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    Dr. Hitesh Kapoor BUSINESS SOFTWARE PATENTS In history of inventions relating to business methods filed in India, major reasons for ‘egating the invention was lack of industrial application, which is one of the major Condition to qualify as an invention and consideration whether same in non-patentable being business method may be considered only if the subject is first found to be invention. Invention is defined under Section 2(1);j) of the Indian Patents Act, 1970 and reads as follow:- "Invention" means a new produet or process involving an inventive step and capable of industrial application." In Melia's Application (BL 0/153/92), where an application relating to a scheme for exthar.ging ail or part of a prison sentence for corporal punishment was held to lack industial applicability and also to be a method for doing business. In John Lahiri Khan's Application (BL 0/356/06) a method for effecting introductions with a view to making friends was held not to be industrially applicable, even though it Could be carried out by a commercial enterprise. It was also found to be non-patentable as ‘a method of doing business. “Capable cf industrial application” is defined under Szctior? 2(1)(ac) of the Indian Patents Act, 1970 and reads as follow:- “Capable of industrial application", in relation to an invention, means that the invention is capable of being made or used in an industry. In re: Bernard Bilski, US Federal Court of appeal in its judgement dated October 30, 2008 upheld that business methods cannot be patented. The court observed that the sole analysis for determining whether an invention is patentable should be the "machine-or- transformation test" i.e. requiring involvement of a machine (like in case of computer program: product) or transforming an article (for details refer to case law). ‘Though there are no specific, guidelines in proposed draft manual as to how to treat inventions pertaining to business methods, the requirements for patentability as in casi: of computer programmes or mathematical methods becomes of great significance and could be relied. Therefore the business method per se may not be patentable, but its technical implication can be a subject matter of patentable invention. Dr. Hitesh Kapoor The Grey Areas of the IT Act The IT Act, 2000 is likely to cause a conflict of ‘jurisdiction. Elec:fonié commerce is based on the system of domain names. The IT Act, 2000 does not even touch the issues telating to domain names. Even domain names have not been Seine and the rights and liabilities of domain name owners do not find any mention in € law. The IT Act, 2000 does not deal with any issues concerning the protection of Intellectual Property Rights I the context of the online environment Contentious yet very important by no means exhatistive. However, the drafting of the relevant provisions of the IT Act, 2000 makes it appear as if the offences detailed therein are the only cyber offerices Possible and existing. The IT Act, 2000 does not cove various kinds of cyber crimes and Internet related crimes. These Include:- : a) Theft of Internet, hours b) Cyber theft me c) Cyber stalking 4d) Cyber harassment ¢) Cyber defamation £) Cyber fraud 8) Misuse of credit card numbers h) Chat room abuse The TT Act, 2000 has not tackled several vital issues pertaining to e-commerce sphere like privacy and content regulation to name a few. Privacy issues have not been touched at all. 6. Another grey area of the IT Act is that the same does not touch upon eny ent trust issues. 7. The most serious concem about the Indian Cyber law relates to ts implementation. The IT Act, 2000 does not lay down parameters for its implementatic > Also, when intemet penetration in Indi is extemaly lo and goverment and police officials, in general are not very computer savvy, the new Indian eyber isw Ise more questions than it answers. It seems that the Parliament Would be required to amend the ‘Act, 2000 to remove the grey areas Dr. Hitesh Kapoor What is the different between a US Patent and an Indian Patent? A US patent is granted by the United State Patent Cffice to an inventor, who has filed his application. with it, whereas an Indian Patent is granted by the Indian Patent Office to an inventor, who has filed his application with Indian Patent office. A patent granted by a patent office is applicable within the geographical boundaries of that country only, . A.US Patent is applicable within USA only and has no effect in India, if the same inventor of the US patent has not filed his application in India for the patent grant. Is there an International/Global patent? No. There is no Intemational or Global Patent. An inventor,has to file an application in each country, where he seeks to protect his invention, There are regional and/or International treaties to facilitate the procedure to seek protection like Patent co-operation Treaty (PCT) or European Patent Convention (EPC) Who is responsible to ensure that the patent has not been infringed? Itis the sole duty/responsibility of the patentee to see that his patent is not being inftinged upon by someone else. It is the patentee's duty to file a suit of infringement against the infringer. Does a Patentee get money once a patent has been granted to him? No. A patentee does not get any kind of money over the grant of the patent. However, when a patentee sells his patented invention to a third party, he gets monzy. The patentee has all the rights to sell his invention exclusively and/or non-exclusively to any person/party or he may choose to sell his invention for a royality. The granting authority will not give any money to the patentee, Rather the inventor has to spend lot of money to get the patent rights over his invention and also to spend lot of money to maintain his patent, ‘What does a patent application contain? A patent application has the following information: 1, Bibliographic: It is in structure format filing, country cf filing, inventor's name ete. It contains the title of the invention, date of 2. Background of the invention or State of the art: In this the inventor lists the state of the art available on the date of filing his invention. Dr. Hitesh Kapooy How a patent is obtained/filed? A patent is obtained by the inventor or his essignee by filing an application with the Patent o“Tice in the stipulated forms as required by the Patent act of that country. ‘Why one should go for a patent? To enjoy the exclusive rights over the invention, If the inventor does not get the patent ats over his invention and introduce his product/process based on his invention in the ‘parket, any body can copy his invention and exploits it commercially. To. debar others Tort using, selling or working out his invention, the inventor must go for getting a patent, ‘Why does the Government encourage filing of patents? To encourage innovation and investment in the zesearch and development activities so that there is economic, industrial and technological development in the country. How does a patent document help in R&D? Study of a Patent document may stop re-inventing the ‘wheel. A scientist, who has not CUnculted the patent literature, may start working on a problem for when the solution Teeeturtv® already been found, by someone else and itis available hea patent Which invention qualifies for the grant of patent? A patent is granted.only on that invention, which is new, non-obvious and has industrial applicability. Upto what extent the inventor has to disclose his invention to get a patent? ‘An invertor has to disclose his invention in such a manner that any person, other than the inventor, skilled in the art should be .able to work out the invention. How does a patent get expire? ent can expire in the following ways: A pate pire 1. The patent has lived its full term i.. the term specified by the patent act of the country Generally it is 20 years from the date of filing. 