Intellectual property:

IP is an intangible property that is the result of creativity. It is an intellectual work, produced by

the intellect of human brain. It is the product of human knowledge and skills. Ex. Literary work
produced by authors, musical work produced by musicians.

Intellectual property rights allow people to assert ownership rights on the outcomes of their
creativity and innovative activity. No one can make use of intellectual property without the
consent of the owner of the intellectual property. However the owner may assign it in favor of
any other person in consideration of money. Even after such assignment, the moral rights of the
owners are protected. So, intellectual property system must maintain an equitable balance
between public good and private interests, and help promote socio-economic improvement.

Nature of intellectual property Rights:

1. Negative rights: IP rights are negative rights as they are the rights of the owner to restrain
others from doing certain things or control of its use without the owner's permission.

2. Time bound rights: IP rights are time bound ownership rights, as they are granted for a
limited period. However, trader marks and Geographic indications are exceptions.

3. Intangible property: It is simply a non-physical property created by human mind. IP is about a

person's ability to produce a new idea and put it before the public.

4. Assignable The rights arising out of intellectual property are assignable. IP rights can be
bought, sold, employed or affiliated.

5. Statutory rights: IP rights are statutory rights, and need specific type of statutes. ex- Trade
marks act, Copyrights act etc.

International character of Intellectual property:

During the 18th and 19th century, many budding inventors felt that their novel inventions could
be copied and commercialized without regard to their interest. Thus, there was a need to have
an international legal regime that would provide protection for an invention across countries.
This led to the idea of creating a special law for international protection of inventions.

The Origin of international IP regime was the Paris convention in 1883. This was for the
protection of industrial property and inventions.

Further, with the adoption of the Madrid agreement, the first international IP filing service was
launched in 1891.

Eventually in 1893, bureau for the protection of intellectual property was constituted. It was
popularly known as BIPRI. In 1970 BIPRI turned into World Intellectual Property Organization,
and it became part of UNO in 1974. Now, this works as a specialized agency to promote
intellectual activities, creativity and facilitate technology transfer for economic development of
the world.
International protection of Intellectual property:

International intellectual property law is subject to treaties and agreements between nations
throughout the world. By means of these treaties, intellectual property rights across the
countries are protected. Some of these agreements are as follows:

1. Trade related aspects of intellectual property rights (TRIPS) 1994

2. Paris convention 1883

3. Berne convention 1886

4. Madrid agreement and Madrid protocol

5. WIPO copyright treaty

TRIPS is the most recognized agreement among nations for recognition and protection of
intellectual property rights. TRIPS is a model agreement promulgated and administered with
WTO(World trade organization). Most nations who are members of WTO are signatories to this
agreement. It provided standards for how intellectual property should be regulated within a
country.

In part 3 of the TRIPS agreement, enforcement procedures for intellectual property rights are
given. It is the only international agreement that describes intellectual property rights
enforcement in details, and provides tools to the governments for the same.

TRIPS lists the following intellectual property rights:

1. Copyrights and related rights

2. Trade mark related rights.

3. geographical indications

4. industrial designs

5. Patents

6. Layouts and designs of Integrated circuits (IC)

7. Undisclosed information.

New emerging IPRs:

More type of IP rights are likely to emerge in view of the increasing phenomena of internet and
e-commerce. The 'domain names' (.com, .in, etc) have been identified as akin to trade marks.
Now, Sound and smell trademarks await acceptance by the community of nations.
Overview of international conventions:

Paris convention: (1883)

At international level, the first convention for the protection of industrial property was adopted in
Paris convention. This convention as been revised from time to time to include the developing
countries by giving some concessions to them. Paris convention was revised in 1967
(Stockholm convention) where convention for establishing WIPO was signed. (It came into
effect in 1970).

This convention applies to industrial property, including patents, trademarks, industrial designs,
service marks, trade names, geographical indications and repression of unfair competition. The
substantive provisions of this convention fall into three main categories:

1. National treatment:- Under this provision, the convention provides that, each contracting
state must grant the same protection to the nationals of the contracting states, that it grants to
its own nationals. It means treating the locals and foreigners equally for granting trademark.

2. Reciprocity and Right of priority:-

Reciprocity means, for example India offers a trademark registration for 10 years and a country
"A" offers trademark registration for 7 years. Then India shall provide a trade mark of 10 years
to the nationals of Country 'A' and the country 'A' shall provide the trade mark registration for 7
years to Indian nationals, as it gives to its own nationals.

