INTRODUCTION

Intellectual Property (IP) is a class of property emanating primarily from the activities of
the human intellect. Human beings are distinguished from animals by the intellectual faculty
endowed by the Almighty. The human beings are thus, elevated themselves to the present
civilized state solely due to the exercise of such intellectual faculty. It is common that any
property, moveable or immovable is to be legally protected in order to prevent it from stealing.
Similarly the rights in the intellectual property created need also to be protected to prevent it
from infringement; the property, which is created by the human intellect. In other words,
intellectual property relates to information, which can be incorporated in tangible objects and
reproduced in different locations.

Like the movable and immovable property, intellectual property is also governed by the
law of the country which is for the time being in force, namely Law of Intellectual Property
Rights.

Intellectual property (IP) is a term referring to a number of distinct types of legal

monopolies over creations of the mind, both artistic and commercial, and the corresponding
fields of law. Under intellectual property law, owners are granted certain exclusive rights to a
variety of intangible assets, such as musical, literary, and artistic works; discoveries and
inventions; and words, phrases, symbols, and designs. Common types of intellectual property
include copyrights, trademarks, patents, industrial design rights and trade secrets in some
jurisdictions.

Although many of the legal principles governing intellectual property have evolved over
centuries, it was not until the 19th century that the term intellectual property began to be used,
and not until the late 20th century that it became commonplace in the United States. The
British Statute of Anne 1710 and the Statute of Monopolies 1623 are now seen as the origin
of copyright and patent law respectively

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 The legal rights in the intellectual property generated are termed as intellectual property
rights commonly as “IPR” in short. Protection of the legal rights of the intellectual property,
especially by way of patents has come to be recognized in the modern times as an important tool,
not only to promote inventiveness but also to ensure adequate returns to the investments made.
IPR has also become important for the technological. Industrial and Economic Development of a
country.

HISTORY

Modern usage of the term intellectual property goes back at least as far as 1888 with the
founding in Berne of the Swiss Federal Office for Intellectual Property When the administrative
secretariats established by the Paris Convention (1883) and the Berne Convention (1886) merged
in 1893, they also located in Berne, and also adopted the term intellectual property in their new
combined title, the United International Bureaux for the Protection of Intellectual Property. The
organisation subsequently relocated to Geneva in 1960, and was succeeded in 1967 with the
establishment of the World Intellectual Property Organization (WIPO) by treaty as an agency of
the United Nations.

The term intellectual property can be found used in an October 1845 Massachusetts
Circuit Court ruling in the patent case Davoll et al. v. Brown., in which Justice Charles L.
Woodbury wrote that "only in this way can we protect intellectual property, the labors of the
mind, productions and interests are as much a man's own...as the wheat he cultivates, or the
flocks he rears."

The statement that "discoveries are...property" goes back earlier. Section 1 of the French
law of 1791 stated, "All new discoveries are the property of the author; to assure the inventor the
property and temporary enjoyment of his discovery, there shall be delivered to him a patent for
five, ten or fifteen years."

The concept's origins can potentially be traced back further. Jewish law includes several
considerations whose effects are similar to those of modern intellectual property laws, though the
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notion of intellectual creations as property does not seem to exist – notably the principle of
Hasagat Ge'vul (unfair encroachment) was used to justify limited-term publisher (but not author)
copyright in the 16th century.

The term's widespread popularity is a much more modern phenomenon. It was very
uncommon until the 1967 establishment of the World Intellectual Property Organization,
which actively tried to promote the term. Still, it was rarely used without scare quotes
until about the time of the passage of the Bayh-Dole Act in 1980.

VARIOUS FORMS OF IPR

The various forms of IPR are Patents, Designs, Trade Marks, Copyrights, Geographical
Indications and Trade secrets.

Patents

The term patent usually refers to a right granted to anyone who invents or discovers any
new and useful process, machine, article of manufacture, or composition of matter, or any new
and useful improvement thereof. Examples of particular species of patents for inventions
include biological patents, business method patents, chemical patents and software patents. The
word patent originates from the Latin patere, which means "to lay open" (i.e., to make available
for public inspection), and more directly as a shortened version of the term letters patent, which
originally denoted an open for public reading royal decree granting exclusive rights to a person.

Patents are legal rights granted for new inventions employing scientific and technical
knowledge. A patent confers on its holder the exclusive right for a limited period (usually called
“term”) the rights to the new inventions disclosed. The subject of Patent, which involves
scientific and legal issues, is relatively complicated as compared with the other species of
intellectual property like designs, trademarks and copyrights.

A Patent is a statutory right for an invention granted for a limited period of time to the
patentee by the Government, in exchange of full disclosure of his invention for excluding others,
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from making, using, selling, importing the patented product or process for producing that product
for those purposes without his consent.

A patent is not a right to practice or use the invention. Rather, a patent provides
the right to exclude others from making, using, selling, offering for sale, or importing the
patented invention for the term of the patent, which is usually 20 years from the filing
date subject to the payment of maintenance. A patent is, in effect, a limited property right that the
government offers to inventors in exchange for their agreement to share the details of their
inventions with the public. Like any other property right, it may be sold, licensed, mortgaged,
assigned or transferred, given away, or simply abandoned.

There is a trend towards global harmonization of patent laws, with the World Trade
Organization (WTO) being particularly active in this area. The TRIPs Agreement has been
largely successful in providing a forum for nations to agree on an aligned set of patent laws.
Conformity with the TRIPs agreement is a requirement of admission to the WTO and so
compliance is seen by many nations as important. This has also led to many developing nations,
which may historically have developed different laws to aid their development, enforcing patents
laws in line with global practice.

A patent is requested by filing a written application at the relevant patent office. The
person or company filing the application is referred to as "the applicant". The applicant may be
the inventor or its assignee. The application contains a description of how to make and use the
invention that must provide sufficient detail for a person skilled in the art (i.e., the relevant area
of technology) to make and use the invention. In some countries there are requirements for
providing specific information such as the usefulness of the invention, the best mode of
performing the invention known to the inventor, or the technical problem or problems solved by
the invention. Drawings illustrating the invention may also be provided.

