Copyrights, Patents,

Trademarks as a part
of Intellectual
Property Rights with
reference to some
clauses of TRIPs.
 History and Evolution of IPR
The earliest use of the term intellectual property appears
to have occurred in the ruling of Massachusetts Circuit
Court in October 1845 in the patent case Davoll et
al.V.Brown

History of IPR can be divided into three eras

Privileges (15th to 18th centuries)
National Patent laws ( 1790 to 1883)
Internationalisation (1883 to present)
YEAR HISTORY OF INDIAN PATENT SYSTEM

1856 The act of 1856 on Protection of Inventions based on The British Patent law of
1856. Certain exclusive privileges granted to inventors of new manufcturers for a
period of 14 years

1859 The act modified as Act XV ; Patent monopolies called exclusive privileges
(making, selling and using inventions and authorizing others to do so for a
period of 14 years)

1872 The Patent and Designs Protection Act

1883 The Protection Of Inventions Act

1888 Consolidated as the Inventions & Designs Act

1911 The Indian Patents and design act

1999 The Patents Act (Act 39 of 1970) came into force 0n 20th April 1972

2002 The Patents (Amendment) Act 2002 came into force from 20th May 2003

2005 The Patents (Amendment) Act 2005 effective from 1st January 2005
 History of Indian Patent Law
Patent law in India starts from 1911 when the Indian
Patents and Designs Act, 1911 was enacted

The present Patents Act, 1970 came into force in the year
1972

The Patents Act, 1970 was again amended by the Patents

(Amendment) Act, 2005
 Patent
Patent is an exclusive right
which is given to a person
for a product or process
which he/she has invented
and has a unique
functional use

Objective of Patent Law

Patents Act, 1970 The objective is to
encourage new scientific
research and industrial
progress with the grant of
exclusive privilege for a
limited period of time.
After the expiry of the
period of monopoly, the
patent can be passed to
the public domain
 A method which does not
add any significant value

A method that is against

the law of India or morality
or injurious to public
health
Non Patentable A method for agriculture
Inventions or horticulture

A method for medical,

surgical or other treatment
of human being or animals

Invention related to Atomic

Energy
Procedure for Obtaining Patent

Source: http://www.inventorbasics.com/Patent%20Process.htm
 Types of Patents
Product and process patent
Patent of addition
Combination patent
Selection Patent
Convention patent( in lines with National
treatment- TRIPS agreement)
 History of TRIPS

Need for an uniform international treaty due to the conflicts and

variances in national IPR agreements and due to countries like Russia and
China sceptical about the Berne Convention
TRIPS was brought in effect from 1 Jan 1995 at the end of the Uruguay
Round of the GATT mainly backed by developed nations
In 2001, developing countries were worried about stringent rules laid out
by developed countries and this led to the Doha Convention

Implementation in Developing and Least Developed countries

The transition period given to developing countries has expired in 2005
However, least developed countries were given extended time till 2013 to
implement TRIPS and it was extended until 1 Jan 2016 for pharmaceutical
patents which is now further extended 2033
Most Favored Term used to describe the code of
Nation equal treatment given by WTO
member nation to other member
nations

Nation is also expected to not

discriminate in the between
domestic and foreign products

Emilio Augustn Maffezini Vs

Kingdom of Spain
 National Can be considered as an extension
Treatment of MFN

Its the principle of giving others

the same treatment as ones own
nationals

Japan Alcohol Case (SHOCHU)

 Disputes can arrive
when

One of the parties in

contract is not
Dispute Settlement competent enough

The other party is

taking undue
advantage of benefits
Modifications in
Indian Patent Act,
1970 due to TRIPS
 An application needs to be
examined by the controller if it is
an invention under section 3 and 4,
only then a controller can proceed
to grant and EMR
Section 24(1)(b) authorises the
grant of an EMR for a period of 5
years for any invention made in
Exclusive Marketing India on or after January 1, 1995
Medicines and drugs, Section
Rights Replaced with 24B(2) says that if they are being
Product Patent used before filing the claim for a
patent then these substances
wont be regarded as EMR
infringement, i.e. they can still be
claimed for EMR provided prior use
of substance excluded use by third
party

Novartis Vs Union of India

 Chapter XVI of the IPA provides
for compulsory licensing - as a
necessary safeguard for
protecting the public interest
Three years after a patent is
sealed, any interested party
can allege that the invention is
not reasonably available to the
public and can request the grant
Compulsory of a compulsory license
The compulsory license can only
Licensing be given to Least Developed
Countries who cannot afford or
manufacture pharmaceutical
drugs if they have under
paragraph 6 of Doha
Declarations given a petition to
the Council of WTO

