IPR and CL Notes

IPR and CL (19EC804)
Intellectual Property Rights and Cyber Law-19EC804

Module 1
What is Intellectual Property?
• Intellectual property (IP) refers to creations of the mind, such as inventions;
literary and artistic works; designs; and symbols, names and images used
in commerce.
• IP is protected in law by, for example, patents, copyright and trademarks,
which enable people to earn recognition or financial benefit from what they
invent or create.
• By striking the right balance between the interests of innovators and the
wider public interest, the goal of the IP system is to promote an atmosphere
where innovation and creativity can flourish.
Why is intellectual property being so important?
• Intellectual property protection is critical to encourage the development of
innovation. Without protection of ideas, businesses and individuals would
not reap the full benefits of their inventions and would focus less on
research and development.
• Set your business apart from competitors.
• Be sold or licensed, providing an important revenue stream.
• Offer customers something new and different.
Why to promote intellectual property rights?
• IP protection encourages publication, distribution, and disclosure of the
creation to the public, rather than keeping it a secret.
• Promotion and protection of intellectual Property promote economic
development, generates new jobs and industries, and improves the quality
of life.
Protect:
• Inventors, designers, developers and authors can protect the ideas they
have developed, for instance by means of copyright or patents.
Dr. Santhosh Kumar K B, Dept. of E and C Engg, MCE, Hassan 1

• The aim is to prevent others from wrongly profiting from their creations
or inventions. It also gives them an opportunity to earn back the money
they invested in developing a product.
How do intellectual property rights help individuals?
• You can use your intellectual property to create a business on your own
• pitch it to investors and start a business or even get it licensed
• enabling you to sell it to various businesses in exchange for a steady stream
of income.
• An IPR can be converted into an asset and can help turn your idea into a
huge money-maker.
• Helps to carry out further research.
Types of Intellectual Property Rights (IPR)
• Patent
• Copyright
• Trademark
• Geographical Indication
• Industrial Design
• Trade Secrets
Patent
A patent is an exclusive right granted for an invention, which is a product or a
process that provides, in general, a new way of doing something, or offers a new
technical solution to a problem. Wright Brothers' patent for the airplane, Thomas
Edison's patent for the light bulb, and Alexander Graham Bell's patent for the
telephone.
Copyright
The right which a person acquires in a work, which is the result of his intellectual
labour is called his copyright.
The exclusive right to do or authorise other(s) to do certain acts in relation to
• Literary, dramatic or musical works for example, books, film scripts, plays and
music compositions

• Artistic work (paintings, ceramics, carvings)

• Cinematograph film
• Sound recording etc.
Trademarks
• The term trademark refers to a recognizable sign, phrase, word, symbol,
images logos or combination of any of these, that denotes a specific product
and legally differentiates it from all other products of its kind.
• A trademark exclusively identifies a product as belonging to a specific
company and recognizes the company's ownership of the brand.
Geographical Indications
• G.I. is a kind of sign used for goods that have a specific geographical origin
and possess qualities or a reputation that are due to that particular place of
origin.
• Basmati rice and Darjeeling tea are examples of G.I. from India.
• Champagne, Scotch Whiskey, Parmesan Cheese and Swiss Watches.
• Mysore Silk, Dharwad Pedha, Mysore Agarbathi, Mysore Sandalwood Oil,
Mysore Sandal soap.
Industrial Design
• Industrial design is a process of design applied to physical products that are
to be manufactured by mass production. It is the creative act of determining
and defining a product's form and features, which takes place in advance of
the manufacture or production of the product. Examples of an industrial
design could be packaging, jewellery, textile material, electronic goods, etc.
Trade Secrets
• Trade secrets are intellectual property (IP) rights on confidential information
which may be sold or licensed.
• In general, to qualify as a trade secret, the information must be:
commercially valuable because it is secret, be known only to a limited group
of persons, and be subject to reasonable steps taken by the rightful holder of
the information to keep it secret, including the use of confidentiality
agreements for business partners and employees.

• The unauthorized acquisition, use or disclosure of such secret information in

a manner contrary to honest commercial practices by others is regarded as
an unfair practice and a violation of the trade secret protection.
• Coca Cola, Maggi are some food products whose flavour itself identifies the
brand. If the confidential flavouring agents are known to the public,
everyone will know how to produce the taste without paying these brands,
or even run their own business as a competitor.
1.1 Concept of property

• In general, Ownership is permanent and inheritable.
• “One's own thing" in relation to other individuals or groups
• Owner has the right to dispense with the property
• Properties are of two types - tangible property and intangible property
• One that is physically present and the other which is not in any physical
form
• Rights over Property:
o Possession/Acquire
o Ownership
o Application
o Enjoyment
o Control
o Alienation/Sale
o Usage
o Right to exclude Non-owners
o Power of transfer
• Rights may relate to tangible or intangible things.
• Rights over tangible things like land and chattels – Corporeal Property
• Rights over intangible things like ideas, works of art and literature, etc
– Incorporeal Property Ex: Property – Patents, Copyrights and
Trademarks etc.
• In general, Property refers to the interest over property, which is
protected by law.
• Property law always has tried to incorporate some element of
distributive justice.
• Conflict between the fundamental right to property (Indian
Constitution – Act. 31)

1.2 Constitutional aspects of IP

• The constitution plays an important part in helping courts and
legislature and justify balance between conflicting rights.
• Intellectual property legislation takes place in India after TRIPs (Trade
Related Intellectual Property Rights) agreement to protect IPs.
• There is no specific provision in the Indian Constitution directly
dealing with Intellectual property rights.
• The Constitution does not ensure direct protection to Intellectual
property rights whether as fundamental right or Constitutional right.
• There is no such intellectual property clause in Indian Constitution,
there is no constitutional restriction on the power to make laws on
intellectual property.
• USA Constitution specifically protects the Intellectual Property
[Acticle1(8)] by specifically providing “To promote and progress of
science and useful arts, by securing for limited times to authors and
inventors the exclusive right to their respective writings and
discoveries”.
• At the time of enactment of Indian constitution, Individual had property
rights under Act. 19(1)(f) and Act. 31(1)
• o Act. 19(1)(f) – A citizen had the freedom to acquire, hold and dispose
of property, which were subject to the reasonable restrictions laid down
in Act.
• o Act. 31(1) – protected the citizens from the deprivation of property
without authority of law .
• o Act. 31(2) – Property could be possessed or acquired for public
purpose only by law, and only on payment of compensation. The law
had fix the amount of compensation or had to lay down the guidelines
to assess the compensation to be paid. Such law made by the state had
to obtain the assent of the President to get validity .
1.3 Evolution of the patent system in India
• The first step of the patent in India was Act VI of 1856- The main
objective was to encourage inventions of new and useful manufactures
and to induce inventors to reveal their inventions and make available for
public.
• In 1856 the first Indian patent statute was passed to the
recommendations of the Committee appointed to revise and update the
laws to serve the society’s changing needs

• The Act was repealed by Act IX of 1857 as it had been enacted without
the approval of the British Crown.
• Fresh legislation was enacted for granting ‘exclusive privileges’ was
introduced in 1859 as Act XV of 1859-extension of priority period from
6 months to 12 months.
• This act was modified in 1859 – provides privileges to make, use and
sell the inventions for a period of 14 years
• The Act was then amended in 1872, 1883 and 1888.
• This act was repealed by the Inventions & Designs act in 1888 again
repealed by the Indian Patents and Design acts in 1911
• A patent enquiry committee was appointed by the Govt of India under
Dr Tek Chand in 1948 to review the working of patent laws in India
• The Ayyangar Committee headed by Rajagopala Iyengar - One of the
recommendations was the allowance of process patents in relation to
inventions related to drugs, food and chemicals.
• This committee submitted its report on September 1959
• Based on the committee report, a Patents bill was introduced in Lok
Sabha in 1965 with additional changes
• The bill was studied by joint committee and presented in Lok Sabha in
1966, lapsed due to dissolution of Lok sabha.
• The bill was introduced and passed in 1970 and came into force in 1972.
• India as a member of Trade-Related Aspects of Intellectual Property
Rights (TRIPS) formed in 1995, Indian Patents Acts 1972 was amended
in 1999, 2002 & 2005.
1.4 Evolution of the patent system in US
• The history of United States patent law started even before the U.S.
Constitution was adopted, with some state-specific patent laws. The
history spans over more than three centuries.
• On July 31, 1790, they first opened their doors and issued the first patent
to Samuel Hopkins of Vermont for a process of making potash, an
ingredient used in fertilization.
• The foundation of American Patent law is embodied in Article. 1,
Section 8, Clause 8 of US Constitution. “The Congress shall have Power
to promote the Progress of Science and useful Arts, by securing for
limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries”

