Refine your search
Collections
Co-Authors
A B C D E F G H I J K L M N O P Q R S T U V W X Y Z All
Kumar, Abhijeet
- IP Protection to Software:Conflict Between Indian Provision and Practice
Abstract Views :137 |
PDF Views:112
Authors
Affiliations
1 Hindustan Petroleum Corporation Limited Mumbai-400008, Maharashtra, IN
1 Hindustan Petroleum Corporation Limited Mumbai-400008, Maharashtra, IN
Source
Journal of Intellectual Property Rights, Vol 22, No 5 (2017), Pagination: 247-256Abstract
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.References
- Suman Y & Gupta V K, Patenting Issues in Software Industry, Journal of Intellectual Property Rights, 7 (6) (2002) 516-525.
- Ceccagnoli Marco et al., Co-Creation of Value In A Platform Ecosystem: The Case of Enterprise Software, http://pages.stern.nyu.edu/∼bakos/wise/papers/wise2009-p06_paper.pdf (accessed on 10 May 2016).
- Cockburn I M & Mac Garvie M J, Patents, thickets and the financing of early-stage firms: Evidence from the software industry, Journal of Economics & Management Strategy, 18(3) (2009) 729-773.
- Lerner J & Zhu F, What is the impact of software patent shifts? Evidence from Lotus v Borland, International Journal of Industrial Organization, 25(3) (2007) 511-529.
- Swinson J, Copyright or patent or both: An algorithmic approach to computer software protection, Harvard Journal of Law and Technology, 5 (1991) 145.
- Suman Y & Gupta V K, Patenting issues in software industry, Journal of Intellectual Property Rights, 7(6) (2002) 516-525.
- Gupta V K, Managing software protection, Journal of Intellectual Property Rights, 6(6) (2001) 277-285.
- Hall B H, On Copyright and Patent Protection for Software and Databases: A Tale of Two Worlds, Paper for Granstrand Volume, June 2002, https://eml.berkeley.edu/∼bhhall/papers/ BHH%20OGvol02.pdf. (accessed on 10 May 2016).
- Dereny E, Software Copyright and Software Patent, http://www.stikeman.com/2011/en/pdf/SoftwareCopyright_Patent_Derenyi_07.pdf. (accessed on 10 May 2016).
- Kumar A, According Legal Protection to Intellectual Property Rights in Softwares (Directorate of Extramural Research & Intellectual Property Rights, Defence Research & Development Organisations, 2000), 4-43.
- Trade Related Aspects of Intellectual Property Rights (TRIPS) https://www.wto.org/english/docs_e/legal_e/27-trips 04c_e.htm. (accessed on 10 May 2016).
- TRIPS Article 27 (1).
- Correa C M, Trade Related Aspects of Intellectual Property Rights: A Commentary on TRIPS Agreement (Oxford university Press 2007) 207.
- TRIPS Article 27.1.
- TRIPS Article 27.2 & 27.3.
- TRIPS Article 10.
- Samuelson P, Symposium: Towards a Third Intellectual Property Paradigm, Article: A manifesto concerning the legal protection of computer programs, Columbia Law Review, 2308 (1994) 94.
- The European Patent Convention (EPC), https://www.epo.org/ law-practice/legal-texts/epc.html (accessed on 12 May 2017).
- EPC Article 52(2).
- EPC Article 52(3).
- Patents for Software, European Law and Practice, European Patent Office, https://www.epo.org/news-issues/issues/ software.html (accessed on 12 May 2017).
- Gottschalk v Benson, 409 U.S. 63 (1972).
- Gottschalk v Benson, at 67.
- Gottschalk v Benson, at 70.
- Gottschalk v Benson, at 72.
- Parker v Flook, 437 U.S. 584 (1978).
- Parker v Flook, at 594.
- Diamond v Diehr, 450 U.S. 175 (1981).
- Diamond v Diehr, at 183-89.
- In re Alappat, 33 F.3d 1526 (Fed. Cir. 1994).
- Examination Guidelines for Computer-Related Inventions, 61 Fed. Reg. 7478 (Feb. 28, 1996).
- TRIPS Article 27.
