BMS COLLEGE OF ENGINEERING, BANGALORE - 19

Intellectual Property Rights and Cyber Law

UNIT - 1

Definition:

“In general, Ownership is permanent and inheritable”.

The concept of Property:

 Property is subject to diverse interpretation

 From the legal concept of ownership and possession – Bundle of rights
 The value of property depends on the knowledge of use associated with it
 A matter becomes a “resource” only when there is an idea/technology to use the
matter in such a way that it can satisfy a human need.
 Resource – Material resource and Intellectual or technological resource
 Material resource and Intellectual or technological resource come together with
respect to a substance, it becomes property

Rights over Property:

 Possession/Acquire
 Ownership
 Application
 Enjoyment
 Control
 Alienation/Sale
 Usage
 Right to exclude Non-owners
 Power of transfer

These rights may relate to tangible or intangible things

 Rights over tangible things like land and chattels – Corporeal Property
 Rights over intangible things like ideas, works of art and literature, etc – Incorporeal
Property
 Eg., of Incorporeal Property – Patents, Copyrights and Trade Marks etc.

In general, Property refers to the interest over property, which is protected by law.

 The property law always has tried to incorporate some element of distributive justice
 Distributive justice is concerned with the fair allocation of resources among diverse
members of a community. Fair allocation typically takes into account the total amount
of goods to be distributed, the distributing procedure, and the pattern of distribution
that results.
 Conflict between the fundamental right to property (Indian Constitution – Art. 31)

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

What is Intellectual Property?

“Property created by the intellect of human mind”

e.g., patent, copyright, trademark, designs and trade secrets

 Novelty/originality
 Duration specific
 Does not provide absolute monopoly
 The bundle of rights constituting IP is not over abstract ideas
 However there are also a number of forms of intellectual property, which reflect little
or no personality of their creators such as patents, engineering designs and secrets

Importance of IPR with respect to present scenario/modern world:

Intellectual property (IP) contributes enormously to our national and state economies. Dozens
of industries across our economy rely on the adequate enforcement of their patents,
trademarks, and copyrights, while consumers use IP to ensure they are purchasing safe,
guaranteed products. We believe IP rights are worth protecting, both domestically and
abroad. This is why:

 Intellectual Property Creates and Supports High-Paying Jobs

 Intellectual Property Drives Economic Growth and Competitiveness
 Strong and Enforced Intellectual Property Rights Protect Consumers and Families
 Intellectual Property Helps Generate Breakthrough Solutions to Global Challenges
 Intellectual Property Rights Encourage Innovation and Reward Entrepreneurs

Rights under Patent law – Right to manufacture, distribute, etc

Rights under copyright law – Right of publication, distribution, etc

Labour Justification of Property:

 One of the most popular justifications put forward for the protection of property is to
justify a reward for the labour put in to create/generate it
 Proponents of this theory was John Locke
 starts with the presumption that „Every man has a property in his own person‟
 This leads to claim that an individual‟s labour also belongs to that individual
 The origin of property is stated by him as “Whatsoever then he removes out of the
state that nature hath provided, and left it in, he has mixed his labour with, and joined
to it something that is his own, and thereby makes his property”.

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

 According to this theory, labour adds value to goods. Goods are converted from the
“commons” by exerting labour.
 In the case of intellectual property, it can be said that ideas are taken from a common
pool through mental and/or physical exertion.
 One view of this theory is that labour is an unpleasant activity for which people
should be rewarded or should be motivated to perform by securing benefits in return.

The Personality Justification of Property:

 Property provides a mechanism for personal expression, dignity and recognition of the
individual person
 Proponents of this theory was Hegel
 According to Hegel, “property is the embodiment of personality”.
 With respect to intellectual property, ideas are a manifestation of the creator‟s
personality or self and hence need to be protected
 The personality justification is especially applicable to the arts and artistic creations
 However there are also a number of forms of intellectual property, which reflect little
or no personality of their creators such as patents, engineering designs and secrets
Need for Holistic approach:

Constitutional Aspects of Intellectual Property:

 Intellectual property legislation takes place in India after TRIPs (Trade Related
Intellectual Property Rights) agreement to protect IPs.
 USA Constitution specifically protects the Intellectual Property
o Art. 1(8) of the US constitution which provides “To promote and progress of
science and useful arts, by securing for limited times to authors and
inventors the exclusive right to their respective writings and discoveries”
 There is no class in Indian Constitution related to IPs, but Parliament has the power
to make legislation on IPs
 At the time of enactment of Indian constitution, Individual had property rights under
Art. 19(1)(f) and Art. 31(1)
o Art. 19(1)(f) – A citizen had the freedom to acquire, hold and dispose of
property, which were subject to the reasonable restrictions laid down in Art.
19(5)
o Art. 31(1) – protected the citizens from the deprivation of property without
authority of law
o Art. 31(2) – Property could be possessed or acquired for public purpose only
by law, and only on payment of compensation. The law had fix the amount of
compensation or had to lay down the guidelines to assess the compensation to
be paid. Such law made by the state had to obtain the assent of the President to
get validity

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

Basic Principles of Patent Law:

 Patent system conferred monopoly rights on the inventor for a limited period of time
 These acts as incentives or reward to encourage the stimulation of ideas thereby
leading to further advances
 The conferment of right in the form of patent is justified from the perspective of both
the inventor and the general public
o Inventor – Incentive to invest
o Public – useful products

Evolution of the Patent system:

 Had its roots in Venetian system, British system, American system

 Development of Venetian system influenced the development of the British and the
French system
 In the early 14th century, certain special privileges were requested by a section of
water millers who had a unique set for the purpose of using it before mining
 The grant of special privileges to water millers can be taken as marking the birth of
patent system
 Later in 1323, a German engineer was granted the first known privilege for the
construction of a model Grain mill, which would cater the storage needs of entire
Venice.
 Venetian Senate Act of 1474 is the first patent statute
 Statute of Mineraria in 1488

United Kingdom:

 Patent system evolved in the form of letters patent

 It was the royal prerogative to issue these sealed letters containing certain privileges
to the inventors
 Most of the letters were trading monopoly rather than for new inventions
 To enrich their technology by providing certain privileges to foreign inventors
 They provide monopoly for new technology brought into England with a condition
that they should settle in England and teach the local people
 Privileges also given to the importers of technology
 To promote development and growth of Industry in England
 This form of state patronage was effectively adopted by Queen Elizabeth, but came
to misused during regime of James I.
 In 1602, in the famous case of monopolies, a monopoly was granted to a merchant
exclusively to import, manufacture and sell playing card. The King‟s bench struck
down the monopoly right and held that monopoly was illegal at common law
 Industrial growth being the fundamental reason for granting monopoly rights, the
English system did not insist on the disclosure of the invention to the public
 The protection of intellectual labour of the inventor was not their concern

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

 Henry IV introduced a statute in 1399, which provided to produce a description of

the invention for the grant of the patent. But the patentee never disclosed the details of
his invention.
 In 1611 the disclosure of the invention was strictly insisted upon
 In 1624 with respect to the case of Monopolies, the English Parliament passed the
statute of Monopolies to cope up with situation. The statute, which prohibited
monopolies for the sole buying, selling, making, working or using or anything with in
England, was enacted in response to the Crown‟s generous grant of monopolies to
court favourites. Monopolies per se were excluded unless they came within the
exception of Section 6. Section 6 of this statute can be regarded as laying the
foundation of modern patent law
 According to Section 6, the granting power of monopoly to inventions by the Crown
was restricted to a period of 14 years. It laid down the condition that monopoly can be
granted only for “any manners of new manufacture” to the “the true and first
inventor” (The concept of „truth of inventor‟ was interpreted as „the true and 1st
founder or institutor of the manufacture).
 This statute hallmarked the concept of novelty for the first time and also found a
balance between the interests of the inventor and the state

United States:

 The foundation of American Patent law is embodied in Art. 1, Section 8, Clause 8 of

US Constitution
 This provision empowers the congress to promote the progress of science and
technology by securing exclusive right for limited times to the authors and inventors
with respect to their respective writings and discoveries.

