Intellectual Property
Intellectual property (IP) refers to creations
of the mind, such as inventions; literary and artistic works; designs; and
symbols, names and images used in commerce.
IP is protected in law by, for example, patents, copyright and trademarks, which enable people to earn recognition or financial benefit from what they invent or create. By striking the right balance between the interests of innovators and the wider public interest, the IP system aims to foster an environment in which creativity and innovation can flourish.
IP law typically grants the author of an intellectual creation exclusive rights for exploiting and benefiting from their creation. However, these rights, also called monopoly right of exploitation, are limited in scope, duration and geographical extent.
IP protection is intended to stimulate the creativity of the human mind for the benefit of all by ensuring that the advantages derived from exploiting a creation benefit the creator. This will encourage creative activity and allow investors in research and development a fair return on their investment.
IP confers on individuals, enterprises or other entities the right to exclude others from the use of their creations. Consequently, intellectual property rights (IPRs) may have a direct and substantial impact on industry and trade as the owner of an IPR may - through the enforcement of such a right - prevent the manufacture, use or sale of a product which incorporates the IPR.
For this reason control over the intangible asset (IPR) connotes control of the product and markets.
IP protection encourages the publication, distribution and disclosure of the creation to the public, rather than keeping it secret while at the same time encouraging commercial enterprises to select creative works for exploitation.
Intellectual property legal titles relates to the acquisition and use of a range of rights covering different type of creations. These may be industrial or literary and artistic.
Types of intellectual property
Copyright
Copyright is a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture and films, to computer programs, databases, advertisements, maps and technical drawings.
Patents
A patent is an exclusive right granted for an invention. Generally speaking, a patent provides the patent owner with the right to decide how - or whether - the invention can be used by others. In exchange for this right, the patent owner makes technical information about the invention publicly available in the published patent document.
Trademarks
A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises. Trademarks date back to ancient times when craftsmen used to put their signature or "mark" on their products.
Industrial
designs
An industrial design constitutes the ornamental or aesthetic aspect of an article. A design may consist of three-dimensional features, such as the shape or surface of an article, or of two-dimensional features, such as patterns, lines or color.
Geographical
indications
Geographical indications and appellations of origin are signs used on goods that have a specific geographical origin and possess qualities, a reputation or characteristics that are essentially attributable to that place of origin. Most commonly, a geographical indication includes the name of the place of origin of the goods.
Requirements for patentability
If an invention is considered to be in a permissible field of endeavor, it still must pass a substantive examination before a patent can be granted for it. There are three important requirements that an invention must satisfy: the invention must be novel, the invention must be inventive, and the invention must have industrial applications. When assessing the novelty and inventiveness of an invention, only documents published before the day of filing (or day of filing of the priority application, if there is one) are to be taken into account. These documents are often referred to as "the state of the art" or "the prior art".
Novelty
The first requirement for any invention is that it is novel in the absolute sense. That is, it was not available to the public in any way before the filing date of the patent, and was not described in any publication before that date either.
The most important rule, however, is that an invention will not normally be patentable if:
- the
invention was known to the public before it was "invented" by
the individual seeking patent protection;
- the
invention was described in a publication more than one year prior to the
filing date; or
- the
invention was used publicly, or offered for sale to the public more than
one year prior to the filing date.
One of the most important lessons to learn from this requirement is that there is a one year period after the first public disclosure or offer for sale of an invention during which a patent application must be filed. This "statutory bar" is unforgiving, which means that an inventor who does not file for patent protection on her new invention within this one year grace period will lose all right to obtain patent protection on the invention.
The statutory bar applies where the invention was in public use or on sale in this country, or patented or described in a printed publication in this or another country more than one year prior to the date of the application for a patent. In other words, the right to patent is lost if the inventor delays too long before seeking patent protection. An essential difference between the novelty requirement and statutory bars is that an inventor's own actions cannot destroy the novelty of his or her own invention, but can create a statutory bar to patentability.
Non obviousness
Even if an invention is found to be novel in the strict sense, it may still be unpatentable because it is considered to be obvious to a person skilled in the art. It should be stressed that the term obvious is a legal term of art, and is used in a sense quite different from the ordinary meaning of the word. Further, the legal interpretation of the term obviousness varies from country to country.
The Supreme Court first applied the non obviousness requirement in 1966. The Court held that non obviousness could be determined through basic factual inquiries into the scope and content of the prior art, the differences between the prior art and the claims at issue, and the level of skill possessed by a practioner of the relevant art.
In 2007, the Supreme Court again addressed the test for non obviousness. The Court endorsed a more expansive and flexible approach under which "a court must ask whether the improvement is more than the predictable use of prior art elements according to their established functions."
