BLAW
Unit 5Foreign Exchange Management Act, 2000 Q1)- Discuss FEMA, its objectives and Scope.A1)- Meaning of FEMA and ObjectivesFEMA act was enacted by the parliament on 29th December, 1999 with the objective of facilitating external trade and payments and for promoting the orderly development and maintenance of foreign exchange market in India. Scope of the ActThe act extends to the whole of India and applicable to all branches, offices and agencies outside India owned or controlled by a person resident in India and also to any contravention thereunder committed outside India by any person to whom this Act applies. Q2)- Explain important definitions under FEMA.A2)- Important definitions under the FEMA ActAccording to Section 2(h) of the Act “currency” includes all currency notes, postal notes, postal orders, money orders, cheques, drafts, travellers’ cheques, letters of credit, bills of exchange and promissory notes, credit cards or such other similar instruments, as may be notified by the Reserve Bank.According to Section 2(i) of the Act “currency notes” means and includes cash in the form of coins and bank notes.According to section 2(j) of the Act “current account transaction” means a transaction other than a capital account transaction and without prejudice to the generality of the foregoing such transaction includes, — (i) payments due in connection with foreign trade, other current business, services, and short-term banking and credit facilities in the ordinary course of business, (ii) payments due as interest on loans and as net income from investments, (iii) remittances for living expenses of parents, spouse and children residing abroad, and (iv) expenses in connection with foreign travel, education and medical care of parents, spouse and children.According to section 2(l) of the act “export”, with its grammatical variations and cognate expressions, means— (i) the taking out of India to a place outside India any goods, (ii) provision of services from India to any person outside India;According to section 2(m), “foreign currency” means any currency other than Indian currency.According to section 2(n), “foreign exchange” means foreign currency and includes,— (i) deposits, credits and balances payable in any foreign currency, (ii) drafts, travellers cheques, letters of credit or bills of exchange, expressed or drawn in Indian currency but payable in any foreign currency, (iii) drafts, travellers’ cheques, letters of credit or bills of exchange drawn by banks, institutions or persons outside India, but payable in Indian currency.According to section 2(o) “foreign security” means any security, in the form of shares, stocks, bonds, debentures or any other instrument denominated or expressed in foreign currency and includes securities expressed in foreign currency, but where redemption or any form of return such as interest or dividends is payable in Indian currency.According to section 2(u) “person” includes— (i) an individual, (ii) a Hindu undivided family, (iii) a company, (iv) a firm, (v) an association of persons or a body of individuals, whether incorporated or not, (vi) every artificial juridical person, not falling within any of the preceding sub-clauses, and (vii) any agency, office or branch owned or controlled by such person.According to section 2(v) “person resident in India” means— (i) a person residing in India for more than one hundred and eighty-two days during the course of the preceding financial year but does not include— (A) a person who has gone out of India or who stays outside India, in either case— (a) for or on taking up employment outside India, or (b) for carrying on outside India a business or vocation outside India, or (c) for any other purpose, in such circumstances as would indicate his intention to stay outside India for an uncertain period; (B) a person who has come to or stays in India, in either case, otherwise than— (a) for or on taking up employment in India, or (b) for carrying on in India a business or vocation in India, or (c) for any other purpose, in such circumstances as would indicate his intention to stay in India for an uncertain period; (ii) any person or body corporate registered or incorporated in India, (iii) an office, branch or agency in India owned or controlled by a person resident outside India, (iv) an office, branch or agency outside India owned or controlled by a person resident in India. Q3)- Discuss regulation and management of Foreign Exchange.A3)- Regulation and Management of Foreign ExchangeSection 3 of the FEMA act provides that according to the provisions in this Act, rules or regulations made thereunder, or with the general or special permission of the Reserve Bank, no person shall— (a) deal in or transfer any foreign exchange or foreign security to any person not being an authorised person; (b) make any payment to or for the credit of any person resident outside India in any manner; (c) receive otherwise through an authorised person, any payment by order or on behalf of any person resident outside India in any manner.d) enter into any financial transaction in India as consideration for or in association with acquisition or creation or transfer of a right to acquire, any asset outside India by any person.Section 4 of the FEMA act provides that no person resident in India shall acquire, hold, own, possess or transfer any foreign exchange, foreign security or any immovable property situated outside India.Section 5 of the FEMA act provides that any person may sell or draw foreign exchange to or from an authorised person if such sale or withdrawal is a current account transaction. Provided that the Central Government may, in public interest and in consultation with the Reserve Bank, impose such reasonable restrictions for current account transactions as may be prescribed.According to section 6 of the FEMA act any person may sell or draw foreign exchange to or from an authorised person for a capital account transaction. But the RBI in consultation with the Central Government must specify— (a) any class or classes of capital account transactions which are permissible; (b)the limit up to which foreign exchange shall be admissible for such transactions.