Patent in India

A Patent is a statutory right for an invention granted for a limited period of time to the
patentee by the Government, in exchange of full disclosure of his invention for excluding others,
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from making, using, selling, importing the patented product or process for producing that product
for those purposes without his consent.

An invention relating either to a product or process that is new, involving inventive step
and capable of industrial application can be patented. However, it must not fall into the
categories of inventions that are non- patentable under section 3 and 4 of the Act.

Patent protection is territorial right and therefore it is effective only within the territory of
India. However, filing an application in India enables the applicant to file a corresponding
application for same invention in convention countries, within or before expiry of twelve months
from the filing date in India. Therefore, separate patents should be obtained in each country
where the applicant requires protection of his invention in those countries. There is no patent
valid worldwide.

History of Indian Patent System

1856 THE ACT VI OF 1856 ON PROTECTION OF INVENTIONS BASED ON THE

BRITISH PATENT LAW OF 1852. CERTAIN EXCLUSIVE PRIVILEGES
GRANTED TO INVENTORS OF NEW MANUFACTURERS FOR A PERIOD OF 14
YEARS.
1859 THE ACT MODIFIED AS ACT XV; PATENT MONOPOLIES CALLED EXCLUSIVE
PRIVILEGES (MAKING. SELLING AND USING INVENTIONS IN INDIA AND
AUTHORIZING OTHERS TO DO SO FOR 14 YEARS FROM DATE OF FILING
SPECIFICATION).
1872 THE PATENTS & DESIGNS PROTECTION ACT.
1883 THE PROTECTION OF INVENTIONS ACT.
1888 CONSOLIDATED AS THE INVENTIONS & DESIGNS ACT.
1911 THE INDIAN PATENTS & DESIGNS ACT.
1972 THE PATENTS ACT (ACT 39 OF 1970) CAME INTO FORCE ON 20TH APRIL 1972.
1999 ON MARCH 26, 1999 PATENTS (AMENDMENT) ACT, (1999) CAME INTO FORCE
FROM 01-01-1995.
2002 THE PATENTS (AMENDMENT) ACT 2002 CAME INTO FORCE FROM 2OTH
MAY 2003
2005 THE PATENTS (AMENDMENT) ACT 2005 EFFECTIVE FROM Ist JANUARY 2005

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 A patent application can be filed with Indian Patent Office either with complete
specification or with provisional specification along with fee as prescribed in schedule I. In case
the application is filed with provisional specification, then one has to file complete specification
within 12 months from the date of filing of the application. There is no extension of time to file
complete specification after expiry of said period.

An invention to become patentable subject matter must meet the following criteria -
i) It should be novel.
ii) It should have inventive step or it must be non-obvious
iii) It should be capable of Industrial application.
iv) It should not fall within the provisions of section 3 and 4 of the Patents Act 1970.

Inventions not Patentable

What are not inventions

The following are not inventions within the meaning of this Act, -

a. an invention which is frivolous or which claims anything obvious contrary to well

established natural laws;
b. an invention the primary or intended use of which would be contrary to law or morality
or injurious to public health;
c. the mere discovery of a scientific principle or the formulation of an abstract theory;
d. the mere discovery of any new property of new use for a known substance or of the mere
use of a known process, machine or apparatus unless such known process results in a new
product or employs at least one new reactant;
e. a substance obtained by a mere admixture resulting only in the aggregation of the
properties of the components thereof or a process for producing such substance;
f. the mere arrangement or re-arrangement or duplication of known devices each
functioning independently of one another in a known way;

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 g. a method or process of testing applicable during the process of manufacture for rendering
the machine, apparatus or other equipment more efficient or for the improvement or
restoration of the existing machine, apparatus or other equipment or for the improvement
or control of manufacture;
h. a method of agriculture or horticulture;
i. any process for the medicinal, surgical, curative, prophylactic or other treatment of
human beings or any process for a similar treatment of animals or plants to render them
free of disease or to increase their economic value or that of their products.

No patent shall be granted in respect of an invention relating to atomic energy.

Term of every patent in India is 20 years from the date of filing of patent application,
irrespective of whether it is filed with provisional or complete specification. However, in case of
applications filed under PCT the term of 20 years begins from International filing date.

Industrial design

A design is an idea or conception as to features of shape, configuration pattern or

ornament applied to an article. A design can be either two or three-dimensional. In short a design
in order to secure legal protection must consist of a shape which is three dimensional or of a
pattern which is two-dimensional and that the shape or pattern must
be applied to an article or articles. The main criteria for securing protection for a design
are novelty and originality of the design.

An Industrial design right is an intellectual property right that protects the visual design
of objects that are not purely utilitarian. An design consists of the creation of a shape,
configuration or composition of pattern or color, or combination of pattern and color in three
dimensional form containing aesthetic value.

India's Design Act, 2000 was enacted to consolidate and amend the law relating to
protection of design and to comply with the articles 25 and 26 of TRIPS agreement. The new act,

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(earlier Patent and Design Act, 1911 was repealed by this act) now defines "design" to mean
only the features of shape, configuration, pattern, ornament, or composition of lines or colours
applied to any article, whether in two or three dimensional, or in both forms, by any industrial
process or means, whether manual or mechanical or chemical, separate or combimed, which in
the finished article appeal to and are judged solely by the eye; but does not include any mode or
principle of construction.

Trade mark

A trade mark is a visual symbol in the form of a word, device, or a label applied to an
article of manufacture of commerce with a view to indicate the purchasing members of the
public about the origin of the manufacture of the goods affixed with that mark, It distinguishes
such goods from the goods manufactured by others in the trade. A trademark is a type
of intellectual property, and typically a name, word, phrase, logo, symbol, design, image, or a
combination of these elements.