Utility
Credible utility requires that logic and facts support the assertion of utility, or that a person of ordinary skill in the art would accept that the disclosed invention is currently capable of the claimed use. The utility must be specific to the subject matter claimed; not a general utility that could apply to a broad class of inventions. Substantial utility requires that the invention have a defined real world use; a claimed utility that requires or constitutes carrying out further research to identify or confirm a use in the context of the real world is not sufficient.
It does exclude methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practice on the human or animal body. Perpetual motion machines also fail to meet this requirement.
Trademarks
A trademark is a sign or combination of signs that distinguish goods or services of one person or enterprise from those of another. Its origin dates back to ancient times, when craftsmen reproduced their signatures, or "marks" on their artistic or utilitarian products.
The trademark law in
A trademark registration in
Who can apply and what can be registered
Under The Trade Marks Act, 1999 a person who is the proprietor of the trademark can apply for the registration of its mark for goods as well services. Any word, signature, name, logos, label, numerals or combination of colors used by one enterprise on goods or services can be registered as a trademark in
- Product
trademarks: are those that are affixed to identify goods.
- Service
trademarks: are used to identify the services of an entity, such as the
trademark for a broadcasting service, retails outlet, etc. They are used
in advertising for services.
- Certification
trademarks: are those that are capable of distinguishing the goods or
services in connection with which it is used in the course of trade and
which are certified by the proprietor with regard to their origin,
material, the method of manufacture, the quality or other specific
features
- Collective
trademarks: are registered in the name of groups, associations or other
organizations for the use of members of the group in their commercial
activities to indicate their membership of the group.
Any person claiming to be the proprietor of a trademark may apply in writing for registration
- Registration
Within three months of the publication of the trademark in the Trade Marks Journal, should the trademark not be opposed by a third party, it will proceed for registration and the Trade Marks Registry will accordingly issue a registration certificate.
- Term of
Trademark Registration
Trademark protection in
Infringement & Enforcement Remedies
A registered trademark is said to be infringed in the following circumstances:
- If a mark
which is identical with, or deceptively similar to, the registered
trademark is used in relation to the same or similar goods or services;
- If
the use of the identical/similar mark for identical/similar goods or
services is likely to cause confusion on the part of the public, or which
is likely to have an association with the registered
trademark;
- If the
use of the identical/similar mark for different goods or services is
likely to take unfair advantage of or be detrimental to the reputation of
the registered trademark in India, cause confusion on the part of the
public or which is likely to have an association with the registered
trademark;
- If a
third party uses the registered trademark, as his trade name or part of
his trade name, or name of his business concern or part of the name, of
his business concern for goods or services in respect of which the
trademark is registered;
- If the
registered trademark is applied to a material intended to be used for
labeling or packaging goods, as a business paper, or for advertising goods
or services, provided such person was not duly authorized by the
proprietor of the trademark to do so;
- If a
trademark is advertised and if (a) it takes unfair advantage of and is
contrary to honest practices in industrial or commercial matters; or (b)
is detrimental to its distinctive character; or (c) is against the
reputation of the trademark.
- If the
distinctive element of a registered trademark consist of or includes
words, and another mark creates consumer confusion when spoken or visually
represented
Geographical Indications
A geographical indication is a sign used on goods that have a specific geographical origin and possess qualities, reputation or characteristics that are essentially attributable to that place of origin. Most commonly, a geographical indication includes the name of the place of origin of the goods. Agricultural products typically have qualities that derive from their place of production and are influenced by specific local factors, such as climate and soil. Whether a sign is recognized as a geographical indication is a matter of national law. Geographical indications may be used for a wide variety of products, whether natural, agricultural or manufactured.
An appellation of origin is a special kind of geographical indication. It generally consists of a geographical name or a traditional designation used on products which have a specific quality or characteristics that are essentially due to the geographical environment in which they are produced. The concept of a geographical indication encompasses appellations of origin.
Why do geographical indications
need protection?
Geographical indications are understood by consumers to denote the origin and the quality of products. Many of them have acquired valuable reputations which, if not adequately protected, may be misrepresented by dishonest commercial operators. False use of geographical indications by unauthorized parties is detrimental to consumers and legitimate producers. Consumers are deceived into believing that they are buying a genuine product with specific qualities and characteristics, when they are in fact getting an imitation. Legitimate producers are deprived of valuable business and the established reputation of their products is damaged.
How are geographical indications
protected?
Geographical indications are protected in accordance with international treaties and national laws under a wide range of concepts, including –
- special
laws for the protection of geographical indications or appellations of
origin
- trademark
laws in the form of collective marks or certification marks
- laws
against unfair competition
- consumer
protection laws, or
- specific
laws or decrees that recognize individual geographical indications.
In essence, unauthorized parties may not use a geographical indication in respect of products that do not originate in the place designated by that indication. Applicable sanctions range from court injunctions preventing the unauthorized use to the payment of damages and fines or, in serious cases, imprisonment.
How are geographical indications
protected on the international level?
