YAKSHIT GOEL AD-06

IPR INDIA

Intellectual Property
Intellectual property(IP) is a term referring to a number of distinct types of the creation of mind for which a set of exclusive rights are recognized under the corresponding fields of law. Under IP , 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.

Intellectual Property
Objectives: To encourage innovation, creators will not have sufficient
incentive to invent unless they are legally entitled to capture the full social value of their inventions.

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

Intellectual Property
Intellectual Property commonly covers the following: Patent Trademarks Industrial Design Copyright Geographical Indication of Goods Integrated Circuit Protection of Undisclosed Information such as Trade Secrets

BRIEF SUMMARY
Patent is an statutory monopoly exclusive right granted by a country for an invention for a disclosure of the invention, for using his invention himself/ or by authorized person(s) Preventing others from making ,using/ or selling his invention. Protection is granted for a limited period (20 yrs) To encourage inventions/ develop new technologies Copyright subsists in original literary, dramatic, musical and artistic works and cinematographic films and sound recordings by virtue of their creation and fixation in a tangible medium of expression. Copyright subsists in a work by virtue of creation, hence its not mandatory to register .However, registering a copyright provides evidence that copyright subsists in the work & creator is the owner of the work.

Benefits of Patents Registration Exclusive Right- allows to use and exploit the invention for 20 years from date of filling. Strong Market position-prevent other from commercially using patented invention thereby reducing competition. Higher returns on investment Opportunity to license or sell the invention. Positive image of enterprise

COPYRIGHT

Copyright is the body of law that grants authors, artists & other creators protection for their literary and artistic creations, which are referred to as Works.
Copyright protection (other than photographs) is for life of author plus sixty years after his death.

PATENT

INDUSTRIAL DESIGN

TRADEMARK

A Trademark serves to identify and distinguish the source of the goods of one enterprise from those of anothers. It may be a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colors or any combination thereof, audible sounds, fragrances etc. TM do not protect the design or ideas but prevents others from deceiving customers. Helps consumer identify and purchase a product or service because its nature & quality, indicated by its unique trademark, meets their needs. Registration of its trademark is prima facie proof of its ownership giving statutory right to the proprietor. Trademark rights may be held in perpetuity. The initial term of registration is for 10 years; thereafter it may be renewed from time to time.

An ornamental or aesthetic aspects or outward appearance of an article. Design rights protect the features or shape, configuration, pattern or ornament or composition or lines or colour or combination thereof , two or three dimensional by any industrial process or means, weather manual, mechanical or chemical, separate or combined, which is in the finished article appeal to and are judged solely by the eye. It does not protect any technical features/ functional aspects. Designs can be protected through registration, the objective is to protect new/ original designs so created to be applied or applicable to particular article to be manufactured by industrial process or means. The initial term of protection is for 10 years from the date of filing, which can be extended for an additional term of five years. Altogether, the term of design protection is fifteen years from the date of filing.

Organization Structure IP Offices

Ministry of Industry & Commerce

Office of the Controller General of Patents, Designs And Trademarks

Designs wing (Kolkatta)

Patent office ( Kolkatta, Delhi, Mumbai, Chennai)

Trade Marks Registry ( Kolkatta, Delhi, Mumbai, Ahmedabad Chennai)

Geographical Indications Registry ( Chennai)

Patent Information Service ( Nagpur)

CASE STUDY

BAJAJ AUTO LTD.

V/S

TVS MOTOR COMPANY LTD.

INTRODUCTION
The plaintiffs in the suit (C.S. No. 1111 of 2007), i.e., Bajaj Auto Ltd., along with the state of Maharashtra (represented by Mr. S. Ravikumar) have alleged the defendants(T.V.S. Motor Company Ltd.) of infringement of the patents of the plaintiffs, which concerns the invention of the technology of improved internal combustion engine (Patent No. 195904)
They seek the remedy of permanent injunction under section 108 of the Patents Act, 1970 for prohibiting the defendants from using the technology or invention described in the patents of the plaintiffs; and preventing them from marketing, selling offering for sale or exporting 2/3 wheelers (including the proposed 125cc TVS FLAME motorcycle) that contain the disputed internal combustion engine or product that infringe the patent