India:

 In 1856 the first Indian patent statute was passed to the recommendations of the
Committee appointed to revise and update the laws to serve the society‟s changing
needs
 This provide privileges to the inventors of new inventions for a period of 14 years
 This act was modified in 1859 – provides privileges to make, use and sell the
inventions for a period of 14 years
 This act was repealed by the Inventions & Designs act in 1888 again repealed by the
Indian Patents and Design acts in 1911
 A patent enquiry committee was appointed by the Govt of India under Dr Tek Chand
in 1948 to review the working of patent laws in India
 This committee submitted its final report in 1953
 Based on the report of the committee a Patent bill based on the UK Patents act 1949
was introduced in LokSabha in 1953, but the lapsed due to the dissolution of
LokSabha

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

 In 1957, the Govt of India appointed a Committee under Justice Rajagopala Ayyangar
to suggest necessary changes and revise the patent law in India taking into
consideration the social needs of the people of India.
 This committee submitted its report on September 1959
 Based on the committee report, a Patents bill was introduced in LokSabha in 1965
with additional changes
 The bill was studied by joint committee and presented in LokSabha in 1966, lapsed
due to dissolution of Loksabha
 The bill was introduced and passed in 1970 and came into force in 1972
 India as a member of TRIPS, Indian Patents Acts 1972 was amended in 1999, 2002 &
2005

Basis for protection (IP):

 From the historical background, we came to know that patent is originated purely for
promoting industrial innovations.
 Patents are given only when idea is come up with the tangible property
 For a period of 20 years
 It is not an automatic right, only statutory conferred, available through the proper
procedure
 It is form of Industrial property conferring monopoly for production/process for
specific period that is reward given by the state to inventor with useful to public
 It provides an incentives to the inventor to invest in Research and Developments
 After getting patent right, inventor has to disclose his invention and it is available to
public after the term.
 Patents provides the ground for technological innovations-enhancing the Industry-
Economic growth of the Society

Invention:

 Find out / discover something not found by anyone before

 The patent act 1977 of UK does not define invention, Section 1 of 1977 act a patent
may be granted only for an invention, which is new and capable of industrial
applications
 US code under section 100(a) gives the definition for invention as Discovery. Section
101 states new and useful improvement
 Under sections of 2(1)(j) of patent act of 1972( amended in 2002) new product or
process useful for industrial application
 Patent act of 2005 defines new invention means any invention/technology had not
used in the world before the date of filing complete patent application

Criteria of Patentability

1. Novelty
2. Utility

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

3. Inventive step/nonobviousness

Novelty:

 „Bed rock or heart of the patent system‟

 New at the time of invention by inventor
 No system grants valid patents for innovations that are already known. For an
invention of something in the public domain, which will detrimental to the interests of
the Society.
 Both prior use and prior publication are obstacle for granting patents
 Prior use – knowledge or use in public
 Prior publication – publication n earlier patent specifications or any other material that
is available to public use
 Novelty under UK law:
 Section 1(1) and section 2 of the patent act, 1977.
 Novelty under US law
 Section 102 of US code
 Novelty under Indian law
 Patents Act, 2002

Utility:

 Usefulness
 Industrial applications – positive benefit to Society
 Utility under UK law:
 Section 1(1) C of the patent act, 1977.
 Utility under US law
 Section 101 of US code
 Utility under Indian law
 Patent law does not contain any information. Section 2(1)(j)

Inventive Step/Non-obviousness:

 Adequate technical advancement i.e., advancement of science

 Non-obviousness under UK law:
 Section 1(1) b of the patent act, 1977.
 Non-obviousness under US law
 Section 103 of US code
 Non-obviousness under Indian law
 Patents Act, 2002, Section 2(1)(j)

Non-Patentable Inventions

1. An invention which are frivolous or which claims anything obvious contrary to well
established natural laws

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

2. An invention the primary or intended use of which could be contrary to public order
or morality or which causes serious prejudice to human, animal or plant life or health
or to the environment
3. The mere discovery of a scientific principle or the formulation of an abstract theory or
discovery of any living or non-living substance occurring in nature
4. The mere discovery of a new form of a known substance which does not result in the
enhancement of the known efficacy of the substance or the mere discovery of new
property or 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 reluctant
5. 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
6. The mere arrangement or re-arrangement or duplication of known devices each
functioning independently of one another in a known way
7. A method of agriculture or horticulture
8. Any process for the medicinal, surgical, curative, prophylactic, diagnostic, therapeutic
or other treatment of human beings or any process for a similar treatment of animals
to render them free of disease or to increase their economic value or that of their
products
9. Plants and animals in whole or any part thereof other than micro-organisms but
including seeds, varieties and species and essentially biological process for production
propagation of plants or animals
10. A mathematical or business method or a computer program per se or algorithms
11. A literary, dramatic, musical or artistic work or any other aesthetic creation
whatsoever including cinematographic works and television productions
12. A mere scheme or rule or method of performing mental act or method of playing
game
13. A presentation of information
14. Topography of integrated circuits
15. An invention which, in effect, its traditional knowledge or which is an aggregation or
duplication of known properties of traditionally known component or components

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

Introduction:

TRIPS – Trade related aspects of Intellectual Property Rights

The TRIPS agreement which deals with the provisions relating to patents, trademarks,
designs and copyrights consists of seven parts:

PART I: General provisions and Basic principles

Part II: Standards concerning the availability, scope and use of Intellectual Property Rights.
This part includes 8 sections

Section 1. Copyright and Related Rights

Section 2. Trade Marks

Section 3. Geographical Indications

Section 4. Industry Designs

Section 5. Patents

Sectiopn 6. Layout designs of Integrated Circuits

Section 7. Protection of Undisclosed Information

Section 8. Control of Anti-Competitive Practices in Contractual Licences

Part III: Enforcement of Intellectual Rights

Part IV: Acquisition and maintenance of Intellectual property rights Inter-parts procedures

Part V: Dispute Prevention and settlement

Part VI: Transitional arrangements

Part VII. Institutional arrangements and Final provisions

Patents

Origin:

 Patent has its origin in the term by “Letters patent” by UK ( open letter )
 To save the interests of inventors, the then British rulers enacted the Indian Patents
and Design Act, 1911

Meaning of the term ‘Patent’:

 To grant some of privilege, property or authority made by the Government of country

to one or more individuals.
 Controller has power to grant patent to inventors for a period of 20 years as per The
Patents Rules, 2006.

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

 The person to whom a patent is granted is called patentee.

