MRCET (UGC Autonomous)

UNIT - III
Copyrights: Fundamentals of copyright law, originality of material,right of reproduction,
right to perform the work publicly,copy right ownership issues, notice of copyright.
Patents: Foundation of patent law, patent searching process, Basic Criteria of Patentability
Industrial Designs: Kind of protection provided in Industrial design

Introduction:

In ancient days creative persons like artists, musicians and writers made, composed or wrote
their works for fame and recognition rather than to earn a living, thus, the question of
copyright never [Link] importance of copyright was recognized only after the invention of
printing press which enabled the reproduction of books in large quantity practicable.

Copyright –Definition:
Copyright is a right of use given by the law to the creator of literary, dramatic, musical,
artistic work , software etc for a limited period of time
In India all the law related to copyright is regulated by the copyright Act 1957. Its latest
amendment was brought in 2012
A copyright is an exclusionary right. It conveys to its owner the right to prevent others from
copying, selling, performing, displaying, or making derivative versions of a work of
authorship.

Exclusive copyright rights

The entire bundle of rights that a copyright owner is exclusively entitled toexercise under the
copyright laws. These rights consists of:

 the right to reproduce (copy) the work

 the right to prepare derivative works

 the right to distribute copies of the work

 the right to perform the work, and

 the right to display the work.

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COPYRIGHT ACT, 1957: Copyright Act refers to laws that regulate the use of the work of
a creator, such as an artist or author.

This includes copying, distributing, altering and displaying creative, literary and other types
of work. Unless otherwise stated in a contract, the author or creator of a work retains the
copyright.

Copyright does not ordinarily protect titles by themselves or names, short word combinations,
slogans, short phrases, methods, plots or factual information.

NEED FOR COPYRIGHT:

 It gives you the exclusive right to reproduce or copy the work or change its form.
 Registration informs the world that you own the work
 If you succeed in an infringement suit, you are entitled to money damages.
Indian perspective on Copyright Protection :
The Copyright Act, 1957 provides copyright protection in India. It confers copyright
protection in the following two forms:
(a) Economic rights of the author
(b) Moral Rights of the author (i) Right of Paternity (ii) Right of Integrity

TERM OF COPYRIGHT: It varies according to the nature of work - 60 years, in India.

 Literary, dramatic, musical or artistic work (other than a photograph), when

published during the lifetime of the author, copyright subsists during the lifetime of
the author, plus 60 years.

 In the case of photographs, cinematograph films and sounds recordings; the term is
60 years from the date of publication.

 When the first owner of copyright is the government or a public undertaking, the
term of copyright is 60 years from the date of publication.

The Fundamentals of Copyright

Copyright is a right given by the law to creators of literary, dramatic, musical and artistic
works and producers of cinematograph films and sound recordings. In fact, it is a bundle of
rights including, inter alia, rights of reproduction, communication to the public, adaptation

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and translation of the work. It means the sole right to produce or reproduce the work or any
substantial part thereof in any material form whatsoever (Kartar Singh Giani v. Ladha Singh
& Others AIR 1934 Lah 777). Section 14 of the Act defines the term Copyright as to mean
the exclusive right to do or authorise the doing of the following acts in respect of a work or
any substantial part thereof, namely

In the case of literary, dramatic or musical work (except computer programme):

(i) reproducing the work in any material form which includes storing of it in any
medium by electronic means;

(ii) issuing copies of the work to the public which are not already in circulation;

(iii) performing the work in public or communicating it to the public;

(iv) making any cinematograph film or sound recording in respect of the work; making
any translation or adaptation of the work. Further any of the above mentioned acts
in relation to work can be done in the case of translation or adaptation of the work.

In the case of a computer programme:

(i) to do any of the acts specified in respect of a literary, dramatic or musical work;
and

(ii) to sell or give on commercial rental or offer for sale or for commercial rental any
copy of the computer programme. However, such commercial rental does not
apply in respect of computer programmes where the programme itself is not the
essential object of the rental.

In the case of an artistic work:

(i) reproducing the work in any material form including depiction in three
dimensions of a two dimensional work or in two dimensions of a three
dimensional work;

(ii) communicating the work to the public;

(iii) issuing copies of work to the public which are not already in existence;

(iv) including work in any cinematograph film; making adaptation of the work, and to
do any of the above acts in relation to an adaptation of the work.