• In 1952, the basic structure of the modern Patent Law was laid out with
the Patent Act of 1952.
• In this amendment, an inventor had to describe not only his invention
but also the basis for its infringement.
• Furthermore, an invention needed to be new and useful, as well as "non-
obvious" to be granted a patent.
• The United States Patent and Trademark Office (USPTO) is the federal
agency responsible for granting U.S. patents and registering
trademarks.
1.5 Evolution of the patent system in UK

• The first English patent was granted in 1449 to John of Utynam for a
glass-making process was granted a 20 years of period.
• This marked the beginning of a great tradition under the Tudors of the
granting of 'Letters Patent' (meaning 'open letter') by the English Crown.
• The Crown granted monopolies for trades and manufacturers, including
patents for invention.
• Elizabeth I granted about 50 patents from 1561 to 1590, allowing the
recipients to exercise monopolies in the sale and manufacture of goods
such as soap, leather, glass, salt, sailcloth, iron and paper.
• To enrich their technology by providing certain privileges to foreign
inventors to promote development and growth of Industry in England
• However, under the reign of Elizabeth I and her successor James I, the
power of granting monopolies became increasingly abused. Monopolies
were granted for inventions and trades that were not novel,
• In 1602, in the famous case of monopolies, a monopoly was granted to
a merchant exclusively to import, manufacture and sell playing card.
• In 1624 under Section 6 of the Statute, Parliament rendered illegal all
monopolies except those for a limited term of 14 years or under, granted
to true inventors.
• In the 200 years following the Statute of Monopolies, the patent system
was progressed with lawyers and judges in courts and not with
government legislation.
• Law officers of the Crown established that the conditions of grant meant
a patentee was required to provide a written description of the invention
to be patented and the manner in which it was to be performed – and
thus the need for a patent specification was introduced.

• The 1718 machine gun patent by James Puckle was one of the first to be
required to provide a specification.
• The complicated patent system of the mid-19th century required the
patentee to visit seven different offices and obtain the King's signature
twice in order to obtain a patent, plus the compulsion of paying
expensive fees at each stage of the process.
• The Patents, Designs, and Trade Marks Act of 1883 brought into being
the office of Comptroller General
• The Patents Act of 1902 marked an important milestone in the
development of the modern-day patent system.
• This Act introduced an investigation into the novelty of an invention
prior to grant for all UK specifications published within 50 years of the
application date.
• Patent Office recruitment of an additional 190 examiners to assist the
existing 70 examiners the Patents Act of 1977
• The current legislation is the Patents Act of 1977. The Act was designed
to accommodate modern technology and allow the adaptation to future
technological changes such as advances in the pharmaceutical industry.
• During the 1980s, supra-national patent issuing authorities were
developed such as the European Patent Office (EPO) and the World
Intellectual Property Office (WIPO).
• These authorities allow for the simultaneous filing of patent applications
in several countries from a single application.
1.6 Basis for protection
• Inventors, designers, developers and authors can protect the ideas they
have developed.
• The aim is to prevent others from wrongly profiting from their creations
or inventions.
• It also gives them an opportunity to earn back the money they invested
in developing a product.
• In other words, patent protection means that the invention cannot be
commercially made, used, distributed, imported or sold by others
without the patent owner's consent.
• Keep competitor out of your new market
• Gain revenues by licensing
• Open a market
1.7 Origin and meaning of the term Patent

• A patent is a type of intellectual property that gives its owner the legal
right to exclude others from making, using, or selling an invention for a
limited period of time in exchange for publishing an enabling disclosure
of the invention.
• A right to exclude others from: making, using, offering for sale, selling
or importing the patented invention
• For 20 years from date of filing
• Granted : right to exclude others from making, using, offering for sale,
selling or importing the invention.
1.7.1 Three types of patents

• Utility patents : granted to anyone who invents or discovers any new and
useful process, machine, article of manufacture or any new and useful
improvement thereof,
• Design patents : granted to anyone who invents a new, original, and
ornamental design for an article of manufacture
• Plant patents : granted to anyone who invents or discovers and new
variety of plant.
1.7.2 What Can Be Patented?
• Machine or Apparatus or tools
• Process or Method
• Article of Manufacture
• New plant species
• Composition of Matter
o Chemical Compounds
o Physical Mixtures
• Improvements of Any of the Above
1.8 Objective of a patent law

• To encourage inventions
• To develop scientific thinking
• To introduce new techniques or methods
• To encourage industries for fast and rapid development
• While keeping the existing inventions active, to encourage further
inventions.
1.9 Principles underlying the patent law in India
• Firstly, the invention must be novel, meaning thereby that the Invention
must not be in existence.

• Secondly, the Invention must be non- obvious, i.e. the Invention must be
a significant improvement to the previous one; mere change in
technology will not give the right of the patent to the inventor.
• Thirdly, the invention must be useful in a bonafide manner, meaning
thereby that the Invention must not be solely used in any illegal work
and is useful to the world in a bonafide manner.
1.10 The legislative provisions regulating patents
• The Patents Act 1970- amended in 1999, 2002, 2005
• The Patent Rules 1972-amended in 2003, 2005, 2006 (last amended in
the year 2019).
• The Patents under the Act are granted by the Controller to the Inventor(s)
• Period increased to 20 years.
• To get a patent, technical information about the invention must be
disclosed to the public in a patent application.
• The Patent Law recognizes the exclusive right of a Patentee to gain
commercial advantage out of his invention
• Administered by the Controller General of Patents, Designs & Trade
Marks under the control and supervision of the Ministry of Commerce
& Industry, Department of Industrial Policy & Promotion, Government
of India, Udyog Bhavan, New Delhi.
• The Patent Office has its headquarters in Calcutta and has branches in
New Delhi, Chennai and Mumbai.
• The office of the Controller General of Patents, Designs & Trade Marks
(CGPDTM) is based in Mumbai generally known as the Indian Patent
Office
• Nagpur hosts the office of the Patent Information System and also the
Rajiv Gandhi National Institute of Intellectual Property Management
• India is member of WIPO.
• Also member of WTO
• Criteria for securing a Patent - The main criteria for securing a Patent is
that the invention which is to be protected:
❖ Should be novel
❖ Should have inventive step (otherwise referred to as non-obvious)
and,
❖ Should have utility

1.11 Non – patentable inventions

• Use of invention is contrary to public order or morality or which causes
serious danger to human, animal or plant life or health or to the
environment, such invention is not patentable.
• Inventions that are against the natural laws that are any machine giving
100% efficiency, or any machine giving output without an input cannot
be considered as obvious and cannot be patented.
• Patent Act (of India):non-patentable as mentioned in Section 3 and
Section 4 of the Act.
1. Inventions that are frivolous and contrary to natural laws.
2. Inventions which go against public morality
3. Inventions that are a mere discovery of something that already
exists in nature.
4. The mere discovery of a form already existing in nature does not
lead to enhancement of efficacy.
5. Mere admixing of mixtures leading in the aggregation of
properties are non patentable. 6. Mere aggregation or duplication of
devices working in a known way is not an invention. 7. Horticulture
or agricultural method is non-patentable.
8. Medicinal, curative, prophylactic, diagnostic, therapeutic for
treating diseases in human and animals are non-patentable.
9. Essential biological processes for the production or propagation
of animals and plants is not an invention.
10. Simple mathematical or business or computer programs are not
an invention.
11. Aesthetic creation is not an invention.
12. Mental act, rule or method is not an invention.
13. Presentation of information is non-patentable.
14. The topography of integrated circuits is non-patentable
15. Traditional Knowledge is not an invention.
16. Atomic-Energy inventions are non -patentable.

UNIT – 2
Procedure for obtaining Patent
It has following steps:
 Submission of applications
 Publication and examination of applications
 Opposition to grant of patent to the applicant
 Grant and sealing of patent
Submission of applications:
1. Conditions of Section 6 – 11 has to be satisfied

Section 6 – Who is eligible?
Section 7 – Application type or form of application – Internal
Section 8 – Information and undertaking of foreign applications
Section 9 – contents of provisional specification
Section 10 – contents of complete specification
Section 6 – Who is eligible?
 True and first inventor

One who convert idea to work
 Assignee of the person claiming true and first inventor
 Legal representatives of deceased person
- First – to – apply system
Invention made by an employee:
 Invention is belong to employee or employer is based on their contract

 If employee is specifically employed for research and development then, invention
belongs to employer
Section 7 –form of application
 One application for one invention

 Form 2 as per patents rules 2003
 7(1A) – Internal patents
 7(1B) – Date filing
 7(2) – Assignment – right to apply for patent
 7(3) – Declaration from the applicant as true and first inventor
 7(4) – Application accompanied by provisional or complete specification
Dept., of ECE
Procedure for Registration of Patent:
File application in the patent office
Provisional / complete specification should be filed
Acceptance of specification
Publication of application
Request for examination of application
Report of examiner
Approval Objections Division of applications
Amendment of objections
Patent is granted
Special provision for foreign applicants: section (8)
 A statement setting out detailed particulars of such application