A number of treaties administered by WIPO provide for the protection of geographical indications, most notably the Paris Convention for the Protection of Industrial Property of 1883, and the Lisbon Agreement for the Protection of Appellations of Origin and Their International Registration. In addition, Articles 22 to 24 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) deal with the international protection of geographical indications within the framework of the World Trade Organization (WTO).
What is WIPO's role in the
protection of geographical indications?
WIPO is in charge of the administration of a number of international agreements which deal partly or entirely with the protection of geographical indications. Furthermore, through the work of the Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications (SCT), made up of representatives of
International conventions
Intellectual property has a dual nature, i.e. it has both a national and international dimension. For instance, patents are governed by national laws and rules of a given country, while international conventions on patents ensure minimum rights and provide certain measures for enforcement of rights by the contracting states.
General Conventions
Convention for the Protection of Industrial Property Rights signed in
Berne Convention for the Protection of Literary and Artistic Works
Convention establishing the World Intellectual Property Organisation (WIPO), signed at
Agreement on Trade-Related Aspects of Intellectual Property Rightsincluding trade in counterfeit goods (TRIPS Agreement) part of the GATT Uruguay Round signed in April 1994. The TRIPS Agreement, negotiated during the Uruguay Round, sets minimum standards for most categories of IPRs.
International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (the
The Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, or Budapest Treaty, is an international treaty signed in Budapest, Hungary, on April 28, 1977. It entered into force on August 9, 1980, and was later amended on September 26, 1980. The treaty is administered by the World Intellectual Property Organization (WIPO).
As of 2014, 79 countries were party to the Budapest Treaty.The accession to the Treaty is open to States party to the Paris Convention for the Protection of Industrial Property of 1883.
The treaty allows "deposits of microorganisms at an international depositary authority to be recognized for the purposes of patent procedure". Usually, in order to meet the legal requirement of sufficiency of disclosure, patent applications and patents must disclose in their description the subject-matter of the invention in a manner sufficiently clear and complete to be carried out by the person skilled in the art. When an invention involves a microorganism, completely describing said invention in the description to enable third parties to carry it out is usually impossible. This is why, in the particular case of inventions involving microorganisms, a deposit of biological material must be made in a recognised institution. The Budapest Treaty ensures that an applicant, i.e. a person who applies for a patent, needs not to deposit the biological material in all countries where he/she wants to obtain a patent. The applicant needs only to deposit the biological material at one recognised institution, and this deposit will be recognised in all countries party to the Budapest Treaty.
The deposits are made at an international depositary authority (IDA) in accordance with the rules of the Treaty on or before the filing date of the complete patent application.
The range of materials able to be deposited under the Budapest Treaty includes:
- cells, for example, bacteria, fungi,
eucaryotic cell lines, plant spores;
- genetic vectors (such as plasmids or bacteriophage
vectors or viruses) containing a gene or DNA fragments;
- organisms used for expression of a gene
(making the protein from the DNA).
There are many types of expression systems: bacterial; yeast; viral; plant or animal cell cultures;
- yeast, algae, protozoa, eucaryotic cells, cell lines, hybridomas,
viruses, plant tissue cells, spores, and hosts containing materials such
as vectors, cell organelles, plasmids, DNA, RNA, genes and chromosomes;
- purified nucleic acids; or
- deposits of materials not readily
classifiable as microorganisms, such as “naked” DNA, RNA, or plasmids.
The main facts for a deposit according to
the Budapest Treaty are as follows:
- A single
deposit with one IDA (e.g. the DSMZ) is recognised as valid by all
Contracting States of the Budapest Union.
- The
storage time is at least 30 years.
- After
deposition the culture cannot be claimed back. The deposit remains valid.
- The
depositor is advised to keep samples of the culture for the same period of
time so that in the case the culture is for any reason no longer available
from the Depositary Authority he can replenish the stock.
- The
Depositary Authority (the DSMZ) maintains secrecy about the details of a deposit and the nature
of the deposited material. All material and information is handled
strictly confidentially.
Patent
Cooperation Treaty
Patent
Cooperation Treaty
|
|
Signed
|
19 June 1970
|
Location
|
|
Effective
|
24 January 1978
|
Depositary
|
|
The Patent Cooperation Treaty (PCT) is an international patent law treaty, concluded in 1970. It provides a unified procedure for filing patent applications to protect inventions in each of its contracting states. A patent application filed under the PCT is called an international application, or PCT application.
A single filing of an international application is made with a Receiving Office (RO) in one language. It then results in a search performed by an International Searching Authority (ISA), accompanied by a written opinion regarding the patentability of the invention, which is the subject of the application. It is optionally followed by a preliminary examination, performed by an International Preliminary Examining Authority (IPEA).[4] Finally, the relevant national or regional authorities administer matters related to the examination of application (if provided by national law) and issuance of patent.