 After the expiry of term invention is available to all

Patent agent:

 A person for the time being registered under the patents act, 1970.

Patent – A form of property

 The patentees exclusive proprietary right over the invention is an intellectual property
right
 The owner of the patent, i.e., patentee is entitled to deal with his such property in the
same manner as owner of any other movable property deals with his property
 It means, the patentee can sell the whole or part of his property (patent)
 He can grant license to others to use the patented property
 He can also assign such property to any others

Objective behind Patent law:

 To gain commercial advantages

 Encourage the inventors to invest for R&D
 Encourage scientific research, new technology and industrial progress
 To protect fair competition in the field of science and technology

Legislative PROVISIONS REGULATING Patents:

 The Indian Patent Act, 1970

 The Patent Rules, 2003
 The Indian Patent Act was amended in 2005
 The Patent Rules were amended in 2005 and 2006

Principles underlying the patent law in India:

 Newness
 Usefulness
 Non-obviousness
 Exceptions

Patentable Inventions:

 Patent is given to an invention “Technical advancement”

 Criteria of Patentability defined by existing law
 Section 2(1)(j) of patents Act, 1970
 The Patent Rules, 2003, rule 2(c)
 Section 2(1), Patents (Amendment) Act, 2005

 Intangibles are not patentable

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

New product/process/technical advance

or/and
Invention / Technology of something
More useful product/process or/and
should result in
More economical product/process or/and
Capable of industrial applications

 Patentable combination is the one in which the component elements are so combined
to produce new result or arrive old result in new form

New result or
Combination of component elements
Old result in better, more expeditious, or
resulting in
economical manner

 A patentable invention has to be new product or process involving an inventive step

capable of industrial application.

Patents which are not patentable under the Act:

 Section 3 and 4 of Indian patents act – 1970 gives details

 Anything against natural laws
 Which causes serious prejudice to human, plant, animal life or health or to
environment
 Method of agriculture, horticulture
 Method of medicinal treatment
 Business method, etc.

-Inventions relating to atomic energy not patentable

Patent of Addition:

 If a patentee or a person who applied for patent makes an application to the controller
with respect to improvement or modification of his invention, Controller may grant
patent for improvement/modification
 If an invention is modification or improvement of another invention, then, controller
may on request revoke the patent for improvement or modification and grant a patent
of addition from the date of patent was revoked.
 The patents (Amendment) act, 2005 – a patent of addition shall not be granted before
grant of the patent for the main invention.

Process Patent:

A patent can be granted to a new and useful:

 Product or process ( food/drugs)

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

UNIT – 2

Procedure for obtaining Patent

It has following steps:

 Submission of applications
 Publication and examination of applications
 Opposition to grant of patent to the applicant
 Grant and sealing of patent

Submission of applications:

1. Conditions of Section 6 – 11 has to be satisfied

Section 6 – Who is eligible?
Section 7 – Application type or form of application – Internal
Section 8 – Information and undertaking of foreign applications
Section 9 – contents of provisional specification
Section 10 – contents of complete specification

Section 6 – Who is eligible?

 True and first inventor

One who convert idea to work
 Assignee of the person claiming true and first inventor
 Legal representatives of deceased person

- First – to – apply system

Invention made by an employee:

 Invention is belong to employee or employer is based on their contract

 If employee is specifically employed for research and development then, invention
belongs to employer

Section 7 –form of application

 One application for one invention

 Form 2 as per patents rules 2003
 7(1A) – Internal patents
 7(1B) – Date filing
 7(2) – Assignment – right to apply for patent
 7(3) – Declaration from the applicant as true and first inventor
 7(4) – Application accompanied by provisional or complete specification

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

Procedure for Registration of Patent:

File application in the patent office

Provisional / complete specification should be filed

Acceptance of specification

Publication of application

Request for examination of application

Report of examiner

Approval Objections Division of applications

Amendment of objections

Patent is granted
Special provision for foreign applicants: section (8)

 A statement setting out detailed particulars of such application

 An undertaking, time to time written communication with controller
 Patents rules 2003

The application to file provisional and complete specification:

section 9 :

 application along with provisional specification

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

 Complete specification has to be submit within 12 months from the date of filing
application

Section 10:

 Lists the contents of complete specification

What is specification?

A technical document describing the invention

Provisional – initial description of an invention

Complete – full and sufficient detail of an invention

Publication and examination of the applications - section 11:

 Patents act – 2005

 Section 11A – no application for patents shall be open to the public for a period of 18
months from the date of filing.
 Applications are not published after expiry date due to
o Secrecy
o Abandoned
o Withdrawn
 The publication of every application includes:
o Particulars of the date of applicant
o Number of application
o Name and address of the applicant
o An abstract
 Section 11B – the applicant must request for examination of the application for patent
within 36 months from the date of filing otherwise the application will be treated as
withdrawn
 When request for examination:
o Whether applications are in accordance with the rules and regulations
o Any lawful ground of objection
o Result of investigation
o Any other matter
 Examiners has to submit the report within one month or 3 months from the date of
reference of the application -----------------------

Communication to the Applicant:

 If any objections raised by the examiners

 Patent office communicated to the applicant
 Applicant has to submit explanation/amendments within 15 months it can be extended
up to 18 months by request

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

 If the rectification for objections are not satisfied, then Controller giving an
opportunity of hearing

Powers of the Controller of Patents:

 Under section 14 , Controller has the right to communicate list of objections raised by
the examiners to the applicant
 Controller has the right to refuse the application if it is not in order
 Under section 16 , Controller has the power to verify the claims in two application are
different if the applicant had submitted two applications
 Under section 17, Controller has the right to post - dated the application for a
maximum period of 6 months by request etc.

Opposition Proceedings to Grant of Patent:

 Where an application for a patent has been published but patent has been granted, any
person may, in writing, represent by way of opposition to the controller against the
grant of patent on the grounds:
1. The applicant had wrongfully obtained the complete invention or a part thereof
from a person under or through whom he claims. – two or many were involved in
invention one may applied then other or his/her assignee/legal representative in
case of dead, can oppose the application
2. Prior publication in any Indian specification/other documents or elsewhere
3. The invention has been the subject-matter of a prior claim in an application which
is prior in time than the applicants claim
4. The invention as claimed by the applicant in his complete specification was
publicly known or publicly used in India before the applicants claim
5. The invention is obvious and does not involve any inventive step
6. The invention is not patentable or its patenting is prohibiting under patent act
7. The complete specification does not sufficiently and clearly describe the invention
8. In case of foreign applicant, the failure to disclose information
9. In case of convention application, the application was not made within 12 months
from the date of first application
10. In case the complete specification does not disclose or wrongly mentions the
source or geographical origin or biological material used for the invention
11. In case the invention so far as claimed in any claim of the complete specification
is anticipated having regard to the knowledge, oral or otherwise, available within
any local or indigenous community in India or elsewhere.

Grant of Patents:

 If an application does not have any objections/ contraventions/ approved then patent is
granted
 A patent can be granted for one invention only

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

Date of Patent:

 The patent is effective from the date of filing of complete specification

Extent and Effect of Patent:

 Throughout India

Term of the Patent:

 20 years from the date of filing of the application( Complete specification)

Joint Inventors:

 Joint inventions
 Where the application for patent is made by two or more joint applicants
 Substitution of one of the joint applicants will not be allowed, except with the consent
of the other joint applicants
 A co-owner of a patent cannot assign his rights without the consent of the other co-
owners
 On the death of a joint applicant before the patent is granted, the controller may on a
request made by the survivors and with the consent of the legal representative of the
deceased, direct the application to proceed in the name of the survivors alone.