Priority means that if an applicant files an application for registration of trademark in a member
country, then he may apply (within 6 months) for registration in other contracting countries. The
date of application in this contracting country will be regarded as the same date at which the
application was filed in the first country. This application will be given priority over other
applications filed within these 6 months, on the same industrial design.

3. Common rules: Under this provision, the contracting countries must follow a few common
rules:

(a) Patents: Patents granted in different contracting countries for same inventions are
independent of each other. This convention does not provide for duration and subjects of patent.

(b) Industrial designs:- Industrial designs must be protected in each contracting state.

(c) Trade names: Must be protected as above.

(d) Unfair competition: Each contracting state must provide for effective protection against unfair
competition.

The concept of most favoured nation is an exception to the above rule of treating all contracting
countries equally. But this is applicable to only those cases where most favoured nation states
has been granted to any country by a treaty, prior to this convention.
Berne convention 1886:

It is a basic copyrights treaty and deals with the protection of works and the rights of their
authors. The basic principles on which this convention was based are as follows:

1. Principle of Non discrimination: Work originating in one of the contracting states, must be
given same protection in each of the contracting states, as these states grants to the works of
their own nationals.

2. Principle of automatic protection: This means that the protection must not be conditional upon
compliance with any formality.

3. Principle of independence of protection: The minimum period of protection provided by the

convention must be independent of the protection in the country of origin of work.

As per Art. 2(1) of the convention, the protection must include "every production in the literary,
scientific and artistic domain, whatever is its mode or form of expression".

The following rights of the authors that must be recognized by this convention are:

* Right to translate

* Right to perform in public (dramatic or musical works)

* Right to recite the literary works in public

* Right to broadcast

* Right to make copies etc.

-This convention also provides for the moral rights, that are the personal rights that show a
relationship between creator and his work. Ex. Right of paternity.

- As to the duration of the protection, the general rule is that protection must be granted until the
expiration of the 50th year after the author's death. However there are exceptions to this.

- This convention allows certain limitations on the economic rights of the author. These
limitations are often referred to as "Free uses" of protected works for teaching purposes,
newspapers etc

Agreement on trade related aspects on intellectual property rights (TRIPS) 1994

The TRIPS agreement is one of the most important WTO accords. This agreement protects
intellectual property in trade related regions to a large extent and is regarded as a
comprehensive new framework for IP rights protection. It is the first legal agreement to address
all areas of intellectual property. The TRPS agreement is crucial for promoting trade in
knowledge and innovation and resolving intellectual property trade disputes. The agreement is a

formal acknowledgement of the importance of intellectual property and trade relations.

The three main issues governed by the agreement are;

1. Standard: All member states are required to provide a minimum standard criteria for each
category of IP in a way that major aspects such as "subject matter sought to be protected',
'rights to be granted', 'minimum period of protection', 'exceptions to such rights' are explicitly
stated.

2. Enforcement: The second set of clauses in this agreement focuses on processes and
remedies for enforcement of IP rights. This agreement establishes a set of broad rules including
civil and criminal, that outline the procedures and remedies that must be provided to rights
holders.

3. Dispute settlement: These specific provisions state the methods of dispute settlement through
WTO's dispute resolution process. The TRIPS council is in charge of the provisions related to
dispute resolution and prevention.

Type of intellectual property under TRIPS:

See from page no. 2 or from first chapter of the book.

Advantages of TRIPS agreement:

1. It brought transparency in the IP policy.

2. WIPO's existing legal system was greatly enhanced by it.

3. Due to clear rules, the trade conflicts due to IPR reduced.

4. It provided a solid platform for trade in knowledge products.

5. In developing countries, the number of patent applications increased.

Disadvantages:

1. TRIPS mandates high levels of patent protection.

2. Increased prices.

3. Loss of jobs to the local imitative (copy products) industry.

4. Traditional knowledge is not protected in any way.

5. For developing countries, these rigid IP restrictions stifles the growth of local enterprises.

Conclusion- Intellectual property should not be used to thwart the interests of developing
nations, such as Public health, which is already being harmed. Also, where the situation
demands, the exceptions to intellectual property shall be effectively implemented.
 ......................................................................

