A presentation on Intellectual Property Right

Amity Business School
INTELLECTUAL
PROPERTY
1

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.
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
2

INTELLECTUAL PROPERTY RIGHTS
IPR is the body of law developed to protect the creative people who
have disclosed their invention for the benefit of mankind. This
protects their invention from being copied or imitated without their
consent.
3

Patents
Trade Marks
Copyrights
Geographical Indications
Industrial Designs
4

Patents
A patent is a form of right granted by the government to an inventor,
giving the owner the right to exclude others from making, using,
selling, offering to sell, and importing an invention for a limited
period of time, in exchange for the public disclosure of the invention.
An invention is a solution to a specific technological problem, which
may be a product or a process and generally has to fulfil three main
requirements: it has to be new, not obvious and there needs to be
an industrial applicability.[16]:17
Plant varieties
Plant breeders' rights or plant variety rights are the rights to
commercially use a new variety of a plant. The variety must amongst
others be novel and distinct and for registration the evaluation of
propagating material of the variety is examined.
5

Copyright
A copyright gives the creator of an original work exclusive rights to it,
usually for a limited time. Copyright may apply to a wide range of
creative, intellectual, or artistic forms, or "works".[17][18] Copyright
does not cover ideas and information themselves, only the form or
manner in which they are expressed.[19]
Industrial design rights
An industrial design right (sometimes called "design right" or design
patent) protects the visual design of objects that are not purely
utilitarian. An industrial design consists of the creation of a shape,
configuration or composition of pattern or color, or combination of
pattern and color in three-dimensional form containing aesthetic
value. An industrial design can be a two- or three-dimensional
pattern used to produce a product, industrial commodity or
handicraft.
6

7
Plant varieties
Plant breeders' rights or plant variety rights are the rights to
commercially use a new variety of a plant. The variety must
amongst others be novel and distinct and for registration the
evaluation of propagating material of the variety is examined.
Trademarks
A trademark is a recognizable sign, design or expression which
distinguishes products or services of a particular trader from the
similar products or services of other traders.[20][21][22]

Trade dress
Trade dress is a legal term of art that generally refers to
characteristics of the visual and aesthetic appearance of a product
or its packaging (or even the design of a building) that signify the
source of the product to consumers.[23]
Trade secrets
A trade secret is a formula, practice, process, design,
instrument, pattern, or compilation of information which is not
generally known or reasonably ascertainable, by which
a business can obtain an economic advantage over competitors and
customers. There is no formal government protection granted; each
business must take measures to guard its own trade secrets (e.g.
Formula for coca-cola.)
8

INDIAN PATENT ACT

Patent, is a legal document granted by the government
giving an inventor the exclusive right to make, use, and
sell an invention for a specified number of years. Patents
are also available for significant improvements on
previously invented items.
The goal of the patent system is to encourage inventors
to advance the state of technology by awarding them
special rights to benefit from their inventions.
A patent in India is granted for a year of twenty year.

HISTORY
 The Patent Law of 1856
The Patent and Designs Act, 1911.
The Patents Act, 1970 and Rules 1972
The Patent amendment act 2005
11

Definitions
• "new invention" means any invention or technology
which has not been anticipated by publication in any
document or used in the country or elsewhere,
• "patent" means a patent for any invention granted
under this Act;
• "patentee" means the person for the time being
entered on the register as the grantee or proprietor of
the patent;
• “exclusive licence” means a licence from a patentee
which confers on the licensee,

Patent Infringement in
India
13

The Indian patents act 1970 does not specifically define activities
that constitute infringement of patents section 48 of the Indian
patents act 1970, however, confers exclusive rights upon the patentee
to exclude third parties from making, importing , using ,offering for
sale or selling the patented invention, patented product or patented
process.
It can therefore be concluded that violation of aforementioned
monopoly rights would constitute infringement of a patent.
14

Patent infringement suit
As per section 104(A) of the Indian patent act 1970, in a patent
infringement suit, where the subject matter of patent is a process for
obtaining a new product or there is substantial likelihood that an identical
product is made by the patented process and the patent holder or a person
deriving title or interest in the patent from him, has proved that the product
is identical to the product directly obtained by the patented process but the
patent holder could not establish through reasonable efforts to determine
the process actually used by the infringer, then the court may direct the
defendant to prove that the process used by him to obtain the product,
identical to the product of the patented process, is different from the
patented process
15

Exceptions to the infringement
1) Government use
2) Research
3) Supply of patented drugs to health institution
4) Use of patented invention on foreign vessels
5) Parallel import
16

Defense in suits for infringement
As per section 107 of the Indian patent act,1970:
1) In any suit of infringement of a patent every ground on which it may be revoked under
section 64 of patent act shall be available as a ground for defense.
2)It shall be a ground for defense that such making, using, importation, or distribution is
in accordance with any one or more of the conditions specified in section 47 of the
Indian patents Act.
Administrative remedy
If and when infringing goods are imported in to Indian territory, he IP owner can
approach the collector of customs and prevent the entry of these goods in to Indian
market. The IP owner must provide the name of the exporter, consignee, port of entry,
name of shipment etc to avail him/herself of this remedy.
17