(c) any conditions which may be placed on such transactions.The Central Government in consultation with the Reserve Bank can prescribe— (a) any class or classes of capital account transactions, not involving debt instruments, which are permissible; (b) the limit up to which foreign exchange shall be admissible for such transactions; and (c) any conditions which may be placed on such transactions.The Reserve Bank may, by regulations prohibit, restrict or regulate the following: — (a) transfer or issue of any foreign security by a person resident in India; (b) transfer or issue of any security by a person resident outside India; (c) transfer or issue of any security or foreign security by any branch, office or agency in India of a person resident outside India; (d) any borrowing or lending in foreign exchange in whatever form or by whatever name called; (e) any borrowing or lending in rupees in whatever form or by whatever name called between a person resident in India and a person resident outside India; (f) deposits between persons resident in India and persons resident outside India; (g) export, import or holding of currency or currency notes; (h) transfer of immovable property outside India, other than a lease not exceeding five years, by a person resident in India; (i) acquisition or transfer of immovable property in India, other than a lease not exceeding five years, by a person resident outside India; (j) giving of a guarantee or surety in respect of any debt, obligation or other liability incurred— (i) by a person resident in India and owed to a person resident outside India; or (ii) by a person resident outside India. (4) A person resident in India may hold, own, transfer or invest in foreign currency, foreign security or any immovable property situated outside India if such currency, security or property was acquired, held or owned by such person when he was resident outside India or inherited from a person who was resident outside India. (5) A person resident outside India may hold, own, transfer or invest in Indian currency, security or any immovable property situated in India if such currency, security or property was acquired, held or owned by such person when he was resident in India or inherited from a person who was resident in India. (6) The Reserve Bank may prohibit, restrict, or regulate establishment in India of a branch, office or other place of business by a person resident outside India, for carrying on any activity relating to such branch, office or other place of business. Section 8 of the act mentions that where any amount of foreign exchange is due or has accrued to any person resident in India, such person shall take all reasonable steps to realise and repatriate to India such foreign exchange within such period and in such manner as may be specified by the Reserve Bank. Q4)- Discuss provisions related to authorized person under FEMA.A4)- Provisions Related to Authorised Personsection 10(1) of the FEMA act mentions that the Reserve Bank may authorise any person to deal in foreign exchange or in foreign securities, as an authorised dealer, money changer or off-shore banking unit or in any other manner as it deems fit. Section 10(3) provides that the authorisation granted may be revoked by the Reserve Bank at any time if the Reserve Bank is satisfied that— (a) it is in public interest so to do; or (b) the authorised person has failed to comply with the condition subject to which the authorisation was granted.Section 10(4) An authorised person shall, in all his dealings in foreign exchange or foreign security, comply with such general or special directions or orders as the Reserve Bank may, from time to time, think fit to give, and, except with the previous permission of the Reserve Bank. Section 10(5) of the FEMA act provides that before undertaking any transaction on behalf of any person an authorised person must make a declaration that person to make such declaration and give such information as will reasonably satisfy him that the transaction will not involve, and is not designed for the purpose of any contravention or evasion of the provisions of this Act or of any rule, regulation, notification, direction or order made thereunder. Section 11of the FEMA act provides that Reserve Bank has powers to issue directions to authorised person regarding the following grounds-(1) The Reserve Bank may, give direction in regard to making of payment or the doing or desist from doing any act relating to foreign exchange or foreign security. (2) The Reserve Bank may direct any authorised person to furnish such information, in such manner, as it deems fit. (3) Where any authorised person contravenes any direction given by the Reserve Bank under this Act or fails to file any return as directed by the Reserve Bank, the Reserve Bank may, after giving reasonable opportunity of being heard, impose on the authorised person a penalty which may extend to ten thousand rupees and in the case of continuing contravention with an additional penalty which may extend to two thousand rupees for every day during which such contravention continues.Section 12 empowers the RBI to inspect authorised person in the following cases-(1) The Reserve Bank may, at any time inspect the business of any authorised person for the purpose of— (a) verifying the correctness of any statement, information or particulars furnished to the Reserve Bank; (b) obtaining any information or particulars which such authorised person has failed to furnish on being called upon to