausting and the court may provide some other remedies in
addition to the aforesaid, such as Anton Piller order.
(a) Injunction
Injunction includes- temporary injunction and permanent injunction. Further, the court may also
order an exparte injunction for-
(i) discovery of documents;
(ii) preserving of infringing goods, documents or other evidence which are related to the subject
matter of the suit; and
(iii) restraining the defendant form disposing of, or dealing with his assets in a manner which may
adversely affect plaintiffs ability to recover damages, costs or other pecuniary remedies which may
be finally awarded to the plaintiff.
(b) Damages or account of profits
The remedy of damages or account of profits is not cumulative but alternative.
(c) Delivery-up of the infringing labels and indications

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It is in the discretion of the court to order the defendant to deliver up infringing labels and
indications for destruction or erasure. The court by taking relevant circumstances into account may
or may not order for such remedy. All the aforesaid remedies are also available for passing off
action.
(ii) Criminal Remedies
Criminal remedies are more effective than civil remedies because the former can be disposed off
quickly.
MISLEADING USE OF GEOGRAPHICAL INDICATIONS

(i) Falsifying and falsely applying geographical indications to goods.
(ii) Selling goods to which false geographical indications is applied.
(iii) Falsely representing a geographical indication as registered.
(iv) Improperly describing a place of business as connected with the geographical indications
registry.
(v) Falsification of entries in the register.
RIGHT TO USE GEOGRAPHICAL INDICATIONS

Registration of a GI gives its owner and the authorised users the exclusive right to use the indications
on the good in which it is registered. Further, registration gives right to institution of suit against
infringement and recovery of damages for such infringement. Infringement can be caused by use of
the GI on such goods which indicates that such goods originate in such place other than its true place
of origin or due to unfair competition. However, in case of non-registered GIs, a case of passing off
can be instituted. Registration acts as a prima facie evidence of validity of the indication and
ownership. The registration cannot be transferred, mortgaged, assigned or licensed, except in case of
inheritance of the mark upon death of an authorised user
• Registration of a Geographical Indication confers the following rights on the registered
proprietor and the authorised users:-
• Right to obtain relief in respect of the infringement of the Geographical Indication.
• Exclusive right to the use of the Geographical Indication in relation to the goods in respect of
which Geographical Indication is registered.
• Two or more authorised users of a registered Geographical Indication shall have co-equal
rights.

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UNIT V INTERNATIONAL TREATIES
Paris Convention for the Protection of Industrial Property
of March 20, 1883,

as revised at Brussels on December 14, 1900,
at Washington on June 2, 1911,
at The Hague on November 6, 1925,
at London on June 2, 1934,
at Lisbon on October 31, 1958,
and at Stockholm on July 14, 1967,
and as amended on September 28, 1979
Paris Convention
The Paris Convention is an international convention for promoting trade among the member
countries, devised to facilitate protection of industrial property simultaneously in the member
countries without any loss in the priority date. All the member countries provide national treatment to
all the applications from the other member countries for protection of industrial property rights.
The Paris Convention applies to the protection of industrial property and includes:
 Patents for 12 months to file international application for registration;

 Utility models - not available in India;
 Industrial designs for 6 months file international application for registration;
 Trademarks, service marks and trade names for 6 months file international application for
registration;
 Indication of source or appellations of origin (this is same as the geographical indications

adopted in TRIPS).
The principal features of the Paris Convention have been listed below:
 National treatment

