Journal of Intellectual Property Rights (JIPR)

Human Ingenuity, Emerging Technologies & IPR – Need for setting Doctrine of Constitutional Morality as Standard

2024-02-10T19:57:25+0530

Human ingenuity erased the boundaries of innovations, and created such technologies which the past generations wouldn’t have dreamed of. Intellectual Property Rights are to promote and encourage only those innovations which are contributing for the societal development and common good and complies with the social morality standard. As long as the social morality standard laid down in IPR is not influenced by the dominant cultural norms of a society; by marginalizing the minority or individual perspectives, it can represent the societal demands as a whole. Butwhat if the social morality standard is representing only the majority in the society and is in direct conflict with the constitutional morality, the normative framework offered by our constitution which includes majority, minority and even one individual’s perspective within its ambit? Constitutional morality provides a stable, principled foundation that transcends societal changes and biases and promotes the principles of inclusive development, equality, justice, dignity and fraternity. Post Navtej Singh Johar, Joseph Shine and other judgments, thequestion arise that whether the IP regulators can reject the grant of IP protection to an invention which though is complying with the social morality standard, but fails to comply with the constitutional morality standard? Whether the approach of the US Supreme Court in cases such as Bedford and Juicy Whip I, applying ‘progressive provision’ laid down in Article I, § 8, Clause 8 of the American constitution to IP cases, on and above the legislative limitations, illustrates the duty of the courts to act beyond legislative limitations to uphold the constitutional morality when necessity demands? The paper argues that applying constitutional morality as a catalyst over social morality provides a more consistent, equitable, and principled basis for navigating the complex landscape of emerging technologies and IPR. This paper explores the distinction between constitutional morality and social orality, proposing the former as a guiding principle to harmonize the intersection of human ingenuity, technological advancement and IPR.

Steps towards Patenting Innovations for a Sustainable Startup Ecosystem

2024-02-19T11:43:58+0530

However good a product may be, sooner or later, competition will catch up and there will be me-too products in the market. The best way to beat this product imitation is through innovation in products and processes. New products catch eyeballs and sell. But innovation is neither easy nor cheap. A huge amount of money has to be invested in R&D for innovation and therefore there is a need to prevent imitation by others. This is particularly relevant for Startups who operate on a tight purse. Such prevention can be done through patents. Once the innovator patents the innovation, he has a legal right over his innovation for twenty years in India and others can’t imitate it. This helps the innovators to have a better market for the product and also they get a better return on investment in R&D. In this article, the authors have emphasized how patents are a business necessity for Startups and how in India patent applications are filed and patents are granted.

Protection of Fruits through Trademarks: Export Growth in India

2024-07-05T17:03:57+0530

Trademarks are increasingly used to protect intellectual property rights (IPR) on fruits such as Avacados by Dole Company of USA globally. For, trademarks have very long life than plant variety protection with just 25-30 years life. India’s fruits export is rising rapidly with mangoes (Alphanso), Apples (Shimla), Banana (G9 i.e. Grand Naine), amongst others. India has started exporting special fruit varieties such as “Nendran” from Kerala to Gulf using special packaging technique. India can benefit by promoting trade mark for uniform colour, size, shape &taste, aroma fruits by agri-enterprises for rapid growth in the fruits export. Similar effort is needed for other fruit species & varieties e.g. Guava (Alahabadi), Pineapple, Black Grapes (Medak), Green Gapes (Nasik) Sapota (Gholvad, Palghar), etc. this will help to improve farmers’ income & India’s foreign investments & exchange.

