The provisions related to Specification of a Patent in India are provided under Section 9, 10, 57, 59 of the Patent Act, 1970 and Rule 13, 14, 24A of the Patent Rules, 2003. The Specification of a Patent is a techno-legal document that contains technical and scientific claims and disclosures related to the invention which are the basis of rights associated with the Patent. The Specification, thus, forms a crucial part of the patent application. As per the Patent Act, 1970, and the Patent Rules, 2003, a Patent Specification can be filed either as a Provisional or Complete Specification. Patent Specification and Its Importance A patent specification can be defined as a highly technical and legal document that discloses the invention to the public along with the best method of performing it. The language and the content of the patent specification has to be such that it enables the person ordinarily skilled in the art to practice the invention. Secondly, patent specifications should identify the subject matter over which the patent owner intends to claim exclusivity. The language of the document is generally full of technical and legal jargon as it contains scientific details of the invention. Patent specifications must be drafted carefully from both legal and technical perspective. If the document does not sufficiently disclose the means to recreate the invention, the owner of the patent stands the risk of losing the grant, Similarly, if the scope of the invention is not defined accurately, it allows competitors to circumvent the patent and benefit from it. Therefore, one needs to draft technically sound patent specifications with due care. cof Specifications 1. Provisional Patent Application: This type of patent application is filed by an applicant only to secure a patent filing date with the United States Patent and Trademark Office (USPTO). It is filed when the inventor needs more time to perfect his/her invention. While filing a provisional application, the applicant is required to file only provisional patent specifications, which broadly, though not completely, disclose the inventive concept. 2. Non-Provisional Patent Application: Also known as a regular patent application, a non-provisional patent application is filed within 12 months of filing a provisional application to secure patent rights for an invention. Regular patent application must include a complete specification of patent wherein the applicant discloses all details of an invention in a sufficiently clear and complete manner. In contrast to the provisional specifications, complete specification concludes at least one claim for which the protection is sought.Legal requisites for its submi Now that the demarcation between the provisional and complete patent specification is clear, this section of the article explains the elements of the latter and how they should be drafted. Corea Coord Peay ELEMENTS OF COMPLETE PATENT SPECIFICATION Pee errs Pers + Title: The first part of the complete patent specification should be the title of the invention. The applicant/patent agent must ensure that it fairly captures specific features of the invention. Secondly, the title shouldn’t include abbreviations, the word “patent”, etc. It must clearly spell the objective of the invention and should be between 10-15 words. Id of Invention: This is the section that highlights general and specific fields in which the subject matter of the invention falls. The field of invention helps the examiner to decide which search fields he/she can look into to find similar published technology, if any. This portion of the specification should ideally start with a general statement on invention to indicate the subject matter that the invention is related to. + Background: This section briefly discusses prior arts and their drawbacks or disadvantages, if any. The main objective behind providing this information is to distinguish the invention at hand from the ones that are already being practiced in the targeted industry. The background section sets the stage for describing the invention in detail at a later stage. + Summary: As the name suggests, summary gives a gist of the invention — its nature, objective, composition and operation. Most importantly, summary of the invention should come before the description of the claimed invention. Furthermore, the summary briefly mentions solutions to the problems talked about in the background section.+ Brief Description of Drawings, if any: Though not mandatory, patent applications often include drawings/flowcharts/figures to visually describe the invention, helping examiner to understand the innovation better. So this section presents a brief overview of the drawings. As per the guidelines of the USPTO, the figures should be clean black-and-white line drawings that accurately illustrate the invention. + Detailed Description: This section focuses on providing sufficient details of the invention, including the structural details, how it is used, its objectives and advantages. Solutions achieved by the invention are covered in depth in this section. Most importantly, the detailed description should be provided in a manner that any person with ordinary skill in the art is able to practice the invention. Furthermore, this part may also include examples explaining the overall working of the invention in different environments and possible variations. Also, the description is written from a perspective that every claim is sufficiently enabled. + Abstract: The complete specification of patent includes an abstract that gives technical information about the invention. Essentially, it’s a summary of the matter in the patent specification. The abstract should not be more than 150 words. + Glaim(s): To say the least, claims section is the most critical part of a patent application. This is because the patentability of an invention Downloaded by S.N.S UNIVERSITY OF LAW (lociwe5210@bonges com) is determined by them. Claims clearly lay out the scope of the invention for which protection is sought. Claims should cover important aspects of the invention, such as novelty. This section should be written in a manner to provide the broadest possible coverage and protection for the invention, while remaining novel and non-obvious in light of the existing technologies or art. + Drawings: A patent