ipr and software protection
DESCRIPTION
FUNAMENTALS OF INTELLECTUAL PROPERTY IN SPECIFIC TO PATENTS AND PROTECTION OF SOFTWARE BASED INVENTIONS AND THE LEGAL POSITION IN SOFTWARE PROTECTION AS AN EDUCATIVE APPROACH WERE DISCUSSED.TRANSCRIPT
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An introduction to IPR and SOFTWARE BASED INVENTIONS
R.KUMARAVENKATESAN M.L(IPR).,
Educative approach
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Knowledge of patents- WHY
i. Enhances my employment opportunity
ii. I can register my own invention
iii. I can commercially exploit my own patent
iv. It is an official record of my inventor ship
v. It shows my intellectuality to the world
vi. It is a record of my achievement or success
vii. It differentiates me and distinguishes me.
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PROPERTY
Owned by a person
Registered under an authority
Claimed / prevent others from claiming
Assignable, transferable, mortgageable
PROPERTY
TANGIBLE PROPERTY
MOVABLE PROPERTY IMMOVABLE PROPERTY
INTANGIBLE PROPERTY
RIGHT TO INDIVIDUL REPUTATION
INTELLECTUAL PROPERTY
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INTELLECTUAL PROPERTY RIGHT
INTELLECTUAL- CAPACITY,CREATIVITY,IDEA,KNOWLEDGE,
PROPERTY- OWNED,REGISTERED,POSSESSED
RIGHT- CLAIMED,EXERCISED,EXPLOITED
THE RIGHT ASSOCIATED WITH THE IDEA OR CREATION OF MIND WHCH IS APPLIED,
OWNED AND EXPLOITED BY A PERSON
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INTELLECTUAL PROPERTY CLASSIFICATION
INDUSTRIAL PROPERTY LITERARY PROPERTY
PATENTS
TRADE MARKS
DESIGNS
INTEGRATED CIRCUITS AND LAYOUT DESIGNS
COPY RIGHTS
NEIGHBOURING RIGHTS
PERFORMERS RIGHTS
BROADCASTING REPRODUCTIONRIGHTS
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Maximum period of protection of various IP rights
PATENT
TRADEMARK
COPYRIGHT
DESIGNS
LAYOUT DESIGNS
GEORAPICAL INDICATIONS
PLANT VARIETIES
20 years (renewed every year)
No limit (renewed every 10th year)
Life time of the author plus 60 years / (vary between type of work)
10 +5 year(renewed after 10th year)
10 years
No limit (renewed every 10th year)
18 years, 15 years (renewed after 6th year/9th year)
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I P LEGISLATIONS IN INDIA
1. PATENTS ACT , 1970
2. TRADE MARKS ACT, 1999
3. COPY RIGHT ACT , 1957
4. DESIGNS ACT , 2000
5. SEMICONDUCTOR INTEGRATED CIRCUITS AND LAYOUT DESIGNS ACT, 2000
6. GEOGRAPHICAL INDICATIONS OF GOODS (REGISTRATION AND PROTECTION) ACT,1999
7. THE PROTECTON OF PLANT VARIETIES AND FARMERS RIGHTS ACT,2001
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Patent definition
Latin term patere, "to lay open" (i.e., to make available for public
inspection), In English term letters patent, royal decree granting
exclusive rights to a person.
Patents in the modern sense originated in 1474, in the
Republic of Venice
A patent is a form of intellectual property. It consists of a set of
exclusive rights granted by a sovereign state/government to a true
and first inventor or their assignee for a limited period of time in
exchange for the public disclosure of an invention.
Patent is an exclusive right granted to a person who has invented
a new and useful article or an improvement over an existing article.
