PRESENTED BY AJITH S JOYCEE SNEHAPRIYA JOSEPH

PATENTS ACT 1970

Introduction

• Intellectual Property

• Patent

• Copyright & Trademark

What is a Patent?

Sec2(1)(m) of Indian Patents Act states that “Patent” means a patent for any invention granted under the Act. It can also be defined as “a grant from government, which confers on the grantee ,for a limited term, the exclusive privilege of making, selling and using an invention and also authorizing others to do so.”

Related Terms

• Patent Agent-means a person for the time being registered under this act as a patent agent. Sec2(1)(n)

• Patent Article & Patent process-means respectively an article or process in respect of which a patent is in force. Sec2(1)(o)

• Patentee-means the person for the time being entered on register as the grantee or proprietor of the patent-Sec2(1)(p)

• Invention-means a new product or process involving an inventing step and capable of industrial application-Sec2(1)(j)

Requirements for an invention to be patentable

• Test of Novelty- The subject matter should be new

• Test of Utility- It should be useful

• Test of Vendibility-The subject matter should be capable of being marketed for ‘commercial purpose’

Inventions not Patentable Sec(3)

• Frivolous inventions • Inventions contrary to public order or morality• A mere discovery of a property, process or a

substance• Method of agriculture or horticulture• Mathematical or business method or computer

program• Traditional Knowledge• Sec(4)Relating to atomic energy

Process Patent

• Sec5 of patents allows only process patent

• Sec5(2) of Patents (Amendment) Act 1999 grant product patent for medicines or drug

Applications for Patent

• A patent application can be made by any of the following persons either alone or jointly:

• a) True and first inventor

• b) Assignee of (a)

• c) The legal representative of (a) or (b) after their death

Publications & Examination of applications

• Every applications shall be published

• It shall be notified in the Official Gazette

• Publications shall include all particulars

• Examiner gives a detailed report

Opposition Proceedings to grant Patent

• Before Patent is granted

• After granted but before the expiry of an year

• An Opposition Board is constituted

Provision for secrecy of certain inventions

• If the applications are as relevant for defense purpose then the publication of information will be prohibited

Grants of Patents&Rights conferred Thereby

• Grant of Patent

• Date of Patent

• Rights of Patentee

• Term of Patent

Patents of Addition

• Means a patent granted in accordance with Sec 54

• For the improvement or modification of a patented invention

• The term run concurrently and terminate with the main patent

Amendment of Applications & Specifications

• The Controller is empowered to allow amendment

• Reasons and nature should be specified

Restoration of Lapsed Patents

• An application should be made within 18 months

Surrender and Revocation of Patents

• A patentee can offer to surrender his patent after giving a notice

• Controller

• Appellate Board

• Court or the Central Government

Register of Patents

• Register of Patent shall be kept at the Patent Office

• Computer Floppies, Diskettes, electronic form

• Prima-facie Evidence

Patent office, its establishment ,powers of control

• Head office at Kolkata

• Controller General of Patent ,Design, and Trade mark is the controller of Patent

• Powers Of Civil Court

Working of Patent

• Inventions are granted for being used and not for hoarding

• It should not be granted to enable patentees to enjoy monopoly

• Promotions of technological innovation• Patent granted do not impede protection to

public health• Patent inventions should be available at

reasonably affordable prices

Compulsory Licenses-Sec 84

• After the expiration of 3 years from the grant of patent an application can be made to grant compulsory license

Suits Concerning Infringement

• Court grant relief in cases of groundless threats of infringement ,including an injunction, or seizure of goods or damages

What is copyright?

Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. In fact, it is a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work. There could be slight variations in the composition of the rights depending on the work.

Why should copyright be protected?

Why should copyright be protected?

Copyright ensures certain minimum safeguards of the rights of authors over their creations, thereby protecting and rewarding creativity. Creativity being the keystone of progress, no civilized society can afford to ignore the basic requirement of encouraging the same. Economic and social development of a society is dependent on creativity. The protection provided by copyright to the efforts of writers, artists, designers, dramatists, musicians, architects and producers of sound recordings, cinematograph films and computer software, creates an atmosphere conducive to creativity, which induces them to create more and motivates others to create.

Will the strict application of the principle of protection of copyright hampers economic & cultural

development of the society?

Exemptions

Uses of the work – for the purpose of research or private study, – for criticism or review, – for reporting current events, – in connection with judicial proceeding, – performance by an amateur club or society if the

performance is given to a non-paying audience, and

– the making of sound recordings of literary, dramatic or musical works under certain conditions.