do so; (c) securing compliance with the provisions of this Act or of any rules, regulations, directions or orders made thereunder. (2) It shall be the duty of every authorised person, and where such person is a company or a firm, every director, partner or other officer of such company or firm to produce to any officer making an inspection the books, accounts and other documents in his custody or power and to furnish any statement or information relating to the affairs of such person, company or firm as the said officer may require within such time and in such manner as the said officer may direct. Q5)- What are the contravention and penalties for any person contravening FEMA?A5)- Contravention and penalties According to section 13(1) if any person contravenes any provision of this Act, or contravenes any rule, regulation, notification, direction or order issued in exercise of the powers under this Act, or contravenes any condition subject to which an authorisation is issued by the Reserve Bank, he shall be liable to a penalty up to thrice the sum involved in such contravention where such amount is quantifiable, or up to two lakh rupees where the amount is not quantifiable, and where such contravention is a continuing one, further penalty which may extend to five thousand rupees for every day after the first day during which the contravention continues.According to section 13(2) of the FEMA any Adjudicating Authority adjudging may, if he thinks fit in addition to any penalty which he may imposed direct that any currency, security or any other money or property in respect of which the contravention has taken place shall be confiscated to the Central Government and further direct that the foreign exchange holdings, if any, of the persons committing the contraventions or any part thereof, shall be brought back into India or shall be retained outside India in accordance with the directions made in this behalf. Section 14 of the FEMA act deals with the enforcement of the orders of Adjudicating Authority which are as follows-If any person fails to make full payment of the penalty imposed on him under section 13 within a period of ninety days, he shall be liable to civil imprisonment. No order for the arrest and detention in civil prison of a defaulter shall be made unless the Adjudicating Authority, for reasons in writing, is satisfied— (a) that the defaulter, with the object or effect of obstructing the recovery of penalty, has after the issue of notice by the Adjudicating Authority, dishonestly transferred, concealed, or removed any part of his property, or(b) that the defaulter has, or has had since the issuing of notice by the Adjudicating Authority, the means to pay the arrears or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same.3. A warrant for the arrest of the defaulter may be issued by the Adjudicating Authority if the Adjudicating Authority is satisfied, by affidavit or otherwise, that with the object or effect of delaying the execution of the certificate the defaulter is likely to abscond or leave the local limits of the jurisdiction of the Adjudicating Authority.4. Where appearance is not made pursuant to a notice issued and served, the Adjudicating Authority may issue a warrant for the arrest of the defaulter.5. A warrant of arrest issued by the Adjudicating Authority may also be executed by any other Adjudicating Authority within whose jurisdiction the defaulter may for the time being be found. 6. Every person arrested in pursuance of a warrant of arrest under this section shall be brought before the Adjudicating Authority issuing the warrant as soon as practicable and in any event within twenty-four hours of his arrest.7. When a defaulter appears before the Adjudicating Authority pursuant to a notice to show cause or is brought before the Adjudicating Authority under this section, the Adjudicating Authority shall give the defaulter an opportunity showing cause why he should not be committed to the civil prison.8. Pending the conclusion of the inquiry, the Adjudicating Authority may, in his discretion, order the defaulter to be detained in the custody of such officer as the Adjudicating Authority may think fit or release him on his furnishing the security to the satisfaction of the Adjudicating Authority for his appearance as and when required.9. Upon the conclusion of the inquiry, the Adjudicating Authority may make an order for the detention of the defaulter in the civil prison and shall in that event cause him to be arrested if he is not already under arrest.10. When the Adjudicating Authority does not make an order of detention, he shall, direct release of the defaulter. Q6)- Discuss Adjudication and Appeal under FEMA.A6)- Adjudication and appealSection 16(1) of the FEMA act provides that the Central Government may, by an order published in the Official Gazette, appoint as many officers of the Central Government as it may think fit, as the Adjudicating Authorities for the purpose of adjudication in their respective jurisdiction. Every Adjudicating Authority shall deal with the complaint as expeditiously as possible and endeavour shall be made to dispose of the complaint finally within one year from the date of receipt of the complaint. Section 17(1) The Central Government shall, by notification, appoint one or more Special Directors (Appeals) to hear appeals against the orders of the Adjudicating Authorities and shall also specify in the said notification the matter and places in relation to which the Special Director (Appeals) may exercise jurisdiction. (2) Any person aggrieved by an order made by the Adjudicating Authority, being an Assistant Director of Enforcement or a Deputy Director of Enforcement may prefer an appeal to the Special Director (Appeals). (3) Every appeal shall be filed within forty-five days from the date on which the copy of the order