Madrid agreement, Madrid protocol

The system of international registration of marks is governed by the "Madrid System". The
Madrid agreement and the Madrid protocol constitute 'The Madrid system'. The Madrid system
is administered by WIPO, Geneva. This system facilitates registration of trademarks in multiple
jurisdiction across the world in the contracting states. The system provides a structure for filing,
registration and maintenance of trademark rights in more than one jurisdiction.

The protocol has been of great significance. This system provides for a mechanism of protecting
the trade mark in different jurisdictions which are the member of the protocol. Under this system,
an applicant can make a simultaneous registration of trade mark in member countries through a
single application for international registration made at WIPO authority.

How one can apply for international registration under Madrid protocol:

1. One has to apply for the registration of mark in the home country where the applicant is
citizen.

2. The national registration authority would examine the application and confirms the
registration.

3. The national authority then transfers the application to the WIPO authority for registration.

4. WIPO authority then records it in its international register. This is actually a national
registration bundle.

5. A person who has obtained international registration from WIPO may extend it to a different
member's jurisdiction. This process is called Designation.

6. It may be noted that registration with WIPO is not a registration ab-initio. The individual
application is assessed, examined and reviewed under the national laws of the country and
finally it is processed which usually takes 12 to 18 months.

7. In case there is a refusal by the trademark office in a designated country, then timely action
will be needed.

The objectives of the 'Madrid protocol' were two-fold: First to attract the new states like Japan
and USA. Second to create a link between Madrid system and 'Community trade mark system'
of European community. US and EU became members in 2003 and 2004 respectively. This
makes the Madrid protocol a success.

India's perspective to Madrid system:

India became a part of Madrid protocol in 2013. This led to addition of a new chapter (IV A) to
the Trademark act 1999. Now the international registration of trademark through Madrid system
can also be done through India.

Advantage- A trademark can be registered in the member countries by a single application

which is cost-effective and a convenient process.

Disadvantage- If the basic application is cancelled within five years, that would lead to
cancellation of international registration also.

Unit 3
Trade Mark:

The term trademark refers to a recognizable sign, word or symbol that denotes a specific
product and legally differentiates it from all other products of its kind. A trademark exclusively
identifies a product as belonging to a specific company or brand.

As per Trade mark act 1999, Trade mark means a mark which is:

1. Capable of being represented graphically, and

2. Capable of distinguishing the goods or services of one person from those of others and may
include shape of goods, their packaging and combination of colors, and

a registered trade mark in relation to goods/services to indicate a connection between the goods
and some person having propriety rights, in the course of trade.

Essential requirements or conditions of a trade mark:

a) It should be a mark. Mark includes a device, brand, heading, label, name, signature, word,
letter, numeral, shape of goods, packaging and combination of colors.

b) It must be used in relation to goods which are subject of trade or manufacture, or in relation
to services.

c) The use must be of a printed or other visual representation.

d) The use must be for the purpose of indicating a connection, in the course of trade, between
the goods/services and a person having a right to use the mark, either as a proprietor or as
registered user.

Functions of Trade mark:

1. It serves as an identification of the origin, i.e. distinguishing the marked product from those of
competitors.

2. It serves as a guarantee of the consistency of the quality of the goods. For example 'Coke' in
any part of the world.

3. It serves as a source of information about the products. Through a trademark, a consumer

can know better about the product source and their trustworthiness.

4. It serves as an advertisement. The advertisement of goods or services may not be possible

without the trade mark.

5. Trade mark have a definite role in development and growth of any enterprise. The newest
trend of internet depends to a large extent on advertising of trade marks.

Registration of Trade mark:

SEE CHAPTER 3 OF THE BOOK. VERY EASY...

................................................................................

Infringement and passing off of trademarks in India:

Difference between infringement and passing off:

- Infringement is a statutory remedy provided under section 28(1) of the Trademarks acts 1999.
For this, registration of trademark is mandatory. While passing offs is a common law remedy of
torts. For this, registration is not mandatory.

What is Infringement as per Trademarks act 1999:

Infringement is the unauthorized use of a trademark on competing or related goods/services.

For a lawsuit to stop infringement, it is required to show a likelihood that it caused the confusion
in average consumer.

Section 29 of trademark act states about infringement. As per section 29, a registered
trademark is infringed by a person who, not being a registered proprietor or person using by
way of permitted use, uses in the course of trade, uses the trademark in a way which causes
confusion in general public.

