intellectual property law

INTELLECTUAL PROPERTY LAW

INTELLECTUAL PROPERTY►THE TERM INTELLECTUAL PROPERTY

COVERS PATENTS, INDUSTRIAL DESIGNS, COPY RIGHTS TRADE MARKS, KNOW-HOW AND CONFIDENTIAL INFORMATION.

PATENT►A PATENT IS A MONOPOLY RIGHT

GRANTED TO A PERSON WHO HAS INVENTED A NEW AND USEFUL ARTICLE OR AN IMPROVEMENT OF AN EXISTING RIGHT TO NEW PROCESS OF MAKING AN ARTICLE.

PATENT►PATENT ACT 1970►ESSENTIAL INGREDIENTS OF PATENT:-

NOVELTY. INVENTIVE STEP. LACK OF OBVIOUSNESS. SUFFICIENCY OF DESCRIPTION.

PATENT►OBJECT OF PATENT LAW:-

IT ENCOURAGES RESEARCH AND INVENTION. IT INDUCES AN INVENTOR TO DISCLOSE HIS

DISCOVERIES INSTEAD OF KEEPING THEM AS TRADE SECRET.

IT OFFERS A REWARD FOR THE EXPENSE OF DEVELOPING INVENTION TO THE STAGE AT WHICH THEY ARE COMMERCIALLY PRACTICABLE.

IT PROVIDES AN INDUCEMENT TO INVEST CAPITAL IN NEW LINE OF PRODUCTION WHICH MIGHT NOT APPEAR PROFITABLE IF MANY COMPETING PRODUCES EMBARKED ON THEM SIMULTANEOUSLY.

PATENT► IN INDIA THE TERM OF PATENT IS 14 YEARS

EXCEPT FOR FOOD AND DRUG, AND FOR THEM IT IS FIVE YEARS FROM THE DATE OF SEALING OR SEVEN YEARS FROM THE DATE OF PATENT WHICHEVER IS SHORTER.

►THE PATENTEE MAY ASSIGN HIS RIGHTS OR GRANT LICENCES TO USE THE INVENTION.

►COMPULSORY LICENCE.

PATENT►PATENTABLE INVENTION

AN INVENTION IS DEFINED AS FOLLOWS:-►INVENTION MEANS ANY NEW AND USEFUL

ART, PROCESS, METHODS OR MANNER OF MANUFACTURE.

MACHINE, APPARATUS OR OTHER ARTICLE. SUBSTANCE PRODUCED BY MANUFACTURE AND

INCLUDES ANY NEW AND USEFUL IMPROVEMENT OF ANY OF THEM AND AN ALLEGED INVENTION.

PATENT► INVENTIONS NOT PATENTABLE

AN INVENTION WHICH IS FRIVOLOUS OR WHICH CLAIMS ANYTHING OBVIOUS OR CONTRARY TO WELL-ESTABLISHED NATURAL LAWS.

AN INVENTION THE PRIMARY OR INTENDED US OF WHICH WOULD BE CONTRARY TO LAW OF MORALITY OR INJURIOUS TO PUBLIC HEALTH.

THE MERE DISCOVERY OF A SCIENTIFIC PRINCIPLE OT THE FORMULATION OF AN ABSTRACT THEORY.

THE MERE DISCOVERY OF ANY NEW PROPERTY OR NEW USE FOR A KNOWN SUBSTANCE OR OF THE MERE USE OF KNOWN PROCESS, MACHINE OR APPARATUS.

A SUBSTANCE OBTAINED BY A MERE ADMIXTURE RESULTING ONLY IN THE AGGREGATION OF THE PROPERTIES OF THE COMPONENTS THEREOF OR A PROCESS FOR PRODUCING SUCH SUBSTANCE.

THE MERE ARRANGEMENT OR REARRANGEMENT OR DUPLICATION OF KNOWN DEVICES EACH FUNCTIONING INDEPENDENTLY OR ONE ANOTHER IN A KNOWN WAY.

A METHOD OF AGRICULTURE OR HORTICULTURE. A METHOD OF FOR THE MEDICAL, SURGICAL, CURATIVE, PROPHYLACTIC,

OR OTHER TREATMENTS. AN INVENTION RELATING TO ATOMIC ENERGY. IN RESPECT OF FOOD, MEDICINES OR DRUGS, PATENT ARE GRANTED ONLY

FOR THE PROCESS OF MANUFACTURE OF THE SUBSTANCE BUT NOT FOR THE SUBSTANCE ITSELF.