2. The patentee has failed to pay the renewal fee. A patent once granted by the Government has to be maintained by paying annual renewal fee. alidity of the patent has been successfully challenged by an opponent by filing an oat either with the patent office or with the courts. coca ds creation, Thug P27 Indeed, the Dr. Hitesh Kapoor Indeed, the Act | © Act states that copyright provided the original ork or design protection is povirel phere, on. Thus, your creation, implementation design web ste, writen or are m the Web, Your music, your ‘project, are already holders of copyright. It is oe Priority with a copyright deposit. Deposit gives a certain date (priority of ei ) for your deposit creation. Your deposit is uncontestable proof of ccpyright deposit is your official witness of your right to your creation or design. Patents A patent is a set of exclusive rights granted by a state (national government) to an inventor or their assignee for a limited period of time in exchange for a public @isclosure of an invention. Also, A Patent is an exclusive mon« i i lusi jopoly granted by the Governrcent to an inventor over his invention for limited period of time. The procedure for granting patents, the requirements placed on the patentee, and the extent o: the exclusive rights vary widely between countries according to national laws and iniemational agreements. Typically, however, a patent application must include one oor more claims defining the invention which must be new, non-obvious, and useful or industrially applicable. In many countries, certain subject areas are excluded from patents, such as business methods and mental acts. The exclusive right granted to 2 ppatentee ‘n most countries is the right to prevent others from making, using, selling, cr distributing the patented invention witkout permission, It is just a right to prevent others’ ‘use. A patent does not give the proprietor of the patent the right to use the patented invention, should it fall within the scope of an earlier patent. ‘Under the World Trade Organization's (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights, patents should be available in WTO member states for any inventions, in al! fields of technology, and the term of protection available should be the ininimum twenty years. Different types of patents may have varying patent terms (j.¢., durations). ‘After India became a Patent Cooperation Treaty (PCT) contracting state on 7 December 1998, since when it nas been possible to designate India in international patent applicctions filed via the PCT route, and since 1999 the number of PCT filing shown in sppliciph reflects increase trend, however when we compare with other countries lik: ‘china, India far behind them in filing PCT Application. In WIPO. you can get See publications which would be really belpfl for those who wt wa rie & protect their patent in Abroad, Following are some of the publication available, 1 ill tke through the basis of invention, patent, patent search, filing patent et. ‘Who cim obtain a Patent? : ‘An inventor or any other person/company assigned by the inventor can obtain the patent over his invention. Dr. Hitesh Kap, voges = Software - Software - May ‘My creations: Scripts - Algorithms - Database - Programs Formulas - Developments - Specifications ~~ Work on the Web = Graphics - Forum - My crections: Websites Web-Pages - Database - Images - ‘pene . Images ” Banners - Blogs - Scripts ~ graphic designs Content - ere seOe Campaigns (ads on Yahoo, Google) - Games Compet Optimization - Texts - Articles - Editoriels Graphic designer, graphic designer ic i i = Comics Drawings - Paintings - My creations: Photography - Digital Imaging 2D, 3D - cee Illustration ~ Sculpture - Story Boards - Logos - Architectural and Landscape Video Games : Communications consultant My creations: Recommendations - Strategic Plans - story board Stylist MY creations: Decoration - Collection-tend Topics - Atmospheres - Designs - Models - Patterns -- ‘Work in the Multimedia My creations: Games Videos - Presentations - Mobile Ringtones - Film - Short Film «.. ‘Video Clips - soundtracks - Movies - CD-ROM-DVD - inment — | Businessman Business and Family Law Contracts - Recognition of Liabilities - Wills - Legacy - Letters Mamie Time taken to deposit creation does it enjoy Copyright protection? The consideration and protection on the document transmitted in secure Mode, your copyright deposit, are instantaneous. Dr. Hitesh Kapoor 5 - Once all the fields are filled in, review your submission one last time for verification, ‘as your content will be permanently sealed for 30 years. 6 - Click “submit and send.” 5 ‘ 7. Wait for the full load (upload) of your work on the confirmation screen 8 - The filing and registration of your copyright is complete. Your work and your creations are protected. 9 You will receive your confirmation of registration and filing of copyright by email, in real time. 10 - At any time, you can view and download your proof of copyright. This document proves the precedence of your intellectual property. It can be used to deter would-be plagiarizers, to given to your lawyer, etc., in order to show that you have proof of registraticn of your creation and you are the author of the creation of the element you are defending ‘What can be copyright ? All creations have a right, because they exist (and because they are creative). these are the works of the spirit, creativity, even if they are sometimes tangible (a model, a sculpture, a postcard, music ..). This is intellectual property. All this is right ‘The Various Perspectives: Author My creations: Fiction - Poetry - Counts - Testing - Lyrics - Press Articles - Thesis - Editorials - Nickname - Report - Slogans - Course Materials - Translation - Base Line —- Dramatist My creations: Screenplay - Sctipt - Drama - Synopsis ~ Scenery - Costumes - Choreography - scenic movement Scientist ‘My creations: Documentations - Formulations - Dosages - Forms - Layouts - Patents - Inventions - Publications - Projects - Thesis - Analysis - Demonstrations ~ Musician My cteations: Scores - soundtracks - Audio - Arrangements - Songs ~ Sound Banks - ‘Compositions - Agreements - Web - Melody - Samples - Compliations - Computer scientist —=_ Dr. Hitesh Kapooy notice t ae are of rk can the designations | ee aims copyahs nO CT atok desig ve in a eicle or ayo wha cit PIS ave 8 tee he I car of irs publication righ © Use of the "O" symbol Be tis not eee ‘ighly advisable to inco*Por i i opr flowed PY 20" For example, © ipfirmsdirect0ry Remedies For Infringement a copyright is It is the vole eaponsiiy oft ont 8608 Ns oF infingem re Tameone else, tis the over QS Ty aut are - infringer. The reliefs which may be uspally awarded i. Injunctons whether interim or inal ii, Demages. ‘cinmoma Ceiminal action also can be taken on te basis of copyright registeon, a sini cgement of copyright is imprisonment for six moni ‘ease of a second and subsequent conviction the punishment for is minimum fine of Rs. 50,000/-. In the ‘case of ‘minimum punishment is imprisoument for ‘one year and fine of Rs. one L. International copyright protection . India is a member of both Beme and Universal Conventions and Indian law extenos protection to all copyrighted works originstirg from any of the convention countries. Foreign works first published in a county which is a member of cither of. the Conventions would be accorded the same copyright protection in India as Indian warks without undergoing any formalities, on the assumption that the home country accords reciprocity to Indian works, What is a Copyright deposit? Process to deposit a copyrighted work. ‘So that the submission of your work is the most relevant copy it possi : f a Pyvight dey ian serve you in case of a plagarist Follow thee steps: Pt Possible, a 1 - Centralize or write completely the components of your future... 