Compulsory Licence:

 Patent can be cut or short by the grant of compulsory licence or licence of right to any
person to work the invention when the patentee fails to work the invention in public
interest.

Compulsory license will protect the interest of the society:

 Refusal to deal
 Non-working and inadequate supply
 Public interest
 Anti-competitive practices
 Governmental use
 Facilitate the use of dependent patents
 Compulsory licenses for medicines
 Licenses of right
Across the globe the compulsory license on Intellectual Property Rights (IPRs) is granted on
almost similar grounds like –
 Charging unreasonably exorbitant prices of an essential facility or commodity, or

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

 Market demand not sufficiently met, or

 Where substantial public interest is affected by the way IPR holder is exercising its
right.
 Abuse of IPR leading to exclusion of competitors in an industry.
Provisional and Complete specification
Specification:
 The Description of the patent
Contents and form of specification:
1. The specification begins with Title
2. The full description along with implementation method
3. Specification must end with claim or claims and relate one invention only
4. Specification must be accompanied by abstract
5. In case of international application designating in India, the title, description,
drawings, abstract and claims are present
6. Declaration from the applicant
7. A complete specification may include claims in respect of developments of, or
additions to, the invention which was described in a provisional specification,
being developments or additions in which the applicant would be entitled to make
a separate application for a patent

Nature of the patent specification:

 Specification is a technical and legal document

Kinds of Specification:

1. Provisional specification
2. Complete specification

Provisional specification:

 While an inventor is in the process of finalising his invention, he may file a

specification
 Contains general description of the invention
 May/may not contains claim

Need to file a Provisional specification:

 To fix the priority date of the patent

Provisional Specification to be followed by Complete Specification:

 A complete specification shall be filed within 12 months from the date of filing of the
provisional specification

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

 When a complete specification does not follow a provisional specification within the
maximum period of 15 months, the patent application is deemed to have been
abandoned

Complete specification:

 Full description of the invention containing all the claims over which the applicant
seeks monopoly right

The contents of a complete specification are:

1. The specification begins with Title

2. The full description along with implementation method
3. Specification must end with claim or claims and relate one invention only
4. Specification must be accompanied by abstract
5. In case of international application designating in India, the title, description,
drawings, abstract and claims are present
6. Declaration from the applicant
7. A complete specification may include claims in respect of developments of, or
additions to, the invention which was described in a provisional specification,
being developments or additions in which the applicant would be entitled to make
a separate application for a patent

Priority Date of a Claim:

 The date of filing of the provisional specification provided the claims contained
therein are fairly based on the description of the invention as given in the provisional
specification

The interpretation of specification and its importance:

 It builds the boundaries around the monopoly right

 The claims must include all possible equivalent variations of the invention to guard
against infringement

Claims:

1. Main claim- invention is in the broadest possible terms

2. Subordinate claim – additional feature of the invention
3. Omnibus claim – which relates to any arrangement substantially as described and
as shown in the drawings
 Omnibus claim protects the applicant from infringement of his invention by creation
of equivalent alternatives

The principles of the construction of specification:

1. The complete specification must be read as a whole document of invention

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

2. The claim itself marks the legal limits of the monopoly right. If an applicant fails to
claim something, he cannot claim that later
3. The language of the claim must be clear and un-ambiguous
4. The meaning of a specification is addressed to a person skilled in the art
5. The subjective opinion of the patentee regarding the invention are immaterial
6. The court of competent jurisdiction is the authority to interpret the specification
7. If the other party relies on documents other than the complete specification to plead
invalidity of the patent, such a document would be inadmissible.
8. The meaning of the claim is to be the same whether for the purpose of infringement or
challenge to its validity.

Whether a specification can be amended once it has been filed:

1. Amendment before acceptance

2. Amendment after acceptance
3. Amendment after the sealing of patent

Amendment before acceptance:

 If the application is not in order as per the law, then controller may ask for the
amendment:
1. If the amendment is based on the matter submitted earlier then the priority date is
date of filing
2. If the amendment is new on the matter submitted earlier then the priority date is
considered as date of amendment

Amendment after acceptance:

 A party may oppose any of the claims of the applicant, then controller may direct the
applicant to amend the specification

Amendment after the sealing of patent:

 Before the grant of patent, a person other than patentee, can apply for revocation of
the patent before High court. The court may order for the amendment of specification
instead of revocation

Conditions for Amendment:

1. Disclaimer – statement by the applicant denying a claim

2. Correction – correcting an obvious mistake in the specification
3. Explanation – better explains not change its meaning

Who is to allow the Amendment?

 Controller – before grant patent

 High Court – Revocation of patent
 High Court – After granting a patent

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

Rights conferred on a Patentee

Rights conferred on a patentee under the act are:-

1. To exploit the patent

2. To licence the patent to another
3. To assign the patent to another
4. To surrender the patent
5. To sue for the infringement of the patent

Exceptions and limitations

The act provides certain limitations on the exercise of rights are

1. Government use of patents

2. Compulsory licences and licences of rights
3. Use of inventions for defence purposes
4. Revocation for non-working of patents
5. Limitation on restored patents

Transfer of Patents

Patent is a transferable property. It can be transferred from the original patentee to any
other person by assignment or by operation of law

Forms of Transfer of Patent Rights:

1. Assignment
2. Licence
3. Transmission of patent by operation of law

Assignment:

 Means the transfer by a party all of its rights or interest in the property
 In case of intangible property like patent, the transfer is made through an agreement to
this effect

The difference between assignment and licence:

 The licence merely confers a personal privilege to do some particular act(s) which the
licence can perform.
 There is no transfer of interest in licence
 Assignment means transfer of interest in the patent: whole or in part of the patent
rights

Assignee:

 The person in whose favour a right has been assigned is the Assignee and the person
who assigns the right is the Assignor

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

 In case an assignment has been made in favour of a person who has since died, the
term assignee would denote the legal representative that is the person who in law
represents the estate of the deceased (recently dead) person. Where assignment is
made in favour of two or more persons, they become owners of such interest in the
patent

Kinds of Assignment:

1. Legal Assignment
2. Equitable Assignment
3. Mortgage

Legal Assignment

 Assignment through an agreement and duly registered as legal assignment

 Legal assignee has the right to have his name entered in the Register of patents in
Controllers office as proprietor of the patent and he can excise all the rights

Equitable Assignment

 Any document such as letter but not being an agreement, which is duly registered
with the controller in which patentee agrees to give another person certain defined
right in the patent with immediate effect
 Assignee cannot have his name entered in the Register of patents in Controllers office
as proprietor
 He can have a notice of his interest entered in the register
 He can convert the Equitable Assignment to Legal Assignment by getting a written
agreement to this effect and duly registered

Mortgage

 Document transferring the patent rights either fully or partially to the mortgagee with
a view to secure the payment of a specified sum of money.
 It can re-transferred to the patentee on refund of money to the mortgagee
 Mortgagee can get his name entered in the register as a mortgagee

Conditions to create a valid assignment

1. Valid document containing all the terms and conditions governing the rights and
obligations between the parties
2. It is duly registered under the provisions of Indian Patents Act.