Natco Vs Bayer
 RIGHT TO IMPORT AND
PARALLEL IMPORT
Samsung Electronics Company
Ltd. v. Kapil Wadhwa & Ors

PRE AND POST GRANT

OPPOSTION
Pre-grant opposition
Post-grant opposition
Merck vs. Glenmark over
Sitagliptin
 Under the regime of the Indian Patent Act
the patentee or licence holder was not
given a right to import their product in
India so as to encourage local
manufacturing
But to comply with TRIPS Agreement now
the amendment introduced in Section
107A (b) suggests that imports can be
done in India by patent holder or by the
person who holds the licence and it wont
be regarded as infringement
Right to Import and This favours the licensee to reproduce the
product and sell it in some other
Parallel Import international market at lower cost (parallel
import), hence Section 48 vests the right
to import only in the hands of the patent
holder

Samsung Electronics Company Ltd.

Vs Kapil Wadhwa & Ors
 Pre grant opposition of Patent, under
this provision any person or any third
party or Government may challenge
the application of grant of patent and
Pre and Post inform to the controller of Patents for
opposition
Grant Post grant opposition may be filed at
any time after the grant of patent but
Opposition before the expiry of a period of one
year from the date of publication of
grant of the patent

Merck Vs Glenmark over Sitagliptin

 Copyright is a right given by the
law to creators of literary,
dramatic, musical, and artistic
works and producers of films
and sound recordings
It includes rights of
reproduction, communication
Copyright: Definition to the public, adaptation, and
and Objective translation of the work
Copyright ensures certain
minimum safeguard to protect
and reward creativity
This protection cultivates a
conducive atmoshpere to
create more and motivates
others to create
Year Historical Events

1686 Germany: Saxon Order

1710 England: Queen Annes Statue Engravers Act

1790 America: Copyright Law

1791 , 93 France: Right of Reproduction and Performing Right

1886 Berne Convention for the Protection of Literary and Artistic Works

1893 BIRPI: United International Bureaux for the Protection of Intellectual Property

1957 Indian Copyright Law

1967 WIPO: World Intellectual Property Organization

1995 WTO & TRIPS

1983, 84, Amendments in Indian Copyright Law

91, 94, 99
2012
 The TRIPS Agreement establishes
international minimum standards for
the protection of intellectual property
The provisions on copyright relating to
creators of literary and artistic works are
based upon the Berne Convention
TRIPS and which are contained in TRIPS Article 9
through 14 contained in Section I of Part
Copyright II
Article 9-13 of TRIPS Agreement
specifies the minimum standards for the
protection of copyright
Article 14 relates to the rights of
performers, producers of phonograms
and broadcasting organizations
 WIPO Copyright Treaty (WCT) and WIPO
Performances and Phonograms Treaty
(WPPT), together known as Internet
Treaties
WCT deals with the protection for the
WCT & WPPT authors of literary and artistic works
WPPT extends copyright like protection
to performers and producers of
phonograms
The Copyright (Amendment) Act, 2012
introduced amendments to harmonise
the Copyright Act, 1957 with WCT and
WPPT
 India and Copyright

The Copyright Act, 1957 dealt with the subject matter of

copyright to include original literary, dramatic, musical, and
artistic works; cinematograph films and sound recordings
India ratified the Berne Convention except for Articles 1 to
21 and the Appendix
However, Article 9.1 of the TRIPS establishes that the WTO
members must comply with the above exception which
were adopted and ratified by India
 Amendments made in Section
14 address some of the digital
era challenges like storing in
evolving mediums
Rights in Artistic Works, Over the Internet transient
Cinematograph Films, copies get created at multiple
and Sound Recordings locations, including over the
transmitting network and in
Case: Indian Performing the user's computer
Rights Society Vs Copyright has been extended
Eastern India Motion to the right to storing of
Pictures Ltd. works
Treats transient or incidental
storage as fair use
Harbour safe provisions to
service providers
 The Act dealing with
importation of infringing copies
has been substituted with a
new section providing detailed
Protecting Against broader measures to
Internet Piracy strengthen enforcement of
rights by making provision to
Case: Eros International I. control import of infringing
Media Ltd. Vs Bharat copies,
Sanchar Nigam Ltd.
II. disposal of infringing copies
and
III. presumption of authorship
under civil remedies
 Section 65A has been introduced
to provide for protection of
technological measures used by
a copyright owner to protect his
rights on the work
Protection of The rationale is to prevent the
Technological Measures possibility of high rate of
infringement in the digital media
Case: Sony Computer Technological protection
Entertaintment Vs measures - TPMs
Harmeet Singh Sub-section (1) makes such
circumvention a criminal offence
punishable with imprisonment
Sub-section (2) permits
circumvention for the specified
uses
 Section 65B has been
introduced to provide
protection of rights
management information
The rationale of the protection
Digital Rights emanates from the practice in
Management the digital world to manage the
Information rights through online contracts
governing the terms and
Case: Autodesk Inc. Vs conditions of use
Vernor
The amendment prevents
removal of the rights
management information
without authority and
distributing any work, fixed
performance, or phonogram
 Trademark means a mark
capable of being represented
graphically and which is
capable of distinguishing goods
and services