made by the Adjudicating Authority is received by the aggrieved person and it shall be in such form, verified in such manner and be accompanied by such fee as may be prescribed: (4) The Special Director (Appeals) may after giving the parties to the appeal an opportunity of being heard, pass such order thereon as he thinks fit, confirming, modifying or setting aside the order appealed against. (5) The Special Director (Appeals) shall send a copy of every order made by him to the parties to appeal and to the concerned Adjudicating Authority. (6) The Special Director (Appeals) shall have the same powers of a civil court which are conferred on the Appellate Tribunal and— (a) all proceedings before him shall be deemed to be judicial proceedings; (b) shall be deemed to be a civil court.Section 19 (1) provided that the Central Government or any person aggrieved by an order made by an Adjudicating Authority, may prefer an appeal to the Appellate Tribunal. Every appeal shall be filed within a period of forty-five days from the date on which a copy of the order made by the Adjudicating Authority is received by the aggrieved person or by the Central Government [section 19(2)]. The appeal filed before the Appellate Tribunal shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal finally within one hundred and eighty days from the date of receipt of the appeal [section 19(5)]. Q7)- What is Intellectual Property? Discuss its nature and objectives.A7)- The term "Intellectual Property" has come to be internationally recognised as covering, patent, trademarks, copyright, design, know-how and confidential information. The scope of intellectual property is expanding very fast. Efforts are being made by person who create new creative ideas to seek protection under the protective shield of intellectual property. The law regarding intellectual property is based on certain basic concepts. For e.g., Patent law is based upon the concept of novelty, whereas Design' law is based on originality of the design. The substantive law of trademarks is based on the concept of distinctiveness and similarity of marks and similarity of goods. Copyright is based on the concept of originality and reproduction of the work. Copyright relates to original literacy, dramatic, musical and artistic works, cinematograph films and sound recording. The statute law relating to intellectual property in India is undergoing changes. Attempts are being made to bring them on par with corresponding laws in the developed countries. This has become necessary after India signing the GATT and TRIPS and becoming a member of WTO.Nature of Intellectual Property It is considered as an intangible incorporate property. It consists of a bundle of rights in relation to certain material objects created by the owner. In case of patent, the invention may relate to a new product or an improvement of an existing product or a new process of manufacturing an existing or a new product. After the expiry of the term of the patent, it becomes public property when anybody can use the patented invention. In case of industrial designs, the property consists in the exclusive right to apply the design registered under the Designs Act. This right to use can also license for use by third parties or assign to any person. On expiry of the term of registration anybody can use the design. The works specified in the Copyright Act 1957 are an original literary, dramatic, musical and artistic work, or a cinematograph film or a sound recording. Literary work includes computer programmes, tables and compilation, also computer databases. By virtue of the international conventions such as Berne Convention and Universal Copyright Convention, copyright acquired in one country extends to other countries which are members of this conventions. India is a member of both the conventions.There is also a commercial exploitation of intellectual property. In case of patent and patentee may himself exploit the patent or assign his right or license them to industrialist for a lumpsum payment on a royalty basis. In the similar manner registered design, copyright can also be commercially exploited.Objectives• IPR Awareness: Outreach and Promotion - To create public awareness about the economic, social and cultural benefits of IPRs among all sections of society.• Generation of IPRs - To stimulate the generation of IPRs.• Legal and Legislative Framework - To have strong and effective IPR laws, which balance the interests of rights owners with larger public interest.• Administration and Management - To modernize and strengthen service-oriented IPR administration.• Commercialization of IPRs - Get value for IPRs via commercialization.• Enforcement and Adjudication - To strengthen the enforcement and adjudicatory mechanisms for combating IPR infringements.• Human Capital Development - To strengthen and expand human resources, institutions and capacities for teaching, training, research and skill building in IPRs. Q8)- Discuss IPR related Copyrights.A8)- IPR related to CopyrightCopyright refers to the legal right of the owner of intellectual property. In simpler terms, copyright is the right to copy. This means that the original creators of products and anyone they give authorization to are the only ones with the exclusive right to reproduce the work.Copyright law gives creators of original material the unique right to further use and duplicate that material for a given amount of time, at which point the copyrighted item becomes public domain.When someone creates a product that is seen as original and that required significant mental activity to create, this product will become intellectual property that must be protected from unauthorized duplication. Examples of unique creations consist of computer software, art, poetry, graphic designs, musical lyrics and compositions, novels, film, original