specification document also contains drawings that help in aiding the examiner's understanding of the invention. Drawings can be diagrams, flowcharts or figures with numeral labelling that identify components or features of the invention described in the claims and detailed description.2)Write a note on Surrender of Patent. Section 63 of the Patents Act, 1970 allows a patentee to surrender a patent. The patentee can offer to surrender his patent by giving notice to the Controller.) The offer to surrender the patent should be published by the Controller, and every person interested in the patent must also be notified of the same.” After the publication, any interested person can oppose the surrender, by giving notice to the Controller which should be notified by the Controller to the patentee.? If the patentee or the opponent wants to be heard, the Controller, on being satisfied that the patent may be surrendered and after the hearing, may accept the offer and revoke the patent by order.‘ The notice of opposition must be given to the Controller within a period of 3 months from the date of publication of the notice to surrender the patent.> If the patentee’s offer to surrender the patent is accepted by the Controller, he may:° + direct the patentee to return the patent; and + on receiving the patent revoke it by order; and + publish the revocation of the patent.19)What are the patentable inventions? State those categories of inventions which are not patentable? Introduction: According to Section 2()) of the Indian Patents Act, 1970 an invention means "a new product or process involving an inventive step and capable of industrial application.", such invention protected under the patent law refers to patented Innovation is an important criterion in determining the patent potential of an invention. Under Section 2(I) of the Patent Act, a novelty or new Invention is defined as “no invention or technology published in any document before the date of fling of a patent application, anywhere in the country or the world”. The complete specification, that is, the subject matter has not fallen into the public domain or is not part of state of the art”. (Section 3 of the (Indian) Patents Act, 1970 The following are not patentable in Indi 1. An invention, that is frivolous or that claims anything obviously contrary to well established natural laws; 2. An invention, the primary or intended use of which would be contrary to law or morality or injurious to public health; 3. The mere discovery of a scientific principle or the formulation of an abstract theory; 4. The mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus Unless such known process results in a new product or employs at least ‘one new reactant; nied by SN UNIVERSITY OF 5. A substance obtained by a mere admixture resulting only in the ageregation of the properties of the components thereof or a process for producing such substance; 6. The mere arrangement or rearrangement or duplication of known devices, each functioning independently of one another in a known way; 7. Amethod of agriculture or horticulture; 8. Inventions relating to atomic energy. 8. Any process for the medicinal, surgical, curative, prophylactic or other treatment of human beings or animals. 10.Plants and animals in whole or any part thereof other than microorganisms. 11. Mathematical or business method or a computer program per se or algorithms 12.literary, dramatic, musical or artistic works, cinematographic works, television productions and any other aesthetic creations. 13.Mere scheme or rule or method of performing mental act or playing game. 14 Presentation of information. 15.Topography of integrated circuits. 16.An invention which in effect, is traditional knowledge or is based on the properties of traditional knowledge.‘The Patents Act, 1970 empowers the patentee to flea suit in case there isan Infringement of his exclusive patent rights In order to file a sult, the limitation period as specified under the Limitation Acts 3 years within the infringement (of the patent rights. The burden of proof usually ies on the plaintiff ro prove that there was patent infringement by the defendant butin certain cases, its at the discretion ofthe court to decide the burden of proof. In India, both districts nd 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 casein 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 ofthe patentees.Ilist down the following activities asthe infringement of the patentee’ rights: 41. Using 2. Making 3. Importing 4, Offering forsale 5. Selling the patented process If the defendant is involved in any ofthe above-mentioned acts, then he will be considered liable for infringement ofthe rights of the patentee. Section 108(1 ‘ofthe patents act, 1970 provides for relief to the plaintif incase his patent rights hhave been violated, The remedies available to the patentee are smporary/Interlocutory Injunction [A temporary injunction is invoked by the court at the intial stages of the suit filed by the plaintiff. This is passed in order to prevent the defendant from jetting further gains by using other patented products. In order to invoke a {temporary injunction, i is important for the patentee to prove that the patent Js valid and has been infringed by the defendant. Also, the subsequent Infringement in his patent rights has caused irreparable loss to him. Permanent injunction [Apermanent injunction is invoked when the eae isfnally decided by the cour. ‘The interim injunction s transferred to a permanent injunction ifthe defendant 's found guity of patent infringement rights. But ifthe defendant is absolved from the liability, then the interim injunction stands dissolved and is not converted into a permanent injunction Damages In case the defendant is proven guilty the plaintif is either awarded damages ‘ran account of profits by the defendant, Damages may not be provided to the plaintiff In case the defendant pleads ignorance and proves that he had 0 eaconable grounds ta believe that the said patent existed at the time of infringement.Procedure of obtaining patent? A.SENTRODUCTSION The human mind 1s a hub 94 Carel vipy and. his cavecrtive wosik Is “Patolec fed thsiough — several Measunts. ‘these aste sevesial forms Of potoltcting -the icoiative activity which 1s a definthe measune o4 Fecamagemen for wnovalions, one