National IPR Policy Of India And Technology Issues

Indian government is in the process of formulating the National Intellectual Property Rights (IPRs) Policy of India and preliminary formalities have already been completed in this regard. A group of experts have been brought together in the form of a think tank that would assist the government in this regard.

We at Perry4Law and Perry4Law’s Techno Legal Base (PTLB) welcome this move of Indian government and we wish and hope that the proposed national IPR policy of India would be released very soon. With the experts on the board, the proposed IPR policy would be drafted with best intentions and in the most appropriate manner.

We also hope and presume that the think tank would also consider the technology aspects of intellectual property rights while drafting the policy document. For instance, issues pertaining to domain name dispute resolution, cyber squatting, online copyright violations and their redressal, pirated TV broadcasting, industrial espionage, e-books, anti piracy redressal mechanism, online brands infringements and their management, international exhaustion of trademarks,  challenges of new GTLDs, etc must also be considered while formulating the proposed national IPR policy of India.

Public awareness about IPRs protection and management in India is very low. At time companies and individuals take actions that are clearly illegal. Similarly, many times stakeholders are not aware that they are actually violating the IPRs of others. In many cases IPR protection under patent law of India is lost for improper handling of the product to be patented. Conflict of laws in cyberspace also requires compliance with laws of other jurisdictions to get appropriate relief.

IPR Helpdesk of Perry4Law has been spreading public awareness about IPRs in India and abroad since 2005. We believe that there is an urgent need to reform Indian IP laws keeping in mind the use and impact of technology upon them. The proposed national IPR policy of India also needs to cater technological issues of IPR in India. We hope the same would be achieved for the larger benefit of all stakeholders.

Dish TV Set Top Boxes Used Illegally In UAE

Digital contents have become a valuable commodity these days. The entertainment industry of India has also understood this fact very clearly. As a result it is trying hard to get maximum share in local and international markets.

However, these efforts must be legal in nature to be effective. The latest episode of illegal import of set top boxes of Dish TV and TataSky in UAE is an example where these companies are required to keep a close watch.

We hope these companies would have taken note of this negative development and must have framed techno legal polices to insulate themselves from legal actions originating from around the globe.

Mozilla Issued Cease And Desist Notice To Gamma International For Maliciously Using Its Brand and Reputation

E-surveillance can result in trademark infringement and brand violation. This sounds strange but recently this sort if case come to our knowledge. A report provided by Citizen Lab has disclosed this bizarre and criminal violation of Mozilla Firefox’s trademark and rights.

Media Law has discovered that commercial Spyware manufacturer Gamma International has been engaging in unethical behaviour by disguising and using its malware as Mozilla Firefox software. Naturally, users seeing the Mozilla Firefox files would neither doubt the integrity of that malicious file nor would they care to do a virus or malware scan upon assumed white listed and trusted software and its corresponding files.

This way the malware can remain undetected and it can keep on functioning illegally and unnoticed. The Spyware is known as FinFisher that has been openly abused by draconian and repressive governments around the world. These incidences reaffirm the commitment to ensure civil liberties protection in cyberspace.

Reacting sharply, Mozilla Firefox had sent Gamma a cease and desist letter demanding that these illegal practices stop immediately. Mozilla said that it cannot abide a software company using its name to disguise online surveillance tools that can be – and in several cases actually have been – used by Gamma’s customers to violate citizens’ human rights and online privacy.

The malware does not affect Firefox itself, either during the installation process or when it is operating covertly on a person’s computer or mobile device. Gamma’s software is entirely separate, and only uses Mozilla’s brand and trademarks to lie and mislead as one of its methods for avoiding detection and deletion.

To avoid detection from anti virus and anti malware softwares, Gamma misrepresents its program as “Firefox.exe” and includes the properties associated with Firefox along with a version number and copyright and trademark claims attributed to Firefox and Mozilla Developers. For an expert user who examines the underlying code of the installed spyware, Gamma includes verbatim the assembly manifest from Firefox software. This way it could remain undetected and keep on operating at the user’s computer.