A PCT application does not itself result in the grant of a patent, since there is no such thing as an "international patent", and the grant of patent is a prerogative of each national or regional authority.[5] In other words, a PCT application, which establishes a filing date in all contracting states, must be followed up with the step of entering into national or regional phases to proceed towards grant of one or more patents. The PCT procedure essentially leads to a standard national or regional patent application, which may be granted or rejected according to applicable law, in each jurisdiction in which a patent is desired.
The main advantages of the PCT procedure, also referred to as the international procedure, are the possibility to delay as much as possible the national or regional procedures, and the respective fees and translation costs, and the unified filing procedure.
An international patent application (also called PCT application, as mentioned above) has two phases. The first phase is the international phase in which patent protection is pending under a single patent application filed with the patent office of a contracting state of the PCT. The second phase is the national and regional phase which follows the international phase in which rights are continued by filing necessary documents with the patent offices of separate contracting states of the PCT. A PCT application, as such, is not an actual request that a patent be granted, and it is not converted into one unless and until it enters the "national phase".
World Intellectual Property Organization (WIPO)
The World Intellectual
Property Organization (WIPO) is an international organization dedicated to
facilitating worldwide protection of the rights of creators and owners of
intellectual property.
WIPO currently has 187 states that are members of the
organization and administers 26 treaties (two of which are in conjunction with
other international organizations).The current Director-General of WIPO is Francis
Gurry.
The 26 treaties administered by WIPO are divided into
three classes:
Intellectual
Property Treaties that define the internationally agreed basic standards of
intellectual property protection; e.g. Paris Convention
Global
Protection System Treaties that aim to ensure that one international
registration or filing will have effect in any of the relevant signatory
States; e.g. PCT and Budapest Treaty.
Classification
Treaties that create systems that organize information concerning inventions
into indexed structures to enable easy retrieval; e.g. International Patent
Classification (IPC).
Through these treaties, WIPO seeks to harmonize national
intellectual property legislation and procedures; provide services for international
applications for industrial property rights; exchange intellectual property
information; provide legal and technical assistance to developing countries;
facilitate the resolution of private intellectual property disputes; and
marshal information technology as a tool for storing, accessing and using
valuable intellectual property information.
While the cornerstones of WIPO's treaty system remain
the Paris Convention (relating to patents) and the Berne Convention (relating
to copyright), subsequent treaties have not only widened and deepened the
protection they offer, but have encompassed technological change and new areas
of interest and concern.
TRIPS Agreement
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement administered by the World Trade Organization (WTO) that sets down minimum standards for many forms of intellectual property (IP) regulation. It was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994.
The TRIPS agreement introduced intellectual property law into the international trading system for the first time and remains the most comprehensive international agreement on intellectual property to date. In 2001, developing countries, concerned that developed countries were insisting on an overly narrow reading of TRIPS, initiated a round of talks that resulted in the Doha Declaration. The
Specifically, TRIPS requires WTO members to provide copyright rights, covering content producers including performers, producers of sound recordings and broadcasting organizations; geographical indications, including appellations of origin; industrial designs; integrated circuit layout-designs; patents; new plant varieties; trademarks; trade dress; and undisclosed or confidential information. TRIPS also specifies enforcement procedures, remedies, and dispute resolution procedures. Protection and enforcement of all intellectual property rights shall meet the objectives to contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.
The
IPRs covered by the TRIPS Agreement are:
• Copyright and related rights (i.e. the rights of performers,
producers of sound recordings and broadcasting organizations)
• Trademarks, including service marks
• Geographical indications including appellations of origin
• Industrial designs
• Patents including the protection of new varieties of plants
• Layout-designs (topographies) of integrated circuits
• Undisclosed information, including trade secrets and test data
The
requirements of TRIPS
TRIPS requires member states to provide strong protection for intellectual property rights. For example, under TRIPS:
- Copyright terms must extend at least 20
years, unless based on the life of the author. (Art.
12 and 14)[4][not in citation given]
- Copyright must be granted automatically, and
not based upon any "formality," such as registrations, as specified in the Berne Convention. (Art. 9)
- Computer programs must be regarded as
"literary works" under copyright law and receive the same terms
of protection.
- National exceptions to copyright
(such as "fair use" in the
- Patents must be granted for
"inventions" in all "fields of technology" provided
they meet all other patentability requirements (although exceptions for
certain public interests are allowed (Art. 27.2 and 27.3)[5]
and must be enforceable for at least 20 years (Art 33).
- Exceptions to exclusive rights must be
limited, provided that a normal exploitation of the work (Art. 13)
and normal exploitation of the patent (Art 30) is not in conflict.
- No unreasonable prejudice to the legitimate
interests of the right holders of computer programs and patents is
allowed.
- Legitimate interests of third parties have to
be taken into account by patent rights (Art 30).
- In each state, intellectual property laws may
not offer any benefits to local citizens which are not available to
citizens of other TRIPS signatories under the principle of national treatment (with certain limited
exceptions, Art. 3 and 5).[6]
TRIPS also has a most favored nation clause.