If that mark is being used in different type of business from that in which registered trademark is
being used, and have some identical or similar features, still it amounts to infringement of
trademark.

What is Passing off:

It is not specifically defined in Trade mark act except section 27(2). The object of the law of
passing off is to protect the goodwill of the business or goods of plaintiff. This is a kind of tort
that has happened to the plaintiff by false representation. The basic question in this tort is that
whether the defendant's conduct tends to mislead the public and create confusion?

The essential characteristics of passing off:

1. Misrepresentation

2. made by person in the course of trade

3. To his consumers

4. Which injure the business or goodwill of another trader.

5. and causes actual damage to the business or goodwill of a trader.

Once it is established that defendant's action leads to passing off, it can be assumed that
damage to the business of plaintiff has happened naturally. Actual proof of damage is not
necessary.

Legal remedies for infringement and passing off:

Section 28(1) of the Trademarks act, 199 provides a right to get relief against the infringement
of trademark as per provisions of the act.

Section 27(2) says that a passing off proceedings can take place for an unauthorized use of
unregistered trademark.

There are two types of remedies available for infringement/passing off:

1. Civil remedies

2. Criminal remedies

Civil remedies:

a) suit for infringement under section 134 of the act can be instituted against the deceptive use
of trademark.

b) relief under 135(1) can be granted by the courts, by either Damages or an account of profits.
Court can also order for delivery of marks and labels for destruction or erasure.

c) under section 135(2) court can give ex-parte order in accordance with section 151 of civil
procedure code.

Criminal remedies:
a) any person who uses particular trademark without permission, and makes a trademark
deceptively similar, shall be deemed to falsify a trademark under section 102 of trade mark act.

b) Penalty under section 103-

Minimum 6 months imprisonment and minimum 50000 rupees fine.

c) under section 104, if a person helped the accused, he shall be punished with a similar
minimum punishment.

(c) under section 105, a minimum of 1 year sentence in case of repeated offence,

except where a person can prove that

-he had taken all necessary precautions at the time of alleged offence.

-he had acted innocently

....................................................................................
Patents
What is a patent?
A patent is an exclusive right granted for an invention, which is a product or a
process that provides, in general, a new way of doing something, or offers a
new technical solution to a problem. To get a patent, technical information
about the invention must be disclosed to the public in a patent application.

Object of Patent
The basic object of patent is to encourage new inventions. If a person is not
rewarded or protected he will not be interested to make new inventions. Thus,
patent protects the inventor and encourages him to make new inventions.

The objective of a patent is to provide a right to an inventor(s) to exclude

others from exploiting the patented invention. Therefore, other than the
inventor, no one can use, make or sell the patented invention without
permission from the inventor. This is often referred to as the exclusive right of
the invention.

Requirements for an invention to be Patentable

1. Novelty – A thing to be patented must be novel or new. Novelty cannot be

claimed if there has been prior use of such invention

2. Usefulness – An invention cannot be patented if it is of no use to the

mankind.

3. Inventive Step – The invention should not be obvious to a person skilled in

art to which the invention relates.

4. Industrial Applicability – The invention should be capable of application by

technical means on a larger basis.
There are three basic tests for any invention to be patentable:

Firstly, the invention must be novel, meaning thereby that the Invention must
not be in existence.

Secondly, the Invention must be non- obvious, i.e. the Invention must be a
significant improvement to the previous one; mere change in technology will
not give the right of the patent to the inventor.

Thirdly, the invention must be useful in a bonafide manner, meaning thereby

that the Invention must not be solely used in any illegal work and is useful to
the world in a bonafide manner.

An invention considered as new if, on the date of filing the application, any
such invention is not known to the public in any form, i.e. oral, writing, or any
other form.

A patent is a territorial right. Thus it can only be applied in the country where
it has been granted. A patent is a territorial right. Thus it can only be applied in
the country where it has been granted. Therefore, any legal action against
infringement or infringement of patent rights can only be taken in that
country. To obtain patent protection in different countries, each country must
apply for a patent. The Patent Cooperation Treaty (PCT) provides a way to file
an international patent application in which a patent can be filed through a
single patent application in a large number of countries. However, the PCT of
a patent remains discretionary of the individual patent office only after the
application is filed.