The owner of a registered trademark may commence legal proceedings for trademark
infringement to prevent unauthorized use of that trademark. However, registration is not
required. The owner of a common law trademark may also file suit, but an unregistered mark
may be protectable only within the geographical area within which it has been used or in
geographical areas into which it may be reasonably expected to expand.

The essential function of a trademark is to exclusively identify the commercial source or

origin of products or services, such that a trademark, properly called, indicates source or serves
as a badge of origin. In other words, trademarks serve to identify a particular business as the
source of goods or services. The use of a trademark in this way is known as trademark use.
Certain exclusive rights attach to a registered mark, which can be enforced by way of
an action for trademark infringement, while unregistered trademark rights may be enforced
pursuant to the common law tort of passing off.

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 The law considers a trademark to be a form of property. Proprietary rights in relation to a
trademark may be established through actual use in the marketplace, or through registration of
the mark with the trademarks office (or "trademarks registry") of a particular jurisdiction. In
some jurisdictions, trademark rights can be established through either or both means. Certain
jurisdictions generally do not recognize trademarks rights arising through use. In the United
States the only way to qualify for a federally registered trademark is to first use the trademark in
commerce If trademark owners do not hold registrations for their marks in such jurisdictions, the
extent to which they will be able to enforce their rights through trademark infringement
proceedings will therefore be limited. In cases of dispute, this disparity of rights is often referred
to as "first to file" as opposed to "first to use." Other countries such as Germany offer a limited
amount of common law rights for unregistered marks where to gain protection, the goods or
services must occupy a highly significant position in the marketplace - where this could be 40%
or more market share for sales in the particular class of goods or services.

Copyrights
Copyright is basically the right to copy and make use of literary, dramatic, musical,
artistic works, cinematographic films, records, distribute, adapt the work and broadcast. These
rights can be licensed, transferred and/or assigned. Copyright lasts for a certain time period after
which the work is said to enter the public domain.

The exclusive rights granted by copyright law to copyright owners have been gradually
expanded over time and now uses of the work such as dramatization, translations, and derivative
works such as adaptations and transformations, fall within the scope of copyright. With a few
exceptions, the exclusive rights granted by copyright are strictly territorial in scope, as they are
granted by copyright laws in different countries. Bilateral and multilateral treaties establish

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minimum exclusive rights in member states, meaning that there is some uniformity across Berne
Convention member states.

The Berne Convention was first established in 1886, and was subsequently re-negotiated
in 1896 (Paris), 1908 (Berlin), 1928 (Rome), 1948 (Brussels), 1967 (Stockholm) and 1971
(Paris). The convention relates to literary and artistic works, which includes films, and the
convention requires its member states to provide protection for every production in the literary,
scientific and artistic domain. The Berne Convention has a number of core features, including the
principle of national treatment, which holds that each member state to the Convention would
give citizens of other member states the same rights of copyright that it gave to its own citizens.

In all countries that are members of the Berne Convention copyright is automatic, and
need not be obtained through official registration with any government office. Once an idea has
been reduced to tangible form, for example by securing it in a fixed medium (such as a drawing,
sheet music, photograph, a videotape, or a computer file), the copyright holder is entitled to
enforce his or her exclusive rights. However, while registration isn't needed to exercise
copyright, in jurisdictions where the laws provide for registration, it serves as prima
facie evidence of a valid copyright. The original copyright owner of the copyright may be the
employer of the author rather than the author himself, if the work is a "work for hire".

Geographical indication

A geographical indication (GI) is a name or sign used on certain products which

corresponds to a specific geographical location or origin (e.g. a town, region, or country). The
use of a GI may act as a certification that the product possesses certain qualities, or enjoys a
certain reputation, due to its geographical origin. The TRIPS agreement requires the member
countries to enact legislation for the protection of Geographical indications. An office for the
registration of the Geographical indication in India has been opened at Chennai.

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 In 1994, when negotiations on the WTO Agreement on Trade-Related Aspects of
Intellectual Property Rights ("TRIPS") were concluded, governments of all WTO member
countries (151 countries As of August 2007) had agreed to set certain basic standards for the
protection of GIs in all member countries.

Trade secret

A trade secret is a formula, practice, process, design, instrument, pattern, or compilation

of information which is not generally known or reasonably ascertainable, by which
a business can obtain an economic advantage over competitors or customers. In
some jurisdictions, such secrets are referred to as "confidential information" or "classified
information".

A trade secret is information that is not generally known to the public, confers some sort
of economic benefit on its holder (where this benefit must derive specifically from its not being
generally known, not just from the value of the information itself) ,is the subject of reasonable
efforts to maintain its secrecy.

Companies often try to discover one another's trade secrets through lawful methods
of reverse engineering on one hand, and potentially unlawful methods including industrial
espionage on the other. Acts of industrial espionage are generally illegal in their own right under
the relevant governing laws. The importance of that illegality to trade secret law is as follows: if
a trade secret is acquired by improper means (a somewhat wider concept than "illegal means" but
inclusive of such means), the secret is generally deemed to have been misappropriated. Thus if a
trade secret has been acquired via industrial espionage, its acquirer will probably be subject to
legal liability for acquiring it improperly. (The holder of the trade secret is nevertheless obliged
to protect against such espionage to some degree in order to safeguard the secret. As noted
above, under most trade secret regimes, a trade secret is not deemed to exist unless its purported
holder takes reasonable steps to maintain its secrecy.)

ORGANIZATIONS RELATED TO INTELLECTUAL PROPERTY

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National Patent Offices

Every country with a patent system has a national patent office where claims of inventors
may be made a matter of public record. As mentioned above, in many countries there is an
examination before an inventor is given any substantive rights. In other countries patent claims
are registered but detailed examination is delayed until a dispute over infringement arises.

However, even in these countries a search of the prior art is often conducted as a part of
the registration process, and the search results are published so that members of the public can
assess the claims made by the registrant.

