LEARNING OUTCOME
Evaluate and resolve ethical dilemmas related to intellectual property
LEARNING OUTCOME
Evaluate and resolve ethical dilemmas related to intellectual property
All creations begin with an idea.
A property which is ideated and developed from human intellect(person’s ability to
think) is called “Intellectual Property”.
It helps an individual or an organization to protect applications of Ideas and
information that are of Commercial Value
• Property rights creates ownership. However, ownership is subject to regulations,
control and curtailment, for the larger social good.
• Just like other types of property, the owners of IP can rent, lease or sell it to people
Patents
• A patent is an exclusive right granted for an invention, which is a product or a
process that provides,
• A new way of doing something, or offers a new technical solution to a problem.
• Granted for both product and process.
• Granted for 20 years from the date of filing.
• Need to pay maintenance fees after every 5 years.
Patent rights are territorial rights, the exclusive rights are only applicable in the
country or region in which a patent has been filed and granted
Patent gives monopolistic rights to its owner to exclude others from making, using,
selling, offering for sale or importing the product or the process for producing the
product.
Monopolistic vs Territorial rights
• Apple vs. Samsung (Smartphone Design):
Apple sued Samsung for infringing on patents related to the iPhone’s design
and user interface. The U.S. courts awarded Apple over $500 million in
damages, demonstrating how monopolistic patents protect innovations
globally.
• Tesla’s Battery Patents:
Tesla holds patents for its battery technology in the U.S. and Europe.
However, Chinese companies like BYD developed similar batteries without
legal issues in China because Tesla hadn’t secured patent rights there
DESIGN PATENT
Apple iPhone Design: Apple holds design patents for the sleek look of the
iPhone, including its rounded edges and screen layout
Coca-Cola Bottle: The iconic contoured shape of the Coca-Cola bottle is
protected by a design patent.
Crocs Sandals: Crocs patented the unique design of their foam footwear.
DESIGN PATENT
Dyson Vacuum Cleaner: Dyson patented its unique cyclone
suction technology.
PLANT PATENT
Basmati Rice(Pusa Basmati 1121, Pusa Basmati 1509, and PB1) India protected the
Basmati rice variety under the Geographical Indication (GI) system, preventing other countries
from marketing similar rice under the same name.
Honeycrisp Apple (Plant Patent No. 7,197) – United States; Developed by the University of
Minnesota, USA. Known for its crisp texture and sweet-tart flavor.
SunGold Kiwi (Plant Patent No. PP20,036) – New Zealand; Created by Zespri in New
Zealand. Famous for its golden flesh, smooth skin, and tropical taste.
Turmeric Patent Controversy:
• In 1995, the University of Mississippi Medical Center was granted a U.S. patent (US Patent
No. 5401504) for turmeric’s wound-healing properties.
• India objected, arguing that turmeric’s medicinal use had been known for centuries in
traditional Indian medicine (Ayurveda).
• Using evidence from ancient texts and scientific publications, the Council of Scientific and
Industrial Research (CSIR) in India successfully challenged the patent.
• In 1997, the U.S. Patent and Trademark Office (USPTO) revoked the patent, making it a
landmark case against biopiracy.
Patentability Criteria
[Link] Subject Matter: product or process.
[Link] Applicability: Industrial applicability requirement checks if an invention is
capable of being made or used in an industry (Section 2(1) (ac)).
[Link](newness): if it is different from what is already existing, which is referred to as ‘prior art.’
• In 2013, Apple filed a patent for a "Slide to Unlock" feature on smartphones.
However, a similar unlocking method was found in a prior European patent
by Neonode (filed in 2002).The prior art invalidated Apple's claim in multiple
regions.
[Link] Step: means a feature of an invention that involves technical
advance as compare to the existing knowledge or having economic significance
or both.
• [Link]: The specification has to enable the invention, which means it must fully and
particularly describe the invention and its operation or use and the method by which it is to
be performed.
Infringement of Patent
Infringement Example
MCQ
Why an invention should be patented?
[Link] gives protection to a patentable invention.
[Link] gives legal recognition to the invention.
[Link] makes others aware of the fact as to whom does
the invention belong
[Link] one’s invention make useful data relating to the
invention available to other inventions for further research
and development
[Link] of the above
The Rights of the Patentee are:
[Link] or Distribute
[Link]
[Link] the Property to others
[Link] of the above
Case Analysis
• Issue: A tech company, XYZ Tech, has developed a software application. Another
company, ABC Software, releases a similar application that appears to have features
identical to those of XYZ Tech's software. XYZ Tech believes that ABC Software has
infringed on its intellectual property rights. Can company sue for infringement ?