IN RESPECT OF SUBSTANCE PRODUCED BY CHEMICAL PROCESS PATENTS AE GRANTED ONLY FOR THE PROCESS OF MANUFACTURE BUT NOT FOR THE SUBSTANCE ITSELF.

PROCEDURE FOR OBTAINING PATENT► AN APPLICATION BY THE INVENTOR.► TO THE PATENT OFFICE.► APPLICATION SHOULD ACCOMPANY PROVISIONAL

OR COMPLETE SPECIFICATION.► WHERE THE APPLICATION IS ACCOMPANIED BY A

PROVISIONAL SPECIFICATION, A COMPLETE SPECIFICATION SHOULD BE FILED WITHIN 12 MONTHS FROM THE DATE OF FILING.

► THE COMPLETE SPECIFICATION SHOULD FULLY AND PARTICULARLY DESCRIBE THE INVENTION AND THE METHOD BY WHICH IT IS TO BE CARRIED OUT.

► IT SHOULD DISCLOSE THE BEST METHOD OF PERFORMING THE INVENTION KNOWN TO THE APPLICANT AND END WITH THE CLAIM OR CLAIMS DEFINING THE SCOPE OF THE INVENTION FOR WHICH PROTECTIONS IS CLAIMED.

► THE CLAIM SHOULD RELATE TO THE SINGLE INVENTION.

PROCEDURE FOR OBTAINING PATENT► THE SPECIFICATION SHOULD BE ACCOMPANIED BY

THE DRAWINGS WHERE APPROPRIATE AND NECESSARY.

► EXAMINATION OF THE APPLICATION BY THE EXAMINERS OF PATENT.

► LAWFUL OBJECTION.► COMMUNICATION TO THE APPLICANT ABOUT

OBJECTIONS IF ANY. ► HEARING BEFORE CONTROLLER OF PATENTS.► ADVERTISE IN THE OFFICIAL GAZETTE.► NOTICE OF OPPOSITION WITHIN THREE MONTHS.► FORWARDING OF COPY BY THE CONTROLLER OF

PATENTS.► FILING OF EVIDENCE.► GRANTING OF PATENT

PATENT ADDITION

TRANSFER OF PATENT RIGHT►A PATENT RECOGNIZED AS A SPECIES

OF PROPERTY AND CAN BE TRANSFERRED FROM THE ORIGINAL PATENTEE TO ANY OTHER PERSON BU ASSIGNMENT OR BY OPERATION OF LAW.

►ASSIGNMENTS. LEGAL ASSIGNMENT EQUITABLE ASSIGNMENT MORTGAGES

►LICENCES

REVOCATION OF PATENT►GROUND OF REVOCATION:-

PATENTEE IS NOT ENTITLED TO THE PATENT

PATENT WRONGFULLY OBTAINED AS AGAINST PERSON ENTITLED.

PATENT OBTAINED BY FALSE SUGGESTION OR REPRESENTATION.

FAILURE TO DISCLOSE INFORMATION REGARDING FOREIGN APPLICATIONS.

NON-COMPLIANCE WITH DIRECTIONS FOR SECRECY.

AMENDMENT OF SPECIFICATION OBTAINED BY FRAUD.

INFRINGEMENT OF PATENT►INFRINGEMENT OF PATENT IS THE

VIOLATION OF THE MONOPOLY RIGHTS CONFERRED BY THE GRANT.

►THE RIGHTS CONFERRED BY THE PATENT IS THE EXCLUSIVE RIGHT TO MAKE, USE, EXERCISE, SELL OR DISTRIBUTE THE INVENTION IN INDIA. HENCE THE INFRINGEMENT CONSISTS IN THE VIOLATION OF ANY OF THERESE RIGHTS.