Licence

A patentee can transfer a right by a licence agreement permitting a licensee to make, use or
exercise the invention.

Kinds of Licence:

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

1. Voluntary Licence
- Written authority granted by the owner to another person
- Terms and conditions are settle between both parties
- Controller/Govt., has no role
2. Statutory Licence
- Example „Compulsory licences‟
- Controller and central Govt., play an important role
- Circumstances and terms and conditions do not depends upon the will
of the parties
3. Exclusive / Limited Licence
- Depending upon the degree and extent of rights conferred on the
licensee, a licence may be exclusive or limited
- An exclusive licence confers all exclusive rights on the licensee
excluding all other persons
- A limited licence imposes certain limitations on the right of the
licensee. The limitations may relate to persons, time, place of
manufacture, use or sale.
4. Express / Implied licence
- An express licence is the one in which the permission to use the patent
is given in express terms
- In an implied licence, the permission is not given in express terms in
writing but it is implied from the circumstances eg., where a person
buy a patented article he my use/ resell it

Rights conferred on a licensee

 Make, use or exercise the patented inventions

 Based on the valid conditions or limitations licensee will have the right to initiate
proceedings against infringement of rights

Transmission of patent by operation of law

 When a patentee dies, his interest in the patent passes to his legal representative
 A patent can also be acquired by the Govt., under the Act when reasonable
requirements of public have not been met

Registration of assignment/Licence is essential

 Validity
 Sue for the infringement

Certain restrictive conditions to be avoided

 Patentees have the rights to impose certain restrictions on licensees

 The Patentees cannot impose restrictions on licensees which are against public
interest as per section 140 of act.

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

When a restrictive condition can be imposed

 A patentee who has licenced a wholesale or retailer to sell the patented article may
prohibit them from selling his competitors goods.
 He can also insist that the spare parts required for repairing the patented article leased
or licensed should be purchased from him only.

Infringement of patents:

A patent confers the exclusive right violation of these rights is nothing but Infringement.

 In case of product patent, the rights of the patentee are infringed by anyone who
makes or supplies that substance commercially
 In case of a process patent, the use of such a method or process in India by anyone
other than the patentee.

What can be amount to be Infringement?

 The colourable imitation of an invention

 Immaterial variations in the invention
 Mechanical equivalents
 Taking essential features of the invention

Who is entitled to sue?

 The patentee
 The exclusive licensee if the license is registered
 A compulsory licensee when the patentee refuses or neglects to institute proceedings
 A licensee other than the above two licensees can bring an action for infringement
depending upon the terms of the contract between the licensor and licensee
 Assignee
 Co-owners of a patent

Action for Infringement

Whenever the monopoly rights of the patentee are violated, his rights are protected again by
the cur of law. The patentee has to institute a suit for infringement. The relief mays be
awarded in such suit are:

1. Interlocutory/interim injunction
2. Damages or account of profits
3. Permanent injunction

Where a suit is to be instituted

A suit for infringement shall not be instituted in any court inferior to a District Court having
jurisdiction to try the suit.

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

Procedure followed in the suit

The procedure followed in conducting a suit for infringement is governed by the provisions
of Code of Civil Procedure.

When can a suit be instituted

 A suit for infringement can be instituted only after the patent has been sealed. When a
specification has been accepted and published, i.e., during the period when opposition
has been called and is being decided, the applicant cannot institute a suit for
infringement, but damages sustained due to the infringement committed during the
period, i.e., between the date of publication of acceptance of complete specification
and date of grant may be claimed in another suit. A separate suit for damages but not
a suit for infringement.
 When the term of patent has expired and infringement occurred during the term of the
patent, a suit can be instituted during the term or even after the expiry of the term
 In case of patent had lapsed and was subsequently restored, no suit or other
proceedings can be brought for infringement committed between the date on which
the patent ceased to have effect and the date of publication of application for
restoration
 When a patent was obtained wrongfully by a person and later granted to the true and
first inventor, no suit for infringement can be instituted for any infringement
occurring before the period of such grant to the true and first inventor.

Period of limitation for instituting a suit

The period of limitation for instituting a suit for infringement is three (3) years from the date
of infringement.

Who can be sued?

 Person who infringes the patent that violates the monopoly right of patentee can be
sued for infringement
 When two or more persons have jointly infringed the patent, both of them have to be
sued as co-defendants
 Agents and servants of a principal who is responsible for the infringement can also be
sued either individually or collectively along with their employer/principal
 The consignees of an infringing article can be made a party to the proceedings in an
infringement suit
Reliefs available in an action for infringement

The reliefs which a court may grant in any suit for infringement includes

 Injunction
 Damages or Account of profits

Injunction:

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

An injunction is an order of a court prohibiting someone from doing some specified act or
commanding someone to undo some wrong or injury.

Types of injunctions:

 Temporary/interlocutory injunctions
 These are the court orders which are in force for a specified time or until
further order of the court
 It may be granted at any time during the proceedings of the suit
 The plaintiff may at the commencement of the suit or any time during the
suit move to the court for grant of an interim injunction to restrain the
defendant from committing and continuing to commit the acts of alleged
infringement.

Principles followed by the courts to grant interlocutory injunctions

 Plaintiff must establish prima facie case in his favour

 He must also establish that the balance of convenience lies in his favour

The balance convenience will be in favour of the plaintiff when relief given to him will not
offend the interest of the party who is alleged to have caused infringement

The question of balance of convenience for grant of interlocutory injunction arises when it is
doubtful whether damages can adequately provide relief to the parties for the loss suffered.

The factors to be considered for deciding the balance of convenience are

 Whether the patent is new/old one

 Whether the term of the patent is to expire before the proceedings can be heard
 Whether the validity of the patent has been challenged
 Whether it is possible to compensate the plaintiff by award of damages when he
succeeds at the trail
 Whether the defendant can be adequately compensated by the plaintiff‟s
undertaking as to payment of damages4

Depending on the above factors or any other relevant factors court may grant/refuse an
interlocutory injunction

Final injunction:

Final injunction is granted at the termination of the trial. The time or which the final
injunction is in force is the remaining term of the patent at the time of grant of the final
injunction

Damages or account of profits:

A successful plaintiff in a suit for infringement is entitled to the relief of damages or account
of profits, but both reliefs cannot be granted together.

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

In certain cases damages or account of profits cannot be granted

 When the infringement was innocent, that is, the defendant was not aware that the
patent existed
 The infringement was committed after the failure to pay renewal fee with in the
prescribed time and before any extension of the period
 Where the specification has been amended and the infringement was committed
before the date of such amendment

Object of awarding damages:

To compensate for the loss or injury suffered by the plaintiff due to the action of the
defendant

Assessment of Damages:

the amount of damages awarded is proportional to the injury suffered by the party and shall
be such sun of money which will put the injured party in the same position as he would have
been in, if he not encountered wrong.

The quantum of damage is determined by the court appropriayely

Account of Profits:

The court may either award damages or account of profits but both of them cannot be claimed
together. The plaintiff has to prefer either of the two

The account of profits are determined on the basis of actual use of the patentee‟s invention by
the infringer during the period of commission of the act of infringement. Account of profits is
the part of profits which can be attributed to the use of the patentee‟s invention by the
infringer.