The World Intellectual Property Organization (WIPO)

Headquartered in Geneva, WIPO is the specialized United Nations Agency that serves as
the secretariat for administration of most of the global intellectual property treaties. It is the
principal forum for negotiation of new patent treaties and the leading provider of technical
assistance to developing countries in the field of intellectual property rights. WIPO was created
in 1967 as the successor organization to the International Bureau for the
Protection of Intellectual Property, which had been in existence since the 19th Century. WIPO
Currently has 179 member states.

The World Trade Organization (WTO)

The World Trade Organization was established in 1994 in Marrakech following the
successful conclusion of the Uruguay Round of Trade Negotiations. The predecessor to the WTO
was the General Agreement on Tariffs and Trade (GATT). The World Trade Organization deals
with regulation of trade between participating countries; it provides a framework for negotiating
and formalising trade agreements, and a dispute resolution process aimed at enforcing
participants' adherence to WTO agreements which are signed by representatives of member
governments and ratified by their parliaments. The organization is currently endeavouring to

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persist with a trade negotiation called the Doha Development Agenda (or Doha Round), which
was launched in 2001 to enhance equitable participation of poorer countries which represent a
majority of the world's population.

GLOBALISATION AND WIPO/WTO

A key reform of the Uruguay Round was the Agreement on Trade Related Aspects of
Intellectual Property Rights, known as TRIPS, codified as an annex to the treaty establishing the
WTO.

It is important to recognize that the TRIPS Agreement was intended to create a more
equitable system of international trade. Wealthy countries agreed to reduce barriers to imports of
price competitive imports from abroad while developing countries agreed to open their markets
to the high value added exports of the developed nations. These high value added exports
disproportionately consist of technology in which much of the value is intangible and must be
protected by strong intellectual property regimes to be effectively exploited. Pharmaceutical
products constitute one of the most important categories of high technology products.

Among the major requirements of the TRIPS agreement are the following:

• WTO Member States must provide a level of rights equal to those provided in the major
global intellectual property treaties administered by WIPO, including the Paris
Convention on Industrial Property.
• WTO member states may not discriminate among technologies in providing patent
protection, meaning that exceptions to patent protection in many countries for
pharmaceutical products must be eliminated.
• WTO member states must provide patent protection for at least 20 years from the date of
filing a patent application

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 • WTO Member States must provide effective judicial enforcement of intellectual property
rights.
• A TRIPS Council was created to coordinate WTO policy in the area of intellectual
property rights and to manage the resolution of disputes among states on implementation
of TRIPS obligations.

In the road map ahead for these two important organizations, it is germane here to refer to the
new initiative launched by WIPO and the WTO in june 2001 to help the least developed
countries (LDCs) also to maximize the benefits of intellectual property protection. The WIPO
director general termed the joint initiative as an expression of the commitment to the LDCs, as
providing them with an intellectual property system was crucial in assisting them in view of the
importance of intellectual property as a tool for technological advancement, economic growth,
and wealth creation. The director general of WTO felt that while implementation of their joint
initiative obligations posed a challenge, it provided an opportunity for the least developed
countries to harness intellectual property in order accelerate their economic, social and cultural
development, and that this joint initiative which offered varied forms of technical assistance,
would help the LDCs promote their developmental goals.

PATENT INFRINGEMENT

Patent infringement is the commission of a prohibited act with respect to a

patented invention without permission from the patent holder. Permission may typically be
granted in the form of a license. The definition of patent infringement may vary by jurisdiction,
but it typically includes using or selling the patented invention. In many countries, a use is
required to be commercial (or to have a commercial purpose) to constitute patent infringement.

The scope of the patented invention or the extent of protection is defined in the claims of
the granted patent. In other words, the terms of the claims inform the public of what is not
allowed without the permission of the patent holder.
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 Patents are territorial, and infringement is only possible in a country where a patent is in
force. For example, if a patent is filed in the United States, then Americans are prohibited from
making or importing the patented item, while people from other countries may be free to make
the patented item in their country. The scope of protection may vary from country to country,
because the patent is examined by the patent office in each country or region and may have some
difference of patentability, so that a granted patent is difficult to enforce worldwide.

Those who accuse others of being patent pirates say that they take advantage of the high
cost of enforcing a patent to willfully infringe valid patents with impunity, knowing that the
average small inventor does not have the financial resources required to enforce their patent
rights. In the US, for example, an inventor must budget $1 million or more in order to initiate
patent litigation. They say that patent pirates also take advantage of countries where patent rights
are difficult to enforce and willfully infringe in those countries.

Ironically, the term "pirate" has also been used to describe patent owners that vigorously
enforce their patents. Thus whether one deliberately infringes a patent or whether one vigorously
enforces a patent, they may be referred to as a pirate by those that feel they are overstepping their
bounds.

Biopiracy is a term used to describe situations where corporations from the developed
world claim ownership of, or otherwise take unfair advantage of, the genetic resources and
traditional knowledge and technologies of developing countries. Biopiracy allegedly contributes
to inequality between developing countries rich in biodiversity, and developed countries served
by international companies, particularly in the pharmaceutical industry, exploiting those
resources.

Patent infringement insurance

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 Patent infringement insurance is an insurance policy provided by one or more insurance
companies to protect either an inventor or a third party from the risks of inadvertently infringing
a patent.

For inventors, patent infringement insurance covers legal costs in case they have to sue
an infringer to enforce their patent.

For third parties, patent infringement insurance covers their legal costs in case they are
sued for patent infringement by an inventor.

Patent infringement insurance is generally considered too expensive to be worth it. The
premiums must be high, however, due, at least in part, to the high legal costs of patent
infringement cases. A typical patent infringement case in the US costs 1 - 3 million dollars in
legal fees for each side. This is despite the fact that 99% of all patent infringement cases are
settled. Legal fees in pharmaceutical cases can run 30 million dollars or more, although this
should be contrasted with the fact that billions of dollars may be at stake.

In June 2006, a Study for the European Commission on the feasibility of possible
insurance schemes against patent litigation risks was published. The report concluded that the
continuation of the status quo with very little, disproportionately expensive, bespoke patent
litigation insurance (PLI) would not meet any objectives for a feasible insurance scheme.
Instead, only a mandatory scheme was considered to be viable in order to provide the economic
and technical benefits to the EU and individual patentees which would arise from a widespread
PLI scheme.