FACTS OF THE CASE

1. Bajajs patent:

According to the Bajaj Auto Limited (hereinafter the appellant), it was granted Indian Patent No. 195904 in respect of a patent application titled An Improved Internal combustion engine working on four stroke principle with a priority date of 16th July2002. The patent was granted on 7th July, 2005. 1.) Features of the invention are: a. Small displacement engine as reflected by a cylinder bore 2.) diameter between 45 mm and 70 mm. b. Combustion of lean air fuel mixtures; c. Using a pair of spark plugs to ignite the air fuel mixture at a 3.) predetermined instant 2. What was the Patent all about? In the patent, the invention by the applicants called DTS-i Technology" was relating to the use of twin spark plugs for efficient combustion of lean air fuel mixture in small bore ranging from 45 mm to 70 mm internal combustion engine working on 4 stroke principle

FACTS OF THE CASE

3. How was the invention patentable? According to the applicants, their invention was patentable because it qualified the tests of Novelty, non-obviousness and industrial application. Following were the grounds on which the applicants corroborated their claim unique technology of using two spark plugs for efficient burning of lean air fuel mixture in a small bore engine in the size between 45 mm and 70 mm In the first eight months of that financial year, the applicant manufactured and marketed 814,393 two wheelers with DTS-i Technology out of a total of 1,501,241 two wheelers sold. Therefore, the said DTS Technology stated to have been invented by the applicant has accounted to 54.25% share of Bajaj two wheelers Applicants have spent considerable amount in marketing and advertising and received appreciation throughout the world as recipients of various world awards and the product is of economic advantage to the country

FACTS OF THE CASE

4. TVS launches FLAME- the Bone of Contention: The Respondents, M/s. TVS Motor Company Limited announced to launch motor bikes of 125-CC on 14th December 2007 under the trade mark 'FLAME'. The motorcycle was powered with a lean burn internal combustion engine of bore size 54.5 mm with a twin spark plug configuration, which according to the Bajaj Auto Ltd., infringes its patent. Therefore, before the launch of motor bikes, the applicants have brought the suit before the court to protect their intellectual property.
5. TVS files suit under section 105 and 106 of the Patents Act, 1970: In October, 2007, the respondent filed the suit (C.S. No. 979 of 2007) before the Madras High Court under Sections 105 and 106 of the Patents Act, 1970 alleging that the statement made by the applicant on 1st and 3rd September, 2007 constituted a groundless threat.

FACTS OF THE CASE

6. Application for revocation of the applicants patent: The applicant also came to know that only 7 days before the launch of the proposed 125-CC motorcycle, the respondent filed an application for revocation of applicant's patent No. 195904 before Indian Patents Appellate Board (IPAB) under Section 64 of the Patents Act, 1970 7. Launch of the disputed bike: As opposed to the expectations of the applicants, the respondents later in the month of December of 2007, launched the bikes without making any change into that

PLEADING BY THE PARTIES

1. Pleadings by the appellants Following were the pleadings made by the applicants in their affidavit: The patent granted to the applicant is valid and subsisting. The respondents cannot save its skin by claiming that it is using 3 valves in the engine since the number of valves is not an essential feature of the applicant's invention. The specifications of the respondents TVS Flame have the similarities with the patenting technology of the applicant.

The damage caused by the infringing act, will have telling effect on the market share loss, relative position in the industry, impact on competitiveness, impact on industry rankings etc. of the applicant, which cannot be measured in terms of money.

PLEADING BY THE PARTIES

2. Pleadings by the respondents Following were pleaded by the respondents in their counter-affidavit: Applicant has unjustly threatened and defamed the respondent to secure illicit market advantage for its product over that of the respondent. There are inherent and explicit contradictions in the stand of the applicant as it is seen in the various documents relied upon by the applicant for protection of its Patent No.195904 By filing an application for revocation of patent given to the applicant, the respondent has questioned the very validity of Patent No. 195984 on several grounds The US Honda Patent No. 4534322 dated 13th July, 1985 has been in the public knowledge for over 20 years. Arrangement of installation of two spark plugs in the respondents cylinder is exactly as per the arrangement in the said Honda Patent, which expired on 12th August 2005

