Journal of Intellectual Property Rights

Abhijeet Kumar ¹

Affiliations
1 Hindustan Petroleum Corporation Limited Mumbai-400008, Maharashtra, IN

Abstract

Human life, in the recent past, has been affected most by the rapid advancement of information technology and allied inventions. Commerce, entertainment, sports, business, life style etc. have seen a drastic change in the manner they are being carried out and how the consumers or end users have responded to them. These advancements demand innovation and continuous development of the software and hardware involved in the process; and an innovation being an investment of intellectuality demands the economy for an equivalent return. These demands have been met by the protections granted through grant of exclusive rights, with exceptions, under the jurisprudence of intellectual property, more precisely through patent regime. However, software was for a long time considered as non-patentable because of it falling into the pool of non-patentable subject matters. This became an issue with the appearance of Independent Software Vendors who developed software which were not attached to a particular hardware. In order to promote those innovations, judicial pronouncement in US in Benson-Flook-Diehr trilogy along with international documents like PCT and TRIPS played crucial role. This paper focuses more on the provisions and practice relating to grant of protection to advancement in the field of information and technology in India. The paper analyses the practice of Indian Patent Office, from the data available, and explains the existing legal framework and jurisprudence in order to suggest solutions to the issue at hand. The paper demands a tailor made and industry beneficial policy, keeping in mind the socio-economic condition of the state.

Keywords

Software Patenting, TRIPS, PCT, Indian Patent Office, CRI Guidelines, Non-Patentable Subject Matter.

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Abhijeet Kumar ¹

Affiliations
1 Hindustan Petroleum Corporation Limited, Petroleum House, 17, Jamshedji Tata Road, Churchgate, Mumbai - 400 020, IN

Abstract

Minimum requirements of the WHO’s Framework Convention on Tobacco Control and its Guidelines has required the Member States to raise concerns related to public health by regulating advertisement and marketing, and also leaving scope for introducing more stringent measures. This initiated several discussions over the issues concerning effect of such legislation’s new labeling requirements (plain packaging) on the intellectual property rights (trademark rights) of the tobacco manufacturers. The justifications for the new limitations are considered from a broader global perspective and from an Intellectual Property law one. This paper examines case law, legislative provisions and surveys approved by WHO, alongwith reports made post implementation of plain packaging in Australia, and other relevant available data and information. It further aims to reflect on the character of protection, arguing that there is neither deprivation nor expropriation of property, but a mere control of use and that the right conferred upon registration of a mark is iusexcludentialios and not a right to use. It also discusses on how plain packaging is oppressive towards the interests of the trademark proprietors and is not the most effective for attaining the public health objective, while drawing upon sociological and economical research, and how it possesses the risk of increase of illicit trade and counterfeits.

Keywords

Tobacco Regulation, WHO, generic packaging, Framework Convention on Tobacco Control, The Cigarettes and Other Tobacco Products Act, 2003, Cigarettes and Other Tobacco Products (Packaging and Labeling) Rules, 2008, TRIPS Agreement, Global Action Plan for the Prevention and Control of NCDs 2013-2020, Paris Convention.

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Latika Choudhary ¹, Abhijeet Kumar ²

Affiliations
1 School of Law, UPES, Dehradun, Uttarakhand - 248 007,, IN
2 Queen Mary University of London, London E1 2AT,, GB

Abstract

Humans in the era of 21st century have witnessed development at its epitome, coupled with obvious pros and cons. Their greed has led to over exploitation of resources, causing irreversible damages. Presently, the positive aspects of development seem to overshadow the negatives. Increased life span, mortality rate, better health facilities and treatment of incurable diseases are some affirmative outcomes of development. One such recent phenomenon is stem cell therapy. The credit for the discovery being spotlighted goes to scientists John Gurdon and Shinya Yamanaka, who were awarded the Nobel Prize in 2012 for discovering that ordinary cells of a living organism can be reprogrammed or changed into stem cells, which can further turn into any other tissue of the body. Owing to this breakthrough, the treatment of incurable diseases like cancer does not seem to be a distant dream. However, it is shadowed by concerns from critics on the grounds of morality due to its nature of procuring living components to get patents. In this paper, the author discusses the concept of stem cell therapy, the present legal scenario vis-à-vis its patentability and the ongoing debate regarding legal and moral implications of stem cell patenting.

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Abhijeet Kumar ¹

Affiliations
1 Queen Mary University of London (UK), 67-69 Lincoln’s Inn Fields, London WC2A 3JB, GB

Abstract

The Indian Copyright Act, 1957 provides for exclusive rights to the creator of an intellectual piece, defined as work under the Act, by granting certain rights for commercial exploitation of the same, for a limited period. The basic reading of jurisprudence of copyright gives us two primary findings (required for the present research), i.e., there is a difference between a work, and its author, and a performance, and its performer; and that the author may or may not be the owner of the work. This further enunciates that the rights vested in the work and the performance is different from each other. This understanding finds an exception in terms of the provisions laid down under the proviso Clause (cc) of Section 17, which in effect talks about who shall be the first owner of a particular work. The preliminary understanding of the provisions suggests that in the case of the speech or addresses, the performer will also become the ‘first owner’ of the work itself and will enjoy the rights of Section 14 for literary work as well as the performance. There is no dispute that the author of the work will be the person who creates the work, but the ownership is deemed to be of the person delivering the speech or address, or of such other person who delivers it on behalf of someone else. The present research aimsto understand the rationale behind the promulgation of such a provision through amendment, which was passed with an objective to meet international obligations, with a discussion on its relevance in present times, and tries to justify the existence of the situation, by specifically mentioning out the scenarios which can and cannot seek the protection of this provision.

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