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Law of Intellectual Property Rights Topics:

PATENTS


Introduction of Patents


The need for a comprehensive law so as to ensure more effectively that patent rights are as of the country was felt as early as 1948 and in that year the Government appointed the patents Enquiry Committee to review the working of the patents law in India. Keeping in view the above objective The Patents Act, 1970 was enacted to amend and consulate the existing Indian Patents and Designs Act, 1911 and it also contained amendments as recommended by the joint committee which was established by the Central Government.

India is a signatory to the agreement for the establishment of the World Trade Organisation including the Agreement on Trade Related Aspects of Intellectual Property Rights for the purpose of education of distortions and impediments to international trade and promotion of effective and adequate protection of intellectual property rights. It had become necessary to amend the Patent Act, 1970 in conformity with the obligations under the Agreement with Signatory Countries, in formulating or amending the laws and regulations.

The Patent (Amendment) Ordinanc, 1994 was promulgated by the president in exercise of the powers conferred by Cl,(1)of Art,123 of the Constitution of India since at that time Parliament was not in session And the president was satisfied that circumstances existed which rendered it necessary for him to take immediate action.

Since the Patent (Amendment) Ordinanc, 1994 could not be matured into an Act of Parliament, it ceased to have effect after the expiry of six months from the date of its promulgation. Again on 8th January, 1999 the president of India promulgated the Patents (Amendment) Ordinance,1999 as this time also Parliament was not in session and the President was satisfied that circumstances exist which rendered it necessary for him to take immediate action to give effect to the provisions of the Bill. During March Session of parliament the patents (Amendment) Act, 1999 was passed by both Houses and it received the assent of the President on 26th March 1999.

PRINCIPLES UNDERLYING THE PATENT LAW IN INDIA


Principles upon which Indian Patent Law is based are enumerated below .Invention must be new, useful and non-obvious to be patentable, the invention must b new and useful. It also must be non-obvious to a person possessed of average skill in the art. What is obvious to a person skilled in the art cannot be patented. For instance, an invention in carpentry may be non-obvious to a layman but it may be obvious to a carpenter of average skill. Such obvious invention would not be patentable.

NEWNESS

The element of novelty (newness) in an invention is dependent upon the state of prior art, i.e., the exiting knowledge and similar inventions already known in the particular field. There would be no novelty if there has been prior publication and prior use of an identical invention.

USEFULNESS

The invention besides being new and non-obvious must also be useful. An invention which is new and also non-obvious but cannot be put to any beneficial use of the mankind cannot be patented. However, not so useful, inventions are protected in some countries as ‘utility models’. But that concept is not statutorily recognized in India.

Procedure for Obtaining Patent Consists of the Following Steps:


a) Submission of application.
b) Examination of application.
c) Advertisement of acceptance of complete specification.
d) Hearing of the parties.
e) Grant and sealing of patent.
f) Opposition to grant of patent to the application.

TRADEMARK


The Trade Marks Act, 1999.


The Trade and Merchandise Marks Act was passed in the year 1958, since then it has been amended several times, Moreover in view of developments in trading and commercial practices, increasing globalization of trade and industry, the need to encourage investment flows and transfer of technology and the need to simplify and harmonize trade mark management systems it has been considered necessary to bring out a comprehensive legislation on the subject. Accordingly the Trade Marks Bill, 1999 was introduced in the parliament.

Act 47 of 1999

The Trade Marks Bill, 1999 having been passed by both the Houses of Parliament received the assent of the president. It came on the Statute Book as THE TRADE MARKS ACT, 1999 (47 OF 1999).

Meaning of Trade Mark


A consumer is duped if he buys a commodity presuming it to have originated from a certain identified source when actually it is not and later finds the commodity substandard. In the process the reputation of trader suffers if spurious goods are sold as those originating from him. The interests of both the consumer and the trader can be saved if some definite symbol which marks out the origin of goods from a definite trade source is attached with the goods emanating from such source. Such symbol is called 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 they are goods manufactured or otherwise dealt in by a particular person or a particular organization as distinguished from similar goods manufactured or dealt in by others. In other words, a trade mark is a visual representation attached to goods for the purpose of indicating their trade origin.

TRADE MARK LAW IN INDIA


The Trade Mark law in India is now contained in the provisions of the Trade Marks Act, 1999.

The earlier trade and Merchandise Marks Act, 1958 has been repealed .The 1958 Act with the extensive Amendments, has become the 1999 Act. After the Act is enacted by the legislature, rules there under are made by the Government to facilitate and regulate the implementation of the provisions of the Act. Rules made under an Act have the force the law. The rules have, however, to be consistent with the provision of the Act.

How is a Trade Mark protected in India?


To protect the registered Trade Mark, the following reminders can be resorted to.

1. Civil remedies.
2. Criminal proceedings.
3. Administrative remedies.

HISTORY OF INFORMATION TECHNOLOGY AND CYBER SPACE


IT as it is commodity called, dates back to 5000BC, when people started using alphabets as a medium of communication. However, its actual emergence started with the first ever use of the computer. A simple device for performing arithmetic calculations was the slide rule, an analogue computer based on mechanical architecture was invented in early 1600s by William Oughtred. This was a breakthrough as most of the modern computers later used the same basic principle used by the slide rule .The pascaline , an advanced mechanical computer was invented by Blaise Pascal in the mid 1600. Gottfried Wilthelm von Leibniz, a German mathematician and philosopher developed a mechanical computer called Leibniz machine in the late 1600s.The real modern mechanical computer was convinced in 1822 by Charles Babbag ,an English mathematician. This essentially encompassed the modern day concept of storage, a mill and a punch card. This technique was also adopted in the textile industry by Joseph Marie Jacquard in early 1800s, wherein he essentially used punch cards, binary logic and real time programming software.

Then came the electromechanical age in 1840s with the discovery of different ways to harness electricity and the information was converted into electric impulses. This led to the beginning of telecommunication and telegraphy in late 1800s.Th first electro-mechanical computer was invented by Herman Hollerith in 1880 and they were marketed under the logo of International Business Machines (IBM).

DEVELOPMENT OF INTERNET


The Internet is a vast global network of computers for storing information on every conceivable subject of interest to human kind. But its origin was very specific, driven by military and security concerns during the cold war. A need was felt for military command and control structures that could withstand a nuclear attack. The idea of a network of computers came from the analogue with the transport system, which had been designed so that there were multiple paths to every point. The establishment of large number of interconnected computers permitted messages to be routed in multiple ways. Because the command structure had no centre with every node equivalent to all other nodes, a nuclear strike on one or many sits would not desirable the communication systems as a whole .In addition, information would be sent in ‘packets’ by different routes which would be reassembled when they arrived at the destination.

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Review Questions
  • 1. Write a note on cyber laws and offences and the punishments for them.
  • 2. What is Patent?
  • 3. What is Trademark?
  • 4. Define Design.
  • 5. What are the procedures for registering Patent?
  • 6. What are the remedies available for infringements?
  • 7. Write a note on Anton-piller order.
  • 8. Write a note on Cyber Offences.
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