- Enercon India Limited, Daman v Aloys Wobben, Germany, M.P. Nos. 8/2010, 36/2010 and 59/2010 in ORA No. 20/2009/PT/CH and ORA No. 20/2009/PT/CH decided on 18th November 2010.
- Enercon India Limited, Daman v Aloys Wobben, Germany, M.P. Nos. 8/2010, 36/2010 and 59/2010 in ORA No. 20/2009/PT/CH and ORA No. 20/2009/PT/CH decided on 18th November 2010. The Judgment was delivered by Technical Member of the Intellectual Property Board, S. Chandrasekaran. In this connection, the Board referred to the famous Vicom case/computer related invention decided in EPO (1987) 1 OJEPO 14 (T208/84).
- Yahoo v Controller and Rediff, OA/22/2010/PT/CH; Accenture Global Service Gmbh, Switzerland v Assistant Controller of Patents and Designs, New Delhi and another, OA /22/2009/PT/DEL and Miscellaneous Petition No. 118/2012 in OA/22/2009/PT/DEL.
- CRI Guidelines 2013 (Withdrawn by the Indian Patent Office).
- Wilson N, Computer Related Inventions (CRIs) revisited by the Indian Patent Office – Finalizing CRI Guidelines-Third Attempt, Journal of Intellectual Property Rights, 21 (2) (2016) 117-119, 118.
- CRI Guidelines 2015 (Withdrawn by the Indian Patent Office).
- CRI Guidelines 2016.
- Section 3 of Indian Patent Act 1970. “(k) a mathematical or business method or a computer programme per se or algorithms; (l) a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions; (m) a mere scheme or rule or method of performing mental act or method of playing game; (n) a presentation of information;”
- Malhotra K, Implications of New CRI Guidelines on Software Patenting in India, http://gip-india.in/wp-content/uploads/2016/02/new-software-patent-CRI-guidelines-india.pdf (accessed on 12 May 2017).
- Annual Report 2012-13, Intellectual Property India, http://www.ipindia.nic.in/writereaddata/Portal/IPOAnnualReport/1_30_1_annual-report-12-13.pdf (accessed on 12 May 2017).
- Annual Report 2014-15, Intellectual Property India, http://www.ipindia.nic.in/writereaddata/Portal/IPOAnnualReport/1_54_1_AnnualReport_English_2014_2015.pdf (accessed on 12 May 2017).
- Annual Report 2011-12, Intellectual Property India, http://www.ipindia.nic.in/writereaddata/Portal/IPOAnnualReport/1_34_1_annual-report-11-12.pdf (accessed on 12 May 2017).
- Annual Report 2013-14, Intellectual Property India. Available at http://www.ipindia.nic.in/writereaddata/Portal/IPOAnnualReport/1_29_1_annual-report-13-14.pdf (accessed on 12 May 2017).
- ‘Unpackaging’ Trademark Through Tobacco Regulations
Abstract Views :195 |
PDF Views:98
Authors
Affiliations
1 Hindustan Petroleum Corporation Limited, Petroleum House, 17, Jamshedji Tata Road, Churchgate, Mumbai - 400 020, IN
1 Hindustan Petroleum Corporation Limited, Petroleum House, 17, Jamshedji Tata Road, Churchgate, Mumbai - 400 020, IN
Source
Journal of Intellectual Property Rights, Vol 25, No 1&2 (2020), Pagination: 29-39Abstract
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.References
- Jacobs M, From the First to the Last Ash: The History, Economics & Hazards of Tobacco (1992), http://healthliteracy.worlded.org/docs/tobacco/Unit1/2history _of.html.
- Bunch F A, Cigarettes Were Once ‘Physician’ Tested, Approved, https://www.drfarrahmd.com/2019/11/cigaretteswereonce-physician-tested.html.
- Ash A, Defining Moment: The Nazis launch the first public anti-smoking campaign, Financial Times (17 September 2010), https://www.ft.com/content/3d78d24a-c068-11df8a81-00144feab49a.
- Tobacco Fact Sheet, WHO (May 2017), http://www.who.int/mediacentre/factsheets/fs339/en/.
- Osei Tutu J J, Human development as a core objective of global intellectual property, Kentucky Law Journal, 105 (2016) 16.