Many of the TRIPS provisions on copyright were copied from the Berne Convention for the Protection of Literary and Artistic Works and many of its trademark and patent provisions were modeled on the Paris Convention for the Protection of Industrial Property.
The Paris Convention for the Protection of Industrial Property, signed in
The Paris Convention established some important international protocols to deal with multi-national patent filings. It both protects some rights of those who file international applications, and governs procedure for how signatory states should treat these patent filings. Most importantly, the Paris Convention included the vital concept of “priority". This means that under the Paris Convention, patent applicants are granted the date of their first filing as the active application date for patent applications in all additional Paris Union countries, for up to 12 months after filing the original application. In other words, this means that if an inventor wants to obtain patent protection in multiple Paris Convention countries, he/she needs only to file an application in one of those countries, and the filing date of the first application will be honored and taken as the effective filing date of any other Paris Union country applications that are filed within the next 12 months. This allows inventors to get their international patent filings done over a yearlong period, as opposed to rushing to complete many international patent filings as quickly as possible after the initial invention is completed.
Berne Convention
The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland, in 1886.
The Berne Convention requires its signatories to recognize the copyright of works of authors from other signatory countries (known as members of the Berne Union) in the same way as it recognizes the copyright of its own nationals. For example, French copyright law applies to anything published or performed in
In addition to establishing a system of equal treatment that internationalised copyright amongst signatories, the agreement also required member states to provide strong minimum standards for copyright law.
Copyright under the Berne Convention must be automatic; it is prohibited to require formal registration.
Basic stipulations
The Berne Convention states that all works shall be protected for at least
50 years after the author's death with the following exceptions
- For photography the minimum term is
25 years from the year the photograph was created
- For cinematography the minimum term
is 50 years after first showing, or, if the work has never been shown, 50
years from the creation date.
Note:
These are the minimum terms of protection. Countries are free to provide
longer terms of protection under national law. In the UK
Rights of Copyright holder
The Copyright Act grants certain exclusive rights to the owner of a copyright in a work. These exclusive rights are different from the rights given to a person who merely owns a copy of the work.
The Copyright Act grants five rights to a copyright owner, which are described in more detail below.
- the right
to reproduce the copyrighted work;
- the right to
prepare derivative works based upon the work;
- the right
to distribute copies of the work to the public;
- the right to
perform the copyrighted work publicly; and
- the right to
display the copyrighted work publicly.
The rights are not without limit, however,
as they are specifically limited by "fair use" and several other
specific limitations set forth in the Copyright Act.
The reproduction right is perhaps the most important right granted by the Copyright Act. Under this right, no one other than the copyright owner may make any reproductions or copies of the work. Examples of unauthorized acts which are prohibited under this right include photocopying a book, copying a computer software program, using a cartoon character on a t-shirt, and incorporating a portion of another's song into a new song.
It is not necessary that the entire original work be copied for an infringement of the reproduction right to occur. All that is necessary is that the copying be "substantial and material."
The right to make a derivative work overlaps somewhat with the reproduction right. According to the Copyright Act, a derivative work is
- a work based upon one or more preexisting works, such as a
translation, musical arrangement, dramatization, fictionalization, motion
picture version, sound recording, art reproduction, abridgment,
condensation, or any other form in which
- a work may be recast, transformed, or adapted.
A derivative work usually involves a type
of transformation, such as the transformation of a novel into a motion picture.
In the computer industry, a second version of a software program is generally
considered a derivative work based upon the earlier version.
Distribution:
The distribution right grants to the copyright holder the exclusive right to make a work available to the public by sale, rental, lease, or lending. This right allows the copyright holder to prevent the distribution of unauthorized copies of a work. In addition, the right allows the copyright holder to control the first distribution of a particular authorized copy. However, the distribution right is limited by the "first sale doctrine", which states that after the first sale or distribution of a copy, the copyright holder can no longer control what happens to that copy. Thus, after a book has been purchased at a book store (the first sale of a copy), the copyright holder has no say over how that copy is further distributed. Thus, the book could be rented or resold without the permission of the copyright holder.
The public performance right allows the copyright holder to control the public performance of certain copyrighted works. The scope of the performance right is limited to the following types of works:
- literary
works,
- musical
works,
- dramatic
works,
- choreographic
works,
- pantomimes,
- motion
pictures, and
- audio
visual works.
The public display right is similar to the public performance right, except that this right controls the public "display" of a work. This right is limited to the following types of works:
- literary
works;
- musical
works;
- dramatic
works;
- choreographic
works;
- pantomimes;
- pictorial
works;
- graphical
works;
- sculptural
works; and
- stills
(individual images) from motion pictures and other audio visual works.