 An undertaking, time to time written communication with controller
 Patents rules 2003
The application to file provisional and complete specification:
section 9 :
 application along with provisional specification
Dept., of ECE
 Complete specification has to be submit within 12 months from the date of filing
application
Section 10:
 Lists the contents of complete specification
What is specification?
A technical document describing the invention
Provisional – initial description of an invention
Complete – full and sufficient detail of an invention
Publication and examination of the applications - section 11:
 Patents act – 2005

 Section 11A – no application for patents shall be open to the public for a period of 18
months from the date of filing.
 Applications are not published after expiry date due to
o Secrecy
o Abandoned
o Withdrawn
 The publication of every application includes:
o Particulars of the date of applicant
o Number of application
o Name and address of the applicant
o An abstract
 Section 11B – the applicant must request for examination of the application for patent
within 36 months from the date of filing otherwise the application will be treated as
withdrawn
 When request for examination:
o Whether applications are in accordance with the rules and regulations
o Any lawful ground of objection
o Result of investigation
o Any other matter
 Examiners has to submit the report within one month or 3 months from the date of
reference of the application -----------------------
Communication to the Applicant:
 If any objections raised by the examiners

 Patent office communicated to the applicant
 Applicant has to submit explanation/amendments within 15 months it can be extended
up to 18 months by request
Dept., of ECE
 If the rectification for objections are not satisfied, then Controller giving an
opportunity of hearing
Powers of the Controller of Patents:
 Under section 14 , Controller has the right to communicate list of objections raised by
the examiners to the applicant
 Controller has the right to refuse the application if it is not in order
 Under section 16 , Controller has the power to verify the claims in two application are
different if the applicant had submitted two applications
 Under section 17, Controller has the right to post - dated the application for a
maximum period of 6 months by request etc.
Opposition Proceedings to Grant of Patent:
 Where an application for a patent has been published but patent has been granted, any
person may, in writing, represent by way of opposition to the controller against the
grant of patent on the grounds:
1. The applicant had wrongfully obtained the complete invention or a part thereof
from a person under or through whom he claims. – two or many were involved in
invention one may applied then other or his/her assignee/legal representative in
case of dead, can oppose the application
2. Prior publication in any Indian specification/other documents or elsewhere
3. The invention has been the subject-matter of a prior claim in an application which
is prior in time than the applicants claim
4. The invention as claimed by the applicant in his complete specification was
publicly known or publicly used in India before the applicants claim
5. The invention is obvious and does not involve any inventive step
6. The invention is not patentable or its patenting is prohibiting under patent act
7. The complete specification does not sufficiently and clearly describe the invention
8. In case of foreign applicant, the failure to disclose information
9. In case of convention application, the application was not made within 12 months
from the date of first application
10. In case the complete specification does not disclose or wrongly mentions the
source or geographical origin or biological material used for the invention
11. In case the invention so far as claimed in any claim of the complete specification
is anticipated having regard to the knowledge, oral or otherwise, available within
any local or indigenous community in India or elsewhere.
Grant of Patents:
 If an application does not have any objections/ contraventions/ approved then patent is
granted
 A patent can be granted for one invention only
Dept., of ECE
Date of Patent:
 The patent is effective from the date of filing of complete specification
Extent and Effect of Patent:
 Throughout India
Term of the Patent:
 20 years from the date of filing of the application( Complete specification)
Joint Inventors:
 Joint inventions
 Where the application for patent is made by two or more joint applicants
 Substitution of one of the joint applicants will not be allowed, except with the consent
of the other joint applicants
 A co-owner of a patent cannot assign his rights without the consent of the other co-
owners
 On the death of a joint applicant before the patent is granted, the controller may on a
request made by the survivors and with the consent of the legal representative of the
deceased, direct the application to proceed in the name of the survivors alone.
Compulsory Licence:
 Patent can be cut or short by the grant of compulsory licence or licence of right to any
person to work the invention when the patentee fails to work the invention in public
interest.
Compulsory license will protect the interest of the society:
 Refusal to deal
 Non-working and inadequate supply
 Public interest
 Anti-competitive practices
 Governmental use
 Facilitate the use of dependent patents
 Compulsory licenses for medicines
 Licenses of right
Across the globe the compulsory license on Intellectual Property Rights (IPRs) is granted on
almost similar grounds like –
 Charging unreasonably exorbitant prices of an essential facility or commodity, or
Dept., of ECE
 Market demand not sufficiently met, or
 Where substantial public interest is affected by the way IPR holder is exercising its
right.
 Abuse of IPR leading to exclusion of competitors in an industry.
Provisional and Complete specification
Specification:
 The Description of the patent
Contents and form of specification:
1. The specification begins with Title
2. The full description along with implementation method
3. Specification must end with claim or claims and relate one invention only
4. Specification must be accompanied by abstract
5. In case of international application designating in India, the title, description,
drawings, abstract and claims are present
6. Declaration from the applicant
7. A complete specification may include claims in respect of developments of, or
additions to, the invention which was described in a provisional specification,
being developments or additions in which the applicant would be entitled to make
a separate application for a patent
Nature of the patent specification:
 Specification is a technical and legal document
Kinds of Specification:
1. Provisional specification
2. Complete specification
Provisional specification:
 While an inventor is in the process of finalising his invention, he may file a

specification
 Contains general description of the invention
 May/may not contains claim
Need to file a Provisional specification:
 To fix the priority date of the patent
Provisional Specification to be followed by Complete Specification:
 A complete specification shall be filed within 12 months from the date of filing of the
provisional specification
Dept., of ECE
 When a complete specification does not follow a provisional specification within the
maximum period of 15 months, the patent application is deemed to have been
abandoned
Complete specification:
 Full description of the invention containing all the claims over which the applicant
seeks monopoly right
The contents of a complete specification are:
1. The specification begins with Title

2. The full description along with implementation method
3. Specification must end with claim or claims and relate one invention only
4. Specification must be accompanied by abstract
5. In case of international application designating in India, the title, description,
drawings, abstract and claims are present
6. Declaration from the applicant
7. A complete specification may include claims in respect of developments of, or
additions to, the invention which was described in a provisional specification,
being developments or additions in which the applicant would be entitled to make
a separate application for a patent
Priority Date of a Claim:
 The date of filing of the provisional specification provided the claims contained
therein are fairly based on the description of the invention as given in the provisional
specification
The interpretation of specification and its importance:
 It builds the boundaries around the monopoly right

 The claims must include all possible equivalent variations of the invention to guard
against infringement
Claims:
1. Main claim- invention is in the broadest possible terms

2. Subordinate claim – additional feature of the invention
3. Omnibus claim – which relates to any arrangement substantially as described and
as shown in the drawings
 Omnibus claim protects the applicant from infringement of his invention by creation
of equivalent alternatives
The principles of the construction of specification:
1. The complete specification must be read as a whole document of invention
Dept., of ECE
2. The claim itself marks the legal limits of the monopoly right. If an applicant fails to
claim something, he cannot claim that later
3. The language of the claim must be clear and un-ambiguous
4. The meaning of a specification is addressed to a person skilled in the art
5. The subjective opinion of the patentee regarding the invention are immaterial
6. The court of competent jurisdiction is the authority to interpret the specification
7. If the other party relies on documents other than the complete specification to plead
invalidity of the patent, such a document would be inadmissible.
8. The meaning of the claim is to be the same whether for the purpose of infringement or
challenge to its validity.
Whether a specification can be amended once it has been filed:
1. Amendment before acceptance

2. Amendment after acceptance
3. Amendment after the sealing of patent
Amendment before acceptance:
 If the application is not in order as per the law, then controller may ask for the
amendment:
1. If the amendment is based on the matter submitted earlier then the priority date is
date of filing
2. If the amendment is new on the matter submitted earlier then the priority date is
considered as date of amendment
Amendment after acceptance:
 A party may oppose any of the claims of the applicant, then controller may direct the
applicant to amend the specification
Amendment after the sealing of patent:
 Before the grant of patent, a person other than patentee, can apply for revocation of
the patent before High court. The court may order for the amendment of specification
instead of revocation
Conditions for Amendment:
1. Disclaimer – statement by the applicant denying a claim

2. Correction – correcting an obvious mistake in the specification
3. Explanation – better explains not change its meaning
Who is to allow the Amendment?
 Controller – before grant patent

 High Court – Revocation of patent
 High Court – After granting a patent
Dept., of ECE
Rights conferred on a Patentee
Rights conferred on a patentee under the act are:-
1. To exploit the patent

2. To licence the patent to another
3. To assign the patent to another
4. To surrender the patent
5. To sue for the infringement of the patent
Exceptions and limitations
The act provides certain limitations on the exercise of rights are
1. Government use of patents