architectural designs, website content, etc. One safeguard that can be used to protect an original creation is copyright.Under copyright law, a work is considered authentic if the author created it from independent thinking void of duplication. This type of work is acknowledged as Original Work of Authorship (OWA). Anyone with an original work of authorship automatically has the copyright to that work, preventing anyone else from the usage of or replicating it. The copyright can be registered voluntarily by the original owner if he or she would like to get an upper hand in the legal system if the need arises.Not all types of work can be copyrighted. A copyright does not protect ideas, discoveries, concepts, and theories. Brand names, logos, slogans, domain names, and titles also cannot be protected under copyright law. For an original work to fall under creation, it has to be in tangible form. This means that any speech, discoveries, musical scores, or ideas have to be written down in physical form in order to be protected by copyright.CopyrightsLaw – Copyrights Act 1957, amended in 2012Ministry – Copyright Office, Ministry of Human Recourse DevelopmentCopyright is a bundle of rights given by the law to the creators of literary, dramatic, musical and artistic works and the producers of cinematograph films and sound recordings. The rights provided under Copyright law include the rights of reproduction of the work, communication of the work to the public, adaptation of the work and translation of the work.Copyrights of works of the countries noted in the International Copyright Order are protected in India, as if such works are Indian works. The term of copyright in a work shall not exceed that which is enjoyed by means of it in its country of origin.Acquisition of copyright is automatic and it does not require any formality. Copyright comes into existence as soon as a work is created and no formality is required to be carried out for acquiring copyright. However, certificate of registration of copyright and the entries made therein serve as prima facie evidence in a court of law with reference to dispute relating to ownership of copyright. Application for copyright can be filed in Copyright office.Computer Software or programme can also be registered as a ‘literary work’. As per Copyright Act, 1957 “literary work” includes computer programmes, tables and compilations, including computer databases. ‘Source Code’ has also to be supplied along with the application for registration of copyright for software products.The 2012 amendments make Indian Copyright Law compliant with the Internet Treaties – the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT).1. Literary2. dramatic,3. Musical and4. Artistic works Lifetime of the author + sixty years from the beginning of the calendar year next following the year in which the author dies.1. Anonymous and pseudonymous works2. Posthumous work3. Cinematograph films4. Sound records5. Government work6. Public undertakings7. International Agencies8. Photographs Until sixty years from the beginning of the calendar years subsequent following the year in which the work is first publishIndia has a very large copyright-based creative industry. two The Copyright Act is comprehensive and with the recent amendments, the rights of creators have been strengthened. India was the first country to ratify the Marrakesh Treaty 2013 for Access to copyright works for visually impaired persons. Enforcement in copyright has been sizable and will be further reinforced. Judgments of Indian courts have adequately balanced the rights of copyright owners with the rights of public. Moral rights are fully recognized.The venture in the future is the enforcement of copyright in digital platforms for which the statute has adequate provisions. Indian copyright owners are also victims of copyright violations and piracy. Apart from Copyrights Act, Information Technology Act, 2000 too has certain relevant provisions for copyright in electronics and digital field.There have been disagreements over the question whether Software’s are eligible for copyrights or for patents. Copyright Office recently held that software’s, if are not in conjuncture with novel hardware should be protected by copyright. This is relief for software program industry as Copyrights are cheap, automatically recognised and protects for 60 years while patents are only for 20 years. Q9)- Discuss IPR related to Patents.A9)-
IPR RELATING TO PATENTS A patent is an intellectual property (IP) right for a technical invention. It permits you to prevent others from using your invention for commercial purposes for up to 20 years. You decide who is allowed to produce, sell or import your invention in those countries in which you own a valid patent. You can also trade your patent, e.g. sell it or licence the use of your invention. You can patent products (e.g. heated ski boots) and processes (e.g. a method for freeze-drying coffee). However, the invention must solve a problem in a new, non-obvious and technical way. In the instance of the ski boots, the problem of cold feet while skiing is solved by fitting self-regulating heating elements to the boots.Once a patent expires, an invention becomes common property and can then be freely used by anyone. PatentsLaw – Patents Act, 1970, amended in 2006Ministry – DIPP, Ministry of Commerce and industryThe object of patent law is to encourage scientific research, new technology and industrial progress. The price of the grant of the monopoly is the disclosure of the invention at the Patent Office, which, after the expiry of the fixed period (20 years) of the monopoly, passes into the public domain. The fundamental principle of Patent law is that a patent is granted only for an invention which must have novelty and utility. It is essential for the validity of a patent that it