Rights and obligations of the patentee

-Rights of Patentee

Right to exploit patent: A patentee has the exclusive right to make use,
exercise, sell or distribute the patented article or substance in India, or to use
or exercise the method or process if the patent is for a person. This right can
be exercised either by the patentee himself or by his agent or licensees. The
patentee’s rights are exercisable only during the term of the patent.

Right to grant license: The patentee has the discretion to transfer rights or
grant licenses or enter into some other arrangement for a consideration. A
license or an assignment must be in writing and registered with the Controller
of Patents for it to be legitimate and valid. The document assigning a patent is
not admitted as evidence of title of any person to a patent unless registered
and this is applicable to assignee not to the assignor.

Right to Surrender: A patentee has the right to surrender his patent, but
before accepting the offer of surrender, a notice of surrender is given to
persons whose name is entered in the register as having an interest in the
patent and their objections, if any, considered. The application for surrender is
also published in the Official Gazette to enable interested persons to oppose.

Right to sue for infringement: The patentee has a right to institute

proceedings for infringement of the patent in a District Court having
jurisdiction to try the suit.

-Obligations of patentee

Government use of patents: A patented invention may be used or even

acquired by the Government, for its use only; it is to be understood that the
Government may also restrict or prohibit the usage of the patent under
specific circumstances. In case of a patent in respect of any medicine or drug,
it may be imported by the Government for its own use or for distribution in
any dispensary, hospital or other medical institution run by or on behalf of the
Government. The aforesaid use can be made without the consent of the
patentee or payment of any royalties.

Compulsory licenses: If the patent is not worked satisfactorily to meet the

reasonable requirements of the public, at a reasonable price, the Controller
may grant compulsory licenses to any applicant to work the patent.
A compulsory license is a provision under the Indian Patent Act which grants
power to the Government to mandate a generic drug maker to manufacture
inexpensive medicine in public interest even as a patent in the product is valid.
Compulsory licenses may also be obtained in respect of related patents where
one patent cannot be worked without using the related patent.

Revocation of patent: A patent may be revoked in cases where there has

been no work or unsatisfactory result to the demand of the public in respect
of the patented invention.

Invention for defense purposes: Such patents may be subject to certain

secrecy provisions, i.e. publication of the Invention may be restricted or
prohibited by directions of Controller. Upon continuance of such order or
prohibition of publication or communication of patented Invention, the
applicant is debarred for using it, and the Central Government might use it on
payment of royalties to the applicant.

Restored Patents: Once lapsed, a patent may be restored, provided that few
limitations are imposed on the right of the patentee. When the infringement
was made between the date of infringement and the date of the
advertisement of the application for reinstatement, the patentee has no
authority to take action for infringement.

How to obtain a Patent?

A patent is an intellectual property right which provides protection to an

inventor for an invention made by him. A patent is a right granted to a person
who has invented a new and useful article or an improvement of an existing
article or a new process of making an article.

A patent is territorial in extent which means patent granted in one state

cannot be enforced in another state unless the invention is patented in the
other state also. It is to be noted that patent does not exist in ideas. An idea
must be implemented and an invention must be made in order to make it
patentable.

Procedure of obtaining a Patent:

The following is the procedure to get a patent in India. Section 6 of the

Patents Act, 1970 provides who may apply for patents. The following persons
can make an application for patents:

(i) Any person claiming to be the true and first inventor of the invention.
(ii) Any person being the assignee of the person claiming to be the true and
first inventor in respect of the right to make such an application.
(iii) Legal representative of any deceased person who immediately before his
death was entitled to make such an application. The application may be made
individually or jointly.

Section 7 of the Act deals with the form of application required. According to
it an application should be made for an invention in the prescribed form and
filed in the patent office .

-The application should state that the applicant has possession of the
invention and the name of the person claiming to be the true inventor must
be mentioned. If the application has not been made by the true inventor,
there must be a declaration that the applicant believes that such person is the
true and the first inventor of the invention.

-The application should be accompanied by a provisional or complete

specification about the invention.

-The complete specification must be submitted 12 months after the filing of

the application for patent. The complete specification should describe the
invention in a detailed manner. It should mention the best method to use such
invention. Such specification should end with a claim defining the scope of
such invention.
-Abstract containing technical information of the invention must be submitted
along with the complete specification. Claims must relate to a single invention
and should contain drawings wherever required.