INFRINGEMENT OF PATENT►ACTION FOR INFRINGEMENT:-

JURISDICTION. TERRITORIAL JURISDICTION. THE PROCEDURE. LIMITATION. EVIDENCE. RELIEFS:-

►AN INJUNCTION►DAMAGES OR AN ACCOUNT OF PROFITS.►COST

OFFENCES AND PENALTIESUNDER THE PATENTS ACT THE FOLLOWING ACTS

OR OMISSIONS ARE OFFENCES PUNISHABLE WITH IMPRISONMENT OF A MAXIMUM PERIOD OF TWO YEARS OR FINE OR WITH BOTH:-

CONTRAVENTION OF SECRECY DIRECTIONS GIVEN BY CONTROLLER PROHIBITING THE PUBLICATION OR COMMUNICATION OF INFORMATION TO INVENTIONS RELEVANT FOR DEFENCE PURPOSE.

MAKING OF AN APPLICATION FOR A PATENT IN A FOREIGN COUNTRY BY A RESIDENT INDIAN IN RESPECT OF AN INVENTION SUBJECT TO SECRECY DIRECTIONS WITHOUT THE PERMISSION OF THE CONTROLLER.

MAKING OF AN APPLICATION FOR A PATENT IN A FOREIGN COUNTRY BY ANY RESIDENT INDIAN BEFORE MAKING A SIMILAR APPLICATION IN INDIA.

FAILURE TO SUPPLY INFORMATION TO THE CONTROLLER REGARDING THE USE OF PATENTED INVENTION IN INDIA (FINE ONLY).

DESIGNS►THE OBJECT OF DESIGN REGISTRATION

IS TO SEE THAT THE ORIGINATOR OF A PROFITABLE DESIGN IS NOT DEPRIVED OF HIS REWARD BY OTHERS APPLYING IT TO THEIR GOODS WITHOUT PERMISSION.

►COPYRIGHT IN AN INDUSTRIAL DESIGN OR PRODUCT DESIGN IS GOVERNED BY THE DESIGNS ACT 1911.

►THIS RIGHT IS MONOPOLY RIGHT MORE AKIN TO THE RIGHT GIVEN UNDER THE PATENT ACTS.

DESIGNS►DESIGN MEANS ONLY THE FEATURES OF

SHAPE CONFIGURATION, PATTERN OR ORNAMENT APPLIED TO ANY ARTICLE BY ANY INDUSTRIAL PROCESS OR MEANS, WHICH IN THE FINISHED ARTICLE APPEAL TO AN ARE JUDGED SOLELY BY TE EYE AND WHICH IS NOT A MERE MECHANICAL DEVICE.

►DESIGN MEANS CONCEPTION, SUGGESTION OR IDEA OF A SHAPE OF A PICTURE OR OF A DEVICE OR OF SOME ARRANGEMENT WHICH CAN BE APPLIED TO AN ARTICLE BY SOME MANUAL, MECHANICAL OR CHEMICAL MEANS.

DESIGNS►THERE MUST BE A SPECIAL PECULIAR,

DISTINCTIVE, SIGNIFICANT OR STRIKING APPEARANCE.

►THE DESIGN MUST BE ONE WHICH APPEALS TO THE EYE OF SOME CUSTOMER.

►REGISTRATION OF DESIGNS IS DONE BY THE PATENT OFFICE AT KOLKATTA.

►AN APPLICATION WITH BRIEF ENDORSEMENT OF NOVELTY OF THE DESIGNS.

DESIGNS

►INFRINGEMENT CIVIL REMEDIES

►INJUNCTION►DAMAGES OR COMPENSATION

► JURISDICTION

TRADE MARKS► A TRADE MARK IS A VISUAL SYMBOL IN THE FORM

OF WORD, A DEVICE, OR A LABEL APPLIED TO ARTICLES OF COMMERCE WITH A VIEW TO INDICATE TO THE PURCHASING PUBLIC THAT THEY ARE THE GOODS MANUFACTURED OR OTHER WISE DEALT IN BY PARTICULAR PERSON AS DISTINGUISHED FROM SIMILAR GOODS MANUFACTURE OR DEALT IN BY OTHER PERSON.

► OBJECT OF TRADE MARK LAW IS TO DEAL WITH THE PRECISE NATURE OF THE RIGHTS WHICH IS A PERSON CAN ACQUIRE IN RESPECT OF TRADE MARKS, THE MODE OF ACQUISITION OF SUCH RIGHTS, THE METHOD OF TRANSFER OF THOSE RIGHTS RO OTHERS, THE PRECISE NATURE OF INFRINGEMENT OF SUCH RIGHTS AND THE REMEDIES AVAILABLE IN RESPECT THEREOF.