need to be the inventor’s own discovery as opposed to mere verification of what was, already known before the date of the patent. A patentable invention, apart from being a new manufacture, must also be useful.Ever greening of patent is not allowed: In order to be patentable, an improvement on something known before or a combination of different things already known, should be something more than a mere workshop improvement, and must independently satisfy the test of invention or an inventive step. It must produce a new result, or a new article or a better or cheaper article than before. The new subject matter must involve “invention” over what is old.It approves Compulsory Licensing: This strikes balance between two objectives – Rewarding patentees for innovation and to make sure that patented products, particularly Pharmaceutical ones, are accessible to public in developing and underdeveloped countries at affordable prices.In March 2012, India granted its first compulsory license ever. The license used to be granted to Indian generic drug manufacturer Natco Pharma Ltd for Sorafenib tosylate, a cancer drug patented by Bayer. Non-governmental agencies reportedly welcomed the decision.TRIPS also allows for compulsory licensing under sure circumstances. The principal requirement for the issue of a compulsory license is that attempts to attain a license under reasonable commercial terms ought to have failed over a reasonable period of time. Specific situations in which compulsory licenses may also be issued are set out in the legislation of each patent system and vary between systems. Some examples are – Unaffordable expenses of particular drug for masses or inability of patentee to fulfill demand in markets. Further, TRIPs also gives that the requirements for a compulsory license may be waived in certain situations, in unique cases of national emergency or extreme urgency or in cases of public non-commercial use.It approves both Product and Process patent: Prior to 2006 amendment, only process was allowed to be patented. It capability that if same product is manufactured using some process different than that was patented, there shall be no infringement.System of pre-grant and post-grant oppositions: Introduced in 2005, ensures that only deserving patents are granted. It is now possible to raise objection both earlier than and after the patent has been granted.Data exclusivity: Indian Patent Act doesn’t specifically provide for data exclusivity. Companies spend significant time, power and money on research and clinical trials. During all this they gather massive amount of useful data. While obtaining permission for launch of product in markets or while making use of for patents, these companies have to provide data to authorities. By provision of data exclusivity, groups want authorities to not to share such data with any third party for certain period.Article 39(3) of the TRIPS states that that “Members when requiring, as a condition of approving the marketing of pharmaceutical or of agricultural chemical products which make use of new chemical entities, the submission of undisclosed test or data, the origination of which involves a considerable effort, shall protect such facts against unfair commercial use. In addition, Members shall protect such data towards disclosure, except where necessary to protect the public, or until steps are taken to ensure that data are protected against unfair commercial use.But it should be remembered that Article 39(3) does not talk about “Data Exclusivity” but solely about “unfair commercial use” and it is this phrase that is interpreted by Multi-national companies as containing “Data Exclusivity” provision and thus demanding data exclusivity law. Data exclusivity however, is opposed on following grounds –1. If generic drugs manufacturers are denied access to such data then they will have to do separate clinical trials which will increase costs.2. Further, there are moral issues with clinical trials as it involves experimentation on animals or humans.3. TRIPS agreement not at all mentions ‘data exclusivity’. It is just creative interpretation of MNCs.4. It can become an alternative to patentability and can be used for ever greening. Data exclusivity idea is different from patent. If a company manages to protect data, then it may continue to maintain its monopoly by incremental improvement in products and era of new data.There is no need of a “further protection” to pharmaceuticals in the form of “Data Exclusivity” as the protection underneath the Patents Act, 1970 is not only sufficient but additionally in conformity with the TRIPS Agreement. The protection in the form of “Data Exclusivity” is a “TRIPS plus” provision to which Indian does not owe any obligation.The Health Ministry has said that India already has vital legal provisions to protect data and hence there is no need for any further protection, while Satwant Reddy committee was of the view that there is no legal provision to guard test data. It is alleged by the Health and Human right activist that government is below pressure from Multi-National Companies and western countries to enact law on data exclusivity. India has adopted a balanced approach towards patent law. It is committed to protect innovation while promoting the larger goal of welfare of its citizens. Courts and tribunals have upheld key provisions of India’s patent law through their authoritative pronouncements. The system of pre-grant and post-grant oppositions introduced in 2005 ensures that only deserving patents are granted.It is expected that there would be a constant evolution of patent jurisprudence in India. Patent filings too have gone up by 10.56% from 2008-2009 to 2013-2014. Over 75% of patent filings are by foreign entities and so there is a need for concerted action to be taken to increase filings by Indians.