This is a serious issue and Mozilla should take strict action against all those who are abusing its trademark and name to deliver malware. It is not only the legal but also the moral responsibility of Mozilla to keep its users safe from such malware and illegal and deceptive uses.

US International Trade Commission Held That Apple Did Not Violate Google’s Patent

Apple has been defending itself against a patent infringement suit file by Google. The bone of contention was Google’s patent to make the popular iPhones. The matter was pending before the US International Trade Commission that ruled that Apple did not violate Google’s patent.

Google alleged that apple has violated six patents for iPhone-related technology that range from reducing signal noise to programming the device's touchscreen so that a user does not accidentally activate it while talking on the phone.

If Apple had been found guilty of violating Google’s patent, its devices could have been banned from being imported into the United States. Google has now the option to appeal against this decision to the US Court of Appeals for the Federal Circuit. As on date, Google is exploring all available options in this regard.

It seems Google would not be able to successfully pursue Android's wide-scale patent infringement issues through litigation over Motorola's patents, which have given it no real leverage so far. Google has been unable to deter third-party patent holders such as Apple, Microsoft and Nokia from enforcing their rights.

Recently the Mannheim Regional Court decided that Google's Motorola Mobility is not entitled to an injunction against Microsoft over its push notification patent because Google owes Microsoft a license under an ActiveSync license agreement.

It seems Google has to revisit its intellectual property rights protection and licensing arrangement so that it may not face any more defeats in the patent infringement suits.

Apple has been very active in protecting its intellectual property rights. Recently, USPTO granted Apple trademarks for its retail outlets designs and layout.  However, Apple is also on the receiving end via-a-vis other’s intellectual property violations. For instance, Apple was recently fined in Beijing Court for unauthorised e-book sales.

Patent litigations are on rise around the world. Japanese company Kawasaki Heavy Industries (KHI) accused Chinese company CSR Sifang of stealing its Shinkansen bullet trains.  Similarly, Novartis lost the patent claims of Novartis AG's cancer treatment drug Glivec in Supreme Court of India.

Intellectual property has become a policy matter as well. A proposed U.S. legislation would target companies using stolen intellectual property of U.S. The Copyright Amendment Act, 2012 of India has strengthened digital rights protection of copyrighted works in India. Similarly, the idea of conferring utility models protection in India is also under consideration.

The coming time would be really tough for those who wish to enforce their intellectual property rights around the world.

Japanese Company Kawasaki Heavy Industries (KHI) Accused Chinese Company CSR Sifang Of Stealing Its Shinkansen Bullet Trains

Intellectual property rights protection and their continued enjoyment to the exclusion of others is one of the strongest motivations to innovate and spend considerable amount on research and development. One feels cheated when his hard work and tremendous investment is misappropriated by other at almost not cost.

Japan has alleged that its Shinkansen bullet trains have been pirated by China. Even the value creation concept mooted by few did not find favour with the Japanese company manufacturing the trains in question.

Kawasaki Heavy Industries (KHI), the maker Shinkansen bullet trains, is feeling cheated due to this entire episode. After signing technology transfers with CSR Sifang, the builder of China's impressive, new high-speed rail, KHI says it deeply regrets its now-dissolved partnership. Initially, KHI planned to sue its previously junior partner for patent infringement, but subsequently it changed its mind.

Countries around the world are demanding technology transfer agreements while allowing the foreign companies to establish place of business in their territories. Some even extend benefits, financial and non financial, in lieu of technology transfer.

In the field of telecom equipments, countries generally ask for the source code of hardware and software. As a trade off for earning profit in lucrative markets like china and India, companies generally comply with this demand of respective governments.

KHI is annoyed with CSR Sifang as the latter not only copied its technology after patenting remarkably similar high-speed-rail (HSR) tech but CSR now wants to sell it to the rest of the world as a Chinese product.

Both Japanese and European rail firms are struggling to increase their sales volume and this decision of China and Chinese companies to sell China made rails would create more trouble for them. Chinese companies would now compete with Japanese and European companies both inside and outside Chinese markets.