► TRADE & MERCHANDISE MARKS ACT 1958

TRADE MARKS► A PART FROM DISTINCTIVENESS A GOOD TRADE

MARK SHOULD POSSESS THE FOLLOWING ATTRIBUTES:- IT SHOULD BE EASY TO PRONOUNCE AND REMEMBER IF

THE MARK IS WORD. IN THE CASE OF DEVICE MARK TE DEVICE SHOULD BE

CAPABLE IF BEING DESCRIBED BY A SINGLE WORD. IT MUST BE EASY TO SPELL CORRECTLY AND WRITE

LEGIBLY. IT SHOULD NOT BE DESCRIPTIVE BUT MAY BE SUGGESTIVE

OF THE QUALITY OF THE GOODS. IT SHOULD BE SHORT. IT SHOULD APPEAL TO THE EYE AS WELL AS TO THE EAR. IT SHOULD SATISFY THE REQUIREMENT OF REGISTRATION. IT SHOULD NOT BELONG TO THE CLASS OF MARKS

PROHIBITED FOR REGISTRATION.

TRADE MARKS► AN OFFICE CALLED THE TRADE MARKS REGISTRY HS

BEEN ESTABLISHED FOR THE PURPOSE OF REGISTRATION OF TRADEMARKS, MAINTENANCE OF THE REGISTER AND MATTERS INCIDENTAL THERETO.

► APART FROM THE REGISTER OF TRADE MARKS THE REGISTRY MAINTAINS INDEXES OF:- REGISTERED TRADE MARKS. APPLICATIONS FOR REGISTRATION. THE NAMES OF PROPRIETORS OF TRADE MARKS. THE NAMES OF REGISTERED USER.

► DURATION AND RENEWAL OF REGISTRATION IF THE APPLICATION FOR REGISTRATION AFTER ITS

ADVERTISEMENT IS UNOPPOSED OR IF OPPOSED DECIDED IN FAVOUR OF REGISTRATION THE MARK WILL BE REGISTERED AS OF THE DATE OF THE APPLICATION FOR REGISTRATION.

THE FIRST REGISTRATION IS FOR A PERIOD OF 07 YEARS. CAN BE RENEWED TIME TO TIME BY PAYING THE RENEWAL

FEE.

TRADE MARKS► MARKS NOT REGISTRABLE:-

A MARK THE USE OF WHICH WOULD BE LIKELY TO DECEIVE OR CAUSE CONFUSION.

A MARK THE USE OF WHICH WOULD BE CONTRARY TO ANY LAW FOR THE TIME BEING IN FORCE.

A MARK COMPRISING OR CONTAINING SCANDALOUS OR OBSCENE MATTER.

A MARK COMPRISING OR CONTAINING ANY MATTER LIKELY TO HURT THE RELIGIOUS SUSCEPTIBILITIES OF ANY CLASS OR SECTION OF THE CITIZEN OF INDIA

A MARK WHICH WOULD BE DISENTITLED TO PROTECTION IN A COURT OF LAW.

A MARK WHICH IS IDENTICAL WITH OR DECEPTIVELY SIMILAR TO A TRADE MARK ALREADY REGISTERED IN RESPECT OF THE SAME FOODS RO GOODS OF THE SAME DESCRIPTION.

A WORD WHICH IN THE ACCEPTED NAME OF ANY SINGLE CHEMICAL NAME OR CHEMICAL COMPOUND IN RESPECT OF CHEMICAL SUBSTANCES.

MARKS PROHIBITED UNDER THE EMBLEMS AND NAMES ACT

TRADE MARKS► INFRINGEMENT:-

JURISDICTION PROCEDURE. INJUNCTION. DAMAGES. ACCOUNT OF PROFITS ORDER OF DELIVERY UP OF THE INFRINGING

LABELS AND MARKS FOR DESTRUCTION OR ERASURE.