Existing Knowledge, Skilled Person and Inventive Step under Indian Patent Law and the Problem of Borrowings

2024-07-01T10:48:55+0530

Assessment of inventive step is difficult, with several tests being laid down for the same in different jurisdictions. However, borrowing such tests, e.g. the Windsurfing test, the TSM test, or the concept ofPHOSITA from U.S. Law, into Indian jurisprudence must be done with caution. As we argue here, Indian Law has certain peculiarities- (i) it requires something more than a mere difference from prior art; it requires technical advance compared to existing knowledge, and (ii) the person judging such technical advance for existence of obviousness is not ordinary, not average nor super-skilled but a capable skilled person. Any interpretation or borrowing which loses sight of this statutory requirements can result in interpreting the skilled person as less capable than what the Indian Act/ legislature expected it to be. This can result in lowering the inventive step standard. This can have repercussions on the quality of granted patents, since it is the quality of innovation and not merely the quantum thereof which ought to matter.

Role of Patenting Framework for Electric Vehicle Innovations from BRICS Perspective

2024-04-16T12:13:38+0530

Electric vehicle (EV) technologies are one of the fastest-growing segments in green technologies. Development and adoption of EVs in BRICScountries is significant for the attainment of sustainable development goals (SDGs) and to ensure affordable, reliable, and sustainable energy by boosting clean mobility. Towards achieving the SDGs and the Nationally Determined Contribution (NDC) set in the Paris Agreement of 2015, countries are innovating in the domain of EV. The BRICS nations are emerging as a potential market for development and utilization of such technologies. Patenting trends of a country indicate its technological competitiveness and affordability. The present paper analyses the patent trends in the EV segment amongst BRICS countries. It analyses the growth in EV technologies in these countries for a period of ten years, i.e., from 2012 to 2022, and tried to understand the role of the intellectual property (IP) regime mainly patents in the development of EV technologies. By performing a comparative analysis of the national patent laws of BRICS country’s role of patents and relevant provisions affecting the faster promotion, development, and diffusion of EV technologies has been identified. Study shows that IP is an essential component in accelerating green growth in the EV segment and a conducive patent regime promoting green inventions with supporting administrative processes is needed for BRICS countries.

Fixed Effect Estimation of Patents and FDI: India and Its Economic Partners

2024-05-15T14:19:35+0530

Economic globalization has facilitated business enterprises making use of trade agreements, FDI inflows and intellectual property related assets beyond national boundaries.The introduction of IPR related chapters in trade agreements especially the patent system is fostering innovation, and economic development in the country. India has signed CEPA (Comprehensive Economic Partnership Agreement) and CECA (Comprehensive Economic Cooperation Agreements) which has been instrumental in building integration of intellectual property rights compared to other bilateral trade agreements.

This paper analyses the impact of FDI inflows on the number of patent applications filed in India by those countries which are part of CECA, CEPA and other trade treaties. A Year Fixed Effect methodology for a group of 11 countries is used to study the qualitative and quantitative estimation. The time period between 2005 and 2022 has been used in the estimation.The empirical findings support the hypothesis that countries under CECA and CEPA have significant positive results on investment inflows and filings of patent in India. Furthermore, India should design its trade policies like CECA/CEPA to help induce high quality FDI drive India towards creation of knowledge-based economy.

Impact of the Biological Diversity (Amendment) Act 2023 on Biodiversity Protection Regime in India: An Empirical Study

2024-12-04T12:37:40+0530

The Biological Diversity Act of 2002 discusses the core concepts of ‘Benefit Sharing’ and ‘Sustainable Development’. It was very recently in 2021 that the Biological Diversity (Amendment) Bill was introduced which came into effect from April 2024. This Amendment Act has been under great surveillance and criticism as it brings to light several issues which shall impact the indigenous groups, their habitat, and their right of access to benefit-sharing as it eases the process of complying with the access to benefit-sharing requirements of the Biodiversity Act of 2002, especially for domestic companies. It further mentions that AYUSH practitioners and codified traditional knowledge holders shall be exempted from the principle of benefit sharing. The amendment has also decriminalised the offences established under the Act where the power has been given to an adjudicating authority, a government official, to hold inquiries and lay down cases to impose these penalties. The researchers aim to reflect on the ambiguity of the Biological Diversity (Amendment) Act 2023. For this, the researchers have undertaken empirical as well as doctrinal research to look into the opinions and judgments of the stakeholders of the biodiversity protection regime in India like Biodiversity Authorities, AYUSH practitioners, traditional knowledge users, and environmental and IP law researchers. The researchers also aim to suggest further changes in the biodiversity protection regime in India relying on the issues around the current amendments to the Biological Diversity Act of 2002.