1 eapytigh it 2- Enter the secure member site wit your usemame and passwi: 3-Go to "file now." 4 - Upload the file (in Zip format) to deposit. Dr. Hitesh Kapoor ae Rights conferred by registration, ; f general, registration is voluntary. Copyright exits ffom the moment the work is tn er fader Indian lav, registration is aot required either for acquiring copyright or cet ving it in an infringement action. However, registration bas evidentiary value in sor ai of law with reference to dispute relating to ownership of copyright ‘Author of copyright Under the copyright law, the creator of the original expression in a work is its author. The ainet also the owner of copyright, unless there is a writen agreement by which the author assigns the copyright to another person oF entity, such as a publisher. In cases of works made for hire, the provider of the work is considered to be the author. Filing and Prosecuting Copyright Applications ‘An epplication for copyright on Form-IV accompanied by four copies of the work is vo be inudeon Form IV ( Including Statement of Particulars and Statement of Further Pantiouars) along with the prescribed fee at Copyright Office of the Department. of Education, New Delhi. The Copyright Office initially provides a filing number and fling ddate and issues a filing receipt. Thereafter the application is formally examined by the fs will be communicated to the applicant. Once the application is found to is accepted and the Copyright Office issues the registration certificate. Duration of registration ‘The duration granted for works of copyright varies depending on the type of work. Literary or musical works or artistic works, other than photographs, have a life span, which extends for the life of the author and 60 years from the end.of the year in Which the author dies. However, if the work has not been published, performed, ot offered for sale or broadcast during the life of the author. the copyright protection shall Continue for a period of 60 years from the end of the year in which any of these acts are dore relating to the work, Cinematograph films, photographs and computer programs are protected for 60 years from the end of the year in which the work is made available to the public with the consent of the owner of the copyright or published, or, failing such en event, for 60 years from the end of the year in which the work is made, Sound recordings are protected for 60 years from the end of the year in which the recording is first published. In he ease of anonymous or pseudonymous works, the copyright is for 60 years from the end of the year in which the work is made available to the public with the consent of the ‘owner of the copyright or from the end of the year in which it is reasonable to presume ‘that the author died, which ever term is shorter. Dr. Hitesh Kap, COPYRIGHT and PATENTS . oreatol given by the law 0 er aea ay producers‘of: cinematogran fact, itis a bundle of rights including, rights © TM ag public, adaptation and translation of the work. The - composition of the rights depending onthe work rs of literary, dramatic, musica films and sound recordings, |p duction, communication to the be slight variations in the tion and does not need to be registered. cp in on ove Sain fora specific period of time, after which the work is said “unde limitations and exceptions to copyright, from the copyright owner. All other uses smanently transfer or assign their In most jurisdictions Copyright owners have other exploitation of the works to enter the public domain, Uses covered such as fair use, do not require permission requ re permission. Copyright owners can license oF Pe exclusive rights to others. Initially copyright law only applied to the copying of books. Over time other uses such as translations and derivative works were made subject to copyright. Copyright now covers a wide range of works, including maps, sheet music, dramatic works, paintings. photographs, sound recordings, motion pictures and computer programs. Copyright is the legal protection given to the creator of an original literary or artistic i ri omit mah wos boy poet td rewarding creativity. Copyrights subsist in following class of works: 4) Original literary, musical, dramatic and artistic works, ) Cinematograph films c) Sound recordings The rights vary according to the class of work. Copyright also ists i i abridgements or compilations of such works, provided the palenaeh the Coin holder is obvained: Computer programmes are considered as literary works sere, protected under the Copyright Act. There is no copyright in an idea, ae Legislation The Indian law of copyrigs is enshrined inthe Copyright Ack, 1957, The previde forthe registration of copyright in Indi. The object of arate oe 5 encourage authors, artists and composers o create orginal works by rewarding them with exclusive right for ited period 16 repsodice th works for commercial expan Dr. Hitesh Kapoor OTHER SPECIAL CONVENTIONS IN THE FIELD eee oe Ueciiteowmrig OF RELATED RIGHTS ide? the Rome Conve ion of 1961, a basic legal instru ie section, two other jnternational instruments ave been ai et ema 0 & eran related rights. These are the Convention for the Protection of Ptoducers of Phonogrems ‘Against Unauthorized Duplication of ‘Ther Phonograms, concluded in Geneva it Jctober 1971 and generally referred to as “the Phonoj ti ti piracy. Pree” gard to the Rome Convention, He Phonograms Convention end the Satlies Convention may be regarded as special agreements, ‘the conclusion of which is reserved insofar as the agreements grant to performers, producers of phonograms or broadcasting organizations more extensive rights than those granted by protReme Convention, of contain ther provisions not contrary 10 ‘het Convention (Article 22 of the Rome Convention). Reasons for and Purposes of the Special Conventions . The reason for the rapid a¢ (sce the list iber States in the back flap of this volume) of the Phonogram® ‘Convention is due, on one to the i ini rac; Fas last wo decades a=dn 08 in int y ‘characteristics of the ‘Convention itself. 