What made KHI very disturbed is the fact that under the licensing agreements with KHI, China's use of the expertise and blueprints to develop high-speed railway cars was to be limited to domestic application and markets.

Although KHI was not comfortable with the terms and conditions of the technology transfer agreement yet it signed the same in the hope that the terms and conditions of the agreement would be legally binding.

China sees no wrong in this deal and its legal interpretation. The Chinese authorities are now planning to file for HSR patents abroad and that may cover the lucrative market of India. China is also maintaining that Chinese product is much more superior to the products of Japan and Germany. However, some feel that there is no real innovation in the rail products of China. If this is the case, the KHI’s train technology transfer episode may take a very long time to resolve.

Public Relations Consultants Association Limited v The Newspaper Licensing Agency Limited, [2013] UKSC 18

A question that has been answered in negative by courts around the world has refused to die. The question is whether an Internet user, by mere viewing of a copyright protected work, commits the copyright infringement. Obviously, this question is asked due to the ignorance of the manner in which technology is used to view online contents.

At Perry4Law Organisation and Perry4Law’s Techno Legal Base (PTLB) we reiterate that if a person is looking at an online content, through a natural and automatic process, the copies (cache) of such content is normally and temporarily stored on the computer of that person irrespective of the intentions of that person. That storing process cannot be termed as copying of a copyright protected work and there cannot be a copyright violation liability against such person.

This question came before the UK Supreme Court for its analysis and decision. The crux of the issue was the cache and hence it is important to analyse the process in brief here. Generally, cache is essential and to some extent mandatory for the Internet user to view and access the webpages. The cache also helps in fast loading of the contents if the viewer wishes to revisit the previously visited page. If cookies have been used in the previous session that may further facilitate easier and better targeted access to the intended pages.

Once stored on the computer of the user, the cache may be deliberately cleared by the end-user, but otherwise it will in the ordinary course be overwritten by other material after an interval which will depend on its capacity and on the volume and timing of the end-user’s internet usage. There are browsers that erase the cache the moment such browsers are turned off. Further, some software can also erase the temporary stored files, including the cookies and Internet history, with a simple click of the mouse. We are not going into the details of cache aspect as we are presently analysing the judgement in hand.

The court has analysed the issue from the perspective of a common user and not a tech savvy user. The court observed that in such cases the end-user does not intend to make a copy of the web-page unless he chooses to download it or print it out. His object is to view the material. The copies temporarily retained on the screen or the internet caches are merely the incidental consequence of his use of a computer to do that.

The Court further observed that once it is accepted that part of the purpose of applicable law/article is to authorise the making of copies to enable the end-user to view copyright material on the internet, the various conditions laid down by that article must be construed so far as possible in a manner consistent with that purpose. It must apply to the ordinary technical processes associated with internet browsing. The making of copies in the internet cache and on screen should be an integral and essential part of a technological process.

Unless the users download or print out the material (in which case it is not disputed that they require a licence), the sole economic value which they derive from accessing information on the website is derived from the mere fact of reading it on screen.

The “storage” of the material, i.e. the creation of copies in the cache or on screen, is the automatic result of browsing the internet. It requires no other human intervention than the decision to access the relevant web-page. Its deletion is the equally automatic result of the lapse of time coupled with the continuing use of the browser. The “technological processes in question” are those necessarily associated with web browsing, including the retention of material in the cache. It is retained there for no longer than the ordinary processes associated with internet use continue.

They call for three comments in the present context. The first is that the effect of creating copies in the internet cache or on screen in the course of browsing, must be judged in the light of the normal operation of a computer or its browser. It is not enough that forensic ingenuity can devise a method of extending to some extent the life of copies which are by their nature temporary.

Secondly, the question is whether human intervention is required to delete the material. There is a difference between a discretionary decision to extend the duration of what remains an automatic process, and the storage of a copy of material in the course of the browsing in a manner which will ensure that it is permanent unless and until a discretionary decision is made to delete or destroy it.

Third, if the mere fact that it is in principle possible to close down a computer, alter the browser settings to enlarge the internet cache or leave an image on screen indefinitely were enough to prevent article 5.1 from applying, then it would never apply to internet browsing. This would frustrate the purpose of the legislation.