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

UNIT - 3

Copyright

Meaning:

 Copyright is a form of intellectual property.

 The right which a person acquires in a work, which is the result of his intellectual
labour is called his copyright

Definition:

The exclusive right to do or authorise other(s) to do certain acts in relation to

 Literary, dramatic or musical works

 Artistic work
 Cinematograph film
 Sound recording

Characteristics of copyright:

1. Creation of a statute
2. Some form of intellectual property
3. Monopoly right – restraining the others
4. Negative right – prevent others
5. Copyright only in form not in idea
6. Multiple rights – right of reproduction-right of serial publication-right of dramatic and
cinematographic version-right of translation----
7. Neighbouring rights – right of public performance, the recording right-broadcasting
right

Main Feature of Copyright Act of 1957:

1. Creation of a copyright office and Copyright board to facilitate registration of

Copyright and to settle certain kinds of disputes arising under the Act and for
Compulsory licensing of Copyright
2. Definitions of various categories of work in which copyright subsists and the scope of
the rights conferred on the author under the act
3. Provisions to determine the first ownership of copyright in various categories of
works
4. Term of copyright for different categories of works
5. Provisions relating to assignment of ownership and licensing of copyright including
compulsory licensing in certain circumstances
6. Provisions relating to performing rights of or by societies
7. Broadcast rights
8. International copyrights
9. Definition of Infringement of copyright

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

10. Exception to the exclusive right conferred on the author or acts, which do not
constitute infringement
11. Author‟s special rights
12. Civil and criminal remedies against infringement
13. Remedies against groundless threat of legal proceedings

Scope of Copyright

Works in which copyright subsists:

Section 13 0f the Act lists out the works, in which copyright subsists.

 Subject to the provisions of this section and the other provisions of this Act,
copyright shall subsists throughout India in the following classes of works, that is
to say –
 Original literary, dramatic, musical and artistic works
 Cinematograph films
 Sound recording

Piracy

 the unauthorized use or reproduction of another's work

 to make quick money and avoid payment of legitimate taxes and royalties
 three types- piracy of printed word, piracy of sound recording and piracy of
cinematograph films

The distinction between Contract of service and contract for service

Contract of service:

 Where a man employs another to do work for him under his control so that he can
direct the time when the work shall be done, the means to be adopted to bring about
the end, and the method in which the work shall be arrived at, then the contract is a
contract of service.
 The status of the author is that of an employee, i.e., the employer is the first owner of
copyright

Contract for service:

 If a person employees another to do a certain work but leaves it to the other to decide
how that work shall be done, what steps shall be taken to produce that desired effect,
then, then it is a contract for service
 The employee status is that of an independent contract who himself decides about the
manner of doing work, in such cases the copyright vests in him and not the employer

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

Software is an intellectual property:

 Software may be intellectual property but such personal intellectual property

contained in a medium is bought and sold. It is an article of value. It is sold in various
forms like – Disks, CD-ROMs and Magnetic tapes etc. Each one of the mediums in
which the IP is contained is a marketable commodity. They are visible to the senses
 A programme containing instructions in computer language is subject matter of a
licence. It has its value to the buyer. It is useful to the person who intends to use the
hardware viz. the computer in an effective manner so as to enable him to obtain the
desired results. These mediums containing the intellectual property are not only easily
available in the market for a price but are circulated as a commodity in the market.
Only because an instructions manual designed to instruct use and installation of the
supplier program is supplied with the software, the same would not necessarily mean
that it would cease to be a good. Such instructions contained in the manual are
supplied with several other goods including electronic ones.

Nature of rights conferred by copyright

1. Statutory rights
 The copyright in a work is a creation of statute. A person owns a copyright
because the law recognises the existence of such a right. The rights which an
author of a work has by virtue of creating the work are well defined.
2. Negative rights
 It stops others from exploiting the work of the author for their own benefit
without the consent or licence of the author. It does not confer any positive
right on the author himself.
3. Multiple rights
 Copyright is not a single right but a bundle of rights which can exist and be
exploited independently. The nature of these multiple rights depends upon the
categories of works, namely
i. Literary, dramatic and musical works
ii. Original artistic works
iii. Cinematograph films
iv. Sound recording
 The literary, dramatic and musical works are grouped together for the purpose
of defining these exclusive rights. The rights relating to artistic works are
distinct from those of cinematograph films and sound recording
4. Economic rights
 The exploitation of the work by the author by exercising these rights may
bring economic benefit
 The author may exploit the work himself or licence others to exploit any one
or more of the rights for a consideration which may be in form of royalty, a
lump-sum payment
5. Moral rights

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

 The term „moral right‟ derives from the French expression „droit moral‟ and is
a misnomer in the sense that moral rights are neither the opposite of immoral
rights nor of legal rights. These moral rights are –
i. Integrity rights: important of moral rights, it gives the author the right
to prevent alteration, destruction and other actions that may damage
the authors reputation
ii. Divulgation: It means right of author to publish a work, or to withhold
it from dissemination. It gives the author the right to decide whether to
publish or not to publish the work
iii. Attribution right: right to claim authorship of a published or exhibited
work
iv. Retraction work: right to withdraw a published work from distribution
if it no longer represents the views of the author

Infringement of Copyright:

 A copyright confers exclusive right on the copyright owner to the reproduction of the
work in a material form, storing the work in any medium by electronics means,
publication of the work in public, making of its adaptation and translations
 These rights are conferred on the owner of the copyright to enable him to reap
monetary benefits.
 If any of the above acts are carried out by a person other than the owner of the
copyright, without a licence from the owner, it constitutes infringement of the
copyright

Acts which constitute infringement:

 Since the forms of creative works are more, i.e., literary, dramatic, musical, artistic,
etc. the acts which constitute infringement would depend upon the nature of the work
 Section 51 of the Act defines the infringement of a copyright in general
 According to section 51, copyright in a work shall be deemed to be infringed
1. When a person without a license from the owner or the Registrar of copyrights
does anything, the exclusive right to do which is by this act conferred upon the
owner of copyright, or permits for profit, any place to be used for the
communication of the work to the public, unless he was not aware and had no
reasonable ground for believing that such communication would be an
infringement of copyright; or
2. When any person
 Makes for sale or hires or sells or lets for hire by way of trade displays or
offers for sale or hire any infringing copies of the work covered by
copyright; or
 Distributes, either for the purpose of trade or to such an extent as to affect
prejudicially the owner of the copyright any infringing copies of the work
covered by copyright; or
 Exhibits in public by way of trade any infringing copies of the work; or

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

 Imports into India any infringing copies of the work except the copy any
work for the private and domestic use of the importer

Remedies against Infringement of Copyrights:

Kinds of Remedies:

1. Civil remedies
i. Anton pillar order
ii. Interlocutory Injunction
iii. Damages or account of profit
2. Criminal remedies
 Imprisonment of the accused or imposition of fine or both
3. Administrative remedies
 Moving to the Registrar of copyright to ban the import of infringing copies

Development of copyright law in India

 The development of copyright law in India is closely associated with the British
copyright law
 In India, the first copyright act was passed in 1914 (copyright act of 1911 in England)
 The copyright act of 1957 followed and adopted the UK act of 1956
 The copy Right amendment act 1983, 1984, 1994

Trade Mark:

Definition – Trademark is a visual representation attached to goods for the purpose of

indicating their trade origin.