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Need for the protection of Patents
Encouragement Inducement Reward Transfer and dissemination of technology Commercial exploitation by the inventor Preventing others from exploiting the right Healthy competition Development of a nation Reveal the intellectual capability of the
inventor
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Patent right
Exclusive right(monopoly) Granted for a limited period of time Territorial in nature Assignable, licensable, transferable and mortgage able
right Proprietary right Legally enforceable Registrable before a competent authority Commercially exploitable
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Persons entitled to apply for patents
True and first inventor
Assignee of the true and first inventor
Legal representative of any deceased person who immediately before his death was entitled to make such application
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Rights of patentee An exclusive right over the patented product and patented process to;
a) Manufacture
b) Use
c) Offering for sale, selling or importing in to India for sale
d) Prevent others from make, use, sell, import the patented product /
product directly obtained through that patented process and
commercially exploiting the patent.
e) Assign, transfer and issue license
f) Surrender the patent
g) Sue in case of infringement
h) Claim remedies upon proving the infringement
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Patentability Patentability is the ability / character of the invention to make itself eligible for a grant
of patent by the patent offices. The criteria of eligibility includes;
1. Novelty
2. Inventive Step
3. Industrial Applicability
4. Utility and in addition
5. The invention should not fall under the category of inventions ‘INVENTIONS
NOT PATENTABLE’ mentioned under Sections 3 and 4 of the Patents Act,1970
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Patentability - novelty
it does not form the state of the art
it has not been described orally
it has not been published before the date of filing the patent
application
It has not been used before the date of filing the patent
application
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Patentability-inventive step
Technical advance as compared to the existing knowledge or
Having economic significance or
Both technical advance and economic significance and
All the above mentioned features makes the invention non obvious to a person skilled in the art.”
Besides the above features the invention can able to be manufactured in an industry and It must possess utility ( usefulness) to the mankind
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Inventions patentable
EXHAUSTIVE LIST NOT LIMITED
Art(technology), Process, Method of manufacturing;
Machine, apparatus, instrument or other Articles;
Substances, compositions or formulations produced by Manufacturing process;
Computer Software to be applied in a Technical application to Industry or programmed in a hardware
Food products / Chemicals / Medicines and bulk drugs/ fertilizers
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Inventions not patentable Frivolous or obvious and contrary to natural laws
Contrary to public order or morality or prejudicial to human,
animal or plant life and health or to the environment.
Mere discovery of the scientific principle or the formulation of
an abstract theory or discovery of any living thing or non-living
substances occurring in nature
Mere discovery of new form of known substance without any
enhancement in the efficacy new property or mere new use
for known substance or the mere use of a known process,
machine or apparatus-unless the known process results to
new products or employs at least one new reactant.
Mere admixtures of substances.
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INVENTIONS NOT PATENTABLE
Inventions not patentable
Mere arrangement / rearrangement or duplication of known devices functioning independently in a known way.
Method of agriculture and horticulture;
Any process for the medicinal or surgical, curative prophylactic, diagnostic, therapeutic or other treatment of human beings, animals to render them free of disease or to increase their economic value or that of their products;
Plants and animals in whole or any part thereof other than micro-organisms but including seeds, varieties and species and essentially biological process for production or propagation of plants and animals;
A mathematical or business method or algorithms.
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Inventions not patentable
literary, dramatic and musical works and aaesthetic creations including cinematography and television production.
Method for performing mental act or playing game.
Presentation of information. Topography of Integrated Circuits. Invention which in effect, is traditional knowledge
or which is an aggregation or duplication of known properties of traditionally known components.
Inventions relating to Atomic Energy
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Patent prosecution - Stages
I. FILING OF APPLICATION under section.7 or 54 or 135 or 7(1A)
II. REQUEST FOR EARLY PUBLICATION under section.11A(2) PUBLICATION AFTER 18 MONHS under section.11A
III. REQUEST FOR EXAMINATION under section.11B
IV. EXAMINATION under section under section12
V. SEARCH FOR ANTICIPATION BY THE EXAMINER under section.13
VI. CONSIDERATION OF ‘FER’ BY CONTROLLER under section.14
VII. REFUSAL / AMENDMENT OF THE APPLICATION under section.15
VIII. ANTICIPATION PROCEEDINGS IF ANY under section.18
IX. OPPOSITION PROCEEDINGS IF ANY under section.25
X. SECRECY DIRECTIONS IF ANY under sections.35 to 42
XI. GRANT OF PATENTS under section.43
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PATENTING IN COMPUTER SCIENCESCOMPUTER BASED
INVENTIONS
SOFTWAREPROGRAMMES
SOFTWARE APPLIEDSYSTEM/MACHINE HARDWAR
E
NEEDS TO BE DISCUSSED PATENTABLE PATENTABLE
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SOFTWARE PATENTS
Operating Systems, File Systems
Graphics and Windowing Systems
Compilers and Simulators
Cryptography and data compression ,MultimediaWord processors, Spreadsheets
micro-blogging patents
audio-video patents
Webpage and web service
patents
XML patents
Image processing patents
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Software patents
"patent on any performance of a computer realized by means of a computer program".