2 Dr. Hitesh neni for the re i : izations which maimain an office Bistration panics sin in fis mend Sash te Eup be Aion Intellectual Property Oratzaton (OAPD. The provisions cf gt 5) sal te bythe Regulations and Mode! International Forms, The Tae doc ot dat he see parts of trademark law covering the registration jy ‘marks. The Treaty entered into force on August 1, 1996. ‘THE PATENT LAW TREATY (PLT) oe ‘The Patent Law Treaty (PLT) was adopted on June 1, 2000 at a Diplomatic Conference in reat ie pupie ofthe PLT ise hamonie ead streamline forma Procedures in Tespect of national and regional patent applications and patents. With @ significant rexption for the fling date requirements, the PLT provides maxima: sets. of (i) at least one of the ‘Member States of the Organization is party to the Paris Convention or a ‘member State of WIPO; di) the organization has been duly authori to become to the ‘Treaty in accordance with its internal Procedures; = ii) the is competent to grant patents with effect for its — States, or it has own legislation binding on all its member NICE AGREEMENT CONCERNING THE INTERNATIONAL CLASSIFICATION OF GOODS AND SERVICES FOR THE PURPOSES OF THE Theta Clseion Une be Ne Agee compe eh Litt of Clases, accompanied, where apmopians So. eight classes of services” °PLNEONY notes; the lst an Alphabetical List of Goods ang Series Tefered to a th i List, ving the clas in whichenck es orservice is classified, = *® Alphabetical ice Classification exits in both English and French authentic texts, bial was er offical translations ofthe Clisifcation in Chinese, ee Danish, Dutch, Geman, Ilan, Jace, Lithuian, Maced Re San Portuguese, Russian, Slovene, Spanish and Swedish, Dr. Hitesh Kapoor PATENT COOPERATION TREATY (PCT) ‘As its name suggests, the Patent Cooperation Treaty is an agreement for international cooperation in the field of patents. It is often spoken of as being the most significant advance in intemational cooperation in this field since the adoption of the Paris Convention itself. It is however largely a treaty for rationalization and cooperation with regard to the filing, searching and examination of patent applications and the dissemination of the technical information contained therein. The PCT: does not provide for the grant of “intemational patents”: the task of and responsibility for granting patents remains exclusively in the hands of the Patent Offices of, or acting for, the countries where protection is sought (the “designated Offices"). The PCT does not compete with but, in fact, complements the Paris Convention, Indeed, it is @ special agreement under the Paris Convention open only to States which are already party to that Convention. THE BUDAPEST TREATY ON THE INTERNATIONAL RECOGNITION OF THE DEPOSIT OF MICROORGANISMS FOR THE PURPOSES OF PATENT PROCSDURE ‘The Budapest Treaty on the International Recognition of the Deposit of Microorganisms: for the Purposes of Patent Procedure (the Budapest Treaty), which is a special agreement under Axticle 19 of the Paris Convention, entered into force on August 9, 1980. The States party to the Treaty are listed in the appropriate document in the back flap of this volume. The main feature of the Treaty is that a Contracting State which allows or requires the deposit of microorganisms for the purposes of patent procedure must recognize, for such purposes, the deposit of a microorganism with any “intemational depositary authority” (Article 3(1)(@), irrespective of whether. such authority is on or outside the territory of the said State. In other words, one deposit, with one intemational depositary authority, will suffice for the purposes of patent procedure before the national Patent Offices (called “industrial property offices” in the Treaty) of all of the Contracting, States and before any regional Patent Office THE MADRID AGREEMENT CONCERNING THE INTERNATIONAL REGISTRATION OF MARKS AND THE PROTOCOL RELATING TO THAT AGREEMENT ‘The system of international registration of marks is governed by two treaties, the Madrid ‘Agreement Concerning the Intemational Registration of Marks, which dates from 1891, fand the Protocol Relating to the Madrid Agreement, which was adopted in 1989, entered into force on December 1, 1995, and came into operation on April 1, 1996, Common ‘Regulations under the Agreement and Protocol also came into force on that last date, The system is administered by the Intemational Bureau of WIPO, which maintains the International Register and publishes the WIPO ‘THE TRADEMARK LAW TREATY (TLT) ‘The Tredemark Law Treaty was adopted on October 27, 1994, at a Diplomatic Conference in Geneva. The purpose of the Trademark Law Treaty is to simplify and harmonize the administrative procedures in respect of national applications and the protection of marks. Individual countries may become party to the Treaty, #s well as 20 _— Dr. Hitesh iy intellectual property in the broadest, | treaties relating to intel : ff the lneaioat Convention forthe Fratton of Industrial Property, commonly og she Fors Convio, Fist signed in 188, te Paris Convention provide rm ie tents, industrial models and , trademarks, te ere eee nations such as China that are often cited publicly as poor enforcers of intellectua, Property rights ww provisions ofthe treaty relate tothe right of national treatment bed of pony ie nea anton Senna ae gr a individ Seeking a patent or trademark in another Convention country will not be discriminated penis an wil receive the same rights asa citizen ofthat country. The right of pricrty Provides an inventor one year from the date of filing a Patent application in his or her Rome Country (six months for a trademark or design application) the right to file an pplication in a foreign country. The legal, effective date of application in the foreign toe then retroactively the egal, “fective filing date in the home country, provided th: application is made within the protection period. Ifthe invention is made public prior {0 Eling the home country application, however, the right of priority in a foreign country is no longer applicable, The Paris Convention is supportec by a number of additional treaties that provide for Protection and registration of industrial property. Among the most important are the Madrid Agreement Concerning the Intemational Registration of Marks (1891), the Patent Cooperation Treaty (1970), and the Hague Apeemect Conceming the International Deposit of Industrial Designs (1925) BERNE CONVENTION. " : ion simil; se of the Paris Convention: 1) member states enforce ‘copyrights, originating in. = member states; 2) copyright protection is automatic sed in cne country is.independent of inimum period of prot tection expires), WIPO COPYRIGHT TREATY. Because older copyright conventions gaz? Ambiguous concerning ho are and electronic information would be protected, the Ga Organization Copyright Treaty was cmeaea eee cla the preg Property expressed via electronic media. This agreement was climinare nal loopholes and uncertainties regarding the protection of intellecteal creations on electronic media and their various modes of dissemination, including the Internet. As of 1999 the treaty was not yet in effect because it hadnt been ratified ty Sufficient number of countries, Dr. Hitesh Kapoor International Treaties and conventions ‘A major component of what many posit is the emerging knowledge economy, intellectual property consists of items that represent the expression of ideas or intellectual pursuits ~ and that are assigned certain rights of property. It is an intangible creation of the human mind usually expressed or translated into a tangible form. Examples of intellectual property include an author's copyright on a book or article, a distinctive logo design representing a soft drink company and its products, or @ patent on the process to ‘manufacture chewing gum. Intellectual property law covers the protection of copyrights, patents, trademarks, and trade secrets, as well as other legal areas such as unfair competition. Patents, trademarks, and similar business-oriented creations are sometimes known as industrial property. ‘The concept of intellectual property developed and evolved through its individual components. There