COPY RIGHT INFRINGEMENT

Copyright infringement (or copyright violation) is the unauthorized or prohibited use

of works covered by copyright law, in a way that violates one of the copyright owner's exclusive
rights, such as the right to reproduce or perform the copyrighted work, or to make derivative

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works.For electronic and audio-visual media, unauthorized reproduction and distribution is also
commonly referred to as piracy.

Musical works

Duplication of a CD or other recorded media containing copyright material without

permission of the copyright holder may be a form of copyright infringement, dependent on local
laws.

Unauthorised downloading of copyrighted material and sharing of recorded music over

the Internet, often in the form of MP3 files, is another form of infringement, even after the
demise of Napster and a series of infringement suits brought by the RIAA.

Bootleg recordings are musical recordings that have not been officially released by the
artist or their associated management or production companies. They may consist of demos,
outtakes or other studio material, or of illicit recordings of live performances. Music enthusiasts
may use the term "bootleg" to differentiate these otherwise unavailable recordings from "pirated"
copies of commercially released material, but these recordings are still covered by copyright
despite their lack of formal release, and their distribution is still against the law.

Sampling of copyrighted music for use in other works without permission is also a form
of copyright infringement. Some companies exploit this fact by attempting to sue the creators of
the new work for copyright infringement.

TV and film

Promotional screener DVDs distributed by movie studios (often for consideration for
awards) are a common source of unauthorized copying when movies are still in theatrical
release, and the MPAA has attempted to restrict their use. Movies are also still copied by
someone sneaking a camcorder into a movie theater and secretly taping the projection (also

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known as "camming"), although such copies are often of lesser quality than DVD. Some
copyright owners have responded to infringement by displaying warning notices on
commercially sold DVDs; these warnings do not always give a fair picture of the purchaser's
legal rights, which in the US generally include the rights to sell, exchange, rent or lend a
purchased DVD.

Text

The unauthorized use of text content can be a form of copyright infringement. It is

common on the World Wide Web for text to be copied from one site to another without consent
of the author. Roberta Beach Jacobson criticizes the misappropriation of writers' work by
websites in her article Copyrights and Wrongs. This article was added to articlestree.com on
November 27, 2001; ironically, it has since been copied to hundreds of websites, many of them
claiming copyright over the work or charging money to access it.

Copyright infringement is often equated with theft, for instance in the title of the No Electronic
Theft Act of 1997, but differs in certain respects. Courts have distinguished between copyright
infringement and theft. A British Government's report, Digital Britain, characterizes online
piracy as a form of theft: "Unlawful downloading or uploading, whether via peer-to-peer sites or
other means, is effectively a civil form of theft.

Anti-piracy

Anti-piracy is a term used to describe countermeasures against maritime piracy but

moreoften by some to describe the attempt to prevent copyright infringement, counterfeiting, and
other violations of intellectual-property rights.

It includes, but is by no means limited to, the combined efforts of corporate associations
(such as the RIAA and MPAA), law enforcement agencies (such as the FBI and Interpol), and
various international governments to combat copyright infringement relating to various types of

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creative works, such as software, music and films. These measures often come in the form
ofcopy protection measures such as DRM.

Some examples of Anti- piracy

• RIAA suing file-sharers that share music over P2P networks

• MPAA encryption of DVD movies using the CSS cipher and prohibiting the distribution
and use of DeCSS, while also having the effect of banning free/open source DVD
player software.
• "Coded Anti-Piracy", also called CAP codes, as a way to put a forensic identification on
the film to trace back illegal copies of films to the source.
• Metal Gear Solid required a piece of information from the game's jewel case for the
player to progress after a certain point, making pirated copies effectively worthless
without the original jewel case, although the information can easily be found on the
Internet.
• Microsoft removing Windows Vista and Microsoft Office from various torrent trackers

CASES

Basmati rice

In late 1997, an American company RiceTec Inc, was granted a patent by the US patent
office to call the aromatic rice grown outside India 'Basmati'. RiceTec Inc, had been trying to
enter the international Basmati market with brands like 'Kasmati' and 'Texmati' described as
Basmati-type rice with minimal success. However, with the Basmati patent rights, RiceTec will
now be able to not only call its aromatic rice Basmati within the US, but also label it Basmati for
its exports. This has grave repercussions for India and Pakistan because not only will India lose
out on the 45,000 tonne US import market, which forms 10 percent of the total Basmati exports,

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but also its position in crucial markets like the European Union, the United Kingdom, Middle
East and West Asia. In addition, the patent on Basmati is believed to be a violation of the
fundamental fact that the long grain aromatic rice grown only in Punjab, Haryana, and Uttar
Pradesh is called Basmati. This type of rice has been grown in the foothills of the Himalayas for
thousands of years. According to sources from the Indian Newspaper, Economic Times,
"Patenting Basmati in the US is like snatching away our history and culture."

RiceTec Inc, was issued the Patent number 5663484 on Basmati rice lines and
grains on September 2, 1997.

In abstract, "the invention relates to novel rice lines and to plants and grains of these
lines. The invention also relates to a novel means for determining the cooking and starch
properties of rice grains and its use in identifying desirable rice lines. Specifically, one aspect of
the invention relates to novel rice lines whose plants are semi-dwarf in stature, substantially
photoperiod insensitive and high yielding, and produce rice grains having characteristics similar
or superior to those of good quality Basmati rice. Another aspect of the invention relates to novel
rice lines produced from novel rice lines. The invention provides a method for breeding these
novel lines. A third aspect...relates to the finding that the starch index (SI) of a rice grain can
predict the grain's cooking and starch properties, to a method based thereon for identifying grains
that can be cooked to the firmness of traditional Basmati rice preparations, and to the use of this
method in selecting desirable segregants in rice breeding programs."