Cybersquatting
Cybersquatting (also known as domain squatting), according to the United States federal law known as the Anticybersquatting Consumer Protection Act, is registering, trafficking in, or using a domain name with bad faith intent to profit from the goodwill of a trademark belonging to someone else. The cybersquatter then offers to sell the domain to the person or company who owns a trademark contained within the name at an inflated price.
The term is derived from "squatting", which is the act of occupying an abandoned or unoccupied space or building that the squatter does not own, rent, or otherwise have permission to use. Cybersquatting, however, is a bit different in that the domain names that are being "squatted" are (sometimes but not always) being paid for through the registration process by the cybersquatters.[original research?] Cybersquatters usually ask for prices far greater than that at which they purchased it.
Commercial domain names (technically, you reserve a second-level domain name) are obtained from one of several registries. However, these registries make no attempt to determine whether the domain name is one that rightfully ought to go to someone else. Consequently, a number of enterprising individuals and companies have applied for and reserved domain names, either new or expired, that they think someone else will want, either now or in the future.
Categories of Cyber Squatting
Cyber squatting can be of various
categories, most commonly seen is typo squatting, when a cyber squatter
registers domain names containing variant of popular trademarks. Typo squatters
rely on the fact that Internet users will make typographical errors when
entering domain names into their web browsers. Some common examples of typo
squatting include:
The omission of the “dot” in the
domain name: wwwexample.com;
A common misspelling of the intended
site: exemple.com
A differently phrased domain name:
examples.com
A different top-level domain:
example.org
A victim of cyber squatting has two
options:
a. sue under the provisions of the Anti
cyber squatting Consumer Protection Act (ACPA), or
b. use an international arbitration
system created by the Internet Corporation of Assigned Names and Numbers
(ICANN).
Since there is an initial and yearly fee
for owning a domain name, some cybersquatters reserve a long list of names and
defer paying for them until forced to - preempting their use by others at no
cost to themselves. The registry companies are working on this problem.
Meanwhile, the Internet Corporation for Assigned Names and Numbers (ICANN), which
licenses the domain name registrars, is working on a process for resolving
domain name disagreements outside of the regular court system. Although
trademark laws may offer some protection, it is often cheaper to buy the domain
name from the cybersquatter than it is to sue for its use.
Biological diversity
Biodiversity is the degree of variation of life.[1] This can refer to genetic variation, ecosystem variation, or species variation (number of species)[1] within an area, biome, or planet.
According to Convention on Biological Diversity 1992, Biological diversity' means the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are a part; this includes diversity within species, between species and of ecosystems.
The variety of life at every hierarchical level and spatial scale of biological organisations: genes within populations, populations within species, species within communities, communities within landscapes, landscapes within biomes, and biomes within the biosphere.
Importance
The increasing use of the term biodiversity is being driven by the fact that, in an ecological context, global biodiversity itself is being lost at an alarming rate 12. Although it has been shown that the significant global biodiversity loss that has occurred over the timeframe of human existence has not stopped global human population increase 13, there is clear evidence that biodiversity loss can affect the wellbeing of society and have negative economic impacts 14.
Biodiversity underpins ecosystem function and the provision of ecosystem services. Biodiversity loss therefore threatens the provision of goods and services provided by ecosystems. Reduction in biodiversity can affect decomposition rates, vegetation biomass production and, in the marine environment, affect fish stocks 15, 16, 17, 18. It is predicted that a reduction in marine productivity means that fisheries will not be able to meet the demands of a growing global population 19. In addition to the gradual decline in environmental function linked to reductions in biodiversity, it has been suggested that there is a risk that at some point a threshold will be crossed and a catastrophe may occur. Research has highlighted that biodiversity loss could rival the problems of carbon dioxide increases as one of the major drivers of ecosystem change in the 21st century 20. Whether from environmental collapse or gradual decline in function, our ability to adapt to a changing world may be considerably reduced if the environment on which we rely does not contain sufficient biodiversity to evolve and continue to support our needs.
Biosafety
Biosafety is the prevention of large-scale loss of biological integrity, focusing both on ecology and human health.[1] These prevention mechanisms include conduction of regular reviews of the biosafety in laboratory settings, as well as strict guidelines to follow. Biosafety is used to protect us from harmful incidents. High security facilities are necessary when working with Synthetic Biology as there are possibilities of bioterrorism acts or release of harmful chemicals and or organisms into the environment. A complete understanding of experimental risks associated with synthetic biology is helping to enforce the knowledge and effectiveness of biosafety.[2]
Biosafety is related to several fields:
- In ecology
(referring to imported life forms from beyond ecoregion
borders),
- In agriculture
(reducing the risk of alien viral or transgenic
genes, genetic engineering or prions such as
BSE/"MadCow", reducing the risk of food bacterial contamination)
- In medicine
(referring to organs or tissues from biological origin, or genetic therapy
products, virus; levels of lab
containment protocols measured as 1, 2, 3, 4 in rising order of
danger),
- In chemistry
(i.e., nitrates in water, PCB levels affecting fertility)
- In exobiology
(i.e., NASA's policy for containing alien microbes that may exist on space
samples - sometimes called "biosafety
level 5"[citation needed]). and
- In synthetic biology (referring to the risks
associated with this type of lab practice)
A biosafety level is a level of the biocontainment precautions required to isolate dangerous biological agents in an enclosed facility. The levels of containment range from the lowest biosafety level 1 (BSL-1) to the highest at level 4 (BSL-4). In the
Bioethics
Bioethics is the study of typically controversial ethics brought about by advances in biology and medicine. It is also moral discernment as it relates to medical policy, practice, and research. Bioethicists are concerned with the ethical questions that arise in the relationships among life sciences, biotechnology, medicine, politics, law, and philosophy. It also includes the study of the more commonplace questions of values ("the ethics of the ordinary") which arise in primary care and other branches of medicine.