-The application of patent shall be published in a public platform after a

period of 18 months from the date of filing. (or date of priority whichever is
earlier.)

-Then the applicant should make a request for examination of the application.
Such examination is made by the examiners of patents.

-He checks whether the application is consistent with the requirements of the
Act and whether there is any lawful ground of objection for the granting of
patent.

-Another ground that has to be considered is that whether such invention has
been published or claimed by any other person. To facilitate this the examiner
makes a search in the publications available in the Patent Office and
specifications of prior applications.

-After such examination, the Patent Office shall communicate to the applicant
relating to the objections for granting of patent. It is the duty of the applicant
to deal with and remove such objections. After removal of the objections, the
Controller will accept the complete specification and it shall be advertised in
the Official Gazette.

-After acceptance of the complete specification, the applicant shall receive

benefits of the grant, except being entitled to institute infringement
proceeding until the patent is granted.

-A notice of opposition by any person who is interested is allowed within 3

months from the date of publication in the Official Gazette. A copy of the
notice of opposition shall be forwarded by the Controller to the applicant. The
applicant may file a reply statement within a month from the date of receipt of
the copy. Then the process of providing evidences and hearing goes on. The
matter is heard and decided. When the application is accepted without
opposition the patent will be granted.

-If the inventor is interested, he may make a request for mentioning his name
in the patent. The final decision regarding mentioning of name depends on
the Controller. Mentioning of name does not in any way confer or take away
any rights of the Patentee.

Term of Patent:

According to the Patents Amendment Act, 2002 the term of every patent shall
be 20 years. The procedure of keeping a patent alive is by paying the renewal
fee from time to time.

*Revocation and surrender of patents

When a patent is found to have been improperly granted, it can be revoked or

invalidated. whereas surrender allows patent holders to voluntarily give up
their rights.

Revocation of patents:

As per section 64 of Indian patents act, following reasons could lead to a

patent being revoked:

1 If the innovation is illegal, immoral or against the rules of the society.

2. If the patented invention is not used or made available commercially within

a reasonable period of time, which is 4 years from filing.

3. If the patent was improperly obtained, or the rights of another person were
violated.

4. If the innovation was made public before the patent filing date. In such case,
it is no longer patentable.
5. If the innovation has no industrial applicability, it cannot be regarded as
patented invention.

Surrender:

Allowing the surrender of a patent is not always an easy option- A certification

confirming no ongoing legal proceedings for patent infringement or
revocation is ongoing needs to be added in order to guarantee that the offer
for surrender is legitimate, plus it is required to submit details of any such
pending actions, including their specifics and status. The patentee can
voluntarily revoke the patent through surrender to avoid invalidation.

This option is faster than allowing the patent to lapse, as it would take 19
months for it to lapse and no chance of its restoration.

Any interested person has the chance to object to the surrender within three
months of the notice's publication by delivering a notice of objection to the
Controller in duplicate using Form 14.

The opposition proceedings under Section 63 shall be conducted in

accordance with the rules governing the hearing of other opposition cases,
including the filing of written statements, reply statements, evidence
presentation, conducting hearings, and dealing with costs.

The Controller may provide the patentee instructions to return the patent if
they agree with the patentee's decision to surrender the patent. The Controller
will issue an order canceling the surrendered patent after receiving it, and it
will then be made public.

The Controller of Intellectual Property can solicit opposition from anybody

who might be interested in disputing the application, even if a patentee
submits an application for surrender to the patent office.
The decision to give up a patent should be carefully thought out, taking into
account any possible arguments against its validity or lack of enforceability.
Market factors, the potential for patent infringement, strategic business
decisions, simplification of the patent portfolio, invalidity or non-
enforceability, and patent flaws should all be taken into account.
Infringement of patents:

The Patents Act, 1970 does not provide specifications as to what would be considered
an infringement of a patented product. But it lays down two kinds of activities which,
when committed without the consent of the patent holder, would constitute
infringement:

1. Making, using, offering for sale, selling, importing the patented product,

2. Using the patented process, or using, offering for sale, selling, or importing the
product directly contained by that process.

Product patent

The 2005 amendment provided for product patent protection in contrast to the earlier
provision of the Act that provided for only process patent protection. Process patent
protection meant that only the process used for the manufacture of the product could
be patented and not the final product. So, even if the person used a different process
than the one used by the original inventor in order to make the same product, it would
not be considered a violation of the patent.