2. Compulsory licences and licences of rights
3. Use of inventions for defence purposes
4. Revocation for non-working of patents
5. Limitation on restored patents
Transfer of Patents
Patent is a transferable property. It can be transferred from the original patentee to any
other person by assignment or by operation of law
Forms of Transfer of Patent Rights:
1. Assignment
2. Licence
3. Transmission of patent by operation of law
Assignment:
 Means the transfer by a party all of its rights or interest in the property
 In case of intangible property like patent, the transfer is made through an agreement to
this effect
The difference between assignment and licence:
 The licence merely confers a personal privilege to do some particular act(s) which the
licence can perform.
 There is no transfer of interest in licence
 Assignment means transfer of interest in the patent: whole or in part of the patent
rights
Assignee:
 The person in whose favour a right has been assigned is the Assignee and the person
who assigns the right is the Assignor
Dept., of ECE
 In case an assignment has been made in favour of a person who has since died, the
term assignee would denote the legal representative that is the person who in law
represents the estate of the deceased (recently dead) person. Where assignment is
made in favour of two or more persons, they become owners of such interest in the
patent
Kinds of Assignment:
1. Legal Assignment
2. Equitable Assignment
3. Mortgage
Legal Assignment
 Assignment through an agreement and duly registered as legal assignment

 Legal assignee has the right to have his name entered in the Register of patents in
Controllers office as proprietor of the patent and he can excise all the rights
Equitable Assignment
 Any document such as letter but not being an agreement, which is duly registered
with the controller in which patentee agrees to give another person certain defined
right in the patent with immediate effect
 Assignee cannot have his name entered in the Register of patents in Controllers office
as proprietor
 He can have a notice of his interest entered in the register
 He can convert the Equitable Assignment to Legal Assignment by getting a written
agreement to this effect and duly registered
Mortgage
 Document transferring the patent rights either fully or partially to the mortgagee with
a view to secure the payment of a specified sum of money.
 It can re-transferred to the patentee on refund of money to the mortgagee
 Mortgagee can get his name entered in the register as a mortgagee
Conditions to create a valid assignment
1. Valid document containing all the terms and conditions governing the rights and
obligations between the parties
2. It is duly registered under the provisions of Indian Patents Act.
Licence
A patentee can transfer a right by a licence agreement permitting a licensee to make, use or
exercise the invention.
Kinds of Licence:
Dept., of ECE
1. Voluntary Licence
- Written authority granted by the owner to another person
- Terms and conditions are settle between both parties
- Controller/Govt., has no role
2. Statutory Licence
- Example „Compulsory licences‟
- Controller and central Govt., play an important role
- Circumstances and terms and conditions do not depends upon the will
of the parties
3. Exclusive / Limited Licence
- Depending upon the degree and extent of rights conferred on the
licensee, a licence may be exclusive or limited
- An exclusive licence confers all exclusive rights on the licensee
excluding all other persons
- A limited licence imposes certain limitations on the right of the
licensee. The limitations may relate to persons, time, place of
manufacture, use or sale.
4. Express / Implied licence
- An express licence is the one in which the permission to use the patent
is given in express terms
- In an implied licence, the permission is not given in express terms in
writing but it is implied from the circumstances eg., where a person
buy a patented article he my use/ resell it
Rights conferred on a licensee
 Make, use or exercise the patented inventions

 Based on the valid conditions or limitations licensee will have the right to initiate
proceedings against infringement of rights
Transmission of patent by operation of law
 When a patentee dies, his interest in the patent passes to his legal representative
 A patent can also be acquired by the Govt., under the Act when reasonable
requirements of public have not been met
Registration of assignment/Licence is essential
 Validity
 Sue for the infringement
Certain restrictive conditions to be avoided
 Patentees have the rights to impose certain restrictions on licensees

 The Patentees cannot impose restrictions on licensees which are against public
interest as per section 140 of act.
Dept., of ECE
When a restrictive condition can be imposed
• A patentee who has licenced a wholesale or retailer to sell the patented article may prohibit them
from selling his competitors goods.
• He can also insist that the spare parts required for repairing the patented article leased or licensed
should be purchased from him only.
Construction of claims
• Claims are considered to be the “Heart” of the patent document. Each claim should be clear and in a
single sentence. It should be concise, precise, and accurately expressed in legal terms defining the
scope of the invention
• In a good drafting, it begins with the broad claims and develops towards claims that are narrower in
scope. It should frame to protect either a product or process or apparatus or all.
• It should start with preamble, “I or We claim”. It should start from fresh page after full description.
• Claim construction is the process in which courts interpret the meaning and scope of a patent's claims.
• Since the claims “define the invention to which the patentee is entitled the right to exclude,”
• Construing the claims can be a critical step in determining the outcome of almost all patent litigations.
• Structure of claims include
• Main claim- invention is in the broadest possible terms
• Subordinate claim – additional feature of the invention
• Omnibus claim – (Picture claim / drawing claim)
• Claim usually consists of three parts
❖ Introductory phase
❖ Body of the claim and
❖ Link that joins the two segments
Example,
I claim:
1) A smart blind stick which consists of a) Magnetic wave transmitter circuit; b) Magnetic wave
receiver circuit; c) Wave divider; d) Audio amplifier; e) Radio frequency transmitter circuit; f)
headphone; and g) Radio frequency receiver circuit
2) The smart blind stick as claimed in claim 1 which is equipped with a headphone.
3) The smart blind stick as claimed in claim 1 wherein a blind person can understand his home from
workplace or workplace from home through an audio signal given by the stick.
Infringement of patents
• Patent Infringement is the violation of a patent owner's rights with respect to some invention.
• Unless permitted by the patent owner, one commits patent infringement by making, using, offering
to sell, or selling something that contains every element of a patented claim or its equivalent while
the patent is in effect.
• In case of a process patent, the use of such a method or process in India by anyone other than the
patentee.
• 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.
• In India patent infringement with respect to patented invention without the prior permission from the
patent holder is a prohibited act
Important holder can grant permission if required in the form of a license
• Two types of Patent Infringement
• Direct Infringement: Occurs when a product is substantially close to any patented product
In case way the marketing or partial is carried out without the permission
• Indirect Infringement: Occurs when some amount of deceit or accidental infringement happens
without any intention of infringement.
Example: Use of the patented Digital Twin Spark Ignition (DTSi) technology by TVS Motor Company
(Defendant). The DTSi was the intellectual property of BAJAJ auto limited (Plaintiff). BAJAJ auto
limited filed patent infringement case against TVS, saying that the TVS Motor Company has copied
its patented DTSi technology in 2007.
What can be amounted to be Infringement?
• The colourable imitation of an invention
• Immaterial variations in the invention
• Mechanical equivalents
• Taking essential features of the invention
Patents held to be infringed
• Patent infringement with respect to a patented invention without the prior permission from the patent
holder is a prohibited act.
• Section 48 of the Indian Patents Act contains the rights of the patentees. It lists down the following
activities as the infringement of the patentee’s rights:
Using
Making
Importing
Offering for sale
Selling the patented process
If the defendant is involved in any of the above-mentioned acts, then he will be considered liable for
infringement of the rights of the patentee.
• 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
• When the rights of the patent holder or the claims in the patent are violated by a third party, without
the consent or license of the patent holder, such third party is said to have infringed the patent rights
of patent holder.
Patents held to be not infringed
• Indirect patent infringement is the violation of a patent with or without the knowledge of the
infringer.
• Where a person or corporation is held liable for infringement even if they have not actively
participated in infringing activities.
• Any person who is in possession of the license can import the patented products without seeking
permission from the patentee and this will not be considered as an infringement.
• In above said cases, Civil courts have exclusive jurisdiction to hear and decide issues concerning
patent infringement.
Action for Infringement
• The patent holder may choose to sue the infringing party to stop his or her activities, as well as to
receive compensation for the unauthorized use.
• Civil courts have exclusive jurisdiction to hear and decide issues concerning patent infringement.
• Whenever the monopoly rights of the patentee are violated, his rights are protected again by the cur
of law. The patentee has to institute a suit for infringement, then the court may issue the injunction.
1. Interlocutory/interim injunction: A temporary injunction is invoked by the court at the initial
stages of the suit filed by the plaintiff. This is passed to prevent the defendant from getting
further gains by using other patented products.
2. Permanent injunction: A permanent injunction is invoked when the case is finally decided
by the court. The interim injunction is transferred to a permanent injunction if the defendant is
found guilty of patent infringement rights.
3. Damages or account of profits: In case the defendant is proven guilty, the plaintiff is either
awarded damages or an account of profits by the defendant.
Who is entitled to sue?
• Sue is an Institute legal proceeding against (a person or institution),
• The patentee
• The exclusive licensee if the license is registered
• A compulsory licensee when the patentee refuses or neglects to institute proceedings
• A licensee other than the above two licensees can bring an action for infringement depending
upon the terms of the contract between the licensor and licensee
• Assignee
• Co-owners of a patent
Who can be sued?
• Person who infringes the patent that violates the monopoly right of patentee can be sued for
infringement can be a sued.
• When two or more persons have jointly infringed the patent, both of them have to be sued as
co-defendants
• Agents who are responsible for the infringement can also be sued either individually or
collectively along with their employer/principal
• The consignees of an infringing article can be made a party to the proceedings in an
infringement suit
Patent Infringement suit
• The Patents Act, 1970 empowers the patentee to file a suit in case there is an infringement of
his exclusive patent rights. In order to file a suit, the limitation period as specified under
the Limitation Act is 3 years within the infringement of the patent rights.
• In India, both districts and the high courts have the power to hear cases related to patent
infringement. However, in case there is a counterclaim for revocation of the patent filed by the
defendant, then only the High Court has the right to hear the case.
• The patentee can file the case in the place of his residence or the place where he carries out his
business or where the cause of action arises. Section 48 of the Indian Patents Act contains the
rights of the patentees.
It lists down the following activities as the infringement of the patentee’s rights:
1. Using
2. Making
3. Importing
4. Offering for sale
5. Selling the patented process
• If the defendant is involved in any of the above-mentioned acts, then he will be considered
liable for infringement of the rights of the patentee.
Procedure followed in the suit
• In India, a patent infringement suit may be filed either in a district court with jurisdiction or
before a high court, based on the damages sought, the applicable court fees and costs.
• However, if a defendant counterclaims for revocation of the patent, the suit and the counterclaim
are transferred to a high court.
• Steps followed in the suit
• Pleadings A suit is instituted before the court in the appropriate jurisdiction by the plaintiff, by
providing supporting documentary evidence. In addition, the plaintiff often files separate
interim / temporary injunction seeking. And seeking the appointment of a local commissioner
or scientific adviser.
• Pursuant to institution of the suit if court finds merit in plaintiff’s claims, it can issue a court
notice to the defendant to appear before the court on a given date. On receiving the notice, the
defendant can appear before the court to seek time to file a written reply.
• Admission and denial of documents at this stage the parties must produce before the court all
the documents in their possession.
• Framing of issues Based on the pleadings filed by both the parties, the documents and the
preliminary hearing, the court frames the main issues to be dealt with.
• Discovery (optional) Discovery is the process by which a party may obtain information or
documents from the opposing party before trial, through a request from the court.
• Evidence At the evidence stage, the parties must provide evidence and genuineness of the
evidence filed by an affidavit under oath.
• Examination and cross-examination of witnesses the parties’ witnesses give statements under
oath which may be questioned by the other party’s counsel. At this stage, an expert witness may
be asked to appear before the court to validate the parties’ arguments or his or her own report.
• Final arguments at this stage, each party’s counsel presents its case, with supporting
arguments, evidence and precedents. Written arguments or submissions may also be given to
the court at its discretion.
• Judgment The court then pronounces its judgment.
Onus of establishment infringement
• The term 'Burden of Proof' means when a person states something and considers it to be fact he or she
needs to prove the statement made by him.
• Indian Patents Act in any suit for infringement of a patent plaintiff has Burden of Proof. When a patent
is infringed, the patent owner/plaintiff has to establish the fact that the patent has been infringed.
Comparison of the product of the defendant with claims of the Patentee’s patent can establish
infringement.
• The patent holder bears the burden of proof to show that the defendant infringed the patent. The
plaintiff must prove infringement by a providing quality of evidence. This standard means that the
greater weight of the evidence must show that the patent is infringed.
• In case of process infringement to obtain a new product, the patentee could not establish through
reasonable efforts to determine the process actually used by the infringer, the court may direct the
defendant to prove that the process used by him to obtain the product, identical to the product of the
patented process, is different from the patented process. Hence, in case of process patent infringement,
the Burden of Proof shifts from the plaintiff to the defendant.
Defence by the defendant
• Defences available in the suit.
• A defence is put forward by a party(defendant) to defeat a suit or action brought against the party and
may be based on legal grounds or on factual claims.
• There are various defences provided in a patent infringement suit which absolves the defendant of
his liability:
1. The defendant may prove that they are compliant, by data that shows they are not infringing, or argue
that the asserted patent is invalid, if that be the case.
2. When a defendant denies infringement by proving that it was unintentional.
3. When the defendant has the express/implied license to use the patented product or may negotiate
licensing fees.
4. The defendant may stop selling or making the infringed product.
5. In case the alleged infringement is obvious and not novel.
6. The defendant may start with non-infringement defence to avoid the infringement claim.
7. The defendant may prove that the patent has been wrongfully obtained by the plaintiff.
8. Insufficient disclosure of the invention or the method by which it is to be performed.
The Relief’s Available to the Patentee
• Section 108(1) of the Patents Act, 1970 provides for reliefs in suits for infringement.
• The reliefs that are available to a patentee are,
• 1. The reliefs which a court may grant in any suit for infringement include an injunction (An injunction
is an order of a Court prohibiting someone from doing some specified act) option to the plaintiff or
either damages or an account of profits.
i. Temporary/Interlocutory Injunction
ii. Permanent Injunction
iii. Damages or account of profits
• 2. The court may also order that the goods which are found to be infringing and materials and
implements, the predominant use of which is in the creation of infringing goods shall be seized or
destroyed, as the court deems fit under the circumstances of the case without payment of any
compensation.
Injunction
• An injunction is an order of a court prohibiting someone from doing some specified act or commanding
someone to undo some wrong or injury.
• “An official order given by a law court, usually to stop someone from doing something”.
• Basically, it provides two kinds of remedies: Both remedies are granted after the actual determination
of infringement.
1. One is the grant of injunction against the patent infringer.

