emerging technologies and ipr

7/28/2019 Emerging Technologies and IPR

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Emerging Technologies andIntellectual Property Rights

Presented by

Poorvi Chothani, Esq.

LawQuest, Mumbaiwww.lawquestinternational.com


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Intellectual Property

According to the Trade Related Aspects ofIntellectual Property Rights (TRIPS) Agreement -

Intellectual property rights are the rights given topersons over the creations of their minds. Theyusually give the creator an exclusive right over theuse of his/her creation for a certain period of time.


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Emerging Technologies

Digitization

Electronic

distribution The Internet

Nanotechnology

Bio-technology

Move fromphysical assets tointangible assets

http://www.ditto.com


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Effect of EmergingTechnologies

Innovation

Growth of new industries e.g. BPO

Efficiency Savings

Prolific Publishing Opportunities

(specialized websites, blogs, portals) Customer Centric Advertising


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Intellectual Property Rights

Patents

Trademarks

Copyrights Industrial designs

Trade Secrets

Data Geographical

Indications http://www.ditto.com
http://www.buyusa.gov/peru/en/166.html


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International Treaties

India is a member or signatory of severalinternational organizations and conventions:

Word Intellectual Property Organisation (WIPO),

World Trade Organization (WTO) - TRIPS

Paris Convention for the protection of Industrial

Property Patent Co-operation Treaty (PCT)

Budapest Treaty


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Relevant Laws*

The Patents Act, 1970

The Copyright Act, 1957

The Trademark Act, 1999The Designs Act, 2000

The Information Technology Act, 2000

*As amended from time to time and with theirsupporting rules.

G

http://www.bridgew.us/library/ipr/index.cfm


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Issues Facing EvolvingTechnologies

IP Development IP Ownership

IP Protection IP Management IP Valuation IP Dilution Fragmented Marketing

Initiatives Loss of Privacy Data Protection


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Patents Protect EmergingTechnologies

A Patent is an intellectualproperty right relating to

inventions and is grantedexclusive right, for a limitedperiod, to an inventor.

An invention means a newproduct or process involvingan inventive step and capableof industrial application (S.2(1)(j))

P

http://www.businesseek.com/Patents.htmhttp://www.businesseek.com/Patents.htm


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Patentable Inventions

An invention is capable of industrial application if it satisfiesthree conditions, cumulatively:

Can be made;

Can be used in at least one field of activity;

Can be reproduced with the same characteristics1. An invention to be patentable must be useful. If the subjectmatter is devoid of utility, it does not satisfy the requirement ofinvention.

2. Can be exploited for commercial purpose;

3. The meaning of usefulness is therefore useful for the purpose

indicated by the applicant or patentee whether a non-commercialutility is involved.

P


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Non-Patentable Inventions

Section 3 of the Patents Act enumerates

certain types of inventions or forms that

are not patentable

Section 4 of the Patents Act prohibits the

patenting of inventions relating to atomicenergy

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Patent Rights

The patentee receives exclusive right on registration of the

patent application, to -

prevent others from performing, without authorisation, theact of making, using, offering for sale, selling or importingthat product for the above purpose.

exclude others from performing, without his authorisation,

the act of using that process, using and offering for sale,selling or importing for those purposes, the product obtaineddirectly by that process in India.

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Increased Patent Filings in India

Increase from less than 13,000in 2003-04 to about 29,000 in2006-07

The grant of patents increasedfour-fold from 1,911 in 2004-05 to 7,539 in 2006-07

(Source- http://www.domain-b.com/economy/general/20080107_patent_applications.html)

PCT InternationalApplications submittedin India

2001- 295 2002- 525

2003-764

2004- 784

(Source WIPO)

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Patents and EmergingTechnologies

Granted to Innovative Products andProcesses

Changing Subject Matter of Patent Filings Patents and Outsourcing

Joint Ownership

First to File versus First to Invent

Different Levels of International Protection forWeb Based Applications


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Trademarks

A Trademark is a means ofidentification of goods orservices, a symbol which anorganisation or person wises

the consumer to identify withits goods or services asopposed to that of thecompetitor.

Registration of Trademarks isgoverned by The TrademarksAct, 1999.

T

http://www.indiatrademarks.org/


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Trademark Application

A Mark` may consist of a word or invented word,signature, device, letter, numeral, brand, heading,label, name written in a particular style, the shapeof goods other than those for which a mark is

proposed to be used, or any combination thereof ora combination of colours and so forth.

The Trademark to be registered should not bedeceptively similar to an existing mark of anotherperson and not the one expressly prohibited underthe Act.