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In the case of cinematograph film and sound recording:

(i) making a copy of the film including a photograph of any image or making any
other sound recording embodying it;

(ii) selling or giving on hire or offer for sale or hire any copy of the film/sound
recording even if such copy has been sold or given on hire on earlier occasions;
and

(iii) communicating the film/sound recording to the public.

In the case of a sound recording:

(i) To make any other sound recording embodying it •

(ii) To sell or give on hire, or offer for sale or hire, any copy of the sound recording

(iii) To communicate the sound recording to the public

ORIGINALITYOFMATERIAL

There are three basic requirements for copyright ability:

 A work must be original
 A work must be fixed in a tangible form of expression; and
 A work must be a work of authorship
To be eligible for copyright protection, material must be original, meaning that it must have
been independently created and must possess a modicum of creativity. The requirement of
originality should not be confused with novelty, worthiness, or aesthetic appeal. The
requirement is rather that the material must be an independent product of the author and not
merely some copy or minimal variation of an existing work. A work can be original even if it
is strikingly similar or identical to that of another. The Copyright Act only requires
originality, meaning independent creation by the author.

Originality does not signify novelty; a work may be original even though it closely resembles
other works so long as the similarity is fortuitous, not the result of copying.

To illustrate, assume that two poets, each ignorant of the other, compose identical poems.
Neither work is novel, yet both are original, and, hence, copyrightable. “Originality” thus

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does not mean “first”; it merely means “independently created” rather than copied from other
works.

Fixation of Material:

The Copyright Act protects works of authorship that are “fixed in any tangible medium of
expression.” A work is “fixed” when it is embodied in a copy or phonorecord and is
sufficiently permanent or stable to permit it to be perceived, reproduced, or communicated
for a period of more than transitory duration.

There are thus two categories of tangible expression in which works can be fixed: “copies”
and “ phonorecords.”

 A copy is a material object from which a work can be perceived, reproduced, or

communicated, either directly by human perception or with the help of a machine.

 A phonorecord is a material object in which sounds are fixed and from which the
sounds can be perceived, reproduced, or communicated either directly by human
perception or with the help of a machine.

Works of Authorship: (17 U.S.C§102)

 The copyright act provides that copyright protection subsists [support oneself]in
original works of authorship fixed in any tangible medium of expression, now
known or
hereafterdeveloped,fromwhichtheycanbeperceived,reproducedorotherwise
communicated either directly or with the aid of a machine.
 17 U.S.C. § 102. Section 102 then lists eight categories of protectable works. The
list is preceded by the phrase that works of authorship “include” those categories,
demonstrating that the listed categories are not the only types of works that can be
protected, but are illustrative only.

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The eight enumerated categories are as follows:

1. Literary works,
2. Musical works (including accompanying words)
3. Dramatic works (including accompanying music)
4. Pantomimes and choreographic works
5. Pictorial, graphic, and sculptural works
6. Motion pictures and other audiovisual works
7. Sound recordings
8. Architectural works

Rights of Reproduction:

Themostfundamentaloftherightsgrantedtocopyrightownersistherighttoreproducethe
work

 Aviolationofthecopyrightactoccurswhetherornottheviolatorprofitsbythereproduction
 Only the owner has the right to reproduce the work
 Secretly taping a concert, taking pictures at a performance, or recording all
violate the owner’s right to reproduce

 The suggestion of congress, in 1978 a group of authors, publishers and users

established a not-for-profit entity called Copyright Clearance Center[CCC]
 CCC grants licenses to academic, government and corporate users to copy and
distribute the works
 It collects royalty fees, which are distributed to the authors
 Companies that photocopy articles from journals and magazines often enter into
licensing arrangements with the CCC so they can make copies.