APPLICATION

The Copyright Act, 1957 protects original literary, dramatic, musical and artistic works and cinematograph films and sound recordings from unauthorized uses. Unlike the case with patents, copyright protects the expressions and not the ideas. There is no copyright in an idea.

• Copyright subsists throughout India in the following classes of works: – Original literary, dramatic, musical and artistic works; – Cinematograph films; and – Sound recordings.

• In the case of a literary work copyright means the exclusive right

• To reproduce the work • To issue copies of the work to the public • To perform the work in public • To communicate the work to the public. • To make cinematograph film or sound recording in

respect of the work • To make any translation of the work • To make any adaptation of the work.

Procedure for registration of a work under the Copyright Act,1957

Copyright comes into existence as soon as a work is created and no formality is required to be completed for acquiring copyright. However, facilities exist for having the work registered in the Register of Copyrights maintained in the Copyright Office of the Department of Education. The entries made in the Register of Copyrights serve as prima-facie evidence in the court of law. The Copyright Office has been set up to provide registration facilities to all types of works and is headed by a Registrar of Copyrights and is located at B.2/W.3, C.R. Barracks,

Kasturba Gandhi Marg, New Delhi- 110 003, (Tel: 338 4387)

What is a trade mark ?

A Trade Mark is a visual symbol in the form of a word , a device ,or a label applied to articles of commerce with a view to indicate to the purchasing  public that is a good manufactured or other wise dealt in by a particular person as distinguished from similar goods dealt or manufacture by other persons.

Object of Trade Mark

Is to deal with the precise nature of the rights which a person can a acquire in respect of a TM-The mode of acquisition of such rights -the method of transfer of those rights to others-the precise nature of infringement of such rights-and the remedies available in respect thereof.

Functions of a Trade Mark

1. It identifies the product of its origin 

2. It guaranties its unchanged quality

3. It advertises the products &

4. It creates an image for products.

Trademarks management

Trademark is a major asset of any company. Hence ' trademarks management ' in an enterprise comprises two aspects:

• Trademark policy is a marketing function. (the marketing personnel of an organization will take care of this trademark policy known as ' Brand Management '. )

• Trademark protection is a legal function

THE REGISTER OF TRADEMARKS

1.Registrar

2.Head office of registrar of trademarks (Delhi,Kolkatta,Chennai)

3.Register of trademarks (official record)

Absolute ground for refusal of registration(SECTION 9)

A mark shall not be registered as a trade mark if –a) It is of such nature as to deceive the public or cause

confusion; b) It contains or comprises of any matter likely to hurt the

religious susceptibilities of any class or section of the citizens of India;

c) It comprises or contains scandalous or obscene matter;d) It’s use is prohibited under the Emblems and Names (Prevention of Improper Use) Act,1950 (12 of 1950 ).A mark shall no be registered as trade a mark if it consists

exclusively of –a) The shape of goods which from the nature of goods

themselves; orb) The shape of goods which is necessary to obtain a

technical result; orc) The shapes which gives substantial value to the goods.

Relative Grounds for refusal of registration (SECTION 12)

1.Its identity with an earlier trademark and similarity of goods or services covered by the trademark. or

2.Its similarity to an earlier trademark.

Limitation as to colour.—

a) A trade mark may be limited wholly or in part to any combination of colours and any such limitation shall be taken in to consideration by a tribunal having to decide on the distinctive character of the trade mark.

b)So far as a trade mark is registered without limitation of colour, it shall be deemed to be registered for all colours.

Case It will be sufficient if infringing

trademark bears such an overall similarity to the registered trademark that is likely to mislead a person dealing with one to accept the other if offered to him. Similarly trademarks ‘ULCEREX’ and ‘ALCEREX’ were considered to be deceptive and phonetically similar for some type of goods(Charak pharmaceuticals v.Deepharma Ltd AIR 1999 Dec 15)

Improvements made by the Trade Marks Act,1999

(over the Trade and Merchandise Act,1958)a) Inclusion of service markb) Procedure and duration of registrationc) Expanded definition of trademarkd) Introduction of collective marke) Inclusion of certificate markf) Expansion of the meaning of trademark infringementg) Inclusion of certification markh) Expansion of the meaning of trademark infingementi) Stringent requirements for registrationj) Foreign trademarksk) Well known trademarksl) Broadening the concept of criminality

BIBLIOGRAPHY

1) Intellectual Property Laws; Universal law publishing co (2004)

2) www.legalserviceindia.com

3)K.C Garg,V.K Sareen ,Mukesh Sharma ;Corporate laws; Kalyani Publications (2004)

4)Prof.(Cmde)P.K Goel;BusinessLaw for Managers; Bizanttra publication(2008)