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 Right of priority
 Independence of patents
 Parallel importation
 Protection against false indications and unfair competition
Meaning of national treatment under the Paris convention
This is a very important concept and is essential for successfully achieving the fundamental aim of
the Paris Convention. The idea is to provide equal treatment to applicants from member countries, in
a given member country and not to differentiate between the nationals of your country and nationals
of the other countries for the purpose of grant and protection of industrial property in your country.
Imagine that a national of country X applies for grant of a patent in India. According to the Paris
Convention, the Indian Patent Office shall apply the same norms and rules to the applicant from X,
as applicable to an Indian applicant, for granting a patent. Similarly, the applicant from X shall have
the same protection after grant and identical legal remedies against any infringement shall be
available to the applicant provided the conditions and formalities imposed upon Indians are complied
with. No requirement as to domicile or establishment in the country where protection is claimed may
be imposed.
Right of priority and its Significance
Industrial property right is granted for a fixed period of time by a country. The date from which the
right is deemed to start is usually the date of filing of complete specification. To obtain rights in other
member countries, the application must be filed on the same day if it is desired to have the rights
started from the same day. However, there are practical difficulties in synchronizing the activities.
For facilitating Simultaneous protection in member countries, the Convention provides that within 12
months of national filing, if patent applications are filed in member countries, the patents, if granted
in member countries, will be effective from the date of national filing. This right is known as the
right of priority.
In case the applicant after a second look at the patent application finds that the patent contains more
than one invention or on his/her own accord wishes to divide the application, he/she can claim the
initial date of priority for subsequent patent applications. The applicant may also, on his/her own
initiative, divide a patent application and preserve as the date of each divisional application the date

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of the initial application and the benefit of the right of priority, if any. Each country of the Union
shall have the right to determine the conditions under which such division shall be authorized.
Priority may not be refused on the ground that certain elements of the invention for which priority is
claimed do not appear among the claims formulated in the application in the country of origin,
provided that the application documents as a whole specifically disclose such elements.
Grant of a patent in one country and its affect on grant or refusal in another country
The patents applied for in the various countries of the Union shall be independent of each other with
regard to nullity and forfeiture and their normal duration. This means that granting a patent in one
country of the Union does not force other countries to grant the patent for the same invention. Also,
the refusal of the patent in one country does not mean that it will be terminated in all the countries.
Importation in relation to working of a patent under the Convention
Importation is considered as working of a patent, provided the patented product is manufactured in a

member country and is imported in other member country, which has also granted a patent on the
same invention to the same applicant. Imagine that a product X has been patented in two member
countries A and B. The product X is then manufactured in country A and imported into country B.
This product X shall enjoy the same patent protection in country B even though it has been
manufactured in country A. This would also be considered as if the patent has been worked in
country B.
Provision for compulsory license in the Paris Convention
Each member country shall have the right to provide for the grant of compulsory licenses to prevent
the abuses resulting from the exclusive rights conferred by the patent. Compulsory licenses for
failure to work or insufficient working of the invention may not be requested before the period of
time of non-working or insufficient working has elapsed. This time limit is four years from the date
of filing of the patent application or three years from the date of the grant. Such licenses will be a
non- exclusive and non-transferable one.
Relationship between the Paris Convention and the TRIPS Agreement

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TRIPS Agreement is an offshoot of a series of negotiations going on around the world since the
inception of the Paris Convention in the year 1883. It has been made mandatory for the member
countries of the TRIPS Agreement to comply with the Article 1 to 12 and Article 19 of the Paris
Convention.
Patent Cooperation Treaty
The Patent Cooperation Treaty (PCT) is an international patent law treaty, concluded in 1970. It
provides a unified procedure for filing patent applications to protect inventions in each of its
contracting states. A patent application filed under the PCT is called an international application, or
PCT application.
A single filing of an international application is made with a Receiving Office (RO) in one language.
It then results in a search performed by an International Searching Authority (ISA), accompanied by
a written opinion regarding the patentability of the invention, which is the subject of the application.
It is optionally followed by a preliminary examination, performed by an International Preliminary
Examining Authority (IPEA). Finally, the relevant national or regional authorities administer matters
related to the examination of application (if provided by national law) and issuance of patent.
A PCT application does not itself result in the grant of a patent, since there is no such thing as an
"international patent", and the grant of patent is a prerogative of each national or regional authority.
In other words, a PCT application, which establishes a filing date in all contracting states, must be
followed up with the step of entering into national or regional phases in order to proceed towards
grant of one or more patents. The PCT procedure essentially leads to a standard national or regional
patent application, which may be granted or rejected according to applicable law, in each jurisdiction
in which a patent is desired.
The contracting states, the states which are parties to the PCT, constitute the International Patent
Cooperation Union.
History
The Washington Diplomatic Conference on the Patent Cooperation Treaty was held in Washington
from May 25 to June 19, 1970. The Patent Cooperation Treaty was signed on the last day of the
conference on June 19, 1970. The Treaty entered into force on January 24, 1978, initially with 18