All that article 5.1 of the Directive achieves is to treat the viewing of copyright material on the internet in the same way as its viewing in physical form, notwithstanding that the technical processes involved incidentally include the making of temporary copies within the electronic equipment employed.

If it is an infringement merely to view copyright material, without downloading or printing out, then those who browse the internet are likely unintentionally to incur civil liability, at least in principle, by merely coming upon a web-page containing copyright material in the course of browsing. This seems an unacceptable result, which would make infringers of many millions of ordinary users of the internet across the EU who use browsers and search engines for private as well as commercial purposes.

The Court further observed that before making any order on this appeal, the court should refer to the Court of Justice the question whether the requirements of article 5.1 of the Directive that acts of reproduction should be (i) temporary, (ii) transient or incidental and (iii) an integral and essential part of the technological process, are satisfied by the technical features described at paragraphs 2 and 31-32 of this judgment, having regard in particular to the fact that a copy of protected material may in the ordinary course of internet usage remain in the cache for a period of time after the browsing session which has generated that copy is completed until it is overlaid by other material, and a screen copy will remain on screen until the browsing session is terminated by the user.

Legal Analysis Of SP.Chockalingam v Controller of Patents & Anr And Its Legal Consequences

The Madras High Court judgment in SP.Chockalingam V Controller of Patents has created many ripples in the otherwise calm waters of patent agents’ arena. As per the judgment, Indian lawyers can be patent agents under Indian patents act 1970 without passing the patent agent exam.

Add to this the judgement of Division bench of Delhi High Court in Ms. Anvita Singh v Union of India, WP (C) No.4376/2011 that deals with another aspect of patent agents’ examination i.e. strucking down the minimum marks scoring in the viva of patent agents exam aspect.

The real trouble for lawyers started in the year 2002 when an amendment was made to the Indian Patent Act, 1970 and the qualification of a patent agent was changed from a mere recognised degree to a degree in science, engineering or technology. Thereafter, in the year 2005 the clause that supported lawyers with science background to be eligible to be patent agent was deleted from section 126 f the Indian Patents act, 1970.

This 2005 amendment was challenged before the Madras High Court although the petitioner must have challenged the 2002 amendment as well. However, the Madras High Court was quick to notice this fact, and it declared that a law degree is a social science degree and a lawyer is a social engineer.

In effect, the Madras High Court has not only restored the pre 2005 legal position regarding the qualification of a patent agent but has also diluted the impact of 2002 amendment itself. The practical effect of this judgement on the present patent act is that vis-à-vis the patent agents qualification the position before 2005 would prevail i.e. section 126 (c) (i) would remain on the statue book.

Now it means that lawyers with a science, engineering or technology background would automatically become a patent agent without any requirement of clearing the patent agents’ exam.

The Court was aware that this would also create the trouble as a dominant majority of lawyers are from arts or commerce background. Thus, it was necessary to struck down the 2002 amendment as well but the same was not pleaded by the petitioner in the present case.

The Court came to the rescue of those non science degree based lawyers by declared that a law degree is a social science degree and a lawyer is a social engineer. This means that even the 2002 amendment have been diluted as now in section 126 (c) the science degrees would include a law degree as well. Not only this lawyer is a social engineer as well and this means that the elements of engineering are also there. Clearly, the law degree from a recognised university and an enrollment with the Bar Council of India would automatically entitle the practicing lawyer to be patent agent. Howsoever absurd this interpretation may appear to the readers but this is the practical implication of the Madras High Court judgement. The Court also gave a strong justification to do so. The Court observed that a science degree may be relating to physics, chemistry, zoology, botany, statistics, biotechnology, bio-chemistry, veterinary science, nursing etc. Similarly, engineering or technology is also a vast subject. Hence, it cannot be presumed that a B.Sc., graduate in statistics, zoology or nursing shall be well versed in cases relating to engineering and technology under the Patents Act.

