Sample Questions – Trademark, Patent & Copyright

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Supreme Court of India

Q1. I have a very exciting and novel idea. I want to have a copyright of my idea. Kindly guide me.

A. There can’t be a copyright for a mere idea. For a copyright, there should be a work. The work should be in a material form, which involves the ideas, translated. As such, ideas do not have any copyright protection.

Q2. I want to have copyright for my literary work. What are the essential pre conditions for getting copyright of a literary work?

A. The most essential pre-conditions for copyright of a literary work is that the work should be “original”. Originality relates to expression of thought. The work must not be copied for another work. It should not originate from another work.

Q3. Does copyright exist in Software?

A. Section 13 of the Copyright Act, 1947 enumerates the works in which copyright subsists. Under the provisions of the said Section, copyright exists in Software.

Q4. I am a Musical Artist. I have come across a non-copyright song. I have put a few new words in that song. Can I have the copyright of the modified version of that song ?

A. Yes, you can create a copyright in that work of yours. The song itself does not have a copyright. However, the written words of a song can be copyrighted as a literary work.

Q5. What is International Copyright?

A. International Copyright is the right of a citizen of one country against the re-publication in other country of a work which he originally published in his own country .

Q6. I have discovered a scientific principle. I want to get that principle patented. Please advise me as to how to proceed.

A. Section 3 of the Patents Act, 1970, enumerates the categories which are not patentable under the Act. It provide that the mere discovery of a scientific principle is not patentable.

Q7. If somebody wants to develop a new method of horticulture. Can he get the patent for the same?

A. A method of agriculture or horticulture is not patentable under the provisions of the Patents Act, 1970. Therefore, one is not entitled to get the patent for the method of horticulture developed by somebody.

Q8. I am a legal representative of a deceased person who had made an invention but couldn’t get the patent for the same during his lifetime. Can I make an application for patent of that invention?

A. Application for patent for an invention can be made by the legal representative who immediately before his death was entitled to make such an application. In view of that provision, you can make an application for grant of patent for the invention made by the deceased person, if the deceased person was entitle to make such an application.

Q9. I have made an application for grant of a patent. Later I discovered that another person has also made an application for grant of patent in respect of the same invention. Who will get the patent for that invention?

A. If everything else is same, the person whose Priority date of claims is earlier will be the person who shall be entitled to get the patent for the invention . Priority date of a claim shall be the date of filing of the complete specification, which shall fully describe the invention, its operation, and the best method of performing the invention and claims defining the scope of the invention.

Q10. I want to make an application for grant of exclusive marketing rights. Kindly guide me in this respect.

A. You may make an application in the prescribed form and manner and on payment of prescribed fee to the Controller of patents. The Controller shall refer such an application to an examiner for making a report to him as to whether the invention is or is not an invention or the invention is an invention for which no patent can be granted. In case where an application for exclusive marketing right is not rejected by the Controller on receipt of a report, the Controller may proceed to grant exclusive right to sell or distribute the article in the manner provided in Section 24 B of the patents Act.

Q11. I want to patent a drug that I have developed . What is the term of patent?

A. In respect of any invention which is capable of being used as food or as medicine or drug, the term of the patent shall be five years from the date of sealing of the patent, or seven years from the date of patent, whichever period is shorter

Q12. I would like to mention the name of a few textbook and newspaper references in publication on my.com site, do I require permission for this and whether I will be charged for it ?

A. There is no permission required to be taken by you or any charges liable to be paid in case you want to mention the name of some textbooks or newspapers in your dot com. site. However you should not give the contents of any such textbooks or newspapers, which might then violate copyright laws.

Q13. What is the difference between a patent and a design registration ? What is the method of determining whether a product can be patented or not ? Whom can one contract for this, how long does it take to have a product patented / design registered, and how much does it cost ?