is no history of intellectual property per se, but the history of trademarks, for example, extends back to the medieval period. The laws protecting intellectual property in the United States exist at both the state and federal level. State laws cover a broad spectrum of intellectual property fields from trade secrets to the right of publicity. Laws differ somewhat from state to state. At the federal level, th: Constitution and legislation cover patents, copyrights, and trademarks and related areas of unfair competition. USS. intellectual property laws were most recently modified through the Digital Millennium Copyright Act of 1998, which granted broader and more explicit protections to information on digital media, notably movies on digital versatile discs (DVD) and sound recordings. Greater protection of industrial designs was another provision of the legislation. The act also ratified the World Intellectual Property Organization (WIPO) Copyright Treaty and the WIPO Performances and Phonograms Treaty, two major Lew international treaties. INTERNATIONAL PROTECTION Intellectual property is recognized internationally through a system of treaties and intemational organizations. The most important organization is the World Intellectual Property Organization (WIPO), a special agency of the United Nations. Founded in 1967, the Geneve-based organization administers most of the current intemational treaties concerning intellectual property issues. The World Trade Organization, a trade dispute resolution and trade negotiation body founded in 1995, is also involved in certain intellectual property matters. PARIS CONVENTION. In the late 19th century, intellectual property protection at an international level became ‘an imyortant issue in trade and tari:f negotiations and has remained so ever since. One of 18 Dr. Hitesh tered / acquired the domai 1. circumstances indicating that the Registrant has registel q main primarily for a. selling, cache inant or titor for a profit. rise transferring it Complainant or its compet 2 ae ie ead the comin tame in order to prevent the owner of th trademark or serve mark from reflecting the matk in corresponding domain name 3. by using the domain name, the Registrant has intentionally attempted to attract Inteme users tothe Registrant's website or other on-line location. The basic procedure for the dispute resolution is: 1 1. The Complainant files the complaint with the .IN Registry and pays the relevant fees. The Complainant can ask for a. cancellation of the Registrant's domain name or b._ transfer of the domain name registration to the Complainant 2. The IN Registry appoints an Arbitrator out of the list of arbitrators maintained by it 3. The Arbitrator conducts the arbitration proceedings in accordance with the Arbitration & Conciliation -ct 1996 and the IDRP and IDRP Policy and Rules. The Registrant is required to submit to the mandatory arbitration proceeding, The Registrant cannot transfer a domain name registration to another holder: |. for 18 working days afer conclusion of the proceeding The pets Pending case unless the trmsferee agrees to be bound by the decisi The Registry reserves the Tight to cancel any transfer of a domain ine eine to aaother holder tha is made in voltion of this paragraph, Dr. Hitesh Kapoor - tion, A Ratio ‘al Informatics Centre is the registrar for gov.in doniains 3 Mane is the registrar for res.in and ac.in domains te eee of Defence is the registrar for mil.in domains “in” domain name disputes are resolved in accordance with the .IN Dispute Resolution Policy (INDRP) and the INDRP Rules of Procedure. The INDRP outlines: 1. the types of disputes that can be brought and 2. the criteria that will be considered by the arbitrators. The INDRP Rules of Procedure describe: 1. how to file a complaint, 2. how .o respond to a complaint, 3. the fees, 4. communications, and 5. other procedures. The .in Domain Name Dispute Resolution Policy The “.in Domain Name Dispute Resolution Policy” (INDRP) sets out the terms and conditions to resolve a dispute between the Registrant and the Complainant, arising out of the registration and use of a “.in” Internet Domain Name. Registrant is a holder of the .in Internet domain name. Complainant is the person who has complaint against the Registrant. Mlustration Sameer has booked the domain name “noodie.in”. Noodle Ltd files a coraplaint against Sameer to get the “noodle.in” domain transferred to its own name. | In this case, Sameer is the registrant while Noodle Ltd is the complainant. A complaint can be filed with the .IN Registry on the following grounds: 1. the Registrant's domain name is identical or confusingly similar to a name, trademark or service mark in which the Complainant has rights, 2. the Registrant has no rights or legitimate interests in respect of the domain rame, Simply put, the following circumstances demonstrate the Registrant's rights to or legitimate interests in the domain name: 1. Before any notice to the Registrant of the dispute, the Registrant uses or prepares to use the domain in connection with a bona fide offering of goods or services. 2. The Registrant (as an individual or organization) has been commonly known by the domain name, even if the Registrant has acquired no trademark or service mark rights. ‘The Registrant is making a legitimate non-commercial or fair use of the domain ‘name, without intent for commercial gain to misleadingly divert consumers or to tamish the trademark or service mark at issue. 4. The Registrant's domain name has been registered or is being used in bad faith. Simply put, the following circumstances are evidence of the registration and use of a domain name in bad faith: 16 Will UDRP dispute resolution stifle the internet? On the contrary, domain name registration procedures remain flexible and open to everyone. inc he numberof disputes -just under 2,000 cases were filed with WIPO by yearend 2000 - represent a mere fraction of the more than 33 million domain names in use on the Intemet today. With the siccess and reputation of WIPO's dispute resolution services, awareness is increasing among Internet users that abusive practices regarding domain names will no longer go uncontested, and that a quick and simple recourse exists. This helps assure a general relibility of domain names on the Intemet. ‘What is WIPO doing to further improve the reliability of domain nares? ‘The UDRP was originally designed for setlicg disputes in it generic top-level domains Such as com, .net, and org. However, some country code domain name registrars also fave started to adopt the UDRP 2r sialar policies, and WIPO has begun providing names (considering protection other than as a recogni already qualify under the - Y = Se) ade name, and names or acronyms of inteatinal Doman Name Disputes in India India’s top level domain is “in”, The sunrise period for the “in” Ains we January, 2005 to 21st January, 2008. During this period oun of regina tien trademarks or service marks were given an opportunity to apply for “in” domains, The booking was opened to the public from 16th February, 2005, i INRegistry is the official “in” registry. INRegistry is operated under the authority of is a not-for-profit company registered INRegistry has the following responsibilit 1. maintaining the “in” top level domain 2. ensuring the operational stability, reliability, and security of “in” 3. implementing Government of India policies INRegistry took over its role from National Centre for Software Technology (NCST) and Centre for