- Case C-102/77 Hoffmann-La Roche/Centrafarm[1979] ECR 1139 Para 7.
- Dean O H, Deprivation of trademarks through state interference in their usage, European Intellectual Property Review, 35 (10) (2013) 576.
- Adriano V, Smoking or physical exercise? European Intellectual Property Review, 36 (10) (2014) 613.
- WHO, Framework Convention on Tobacco Control, 5 (2003), http://whqlibdoc.who.int/publications/2003/9241591013.pdf.
- WHO, Guidelines for Implementation of Article 11 of The Framework Convention on Tobacco Control, Packaging And Labeling of Tobacco Products, 46 (17–22 November 2008), http://www.who.int/fctc/guidelines/article_11.pdf. [hereinafterGuidelines 11].
- Snowdon C, Plain Packaging: Commercial expression, AntiSmoking Extremism and the Risks of Hyper-Regulation (Adam Smith Institute, 2012).
- WHO, Global Action Plan for the Prevention and Control of NCDs 2013-2020, http://www.who.int/nmh/events/ncd_action_plan/en/.
- Article 47, Constitution of India, 1950.
- Cigarettes (Regulation of Production, Supply and Distribution) Act, 1975.
- Murli S Deora v Union of India and Ors WP (Civil) 316 of 1999.
- The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (hereinafter Act of 2003).
- Pandey V, India's Another Step Towards Plain Packaging of Cigarettes and Tobacco Products- An Overview of The Legislations Present, http://www.mondaq.com/india/x/448532/Healthcare/Indias+Another+Step+Towards+Plain+Packaging+Of+Cigarettes+And+Tobacco+ProductsAn+Overview+Of+The+Legislations+ Present.
- Section 31, Act of 2003: Power of Central Government to Make Rules.
- Cigarettes and Other Tobacco Products (Packaging and Labeling) Rules, 2008.
- Love Care Foundation v Union of India and Others, Writ Petition No.1078 (M/B) OF 2013.
- Cigarettes and Other Tobacco Products (Packaging and Labeling) Rules, 2014; Press Information Bureau of India, Pictorial Warnings on Tobacco Products, http://pib.nic.in/newsite/erelcontent.aspx?relid=142510.
- ICANN Organisation, Evidence of ‘Use’ Requirement for Trademark Protections, https://archive.icann.org/en/topics/new-gtlds/trademark-protections-evidence-use-07jun11-en.pdf.
- University of California, Hohfeld’s Legal Relations, https://www.ics.uci.edu/~alspaugh/cls/shr/hohfeld.html. Singer J W, The legal rights debate in analytical jurisprudence from Bentham to Hohfeld, Wisconsin Law Review, 975 (1982) 986-87.
- Davison M & Emerton P, Rights, privileges, legitimate interests, and justifiability: Article 20 of TRIPS and Plain Packaging of Tobacco, American University International Law Review, 29 (3) (2014) 505.
- TRIPS: Agreement on Trade-Related Aspects of Intellectual Property Rights (1994); Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, (1869) UNTS. 299, (1994) 33 ILM 1197 (hereinafter TRIPS Agreement), Article 16(1).
- Paris Convention for Protection of Industrial Property of March 20 1883, Article 6 quinquies C(1) (hereinafter Paris Convention).
- Davison M, Plain packaging of Cigarettes: Would it be lawful? Australian Intellectual Property Law Bulletin, 23 (2010) 105; Carvalho N P, The TRIPS Regime of Trademarks Designs (Kluwer), 2nded, (2011) 343.
- Dispute Settlement: DS174 ‘Panel Report, EC– Trademark sand Geographical Indications (Australia))’ [7.664].
- Article 17, TRIPS.
- Article 19(1), TRIPS.
- Article 11, FCTC, World Health Organization.
- Article 11(1)(a) FCTC, World Health Organization.
- Article 11(4) FCTC, World Health Organization.
- Halabi S, International trademark protection and global public health: A just compensation regime for expropriations and regulatory takings, Catholic University Law Review, 61 (2012)325.
- Bonadio E, Plain packaging of tobacco products under EU Intellectual Property Law, European Intellectual Property Review, (2012) 599.