The field of bioethics has addressed a broad swathe of human inquiry, ranging from debates over the boundaries of life (e.g. abortion, euthanasia), surrogacy, the allocation of scarce health care resources (e.g. organ donation, health care rationing) to the right to refuse medical care for religious or cultural reasons. Bioethicists often disagree among themselves over the precise limits of their discipline, debating whether the field should concern itself with the ethical evaluation of all questions involving biology and medicine, or only a subset of these questions.[4] Some bioethicists would narrow ethical evaluation only to the morality of medical treatments or technological innovations, and the timing of medical treatment of humans. Others would broaden the scope of ethical evaluation to include the morality of all actions that might help or harm organisms capable of feeling fear.
The scope of bioethics can expand with biotechnology, including cloning, gene therapy, life extension, human genetic engineering, astroethics and life in space,[5] and manipulation of basic biology through altered DNA, XNA and proteins.[6] These developments will affect future evolution, and may require new principles that address life at its core, such as biotic ethics that values life itself at its basic biological processes and structures, and seeks their propagation.[7]
Medical ethics is the study of moral values and judgments as they apply to medicine. As a scholarly discipline, medical ethics encompasses its practical application in clinical settings as well as work on its history, philosophy, theology, and sociology.
Medical ethics tends to be understood narrowly as an applied professional ethics, whereas bioethics appears to have worked more expansive concerns, touching upon the philosophy of science and issues of biotechnology. Still, the two fields often overlap and the distinction is more a matter of style than professional consensus. Medical ethics shares many principles with other branches of healthcare ethics, such as nursing ethics. A bioethicist assists the health care and research community in examining moral issues involved in our understanding of life and death, and resolving ethical dilemmas in medicine and science.
Bio Piracy
“Bio piracy ‘refers to the use of intellectual
property systems to legitimize the exclusive ownership and control over
biological resources and biological products and processes that have been used
over centuries in non-industrialized culture”.
Until and unless the very own traditional
knowledge of our is protected, the country would have to fight for patents
claimed by other countries as in the case of Haldi, Neem and Basmati . Creation of the TKDL, which targets Ayurveda in the first
phase, would go a long way in this goal of protecting the country's traditional
knowledge. It would help fusion of country's traditional knowledge with modern
science. Government has taken a very effective move by setting up of an
inter-ministerial access policy committee for TKDL to decide on accessing the
data stored in the library. The West had claimed many of inventions
which were known to India India
Civil remedies available with Indian Jurisdiction:
When any of the rights granted by the IP regime is violated the
aggrieved party has two non mutually exclusive remedies. First being civil
remedy and the other being a criminal remedy. Civil remedies can be enforced by
a filing a suit for infringement and/or passing off in the competent court.
Further in case of copyright, trademark and patent following reliefs of civil
nature are available;
i. Interlocutory/Temporary/Ad-interim Injunction
Interlocutory/Temporary/Ad-interim Injunction generally mean prohibiting an action by a party to a lawsuit until the disposal of the suit. It is discretionary relief and granted only if the plaintiff is able to establish that there is prima facie case in his favour, the balance of convenience lies in his favour and if the temporary injunction is not granted he will bear irreparable loss.
ii. Mareva Injunction
Mareva injunction is to protect the interests of the plaintiff during the pendency of the suit and is granted to restrain the defendant from disposing of their assets within the jurisdiction until the trial ends or judgment in the action for infringement is passed.
iii. Anton Pillar Orders
In appropriate cases, the court has inherent jurisdiction on an application by the plaintiff made ex parte and in camera to require the defendant to permit the plaintiff to enter his premises and take inspection of relevant documents and articles and take copies thereof or remove them for safe custody. These are known as Anton Piller orders. The necessity for such an order arises when there is grave danger of relevant documents and infringing articles being removed or destroyed, so that the ends of justice will be defeated.