In an official release, the government of India reacted immediately after learning of the
Basmati patent issued to RiceTec Inc., stating that it would approach the US patent office and
urge them to re-examine the patent to a United States firm to grow and sell rice under the
Basmati brand name in order to protect India's interests, particularly those of growers and
exporters. Furthermore, a high level inter-ministerial group comprising of representatives of the
ministries and departments of commerce, industry, external affairs, Council for scientific and
industrial research (CSIR), Agriculture, Bio-technology, All India Rice Exporters Association
(AIREA), APEDA, and Indian Council of Agricultural Research (ICAR) were mobilized to begin
an in-depth examination of the case. The contents and implications of the patent are currently
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being analyzed in consultation with patent attorneys and agricultural scientists. The government
of India is particularly concerned about the patenting of Basmati because of an earlier case where
the US granted a patent to two Indian-born scientists on the use of Turmeric as a wound healing
agent. This case worked in favor of India because the patent was subsequently revoked after
scientists of (CSIR) successfully challenged the patenting on the ground that the healing
properties of Turmeric had been 'common knowledge' in India for centuries. There is a clause in
US patent laws that will accept any information already available in published or written form
anywhere in the world as 'common knowledge'. As a result, India was able to furnish published
evidence to support their case that the healing characteristics of Turmeric are not a new invention
and as such cannot be patented.

It had also caused a brief diplomatic crisis between India and United States with India
threatening to take the matter to WTO as a violation of TRIPS which could have resulted in a
major embarrassment for the United States.Both voluntarily and due to review decisions by
the United States Patent Office, RiceTec lost or withdrew most of the claims of the patent,
including, most importantly, the right to call their rice lines "basmati." A more limited varietal
patent was granted to RiceTec in 2001 on claims dealing with three strains of the rice developed
by the company.

Turmeric

The turmeric patent is a landmark case in the area of Intellectual property rights. This was
the first time a patent based on the Traditional Knowledge of a developing country was
challenged successfully and Unites State Patent and Trademark Office (USPTO) revoked the
patent.

In 1995, to two non-resident Indians, Suman K. Das and Hari Har P. Cohly, associated
with the University of Mississippi Medical Centre, Jackson, USA obtained patent for Use of
turmeric in wound healing. As turmeric has been used by all Indian families as a traditional
wound healer in India for thousands of years for healing wounds and rashes.

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 Indian Council of Scientific and Industrial Research (CSIR) were entrusted with the
responsibility if challenging the patent. CSIR challenged the patent on the ground that it lacked
novelty. CSIR could locate 32 references (some of them being more than one hundred years old,
in Sanskrit, Urdu and Hindi), which showed that this finding was well known in India prior to
filing of this patent. The formal request for re-examination of the patent was filled by CSIR at
USPTO on 28 October 1996. The first re-examination result rejected all the six claims based on
the references submitted by CSIR on the ground of 'anticipated references'

University of Mississippi Medical Centre, decided not to pursue the case and transferred
the rights to the inventors. Inventors Mr. Suman K. Das and Mr. Hari Har P. Cohly decided to
file a Objections to the re- examination results. The inventors argued that the powder and paste
form of Turmeric had different physical properties which helps wound healing, i.e. bio-
availability and absorbability, and therefore, one of the ordinary skills in the art would not
expect, with any reasonable degree of certainty, that a powdered material would be useful in the
same application as a paste of the same material. The inventors, further, mentioned that oral
administration was available only with honey and honey itself was considered to have wound
healing properties.

In the second re-examination it was observed that the paste and the powder forms were
equivalent for healing wounds in view of the cited material by CSIR. the examiner rejected all
the claims once again and up held the contentions raised by CSIR

Turmeric patent case is the first successful case in the area of intellectual property
violation

Neem tree

In 1995 the U.S. Department of Agriculture and a pharmaceutical research firm received
a patent on a technique to extract an anti-fungal agent from the Neem tree (Azadirachta indica),
which grows throughout India; Indian villagers have long understood the tree's medicinal value.
Although the patent had been granted on an extraction technique, the Indian press described it as

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a patent on the Neem tree itself; the result was widespread public outcry, which was echoed
throughout the developing world. Legal action by the Indian government followed, with the
patent eventually being overturned in 2005.

Importantly, the pharmaceutical company involved in the Neem case argued that as
traditional Indian knowledge of the properties of the Neem tree had never been published in an
academic journal, such knowledge did not amount to "prior art" (prior art is the term used when
previously existing knowledge bars a patent).

In response to biopiracy threats such as this, India has been translating and publishing
ancient manuscripts containing old remedies in electronic form. The texts are being recorded
from Sanskrit, Urdu, Persian and Arabic; they will be made available to patent offices in English,
German, French, Japanese and Spanish in 2006. The aim is to protect India's heritage from being
exploited by foreign companies. Hundreds of Yoga poses are also kept in the collection. The
project has been criticized by a spokesman for the pharmaceutical industry as "a solution in
search of a problem

Bajaj vs. TVS

In September 2007, Bajaj Auto filed a claim accusing that the development of TVS
Flame was in violation of their patent for DTS-I TVS Motors countered by threatening to sue
Bajaj Auto for libel. On February 2008, the Madras High Court in Chennai restrained TVS from
launching it with the twin spark plug technology TVS appealed against this decision, claiming
that crucial evidence was not taken into account and in March 2008, launched the Flame with a
modified engine containing one spark plug. The DTSi idea is a simple one to understand - it
involved usage of two spark plugs (instead of one) per engine cylinder.

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 The “Bajaj Auto – TVS Motors” patent controversy erupted when Bajaj Auto Ltd.
(“Bajaj”) sought and was granted an interlocutory injunction by the Madras High Court on
February 16, 2008 restraining TVS Motor Co. Ltd. (“TVS”) from launching their 125 cc
motorcycle under the trademark “Flame.” This stirred up the Indian two-wheeler industry;
with the two parties being fierce competitors locked in a battle over the market share, and
caught widespread media attention. TVS lodged an appeal before the Division Bench, and
on May 18, 2009 the order of the Single Bench was overturned. Bajaj preferred an appeal
before the Supreme Court, which while broadly affirming the decision of the Division
Bench, vide its decision dated September 16, 2009 directed that TVS shall be entitled to sell
its motorcycle ‘Flame,’ subject to an accurate record of all its domestic and international
sales being maintained, and directed the Madras High Court to appoint a receiver for this
purpose.