- Philip Morris Brands SARL and Others v Secretary of State for Health C-547/14 [CJEU].
- British American Tobacco and Others v. Department of Health [2016] EWHC 1169.
- Para 15, Guidelines for implementation of Article 13 FCTC, WHO: “Packaging is an important element of advertising and promotion. Tobacco pack or product features are used in various ways to attract consumers, to promote products and to cultivate and promote brand identity, for example by using logos, colours, fonts, pictures, shapes and materials on or in packs or on individual cigarettes or other tobacco products.”
- Moodie C, Ford A, MacKintosh A M & Purves R, Are all cigarettes just the same? Female's perceptions of slim, coloured, aromatized and capsule cigarettes, Health Education Research, 30 (1) (2015) 1-12; Department of Health and Ageing, Government of Australia, Market Research to Determine Effective Plain Packaging of Tobacco Product, August (2011), https://www.health.gov.au/sites/default/files/market-research-to-determine-effectiveplainpackaging-of-tobacco-products.pdf.
- McDonald J, Plain packaging for cigarettes: Evaluating implementation in the UK, The Public Sphere: Journal of Public Policy, 3 (2) (2015) 96-112.
- White V, Williams T & Wakefield M, Has the introduction of plain packaging with larger graphic health warnings changed adolescents’ perception of cigarette packs and brand? B M J Journals Tobacco Control, 24 (2) (2015) 42.
- Holy Monasteries v Greece App no 00013092/87 & 00013984/88 (1994) 20 EHRR 1.
- British American Tobacco and Others v Department of Health [2016] EWHC 1169.
- Papamichalopoulos v Greece App no 14556/89 (1993) 16 EHRR 440.
- Article 19(1)(g) Constitution of India, 1950.
- Alemanno A, Out of sight out of mind, Columbia Journal of European Law, 18 (2) (2012) 197.
- Staffin E B, The Dilution Doctrine: Towards A reconciliation with the Lanham Act, Fordham Intellectual Property, Media and Entertainment Law Journal, 6 (1) (1995) 105.
- Phillips J, Trade Marks at the Limit (Edward Elgar, 2006).
- The World’s Most Valuable Brands’ (Forbes, 2017).
- Australian Crime Commission’s yearly public report, Organised crime in Australia 2015, 68, https://www.acic.gov.au/sites/g/files/net1491/f/2016/06/oca 2015.pdf.
- Guidelines for Examination in OHIM, Part B, Examination, Section 4 Absolute Grounds for Refusal.
- Kaul A & Wolf M, The (Possible) Effect of Plain Packaging on the Smoking Prevalence of Minors in Australia: A Trend Analysis (2014), Working Paper No. 149 (Online ISSN 1664-705X) 9-10, www.econ.uzh.ch/static/wp/econwp149.pdf.
- Plain Packaging. The evidence speaks for itself (JTI, 2013), http://www.jti.com/in-focus/plain-packaging/.
- Chapman S, The slow-burn, devastating impact of tobacco plain packs, The Conversation (3 December 2015), http://theconversation.com/the-slow-burn-devastatingimpactof-tobacco-plain-packs-51727.
- Snowdon C, Plain Packaging: Commercial Expression, AntiSmoking Extremism and the Risks of Hyper-Regulation (Adam Smith Institute, 2012) 44.
- Stem Cell Patenting: Moral and Legal Dilemma
Abstract Views :87 |
Authors
Affiliations
1 School of Law, UPES, Dehradun, Uttarakhand - 248 007,, IN
2 Queen Mary University of London, London E1 2AT,, GB
1 School of Law, UPES, Dehradun, Uttarakhand - 248 007,, IN
2 Queen Mary University of London, London E1 2AT,, GB
Source
Journal of Intellectual Property Rights, Vol 27, No 1 (2022), Pagination: 42-51Abstract
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.Full Text
- “My Words, My Copyright”: Justifiability of Performer Owning ‘Speech’ or ‘Address’
Abstract Views :126 |
Authors
Affiliations
1 Queen Mary University of London (UK), 67-69 Lincoln’s Inn Fields, London WC2A 3JB, GB
1 Queen Mary University of London (UK), 67-69 Lincoln’s Inn Fields, London WC2A 3JB, GB