Civil Remedy
To claim damages, the IP owner will have to pay a court fee on the damages claimed. The
chartered High Court in India, namely, Bombay, Madras, Calcutta and Delhi have different
and liberal laws for the computation of the court fee.
Burden of proof
where there is an alleged infringement of a patented invention that is in the form of a
product, the burden of establishing that an infringement has occurred lies on the patentee.
However, in the case of a process patent, the burden may shift to the defendant/ infringer
provided the patentee is able to prove to the court that through reasonable efforts he/she
has not been able to determine the process which has been used by the defendant .
18

Amity Business SchoolWhat is it about?
Defendant served a Legal Notice dated 3rd April 2006 on
Plaintiff. Plaintiff sought declaration that the threats made
by the defendant through the notice with respect to the
shoes being manufactured by the plaintiff being an
infringement of the trade mark or patent rights of the
defendant were unjustified and wrongful. Plaintiff also
sought the relief of injunction to restrain the defendant
from issuing the groundless, unjustifiable or wrongful
threats to the plaintiff and also from circulating threats
through circulars or advertisements or by
communications (oral or written) to the plaintiff or any
other person, in this regard.
20

Plaintiff also sought damages of Rs.20 lacs on account of the
unjustifiable and wrongful threats issued by the defendant.
Defendant, Vitaflex Mauch Gmbh was proceeded ex parte
order and never appeared in any proceedings thereafter. Suit
is decreed in the favour of Plaintiff.
What is interesting here?
Onus was on the defendant to show that the defendant had a
right in the reflex/pressure points depiction as a trade mark
including by registration thereof or that the defendant had a
valid patent and which as per the defendant was being
infringed by the plaintiff.
21

Bata India Limited Vs.
Vitaflex Mauch Gmbh
22

Amity Business SchoolARGUMENTS :
The basis for filing of the suit is that the plaintiff
received from the defendant a Legal Notice
dated 03.04.2006 and in which notice the
defendant stated, inter alia, the following:-
(i) That the Defendant is responsible for the
distribution of shoes marketed under the brand
"nach
Dr. Mauch" or "by doc Mauch";
(ii) That the insole of the shoes is allegedly
characterized by a 5 points design;
(iii) That the Defendant allegedly has a pending
trademark application in India, under no.1 264
384 for "5 POINTS (fig.)";
23

(iv)That the Defendant allegedly has a pending patent
application in India, under no.01251/CHENP/2003
published under Number IN 02076255. The Defendant
did not, however, enclose a copy of the application with
the notice;
(v) That the Plaintiff is allegedly making "copies" of the
Defendant's products in regard to appearance as well as
functionality;
(vi) That one of the few noticeable differences is that the
Plaintiff's product has 6 points, instead of the 5 points in
the Defendant's product;
(vii) That the general impression is very similar;
;
24

(viii) That the Plaintiff is infringing the Defendants
trademark rights
(ix) That the Plaintiff's product allegedly infringes the
Defendant's patent
(x) That, allegedly, the only difference between the
Plaintiff's and Defendant's product is the "low quality" of
the plaintiff's products;
25

Plaintiff replied to the Legal Notice dated 03.04.2006 by
its Legal Notice dated 18.04.2006 stating, inter alia, the
following:-
"(i) That the Defendant has made a false assertion that
the shoe or the insole is patented in India and that the
Defendant had only applied for a patent;
(ii) That the Defendant's Indian application cannot go
beyond the claims of the PCT application, from which it
claims to derive priority;
(iii) That the PCT application only claims novelty in the
material and the thickness of the insole and not in the
configuration of the pressure points;
26

(iv) That the Defendant is not a holder of any registered
trademarks in India, and cannot claim trademark
infringement;
(v) That even under common law, the alleged five-point
configuration of pressure points is not entitled to
trademark protection as it is a functional concept and
has not acquired any distinctiveness. Further, non-user
of the mark leads to the conclusion that the mark has no
reputation in the minds of the purchasing public."
27

Amity Business SchoolStatutory Provisions :
• According to the provisions of Section 106 of the
Patents Act, the Plaintiff is entitled to file suit seeking
• - declaration to the effect that the threats are
unjustifiable;
• - injunction against groundless threats,
• - such damages, if any, as he has sustained thereby.
• Unless in such suit the Defendant proves that the acts
in respect of which threats are being issued are
arising from patent infringement or from the
publication of a complete specification.
• In view thereof, in this case the onus was on the
Defendant to show that the Defendant has a patent
right over the reflex/pressure points.
28

JUDGEMENT :
• A conjoint reading of Section 48, 52 and 70 of the
Patents Act shows that in order to be successful to
claim infringement, there must be granted a patent to
the person who has issued the threat/legal notice that
the Plaintiff should not violate the rights of the
patentee. Since the Defendant had been unable to
show that it has a valid patent pertaining to five
pressure points/reflex points, the Defendant was
restrained to issue any groundless threats through
circulars or advertisements or by communication to
the Plaintiff with respect to five pressure points/reflex
points.
• It was thus declared that the threats made by the
defendant to the plaintiff are groundless, unjustifiable
and wrongful. 29

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