Rights to prepare Derivative works:

 Section 106 of the copyright Act provides that the owner of a copyright has the
exclusive right to prepare derivative works based upon the copyrighted work
 This right I often referred to as the right to adapt the original work

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Definition:

 “A derivative work is broadly defined as a work based upon one or more

preexisting works, such as a translation, dramatization, fictionalized motion
pictures version, abridgment condensation or any other from in which a work
maybe recast, transformed, or adapted.

 a work consisting of editorial revisions, annotations, elaborations, or other

New material represents original work of authorship

modifications is also a derivative work

Rights of distribution and the first sale doctrine:

 Section 106 (3) of the copyright act provides that the owner of a copyright has the
exclusive right to distribute copies or phonorecords of the work to the public by
sale or other transfer of ownership
 A violation of the distribution right can arise solely from the act of distribution itself
 The distributor did not make an unlawful copy or the copy being distributed was
unauthorized
 Thus, blockbuster videos to recanbeliableforviolatinganowner’srighttodistribute
 Oncetheauthorhaspartedwithownershipofcopyrightedmaterial,thenewownerofala
wfullymadecopycantreattheobjectashisorher own

 The new owner the right to lend the book or movie to a friend, resell the work at a
garage sale,orevendestroyit.
 Thefirstsaledoctrinedoesnotapplytoorlimittheauthor’sexclusiverightstopreparederi
vative works or rights of public performance and
 Without permission of authorship the goods are not permitted to imported into the
U.S.

Rights to perform the work publicly

 Section 106 [5] of the Copyright Act provided that in the case of all copyrighted
works other than sound recording & works of architecture, the copyright owner
has the exclusive right to display the work publicly.
 Adisplayis“public”underthesamecircumstancesinwhichaperformanceis“public”.

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Namely if it occurs at a place open to the public (or) at a place where a substantial number of
persons outside of the normal circle of a family

Copyright Ownership Issues [17U.S.C. §201(a)]:

 Copyright in a work protected under the copyright activists [provide with power
and authority] in the author or authors of the work

Ownership of a physical object is separate and distinct from ownership of the

copyright embodied in the material object

 Issues about ownership arise when more than one person creates a work

 Unless copyright has been explicitly conveyed with those physical

articles, the original authors generally retain all other rights associated
with the works.

Joint Works[intent to create a unitary whole]

 A joint work is a work prepared by two or more authors with the intention that
their contributions be merged into inseparable or interdependent parts of a unitary
whole.
 One copyright exists in the created works
 Joint authors are those who “mastermind” or “supermind” the creative effort.

Ownership Rights in Joint Works

 If individual are authors of a joint work, each owns an equal undivided interest in
the copyright as a tenant in common, [each has the right to use the work, prepare
derivative works, display it without seeking the other coauthor’s permission].
 If profits arise out of such use, an accounting must be made so, that each author
shares in the benefits or proceeds.
 The death of a coauthor, his or her rights pass to heirs who then own the rights in
common with the other coauthor.

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Ownership in Derivative or Collective Works

 The author of the original book has rights only to his or her work and cannot
reproduce or perform the derivative work without permission.
 If a work such as a book is created by one person who intends it to be complete at
the time and illustrations are later added to it by another, the work cannot be a
joint work because there was no intention of the parties to create a unitary whole
at the time of their creation.
 The author of the derivative work cannot create further works based on the
original book without permission and cannot reproduce the original work without
permission.
 Multipleownershiprightsmayalsoariseifseparatelycopyrightableworksarecompiled
intoacollection.
For Example: If essays written by Jerry Seinfeld, Ellen DeGeneres, and Paul Reiser are
collected into a humor anthology by Bill Jones (with permission of the original authors), the
original authors retain their exclusive rights (such as rights to reproduce, distribute, and
perform) in their respective essays. No join work is created because there was no intent at the
time the separate essays were created to merge them into a unitary whole. No derivative work
is created because the original works have not been transformed in any way and nothing new
has been added to them. The anthology by the compiler, Bill Jones, is a collective work and
pursuant to section 201(c) of the act, Jones acquires only the right to reproduce and distribute
the contributions as part of the particular collective work or any revision of the collective
work .

Works Made for Hire

 The general rule is that the person who creates a work is the author of that work
and the owner of the copyright therein, there is an exception to that principle: the
copyright law defines a category of works called works made for hire.
 If a work is “made for hire”, the author is considered to be the employer or
commissioningpartyandnottheemployeeortheactualpersonwhocreatedthework
 The employer or commissioning party may be a company or an individual.
 There are two types of works that are classified as works made for hire; works
prepared by an employer within the scope of employment and certain categories

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of specially ordered or commissioned works.