Types of patent infringement

There are different kinds of patent infringement that are possible. They are listed and
discussed as follows:

 Direct Infringement
 Indirect Infringement
 Contributory Infringement
 Literal Infringement
 Willful Infringement
Direct infringement

This is the most common type of patent infringement. As the name suggests, when a
patented product or method (or substantially similar, i.e. equivalent to them) is used,
marketed, sold, offered for sale, or imported without permission of the patentee during
the term of such a patent, it constitutes direct patent infringement. It is considered to be
of two types, viz- literal and non-literal patent infringement. They are discussed as
follows:

Literal infringement

As the word “literal” signifies, literal infringement is the type of direct patent
infringement where all the claims in the patent specification, match the features of the
infringing product or process.

To make things more precise, if a claimed invention is missing from the infringing
product or process, then such infringement will not be a literal infringement.

Non- literal infringement

Non-literal infringement is the type of patent infringement where the infringer has
made an equivalent product or process to the patented product or process and has
been using, selling, marketing, offering for sale, or importing the same without
permission of the patentee during the term of such a patent. It is best to understand

Indirect or induced infringement

Indirect infringement is a type of patent infringement where the patentee’s rights are
involuntarily or unwillingly infringed by an infringer.

Illustration: Suppose X has a patent on a particular type of sound system. Y makes a

substantially similar sound system (that infringes X’s patent) with the help of Z’s supply
of a particularly essential component. Here, Y has committed direct infringement, and Z
has committed indirect infringement of X’s patent rights.
Contributory infringement

Contributory patent infringement is a type of secondary patent infringement. This type

of infringement happens when an indirect infringer supplies a direct infringer with a part
that has no substantial non-infringing use. In other words, the indirect infringer,
knowing that such essential parts (components) will make the manufacturer cause direct
infringement, still supplies such parts.

Illustration: Suppose X has a patent on a particular type of sound system. Y makes a

substantially similar sound system (that infringes X’s patent) with the help of Z’s supply
of a particularly essential component. Here, Y has committed direct infringement, and Z
has committed indirect infringement of X’s patent rights. Now, if Z had supplied or sold
such an essential component knowingly, Z would have committed contributory
infringement.

Willful infringement

As the name suggests, willful infringement is the type of patent infringement in which
the infringer intentionally or willfully disregards and violates the patent rights of the
patentee. In other words, if the infringer had knowledge of the patent and still violated
the same, then such an infringement shall be a willful infringement.

So, what becomes important to establish here is that the infringer had knowledge of the
patent, and the patentee has the burden to prove this to establish willful infringement.

Usually, the patentee tries to discharge such onus by establishing that the infringer was
duly served notice but continued infringement nonetheless. In such a case, the infringer
has the defense to show that he had taken a legal opinion on the same and continued
infringement because he believed in a bona fide manner that such a patent was either
invalid or his actions did not constitute infringement.

If a patentee can successfully show willful infringement, then the infringer may have to
face substantial pecuniary penalties that usually cover the legal fees of the patentee and
even three to four times the actual damages faced by the plaintiff.
Doctrines related to patent infringement

Doctrine of Equivalents

In the event a patent infringement has not been done literally, it may have happened
under the judicially created doctrine of equivalents if the patented invention and the
allegedly infringing invention have the same function, way, or result. In other words, if
the allegedly infringing device performs substantially the same function in
substantially the same way to achieve the same result, then it shall constitute
patent infringement under the doctrine of equivalents. This doctrine has been
accepted by most courts in the world and permits the courts to hold a party liable for
patent infringement even though the infringing invention does not fall within the literal
scope of the patent claims but nevertheless is equivalent to the patented invention.

Doctrine of Colourable Variation

A colourable variation is an immaterial or insignificant variation. According to the

doctrine of colourable variation, if the infringer makes a slight modification to the
patented product or process but, in fact, takes the essential features of the patented
invention, then it shall constitute patent infringement under the doctrine of colourable
variation.

Ways to prevent patent infringement:

1. Use of original products

2. Obtaining appropriate license from patent holder

3. Patents infringement suit

4. Temporary injunction

5. Permanent injunction

6. Damages
Plagiarism

The incorporation of someone else's work into your own work, with or without their consent, and
presenting it as our own is known as plagiarism. It is a form of misrepresentation by means of
fraud. Plagiarism is the most severe violation of the academic writing.