2. Second is the appropriate damages that the patentee has suffered from the infringement of his
patent.
Types of Injunctions
1. Temporary/ Interim Injunction– It is granted for a specific time at any stage of the suit and upon
completion of such specific time period it becomes dead. A temporary injunction is invoked by the
court at the initial stages of the suit filed by the plaintiff. To invoke a temporary injunction, it is
important for the patentee to prove that the patent is valid and has been infringed by the defendant.
2. Permanent/Perpetual Injunction–A permanent injunction is invoked when the case is finally
decided by the court. The interim injunction is transferred to a permanent injunction if the defendant
is found guilty of patent infringement rights. But if the defendant is absolved from the liability, then
the interim injunction stands dissolved and is not converted into a permanent injunction.
Damages or account of profits
• A successful plaintiff in a suit for infringement is entitled to the relief of damages or account of
profits.
• However, both reliefs cannot be granted together.
• Damages: Damages are recoverable from the date of publication of a patent application under
Section 11A of the Patents Act 1970. The actual profit or loss made is of no consequence when
calculating damages – thus, damages can exceed the actual profits made by an infringer.
• The two most common damage categories are "reasonable royalties" and “lost profits”.
• "Reasonable royalties" means the fair market value of patent by the infringer, it may be market value
of the license.
• "Lost profits" are the profits that a patent holder would have made if an infringer had not infringed.
• Account of profits: It is a mechanism by which an infringer is required to pay to the owner, all profits
properly attributable to the infringement.
• The account of profits is determined based on actual use of the patentee's invention by the infringer
during the period of commission of the act of infringement.
• In a suit for certain cases of infringement of a patent, damages or an account of profits shall not be
granted against the defendant who proves the infringement was innocent and that at the date of the
infringement the defendant had no reasonable grounds for believing that the patent existed.
Patent Agents
• Patent agent is a registered person with Indian patent office and his name is entered in the patent agent
register, after successfully cleared the patent agent exam conducted by patent office.
• A patent agent, also known as a patent practitioner, is a professional licensed by the Indian Patent
Office to advise on and assist inventors with patent applications.
• A patent agent is not a lawyer and cannot provide any legal advice, including advice on patent
licensing or patent infringement.
• The statutory requirements for becoming a patent agent are:
❖ Be a citizen of India.
❖ Have completed the age of 21 years.
❖ Have obtained a degree in science, engineering or technology from any University
established under law for the time being in force in the territory of India.
• For the registration as a patent agent. (Form No. 23)
• It is not necessary under the patent law to engage a registered patent agent for filing an application
for patent. The applicant is free to file an application by himself or through the patent agent.
• However, an applicant who is not a resident of India is required to file either through the registered
patent agent or must give an address for service in India.
• Patent Office does not make any recommendations regarding selection of a patent agent
• A list of patent agents is maintained by the office. This list can also be viewed at Patent Office
website. The applicant is free to appoint any patent agent from the said list
• The Patent Office has no role in ascertaining the fee charged by a patent agent
Patent Drafting
• Patent drafting is the first step to creating a patent and requires intense attention to detail. To help
simplify your process across all patent drafts, break down each patent into several sections, then each
section into what you would like to include within it.
• Structure of the Patent Specification/Application
1. Title
2. Field of Invention
3. Background of Invention
4. Statement of Objective of Invention
5. Statement of Invention
6. Brief Summary of Invention
7. Brief Description of Drawings
8. Detailed description of the Invention
9. Claims
10. Abstract
11. Drawings
Title: Title of an invention is very important part of patent application and thus must be framed by
taking at most care. According to WIPO guidelines: title of the invention should be meaningful, title
should clearly, concisely, and specifically indicate the subject to which the invention relates. A title
can be used for more than one invention.
Field of Invention: The field of invention in patent applications refers to the broad area of technology
under which the patent falls.
Background of Invention: Background of Invention is similar to literature survey. It mentions the
state of the art of the subject area which the invention is related. It contains previous references or prior
art related to the invention.
Objective of the Invention: Object of Invention should clearly replicate the advantages of claimed
invention. It shall mention the problems associated with existing technology and solution for that.
Statement of Invention: Statement of Invention describes exact features of invention. It should clearly
highlight the inventive features over the existing prior art.
Brief Summary of Invention: Summary presents the general idea of the invention in summarized
form. The nature of invention and technology domain is included in the summary.
Brief description of Drawings: The invention is illustrated with the help of drawings. Figures with
numerical labelling are mentioned in patent drawings.
Detailed description of Invention: Detail description of invention includes the details of an invention,
how invention is made and how it can be used. The details described here should sufficient enough so
that any skilled person in the same field can use this invention.
Claims: The most important element of patent application is the patent claims. Claims are the heart of
the patent application. Claims define the invention and gives exclusive rights to exclude others from
making use of the invention.
Abstract: Abstract provides technical information of an invention. It should mention technical field
of invention with existing problems and the solutions to overcome such problems.
Drawings: Drawings will be helpful to illustrate the invention. Patent drawings can be the best way to
expand disclosure.
Database searching
• Patent databases are the source of patent applications, publications etc. and helps in identifying the
relevant state of art.
• Search is executed to determine existing solutions and potential competitors within a given
technological field. The search includes not only patent documents but also non patent literature.
• Patent database is a collection of technical information that is organized so that it can easily be
accessed, managed, and updated.
• There are two types of patent data sources
1. Primary sources: each jurisdiction defines how authoritative (official) patent information is
published and the respective authority takes the in charge, that may be
• Individual versions/editions
o Grants,
o Gazettes
• Continuous: Legal status, file wrapper
2. Secondary sources: collect data from various primary sources and make it accessible through
a single interface
• Commercial patent databases (often include analysis tools)
• Free-of-charge searchable patent databases:
o Hosted by some IPOs: Depatisnet, Espacenet, Patentscope etc, derived from
proprietary search systems
o hosted by others: Google Patents, Patentlens.
UNIT - 3
Copyright
Meaning:
 Copyright is a form of intellectual property.