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contracting states. The first international applications were filed on June 1, 1978. The Treaty was
subsequently amended in 1979, and modified in 1984 and 2001.
Accession
Any contracting state to the Paris Convention for the Protection of Industrial Property can become a
member of the PCT. A majority of the world's countries are signatories to the PCT, including all of
the major industrialised countries (with a few exceptions, including Argentina and Taiwan). As of
June 26, 2011, there were 144 contracting states to the PCT. Qatar became the 143rd contracting
state on May 3, 2011, and Rwanda became the 144th contracting state on May 31, 2011. The PCT
entered into force in Qatar on 3 August 2011, and in Rwanda on 31 August 2011.
Features
 an international treaty in the field of patents
 the international system for the filing of patent applications
 the momentum for improving the international patent system
 a model of international cooperation between countries and intergovernmental organizations
around the world
 an open door into a wealth of scientific and technical information
 The intention of the Contracting States as illustrated by selected keywords from the preamble
to the Treaty:
 to make a contribution to the progress of science and technology
 to perfect the legal protection of inventions
 to simplify and render more economical the obtaining of protection in several countries
 to facilitate and accelerate access by the public to technical information contained in
documents describing new inventions
 to foster and accelerate economic development for developing countries
World Intellectual Property Organization (WIPO Convention) 1967)
The WIPO Convention, the constituent instrument of the World Intellectual Property Organization
(WIPO), was signed at Stockholm on July 14, 1967, entered into force in 1970 and was amended in
1979. WIPO is an intergovernmental organization that became in 1974 one of the specialized
agencies of the United Nations system of organizations.

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The origins of WIPO go back to 1883 and 1886 when the Paris Convention for the Protection of
Industrial Property and the Berne Convention for the Protection of Literary and Artistic Works,
respectively, were concluded. Both Conventions provided for the establishment of an “international
bureau”. The two bureaus were united in 1893 and, in 1970, were replaced by the World Intellectual
Property Organization, by virtue of the WIPO Convention.
WIPO has two main objectives.
 The first is to promote the protection of intellectual property worldwide.

 The second is to ensure administrative cooperation among the intellectual property Unions
established by the treaties that WIPO administers.
In order to attain these objectives, WIPO, in addition to performing the administrative tasks of the
Unions, undertakes a number of activities, including:
(i) normative activities, involving the setting of norms and standards for the protection and
enforcement of intellectual property rights through the conclusion of international treaties;
(ii) program activities, involving legal technical assistance to States in the field of intellectual
property;
(iii) international classification and standardization activities, involving cooperation among industrial
property offices concerning patents, trademarks and industrial design documentation; and
(iv) registration activities, involving services related to international applications for patents for
inventions and for the registration of international marks and industrial designs.
Membership in WIPO is open to any State which is a member of any of the Unions and to any other
State satisfying one of the following conditions:
(i) it is a member of the United Nations, any of the specialized agencies brought into relationship
with the United Nations, or the International Atomic Energy Agency,
(ii) it is a party to the Statute of the Inter-national Court of Justice; or
(iii) it has been invited by the General Assembly of WIPO to become a party to the Convention.