Includes shapes of goods, their

packaging and combination of
colors
Trademark
Includes a device, brand,
heading, label, ticket, name,
signature, word, letter, and
numeral, shape of goods,
packaging or combination of
colors or any such other
combinations
 Types of Trademarks:

Product trademarks

Types of Trademarks Service trademarks

Certification trademarks

Collective trademarks
IGTC PGPBA 2016-2018
 A trademark performs the
following functions:

It identifies the product and

its origin

Objectives of Guarantees the quality

Trademark
Advertises the product

Creates an image for the

product
Designation of Trademark:

for an unregistered trademark, used to promote or brand

goods.

for an unregistered service mark.

- for a registered trademark

 The inclusion on Service Marks

Provision for the registration of

Collective Marks

Prohibition of registration
Trademarks act in reproductions of or imitations
of well known marks
compliance with TRIPS
Provisions for filing a single
application for registration

Increasing the term of

registration of trade from 7 to
10 years
 Providing a grace period of six
months for payment of renewal
fees

Vesting the final authority in the

Registrar for disposing of
applications for registration of
Certification Trade Marks

Harmonizing penal provisions of

the Trade Marks law with
Copyright Law, and the provision
for establishment of an Appellate
Board.

Apple Corps vs. Apple Inc.

Who has the right to
trademark the word apple,
the Beatles or Apple Inc.?
Google v/s
Oracle Case Study
 APIs
Packages of computing instructions that help programs
smoothly interact with each other.
Oracle, Java and the 37 APIs
Dispute
Copyright and Patent claims on Googles Android
Infringement of overall structure, sequence and
organization of 37 Java APIs
No precedents of APIs being copyrightable
Judges assumption and discretion
Three phases
Copyrights, Patents and Damage claims (if any)
Judges question to the Jury
Did Google infringe on the overall structure, sequence,
and organization of the 37 Java APIs in the case? If so,
was it fair use?
 Arguments by Oracle
Java APIs is expression of an idea copyrightable
Java is a free language but applications need license to be
Java compatible

Arguments by Google
APIs just an idea concept of communication with software
programs not copyrightable
Not depriving Oracle any revenue by integrating 37 APIs
with Android Oracle makes no money from Java
Also, Android Operating System is free
 Judgment and Proceedings
May 2012 APIs not subject to copyright by US District court
Basis for so much of the innovation and collaboration
May 2014 Federal Circuit reversed the decision to Java APIs are
copyrightable
Leaving open that Google might have used it fairly
October 2014 Google filed petition to US Supreme Court
Denied
May 2016 Case returned to District Court for fair use issue
Jury unanimously agreed that the use was fair
May 2017 Oracle appeals for new trial
Accusing jury for wrong decision and repeatedly
undermining Oracles case
 Conclusion of the case
Narrowly, its just about Java and Android

As a precedent of using APIs, affects Global Economy

The right of fair use - to encourage and allow the development

of new ideas that build on earlier ones

Counterbalance to the copyright policy to protect creative works

functional and creative

Software developers rely on open and free programming

languages to build innovative consumer products
 Conclusion
India has to continue its effort to prevent
issues of developmental importance to be
sidelined, until this is done WTO cannot
have an effect upon sovereignty of India

India has already marked red line in

sectors such as agriculture by making it
clear that there is no scope of
compromise on its positions while West
has relentlessly tried to project India as
rigid and uncompromising negotiator
 However, these attributes are better suited to U.S. and other developed
countries as they have been backtracking on various commitments under
Doha Development Round and desperately trying to bring in new issues
including Singapore issues and these issues are harmful to interests of
majority of countries and vast majority of population, now majority of
countries stand with India after failure of every meet.

India needs to upscale its diplomatic capability as in recent Nairobi meet, it

was seen that while developed countries spoke in unison, there was no
such unity in developing countries

However there needs to be larger combined effort in bringing on the

common platform of developing nations in all continents. U.S. has been
already doing it for several years and thats partly why it remains most
assertive and subtle power in any negotiation
 Intellectual Property Has the
Shelf Life of a Banana

Bill Gates

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