 The right which a person acquires in a work, which is the result of his intellectual
labour is called his copyright
Definition:
The exclusive right to do or authorise other(s) to do certain acts in relation to
 Literary, dramatic or musical works

 Artistic work
 Cinematograph film
 Sound recording
Characteristics of copyright:
1. Creation of a statute
2. Some form of intellectual property
3. Monopoly right – restraining the others
4. Negative right – prevent others
5. Copyright only in form not in idea
6. Multiple rights – right of reproduction-right of serial publication-right of dramatic and
cinematographic version-right of translation----
7. Neighbouring rights – right of public performance, the recording right-broadcasting
right
Main Feature of Copyright Act of 1957:
1. Creation of a copyright office and Copyright board to facilitate registration of

Copyright and to settle certain kinds of disputes arising under the Act and for
Compulsory licensing of Copyright
2. Definitions of various categories of work in which copyright subsists and the scope of
the rights conferred on the author under the act
3. Provisions to determine the first ownership of copyright in various categories of
works
4. Term of copyright for different categories of works
5. Provisions relating to assignment of ownership and licensing of copyright including
compulsory licensing in certain circumstances
6. Provisions relating to performing rights of or by societies
7. Broadcast rights
8. International copyrights
9. Definition of Infringement of copyright
Dept., of ECE
10. Exception to the exclusive right conferred on the author or acts, which do not
constitute infringement
11. Author‟s special rights
12. Civil and criminal remedies against infringement
13. Remedies against groundless threat of legal proceedings
Scope of Copyright
Works in which copyright subsists:
Section 13 0f the Act lists out the works, in which copyright subsists.
 Subject to the provisions of this section and the other provisions of this Act,
copyright shall subsists throughout India in the following classes of works, that is
to say –
 Original literary, dramatic, musical and artistic works
 Cinematograph films
 Sound recording
Piracy
 the unauthorized use or reproduction of another's work

 to make quick money and avoid payment of legitimate taxes and royalties
 three types- piracy of printed word, piracy of sound recording and piracy of
cinematograph films
The distinction between Contract of service and contract for service
Contract of service:
 Where a man employs another to do work for him under his control so that he can
direct the time when the work shall be done, the means to be adopted to bring about
the end, and the method in which the work shall be arrived at, then the contract is a
contract of service.
 The status of the author is that of an employee, i.e., the employer is the first owner of
copyright
Contract for service:
 If a person employees another to do a certain work but leaves it to the other to decide
how that work shall be done, what steps shall be taken to produce that desired effect,
then, then it is a contract for service
 The employee status is that of an independent contract who himself decides about the
manner of doing work, in such cases the copyright vests in him and not the employer
Dept., of ECE
Software is an intellectual property:
 Software may be intellectual property but such personal intellectual property

contained in a medium is bought and sold. It is an article of value. It is sold in various
forms like – Disks, CD-ROMs and Magnetic tapes etc. Each one of the mediums in
which the IP is contained is a marketable commodity. They are visible to the senses
 A programme containing instructions in computer language is subject matter of a
licence. It has its value to the buyer. It is useful to the person who intends to use the
hardware viz. the computer in an effective manner so as to enable him to obtain the
desired results. These mediums containing the intellectual property are not only easily
available in the market for a price but are circulated as a commodity in the market.
Only because an instructions manual designed to instruct use and installation of the
supplier program is supplied with the software, the same would not necessarily mean
that it would cease to be a good. Such instructions contained in the manual are
supplied with several other goods including electronic ones.
Nature of rights conferred by copyright
1. Statutory rights
 The copyright in a work is a creation of statute. A person owns a copyright
because the law recognises the existence of such a right. The rights which an
author of a work has by virtue of creating the work are well defined.
2. Negative rights
 It stops others from exploiting the work of the author for their own benefit
without the consent or licence of the author. It does not confer any positive
right on the author himself.
3. Multiple rights
 Copyright is not a single right but a bundle of rights which can exist and be
exploited independently. The nature of these multiple rights depends upon the
categories of works, namely
i. Literary, dramatic and musical works
ii. Original artistic works
iii. Cinematograph films
iv. Sound recording
 The literary, dramatic and musical works are grouped together for the purpose
of defining these exclusive rights. The rights relating to artistic works are
distinct from those of cinematograph films and sound recording
4. Economic rights
 The exploitation of the work by the author by exercising these rights may
bring economic benefit
 The author may exploit the work himself or licence others to exploit any one
or more of the rights for a consideration which may be in form of royalty, a
lump-sum payment
5. Moral rights
Dept., of ECE
 The term „moral right‟ derives from the French expression „droit moral‟ and is
a misnomer in the sense that moral rights are neither the opposite of immoral
rights nor of legal rights. These moral rights are –
i. Integrity rights: important of moral rights, it gives the author the right
to prevent alteration, destruction and other actions that may damage
the authors reputation
ii. Divulgation: It means right of author to publish a work, or to withhold
it from dissemination. It gives the author the right to decide whether to
publish or not to publish the work
iii. Attribution right: right to claim authorship of a published or exhibited
work
iv. Retraction work: right to withdraw a published work from distribution
if it no longer represents the views of the author
Infringement of Copyright:
 A copyright confers exclusive right on the copyright owner to the reproduction of the
work in a material form, storing the work in any medium by electronics means,
publication of the work in public, making of its adaptation and translations
 These rights are conferred on the owner of the copyright to enable him to reap
monetary benefits.
 If any of the above acts are carried out by a person other than the owner of the
copyright, without a licence from the owner, it constitutes infringement of the
copyright
Acts which constitute infringement:
 Since the forms of creative works are more, i.e., literary, dramatic, musical, artistic,
etc. the acts which constitute infringement would depend upon the nature of the work
 Section 51 of the Act defines the infringement of a copyright in general
 According to section 51, copyright in a work shall be deemed to be infringed
1. When a person without a license from the owner or the Registrar of copyrights
does anything, the exclusive right to do which is by this act conferred upon the
owner of copyright, or permits for profit, any place to be used for the
communication of the work to the public, unless he was not aware and had no
reasonable ground for believing that such communication would be an
infringement of copyright; or
2. When any person
 Makes for sale or hires or sells or lets for hire by way of trade displays or
offers for sale or hire any infringing copies of the work covered by
copyright; or
 Distributes, either for the purpose of trade or to such an extent as to affect
prejudicially the owner of the copyright any infringing copies of the work
covered by copyright; or
 Exhibits in public by way of trade any infringing copies of the work; or
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 Imports into India any infringing copies of the work except the copy any
work for the private and domestic use of the importer
Remedies against Infringement of Copyrights:
Kinds of Remedies:
1. Civil remedies
i. Anton pillar order
ii. Interlocutory Injunction
iii. Damages or account of profit
2. Criminal remedies
 Imprisonment of the accused or imposition of fine or both
3. Administrative remedies
 Moving to the Registrar of copyright to ban the import of infringing copies
Development of copyright law in India
 The development of copyright law in India is closely associated with the British
copyright law
 In India, the first copyright act was passed in 1914 (copyright act of 1911 in England)
 The copyright act of 1957 followed and adopted the UK act of 1956
 The copy Right amendment act 1983, 1984, 1994
Trade Mark:
Definition – Trademark is a visual representation attached to goods for the purpose of

indicating their trade origin.
The functions of a Trade Mark
 It identifies the product and its origin