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There are no obligations arising from membership of WIPO concerning other treaties administered
by WIPO. Accession to WIPO is effected by means of the deposit with the Director General of
WIPO of an instrument of Accession to the WIPO Convention
The WIPO Convention establishes three main organs: The WIPO General Assembly, the WIPO
Conference and the WIPO Coordination Committee. The WIPO General Assembly is composed of
the member States of WIPO which are also members of any of the Unions. Its main functions are,
inter alia, the appointment of the Director General upon nomination by the Coordination Committee,
review and approval of the reports of the Director General and the reports and activities of the
Coordination Committee, adoption of the biennial budget common to the Unions, and adoption of the
financial regulations of the Organization.
The WIPO Conference is composed of parties to the WIPO Convention. It is, inter alia, the
competent body for adopting amendments to the Convention, for all matters relating to legal-
technical assistance and establishes the biennial program of such assistance. It is also competent to
discuss matters of general interest in the fields of intellectual property and it may adopt
recommendations relating to such matters.
The WIPO Coordination Committee is composed of members elected from among the members of
the Executive Committee of the Paris Union and the Executive Committee of the Berne Union. Its
main functions are to give advice to the organs of the Unions, the General Assembly, the Conference,
and the Director General, on all administrative and financial matters of interest to these bodies. It
also prepares the draft agenda of the General Assembly and the draft agenda and draft program and
budget of the Conference. The Coordination Committee also, when appropriate, nominates a
candidate for the post of Director General for appointment by the General Assembly.
WIPO ORGANISATION
The Secretariat of the Organization is called the International Bureau. The executive head of the
International Bureau is the Director General who is appointed by the WIPO General Assembly and is
assisted by two or more Deputy Directors General.
The headquarters of the Organization are in Geneva, Switzerland. The Organization has Liaison
Offices in Brussels, Belgium, Singapore, at the United Nations in New York and in Washington D.C.,
United States of America.

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The Organization benefits from the privileges and immunities granted to international organizations
and their officials to facilitate the fulfillment of its objectives and exercise of its functions and have
concluded a headquarters agreement with the Swiss Confederation to that effect.
Objectives, Main Features, Advantages of the Madrid System
Introduction
1. The system of international registration of marks is governed by two treaties: the Madrid
Agreement Concerning the International Registration of Marks, which dates from 1981, and the
Protocol Relating to the Madrid Agreement, which was adopted in 1989, entered into force on
December 1, 1995, and came into operation on April 1, 1996. Common Regulations under the
Agreement and Protocol also came into force on that date. The system is administered by the
International Bureau of WIPO, which maintains the International Register and publishes the WIPO
Gazette of International Marks.
2. Any State which is a party to the Paris Convention for the Protection of Industrial Property may
become a party to the Agreement or the Protocol or both. In addition, an intergovernmental
organization may become a party to the Protocol (but not the Agreement) where the following
conditions are fulfilled: at least one of the Member States of the organization is a party to the Paris
Convention and the organization maintains a regional office for the purposes of registering marks
with effect in the territory of the organization.
3. States party to the Agreement and/or the Protocol and organizations party to the Protocol are
referred to collectively as Contracting Parties. A list of the Contracting Parties is given on a separate
sheet. Together, they constitute the Madrid Union, which is a Special Union under Article 19 of the
Paris Convention.
4. Every member of the Madrid Union (list of members available in PDF and HTML formats) is a
member of its Assembly. Among the most important tasks of the Assembly are the adoption of the
program and budget of the Union and the adoption and modification of the implementing
regulations, including the fixing of fees connected with the use of the Madrid system.
Objectives