PLEADING BY THE PARTIES

3. Reply affidavit by the applicants
Even in the year of 2005 and till now the Honda has not launched motorbikes with small bore engines having twin spark plugs for combustion of lean burn air fuel mixtures and Honda Patent 322 is neither in respect of small bore engine nor it teaches twin plugs in efficient combustion of lean mixture and the applicant has not concealed the Honda Patent 4534522. In TVS FLAME the third valve has no role to play in driving cycle condition and it is only ornamental (but respondents reiterated that all the 3 valves in the respondent engine are open and functioning at all times) The basis of the invention of the applicant is that it was designed based on chemically correct ratio of air fuel for complete reaction of oxygen and fuel with the aim of concentration on fuel economy and such invention has never been in use throughout the world before the invention of the applicant

PLEADING BY THE PARTIES

The respondent did not oppose the patent either before or after grant of the patent within a reasonable time. But they have filed a revocation petition on 24th August 2007, before IPAB seeking to revoke the applicant's patent and within six days thereafter, announced the introduction of various products including 125-CCmotorcycle called 'FLAME', which shows the ulterior motive of the respondent The applicant had marketed the patented product even in the year 2003 and since then, the invention has been proved to be world worthy. The applicant has also made a prima facie case about the validity of the patent and the applicant cannot be made to suffer the complexity of the trial and wait for a long period

PLEADING BY THE PARTIES

4. Further pleadings of the Respondents. Following were pleaded by the Respondents in response of the further pleadings by the applicants: There is remarkable variation between the provisional specification, complete specification and amended specification made by the applicant in respect of its alleged invention.

While deciding about the infringement of patent, the patentee property should be construed and it must be compared with the defendant's product
Even assuming that the applicant has a patent, there is no infringement for the reason that the claim of the applicant is two valve engines and the claim of the respondent is three valve engines and two spark plugs were already used in Honda and therefore it cannot be said to be the invention of the applicant As far as contention of the applicant that the respondent has never objected to the specification made by the applicant is concerned, under Section 25 of the Patents Act, the question of either pre-grant, post-grant or revocation will not arise for revocation of the patent of the applicant and it can be made only when the respondent is affected

DECISION OF THE COURT

After considering the pleadings and various facets of the case, the learned single judge held that the concepts of prima facie case, balance of convenience and inadequacy of damages was in favour of the applicant. The grant of injunction was in favour of the applicant The interim order was challenged before the Division Bench of the Madras High Court, where the appeal was allowed. The appeal finally went before the honourable Supreme Court (Markandey Katjuand Ashok Kumar Ganguly JJ.), through the Special Leave Petition. Quashing the order granting the interim injunction to applicants, the Court held the Respondents entitled to sell its product in the market, but maintaining an accurate record of all India and export sales. The Court appointed a receiver for the same

CONCLUSION ON BASES OF CASE STUDY

Advantages of Patents A patent gives the inventor the right to stop others from manufacturing, copying, selling or importing the patented goods without permission of the patent holder. The patent holder has exclusive commercial rights to use the invention. The patent holder can utilize the invention for his/her own purpose. The patent holder can license the patent to others for us. Licensing provides revenue to business by collecting royalties from the users. The patent holder can sell the patent any price they believe to be suitable. The patent provides protection for a predetermined period (20 years) which keeps your competitors at bay. Patents are partially responsible for advancements in medical science, biotechnology, drug chemistry, computers etc. Patents reward inventors with the aforementioned advantages and hence, creates bigger and better discoveries. With these benefits come certain drawbacks. Patents provide plenty of merit but are provided alongside certain conditions. These conditions can sometimes prove to be disadvantages. Disadvantages of Patents

A patent is an exclusive right provided to a patent holder in exchange for the public disclosure of their invention. A full description with claims is published and can generally be viewed by anyone with the internet including your competitors. After the exclusive patent period (20 years) has passed, other individuals or companies can freely use the invention without any permission from, or paying royalties to the inventor. Applying for patent can be a very lengthy, time consuming process. Cost of patent filing may be surpass the actual financial gains. If a patent is to be filed further in different countries, then again the cost increases. After the patent grant, annual fees should be paid to the respective patent offices, otherwise the patent period may lapse. You must be prepared to defend your patent if need be. Taking action against infringement is costly.