A. Meaning of Design According to Section 2 (5) of the Design Act, Design means only features of shape, configuration, pattern or ornament applied to any article by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye, but does not include any mode or principle of construction or anything with is in substance a mere mechanical device, and does include any trade mark. Meaning of Patent A patent is a monopoly right granted to a person who has invented a new and useful article or an improvement of any existing article or a new process of making an article. It consists of an exclusive right to manufacture the new article invented or manufacture an article according to the invented process for a limited period. During the term of the patent of owner of the patent, i.e. the patentee can prevent any other person form using the patented invention. After the expiry of the duration of the patent anybody can make use of the invention. Determination By going through the meaning of patents and design as mentioned above, it is an easy task to decide as to article or process is patentable or designable under the respective acts. Period and Cost Patent registration takes 5 to 6 years. The life of the patent is 14 years except in pharmaceutical products, which have lass monopoly rights. The cost to get a patent registration is Rs.25000/- On the other hand, the design registration can be granted within 6 months. The life of the design registration is 15 years. The cost to get the design registration is Rs.5000/-

Q14. How can protect my software (in India) against piracy ? Under which law and how shall I register my software ? How one can enforce licensing of my software in India ?

A. Copyright Law in India is governed by the Copyright Act, which was enacted in 1957. Under copyright Act, Copyright is proprietary right although vests in the author of the work. On the creation of the work, the author receives exclusive right, use or exploit the work as well as prevent the authors from using or exploit the work. Specifically, the copyright lists the following as protected work: – 1. Literary work 2. Musical work 3. Dramatic work 4. Artistic work 5. Cinematographer work 6. Audio Tape; and 7. Computer Software The Copyright Amendment (Amendment Act) passed in the year 1984 defines and permit computer program “as literary work that includes tables, compilation and program that is to say programs record on any discs, tape, perforated media or other. The information storage device which is if fed into or located in computer, any information. The originality of the work is to be proved by the author since the author of the work must be able to prove that the work was first published or displayed or performed. The Copyright act defines infringement as in the Act permitted only by the author of the work which is done by the person without permission of the author. Yes, Software in India can be protected against piracy. The Act provides for registration of the work but various pronouncements by various courts have held that the registration under the Copyright Act is not mandatory. Piracy of the Copyright has been protected under Section 51 of the Act. That it is desirable that the Software registration is made with the Registrar of Copyright New Delhi. For obtaining registration of the Software one as statutory right which can be protected and enforced through Police or Courts which has been effective enforcement by the Police by raiding the premises of the infringers. The next query asked by you is-how can one enforce licensing its software in India. The statute permits licensing of the work as that of assignment provision of the Copyright Act, the author is permitted to license one or more rights or interest in work In the statute contains a list or different type of licensing including the following: – 1. Exclusive license 2. Non-exclusive License 3. License from a Joint Owner 4. License without consideration; and 5. Implied License. Only restriction placed in that creation of the license is that the agreement of license has to be in writing and has to be executed by the Licensee (owner of the work). In addition to allowing the author of the work to take action to permit his or moral rights in the work. There are three types of remedies for infringement of the work by any authorized persons in India: – 1. Owner Assignee 2. Exclusive Licensee or legatees of the work may initiate a lawsuit claiming infringement of the copyright. 3. The Plaintiff in such suit may name Defendant, the person to copyright infringement act, the person to permit a place to be used to infringe the copyright and persons who sells or offers to soil any product which infringes copyright. The lawsuit can be filed in any District or High Court but to be filed within years from the date of infringement. Monetary damages can be recovered. Delivery has been all infringing copyright work and injunctive reliefs are appropriate. Form of remedy for infringement provided by the Copyright Act is imprisonment of criminal fines and sanction including a term of imprisonment for any person that infringes a protected work.

2 COMMENTS

  1. hi sir,

    i want to know that in whivh class a website’s trademark should be register?

    pls favour by a way of prompt reply.

  2. I have taken LAP & kept that money in fixed deposits. Bank has deducted TDS on interest. Can I claim income tax refund by setting off interest expenses against interest income

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