suck Paiokechon 1s pakinting * 2. DERTNITLON Pedent ts the exclusive sight “© use oy EXEACSE AN IMVEMHON gorantd +0 a Pesson bn a limited Pertiod in considesiation Q dhe disclose | the raverthon”. “thestefone the patent g7ankad by the Slate ensures that the limited Monopoly ir, SMspect of the use 9) such invention, Howevest, uoless a patert is granted no protection can be Soogh+ IN respect 9) an invention. “the Patent 15 [granted only when an pplication 1s made do the competent assthon} arden the Act and 4 dottilts alt he paescori bed conditions, the slate does not grant A. DaG.B. Reddy,"Aonkellectoal Popestly Righis and he Tas’ (hyderabad! Joga Low Agen’y,’ 2.005), P. 201 MY Paltnl so mola Te on tls own” [DraANS) Part, sb0 MOLL Le ap rls om” “REGISTRATION OF PATENT EE PENT Port Ach IMO proces lor “Ihe Porecedusie fo. srggisteat tbe patents zip so doa -the pajcednte fey oblaining the patenl in drdia ts corceaned of slark with -the sregistoiertion ay Paterrt Ailing 9) applica “hon et patinds ard ends lth the gaand and Sealing 4 paterrls, the vamtous sloges in the acquis for palin moy be batiefly explained os ercten, A Appleton fen Patent [2 Exominechon 9 Patent — oppevlio~ = AY 3. Peblcaton of pate = appostinon - Abbas? AGaontng oy ent _ | 3 2. Abid. p. 202 2. abide. 29 Bets APPLICATION ToR PATENT = AD aPPhertION fo. ary py oy 9) the ilowrng pronons Le Yoventon may be mede @) Amy perwen claiming fo be the “Ime ond fue vnvemtor g the rpverstion (©) APY astiqnee gy Such mnverton, CO) te legal supairemetive of any could BE etthtoy the itt owe assignee aeeaced power who over, wo the «COSC ANosIoNS Rater cose, | ar Ake above cast the coor held hat ethene a ico Wear 10, making 6 verhen by 7. Pons, thy [wecome cornventons,!An bis case Count held that paket ts given foot voiellecval suy, A pesion helping ‘fieancrlly canast be aalled os a coinverrion ard cannot be gpanied paknice auqhl. Every such application chould be in pawscanbed foam and filed 19 the pattn) office, an cate a the Apphicrtion mate by an assiqnee he morl paodue the 4B os, SAIC1380) poieai 9} bK ANGE before oak ng As pet “The paieceduae lard down rn seehon 4, ey) Such epphewtion should be axampanied by « porostoral on complele speciation 9| he invention oppleeion speciiearhoo should be ateael as a whole, svety specific or .eHhea! Provisional om eomplele shasld descanbe | abe rowention , W should beg with a ile, So tleenly hindering the Subject mecicar do which the invention Lave. vA Necessary dotauings may be supplied, [peg Complde sperhetian shesld GD) deesnbe dhe wnverton and WS opestctron and vie and meals, a (N) disctore ‘he best method a, perrtoiming -the overt) © end wth a cate on dams Aetining the ope g | athe wverrhon 4651 which protection clarmed, Fs aeqpoett 40 paowsional epecitiatton, 4 shoud [de Sotticrenl descouptton fo jrdhtaale the sobyee} matter REQ 19 the cote q complete specifiahon beginning with the thle. the bate abyohve yf a pation date a ‘the patent. the applicant gets A matinom Ped a) 12 MONI wrthin which he con tile comple le specrsicarhon®32 2. EXAMINATION 2 chapter SM art sectons WA to 21 deal wth athe, pobtiartton and examination tbe apphearhons fo Jans cHled bene the competent authoon ly, une ane Camplele Spe rficction has been filed wn ae pect ay 0h OPPiarhO om patent the application olorg Joh the speciation chad be steam by the | corrscllest ‘FO a0 examines | ‘The txamination systm eolloued 19 India fenfowris the steponnbiksy g deadireg “the walldety 9 ibe appheattoa. the Examination ts conduckd based on [ces povinapls and perametyat, The cxamnation = lon seosth aj the apptcstion 1 dane by the Lcontbrellesi to determine i Compliance , porcedusely | os well as sobstamtively with the paoucient 9 the fA and athe stokes faicuned theseerder . fort the sake” 94 convinence the examin ation 9 “the appliacion Imag be devided tnt vo HP.C1) Fosimal examination, ‘chich dekowmines whethear the apphattion complies jolt the prtescombed form fee parvlreulaay do be jhoorshea and dotwments_sjo_be_sobmit ed. 6. Tha. p. 506. a ju) Sobstontive examinertion , which deleamines whethent ane MOHEL §S an invention and camplied watt. this | | incledes a Seasiety do deleamme pari ure , pottert claims, PAI poblicadton and potty public maoakieg. Poor OF MENS, Ue oF tovertion derenbed m the |prwwssronal spectteetten and publuhed in dndea ont hy 7 jetee OE bekeore Ailing thet specthiceetion. Patios, clarm ws where the tmventian ceamed in the complete specHtve409 OM Om atte «tne Poverty dake oj ‘he opeliction claten « bu} having pattenttfy dake easily than “that a} appetiant™(3.3- PUBLICATION (58: PUBLICATION i} Povion publication means wtshesie the wverrt1on claimed tr the complete specification wag publithed befone “the Proxy dake to dicksa © eseahtre. potter poblicatton fo be valid and PrP, Caton mos} Sobstantally aneore the e subject madi g applicant: nverhon. “Theateforie hee ‘The opponett failed 40 indicate all the step, s fed the vveotion im any pobhehon sideed by | by | fmt. nus Tssac Ds00%8,* leglseswicenaia. CO", Dols [223 | | 3 Pm. | 6 ve a a _—. apes ANE OPPOSINEA wok be lable fo be sigtokd, bere TRE opponent aims that the paitost pobhec 10 MEL g Baetan language art langeege Aneel POO ANE Ergtsh Hf wool be hece stony fo prdscr the davanslarten, af the fails -b potoduce jwansleton, he opposition would be liable Jo be syle | Got EFFCT OF Expntarans Section 134) ay the act dearly states that “the ominadten and unachyahon mentioned abue doc Jot warrant the vabdtly a any paitnt. The igh Court has =ecently explained the pateromphion lg vabatdy as orden in Ms sand pack Puf.ldd. vs, | |u]s_ sual mond tre | ne Sebel Qh any claim oy the complele specthea ston nel an vention with the meaning a this Act oxi thect the Invention so dast at claimed 1 any claim gy the comple specification 1s no} new haviay howing sieges to what was poblicly pati Foun ont pablchy vied 19 Srdta_befosie he A HE Mam oy e a ; 49 whet ues pablitheh ¢9 Many a) the doromeds siettarre yo SMO 3 051 ty va ot eetabene ‘The nvervtion so fast as 1 QJ clam gy tre comple. spectsnarlton 1s wor’ OA doe Mat involve any taventive step, ord egos to what was poblily Frew ost lily OG 19 Thdta ody eliewhene bedoae “he _roatty dC 9h the claim, |I ost: gvaantcka v. Mls stat plasah wonks4 edn Thi care Madsiat Htqh covstt held that yasiom the