Copyright Registration

 A work is “created” when it is fixed in a copy or phonorecord for the firsttime.

 Although not required to provide copyright protection for a work, registration of
copyright with the Copyright Office in expensive, easy and provides several
advantages, chiefly, that registration is a condition precedent for bringing an
infringement suit for works of US origin.

 To register a work, the applicant must sent the following three elements to the
Copyright Office: a properly completed application form, a filing fee, and a
deposit of the work being registered.
 Registration may be made at any time within the life of the copyright

THEAPPLICATIONFORCOPYRIGHTREGISTRATION

 The following persons are entitled to submit an application for registration of

copyright:

 the author (either the person who actually created the work or, if the work is one
made for hire, the employer or commissioning party)
 the copyright claimant (either the author or a person or organization that has
obtained ownership of all of the rights under the copyright originally belonging to
the author, such as a transferee)
 the owner of exclusive right, such as the transferee of any of the exclusive rights
of copyright ownership (for example, one who prepares a movie based on an
earlier book may file an application for the newly created derivative work, the
movie); and
 the duly authorized agent of the author, claimant, or owner of exclusive rights
(such as an attorney, trustee, or any one authorized to act on behalf of such
parties)

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Application Forms

 The Copyright Office provides forms for application for copyright registration.
 Eachformisone8½by11”(inchs) sheet, printed front and back.
 An applicant may use photocopies of forms
 The Copyright Office receives morethan 6,00,000 applications each year, each
application must use a similar format to ease the burden of examination.
 The type of form used is dictated by the type of work that is the subject of copyright.

For example: One form is used for literary works, while another is used for sound
recording. Following are the forms used for copyright application.

 Form TX (Literary works, essays, poetry, textbooks, reference works, catalogs,

advertising copy, compilations of information, and computer programs)
 Form PA (Pantomimes, choreographic works, operas, motion pictures and other
audio visual works, musical compositions and songs.
 Form VA (Puzzles, greeting cards, jewelry designs, maps, original prints,
photographs, posters, sculptures, drawings, architectural plans and blueprints.
 Form SR (Sound recording)
 Form SE (periodicals, news papers magazines, newsletter, annuals and [Link].

Notice of copyright

 Since March 1, 1989 (the date of adherence by the United States to the Berne
Convention),use of a notice of copyright (usually the symbol © together with the
year of first publication and copyright owner’s name) is no longer mandatory,
although it is recommended and offers some advantages.
 Works published before January 1, 1978, are governed by the 1909 copyright Act.
 Under that act, if a work was published under the copyright owner’s authority
without a proper notice of copyright, all copyright protection for that work was
permanently lost in the United States.
 With regard to works published between January 1, 1978, and March 1, 1989,
omission of a notice was generally excused if the notice was omitted from a
smaller number of copies, registration was made within five years of publication,

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and a reasonable effort was made to add the notice after discovery of its omission.

International Copyright Law

 Developments in technology create new industries and opportunities for

reproduction and dissemination of works of authorship.
 A number of new issues have arisen relating to the growth of electronic
publishing, distribution, and viewing of copyrighted works.
 Along with new and expanded markets for works comes the ever-increasing
challenge of protecting works form piracy or infringement.
 Copyright protection for computer programs
 Copyright protection for Automated Databases
 Copyright in the Electronic Age
 The Digital Millennium Copyright Act

PATENTS

A patent is a government granted right for a fixed time period to exclude others from making,
selling, using, and importing an invention, product, process or design, or improvements on
such items. These exclusive, monopoly rights are powerful, and in return the inventor is
required to describe the invention in writing. The end result is simply a written description,
accompanied by diagrams and drawings, that explains the invention. The public benefits
because anyone can read the details of the invention and improve upon it. Importantly, the
patent not only allows the public to gain an understanding of the invention, but also defines
its limits. Once the patent term expires (generally 20 years from the application filing date),
the technology covered by the patent becomes a part of the public domain and is essentially
free to use by the public.

Types of Patents

Generally, there are three main types of patents: utility patents, design patents and plant
patents.