To plagiarize means stealing the ideas or words of someone else. It is literary theft and can be
taken as fraud because it contains both elements i.e stealing someone else's work and lying
about it forward.

Plagiarism arising out of misrepresentation: (Type of plagiarism)

1. Contract cheating: It is the most severe form of misrepresenting something as your own.
This includes:

-submitting a paper that someone else wrote for you, whether you paid for it or not.

-Submitting an assignment made by a friend or family member or someone else, as your own.

2. Collusion: Collusion is said to have occurred when you submit shared work as individual
work. This includes:

- Discussing online exams with others

-receiving unauthorized help from a tutor for assignments.

3. Copying and pasting: It is when whole chunk of information or a significant portion is taken
without making any alteration. This includes;

- Clone

-Mosaic

4. Recycling: It is also called self stealer. Recycling is said to occur when you use your own
previous work in another publication. This is also called self plagiarism. It is not wrong or
offence in India as the author has the right to reproduce his own work.

Law concerned with plagiarism:

Plagiarism is a moral wrong and in general is not a crime when ideas are stolen without giving
credit to author. However if a significant amount of copyright work is stolen, then it amounts to
criminal proceedings for both copyright infringement and violation of 'special right' of author in
section 57 of copyrights act.

Section 57 grants special rights to authors for their work. It is a moral right and the act
recognizes it as a right not to be plagiarized.
Also section 63 of the Indian copyrights act considers infringement as criminal offence. It
awards the same punishment for violation of section 57 and copyright infringement.

The sentence can be minimum 6 months and maximum 3 years. There is also a provision for
enhanced punishment for second and subsequent convictions.

Avoiding Plagiarism by referencing and writing skills:

Accurate referencing is important in all academic work. To avoid plagiarism, one should always
properly cite the sources used in the research. Additionally, it is important to ensure that any
ideas or arguments presented in the writing are original.

what is referencing:- It is the process of acknowledging the sources you have used in your
writing. It allows the reader to access the validity of your argument. It is generally given in the
end of the assignment. Ex.- web links.

What is citation: You identify sources by citing them in the text of your assignment. It is also
called 'in-text citation'. It appears within the main text. Ex. case citations.

Some specific tips for avoiding plagiarism:

1. Use proper citation of the source used, be it a book, article or statute.

2. Paraphrase carefully, i.e. when paraphrasing information from source, try to reword the
information in your own words, and give proper credit to the original source.

3. Even if you use a direct quote, cite the source properly.

4. Use plagiarism detection software.

UGC policy for academic integrity and prevention of plagiarism:

UGC came up with UGC regulations in 2018, to bring about the special emphasis on the need
for a more aware and integrity driven conduct of academicians indulging in any research or
academic writing. The objectives of UGC regulations 2018 are:

- To create awareness about responsible conduct for academic research and writing and
promote academic integrity.

- Prevention of plagiarism in academic writing.

- To establish systems to facilitate this responsible conduct.

- To establish system to detect plagiarism.

- To set prevention and punishment mechanism for breach of responsible conduct.

The regulations highlights about establishment of two authoritative bodies to deal with
plagiarism and detect it. These two bodies will be at the Higher education institutions (HEI):

1. Departmental academic integrity panel

2. Institutional academic integrity panel

The regulations also provide for the institutions to submit soft copies of all the Masters and
research program's thesis and dissertations within a month after the award of degree, for
hosting the digital depository "Shodh Ganga e-repository".

The regulations also provide for some technological tools to detect the plagiarism at the
academic research level.

Some plagiarism detection Tools:

The academic experts or instructors can very well detect the plagiarism in the writing by use of
their skills.

1. They are subject specialists and familiar with the literature inthe field.

2. They can spot difference in writing style.

3. They will notice if your writing differs from one assignment to other.

4. They can judge if your writing exceeds your level of study.

5. They can spot check the sources and search it on internet too.

Various indications of a dubious/Doubtful literary work:

1. More than one font.

2. Inappropriate hyperlinks.

3. Obsolete information

4. Missing references or endnotes.

Some Software used by Universities for plagiarism detection:

-TURNITIN

-URKUND

-UNICHECK, COPYLEAKS, PLAGIARISMA , PlagSCAN