The functions of a Trade Mark

 It identifies the product and its origin

 It guarantees its quality
 It advertises the product
 It creates an image of the product in the minds of the public, consumers or the
prospective consumers of such goods

Essential elements of the Trademark:

1. Distinctiveness of the trademark

2. The trademark should be an invented word
3. The trademark should be easy to pronounce and remember
4. In case of device mark, the device should be capable of being described by a single
word
5. It must be easy to spell correctly and write legibly
6. It should not be descriptive but may be suggestive of the quality of goods
7. It should be short

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

8. It should appeal to the eye as well as the ear

9. It should satisfy the requirements of registration
10. It should not belong to the class of marks prohibited for registration

Procedure for registration of Trademark:

Present a written application in the office

Options

Accepted absolutely rejected absolutely conditional acceptance

Registrar shall record the grounds

If application accepted in error

Correction if any error Withdrawal of acceptance

Advertisement of application

Written opposition Not-opposed

Notice of opposition

If opposition decided in favour of applicant

If not in favour

Condition and limitation to registration Certificate of registration issued

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

Essentials of Infringement:

 The taking of any essential feature of the mark or taking the whole of the mark
and then making a few additions and alterations would constitute infringement
 The infringing mark must be used in the course of trade, i.e., in a regular trade
wherein the proprietor of the mark is engaged
 The use of the infringing mark must be printed or usual representation of the
mark in advertisements, invoices or bills. Any oral use of the trade mark is not
infringement
 Any or all of the above acts would constitute infringement if the same is done
such a manner as to sender the use of the mark likely to be taken as being used
as a trade mark

Remedies against infringement of trade mark:

Kinds of Remedies:

1. Civil remedies
i. Anton pillar order
ii. Interlocutory Injunction
iii. Damages or account of profit
2. Criminal remedies
 Complaint may be made against the person causing infringement
3. Administrative remedies
 Opposing the registration of a deceptively similar trademark when the trade
mark registry is in the process of considering the grant of a trademark, can
protect the trademark
 The registry can also be moved for removal of a deceptively similar trademark
if registered.

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

Cyber Law
Introduction:
The most important and significant advancement made by the mankind from the beginning of
civilization to till date is the development of Internet
In 1969, America‟s department of defence commissioned the construction of a super network
called ARPANET (Advanced Research Projects Agency Network). ARPANET was intended
as a military network of 40 computers connected by a web of links and lines. This network
slowly grew and the Internet was born. By 1981, over 200 computers were connected around
the world. Today the figure runs into millions.
The real power of today‟s Internet is that it is available to anyone with a computer and a
telephone line. It places in an individual‟s hand the immense and invaluable power of
information and communication. Its usage has significantly increased over the past few years.
When Internet was first developed, the founding fathers hardly had any inkling
(suspicion/clue) that Internet could transform itself into an pervading revolution which could
be misused for criminal activities and which required regulation. Today, there are many
disturbing thing happening in cyberspace. Due to the anonymous nature of the Internet, it is
possible to engage in a variety of criminal activities with impunity, and people with
intelligence have been grossly misusing Internet to perpetuate criminal activities in
cyberspace. Because of this, Cyber law becomes more important.
Definition of Cyber Law:
Internet is believed to be full of anarchy and a system of law and regulation therein seems
contradictory. However, cyberspace is governed by a system of law and regulation called
Cyber law. There is no single exhaustive definition of the term “Cyberlaw”. Author gave a
definition of Cyberlaw in 1996, which is broadly accepted, as follows:-
“Cyberlaw is a generic term, which refers to all the legal and regulatory aspects of Internet
and the World Wide Web. Anything concerned with or related to or emanating from any legal
aspects or issues concerning any activity of netizens (a person who uses the internet) and
others, in Cyberspace comes within the ambit of Cyberlaw”.
{“The internet is a huge network of computers all connected together. The World Wide
Web ('www' or 'web' for short) is a collection of webpages found on this network of
computers”.}
Cyberspace:

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

Cyberspace allows users to share information, interact, swap ideas, play games, engage in
discussions or social forums, conduct business and create intuitive media, among many other
activities. The term cyberspace was initially introduced by William Gibson in his 1984 book,
“Neuromancer.” Gibson criticized the term in later years, calling it “evocative and essentially
meaningless.” Nevertheless, the term is still widely used to describe any facility or feature
that is linked to the Internet.
According to many IT specialists and experts, including F. Randall Farmer and Chip
Morningstar, cyberspace has gained popularity as a medium for social interaction, rather than
its technical execution and implementation.
The growth of Electronic Commerce influences the need for effective regulatory mechanisms
and legal infrastructure for successful Electronics Commerce. Which are come within the
domain of Cyberlaw.
Cyerlaw is important because it touches almost all aspects of transactions and activities
through Internet and World Wide Web in Cyberspace
As the nature and scope of Internet and most of our activities happen in cyberspace,
Cyberlaw concerns everyone. From the time you register your Domain Name, set up and
promote your website and conduct electronic commerce transaction on the site, at every point
time there are various Cyberlaw issues involved. You may feel that Cyberlaw is not so
important / relevant at this time later you have to consider Cyberlaw for the sake of your
benefits.
Example: You may knowingly or unknowingly book a domain name say [Link]
which may be the trade mark of any other company which may be the trade mark of some
other company or belongs to any person or some organization say B. Domain names are
allotted on first come first served basis. But you may be involved by the B in a cyber legal
dispute which may be allege that you are deliberately involved in the practice of
Cypersquatting (the practice of knowingly registering the trade mark of any legal entity,
company or person with intension of holding on to it and thereafter selling the same to the
said legal entity or company or person at a handsome premium). You may also be involved
in cyber litigation as the concerned party, B may approach the World Intellectual Property
Organization (WIPO) for adjudicating (resolving) the matter and WIPO, By a summary
procedure, may direct you to relinquish (surrender) the said domain to the concerned party B
provided that Party B has to produce all documentary and other evidence to substantiate
(validate) its claim to the concerned Domain name. This example show the importance of
Cyberlaw for us.

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

Why Cyberlaw in India?