This Bulletin examines the “Bajaj Auto Ltd. vs. TVS Motors” case which is currently
pending in the Madras High Court. It examines the circumstances in which the orders of the
Single Bench and the Division Bench came to be passed. It finally analyzes the order and the
directions passed by the Supreme Court and how it may impact the IPR litigation pending in
the various courts in the country.

On July 7, 2005, Bajaj was granted a patent1 with a priority date of July 16, 2002. The
title of the patent application was “An improved Internal Combustion Engine working on
four stroke principle.” The invention was called “DTS-i Technology” and it related to the
use of twin spark plugs located diametrically opposite to each other in a small displacement
engine with the cylinder bore diameter ranging between 45 mm to 70 mm. Per Bajaj, this
placement of the spark plugs enabled a better control over the ignition timing and lesser time
was taken for the flame to travel during the process of combustion. The novelty also lay in
the use of a sleeve to protect the spark plug which prevented exposure of the plugs to the
lubricating oil.

In 2003, Bajaj launched “Pulsar,” a motorcycle which employed the DTS-i

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Technology in respect of which the patent was then pending. In the first eight months of
that financial year itself, Bajaj manufactured and marketed 814,393 two-wheelers with the
“DTS-i Technology” out of a total of 1,501,241 two wheelers were sold by it, which
amounted to 54.25% of its total sales.

In 2007, TVS announced the launch of a 125 cc motorcycle under the trademark
“Flame” which was to be powered by lean burn internal combustion engine of bore size 54.5
mm with a twin spark plug configuration just like Bajaj. TVS also stated that on September 1
& 3, 2007, Bajaj had issued certain groundless threats to dissuade TVS from launching
“Flame.” Hence in October 2007, TVS filed a suit under section 105 & 106 of the Act in the
Madras High Court, alleging that the statements made by Bajaj on September 1 & 3, 2007
constituted groundless threats, and sought the intervention of the court to restrain Bajaj
from interfering with the launch of “Flame.” Further, TVS also filed an application for the
revocation of Bajaj’s patent before the Indian Patents Appellate Board under section 64 of
the India Patents Act, 1970 (“Act”).
Upon the announcement by TVS, Bajaj filed a suit for permanent injunction under
section 108 of the Act in the Madras High Court to restrain TVS from using the internal
combustion technology patented by Bajaj and from employing the same in marketing 2/3
wheelers, including TVS’s proposed 125-cc “Flame” motorcycle.

Vide its Order dated February 16, 2008, the Madras High Court restrained TVS from
launching the proposed 125-cc Flame motorcycle with the twin spark plug engine
technology, as Bajaj prima facie enjoyed the right of exclusive usage of the patent, granted to
it by the Patent Office. The Madras High Court held that Bajaj had succeeded in establishing
a prima facie case for the grant of an injunction

The court found that even though Pulsar had been introduced in the market in 2003,
TVS had for the first time raised an objection only on August 24, 2007, by which time Bajaj’s
DTS-i technology based product had been sold in large numbers across the country. The
Single Judge found that the petition for revocation of a patent granted to Bajaj had been
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filed a mere six days prior to the launch of Flame, and as such the conduct of TVS was not
entirely bona fide. The court was of the view that till such time, TVS succeeded in its
petition for revocation, the patent granted to Bajaj could not be viewed with suspicion,
considering that it had been in existence for more than five years and as such the patentee
Bajaj must be treated as an actual user and the presumption of the validity of its patent was
thus established. On the above basis, the court recorded its satisfaction that Bajaj had succeeded
in establishing a prima facie case for the grant of an injunction.

Aggrieved by the Order of the Single Judge, TVS preferred an appeal before the
Division Bench of the Madras High Court. The appellate bench of the Madras High Court
held that Bajaj had not succeeded in establishing a “prima facie” case of infringement in
respect of its patented twin spark technology. The Division Bench observed that having
regard to the nature of operation of the DTS-i engine by virtue of twin spark plugs and that
of TVS by virtue of receipt of air fuel mixture through two different intake valves, their
points of emphasis differed considerably, notwithstanding the use of twin spark plug in both
the technologies. The Division Bench further observed that the operation of the invention
as claimed by the Bajaj appears to be plug centric and that of TVS was valve centric, and on
scrutiny of the claim as set out in the final complete specification it held that it found it
difficult to countenance Bajaj’s claim that the TVS's product specification infringed Bajaj’s
patented right. Accordingly, the Division Bench set aside the order of the single bench.

Aggrieved by the Order of the Division Bench, Bajaj preferred an appeal before the
Supreme Court. The Supreme Court, while prima facie agreeing with the order of the
Division Bench, ordered that although TVS shall be entitled to sell its motorcycle ‘Flame,’
but it shall maintain an accurate record of its entire domestic and international sale and
directed the Madras High Court to appoint a receiver in this connection.

In its interim order, the Supreme Court reiterated that in matters relating to
trademarks, copyright and patents, the provisions of the Code of Civil Procedure which
mandate that civil disputes should be heard on a day to day basis without any adjournments,
except in circumstances beyond the control of the parties. It also directed that the final

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judgment should be given normally within four months from the date of the filing of the
suit. The Supreme Court directed that the timeline stipulated above be adhered to
“punctually and faithfully” by all courts and tribunals in the country.
GUI

Although it seems like a relic of the distant past, it's only been 30 years since Microsoft
launched Windows 3.0, its first successful operating system to sport a graphical user interface.