• Rule: In this case, the relevant legal rules would likely revolve around copyright and
possibly patent law, depending on the nature of the software. Copyright law protects
original works of authorship, including software code, while patents protect novel
and non-obvious inventions. XYZ Tech needs to establish that it has valid copyrights
or patents covering the features of its software.
Analysis: XYZ Tech should first identify and gather evidence of its intellectual property
rights. This may include copyright registrations for the software code or granted
patents for specific features. The next step would be to analyze the similarities between
XYZ Tech's and ABC Software's applications. If XYZ Tech can show that ABC Software
has directly copied its code or features covered by patents, it strengthens the case for
infringement.
• Conclusion: Based on the analysis, XYZ Tech would determine whether it has a
strong case for intellectual property infringement against ABC Software. If the
evidence supports infringement and there are no valid defenses, XYZ Tech may
choose to pursue legal action, seeking remedies such as injunctive relief to stop ABC
Software from further use and possibly damages for any harm suffered.
Meaning
• Brand name once registered and legalized, it becomes a trade mark.
• A trademark is a word, phrase, design or symbol, or combination
thereof, that identifies the source of the goods of one party and
distinguishes those goods from the goods of others.
IDENTIFY THE SERVICE MARKS
•"Just Do It."®
•"I'm Lovin' It."®
•"Think Different."®
•"Because You're Worth It."®
•"The Happiest Place on Earth."®
•"There are some things money can't buy. For everything else, there's …."®
•"A Diamond Is Forever."®
•"Eat Fresh."®
•"The Ultimate Driving Machine."®
•"Finger Lickin' Good."®
•Nike – "Just Do It."®
•McDonald's – "I'm Lovin' It."®
•Apple – "Think Different."®
•L'Oréal – "Because You're Worth It."®
•Disneyland – "The Happiest Place on Earth."®
•Mastercard – "There are some things money can't buy. For everything else, there's
Mastercard."®
•De Beers – "A Diamond Is Forever."®
•Subway – "Eat Fresh."®
•BMW – "The Ultimate Driving Machine."®
•KFC – "Finger Lickin' Good."®
The system helps consumers identify and purchase a product or service
because its nature and quality, indicated by its unique trade mark, meets their
needs.
Trade mark protection is enforced by the courts, which in most systems have
the authority to block trade mark infringement.
Validity of Trademarks
A Trade Mark/Service Mark is valid for a period of 10 years.
Trade Mark can be renewed in every 10 years.
Renewal application can be filed 6 months prior to the due date of the next renewal
date.
Non-user of a registered trademark for a continuous period of 5 years is a ground for
cancellation of registration of such trademark at the behest (request, order) of any
aggrieved party.
FLUID TRADEMARK – THE LATEST TREND!
• Fluid trademarks are a creative twist on traditional trademarks
• There is no specific law governing fluid trademarks but they can be considered as a
series of marks under Section 15 of Act.
• Several trademarks are registered in respect of the same or similar goods or
services– while they resemble each other in their material particulars,
• They can differ with about non-distinctive elements that do not substantially affect
their identity.
Examples of Fluid Trademark
Case Analysis
Issue: Pepsi, holder of the Lays trademark, noticed similarities between their logo and Madhav Namkeens' logo in
August 2021. Both logos feature a circular yellow globe encircling a red banner, with "Lays" replaced by "Madhav" in
the latter. Pepsi issued a cease-and-desist notice to Madhav Namkeens, alleging trademark infringement. Madhav
Namkeens countered by arguing that the marks were dissimilar. The dispute revolves around the resemblance of the
logos and their potential confusion among consumers.
Copyright is the right to not copy.
Copyright is available for a wide range of expressions of creativity, which
includes literary, dramatic, musical and artistic works.
Literary work includes: novels, books, articles in newspaper, magazines
and journals, lyrics for songs and instruction manuals
Computer Programme includes machine-readable medium
Dramatic work: recitation, arrangement of scenes, mime, choreographic
works and dumb shows
Artistic Work: Painting, sculpture, photograph, drawing of diagram, chart or
map.
Copyright lasts for the lifetime of the author plus 60 years after their death.
Copyright lasts for 60 years from the year of publication.
Examples
• In simpler terms, GI is a status accorded to a good which is unique to a particular
region or area, and are originated from there.
• These goods have a reputation for their quality. They are associated with a sense of
legitimacy and trust simply because they have the tag of belonging to that region.
For example, Basmati rice is known for its unique aroma and long grains. It is
unique to the Indo-Gangetic plains.