1) Utility Patent – When most people think of patents, they are referring mainly to utility
patents. A utility patent is a patent that covers inventions, whether it’s an innovative software

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process, a new product that is distinct from prior art, or an improvement to a car engine. A
utility patent can be granted for any new, useful, and non-obvious process or product.

2) Design Patent – A design patent covers a new and original ornamental design of a product.
In other words, a design patent protects the look of a product. Examples of products protected
by design patents include jewelry and watches, electronic devices, computer icons, and
beverage containers. A design patent consists of numerous drawings that show a product
from various angles and contains very little written description, if any.

3) Plant Patents - Plant patents were first created by the Patent Act of 1930, which had been
proposed by Luther Burbank to protect new species of asexually reproduced plants, mostly
flowers. These are different than the utility patents granted to bioengineered plants used in
agriculture. The United States was the first country in the world to grant plant patents, and
even today many countries continue to deny protection for plants. Indeed, even some
signatories to the Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS) administered by the World Trade Organization (WTO) reserve the right to deny
patents for plants.

To be patentable, plants must be cultivated rather than found in the wild, and plant patents are
granted only to protect a new, distinct, and non-obvious variety of asexually reproduced
plant—i.e., those grown not with seeds but by grafting, budding, or cutting. A plant need not
be useful to qualify for a patent, but it must be distinctive in its color, habit, soil, flavor,
productivity, form, or other aspects.

FOUNDATION FOR PATENT LAW

The main motive behind patent was to encourage scientific research, new technology and
industrial progress. Patent law grants a monopoly to the inventor to use their patented product
and allow the use of the same to someone with prior permission against certain consideration.

Patent confers the right to manufacture, use, offer for sale, sell or import the invention for the
prescribed period to the inventor. In short, the patent owner has the exclusive right to prevent
or stop others from commercially exploiting the patented invention. Patent protection means
that the invention cannot be commercially made, used, distributed, imported or sold by others
without the patent owner’s consent. It protects against infringement of the patent i.e. if
someone tries to replicate the invention or invents against an existing patent the original
inventor can enforce their right against such duplicate product.

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There is some evidence that some form of patent rights was recognized in Ancient Greece. In
500 BCE, in the Greek city of Sybaris (located in what is now southern Italy),
"encouragement was held out to all who should discover any new refinement in luxury, the
profits arising from which were secured to the inventor by patent for the space of a year."
Athenaeus, writing in the third century CE, cites Phylarchus in saying that in Sybaris
exclusive rights were granted for one year to creators of unique culinary dishes.

In England, grants in the form of letters patent were issued by the sovereign to inventors who
petitioned and were approved: a grant of 1331 to John Kempe and his company is the earliest
authenticated instance of a royal grant made with the avowed purpose of instructing the
English in a new industry. These letters patent provided the recipient with a monopoly to
produce particular goods or provide particular services.

The first extant Italian patent was awarded by the Republic of Venice in 1416 for a device for
turning wool into felt. Soon thereafter, the Republic of Florence granted a patent to Filippo
Brunelleschi in 1421. Specifically, the well-known Florentine architect received a three-year
patent for a barge with hoisting gear, that carried marble along the Arno River.

Patents were systematically granted in Venice as of 1450, where they issued a decree by
which new and inventive devices had to be communicated to the Republic in order to obtain
legal protection against potential infringers. The period of protection was 10 years. These
were mostly in the field of glass making. As Venetians emigrated, they sought similar patent
protection in their new homes. This led to the diffusion of patent systems to other countries.

The Venetian Patent Statute, issued by the Senate of Venice in 1474, and one of the earliest
patent systems in the world.

King Henry II of France introduced the concept of publishing the description of an invention
in a patent in 1555. The first patent "specification" was to inventor Abel Foullon for "Usaige
& Description de l'holmetre", (a type of rangefinder.) Publication was delayed until after the
patent expired in 1561. Patents were granted by the monarchy and by other institutions like
the "Maison du Roi" and the Parliament of Paris. The novelty of the invention was examined
by the French Academy of Sciences. Digests were published irregularly starting in 1729 with
delays of up to 60 years. Examinations were generally done in secret with no requirement to
publish a description of the invention. Actual use of the invention was deemed adequate
disclosure to the public.