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 The objectives of the system are two-fold. Firstly, it facilitates the obtaining of protection for
marks (trademarks and service marks). The registration of a mark in the International
Register produces, in the Contracting Parties designated by the applicant. Further Contracting
Parties may be designated subsequently. Secondly, since an international registration is
equivalent to a bundle of national registrations, the subsequent management of that protection
is made much easier. There is only one registration to renew, and changes such as a change in
ownership or in the name or address of the holder, or a limitation of the list of goods and
services, can be recorded in the International Register through a single simple procedural
step. On the other hand, if it is desired to transfer the registration for only some of the
designated Contracting Parties, or for only some of the goods or services, or to limit the list
of goods and services with respect to only some of the designated Contracting Parties, the
system is flexible enough to accommodate this.
 An international registration is effective for 10 years. It may be renewed for further periods of
10 years on payment of the prescribed fees. The International Bureau sends a reminder to the
holder and to his representative (if any) six months before renewal is due.
 The international registration may be renewed in respect of all the designated Contracting
Parties or in respect of only some of them. It may not however be renewed in respect of only
some of the goods and services recorded in the International Register; if therefore the holder
wishes, at the time of renewal, to remove some of the goods and services from the
international registration, he must separately request cancellation in respect of those goods
and services.
Advantages of the System
 International registration has several advantages for the owner of the mark. After registering
the mark, or filing an application for registration, with the Office of origin, he has only to file
one application, in one language, and pay one fee instead of filing separately in the trademark
Offices of the various Contracting Parties in different languages and paying a separate fee in
each Office. Moreover, the holder does not have to wait for the Office of each Contracting
Party in which protection is sought to take a positive decision to register the mark; if no
refusal is notified by an Office within the applicable time limit, the mark is protected in the
Contracting Party concerned. In some cases, the holder does not even have to wait the expiry
of this time limit in order to know that the mark is protected in a Contracting Party, since he

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may, before the expiry of the time limit, receive a statement of grant of protection from the
Office of that Contracting Party.
 A further important advantage is that changes subsequent to registration, such as a change in
the name or address of the holder, or a change (total or partial) in ownership or a limitation of
the list of goods and services may be recorded with effect for several designated Contracting
Parties through a single simple procedural step and the payment of a single fee. Moreover,
there is only one expiry date and only one registration to renew.
 International registration is also to the advantage of Trademark Offices. They do not need to
examine for compliance with formal requirements, or classify the goods or services, or
publish the marks. Moreover, they are compensated for the work that they perform; the
individual fees collected by the International Bureau are transferred to the Contracting Parties
in respect of which they have been paid, while the complementary and supplementary fees
are distributed annually among the Contracting Parties not receiving individual fees, in
proportion of the number of designations made of each of them.
What is the meaning of e-commerce?
A type of business model, or segment of a larger business model, that enables a firm or individual to
conduct business over an electronic network, typically the internet.
Electronic commerce operates in all four of the major market segments: business to business,
business to consumer, consumer to consumer and consumer to business.
Ecommerce functionality is to allow for the online purchase of goods or services by credit cards or
Pay Pal. Buying products over the Internet.
Ecommerce is known as electronic commerce and it deals with the buying and selling of products
and services over the electronic systems or internet. Ecommerce is expanding very rapidly and
people like to shop over internet. In fact Ecommerce is providing convenience and facility to the
people to shop online. People can save their time if they buy products online and they can get more
options of the products. This also saves the transportation cost and search cost. Even the traditional
retailers are also going for online selling and they are changing their business models from brick and
mortar to online businesses. Therefore, online transactions including buying and selling is known as
Ecommerce.

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Advantages and Disadvantages of Ecommerce
The invention of faster internet connectivity and powerful online tools has resulted in a new
commerce arena – Ecommerce. Ecommerce offered many advantages to companies and customers
but it also caused many problems.
Advantages of Ecommerce
 Faster buying/selling procedure, as well as easy to find products.

 Buying/selling 24/7.
 More reach to customers, there is no theoretical geographic limitations.
 Low operational costs and better quality of services.
 No need of physical company set-ups.
 Easy to start and manage a business.
 Customers can easily select products from different providers without moving around
physically.
Disadvantages of Ecommerce
 Any one, good or bad, can easily start a business. And there are many bad sites which eat up
customers’ money.
 There is no guarantee of product quality.
 Mechanical failures can cause unpredictable effects on the total processes.
 As there is minimum chance of direct customer to company interactions, customer loyalty is

always on a check.
 There are many hackers who look for opportunities, and thus an ecommerce site, service,
payment gateways, all are always prone to attack.
E-Contracts & Its Legality
Introduction