Development of Advanced Computing (C-DAC). End users cannot register in” domains from INRegistry. Registrations ar handled by INRegistry accredited reg lowing are the registrars for specific domains: 15 Dr. Hitesh Kapoor would most likely be too diverse. What was needed were intemationally uniform and ‘ndatory procedures to deal with what are frequently cross-borer disputes. With the support of its member States, WIPO - which is mandated to promo te protection of intellectual property worldwide - conducted extensive ‘consultations with ote he Intemet community azound the world, afer which it prepared a4 raed o report conaining recommendations dealing wit domain name isset Hest career recommendations, ICANN adopted the Unifomm Dorin Nan Dispat Resolution Policy (UDRP). The "UDRP went into effect on. ‘December 1, 1999, for all ICANN-accredited registrars of Internet domain names. ‘Under the UDRP, WIPO is the leading ICANN-accredited domain name dispute resolution service providers. As of the end of 2000, some 65 percent (about 1,850) of all TE Feder the UDRP vere filed with WIPO. Additionally, « growing nomPet Gt registers of country code top-level domsins have designated ‘WIPO as a dispute resolution service provider. How cloes the UDRP work? ‘The UDRP permits complainants to file a case wit a resolution service provider, specifying: + the domain name in question, 2 the respondent of holder ofthe domain name, ‘© the registrar with whom the domain name was registered, + the grounds for the ‘complaint. uci grounds include, as their central criteria, the way in which the domain Eis is Such, Bo nila (0 8 trademark to Which the complainant bas sighs: why ¢ ‘espondent should be considered as having no rights or legitimate imerc’s in respect of ‘Fer domain name that isthe subject ofthe complaint; and why the domain name should be considered as having been registered and used in bad faith. Who makes the decisions and hew does WIPO ensure that there Is no conflict of Interest? “Taking into account the specific circumstances ofeach dispute, such as the national) of Teta om WIPO appoints an expert "neutral" or panelist (rom a roster of some 200 ioe Peron individuals qualified for deciding such cases) to review the dispute and iste 4 ein ier pny 10 he dpa may Of ‘to have one or three panelists assigned to case, Panelists must confirm to WIPO the absence of any potential conflict of interest before taking a case, as well as disclose in « written stutement any and all facts that should be considered prior to appointment. In the even’ that one of the parties involved in # case faites a specific objection to a panelist, WIPO will consider offering «replacement: What is a domain name? A domain name js the Address of a web site that is intended to be What is the nature of the disputes? Domain name dispites ari se largely from the practice of cybersquatting, which involves the ‘pre-emptive registration of by third parties as domain names Cybersquatters exploit the Erst-come, first-served nature of the demay, ame registration Estem to register names of oF deaeecPle oF businesses with which thes pensive nestion. Since registration or domain names is relatively simple ek saep tsi «less than US$100 fe ee cases - eybersquaters often register Such names as domain names. oe lematic names. The aging eistrations to stimulate busi Tans involved in determining he holds the rights to a mes Fainciple of freedom of expression Furthermore, the i Tiga, 20 the Intemet has led to mone yb litigation between the eybess ‘duatters and the businesces or j been registered in bad faith, 13 Dr. Hitesh Kapoor BUSINESS SOFTWARE PATENTS In history of inventions relating to business methods fled i pegating the invention was lack of industri) applications which is one of the major 2eeedon to qualify as an invention and consideration ‘same in non-patentable being business method may be considered only if the subject is first found to be invention Invasion fe defined under Section 2(1)G) of the Indian Patents Act 1970 and reads as low: sjnvention” means # new product or process involving a inventive step and capable of industrial application.” tn Meti's Application (BL 0/153/92), where an application relating t0 scheme for ts Mets Aplin so eee cra phen as Mls © casa eT aplicbiity and also to be « method for doing ‘business. tn Joba Lahiri Khan's Application (BL 0356/06) 8 ‘method for effecting introductions vo ve view to making ffiends was held not t0 be ‘adustrially applicable, even though it vt 2 ea ged out by comercial enterprise, It was also found to be non-patentable as ‘a method of doing business. Capable of industrial applicasion” is defined wnder ‘section 2(1 ae) of the Indian Patents ‘Act, 1970 and reads as follow:- * Capable of industrial application’, in relation to #8 invention, means that the invention is capable of being made or used in an industry. ' tn re: Bernard Blski, US Federal Court of appeal in its judgement dated October 30, hos upheld that business methods cannot be patented. The ‘court observed that the sole analysis for determining whether an invention is patentable should be the “machine-or a set" Le, requiring involvement of a machine (Ke 1 use of computer ‘ogra produc) or transforming an article (or details refer to cate aw). Though there ae no specie, guidelines in propose dat mana treat crrcraonspenaining 1 business methods, the requirement for PEA lity asin case of comput gan Hs ar matbods becomes of eet sgnifance and ould ‘referee bsness method pe se my aot bo paenble but itech! implaion ‘cau be a subject matter of patentable invention. 2 The Grey Arvas of the IT Act The IT Act, 2000s likely fo cause & cont of juin teh As, 2000 doll Flecttonié commerce is based on the system of Cres hating even touch the issues relating to domain names. Even domain mace on ‘efined and the rights end liabilities of domain name owners do not find any mention in ‘the law : : The IT Act, 2000 des not deal with any issues coneeming the protection of Intellectual Property Rights I the context of th: online environment. Contentious yet very important issues conceming online copyrights, trademarks and patents have been left untouched by the law, thereby leaving many loopholes. 4. As the cyber law is growing, so are the new forms and manifestations of cyber crimes. The offences defined in the IT Act, 2000 are by no means exhaustive. However, the drafting ofthe relevant provisions of the IT Act, 2000 makes it appear as if the offences detailed therein are the only cyber offences possible and existing. The IT Act, 2000 does not cove various kinds of cyber erimes and Internet related crimes. ‘These Include:- 8) Theft of Internet hours b) Cyber theft €) Cyber stalking d) Cyber harassment «) Cyber defamation 1) Cybe: fraud 2) Misuse of ereit card numbers +) Chatroom abuse The IT Act, 2000 has not tackled several vital issues pertain, The Ir g to e-commerce sphere $k pray and ement regulon name a fe. Privacy sues have not been ‘oucbed all trey area ofthe IT Acti thatthe same does not touch upon aust issues. 