obyctony sated by she delendand 4 is ¢kook thal O Stattous Contaravestsy exicds as 40 whethest janet dhe tovertion involves any new inverhyr skill cg regard to what osas town on used Palo fo he date gy the patent} courts would not griant an ippaction orerfaralning ‘the defindant fiom pertving his lonmal buisness Achy . T+ was abo hed thal on inom terpaction would not be grankd tf the defends 4 disputes the validly 4 the gpant a gufs nicky ‘Tasha ard put lid. v. ms Fasvdakod Gor adyeds Pui id) Tare ia6y Mod. 323 a} 328 Sere \qay Delhi 136 at NO. i a q ah 6 r qn Wn Cove cag obirowed Deel HO MoDECON shovtd PE Q>OMI aber there 16a. Seu, quethon Jay AO MAN gp stye detapn tO be fauiel fer the cord Land A apPhcarlon spy, cancellation hat been made, 1 lomtovolleny atten consideating are Aindltnyy thes ape hcarlton OL SPCC ION does aod comply with he speciation mag) Hel, May - A avd HW Patoceedl wilh the apphea tion ov 8) ateq urate tlhe app ltcatron , specisicadton oo Aorowings do be amenced fo bes satisfaction besbote he paoteclt with the application," x OO3.6. GRANT of PENT ENT This ts dhe tart stage w acquiainy 9 Pater, chapel Ta ard sections U3 to s3. deal with this st0cess. Whee a complete Specthtarton 19 Peswuance gan applicerlion fon a patent has been accepted and (i) the application has not been Opposed with +he chime parescoubed } ony (H) Ahe application has been opposed and t has been decided 19 favours a) the applicant) o>} | ay low nda’, Cltydexabad UL Nastayan. 5 “antellectoal prope Giogra Lav At: 2005), P. 20] oo to r anythe Appliceetrovy has nod been dichused by the corAMOller By vse fuye Oy powen Vested in bien OO Abe Aequer| mace by the applicant, “Ihe patent shovld be goanted so the applicant on appliants as ‘the ast May be. Thesteaftts) the confrtollesr should distect aden: ape PEM to be seated wlth the seal of the patent | affice and the date Q| Sealing 9 the should be entenied | yo The seg istesy"™ | | | |What are the rights and duties of a Patentee in tespec at t OF the patent granted to him? Answer Any Patent right is a statutory right granted in favour Of true and first inventor or his assignees or to his legal heirs for 4 certain period. However, it is to be noted that any Patent granted to any person is not absolute, but subject to Certain conditions as provided under the Act. The Patent Act, 1970, provides certain rights to a patentee under Sections, 28, 48, 50, 53, 63, and 68 of the Act. The following are the important rights of a patentee: Section 53: Term of patent: After the commencement of the Patents (Amendment) Act, 2002, the term of every patent granted, and the term of every patent which has not expired and has not ceased to have effect, shall be twenty years from the date of filing of the application for the patent. Section 6: Persons entitled to apply for patents: (1) an application for a patent for an invention may be made by any of the following persons, that is to 4~ (a) by any person claiming to be the true and firs inventor of the invention; (b) by any person being the assignee of the pers claiming to be the true and first inventor in —" of the right to make such an applications (©) by the legal representative of any deceased P ¢ : who immediately before his death was entitle make such an application. son(2) AM application may b : either alone or joint ¢ made by any of the persons Section 135: Right to mal ‘A patentee has Y with any other person. . ke a convention application: n a right to make a convention application for rorection of his patent in other convention countries, if India js a party to such an international instrument. Section 5 4: Right to apply for patent of addition: A patentee is entitled to apply for a patent of addition relating o his original invention, It means, he can make improvement or modify his invention to its main invention. Right to duplicate patent: If the original patent issued in favour of the patentee is lost or damaged or destroyed or its non-production is explained satisfactorily to the Controller, he can make an application for issuance of duplicate patent granted in respect of his invention. Section 84: Right to assign and licence: A patentee is entitled to assign, grant licences to another or others as the case may be for any consideration. If the transfer or of a patent is only a share holder in a patent, then he can assign his share of the patent with the consent of the other shareholders or under the directions of the Controller. Section 63: Right to surrender: A patentee at any time can surrender his patent granted by giving notice in the prescribed manner. This right is provided under Section 63 of the Patent Act. According to it, when a Patentee makes an offer to surrender his patent, the Controller Must advertise such offer to enable the interested parties to °ppose the same. Rights before sealing: A patentee is entitled to certain rights ‘ven before the sealing of the patent. As per this right, an ®plicant would be entitled to certain privileges from the date of advertisement of the acceptance of a complete specification ind until the date of sealing of the patent. During this period,a patentee enjoys such privilege as if a patent is Branted, However, he cannot institute any legal Proceedings for infringement of patent. Section 108: Right against infringement: A patentee is entitled to institute suits whenever 3 Patenr is infringed. He can file a suit for declaration, 1NjUNCtiog and for damages and account of profits. A District Court is a competent Court having jurisdiction to try such suit for violation of patent rights. Right to certificates and copies of registration: Any Patentee is entitled to obtain certified copies of any entry in the Tegis or certificates of or extracts from patents, specifications ; — other public documents in the patent office or from the registers and other records kept in that office. Duties of a patentee: A patentee who enjoys various rights in respect of a patent granted is subject to certain duties. The important duties are as follows: 1. It is one of the implied duties of a patentee to work its patent in India in such a manner so as to not to deprive the reasonable requirements of the public. He must make the products of his patent available t0 the public at reasonable prices. Every patentee shall submit periodical statements to the Controller in respect of its invention on a commercial basis in India. 