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The English patent system evolved from its early medieval origins into the first modern
patent system that recognised intellectual property in order to stimulate invention; this was
the crucial legal foundation upon which the Industrial Revolution could emerge and flourish.

By the 16th century, the English Crown would habitually grant letters patent for monopolies
to favoured persons (or people who were prepared to pay for them). Blackstone (same
reference) also explains how "letters patent" (Latin literae patentes, "letters that lie open")
were so called because the seal hung from the foot of the document: they were addressed "To
all to whom these presents shall come" and could be read without breaking the seal, as
opposed to "letters close", addressed to a particular person who had to break the seal to read
them.

This power was used to raise money for the Crown, and was widely abused, as the Crown
granted patents in respect of all sorts of common goods (salt, for example). Consequently, the
Court began to limit the circumstances in which they could be granted. After public outcry,
James I of England was forced to revoke all existing monopolies and declare that they were
only to be used for "projects of new invention". This was incorporated into the 1624 Statute
of Monopolies in which Parliament restricted the Crown's power explicitly so that the King
could only issue letters patent to the inventors or introducers of original inventions for a fixed
number of years. It also voided all existing monopolies and dispensations with the exception
of:

...the sole working or making of any manner of new manufactures within this realm to the
true and first inventor and inventors of such manufactures which others at the time of making
such letters patent and grants shall not use...

The Statute became the foundation for later developments in patent law in England and
elsewhere.

James Puckle's 1718 early autocannon was one of the first inventions required to provide a
specification for a patent.

Important developments in patent law emerged during the 18th century through a slow
process of judicial interpretation of the law. During the reign of Queen Anne, patent
applications were required to supply a complete specification of the principles of operation of
the invention for public access. Patenting medicines was particular popular in the mid-
eighteenth century and then declined. Legal battles around the 1796 patent taken out by

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James Watt for his steam engine, established the principles that patents could be issued for
improvements of an already existing machine and that ideas or principles without specific
practical application could also legally be patented.

This legal system became the foundation for patent law in countries with a common law
heritage, including the United States, New Zealand and Australia. In the Thirteen Colonies,
inventors could obtain patents through petition to a given colony's legislature. In 1641,
Samuel Winslow was granted the first patent in North America by the Massachusetts General
Court for a new process for making salt.

Towards the end of the 18th century, and influenced by the philosophy of John Locke, the
granting of patents began to be viewed as a form of intellectual property right, rather than
simply the obtaining of economic privilege. A negative aspect of the patent law also emerged
in this period - the abuse of patent privilege to monopolise the market and prevent
improvement from other inventors. A notable example of this was the behavior of Boulton &
Watt in hounding their competitors such as Richard Trevithick through the courts, and
preventing their improvements to the steam engine from being realized until their patent
expired.

During the British reign in India, the Act VI of 1856 granted protection of inventions based to
inventors of new manufacturers for a period of 14 years. It underwent many modifications
thereafter and in 1911 Indian Patents & Designs Act was enacted. Then again modifications
took place and the present Patents Act, 1970 came into force in the year 1972, amending and
consolidating the existing law relating to Patents in India. The Patents Act, 1970 was again
amended by the Patents (Amendment) Act, 2005(1), wherein product patent was allowed
against all fields of technology including food, drugs, chemicals and microorganisms. The
new law allows compulsory grant of patent except in prohibited cases as done earlier. The
new amendment of 2005 also included pre-grant and post-grant opposition. A patent
application in India can be filed either individually or jointly, by true and first inventor of the
assignee.

PATENT SEARCH
Patent search is a search of the patent database to determine if there are any patent application
similar or identical to an invention that is to be patented. Patent search can be done to

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improve the chances of obtaining a patent registration or to find information about new
inventions that have patent protection.
Before filing a patent application, a patent search can help with different objectives like:

 Determining the probability of having a patent granted to a proposed invention.

 Determining the claims to be filed in the patent application.
 Determining the freedom to operate.
 Determining whether a granted patent can be invalidated.
 Knowing more about similar inventions and status of similar patent filings.