T

http://www.sportsandplay.com/benefits.asphttp://www.sportsandplay.com/benefits.asp


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RegistrationT

http://www.ipindia.nic.in


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Duration of a Trademark

The present term ofregistration of a trademark isten years, which may berenewed for further periods often years on payment ofprescribed renewal fees.

Failure to use a registeredtrademark for a continuousperiod of five years may resultin cancellation.

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http://www.ditto.com/


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Infringement

The owner has theright to sue in thecourts of law forinfringement of thetrademark.

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http://www.abc.net.au/science/news/stories/s1610919.htm


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Trademarks and theInternet

Domain names importance of maintaining similarity

Global impact of trademarks

Domain name disputes claimants reliance on trademark

ownership

Misdirection of search engines

Dilution of famous marks malafide use, parody and

commentary

Trademark infringement and/or passing off (misrepresentation)

in multiple jurisdictions


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Copyrights

Copyright is an exclusiveright granted to the author

of an original work for alimited period of time withthe right to exploit thatright.

C


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Copyright Subsists In

Original Literary

Computer Software

Dramatic Work

Musical Works

Artistic Works

Cinematographic Films

Photographs

Sound Recordings etc

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Bundle of Rights

Copyright gives the author of a literary, dramatic ormusical work, the right to:

Reproduce the work in any material form including the

storing of it in any medium by electronic means Issue and Distribute Copies Perform the work or Communicate the work Make Films or Sound Recordings Make Translations and/or Adaptations and all the above

rights for such adaptations Publicly Display the Work Transfer any of these rights, either as a bundle or

individually to another party

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Term of CopyrightsCopyright is granted for:

Literary Works: 60 years from the death of the author (From thecalendar year following the year of death)

Broadcaster Rights: 25 years from the year following the first

broadcast; Photographs and cinematographs, sound recordings, 60 years

(From the calendar year following the year of publication) .

Copyright is subject to certain limitations

Statutory Licensing Fair Use Exceptions

Compulsory Licensing

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Copyright and EmergingTechnologies

Traditionally copyrightwas introduced to protectprinted material

The legislature and thecourts struggle to keepup as technology changes

and new media emerge.


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Digitization of TraditionalCopyrightable Material

Wall papers

Mobile content

Music, video, images

downloads from the internet Video streaming (MTV

overdrive, a broadband internetvideo-on-demand service)

Blogs Podcasting

Subscription digital musicstores-itunes and mtvs urge

Tivo


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Copyrights and EmergingTechnologies

Copyright protection for software Patentability of embedded computer programs

with technical effect

Patent protection for software in the unitedstates Version recordings and remixes (after two years

of original sound recording) Peer to peer downloads

iTunes, YouTube Rampant plagiarism

D i d th


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Designs under theDesigns Act

New or original, not previously published or used in anycountry

Relate to features of shape, configuration, pattern orornamentation applied or applicable to an article.

Be applied or applicable to any article by any industrialprocess. Features should appeal to and are judged solely by the eye.

This implies that the design must appear and should bevisible on the finished article, for which it is meant.

Should not include any Trademark or property mark or

artistic works as defined under the Copyright Act, 1957.

Any mode or principle of construction or operation or any thingwhich is in substance a mere mechanical device is not eligible forregistration.

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Designs Rights

Gives the owner an exclusive right againstunauthorised copying or imitation of thedesign by third parties.

Protecting industrial designs helps economicdevelopment, by encouraging creativity in

the industrial and manufacturing sectors, aswell as in traditional arts and crafts.

D

http://www.cameronip.com/domainnames.htmhttp://www.cameronip.com/domainnames.htm


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Non-Registrable Designs

Designs of industrial plans, layouts and installations are notregistrable under the Act.

Painting, sculptures and the like which are not produced inbulk by any industrial process

Stamps, labels, tokens, cards

An artistic work as defined under the Copyright Act, 1957

"Artistic works" means: -A painting, a sculpture, a drawing (including a diagram, map,chart or plan) on engraving or a photograph, whether or notsuch work possesses artistic quality. An work of architectureand any other work of artistic craftsmanship.

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Duration

The duration of the registration of adesign is initially ten years from the dateof registration, but in cases where claim topriority has been allowed the duration is

ten years from the priority date.

This initial period of registration may beextended by further period of 5 years onan application made in specified format.

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http://www.intenseco.com/markets/industrial/?View=Hermes


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Trade Secrets


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Data Protection


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Contact Details

LawQuest

522 Maker Chambers V,

221 Nariman Point,Mumbai 400021, India.

Tel: +91 22 6615 6555,

Fax: +91 22 2287 2080

Website: www.lawquestinternational.com

Email id: [email protected]

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