4. A patentee is under an obligation not to make baseless and unjustifiable threats of an action for infringeme" for payment.Who is a Patent Agent? Discuss his qualifications ang tg under the provisions of the Patents Act, 1970, or Can a patent agent once appointed be removed? Answer Sections 125 to 132 of the Patents Act, 1970, deal with the provisions relating to Patent Agents. A Patent agent is a person who acts on behalf of the inventor to take up the work relatin to drafting of specification, making an application for a patens, subsequent correspondence with the patent office on the objections raised, representing the applicants case at hearing, filing opposition proceedings. All the above works are highly technical in nature and requires professional and practical knowledge relating to registration of patents. Hence, these duties are ordinarily entrusted to a qualified person who may be called as patent agent. Register of Patent Agents: Section 125 of the Act says that the Controller shall maintain a register to be called the register of patent agents in which shall be entered the names, addresses and other relevant particulars, as may be prescribed, of all persons qualified to have their names so entered unde! Section 126, Section 126; Qualifications of Patent Agents: With a view to maintain a high standard of efficien¢Y and professional integrity, the Act has prescribed certal? jalifications for Persons Practicing as patent agents and Mivided for their registration According € Section 126 of the Act, a register of patent agents iS maintained by the Controller, Following. are the quiifiations required to be a patent agent @) He must be a Citizen of India, (b) He must have completed 21 yeats of age () He must be a graduate from any recognised university in India or possess such other equivalent qualification as the Central Government may specify in this behalf, and(@) He must be either an advocate or one who has passed the prescribed written examination, (© He must have paid the prescribed fee. Section 127: Rights of patent agents: Section 127 of the Patents Act, 1970, gives certain rights to every registered patent agent under the Act. They are: @) He is entitled to practice before the Controller in respect of the matters connected with patent rights. (b) He is entitled to prepare all documents connected with patent. (9 He is entitled co be authorised by an applicant to sign all applications and communications to the controller. Section 128: Subscription and verification of certain documents by patent agents: (D all applications and communications to the Controller under this Act may be signed by a patent agent authorised in writing in this behalf by the person concerned, Provided that if such person is absent from India, they may be signed and verified on his behalf by a patent agent authorised by him in writing in that behalf, Section 129: Restriction on practice as Patent Agent: no person, either alone or in According to this section, : partnership with any other person, shall practice, desctibe or hold himself out as a patent agent, or permit himself 1 be described or held out unless he is registered a8 a patene agent. Position and liability of Patent Agent: In Halsbury’s Laws of England, 3rd Edition, Vol. 28, Page 19, Para 17, the position of patent agent is stated as follows: “When a person so practicing as patent agent fails to possess the amount of skill and experience which is usual in bis profession or calling, if he neglects to use the and experience which he posses, he will usually be liable for breach of contractual duty. Hence, the legal position of patent agent can be compared with the relationship of principal and agent under the law. He will be held liable for his gross negligent act. Section 130: Removal of Patent Agent: Section 130 of the Act, empowers the Controller to remove the name of any person from the register when it is satisfied that: (@ his name has been entered in the register by error or on account of mistepresentation or suppression of material fact; or (ii) he has been convicted of any offence and sentenced t0 a term of imprisonment or has been guilty of misconduct in his professional capacity which in the opinion of the Controller renders him unfit to be kept in the register.7. Discuss the factors which are accountable for the growth of IPRs. Inoduetion "intelectual Property" encompasses several feds Copyright ow protects "origina forms of expression - “Star Wars"Faeer onthe Rot: ater aw protects ventions ~ wines chemical proceses, eenecally engineered mice “Trademark aw protects words and symbol that identity goods and services = "McDonald, Trade secretiaw protectsnformation that a company as ~steet formals for soft denks, confgentia marketing strates. Growth {Allaboefelds have grown teal and dramatically rom the eghteenth century othe present. Copytieht Detnions ‘Unt the mil ofthe nineteenth century, was verbatim copying terl text andnothing in 2853 German tranlaton of Ure Tom’s Cin dna ing cope. “Toward the end ofthe nineteenth ant this became“ thesubstane, and notte form alone” Nw, Translations Close approxmations of» pt, screenpays based on anove, tae ofthe chuecters from arnovi or book to crete an unauthovised sequel altheseconstite nfengerent ind of Works 12888 photographs could be copyrighted In 1971 musical recordings coud be copwighted Now computer software and arcntectural wrk ae ak rotetee uratior The origina, 1790 Copyright Act established a copyright term of 18 years the author were ti lin at the end of hat erode coud renew the copyriah for an adtionl 1 years Ir tsnow 60 years afta the death fan author in nda, From simple mvertions, Patents now include Insta Desir “These ight are forthe vu design of objects, ‘They ned nt be uttarian, but they should have an aesthetic ooramental value. Inreferst shapes, colour, patterns oa combination fal hes thing. Dowdy hv Fat Ane sn T258)u0:3m) ‘Example Coke Contour bette. surgical Procedures. Inthe 1950s, methods or modes of reatment of certain eseases became patentable, Pants. Pans were considered products of ate and hence unpatentabe ‘he Poe Patent et of 1930 overode this princi Irewtends protection to new varieties of seal reraducig pants Now, protections farther extended to new and "ssi" sewally reproducing plant varieties. Concept of equivalents” Inthe neteenth century rvas would, by construing products tha ifered in minor respects cid bit, ours develope te doctrine of “equaents” to prevent such evasive manoeuvres Fist the doctrines avaiable in everycas respective of fraud Second, the paints need ony show that defendants’ products arent "substan feent Final the doctrine maybe invoked even when the defendon's producto acy any became pont 3 er of new tecmnoloy.