7. The most serous concem about the Indian Cyber law relates to ie ‘implementation. The IT Act, 2000 does not lay dow parameters for is implemestation Also, when intemet penetration in India is extremely low and ice whe government and A seen ool prom a at «questions than it answers. It seems thatthe Parliament would be teqelred to anes ‘Act, 2000 to remove the grey areas iy n Dr. Hitesh Kapoor What is a domain name? ‘A domain name isthe address of web site that is intended toe & ily identifiable and easy to remember, such as yahoo.com, ot wipa in. These user-friendly addresses for Srebsites help connect computers - ound people - On, ‘the Internet. Because they are easy to remember and use, domain names have become busines: identifiers and, increasingly, ‘even trademarks thems yelves, such as amazon.com. By using existing trademarks for Sree invnames - sony.com, for example - businesses afract potential customers to their websites. What Is the nature of the disputes? Domain name disputes arise largely fom the practice of eybersquatting, which involves the pre-emptive registration of trademarks by third parties os domain names. Cybersquaters exploit the first-come, first-served nate of the domain name registration system to register names of trademarks, famous people or businesses ‘with which they system to Joetction, ‘Since registration of domain, nares © relatively simple and inexpensive - less than USS100 in most cases - ‘cybersquatters often register of such nanies as domain names. ‘As the holders of these registrations, cybersquatiers © fos auction, or offer them for sale directly to the compen fr pavond the cost of registration. Alternatively, they o fhe good name of the person or businest associated ‘with that domain name to attract ‘business for their own sites. Why so many disputes? “There is no agreement within the Internet community tat ‘would allow organizationsthat register domain names to pre-soreen the filing of potently problematic names. The ‘eons vary, raging om aoning easy regions t cine pans ra al dates involved in deteining who bods the Ge 0 Pane of freedom of expression. Furthermore, the increasiag business value of domain ‘ames go the Intemet has led to more cybersauatings ‘which results in more disputes and between the. cybersquatters ‘and the businesses or individuals whose names have How did WIPO get Involved In the resolution of disputes? ‘The Internet grew rapidly over the last decade as @ it The Inte place to do business, although no international cea standards existed to resolve domain name disputes, The aa Corporation for Assigned ‘Names and Numbers (ICANN), the organization responsible for, among othe things ‘management of the generic top level domains such as com, .02t ae ee ined of a solutien o the dispute resolution problem. The process 1g 2 new international treaty was considered too slow, and new national laws 3B i Dr. Hitesh Kap, ‘would most likely be too diverse, What was needed were eta uniform ang Tandatory procedures to deal with what are frequently cross-border dispt With the support of its member States, WIPO - which is mandated to oe the! Protsrtion of intellectual property worldwide - conducted extensive consultations with members of the Intemet community around the world, after which it prepared and Published a report containing recommendations dealing with domain name issues. Based on the report's recommendations, ICANN adopted che Uniform Domain Name Dispute Resolution Policy (UDRP). The UDRP went into effect on December 1, 1999, forall ICANN-accredited registrars of Internet domain names. Under the UDRP, WIPO is the leading ICANN-accredited domain name dispute resolution service providers. As of the end of 2000, some 65-percent (about 1,850) of all the cases fled under the UDRP were filed with ‘WIPO. Additionally, a growing number of registrars of country code top-level domains have designated WIPO as a dispute resolution service provider How does the UDRP work? The UDRP permits complainant to fle a case with a resolution service provider, specifyin. the domain name in question, the respondent or holder ofthe domain name, the registrar with whom the domain name was registered, the grounds for the complaint Who makes the decisions and how does WIPO ‘ensure that there Is no conflict of interest? Taking into account the specie circumstances of each dp, suchas the nationality of the paris, WIPO appoints an expert "neutal’ or panelist (fom a roster of some Sn independent individuals qualified fr deciding such cases) to review the diapute sad ine 8 decision. Ether party tothe dispute may opt to have one o thee panelists asigned the case. : Panelists must confi to WIPO the absence of any poteatal conflict of interest before ‘aking a case as well as disclose ina written statement any and all facts that should be consiered prior to appointment. Inthe event that one of the parties involved in cae raises a specific objection to panels, WIPO will consider offering a teplacemens 4 Dr. Hitesh Kapoor Will UDRP dispute resolution stifle the Internet? On the contrary, domain name registration procedures remain flexible and open to everyone. In fact, the number of disputes - just under 2,000 cases were-filed with WTPO ‘by year-end 2000 - represent a mere fraction of the more than 33 million domain nares in use on the Internet today. With the success and reputation of WIPO's dispute resolution services, awareness is increasing among Internet users that abusive practices regarding domain names will no longer go uncontested, and that a quick and simple recourse exists, This helps assure a general reliability of domain names on the Internet. What is WIPO doing to further improve the reliability of domain names? ‘The UDRP was originally designed for settling disputes in generic top-level domains such as .com, .net, and .org. However, some country code domain name registrars also ‘have started to adopt the UDRP or similar policies, and WIPO has begun providing dispute resolution services for country code top-level domains - for example, .VE for Venesuela and TV for Tuvalu - further inereesing reliability among domain names on ‘the Internet. WIPO is now addressing the question of protection for identifiers other than trademarks, such as geographical indications - for wine-producing regions, for example -personal ‘names (considering protection other than as a recognized trademark, for which they may already qualify under the UDRP), trade names, and names or acronyms of international intergoyeramental organizations. Domain Name Disputes in India India’s top level domain is “in”. The sunrise period for the “.in” domains was from Ist January, 2005 to 2ist January, 2005. During this period owners of registered Iidisi’ trademarks or service marks were given an opportunity to apply for “.in” domains, The ‘booking was opened to the public from 16th February, 2005, INRegistry is the official “in” registry. INRegistry is operated under the authority of NIXI (Netional Internet eXchange of India) NDA is a not-for-profit company registered under section 25 of the Indian Companies Act. NIXI has been set up to facilitete improved Intemet services in India. INRegistry has the following responsibilities: 1. maintaining the “in” top level domain 2. ensuring the operational stability, reliability, and security of “.in” 3. implementing Government of India policies INRegistry took over its role from National Centre for Software Technology (NCST) and Centre for Development of Advanced Computing (C-DAC). End users cannot veut fn” domains from INRegistry. Registrati 4 : ie istry. Registrations ar handled by INRegistry accredited ‘The following are the registrars for specific domains: 15 Dr. Hitesh Kapog, : domains 1, National Informatics Centre is the registrar es 2. ERNE isthe registrar fr resin and acin doo 3, try of Defence is the registrar for mil 7 on “Jin” domain name disputes are resolved in acc INDRP Rules of Procedure. Dispute Resolution Policy (INDRP) and the The INDRP outlines: 