According to Apple founder Steve Jobs, it wasn't Microsoft's; it was Apple's. Or was it?
Legend has it that Jobs actually got the idea when he took a tour of the famed Xerox (XRX)
PARC and saw an early version of a windowed operating system, recalls long-time
semiconductor analyst Nathan Brookwood of Insight 64.

Whether that's true or not, Apple claimed that the "look and feel" of the Macintosh
operating system, taken as a whole, was protected by copyright, and it sued Microsoft in federal
court in 1988. Not to be outdone, Xerox jumped into the fray before the original action was
resolved and sued Apple for stealing its ideas.

After six years of litigation and appeals that went all the up to the United States Supreme
Court, both suits were dismissed; Apple's because it couldn't prove its claims, Xerox's because it
had waited too long.

Intel vs. Integraph

Intel and a workstation maker called Integraph tangled in a complex series of patent
lawsuits beginning in 1997. Integraph claimed that Intel, the world's larger microprocessor
maker, had stolen key features of its Clipper chip. One settlement, which that involved memory
design, cost Intel about $300 million. A second alleged infringement involving a microprocessor
instruction set known as VLIW was settled for $225 million. Brookwood notes that the
settlement was more money than anyone ever made bringing that technology to market. At $525
million, the Integraph litigation resulted in the largest set of damages ever won against Intel.

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Making matters even more complicated, computer makers, including Hewlett-Packard (HPQ),
became involved because they had purchased chips from Intel that included memory features
claimed by Intergraph. Ultimately, those claims were settled as well.

Microsoft vs. i4i

It would be hard to find a product that has a larger user base than Microsoft Word, or an
application that makes more money for its inventors. So when a tiny Canadian company called
i4i won an injunction preventing Microsoft from selling Word, the world noticed.

The 30-employee company claimed that Microsoft had infringed on a patent for the use
of an XML feature called custom xml. Microsoft never stopped selling Word, but it has removed
the featured from Word 2007 and the upcoming Office 2010 and paid $290 million in damages.

It's worth noting that i4i filed its case in the small East Texas town of Tyler, a venue
considered the friendliest in the United States for claims brought by patent trolls.

Marconi vs. Tesla

In 1943 a lawsuit regarding Marconi's US radio patents was resolved by the United States
Supreme Court, who overturned most of these. The Marconi Company brought this suit in the
Court of Claims to recover damages for infringement of four United States patents. Two, U.S.
Patent 763,772 and U.S. Patent RE11,913, were issued to Marconi, a third, U.S. Patent 609,154,
to Lodge, and a fourth, U.S. Patent 803,684, to Fleming. The court held that the Marconi reissue
patent was not infringed. In its consideration of radio communication systems, the United States
courts accepted a "definition evolved out of the exhaustive depositions taken from many
technical experts..." as requiring "two tuned circuits each at the transmitter and receiver, all four
tuned to the same frequency.

The court found Marconi showed no invention over Stone (U.S. Patent 714,756) by
making the tuning of his antenna circuit adjustable, or by using Lodge's variable inductance for
that purpose. The court decision was based on the proven prior work conducted by others, such

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as by Nikola Tesla, Oliver Lodge, and John Stone Stone, from which some of Marconi patents
stemmed. At the time, the United States Army was involved in a patent infringement lawsuit
with Marconi's company regarding radio, leading various observers to posit that the government
nullified Marconi's other patents in order to moot any claims for compensation (as, it is
speculated, the government's initial reversal to grant Marconi the patent right in order to nullify
any claims Tesla had for compensation).

The U. S. Supreme Court stated that,

"The Tesla patent No. 645,576, applied for September 2, 1897 and allowed March 20,
1900, disclosed a four-circuit system, having two circuits each at transmitter and
receiver, and recommended that all four circuits be tuned to the same frequency. [...
He] recognized that his apparatus could, without change, be used for wireless
communication, which is dependent upon the transmission of electrical energy.”

In making their decision, the court noted,

"Marconi's reputation as the man who first achieved successful radio transmission rests
on his original patent, which became reissue No. 11,913, and which is not here [320 U.S.
1, 38] in question. That reputation, however well-deserved, does not entitle him to a
patent for every later improvement which he claims in the radio field. Patent cases, like
others, must be decided not by weighing the reputations of the litigations, but by careful
study of the merits of their respective contentions and proofs."[106] The court, therefore,
did not consider the issue of whether Marconi was the inventor of radio, since his original
patent was not at issue nor, as they stated, being disputed in this particular proceeding.
This is because Marconi's original patent was filed with the British Patent Office on June
2, 1896 and therefore pre-dated Tesla's Patent No. 645,576, applied for September 2,
1897 by more than one year.

The court also stated that,

"It is well established that as between two inventors priority of invention will be awarded
to the one who by satisfying proof can show that he first conceived of the invention."

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CONCLUSION

The Intellectual Property Rights & Patents plays an important role in protecting the rights
of an inventor or a company. The rights conferred give creators an exclusive right over the use of
their creations for a specified period of time. There are signs of changes in patenting in some
developing countries. One example is India. The Indian Council for Scientific and Industrial
Research (CSIR) has established an aggressive program to commercialize the research of the
scientists working in its laboratories. This program involves identifying useful inventions and
patenting them not only in India, but in big markets like the United States as well. Sometimes,
some organizations can achieve their apex position only with the help of their correct choice of
intellectual property. That is why it is very much essential for any organization in the world to
protect their intellectual property as correctly as possible. Nevertheless, there must be the
involvement of the government of the respective organization. Otherwise, it is must that business
cannot go far and cannot reach their own goals and objectives.

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REFERENCE

1) “Intellectual property and Competitive strategies in the 21st century” by Shahid Alikhan
and Raghunath Mashelkar , Kluwer law international

2) “Essentials of licensing Intellectual property “ by Alexander I.Poltorak, Paul J. Lerner,

Wiley

3) “Cases on patents” by Brian C. Reid , Waterlow publishers

4) en.wikipedia.org

5) www.patentoffice.nic.in

6) ipindia.nic.in

7) www.pcworld.com

8) www.neowin.net

9) www.american.edu

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