iv. John Doe Orders
John Doe orders are the orders issued by the court to search and seize against unnamed/ unknown defendants; which virtually translates into untrammeled powers in the hands of the plaintiffs, aided by court-appointed local commissioners, to raid any premises where infringement activities may be carried out.
v. Permanent/Perpetual Injunction
Permanent / Perpetual Injunction is a final order of a court that a person or entity refrain from certain activities permanently or take certain actions in perpetuity.
vi. Damages or Accounts of Profits
Damages or accounts of profits are two mutually exclusive remedies granted to the Plaintiff. Damages are granted to the plaintiff to compensate for the losses suffered by the Plaintiff on account of the defendant’s acts. Accounts of profits is an equitable remedy and requires the defendant to hand over to the plaintiff the actual amounts of profits made by the him due to the infringing activities.
vii. Delivery-up and Destruction
Under this relief the infringing goods are delivered to the plaintiff or destroyed.
i. Interlocutory/Temporary/Ad-interim Injunction
Interlocutory/Temporary/Ad-interim Injunction generally mean prohibiting an action by a party to a lawsuit until the disposal of the suit. It is discretionary relief and granted only if the plaintiff is able to establish that there is prima facie case in his favour, the balance of convenience lies in his favour and if the temporary injunction is not granted he will bear irreparable loss.
ii. Mareva Injunction
Mareva injunction is to protect the interests of the plaintiff during the pendency of the suit and is granted to restrain the defendant from disposing of their assets within the jurisdiction until the trial ends or judgment in the action for infringement is passed.
iii. Anton Pillar Orders
In appropriate cases, the court has inherent jurisdiction on an application by the plaintiff made ex parte and in camera to require the defendant to permit the plaintiff to enter his premises and take inspection of relevant documents and articles and take copies thereof or remove them for safe custody. These are known as Anton Piller orders. The necessity for such an order arises when there is grave danger of relevant documents and infringing articles being removed or destroyed, so that the ends of justice will be defeated.
iv. John Doe Orders
John Doe orders are the orders issued by the court to search and seize against unnamed/ unknown defendants; which virtually translates into untrammeled powers in the hands of the plaintiffs, aided by court-appointed local commissioners, to raid any premises where infringement activities may be carried out.
v. Permanent/Perpetual Injunction
Permanent / Perpetual Injunction is a final order of a court that a person or entity refrain from certain activities permanently or take certain actions in perpetuity.
vi. Damages or Accounts of Profits
Damages or accounts of profits are two mutually exclusive remedies granted to the Plaintiff. Damages are granted to the plaintiff to compensate for the losses suffered by the Plaintiff on account of the defendant’s acts. Accounts of profits is an equitable remedy and requires the defendant to hand over to the plaintiff the actual amounts of profits made by the him due to the infringing activities.
vii. Delivery-up and Destruction
Under this relief the infringing goods are delivered to the plaintiff or destroyed.
Prior art
Prior art is all information that has been disclosed to the public in any form about an invention before a given date. Prior art includes things like any patents related to your invention, any published articles about your invention, and any public demonstrations.
Patent law states "On taking up an application for examination or a patent in a reexamination proceeding, the examiner shall make a thorough study thereof and shall make a thorough investigation of the available prior art relating to the subject matter of the claimed invention." This means that prior art could disqualify your application for a patent.
According to Patentcafe prior art is "the total body of knowledge, which teaches or otherwise relates directly to an invention. This is the primary criteria in determining the patentability of a new invention. Establishes novelty and unobviousness of the art that relates to the invention in question. Prior art references include documentary sources such as patents and publications from anywhere in the world, and nondocumentary sources such as things known or used publicly."
Types of
prior art searches
Novelty
A "novelty search" is a prior art search that is often conducted by patent attorneys, patent agents or professional patent searchers before an inventor files a patent application. A novelty search helps an inventor to determine if the invention is novel before the inventor commits the resources necessary to obtain a patent. The search may include searching in databases of patents, patent applications and other documents such as utility models and in the scientific literature. Novelty searches can also be used to help an inventor determine what is unique about his/her invention. Anything not found in the prior art can be potentially patentable. Thomas Edison, for example, did not get a patent on the basic concept of the light bulb. It was already patented and therefore in the prior art. Instead,
Validity
A "validity search" is a prior art search done after a patent issues. The purpose of a validity (or invalidity) search is to find prior art that the patent examiner overlooked so that a patent can be declared invalid. This might be done by an entity infringing, or potentially infringing, the patent, or it might be done by a patent owner or other entity that has a financial stake in a patent to confirm the validity of a patent. Crowdsourcing, where a large number of interested people search for prior art, may be effective where references would otherwise be difficult to find.[8]
Clearance
A clearance search is a search of issued patents to see if a given product or process violates someone else's existing patent. If so, then a validity search may be done to try to find prior art that would invalidate the patent. A clearance search is a search targeting patents being in force and may be limited to a particular country and group of countries, or a specific market.
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