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Today with the recent advancement in the areas of computer technology, telecommunications
technology, software and information technology have resulted in changing the standard of living of
people in an unimaginable way. The communication is no more restricted due to the constraints of
geography and time. Information is transmitted and received widely and more rapidly than ever
before. And this is where the electronic commerce offers the flexibility to business environment in
terms of place, time, space, distance, and payment. This e-commerce is associated with the buying
and selling of information, products and services via computer networks. It is a means of transacting
business electronically, usually, over the Internet. It is the tool that leads to ‘enterprise integration’.
With the growth of e-commerce, there is a rapid advancement in the use of e-contracts. But
deployment of electronic contracts poses a lot of challenges at three levels, namely conceptual,
logical and implementation. In our article we have discussed the scope, nature and legality and
various other issues related to e-contracts.
Definition: E-contract is a contract modeled, specified, executed and deployed by a software system.
E-contracts are conceptually very similar to traditional (paper based) commercial contracts. Vendors
present their products, prices and terms to prospective buyers. Buyers consider their options,
negotiate prices and terms (where possible), place orders and make payments. Then, the vendors
deliver the purchased products. Nevertheless, because of the ways in which it differs from traditional
commerce, electronic commerce raises some new and interesting technical and legal challenges. For
recognition of e-contracts following questions are needed to be considered:
Recognition E-contracts
Offer: The law already recognizes contracts formed using facsimile, telex and other similar
technology. An agreement between parties is legally valid if it satisfies the requirements of the law
regarding its formation, i.e. that the parties intended to create a contract primarily. This intention is
evidenced by their compliance with 3 classical cornerstones i.e. offer, acceptance and consideration.
One of the early steps in the formation of a contract lies in arriving at an agreement between the
contracting parties by means of an offer and acceptance. Advertisement on website may or may not
constitute an offer as offer and invitation to treat are two distinct concepts. Being an offer to
unspecified person, it is probably an invitation to treat, unless a contrary intention is clearly
expressed. The test is of intention whether by supplying the information, the person intends to be
legally bound or not. When consumers respond through an e-mail or by filling in an online form,
built into the web page, they make an Offer. The seller can accept this offer either by express
confirmation or by conduct.

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Acceptance: Unequivocal unconditional communication of acceptance is required to be made in

terms of the offer, to create a valid e-contract. The critical issue is when acceptance takes effect, to
determine where and when the contract comes into existence. The general receipt rule is that
acceptance is effective when received. For contracting no conclusive rule is settled. The applicable
rule of communication depends upon reasonable certainty of the message being received. When
parties connect directly, without a server, they will be aware of failure or partial receipt of a message.
Such party realizing the fault must request re-transmission, as acceptance is only effective when
received. When there is a common server, the actual point of receipt of the acceptance is crucial in
deciding the jurisdiction in which the e-contract is concluded. If the server is trusted, the postal rule
may apply, if however, the server is not trusted or there is uncertainty concerning the e-mail’s route,
it is best not to apply the postal rule. When arrival at the server is presumed insufficient, the ‘receipt
at the mail box’ rule is preferred.
Consideration and Performance: Contracts result only when one promise is made in exchange for
something in return. This something in return is called ‘consideration’. The present rules of
consideration apply to e-contracts. There is concern among consumers regarding Transitional
Security over the Internet. The e-directive on Distance Selling tries to generate confidence by
minimizing abuse by purchasers and suppliers. It specifies---
Liability and Damages: A party that commits breach of an agreement may face various types of
liability under contract law. Due to the nature of the systems and the networks that business employ
to conduct e-commerce, parties may find themselves liable for contracts which technically originated
with them but, due to programming error, employee mistake or deliberate misconduct were executed,
released without the actual intent or authority of the party. Sound policies dictate that parties
receiving messages be able to rely on the legal expressions of the authority from the sender’s
computer and this legally be able to attribute these messages to the sender. In addition to employing
information security mechanisms and other controls, techniques for limiting exposure to liability
include: -
Digital Signatures: Section 2(p) of The Information Technology Act, 2000 defines digital signatures
as authentication of any electronic record by a subscriber by means of an electronic method or
procedure. A digital signature functions for electronic documents like a handwritten signature does
for printed documents. The signature is an unforgeable piece of data that asserts that a named person
wrote or otherwise agreed to the document to which the signature is attached. A digital signature
actually provides a greater degree of security than a handwritten signature. The recipient of a