COPYRIGHT►COPYRIGHT MEANS THE EXCLUSIVE RIGHT

TO DO OR AUTHORISE OTHERS TO DO CERTAIN ACTS IN RELATION TO:- LITERARY, DRAMATIC, MUSICAL AND ARTISTIC

WORKS. CINEMATOGRAPH FILM SOUND RECORDINGS.

►COPYRIGHT IS THE RIGHT TO COPY OR REPRODUCE THE WORK IN WHICH COPYRIGHT SUBSIST.

►COPYRIGHT DOES NOT EXTEND TO ANY RIGHT BEYOND THE SCOPE OF SECTION 14 OF THE COPYRIGHT ACT OF 1957.

COPYRIGHT►THE OBJECT OF COPY RIGHT LAW IS TO

ENCOURAGE AUHTORS, COMPOSERS, ARTISTS AND DESIGNER TO CREATE ORIGINAL WORKS BY REWARDING THEM WITH THE EXCLUSIVE RIGHT FOR A LIMITED PERIOD TO EXPLOIT THE WORK FOR MONETARY GAIN.

►THE AUTHOR MUST HAVE BESTOWED UPON THE WORK SUFFICIENT JUDGMENT, SKILL AND LABOUR OR CAPITAL. IT IS IMMATERIAL WHETHER THE WORK IS WISE OR FOOLISH, ACCURATE OR INACCURATE OR WHETHER IT HAS OR HAS NOT ANY LITERARY OR ARTISTIC MERIT. [WALTER v. LANE 1900 AC 539]

QUALIFICATION FOR COPYRIGHT SUBSISTENCE► THE WORK IS FIRST PUBLISHED IN INDIA.► WHERE THE WORK IS FIRST PUBLISHED OUTSIDE

INDIA THE AUTHOR, AT TE DATE OF PUBLICATION MUST BE A CITIZEN OF INDIA.

► IF THE PUBLICATION IS MADE AFTER AUTHORS DEATH THE AUTHOR MUST HAVE BEN AT THE TIME OF HIS DEATH A CITIZEN OF INDIA.

► IN CASE OF UNPUBLISHED WORK THE AUTHOR IS ON THE DATE OF MAKING OS THE WORK A CITIZEN OF INDIA OR DOMICILED IN INDIA. THIS DOES NOT APPLY TO WORKS OFARCHITECTURE.

THESE CONDITIONS DO NOT APPLY TO FOREIGN WORKS OR WORKS OF INTERNATIONAL ORGANISATION.

► IN THE CASE OF AN ARCHITECTURAL WORK OF ART. THE WORK IS LOCATED IN INDIA.

RIGHT OF THE OWNER OF THE WORKS► INCASE OF A LITERARY, DRAMATIC OR MUSICAL WORK, NOT

BEING A COMPUTER PROGRAMME:- TO REPRODUCE THE WORK IN ANY MATERIAL FORM INCLUDING

THE STORING OF IT IN ANY MEDIUM BY ELECTRONIC MEANS. TO ISSUE COPIES OF THE WORK TO THE PUBLIC AND NOT BEING

COPIES ALREADY IN CIRCULATION. TO PERFORM THE WORK IN PUBLIC, OR COMMUNICATE IT TO THE

PUBLIC. TO MAKE ANY CINEMATOGRAPH FILM OR SOUND RECORDING IN

RESPECT OF THE WORK. TO MAKE ANY TRANSLATION OF THE WORK. TO MAKE ANY ADAPTATION OF THE WORK. TO DO IN RELATION TO A TRANSLATION OR AN ADAPTATION OF

THE WORK, ANY OF THE ACTS SPECIFIED IN RELATION TO THE WORK IN SUB CLAUSE (i) TO (vi)

► IN THE CASE OF A COMPUTER PROGRAMME:- TO DO ANY ACTS SPECIFIED IN CLAUSE (a) TO SELL OR GIVE ON HIRE, OR OFFER FOR SALE OR HIRE, ANY

COPY OF THE COMPUTER PROGRAMME, REGARDLESS OR WHETHER SUCH COPY HAS BEN SOLD OR GIVEN ON HIRE ON EARLIER OCCASION.

TERM OF COPY RIGHT

►Copyright shall subsist in any literary, dramatic, musical or artistic work (other than a photograph) published within the lifetime of the author until sixty years (60) from the beginning of the calendar year next following the year in which the author dies.