VALIDITY AND ENFORCING A PATENTThe term of every patent in India is twenty years from the date of filing the patent application, irrespective of whether it is filed with provisional or complete specification. However, in case of applications filed under the Patent Cooperative Treaty (PCT), the term of twenty years begins from the priority date.It is important to note that a patentee has to renew the patent every year by paying the renewal fee, which can be paid every year or in lump sum.A request for restoration of patent can be filed within eighteen months from the date of cessation of patent along with the prescribed fee. After the receipt of the request, the matter is notified in the official journal for further processing of the request.Enforcement measures available under the Indian law A patentee should consider the backlog generally in Indian courts. The patentee may file an action for patent infringement in either a District Court or a High Court. Whenever a defendant counter-claims for revocation of the patent, the suit along with the counterclaims is transferred to a High Court for decision. Because defendants invariably counterclaim for revocation, patent infringement suits are typically heard by a High Court only. According to patent law in India, the High Court may allow the patentee to amend the application in order to preserve the validity of the patent. In such an event, the applicant must give notice to the Controller, who may be entitled to appear and be heard and shall appear if so directed by the High Court. If a patentee is successful in proving its case of patent infringement, and if the defendant does not comply with the judgment, a petition for contempt of court can be filed. Contempt of court is a criminal offense, while patent infringement is a civil offense. In the event of a contempt of court, Indian law provides for imprisoning the authorized person(s) of the defendant. It is also possible to obtain a preliminary injunction, although the above-noted judicial backlog should be considered. The basis upon which a preliminary injunction is granted is whether the plaintiff shows a prima facie case and also whether the balance of "convenience" is in the plaintiff's favor.However, an important consideration before enforcing a patent in India is to ensure that the patentee has worked the invention directly or through its licensees in India. If a patentee has not worked the invention in India, then the defendant could seek a compulsory license under Section 84(1)(c), if the patent has been in force for more than three years. In addition, if a compulsory license is already in place and the patentee has still not worked the invention but yet asserts it, the defendant can seek a revocation of the patent under Section 85(1) of the Patent Act.
Patent of Biological Material
If the invention uses a biological material which is new, it is essential to deposit the same in the International Depository Authority ("IDA") prior to the filing of the application in India in order to supplement the description. If such biological materials are already known, in such a case it is not essential to deposit the same. The IDA in India located at Chandigarh is known as Institute of Microbial Technology (IMTECH). What are the Rights granted by Patent?