 It guarantees its quality
 It advertises the product
 It creates an image of the product in the minds of the public, consumers or the
prospective consumers of such goods
Essential elements of the Trademark:
1. Distinctiveness of the trademark

2. The trademark should be an invented word
3. The trademark should be easy to pronounce and remember
4. In case of device mark, the device should be capable of being described by a single
word
5. It must be easy to spell correctly and write legibly
6. It should not be descriptive but may be suggestive of the quality of goods
7. It should be short
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8. It should appeal to the eye as well as the ear
9. It should satisfy the requirements of registration
10. It should not belong to the class of marks prohibited for registration
Procedure for registration of Trademark:
Present a written application in the office
Options
Accepted absolutely rejected absolutely conditional acceptance
Registrar shall record the grounds
If application accepted in error
Correction if any error Withdrawal of acceptance
Advertisement of application
Written opposition Not-opposed
Notice of opposition
If opposition decided in favour of applicant
If not in favour
Condition and limitation to registration Certificate of registration issued
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Essentials of Infringement:
 The taking of any essential feature of the mark or taking the whole of the mark
and then making a few additions and alterations would constitute infringement
 The infringing mark must be used in the course of trade, i.e., in a regular trade
wherein the proprietor of the mark is engaged
 The use of the infringing mark must be printed or usual representation of the
mark in advertisements, invoices or bills. Any oral use of the trade mark is not
infringement
 Any or all of the above acts would constitute infringement if the same is done
such a manner as to sender the use of the mark likely to be taken as being used
as a trade mark
Remedies against infringement of trade mark:
Kinds of Remedies:
1. Civil remedies
i. Anton pillar order
ii. Interlocutory Injunction
iii. Damages or account of profit
2. Criminal remedies
 Complaint may be made against the person causing infringement
3. Administrative remedies
 Opposing the registration of a deceptively similar trademark when the trade
mark registry is in the process of considering the grant of a trademark, can
protect the trademark
 The registry can also be moved for removal of a deceptively similar trademark
if registered.
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Cyber Law
Introduction:
The most important and significant advancement made by the mankind from the beginning of
civilization to till date is the development of Internet
In 1969, America‟s department of defence commissioned the construction of a super network
called ARPANET (Advanced Research Projects Agency Network). ARPANET was intended
as a military network of 40 computers connected by a web of links and lines. This network
slowly grew and the Internet was born. By 1981, over 200 computers were connected around
the world. Today the figure runs into millions.
The real power of today‟s Internet is that it is available to anyone with a computer and a
telephone line. It places in an individual‟s hand the immense and invaluable power of
information and communication. Its usage has significantly increased over the past few years.
When Internet was first developed, the founding fathers hardly had any inkling
(suspicion/clue) that Internet could transform itself into an pervading revolution which could
be misused for criminal activities and which required regulation. Today, there are many
disturbing thing happening in cyberspace. Due to the anonymous nature of the Internet, it is
possible to engage in a variety of criminal activities with impunity, and people with
intelligence have been grossly misusing Internet to perpetuate criminal activities in
cyberspace. Because of this, Cyber law becomes more important.
Definition of Cyber Law:
Internet is believed to be full of anarchy and a system of law and regulation therein seems
contradictory. However, cyberspace is governed by a system of law and regulation called
Cyber law. There is no single exhaustive definition of the term “Cyberlaw”. Author gave a
definition of Cyberlaw in 1996, which is broadly accepted, as follows:-
“Cyberlaw is a generic term, which refers to all the legal and regulatory aspects of Internet
and the World Wide Web. Anything concerned with or related to or emanating from any legal
aspects or issues concerning any activity of netizens (a person who uses the internet) and
others, in Cyberspace comes within the ambit of Cyberlaw”.
{“The internet is a huge network of computers all connected together. The World Wide
Web ('www' or 'web' for short) is a collection of webpages found on this network of
computers”.}
Cyberspace:
Dept., of ECE
Cyberspace allows users to share information, interact, swap ideas, play games, engage in
discussions or social forums, conduct business and create intuitive media, among many other
activities. The term cyberspace was initially introduced by William Gibson in his 1984 book,
“Neuromancer.” Gibson criticized the term in later years, calling it “evocative and essentially
meaningless.” Nevertheless, the term is still widely used to describe any facility or feature
that is linked to the Internet.
According to many IT specialists and experts, including F. Randall Farmer and Chip
Morningstar, cyberspace has gained popularity as a medium for social interaction, rather than
its technical execution and implementation.
The growth of Electronic Commerce influences the need for effective regulatory mechanisms
and legal infrastructure for successful Electronics Commerce. Which are come within the
domain of Cyberlaw.
Cyerlaw is important because it touches almost all aspects of transactions and activities
through Internet and World Wide Web in Cyberspace
As the nature and scope of Internet and most of our activities happen in cyberspace,
Cyberlaw concerns everyone. From the time you register your Domain Name, set up and
promote your website and conduct electronic commerce transaction on the site, at every point
time there are various Cyberlaw issues involved. You may feel that Cyberlaw is not so
important / relevant at this time later you have to consider Cyberlaw for the sake of your
benefits.
Example: You may knowingly or unknowingly book a domain name say www.xyz.com
which may be the trade mark of any other company which may be the trade mark of some
other company or belongs to any person or some organization say B. Domain names are
allotted on first come first served basis. But you may be involved by the B in a cyber legal
dispute which may be allege that you are deliberately involved in the practice of
Cypersquatting (the practice of knowingly registering the trade mark of any legal entity,
company or person with intension of holding on to it and thereafter selling the same to the
said legal entity or company or person at a handsome premium). You may also be involved
in cyber litigation as the concerned party, B may approach the World Intellectual Property
Organization (WIPO) for adjudicating (resolving) the matter and WIPO, By a summary
procedure, may direct you to relinquish (surrender) the said domain to the concerned party B
provided that Party B has to produce all documentary and other evidence to substantiate
(validate) its claim to the concerned Domain name. This example show the importance of
Cyberlaw for us.
Dept., of ECE
Why Cyberlaw in India?
In 49th year of Indian independence Internet was commercially introduced in India and to
regulate this cyberlaw was enacted.
Factors that influence the need for cyberlaw in India are
 India has an extremely detailed and well defined legal system but the birth of Internet
creates new and complex legal issues. To resolve this, it is required to enact cyberlaw
 The existing law of India could not be interpreted in the light of the emerging
cyberspace
 None of the existing law gave any legal validity or sanction to the activities in the
cyberspace
o Eg, email does not have legal sanctity
 Internet requires an enabling and supportive legal infrastructure in tune with the times
o Eg, E-Commerce
 In addition to that General Assembly of UNO adopted the United Nations
Commission on International Trade Laws (UNCITRAL) Model Law on Electronic
Commerce on January 30, 1997. This resolution recommended to the member nations
to enact and modify their laws according to the Model Law
UN Model Law:
 The main objective is to provide a common legal platform to the countries to model
their domestic laws relating to electronic commerce.
 The idea behind is to have a functional equivalent approach.
 It basically provides a media-neutral environment in which other laws could operate
 This law is basically on Electronic Commerce, but it does not define Electronic
Commerce
 But Art 2(b) defines electronic data interchange, meaning ; “the electronic transfer
from computer to computer of information using an agreed standard to structure the
information”. It includes all types of transfer of information between computers
 Art 5 – information shall not be denied legal effect, validity or enforceability solely
on grounds that it is in the form of a data message
 Art 6 – where the law requires information to be in writing, the requirement shall be
met where data is accessible so as to be useable for subsequent reference
 --------
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Based on the recommendation from UN Model law, Govt of India decided to enact a law that
would make e-contracts legal, electronic records admissible in evidence and which would
make required changes to some other existing laws. Consequently, three areas were
identified-
 Contract
 Indian Penal Code
 Evidence act
Since major part fall under concurrent list and all of them did not apply to Jammu and
Kashmir, therefore, Govt had invoke a special power granted to Parliament to make a law for
India on the Model Law.
The parliament under Art 253 of the Constitution of India passed India‟s first Cyber.
The at 253 states that, “Notwithstanding anything in the foregoing provisions of this chapter,
Parliament has power to make any law for the whole or any part of the territory of India for
implementing any treaty, agreement or convention with any other country or countries or any
decision made at any international conference, association or other body.”
 Information Technology (IT) bill, 1999 was the beginning of Model Law in India
 The Govt of India responded by coming up with the draft of the first Cyberlaw of
India – The Information Technology bill, 1999
Information Technology (IT) Bill:
 To provide the necessary legal and business infrastructure required for enabling e-
commerce in India
 The bill was tabled in parliament in December 1999
 IT bill 1999, is referred to standing committee of Science and Technology,
Environment and Forests
 The standing committee submitted its report to parliament on 12th may, 2000 with
recommendations
 The Govt accepted some recommendations and reintroduce the IT Bill 2000 on both
houses of Parliament on 15th May 2000
 17th May 2000, IT Bill 2000 passed by both houses of Parliament
 It received the President‟s assent on 9th June, 2000 and was implemented on 17th
October, 2000.
The Information Technology Act, 2000 is the first amongst a series of legislations in India.
Evolving Cyberlaw Practices – A Guide for Corporates
The need for Cyberlaw arose because of the uniqueness of the medium in which the internet
functions, requiring entirely different approaches for controlling, regulating and facilitating
electronic communication and commerce. Numerous practices concerning various issues in
the field of Cyberlaw are constantly evolving.
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Here, we consider some of the evolving practices in Cyberlaw from the perspective of the
corporate sector.
Domain Name Issues:
Cybersquatting means when someone illegally holds the domain name of another. Holding of
others domain name is profitable and it is a common practice to earn more money. Therefore,
legal required is required against Cybersquatting.
Online arbitration is one of the remedies available for this purpose.
Civil remedies includes suit for passing of goods and services under the Trade and
Merchandise Marks Act, 1958 and dilution of trade mark or label as well as suit for illegal
use of the domain name.
Privacy in Indian cyber space:
Terrorism & Cyber Crime:
Cyber Theft and the Indian Telegraph Act, 1885