Patents granted to software programming techniques and computer-implemented inventions are generally grouped under the term software patents.
Only from 1981 in US software patents were allowed.
The patent was granted on August 17, 1966 in British for "A Computer Arranged for the Automatic Solution of Linear Programming Problems" (efficient memory management for the simplex algorithm) FIRST SOFTWARE PATENT
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SOFTWARE -INDIAN PATENT SCENARIO AND ISSUES
Section: 3(k) a mathematical or business method or a computer program
per se or algorithms;
3(m) a mere scheme or rule or method of performing mental act or
method of playing game;
software is different from other engineering and mechanical inventions.
Software technology is evolving much faster than other industries, the
period of protection is longer.
Softwares, per se, are intangibles and not protected by patents,
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Software copyright law in India
Indian copyright act of 1957 is amended to extend its coverage to computer software also. Computer programs received statutory recognition as a `literary work'
India has one of the most modern copyright protection laws in the world.
Major changes to Indian Copyright Law introduced in June 1994 include :
the definition of computer program, explains the rights of copyright holder, position on rentals of software, the rights of the user to make backup copies, and punishment and fines on infringement
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Rights under copy right protection: 1) To reproduce the work in any material form including the
storing of it in any medium by electronic means; (2) To issue copies of the work to the public not being copies
already in circulation; (3) To perform the work in public, or communicate it to the public; (4) To make any cinematographic film or sound recording in
respect of the work; (5) To make any translation of the work; (6) To make any adaptation of the work; (7) To do, in relation to a translation or an adaptation of the work
any of the acts specified in relation to the work in the above; (8) To sell or give on commercial rental or offer for sale or for
commercial rental any copy of the computer program.
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Patents V/s Copyright in software patents
Patent protection is much stronger whereas copyright protection is longer.
Patent law protects the functional elements. Copyright protects the form in i.e.
originality of expression
In case of patents if different code achieve same function then it violates patent
law.
Copyrights become effective the moment they are published whereas patents
need to be registered.
Copyrights last for authors’ life plus 60 years whereas patents are granted for a
period of 20 years in India.
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No need to patent the same inventive concept for every invention,
patenting once is enough. Whereas, copyright protection is effective for
that creation only and needs registration/ publishment for all the other
creations even though with same concept.
Patents provide much stronger protection to software.Development of
software using known algorithm or logic but using different language is is
a patent violation but not a copyright violation.
Under copyright laws, protection is available only to the form or
expression of an idea and not to the idea itself.
algorithms are mere ideas and cannot be protected under the copyright law.
Patents V/s Copyright in software patents
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COMPUTER AIDED INVENTIONS/ FIELDS
e-commerce, e-gambling, e-banking, e-money, e-publishing
Computer aided design, computer aided management, computer aided monitoring, computer aided education, computer aided manufacturing,
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PROVISIONAL SPECIFICATION
COMPLETE SPECIFICATION
PUBLICATION
REQUEST FOR EXAMINATION
FIRST EXAMINATION
REPORT
RESPOND TO OFFICE
ACTION
FURTHER EXAMINATIO
N REPORT
WITHIN 12 MONTHS FROM PROVISIONAL SPECIFICATION
AFTER 18 MONTHS FROM PROVISIONAL
WITHIN 48 MONTHS FROM THE PROVISIONAL
WITHIN 6 MONTHS FROM THE DATE OF REQUEST WITHI 12 MONTHS
FROM THE FERGRANT
OF PATENT
PATENT PROSECUTION STAGES
EARLY PUBLICATION (OPTIONAL)
PRE GRANT OPPOSITION IF ANY
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THANK YOU FOR YOUR KIND RECOGNITION