If the grant of the patent is for a product, then the patentee has a right to prevent others from making, using, offering for sale, selling or importing the patented product in India. If the patent is for a process, then the patentee has the right to prevent others from using the process, using the product directly obtained by the process, offering for sale, selling or importing the product in India directly obtained by the process.INVENTION AND DISCOVERYDiscovery and Invention: Discovery relates to the new information and knowledge which already exists in nature. Whereas invention relates to the creation of new product or process which never existed before.Some of the inventions, inspite of being new, non-obvious and useful cannot be patented under the Act.1. Inventions which are not Patentable Under the Act: Section 3 and 4 of the Indian Patent Act, 1970 lists the following as not being inventions within the meaning of the Act, therefore not patentable: An invention which is frivolous or which claims anything obviously contrary to the well-established natural law. An invention, the primary or intended use or commercial exploitation of which could be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or to environment. The mere discovery of a scientific principle or the formulation of an abstract theory of discovery of any living thing or non-living substance occurring in nature. The mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process result in a new product or employs at least one new reactant. A substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance. Mere arrangement or rearrangement or duplication of known devices each functioning independently of another in a known way. A method of agriculture or horticulture. Any process for the medical, surgical, curative, prophylactic, diagnostic, therapeutic or other treatment of human beings or any process for a similar treatment of animal to render them free of disease or increase their economic value or that of their products. Plant and animals in whole or any part thereof other than micro-organism but including seeds, varieties and species and essentially biological process for production or propagation of plants and animals. A mathematical or business method or a computer programme per se or alogarithms. Literary, dramatic, musical or artistic work or any other aesthetic creation including cinematographic works and television productions. A mere scheme or rule or method of performing mental act or method of playing game. A presentation of information. Topography of integrated circuits. An invention which, in effect, is a traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component. 2. Invention must be fully disclosed: It is the duty of the inventor to fully disclose the invention in the complete specification so as to facilitate anyone from the public working the invention, once the period of protection expires. The full disclosure of the patented invention is mandatory. Otherwise, the patent will not be granted. 3. Use by a person other than a patentee constitutes infringement of the patent the use by a person other than the patentees or assignee or licensee would be infringement of the patent.4. Relief in case of infringement: The plaintiff on satisfying the court about infringement of his patent would be entitled to the following reliefs:(i) Interlocutory Injunction (ii) Damages(iii) Account to Profits Q10)- Discuss IPR related to Trademark.A10)-
IPR RELATED TO TRADEMARKS What is a Trade mark?A trade mark is a visual symbol in the form of a word, a device or a label applied to articles of commerce with a view to indicate to the purchasing public that they are the goods manufactured or otherwise dealt in by a particular person as distinguished from similar goods manufactured or dealt in by other persons. A person who sells his goods under a particular trade mark acquires a sort of limited exclusive right to the use of the mark in relation to those goods. Such a right acquired by use is recognised as a form of property in the trade mark.Statutory Definition of Trade Mark Section 2(1)(zb) of the 1999 Act,1. Trade mark must be a mark which includes a device, brand, heading label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereto section 2(1)(m).2. The mark must be capable of being represented graphically.3. It must be capable of distinguishing the goods or services of one person from those of others.4. It may include shape of goods, their packaging and combination of colours.5. It must be used or proposed to be used in relation to goods or services.6. The use must be for the purpose of indicating a connection in the course of trade between the goods or services and some persons having the right as proprietor to use the mark.7. The right to proprietorship of a trade mark may be acquired by registration under the Act or by use in relation to particular goods or services.8. The right of proprietorship acquired by registration is a statutory right which requires no actual user but only an intention to use the mark.A registered trade mark can be protected against unauthorised use by others by an action for infringement. This is a statutory remedy. A trade mark may be used to indicate not only that the goods are of a particular make but are goods of that maker of a particular kind or quality. Thus a trade may indicate his best quality by one trade mark, his second quality by another trademark and so on.Trade mark performs four functions: It identifies the product and its origin. It in guarantees its unchanged quality. It advertises the product. It creates an image for the product. The function of a service mark in relation to services is similar to that of trade mark in relation to goods.What is a Good Trade Mark? It should be easy to pronounce and remember, if the mark is a word. It must be easy to spell correctly and write legibly. It should be suggestive of the quality of goods. It should be short. In case of device mark - it should be described by a single word. It should appeal to the eye as well as the ear. It should satisfy the requirements of registration.
TRADEMARK REGISTRATION PROCEDUREConduct a trademark search. To identify a definitely original trademark you may refer to the national trademark database online. File the application for trademark registration alongside with the prescribed fees. Once the mark is registered, the Trade Marks Registry sends the “Official Examination Report” asking for clarifications, if any, in accordance with the Trade Marks Act. After the application is accepted, it is published in the ‘Trade Marks Journal’, a government publication to call upon opposition from the general public, if any. If the application is not opposed inside four months, then the registration is granted. In case of opposition, registration is granted only after the case is resolved. After all due consideration is met, an official letter intimating the acceptance of the application alongside with the trademark certificate is issued by the Trade Marks Registry. The whole process takes about 15 to 18 months. The trademark is valid for ten years starting from the date of issuance of the certificate. It can be renewed for another 10 years on the payment of the prescribed fees.
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