1. the types of disputes that can be brought and. J Meet of a a i ‘The INDRP Rules of Procedure describe: 1. how to file a complaint, 2. how to respond to a conuplaint, 3. the fees, 4, communications, and 5. other procedures, Domain Name Dispute Resolution Policy in Domtain Name Dispute Resolution Policy” (INDRP) sets out the terms and conditions to resolve a dispute between the Registrant and the Complainant, arising out of the registration and use of a “.in” Intemet Domain Name. Registrant is a holder of the .in lutemnet domain name. Complainant is the person who has complaint against the Registrant. Mlustration Sameer has booked the domain name “noodle.in”. Noodle Ltd files a complaint against Sameer to get the “noodle.in” domain transferred to its own name. In this case, Sameer is the registrant while Noodle Ltd is the complainant. A complaint can be filed with the .IN Registry on the following grounds: 1, the Registrant's domain name is identical or confusingly similar to a name, ‘uademark or service mark in which the Complainant has rights, 2. the Registrant has no rights or legitimate interests in respect of the domain name, Simply put, the following circumstances demonstrate the Registrant's ri Tegitimate interests in the domain name: Hed) 1 Before any notice to the Registrant of the dispute, the Registra ant Prepares to use the domain in connection with a bona fide offering of goods or sore 2. The Registrant (as an individual or organization) has been commonly knowa by the domain name, even if the Registrant has acquired no trademark or serv, smatk rights. 3, The Registrant is making a legiimate non-commercial or far use of the domain name, without intent for commercial gain to misleadingly divert consumers erg tarnish the trademark or service mark at issue. - 4. The Registram's domain name has been registered or is being used in bad faith, Simply put, the following circumstances are evidence of the registration and use of a domain name in bad faith: 16 Dr. Hitesh Kapoor 1. circumstances indicating that the Registrant has registered / acquired the domais sae primarily for a selling, ‘renting, or otherwise transferring it to the Complainant or its competitor for 2. the Registrant has registered the domain name in order to pr .e owner of the trademark or service mark from reflecting the mark ina correspon»: domain name 3 by using the domain name, the Registrant has intentionally att-zipid to attract Internet users to the Registrant's website or other on-line Location. ‘The basic procedure for the dispute resolution is: + eric Complainant files the complaint with the IN Registry and pay’ the relevant fees. The Complainant can ask for ‘a. cancellation of the Registrant's domain name or . transfer of the domain name registration to the Complainant 2, ‘The IN Registry appoints an Arbitrator out ofthe list of arbitrators maintained byit 3, The Arbitrator conducts the arbitration proceedings in accordance with the ‘Arbitration & Conciliation Act 1996 and the IDRP and IDRP Policy and Rules. ‘The Registrant is required to submit to the mandatory orbitration proceeding. “Tee Redjstant cannot transfer a domain name registration t another holder: Tfor 1g working days after conclusion of the proceeding 2 during a pending ease ualess the tra.eferee agrees to be bound by the decision. “The Regity reserves the right to cancel any tansfer of a domiin name registration to another holder tat is made in violation of this paragraph. aoe pitator decides on the complaint. All decisions under tis Policy are published $i Gren the Internet An Arbitration Panel can decide in exceptional eases to edit portions of ts decision. Dr. Hitesh Kapoop International Treaties and conventions i , intl ‘A major component of what many posit is the emerging evi eal oan property consists of items that represent the expression of ideas oF Mt Oty Tid tint are asegyed certain rights of property. It isan intangible creation ofthe human mind usually expressed or translated into a tangible form. Examples of intel let property include an author's copyright on a book or article, a distinctive logo design representing a soft drink company and its products, or a patent on the process to manufacture chewing gum. Intellectual property law covers the protection of copyrights, Patents, trademarks, and trade secrets, as well as other legal areas ‘such as unfa ir ‘competition. Patents, trademarks, and similar business-oriented creations are sometimes known as industrial property. The concept of intelleciual property developed and evolved through its individual components. There is no history of intellectual property per se, but the history, of ‘trademarks, for example, extends back to the medieval period. “Ths lnm potting ses] pfcy ate United Be exit bth am fd federal level. State laws cover a broad spectrum of intellectual property fields from trade secrets to the right of publicity. Laws differ somewhat from state to state, At the federal level, the Constitution and legislation cover patents, copyrights, and trademarks and relaied areas of unfair competition. USS. intellectual property laws were most recently modified through the Digital Millennium Copyright Act of 1998, which granted broader and more explicit protections to information on digital media, notably movies on digital versatile discs (DVD) and sound recordings. Greater protection of industrial designs was another provision of the legislation. The act also ratified the World Intellectual Property Organization (WIPO) Copyright Treaty and the WIPO Performances and Phonograms Treaty, two major new internatiocsal treaties. INTERNATIONAL PROTECTION Intellectual property is recognized intemationally through a system of treaties and international organizations. The most important organization is the World Intellsctual Property Organization (WIPO), a special agency ofthe United Nations. Founded in 1957, the Geneva-based organization administers most of the current intemational treaties conceming intellectual property issues. The World Trade Orgenizaton, a trade dispute resolution and trade negotiation body founded in 1995, is also involved in cevaig intellectual property matters. PARIS CONVENTION. In the late 19th cetitury, intellectual property protecticn at an intemational level became ‘an important issue in trade and tariff negotiations and has remained so ever since. One of 18 Dr. Hitesh Kapoor the first international treaties relating to intellectual property in the broadest sense was: the Intemational Convention for the Protection of Industrial Property, commonly known: ‘as the Paris Convention. First signed in 1883, the Paris Convention provided protection for such properties as fpatents, industrial models and designs, trademarks, and trade/ names(As of 1998, 151 countries had signed the Paris Convention, including several nations such as China that are often cited publicly as poor enforcers of intellectual property rights.) ‘Two of the most important provisions of the treaty relate to the right of national treatment and the right of priority. The right of national treatment ensures that those individuals seeking a patent or trademark in another Convention country will not be discriminated ‘against and will receive the same rights as a citizen of that country. The right of priority provides an inventor one year from the dete of filing a patent application in his or her home country (six months for a trademark or design application) the right to file

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