First cybercrime happened in the year 2000 in Delhi by using Internet illegally. The
convicted were arrested for violating the provisions of the Indian Telegraph act, 1885, at a
time when the Indian Cyberlaw had not been passed. The arrest of India‟s first two cyber
thieves raises number of important Cyberlaw issues. Can The Indian Telegraph Act, 1885 be
extended to cyberspace?
India‟s first Cyberlaw, the information Technology act 2000 does not purport to amend either
the Indian Telegraph act, or section 378 & 379 of Indian Penal Code, 1860 that defines the
offence and punishment for theft.
The important point that arises for consideration is whether the Indian Telegraph Act in its
present form is capable of being interpreted in today‟s cyber age to include cyberspace within
its ambit?
The section 25 of Telegraph act provides, “if any person, intending –
1. To prevent or obstruct the transmission or delivery of any message, or
2. To intercept or to acquint himself with the contents of any message, or
3. To commit mischief,
Damages, removes, tampers with or touches any battery, machinery, telegraph lne
post or other thing whatever, being part of or used in r about any telegraph or in the
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working therepf, he shall be punshed with imprisonment for a term which may extend
to three years, or with fine, or with both”.
Similarly, Section 378 of IPC defines theft and 379 defines punishment for theft. The IPC
378 defines, “Theft – whoever, intending to take dishonesty any moveable property out of the
possession of any person without that person‟s consent. Moves that property in order to such
taking, is said to commit theft.”
Thus, the issue of cyber theft arises several Cyberlaw issues, which would have to be
necessarily addressed, after much thought and deliberation, in order to achieve the goal of a
crime free.
Cyber Stalking:
Protection of Indian Children online:
 Need to enact appropriate legislation to protect children

 Need to encourage the concept of parental guidance
 Need to make parents aware about the different ways in which their children can be abused on
the Internet
 Parents need to be educated about the tremendous negative impact on the psyche of the child
 Govt needs to start aggressive campaigns amongst schools to educate children about online
child abuse
 Need for appropriate orientation programmes in different schools to educate children on their
rights and duties on the Internet
 Need to empower the children of our country, who have the advantage of accessing the
Internet
Spam:
Spam is the practice of sending unsolicited, mass emails that are often advertisement or
solicitations sent via email or others online means to Internet users.
 Causes innumerable problems in the world
 Spam poses a real threat to the viability of e-mail and can be detrimental to the
interests of e-commerce entities
 Puts strain on the productivity, time and resources of Internet service providers and
corporate networks
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 Used to send viruses that can cripple networks and cause damage, further killing the
credibility and usefulness of e-mails
 The cause costs of these spam e-mails are conveniently shifted on to the recipients
 Etc.
Issues relating to spam and data protection are interlinked and cannot be separated
from each other:
Contempt in cyber space
Indian consumers & cyber space:
E-Courts of India
On 23rd July 2000, the minister for Information Technology Mr Pramod Mahajan stated that
the central government is considering the setting up of at least one E-Court to deal with
Cybercrimes. Cybercrimes require great amount of ingenuity and NET savvy approach and
also indicate a great deal of maturity and understanding of the Cyber criminals. Cybercrimes
such as tampering with computer source documents, hacking of computer system, etc.,
mentioned in the IT Act, 2000 are highly specialized crimes which requires sensitive, cyber
legal and technological approach of the Court.
 The establishment of an E-court in India will be of tremendous advantage.
 It will lend credibility, uniformity and coherency of approach
 Lead to development of an indigenous Cyberlaw on cybercrime
 Section 46 of the IT Act 2000 states that an Adjudicating Officer shall adjudge
whether any person has committed a contravention of any of the provisions of this act
or of any rule, regulation, direction or order made thereunder
 Section 46(2) gives the power to the adjudicating officer to impose on such persons,
guilty of having committed any contravention, such penalty or award such
compensation as he thinks fit in accordance with the provisions of the IT Act 2000
 Section 28 of the IT Act 2000 states that the Controller or any officer authorized by
him in this behalf shall take up for investigation any contravention of the provisions
of this act
 The concept of E-Courts promises to propel the growth and progress of Cyber law in
India
Dept., of ECE

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IPR and CL (19EC804)

Intellectual Property Rights and Cyber Law-19EC804

Dr. Santhosh Kumar K B, Dept. of E and C Engg, MCE, Hassan 1

Dr. Santhosh Kumar K B, Dept. of E and C Engg, MCE, Hassan 2

• Artistic work (paintings, ceramics, carvings)

Dr. Santhosh Kumar K B, Dept. of E and C Engg, MCE, Hassan 3

• The unauthorized acquisition, use or disclosure of such secret information in

1.1 Concept of property

Dr. Santhosh Kumar K B, Dept. of E and C Engg, MCE, Hassan 4

1.2 Constitutional aspects of IP

Dr. Santhosh Kumar K B, Dept. of E and C Engg, MCE, Hassan 5

Dr. Santhosh Kumar K B, Dept. of E and C Engg, MCE, Hassan 6

1.5 Evolution of the patent system in UK

Dr. Santhosh Kumar K B, Dept. of E and C Engg, MCE, Hassan 7

Dr. Santhosh Kumar K B, Dept. of E and C Engg, MCE, Hassan 8

1.7.1 Three types of patents

1.8 Objective of a patent law

Dr. Santhosh Kumar K B, Dept. of E and C Engg, MCE, Hassan 9

Dr. Santhosh Kumar K B, Dept. of E and C Engg, MCE, Hassan 10

1.11 Non – patentable inventions

Dr. Santhosh Kumar K B, Dept. of E and C Engg, MCE, Hassan 11

Procedure for obtaining Patent

It has following steps:

1. Conditions of Section 6 – 11 has to be satisfied

Section 6 – Who is eligible?

 True and first inventor

- First – to – apply system

Invention made by an employee:

 Invention is belong to employee or employer is based on their contract

Section 7 –form of application

 One application for one invention

File application in the patent office

Provisional / complete specification should be filed

Request for examination of application

Approval Objections Division of applications

 A statement setting out detailed particulars of such application

The application to file provisional and complete specification:

 application along with provisional specification

 Lists the contents of complete specification

A technical document describing the invention

Provisional – initial description of an invention

Complete – full and sufficient detail of an invention

Publication and examination of the applications - section 11:

 Patents act – 2005

Communication to the Applicant:

 If any objections raised by the examiners

Powers of the Controller of Patents:

Opposition Proceedings to Grant of Patent:

 The patent is effective from the date of filing of complete specification

Extent and Effect of Patent:

Term of the Patent:

 20 years from the date of filing of the application( Complete specification)

Compulsory license will protect the interest of the society:

Nature of the patent specification:

 Specification is a technical and legal document

 While an inventor is in the process of finalising his invention, he may file a

Need to file a Provisional specification:

 To fix the priority date of the patent

Provisional Specification to be followed by Complete Specification: