UNIT - V

KILLI
SRINIVAS
M.SC, M.TECH, [PH.D]

SSIT, IST, JNTUK

SYLLABUS

• New Developments in IPR:

• Administration of Patent System
• New developments in IPR
• IPR of Biological Systems, Computer Software
• IPR and IITs
• Traditional Knowledge Case Studies
New developments in IPR
New developments in IPR

• India has a well-established judicial system to work

out an effective intellectual property (IP) ecosystem
• The government has taken several initiatives to
create awareness and inculcate a culture of
innovation in India.
• The IP offices have been radically transformed
through numerous initiatives, which have
contributed tremendously to the understanding of IP
and easing the patenting system to make it more
user-friendly.
New developments in IPR

• One of the significant achievements has been to conduct various awareness

programmes to make IP-related issues understandable, and imparting knowledge
to various sectors including universities, industries and the general public.
• The collaborations among the Indian Patent Office and industry associations like
the
• Federation of Indian Chambers of Commerce & Industry (FICCI),
• Confederation of Indian Industry (CII),
• Associated Chambers of Commerce & Industry of India (ASSOCHAM)
• PHD Chamber of Commerce & Industry (PHDCCI) to conduct awareness
programmes and raising awareness levels of the public have been noteworthy in
augmenting the IP ecosystem.
• In this regard, the Modernization and Strengthening of Intellectual Property Office
(MSIPO) scheme has been floated by the Department of Industrial Policy and
Promotion (DIPP).
New developments in IPR

• To further enable the participation and utilization of the IP

ecosystem, especially by small players like startups, the DIPP
redefined the criteria for companies to qualify as a "startup",
effective from 1 December 2017.
• The new definition even clarified the inclusion of foreign startups,
and also increased the tenure of startups from five to seven years
from the date of incorporation.
• The DIPP also considered the difficulties associated with biotech
startups and increased the tenure to 10 years from the date of
incorporation to avail startup facilities.
• Startups can avail various benefits under the patent regime, such
as fast-track examination and a considerably reduced fee.
New developments in IPR

• To develop the culture of innovation, initiatives have been taken at

the international levels as well by the government of India.
• The DIPP and World Intellectual Property Organization (WIPO)
have signed an agreement to establish Technology and Innovation
Support Centres (TISCs) in India.
• The TISC programme provides innovators in developing countries
access to locally based, high-quality technology information and
related services, helping them to exploit their innovative potential
and create, protect, and manage their IP Rights.
• TISCs provide a number of services including access to online
patent and non-patent resources and IP-related publications,
assistance in searching and retrieving technology information,
training in the database search, on-demand search, monitoring
technology and competitors, basic information on industry laws,
property laws, management and strategy, technology
commercialization and marketing.
New developments in IPR

• At present, there are two more TISCs –

• Centre for Intellectual Property Rights, Anna University at Chennai in
Tamil Nadu
• Intellectual Property Facilitation Centre, National Research
Development Corporation at Vishakhapatnam in Andhra Pradesh.
• The Patent Office has also been developing examination
guidelines in different technology areas, and, based on the
stakeholder's feedback, revised the guidelines for computer-
related inventions in June 2017.
• The revised guidelines were significant for patent applicants
since the revision involved the removal of the requirement
that software patents can be claimed only in conjunction
with novel hardware.
New developments in IPR

• Recent developments in the field of patent law have been

diversified in nature in India.
• The Indian patent system is continually evolving to provide
seamless services to its users by utilizing and implementing digital
technology.
• Significant efforts like reduced examination timelines and other
improvement steps such as an efficient filing system for applicants
show the patent system is improving in relation to both
prosecution and enforcement.
• As the patent office is also trying to simplify and clarify various
procedures, this is an exciting time to witness the many more
significant and positive developments in the near future for the
Indian IP ecosystem.
IPR of Biological Systems

• The IPR protection of new life forms raises a number of

difficult technical and ethical issues that do not apply to
other inventions. For that reason, the patentability of new
biological forms and processes is still not accepted in many
countries.
• Consequently, no final agreement could be reached during
the TRIPS negotiations on how to tackle this complex
subject.
• TRIPS : Trade Related aspects of Intellectual Property Rights
The Patent Act and Biological innovations

• Australian IPR protection of new life forms exceeds the current

requirements of TRIPS.
• Under the Patents Act 1990, patenting of biotechnology inventions
is allowed.
• A patent can cover the method for creating the new life form, the
life form itself and the production of substances using the new life
form.
• The issue of whether genes and life forms should be excluded
from the patent system was considered during the parliamentary
debate of the legislation in 1989.
• The result of the debate was a single exclusion - human beings
and biological processes for their generation are not patentable.
The Patent Act and Biological innovations

• The biological patent application must meet all the usual

requirements for patentability, that is novelty, inventiveness and
appropriate description.
• In addition, a biological invention must be repeatable, a criterion
that need not be considered for non-biological inventions.
• The requirement for repeatability rules out traditional methods for
creating new life forms through selective breeding or hybridisation.
• It also excludes some modern techniques such as mutation by
means of radioactive irradiation.
• However, with techniques based on genetic manipulations, it is
possible to obtain repeatable outcomes, at least for a fraction of
the population being bred.
• Hence the patentability of new life forms is restricted almost
exclusively to the field of genetic engineering.
The Patent Act and Biological innovations

• IPR protection of biotech innovations is so controversial. First, there are

ethical issues concerning the creation of new life forms. While this is a
legitimate concern, one should not lose sight of the fact that human
societies have been creating new life forms through selective breeding and
hybridisation of plants and animals for thousands of years. The social
acceptability of new life forms is a moral issue well beyond the realm of
IPR protection.
• The protection of new plant varieties was first introduced in the United
States in 1930. It was adopted later in Western Europe and was
harmonised following the establishment of the International Union for the
Protection of New Varieties of Plants (UPOV) in 1961. UPOV is an
organisation largely independent of WIPO. The UPOV Convention has
been revised several times since 1961.
• in Australia patent protection can be taken out for a new plant variety
created by genetic engineering, an option that is not available in many
countries. In many cases plant breeders' rights offer a weaker protection
than biological patents, because the protection does not extend to new
genes or to the process of creating the new plant variety.
The Patent Act and Biological innovations

• IPR protection of biotech innovations is so controversial.

• First, there are ethical issues concerning the creation of new life
forms. While this is a legitimate concern, one should not lose sight
of the fact that human societies have been creating new life forms
through selective breeding and hybridisation of plants and animals
for thousands of years. The social acceptability of new life forms is
a moral issue well beyond the realm of IPR protection.
• The protection of new plant varieties was first introduced in the
United States in 1930. It was adopted later in Western Europe and
was harmonised following the establishment of the International
Union for the Protection of New Varieties of Plants (UPOV) in 1961.
UPOV is an organisation largely independent of WIPO. The UPOV
Convention has been revised several times since 1961.
The Patent Act and Biological innovations

• A frequently raised question in relation to biotechnological

research is whether the new life form, or an organic
substance derived from the new life form, is a scientific
discovery or a technological invention.
• Patents are not supposed to cover scientific discoveries,
only inventions.
• Many products of recombinant DNA are more a result of
luck and patience than of original thinking. Much work in
genetic engineering involves inserting and recombining genes
using established techniques.
The Patent Act and Biological innovations

• The present version of TRIPS allows members to exclude

from patent protection:
• plants and animals other than micro-organisms;
• essentially biological processes for the production of plants or animals
other than microbiological processes.
• However, TRIPS stipulates that protection must be available
for new plant varieties (including seeds), though this does not
have to be necessarily by patents.
• TRIPS already covers most of the field of genetic engineering
related to pharmaceuticals.
• Ex. development of new proteins for pharmacological use (such as
new vaccines, blood clotting agents, hormones and other therapeutic
substances)
The Patent Act and Biological innovations

• Europeans seem to be still struggling with the issue of patenting

biotechnology.
• Europe establishes plant and animal inventions as patentable,
provided the technical feasibility of the invention is not confined to
a particular plant or animal variety.
• This implies a patent on the process of creating the new life form,
rather than patenting the new animal or plant variety itself.
• In Australia, patent protection can be taken out for a new plant
variety created by genetic engineering, an option that is not
available in many countries.
• In many cases plant breeders' rights offer a weaker protection than
biological patents, because the protection does not extend to new
genes or to the process of creating the new plant variety.
IPR of Computer Software

• SOFTWARE PATENTS
• Operating Systems
• File Systems Graphics and Windowing Systems
• Compilers and Simulators
• Cryptography and data compression
• Multimedia Word processors, Spreadsheets
• micro-blogging patents
• audio-video patents
• Webpage and web service patents
• XML patents
• Image processing patents
Software Patents

• Patent on any performance of a computer realized by means

of a computer program.
• Patents granted to software programming techniques and
computer-implemented inventions are generally grouped
under the term software patents.
• Only from 1981 in US software patents were allowed.
• The patent was granted on August 17, 1966 in British for "A
Computer Arranged for the Automatic Solution of Linear
Programming Problems"
• (efficient memory management for the simplex algorithm)
FIRST SOFTWARE PATENT
 SOFTWARE :
INDIAN PATENT SCENARIO AND ISSUES

• Section: 3(k) a mathematical or business method or a

computer program per se or algorithms;
• 3(m) a mere scheme or rule or method of performing
mental act or method of playing game;
• Software is different from other engineering and
mechanical inventions.
• Software technology is evolving much faster than other
industries, the period of protection is longer.
• Softwares are intangibles and not protected by patents
Software copyright law in India

• India has one of the most modern copyright protection laws

in the world.
• Major changes to Indian Copyright Law introduced in June
1994 include :
• the definition of computer program
• explains the rights of copyright holder
• position on rentals of software
• the rights of the user to make backup copies
• punishment and fines on infringement
Rights under copy right protection

• To reproduce the work in any material form including the storing

of it in any medium by electronic means;
• To issue copies of the work to the public not being copies already
in circulation;
• To perform the work in public, or communicate it to the public;
• To make any cinematographic film or sound recording in respect of
the work;
• To make any translation of the work;
• To make any adaptation of the work;
• To do, in relation to a translation or an adaptation of the work any
of the acts specified in relation to the work in the above;
• To sell or give on commercial rental or offer for sale or for
commercial rental any copy of the computer program.
Patents v/s Copyright in software patents

• Patent protection is much stronger whereas copyright

protection is longer.
• Patent law protects the functional elements. Copyright
protects the form in i.e. originality of expression
• In case of patents if different code achieve same function
then it violates patent law.
• Copyrights become effective the moment they are published
whereas patents need to be registered.
• Copyrights last for authors’ life plus 60 years whereas
patents are granted for a period of 20 years in India.
Patents v/s Copyright in software patents

• No need to patent the same inventive concept for every invention,

patenting once is enough. Whereas, copyright protection is
effective for that creation only and needs registration/
publishment for all the other creations even though with same
concept.
• Patents provide much stronger protection to software.
• Development of software using known algorithm or logic but using
different language is a patent violation but not a copyright
violation.
• Under copyright laws, protection is available only to the form or
expression of an idea and not to the idea itself.
• Algorithms are mere ideas and cannot be protected under the
copyright law.
COMPUTER AIDED INVENTIONS/ FIELDS

• e-commerce, e-gambling, e-banking, e-money, e-

publishing
• Computer aided design, computer aided
management, computer aided monitoring, computer
aided education, computer aided manufacturing
IPR & IITs

• The Ministry of Human Resource Development Under the

scheme of Intellectual Property Education, Research and
Public Outreach (IPERPO) has so far set up 18 IPR Chairs in
various universities and institutes considering their potential
for development and growth of IPR Education, Research and
Training.
• Out of 18 IPR Chairs set up so far
• five IPR Chairs are in Universities
• five IPR Chairs are in IITs
• five IPR Chairs are in National Law Universities and
• three IPR chairs in IIMs
• Kolkata, Bangalore and Ahmadabad
Universities

• 1. University of Delhi

• 2. University of Madras

• 3. Cochin University of Science and Technology (CUSAT), Cochin

• 4. Jawaharlal Nehru University (JNU), Delhi

• 5. Delhi School of Economics, DU, Delhi

I I Ts

• 1. Indian Institute of Technology (IIT), Kanpur

• 2. Indian Institute of Technology (IIT), Kharagpur

• 3. Indian Institute of Technology (IIT), Bombay

• 4. Indian Institute of Technology (IIT), Madras

• 5. Indian Institute of Technology (IIT), Delhi

National Law Universities

• 1. NALSAR University of Law, Hyderabad

• 2. National Law University (NLU), Jodhpur

• 3. National Law University (NLU), Bhopal

• 4. West Bengal National University of Judicial Sciences

(WANUJS), Kolkata
• 5. National Law School of India University (NLSIU), Bangalore
I I Ms

• 1. Indian Institute of Management (IIM), Ahmadabad

• 2. Indian Institute of Management (IIM), Kolkata

• 3. Indian Institute of Management (IIM), Bangalore

TRADITIONAL KNOWLEDGE

• Traditional knowledge refers to the knowledge, innovations and

practices of indigenous and local communities around the world.
• Developed from experience gained over the centuries and adapted to
the local culture and environment, traditional knowledge is
transmitted orally from generation to generation.
• It tends to be collectively owned and takes the form of stories, songs,
folklore, proverbs, cultural values, beliefs, rituals, community laws,
local language, and agricultural practices, including the
development of plant species and animal breeds.
• Sometimes it is referred to as an oral traditional for it is practiced,
sung, danced, painted, carved, chanted and performed down
through millennia.
• Traditional knowledge is mainly of a practical nature, particularly in
such fields as agriculture, fisheries, health, horticulture, forestry
and environmental management in general.
TRADITIONAL KNOWLEDGE

• Innovations based on TK may benefit from patent,

trademark, and geographical indication protection, or be
protected as a trade secret or confidential information.
However, traditional knowledge as such - knowledge that has
ancient roots and is often oral - is not protected by
conventional intellectual property (IP) systems.
• While the policy issues concerning TK are broad and diverse,
the IP issues break down into two key themes:
• Defensive protection
• Positive protection
TRADITIONAL KNOWLEDGE

• Defensive Protection aims to stop people outside the community

from acquiring intellectual property rights over traditional
knowledge.