The Seven Steps in a Preliminary Search of U.S. Patents and Published Patent Applications

1. Brainstorm terms to describe your invention based on its purpose, composition and use.

2. Use these terms to find initial relevant Cooperative Patent Classifications using the USPTO
website’s Classification Text Search Tool
([Link] Enter the keyword or keywords you wish
to search in the Search Tool box. For example, if you were trying to find CPC Classifications
for patents related to umbrellas, you would enter "umbrella". The default search system is
CPC, Cooperative Patent Classification, so the button “All CPC” is selected. Click on the
“Search” button. Scan the resulting classification's Class Schemes (class schedules) to
determine the most relevant classification to your invention. If you get zero results in your
Classification Text search, consider substituting the word(s) you are using to describe your
invention with synonyms, such as the alternative terms you came up with in Step 1.

3. Verify the relevancy of CPC classification you found by reviewing the CPC Classification
Definition linked to it (if there is one).

4. Retrieve U.S. patent documents with the CPC classification you selected in the PatFT
(Patents Full-Text and Image) database ([Link] Review and narrow down the
most relevant patent publications by initially focusing on the front page information of
abstract and representative drawings.

5. Using this selected set of most relevant patent publications, review each one in-depth for
similarity to your own invention, paying close attention to the additional drawings pages, the

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specification and especially the claims. References cited by the applicant and/or patent
examiner may lead you to additional relevant patents.

6. Retrieve U.S. published patent applications with the CPC classification you selected in
Step 3 in the AppFT (Applications Full-Text and Image) database ([Link]
Use the same search approach used in Step 4 of first narrowing down your results to the most
relevant patent applications by studying the abstract and representative drawings of each on
its front page. Then examine the selected published patent applications closely, paying close
attention to the additional drawings pages, the specifications and especially the claims.

7. Broaden your search to find additional U.S. patent publications using keyword searching
in PatFT or AppFT databases, classification searching of non-U.S. patents on the European
Patent Office's Worldwide Espacenet patent database ([Link] and
searching non-patent literature disclosures of inventions using the free electronic and print
resources of your nearest Patent and Trademark Resource Center
([Link]

Patent search in India

There is no cost for doing a patent search in India. A patent search can be done through the
Patent database of India available at: [Link]

Depending on the status of a patent application, a patent search can be done under two
publication types: published or granted. The user can choose the desired publication type by
clicking on the checkbox. The user can view many categories like

 Application Date
 Title
 Abstract
 Complete Specification
 Application Number
 Patent Number
 Applicant Number
 Patent Number
 Applicant number

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 Applicant Name
 Inventor Name
 Inventor Country
 Inventor Address
 Filing office
 PCT Application Number
 PCT Publication number

The entire category has a drop down box from which the user has access to change the
category. There is a search box next to every category where the user can enter the keyword
of the patent that he wants to view. By entering a query in more than one box, the applicant
can run very precise patent searches. Once the required keywords are entered in the
respective boxes, there is a captcha code the user has to clear.

Patent Information

Once the code is entered, there are a number of relevant patent results for the patent search
query that the user has entered. On selecting an application, the document opens with the
Application Number, Title, Application Date and Status. The user can get further details
about the patent by clicking on the Application Number, Title, Application Date and Status.
Through patent search, the applicant can find the following information about the patent:

 Invention title
 Publication Number
 Publication Date
 Publication Type
 Application Number
 Application Filing Date
 Priority Number
 Priority Country
 Priority Date
 Field of Invention

Classification

Inventor Name, Address, Country, Nationality

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Applicant Name, Address, Country, Nationality

When each column is selected, the patent application’s details about that section can be
known by the user. When a user selects application number details like Invention Title,
Publication number, date, type, etc. There are separate columns that give the user the
inventor’s and the applicant’s Name, Address, Country, and Nationality.

Patent Status

There is an Abstract column which has a summary of the patent application that the user can
view. Under this, there is a complete specification that gives the details about the
specification if the user has mentioned any. At the end, there is an option through which the
user can view the application status. When it is opened, the user can get the application
details.

Basic Criteria for Patentability

An invention is patentable subject matter if it meets 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 attract the provisions of section 3 and 4 of the Patents Act 1970.

An invention may satisfy the condition of novelty, inventiveness and usefulness but it may
not qualify for a patent under the following situations:

1) An invention which is frivolous or which claims anything obviously contrary to well

established natural laws;

2) An invention the primary or intended use or commercial exploitation 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 scientific principle or the formulation of an abstract theory or

discovery of any living thing or non-living substance occurring in nature;

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4) The mere discovery of a new form of a known substance which does not result in
enhancement of the known efficacy of that substance or the mere discovery of any 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
reactant;

Explanation: For the purposes of this clause, salts, esters, ethers, polymorphs, metabolites,
pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other
derivatives of known substance shall be considered to be the same substance, unless they
differ significantly in properties with regards to efficacy;

5) A substance obtained by 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) Amethod of agriculture or horticulture;

8) Any process for 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 microorganisms but including
seeds, varieties and species and essentially biological processes for production or propagation
of plants and animals;

10) A mathematical or business method or a computer program per se or algorithms;

11) 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, is traditional knowledge or which is an aggregation or

duplication of known properties of traditionally known component or components;

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16) Inventions relating to atomic energy;

INDUSTRAIL DESIGNS

Among the different kinds of intellectual property rights (IPR), one of the most important
ones is industrial design. Companies go enormous lengths to protect industrial design because
it gives them a competitive edge in the market and a lot of energy and resources goes into
developing them. If competitors are allowed to copy the industrial design without the owner’s
consent, there would be little incentive to develop new ways of improving things. It will act
as a dampener to innovation.

So naturally, industrial design intellectual property rights are critical for a modern economy.
According to the World Intellectual Property Rights Organization (WIPO), it is a
composition of lines and colors or any three-dimensional form, which leaves a unique
impression on a product. They maintain the essence of the ornamental or aesthetic aspect of a
useful article, which usually appeals to sight and touch senses, and can be reproduced in
significant quantities. Industrial design protection applies to several products, including
packaging, lighting, jewelry, electronic goods, textiles and even logos.

The pre-requisites for a design to qualify for protection are as follows:

 It should be novel and original

 It should be applicable to a functional article
 It should be visible on a finished article
 It should be non-obvious
 There should be no prior publication or disclosure of the design.

Kind of protection provided in Industrial design

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In principle, the owner of a registered industrial design or of a design patent has the right to
prevent third parties from making, selling or importing articles bearing or embodying a
design which is a copy, or substantially a copy, of the protected design, when such acts are
undertaken for commercial purposes.

Industrial design intellectual property rights are protected in India by the Designs Act of
2000. 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 Trade-Related Aspects of
Intellectual Property Rights TRIPS agreement. The new act, (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 combined, which in the finished
article appeal to and are judged solely by the eye; but does not include any mode or principle
of construction.

Under this, registration offers the proprietor ‘copyright’ in the design, i.e. exclusive right to
apply a design to the article belonging to the class in which it is registered. All models that
are registered find their place in the Register of Designs, Kolkata. This includes the design
number, class number, date of filing (in this country), the name and address of the proprietor
and so on.

The registration is for a duration of ten years and can be extended for up to five years. Under
the Designs Act, anyone violating the copyright of the design is liable to pay a sum of Rs.
25,000 for every offense to the registered proprietor subject to a maximum of Rs. 50,000
recoverable as contract debt for any one design.

Advantages of industrial design protection

There are many benefits of IPR in industrial design. It would be wise to understand them –

Monetary gain: The biggest benefit would be the financial gain that would accrue to the
owner of the design right. As we mentioned earlier, companies spend a lot of resources to
gain an edge over competitors, and good design can help them make a lot of money.

Unique selling proposition: In a competitive market, companies can get an edge by having a
product that looks and feels different/unique. Often consumers make purchase decisions

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based on the appearance. Industrial design protection enables companies to protect their USP
and set their product distinctly apart.

Selling designs: If a company cannot profit directly from the design developed, they can sell
it to third parties and make a profit from its design capabilities.

Image: Design protection helps build a positive image of a company. Industrial designs are
considered critical business assets and can even increase the share price of a company that, in
turn, helps sell their products.

The law offers high-level protection for IPR in industrial design. However, infringement of
design rights is quite common in India more often than not because of weak enforcement. As
competition heightens, the temptation to steal designs is stronger. Hence, it is crucial for the
authorities to be more stringent in enforcing design rights. Companies, for their part, should
be vigilant about their rights and take proactive measures to protect them.

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