In 49th year of Indian independence Internet was commercially introduced in India and to
regulate this cyberlaw was enacted.
Factors that influence the need for cyberlaw in India are
 India has an extremely detailed and well defined legal system but the birth of Internet
creates new and complex legal issues. To resolve this, it is required to enact cyberlaw
 The existing law of India could not be interpreted in the light of the emerging
cyberspace
 None of the existing law gave any legal validity or sanction to the activities in the
cyberspace
o Eg, email does not have legal sanctity
 Internet requires an enabling and supportive legal infrastructure in tune with the times
o Eg, E-Commerce
 In addition to that General Assembly of UNO adopted the United Nations
Commission on International Trade Laws (UNCITRAL) Model Law on Electronic
Commerce on January 30, 1997. This resolution recommended to the member nations
to enact and modify their laws according to the Model Law

UN Model Law:
 The main objective is to provide a common legal platform to the countries to model
their domestic laws relating to electronic commerce.
 The idea behind is to have a functional equivalent approach.
 It basically provides a media-neutral environment in which other laws could operate
 This law is basically on Electronic Commerce, but it does not define Electronic
Commerce
 But Art 2(b) defines electronic data interchange, meaning ; “the electronic transfer
from computer to computer of information using an agreed standard to structure the
information”. It includes all types of transfer of information between computers
 Art 5 – information shall not be denied legal effect, validity or enforceability solely
on grounds that it is in the form of a data message
 Art 6 – where the law requires information to be in writing, the requirement shall be
met where data is accessible so as to be useable for subsequent reference
 --------

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

Based on the recommendation from UN Model law, Govt of India decided to enact a law that
would make e-contracts legal, electronic records admissible in evidence and which would
make required changes to some other existing laws. Consequently, three areas were
identified-
 Contract
 Indian Penal Code
 Evidence act
Since major part fall under concurrent list and all of them did not apply to Jammu and
Kashmir, therefore, Govt had invoke a special power granted to Parliament to make a law for
India on the Model Law.
The parliament under Art 253 of the Constitution of India passed India‟s first Cyber.
The at 253 states that, “Notwithstanding anything in the foregoing provisions of this chapter,
Parliament has power to make any law for the whole or any part of the territory of India for
implementing any treaty, agreement or convention with any other country or countries or any
decision made at any international conference, association or other body.”
 Information Technology (IT) bill, 1999 was the beginning of Model Law in India
 The Govt of India responded by coming up with the draft of the first Cyberlaw of
India – The Information Technology bill, 1999
Information Technology (IT) Bill:
 To provide the necessary legal and business infrastructure required for enabling e-
commerce in India
 The bill was tabled in parliament in December 1999
 IT bill 1999, is referred to standing committee of Science and Technology,
Environment and Forests
 The standing committee submitted its report to parliament on 12th may, 2000 with
recommendations
 The Govt accepted some recommendations and reintroduce the IT Bill 2000 on both
houses of Parliament on 15th May 2000
 17th May 2000, IT Bill 2000 passed by both houses of Parliament
 It received the President‟s assent on 9th June, 2000 and was implemented on 17th
October, 2000.
The Information Technology Act, 2000 is the first amongst a series of legislations in India.
Evolving Cyberlaw Practices – A Guide for Corporates

The need for Cyberlaw arose because of the uniqueness of the medium in which the internet
functions, requiring entirely different approaches for controlling, regulating and facilitating
electronic communication and commerce. Numerous practices concerning various issues in
the field of Cyberlaw are constantly evolving.

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

Here, we consider some of the evolving practices in Cyberlaw from the perspective of the
corporate sector.

Domain Name Issues:

Cybersquatting means when someone illegally holds the domain name of another. Holding of
others domain name is profitable and it is a common practice to earn more money. Therefore,
legal required is required against Cybersquatting.

Online arbitration is one of the remedies available for this purpose.

Civil remedies includes suit for passing of goods and services under the Trade and
Merchandise Marks Act, 1958 and dilution of trade mark or label as well as suit for illegal
use of the domain name.

Privacy in Indian cyber space:

Terrorism & Cyber Crime:

Cyber Theft and the Indian Telegraph Act, 1885

First cybercrime happened in the year 2000 in Delhi by using Internet illegally. The
convicted were arrested for violating the provisions of the Indian Telegraph act, 1885, at a
time when the Indian Cyberlaw had not been passed. The arrest of India‟s first two cyber
thieves raises number of important Cyberlaw issues. Can The Indian Telegraph Act, 1885 be
extended to cyberspace?
India‟s first Cyberlaw, the information Technology act 2000 does not purport to amend either
the Indian Telegraph act, or section 378 & 379 of Indian Penal Code, 1860 that defines the
offence and punishment for theft.
The important point that arises for consideration is whether the Indian Telegraph Act in its
present form is capable of being interpreted in today‟s cyber age to include cyberspace within
its ambit?
The section 25 of Telegraph act provides, “if any person, intending –
1. To prevent or obstruct the transmission or delivery of any message, or
2. To intercept or to acquint himself with the contents of any message, or
3. To commit mischief,
Damages, removes, tampers with or touches any battery, machinery, telegraph lne
post or other thing whatever, being part of or used in r about any telegraph or in the

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

working therepf, he shall be punshed with imprisonment for a term which may extend
to three years, or with fine, or with both”.
Similarly, Section 378 of IPC defines theft and 379 defines punishment for theft. The IPC
378 defines, “Theft – whoever, intending to take dishonesty any moveable property out of the
possession of any person without that person‟s consent. Moves that property in order to such
taking, is said to commit theft.”
Thus, the issue of cyber theft arises several Cyberlaw issues, which would have to be
necessarily addressed, after much thought and deliberation, in order to achieve the goal of a
crime free.

Cyber Stalking:

Protection of Indian Children online:

 Need to enact appropriate legislation to protect children

 Need to encourage the concept of parental guidance
 Need to make parents aware about the different ways in which their children can be abused on
the Internet
 Parents need to be educated about the tremendous negative impact on the psyche of the child
 Govt needs to start aggressive campaigns amongst schools to educate children about online
child abuse
 Need for appropriate orientation programmes in different schools to educate children on their
rights and duties on the Internet
 Need to empower the children of our country, who have the advantage of accessing the
Internet

Spam:
Spam is the practice of sending unsolicited, mass emails that are often advertisement or
solicitations sent via email or others online means to Internet users.
 Causes innumerable problems in the world
 Spam poses a real threat to the viability of e-mail and can be detrimental to the
interests of e-commerce entities
 Puts strain on the productivity, time and resources of Internet service providers and
corporate networks

Siddappaji Dept., of ECE

 BMS COLLEGE OF ENGINEERING, BANGALORE - 19

 Used to send viruses that can cripple networks and cause damage, further killing the
credibility and usefulness of e-mails
 The cause costs of these spam e-mails are conveniently shifted on to the recipients
 Etc.
Issues relating to spam and data protection are interlinked and cannot be separated
from each other:

Contempt in cyber space

Indian consumers & cyber space:

E-Courts of India
On 23rd July 2000, the minister for Information Technology Mr Pramod Mahajan stated that
the central government is considering the setting up of at least one E-Court to deal with
Cybercrimes. Cybercrimes require great amount of ingenuity and NET savvy approach and
also indicate a great deal of maturity and understanding of the Cyber criminals. Cybercrimes
such as tampering with computer source documents, hacking of computer system, etc.,
mentioned in the IT Act, 2000 are highly specialized crimes which requires sensitive, cyber
legal and technological approach of the Court.
 The establishment of an E-court in India will be of tremendous advantage.
 It will lend credibility, uniformity and coherency of approach
 Lead to development of an indigenous Cyberlaw on cybercrime
 Section 46 of the IT Act 2000 states that an Adjudicating Officer shall adjudge
whether any person has committed a contravention of any of the provisions of this act
or of any rule, regulation, direction or order made thereunder
 Section 46(2) gives the power to the adjudicating officer to impose on such persons,
guilty of having committed any contravention, such penalty or award such
compensation as he thinks fit in accordance with the provisions of the IT Act 2000
 Section 28 of the IT Act 2000 states that the Controller or any officer authorized by
him in this behalf shall take up for investigation any contravention of the provisions
of this act
 The concept of E-Courts promises to propel the growth and progress of Cyber law in
India

Siddappaji Dept., of ECE