• India, for example, has compiled a searchable database of

traditional medicine that can be used as evidence of prior art by
patent examiners when assessing patent applications.

• Defensive strategies might also be used to protect sacred cultural

manifestations, such as sacred symbols or words from being
registered as trade marks
TRADITIONAL KNOWLEDGE

• Positive Protection under which there is granting of rights

that empower communities to promote their traditional
knowledge, control its uses and benefit from its commercial
exploitation.

• Some uses of traditional knowledge can be protected through

the existing intellectual property system, and a number of
countries have also developed specific legislation
India—An overview of wealth

• India is a mega diverse country with only 2.4% of the world’s

land area, harbours 7-8% of all recorded species, including
over 45,000 species of plants and 91,000 species of animals.
• Of the 34 global biodiversity hotspots, four are present in
India, represented by the Himalaya, the Western Ghats, the
North-East, and the Nicobar Islands.
• Further, India is the largest producer of medicinal plants and
the traditional medicinal systems found under Ayurveda,
Siddha and Unani, are concepts that were developed
between 2500 and 500 BC in India.
The Neem case

• The company was granted a patent in the United States and the European Union, for a
formulation that held in the stable storage of azadirachtin, the active ingredient in the
neem plant; it planned to use azadirachtin for its pesticidal properties.
• Traditional systems of medicine like Ayurveda and Unani, identify antiviral and antibacterial
properties of the neem tree also known as the “curer of all ailments” in Sanskrit, and
prescribe the same for treating skin diseases and as a natural pesticide.
• The applicant admitted in the patent application of how the pesticidal uses of neem were
known and pointed out to the fact that storing azadirachtin for a longer duration is difficult.
• The US patent granted, covered a limited invention whereby the applicant was only given
the exclusive right to use azadirachtin in the particular storage solution described in the
patent.
• The grant of the patent was followed by an uproar and it was challenged through re-
examination and post-grant opposition proceedings before the United States Patent and
Trade Mark Office (USPTO) and the European Patent Office (EPO), respectively.
• Though there was no success at the USPTO, the European Patent Office ruled in favour of
the opposition stating the patent granted, lacked in novelty and inventive step.
The Turmeric case

• As the USPTO and EPO were dealing with the Neem case, a similar
matter was boiling; a patent was granted for “use of turmeric in
wound healing” and claimed a method to heal wounds in a patient
by administration of an “effective amount” of turmeric.
• A re-examination application was filed against the granted patent,
along with nearly two dozen references, which resulted into early
success.
• The inventors’ defence was proven weak in front of the modern
commentaries on classic ayurvedic texts, extracts from
Compendium of Indian Medicinal Plants and nineteenth century
historical texts from the library of Hamdard University,
resultantly in August 1997, the USPTO ordered revocation of the
patent, which lacked novelty.
The Basmati case

• Another case that created much havoc was a patent granted by the USPTO to
an American company called RiceTec for “Basmati rice lines and grains”.
• Basmati rice is a traditionally grown aromatic variety of rice, in India. The
grant of this patent created multitude IP issues besides that under the patent
law i.e. under trade marks and geographical indications.
• RiceTec had been granted patent for the invention of hybrid rice lines that
combined desirable grain traits of Basmati rice with desirable plant traits;
this was due to the inferior quality of Basmati rice that grew in US in
comparison to the good quality Basmati rice being cultivated in northern
India and would help in growing a better crop of Basmati rice in the western
hemisphere, especially US.
• A re-examination request was filed, with declarations from two scientists,
along with several publications on Basmati rice and the research conducted
on the rice in India—one of which made the USPTO realise that core claims of
RiceTec were non-obvious.
• This resulted into RiceTec not challenging the USPTO’s decision and reducing
its twenty claims to three.
TKDL

• Traditional Knowledge Digital Library (TKDL), is a database of over

2,50,000 formulations used in traditional medicine systems in
India, namely, Ayuveda, Siddha, Unani and Yoga.
• TKDL is a pioneer initiative of India to prevent misappropriation of
country’s traditional medicinal knowledge at international patent
offices on which healthcare needs of more than 70% population
and livelihood of millions of people in India is dependent.
• The world has noted India’s move towards a defensive protection in
preparing the digital library, so as to curb bio-piracy and
misappropriation of traditional knowledge.
• However, mere acknowledgement is not sufficient, rather the
implementation of an equitable benefit sharing mechanism which
is imperative.
Plant a TREE… SAVE the Planet

40
 The END of Killi Sir for Avionics

A L L T H E B E S T

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