The Copyright Quandary: Criminalization and Judicial Backlog in India

2024-04-15T12:00:12+0530

India is facing 45 million overall pending cases only in the subordinate courts (excluding the Supreme Court and High Courts), which is very alarming and needs to be addressed as soon as possible. Law commissions, Supreme Court judges, and legal experts have all expressed concern about the increasing pendency of cases. The study investigates the criminalization of copyright cases, its impact on the judiciary, and how it contributes to the pendency of cases. The study is doctrinal however it used both primary and secondary data. Primary data include data published on the NCRB website. Secondary data include literature, online articles, news articles, scholarly articles etc. The study found that although copyright case registration is very less its disposal is less than 1% of the current year filling because the time taken for investigation and submitting charge sheet is very long up to three years and two years respectively. This further accelerates the current pendency of cases in India. The study suggests that rather than making copyright infringement a crime let it be civil or we can make it criminal on repeat infringement as currently under Section 63A of the Act, on repeat infringement enhancement of punishment is there. Establishing a specialized tribunal to deal with these cases can be solved within a reasonable time.

Reconsidering the Criminalization of Copyright Violation in India: Evaluating the Cognizable and Non-Bailable Regime

2023-12-28T11:36:15+0530

Following several divergent judicial pronouncements, the Supreme Court of India finally held the offence of copyright violation u/s 63, Copyright Act, 1957, to be cognizable and non-bailable in Knit Pro International v State of NCT of Delhi, (2022) 10 SCC 221. The judgement, however, neither addresses the inconsistent judicial approaches that it apparently resolved, nor considers the potential effects of such a high-severity classification. Addressing the same, this paper explores the foundational justifications behind criminalizing copyright violation in India. It argues that criminalizing copyright violation as a cognizable and non-bailable offence may jeopardize individuals’ fundamental rights and the balance between the rights of creators and users. It also demonstrates how Indian courts have become trapped in a vicious cycle with the misuse of criminal copyright remedies leading to impoverished jurisprudence on the subject. The paper contextualizes the discourse within the broader global framework by comparing the Indian regime with those prevalent in foreign jurisdictions. It concludes with the recommendation to retain the criminalization of copyright violation in India, but as a non-cognizable and bailable offence.

Innovators behind the Evolution of Modern Cameras: A Quantitative Analysis of Patents on Image Sensors

2024-02-06T14:46:05+0530

This article classifies and analyses the innovations and inventions that were affected in cameras with Charged-Coupled Device (CCD) and Active Pixel Sensors (APS) image sensors. While modern cameras allow greater freedom in image construction and re-construction, it also offers an enlarged scope for creating suitable elemental aesthetics for taking pictures or recording scenes. It has numerous advantages over the cathode ray tube cameras facilitating its use by a large number of people around the world. Modern cameras have evolved in a sustained manner over the years with results that continue to be experienced in novel ways in a range of utility areas. Among its many forms, the smart lenses embedded unobtrusively in state-of-the art smart phones operating in conjunction with the associated software produce quick and highly detailed images that compares only too well with broadcast cameras. A whole host of social media platforms, television broadcasts and online subscription programmes cannot do without the crucial pixel inputs from modern cameras. Insights gained from history and the subsequent inventions, technological progress as well as development and modifications affected in modern cameras over time have added further significance to the area. This article outlines the innovations in the area of modern cameras that has focused on recording of pictures for entertainment and communication by analysing the patenting trends from the year 1984 to 2019.The reason that patenting trends after 2019 have not been considered for analysis owes to the paucity of data chiefly because of the huge dip in technological breakthroughs for image sensor development.