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digitally signed message can verify both that the message originated from the person whose signature
is attached and that the message has not been altered either intentionally or accidentally since it was
signed. Furthermore, secure digital signatures cannot be repudiated; the signer of a document cannot
later disown it by claiming the signature was forged. In other words, digital signatures enable
"authentication" of digital messages, assuring the recipient of a digital message of both the identity
of the sender and the integrity of the message. The fundamental drawback of online contracts is that
if there is no alternate means of identifying a person on the other side than digital signatures or a
public key, it is possible to misrepresent one’s identity and try to pass of as somebody else.
Conclusion:
E-contracts are well suited to facilitate the re-engineering of business processes occurring at many
firms involving a composite of technologies, processes, and business strategies that aids the instant
exchange of information. The e-contracts have their own merits and demerits. On the one hand they
reduce costs, saves time, fasten customer response and improve service quality by reducing paper
work, thus increasing automation. With this, E-commerce is expected to improve the productivity
and competitiveness of participating businesses by providing unprecedented access to an on-line
global market place with millions of customers and thousands of products and services. On the other
hand, since in electronic contract, the proposal focuses not on humans who make decisions on
specific transactions, but on how risk should be structured in an automated environment. Therefore
the object is to create default rules for attributing a message to a party so as to avoid any fraud and
discrepancy in the contract.

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Intellectual Property Rights FULL Notes

law account (M. S. Ramaiah College of Law )

Studocu is not sponsored or endorsed by any college or university

INTELLECTUAL PROPERTY RIGHTS

History of Copyright Law in India

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History of Patent Law in India

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History of Trademark Law in India

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IPR is been classified into two categories

The importance of IPR can be identified with following points

Intellectual Property Creates and Supports High-Paying Jobs

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Intellectual Property Drives Economic Growth and Competitiveness

Intellectual property protection benefits consumers and society

Intellectual property protection promotes innovation

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Intellectual property protection helps small and medium enterprises

Intellectual Property Rights Encourage Innovation and Reward Entrepreneurs

IPR makes your business strong

2.1.1 Meaning of intellectual property rights

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A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a

History of Indian Patent System

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 In 1957, the Government of India appointed Justice N. Rajagopala Ayyangar Committee to

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MEMBERSHIP OF INTERNATIONAL TREATIES

Valid requirements for patent

Novelty (Newness) Requirement:

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Patents in India: Laws , Procedures, Registering and Challenging Patents

WHO CAN APPLY

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Application may be made jointly by two or more corporations as assignees.

WHAT IS NOT PATENTABLE

(8) A method of agriculture or horticulture;

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(9) Inventions relating to atomic energy.

In the case of inventions relating to substances prepared or produced by chemical processes

DOCUMENTS REQUIRED FOR FILING AN APPLICATION

 Application form in triplicate.

 Drawing in triplicate (if necessary).

 Abstract of the invention (in triplicate).

 Priority document (if priority date is claimed).

 Declaration of inventorship where provisional specification is followed by complete

 Power of attorney (if filed through Patent Agent).

 Fee in cash/by local cheque/by demand draft.

APPROPRIATE OFFICE FOR FILING AN APPLICATION

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EXAMINATION & PUBLICATION

GRANT OR SEALING OF PATENT

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COMPULSORY LICENSE AND LICENSE OF RIGHT

Kinds of specifications of patent