‘Trademarks: ‘Manufacturer Names Initially, tobe protected, a trademark had to include the name ofthe manufacturer. Arbitrary or Faeiful names or geographic names did not quay Gradually, these and other restrictions were lifted Newspaper Names The names of newspapers, hotels, and other businesses, were aso included. Trade Dress In the twentieth century, there came the doctrine of trade dress, the package, case, or vessl in which the commodity is put, if prepared ina peculiar or novel manner," were included, Uniforms. 8y the late twentieth century, the uniforms of the cheerleaders forthe Dallas Cowboys football team and the layout and appearance of greeting cards were included, Similarity Initially, only the use by competitors of identical marks (or portions thereof] was actionable, vatstictwe tween SLUDOCU.COM Dowland by Ad Fain! Ai issn 7888 yahoo.com) Later, competitors were prevented from using marks sufficiently similar as to cause consumer confusion Factors for Growth [Ahost of factors, economic, ideological, political, and some peculiar to the sphere of te law caused the growth, Economic Needs 1 In the elghteenth century, there was heavy dependence on Agriculture. ln the nineteenth century, the economy became more dependent upon industry. In the twentieth century, information processing isthe principal source of obs Hence there was an increased need for intellectual property i Advertising ‘Another important factor was advertising During the '20s there was a surge in advertising expenditures: the proliferation of national brands; manufacturers! experimentation with advertising ta reduce investment sks; and rapid product style changes to stimulate consumers’ thirst was promoted by advertising ‘Much of the advertising money was spent on trademarks and tradenames, ‘Manufacturers wished to prevent others from “tree-iding” on their investments and sought strengthened trademark protection. Ideological Pressures Labour-dessert theory of property. Te notion is that a person deserves to own something that he or she has created through his productive labour. Heroicimage of The Inventor To be patentable, an invention must be "nonobvious" to a person having ordinary sillin the pertinent art. Thisis plainly traceable tothe heroic image of the inventor. What has tabe rewarded are flashes of creative genius” nat, mere works of craftsmanship,Government Encouragement The Government identifies and rewards good works of art and socially valuable inventions. ‘The rewards may be in the form of selective grants. Political Pressures Legislation (On August 18, 1787, the first draft of what ultimately became the intellectual-property clause was presented. ‘Many examples of exertion of the same kind of pressure can be found in the legislative history. 24 Downloaded by Adv Faisal Awais (aisl_awais786@yahoo com) Propertization In the eighteenth century, lawyers and politicians were more likely to refer to patents and copyrights as "monopolies" rather than “property.” Until the middle of the nineteenth century, tort law, not property law applied to this field. Gradually, it began to be accepted that dissemination of information are forms of "property." The trend is now the use of the phrase “intellectual property.” ‘The use of the term "property" to describe copyrights, patents, trademarks, etc. conveys the impression that they are fundamentally “like” interests in land or tangible personal property. ‘They should be protected in the same way. In the 1921 case of Fisher v. Star, it was ruled that the comic-strip characters, Mutt and Jeff, could not be used by the defendant newspaper without the permission of the creator of the characters.HISTORICAL BACKGROUND OF IPR The origins of Itllecunl Proper — S00 BC ‘The hisory of intlecual property is comple and fascinating. It bezins in $00 BCE when Spars, a Greek state, mae it possible for chiens to obuain sone year patent for “any new ‘refinement in lava.” Patent, traders and copyright laws have besome moce completed in ‘he ensuing centuries but the intent remains the same. Countries establish ineletal property laws to faster creativity and to make it posible for the inventor to reap the heaefis of thee Intellectual Property Lexisltion 1623, Mentions of copyrights, potent and otr mates of inllstal propery law ar parse in catly history tis nt until medieval Europe that some major and well-known leistion was passed, The frst ofthese was the State of Monopolies. This British law was established in 1623. At the ‘ime, all msjor indies were controlled by guilds, Each guild held considerable power, with the goverment endowing ther wih the abit o dictate wha roducs an aw materials cout ‘be imported at well as how those items would be produced and sold, Moreover the gus were responsible for binging all new innovations to the marketplace, essentially giving them ‘nership and conto over inventions even ithe ha nothing ta do with ther cretion. ‘Ownership igh 1710, ‘The State of Monopolies changod tha by allowing the thor ot inventor to retin thsi ‘ownership rights. Monopolies in the form of government-sanctoned guilds, were no longer ‘famed. The law also guaranteed the inventor a 4 year potod during which he had the exclusive Fiat wo gover bow bis invention was used Other significant lesson came in 1710 wih he Statute of Anne. This lw similarly provided a1 year tem of poteton cao gave inventor ‘he option of seeking a 14 year renewal term, Aimed largely at copyright, this Iw granted authors rights inthe reteation and disibution of thee work Intellecal rept in colonia US = Early 1800°s ‘Shorty flr the US, broke sway from Great Beta, most of the 15 colonies ha established is ‘own system for intlloctaal property protection. The one exesption 19 this was Delaware However, it ws soon apparent that hiving cach sie operate its own system of itll property potetion was problema, leading