Some more well known examples of geographical indications are "Champagne",
"Bordeaux" and "Chianti", the first two being regions in France and the third, a
region in Italy, all famous for their wines.
•A trademark can be associated with objects, companies etc., while a GI
can only be associated with a particular geographical location.
•A registered GI shall be valid for 10 years and can be renewed on
payment of renewal fee.
The following goods are covered under the ambit
of GI –
Agricultural (example, Basmati rice)
Natural (example, Makrana marble)
Handicraft or of any industry (example, Kashmiri pashmina)
Food stuff (example, Dharwad Pedha)2007
This has been mentioned in Section 2(g) of the GI Act.
INFRINGEMENT
Action for infringement of a Geographical Indication may be instituted at a District
Court or High Court having jurisdiction. Available relief's include: -
Injunction.
Discovery of documents.
Damages or accounts of profits.
Delivery-up of the infringing labels and indications for destruction or
erasure(removing the data).
REMEDIES
Both civil and criminal remedies available
Criminal action lies in case of falsification and false application of Geographical
Indications.
Civil action lies in case of infringement of a registered Geographical Indication.
• A “trade secret” is any valuable information that is not publicly known and of
which the owner has taken “reasonable” steps to maintain secrecy.
• These include information, such as a business plans, customer lists, ideas
related to your research and development cycle, etc.
• There is no registration process for trade secrets. Unlike copyrights, trademarks and
patents, the person, business, or entity with the trade secret must keep them secret.
• The Uniform Trade Secrets Act (UTSA) is a model act that provides legal protection
for trade secrets. It governs civil actions for the misappropriation of trade secrets.
• Its remedies include attorneys’ fees, exemplary damages, statutory damage, and
injunctive relief.
• The remedies depend on the extent of the trade secret misappropriation, the manner
of misappropriation, and the damages sustained by the owner.
• Trade secrets are invaluable business assets that give you a competitive advantage in
a dynamic market.
Remedies for infringement
• In India only civil or equitable remedies are available for a breach of confidence
cause of action.
• The available remedies include the award of an injunction
• “preventing a third party from disclosing the trade secrets,”
Traditional Knowledge
• A collaboration – between the Council of Scientific and Industrial Research
(CSIR) and the Department of Ayurveda, Yoga and Naturopathy, Unani,
Siddha and Homoeopathy (Dept. of AYUSH), Ministry of Health & Family
Welfare, Government of India.
• For protection of traditional knowledge which will safeguard misappropriation of
traditional knowledge as well as promote further research and development in
products and services based on traditional knowledge.
• The creation of the Traditional Knowledge Digital Library (TKDL) has been a
major achievement for India which has a vast pool of traditional knowledge
•India has been able to thwart attempts to misappropriate its traditional
knowledge.
•The next challenge is to use India’s strength in traditional knowledge for its
effective promotion, development and utilization.
Key Points
In 2001, the then Union Ministry of Health and Family Welfare and the
Council of Scientific and Industrial Research (CSIR) formed a partnership.
It had digitised more than 148 public domains’ works on Sowa Rigpa(healing
knowledge), Siddha(herbs), Unani, Ayurveda, and Yoga into more than 34 million pages
of documentation, which had been translated into five languages i.e. Spanish, French,
German, Japanese, and English.
The Traditional Knowledge Digital Library already includes data on 1,000,000 Unani
formulations, 12,000 Siddha formulations, and 80,000 Ayurvedic formulations .
It has also signed pacts with leading international patent offices namely the United
Kingdom Trademark & Patent Office (UKPTO), United States Patent and Trademark
Office (USPTO), and the European Patent Office (EPO), to protect traditional
knowledge from biopiracy by allowing patent examiners at international patent offices
to search and examine patents in the Traditional Knowledge Digital Library database.
The implementation of the TKDL project involved
several key steps:
1. Documentation: Traditional knowledge texts from AYUSH systems were meticulously
documented and translated into multiple languages.
2. Digitization: The digitization process involved converting physical manuscripts into
electronic formats, ensuring easy access and preservation of fragile documents.
3. Classification and Coding: A systematic classification and coding system was
developed to organize the vast repository of traditional knowledge according to
therapeutic areas, formulations, and medicinal plants.
4. Database Development: The TKDL database was created as a searchable online
platform, accessible to patent examiners, researchers, and traditional practitioners.
[Link] Collaboration: TKDL collaborated with international organizations
such as the World Intellectual Property Organization (WIPO) to raise awareness about
traditional knowledge protection and facilitate global access to TKDL resources