Similarly, it cannot be decided that a degree holder in physics, chemistry, engineering or technology could be an expert in forensic science, biology or zoology. Merely by prescribing qualification, as degree holder in science, engineering or technology and passing a departmental examination on Patents Act and drafting, the respondents cannot monopolise such category of persons and say that Advocates are not competent to be patent agents and similarly the right that was available to advocates under Section 126 (1) (c) (i) of the Act, could not be taken away against the Constitutional safeguards, by way of the impugned amendment.

Regarding international obligations of India under WTO/TRIPS Agreement, it is obvious that international obligations cannot override national sovereignty of India. The mandates of Indian constitution cannot be taken away by international obligations under the WTO/TRIPS. For example, recently India justified its preferential market access (PMA) policy for domestic telecom equipments manufacturers. On the face of it this is a clear violation of WTO norms but on a detailed analysis it is clear that national security cannot be compromised for the sake of maintaining international relations and obligations.

Now let us analyse the perspective of lawyers in this regard.  The net effect of the 2005 amendment is that a lawyer has to pass three stages to become a patent agent. First she must be a science/engineer/technology graduate from a recognised university in India. Secondly she must be a lawyer. Thirdly she must clear the patent agent examination. This is definitely expecting too much from a lawyer to be a patent agent.

Here lies the real problem as an advocate who is entitled to practice even before the Supreme Court of India is barred from practicing before the controller unless she clears the patent exam. Even worst, the central government failed to prescribe alternative qualifications of patents agent that can practice before the controller. The central government must comes up with additional qualifications that would be allowed to be incorporated in Section 126(c) and a practicing lawyer can be one of them. This can solve the entire problem.

At Perry4Law Organisation and Perry4Law’s Techno Legal Base (PTLB) we believe that the central government must prescribed the law degree from a recognised institution coupled with an enrollment with the Bar Council of India as one of the essential qualification to be a patent agent. There is nothing that forbids lawyers from seeking the help of other patent agents and technical professional if she faced any technical difficulties.

Even otherwise the controller cannot prevent a lawyer from appearing on behalf of her client while filing the patent application if she holds a valid power of attorney. The provisions of the amended Patent Act are inherently defective and self contradictory. For instance, section 132 has been amended by the 2002 amendment and it virtually abrogated the power of attorney concept and restricted the role of lawyers to hearing before the Controller alone.

With the 2005 amendment Section 126 was further amended and clause (i) of Section 126(c) was omitted. It seems there was a clear intention on the part of Indian government to keep lawyers away from patent filing and taking part in various proceeding under the Indian Patent act, 1970 before the controller.

It is surprising why it took more than a decade i.e. after the 2002 amendment for lawyers to agitate this issue. Interestingly, another writ petition is also pending before the High Court of Kerala. It is high time for both the central government and the Supreme Court of India to interfere in this matter and bring uniformity of practice all over India once and for all.

While doing so, the Supreme Court and central government must keep in mind that generally the five year integrated course law students can never be patents agents with the present criteria. Similarly, three year law students cannot be patent agents till they have a science background and they clear the patent agent examination. The LL.B degree is a complete waste in the present situation as only science degree and patent agent examination is recognised.

There was an urgent need to seek clarification about Section 126 as it stands on date and the Madras High Court has exactly done so. 

Before closing this discussion, we would like to stress that party autonomy must be respected by both the controller and Indian government. If an inventor is more comfortable with a lawyer, she should not be forced to seek the services of a patent agent simply because lawyers have been systematically barred from the patent proceeding under the Indian Patent Act, 1970.

A duly executed power of attorney in favour of a lawyer should be sufficient to allow her to file a patent application and take part in various proceedings before the controller of Patents. If a lawyer is not competent to draft and file a patent application and patent specification, let the concerned party decide the same. Further, if there is any defect in the patent application and patent specification, the controller can always point out to the same.

But presuming that lawyers are not competent or qualified to file a patent application and patent specification is ignorance of the ground reality and the expertise that legal fraternity possess. It is high time to think about these issues as soon as possible to bring justness, transparency and accountability in the patent proceedings before the controller.