to the estblishment of federal ws that had recede over any sate ws (Gal inttlgcul Property — Late 1800°s In 1883, the Paris Convention came into beng twas a international agreement trough which inventors could proc heir inmavations even if they were being used in other countries, Writers ‘ame together in 1886 for the Bere Convention which lad to protection on an international level forall ems of writen expression as well as songs, drawings, operas, sculptures, putings and ‘more Trademarks began to gin wider protection in 1891 withthe Madrid Agrooment while the ies erated hy the Paris and Borne Conventions eventually combined w become the United Inventions! Burau forthe Protection of Intllstual Property, the precursor of ways Work Intellectual Property Oraniaton, which tan fice ofthe Unite Nations.Ql. What is intellectual property right? Examine the different forms of intellectual property rights Intellectual Property (IP) refers to creations of the mind, such as inventions, literary and artistic works, designs, symbols, names, and images used in commerce. Intellectual Property Rights (IPR) is legal protections granted to the creators or owners of intellectual property, allowing them to control the use of their creations and reap the benefits from their innovation or creativity. The primary purpose of intellectual property rights is to encourage innovation and protect the interests of creators, inventors, and businesses. In other words Intellectual property is a broad categorical description for the set of intangible assets owned and legally protected by a company or individual from outside use or implementation without consent. An intangible asset is a non-physical asset that a company or person owns. The concept of intellectual property relates to the fact that certain products of human intellect should be afforded the same protective rights that apply to physical property, which are called tangible assets. Intellectual Property Rights (IPR) refers to the legal rights granted to the inventor or manufacturer to protect their invention or manufacture product. These legal rights confer an exclusive right on the inventor/manufacturer or its operator who makes full use of it’s his invention/product for a limited period of time. Most developed economies have legal measures in place to protect both forms of property. It is very well settled that IP plays an important role in the modern economy. MEANING: According to Article 2 of the WIPO (World Intellectual Property Organisation) ~ Central Organisation for the protection of Intellectual Property Laws and the expert organization of the UN, “Intellectual Property shall include the rights relating to literary, artistic and scientific works, inventions in all fields of human endeavour, scientific discoveries, industrial designs, trademarks, service marks and commercial names and designations, protection against unfair competition, and all the other rights resulting from intellectual activity in the industrial, scientific, literary or scientific fields.” IPR encompasses the legal rights granted to individuals and entities for their intellectual creations, inventions, and innovations. These rights are crucial for fostering creativity, innovation, and economic growth, and WIPO plays a key role in promoting international cooperation and harmoni ion in the field of intellectual property. Nature of Intellectual Property: Intangible Rights over Tangible Property: Intellectual Property (IP) is characterized by its intangibility. 3. IP establishes property protection for intangible assets like ideas, inventions, signs, and information. 4. Creators or owners can benefit commercially from their works. 5. Right to Sue: In legal terms, IP is an own able and manageable asset. IP rights are contested through legal actions, enforceable by those with specific rights. 6. IP canbe inherited, bought, gifted, sold, licensed, entrusted, or pledged. Owners can use their IP as they choose, subject to conditions, and take legal action against unauthorized use.KINDS OF IPI Copyright: Copyright law deals with the protection and exploitation of the expression of ideas in a tangible form. Subject matter of copyright All subject matters protected by copyright are called ‘works’. Thus according to Section 13 of The Copyright Act 1957, it may be subjected for the following works: ‘* Original Literary Work, ‘© Original Dramatic work, © Original Musical work, ‘© Original Artistic Work, ‘© Cinematography films, and ‘+ Sound recordings The term "copyright" refers to a collection of exclusive rights that Section 14 of the Act grants to the ‘owner of the copyright. Only the copyright owner or another person who has permission to do so from the copyright owner may exercise these rights. These rights include the ability to adapt, reproduce, publish, translate, and communicate with the public, among other things. Copyright regi Copyrights and does not grant any rights. ration just establishes an entry for the work in the Copyright Register kept by the Registrar of It resides in literary, dramatic, musical and artistic works in ‘original’ cinematic films, and in sound recordings set in a concrete medium. To be protected as the copyright, the idea must be expressed in original form. Copyright acknowledges both the economic and moral rights of the owner. The right to copyright is, by the principle of fair use, a privilege for others, without the copyright owner's permission to use copyrighted material. By the application of the doctrine of fair use, the law of copyright balances private and public interests.Patents: A patent is a legal grant provided by a government to an inventor, giving them exclusive rights to their invention for a specified period, of 20 years. Patents cover a wide range of inventions, including processes, machines, products, and certain types of plants. Every invention has to pass various tests and fall under the category of inventions that can be patented in India. The 3 main tests are novelty, non-obviousness and utility. There are certain requirements that need to be fulfilled in order to get a patent for an invention. This exclusive right allows the inventor to prevent others from ‘making, using, selling, or importing their patented invention without permission. In Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries (1979), the Hon'ble Supreme Court explained the objective of a patent. The object is to encourage scientific research, new technology, and the progress and development of industries. it stated that the purpose of an invention is to protect and promote fair competition in technology in order to transform the creations into productive forces. It was observed that the foremost principle of the patent law is to grant a patent only for an invention that is new and useful, i.e., novelty and utility, respectively. ‘Trademark: The word “trademark” can refer to both trademarks and service marks. A trademark is used for goods, while a service mark is used for services. trademark: «Identifies the source of your goods or services. * Provides legal protection for your brand. + Helps you guard against counterfeiting and fraud. Under The Trade Marks Act, 1999, the word “mark” is defined under Section 2(1)(m) as “a device, brand, heading, label, ticket, name, signature, word, letter, numeral”. The term “Mark” under the ‘Act also includes the shape of goods, packaging, or combination of colours or any other type of combination. Section 2(1)(zb) in the Trade Marks Act, 1999 defines trademark as a mark which is:* capable of being represented graphically; * capable of distinguishing the goods or services of one person from those of others; ‘* may include the shape of goods, their packaging and combinations of colours. Geographical Indication: The Geographical Indications of Goods (Registration and Protection) Act, 1999 (GI Act), in Section 2(e), defines the term “geographical indication” as ~ “An indication which identifies such goods as agricultural goods, natural goods or manufactured goods as originating, or manufactured in the territory of a country, or a region of locality in that territory, where a given quality, reputation or other characteristic of such goods is essentially attributable to its geographical origin and in case where such goods are manufactured goods one of the activities of either the production or of processing or preparation of the goods concerned takes place in such territory, region or locality, as the case may be.” A geographical indication (Gi) is a sign used on products that have a specific geographical origin and possess qualities, reputation, or characteristics essentially attributable to that place of origin. It serves as a form of intellectual property protection, preventing unauthorized use of the geographical name on goods that do not share the unique qualities associated with that particular region. The protection of geographical indications helps promote and preserve the distinctive qualities of products linked to their geographic origins, supporting local economies and allowing consumers to make informed choices based on the reputation and authenticity of the goods. Darjeeling tea was the first product that got a Gl tag in India in 2004-05. Industrial design: It is one of the forms of IPR that protects the visual design of the object which is not purely utilized. It consists of the creation of features of shape, configuration, pattern, ‘ornamentation or composition of lines or colours applied to any article in two or three-dimensional form or combination of one or more features. Design protection deals with the outer appearance of an article, including decoration, lines, colours, shape, texture and materials. It may consist of three- dimensional features such as colours, shapes and shape of an article or two-dimensional features such as shapes or surface textures or other combinations. Industrial designs are those designs that give ornamental or aesthetic value to a product, which is then manufactured industrially. An industrial design may consist of three-dimensional (3D) features such as the shape of a bottle or vase used in various industries or two-dimensional (20) features such as patterns for textiles and wallpaper that serve the purpose of decoration.Plant Variety: A plant variety refers to a distinct and uniform group of cultivated plants that share common characteristics, differentiating them from other varieties. These characteristics can include traits such as , colour, shape, resistance to diseases, and other unique features. Plant varieties are often the result of selective breeding or genetic manipulation to enhance specific desirable qualities in crops or ornamental plants. Plant variety protection (PVP) is a form of intellectual property right that grants exclusive rights to the breeder of a new plant variety for a specified period. This protection enables the breeder to control the commercial propagation and use of the protected plant variety, ensuring that others cannot reproduce or sell it without permission. Plant variety protection aims to incentivize investment in plant breeding, promote biodiversity, and contribute to agricultural and horticultural advancements. The object is to perceive and secure the privileges of farmers in regard to their commitments made whenever monitoring, improving, and making accessible plant hereditary assets for the advancement of new plant assortments. The enactment of the Protection of Plant Varieties and ‘Farmers’ Rights Act 2001 is an outcome of the India’s obligation which arose from article 27(3)(b) of the TRIPs Agreement of 2001 which obliges members to protect plant varieties either by patents or by effective sui generic system or by any combination thereof India declined to protect plant varieties by a sui generis law, i.e. the Plant Varieties Act. Trade Secret: A trade secret is confidential business information that provides a competitive advantage to its owner because it is not generally known to the public or easily discoverable by others. This can include formulas, processes, designs, patterns, and compilations of data, customer lists, and other proprietary knowledge that gives a company a distinct market edge. Unlike other forms of intellectual property, such as patents, trademarks, or copyrights, trade secrets are not registered with any government agency. Instead, their protection relies on the owner's efforts to maintain secrecy. Companies often use non-disclosure agreements (NDAs) and other measures to safeguard trade secrets, and legal recourse is available against individuals or entities who unlawfully acquire, use, or disclose such confidential information.