Use of Utility Models/Patents for the Encouragement of Local Innovations in Developing Countries: Lessons for Nigeria

2024-04-15T15:33:24+0530

Patents are granted to new inventions in order to encourage innovation and technological advancements in the society. Nevertheless, the mere existence of these laws in developing countries has not necessarily translated to increased innovations and technological advancements in these countries. There is also the argument that the patent system favours the global North as evidenced in the fact that most of the patent applications made in many developing countries are from the developed world rather than from local inventors. Utility models (sometimes referred to as minor patents) are being used by some countries to encourage innovation among local inventors by providing a lesser protection to inventions which may find it difficult to meet the requirements of the patent system. This research examines the legal protection of utility models.
It focuses, particularly, on the extant provisions available in selected jurisdictions which already have this law and examines whether the existence of this legislation has had significant effects in the promotion of local innovation. The Nigerian Patent Registry has recently been granting utility models, albeit in the absence of a clear legislative provision or backing. This study is essential to draw lessons for Nigeria, a developing country equally seeking to drive innovations and developments within its territory through utility models.

Traditional Music through the Lens of Copyright

2024-05-27T10:19:04+0530

India is a country rich in cultural heritage and has in its repertoire a vast pool of folk songs. Music composers not alone from India, even from the West are now looking at and using the folk songs of India in their compositions. In the quest to compose music that is pleasing to the ear, present day composers are now using traditional music in their compositions. The holder/community who has composed the traditional music is neither given any credit nor are they compensated. India does not have in place an effective legal system to protect traditional music. The absence of an effective legal protection for traditional music is a ruse for the composers who appropriate the music of the traditional community. Though some countries consider traditional music as common heritage, many countries including India are yet to evolve any legislation for ensuring that the traditional music is not used without acknowledging the stake holders. The work is intended to inform the readers of the importance of traditional music and its rampant use without permission. The article canvasses for a formal legal clothing for traditional music which will ensure an adequate recompense for the holders of the traditional music.

Evaluation of IPRs using Modern Sentimental Analysis Methods in the Law Domain

2024-09-11T15:01:52+0530

Intellectual Property Rights (IPRs) provide a systematic medium to safeguard people's unique ideas. Various authors from all around the globe have contributed to the IPRs in the Law domain by publishing their research articles. Although the literature on the IPRs in the Law domain is found to be several decades old, no Sentimental Analysis has been conducted on it. Identifying this significant research gap, the authors of this research paper have evaluated the IPRs using modern Sentimental Analysis methods in the Law domain. The authors have used Sentimental Analysis methods of Microsoft Azure, Valence Aware Dictionary and Sentiment Reasoner (VADER), and International Business Machines (IBM) Watson to perform this Sentimental Analysis on over six thousand research articles from the past four decades, in which authors from over fifty countries have contributed to the IPR in the Law domain. The authors used significant research paper components, including the Title, Keywords, and overall Contribution of the authors, as input for conducting this Sentimental Analysis. The overall results obtained from Sentimental Analysis methods of Microsoft Azure, VADER, and IBM Watson convey that 83.25 % positive, 13.11 % neutral, and 3.64 % negative research was conducted in the IPRs research in the Law domain. These results convey that, to date, the research in the IPRs of the law domain has been going in a positive direction, thereby providing a solution-oriented positive approach for the upcoming researchers in the IPRs of the law domain.

Contribution of Journal of Intellectual Property Rights in IPR Research: A View through the Articles Published in Volumes 28 (2023) and 29 (2024)

2024-11-09T04:40:03+0530

This Paper reviews the articles published in the Journal of Intellectual Property Rights (hereinafter, JIPR) from Issue (6) of Volume 28 (2023) to Issue (6) of Volume 29 (2024). This Paper is in continuation to the papers published in the series ‘JIPR in IPR Research’, which reviewed the articles published in JIPR from Volume 1 (1) (1996) to Volume 28 (5) (2023). Paper proceeds with the same argument and method as developed and adopted in the previous papers published under the series.