Sub: IPR and Cyber Laws

Solution

1. Attempt any two of the following:

a. What is the objective behind Patent Law?
Ans:
Definition of Patent: (2 marks)
Patent means a grant of some privilege, property or authority made by the Government
or the Sovereign of the country to one or more individuals. The instrument by which
such grant is made is known as patent.
Objectives of the Indian Patent Act 1970: (all 5 points)(3 marks)
In order for the Indian Patent Act to be successful following are the objectives:
1. Import of various product should be excluded from the definition of invention.
2. The Government of India (GOI) should give certain privileges and incentives to
encourage inventors to invent new products.
3. All inventors should not disclose trade secrets about their inventions.
4. The inventors are encouraged to invent new and useful in case of manufacturing
products.
5. The main purpose of an invention is not only to protect its owners but also to
encourage true and fair competition in the field of technology.
b. Explain method of drafting patent specification.
Ans:
The specification, which is also called the disclosure, is a written description of an
invention. The patent specification is drafted both to satisfy the written requirements for
patentability, as well as to define the scope of the claims. The layout of a specification
varies from place to place.
Drafting method through a layout and it contains the following elements:
1. Title(1 mark)
The title describes the essence of the invention in a few words. The title:
must relate to and broadly describe the invention (e.g. A waterproof zip-fastener")
should not include acronyms, statements of quality, trade marks, fancy names, the word
patent or personal names.
2. Description(4 components---2 mark)
The description makes up the majority of the specification. It explains the invention and
how to put it into practice. The description may include the following headings:
Technical field: The description usually begins with a brief statement identifying the
technical field of the invention. For example, The invention relates to and is suitable
for [activity or purpose]."

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Background of the invention (optional): You can include some background

information describing what is known (i.e. the most pertinent prior art), mention if your
invention attempts to solve any particular problems and include objectives for the
invention. Please note that the invention as described or claimed should meet any of
these objectives.
Statement of invention: This section summarises the essential and preferred features of
the invention. It sets out the scope of the invention and should be equivalent to the main
claims of your specification or, in the case of a provisional specification, claims you
intend using for any subsequent complete specification.
Detailed description of the invention: The final part of the description describes the
technical aspects of the invention in detail, explaining how to construct and use examples
of the invention or how the inventive process can be carried out. Graphs, flowcharts,
tables, experimental data and drawings can be included.

3. Claims (description and its explanation----2 marks)

Patent claims define the protective boundaries of the invention (the scope of
monopoly). Claims must be clear, supported by the description, and list all of the
essential features of the invention. Note:

Complete specifications must end with at least one claim.

Each claim should be written as one sentence.
A claim can be independent or dependent on an earlier claim(s).
Generally, claims begin with the broadest claim and progress to narrower claims.
Claims should not contain laudatory statements like it is cheaper" or it is the
best way of doing it that I have seen".
The claims are usually presented on a separate page or pages, under the heading
What I/We Claim Is:". The page numbering follows on from the description.

c. What is a trademark? What are its functions?

Ans:
MEANING OF TRADE MARK (1 mark)
A consumer is duped if he buys a commodity presuming it to have originated from a
certain identified source when actually it is not, and later he finds the commodity
substandard. In the process, the reputation of trader suffers. The interests of both the
consumer and the trader can be saved if some definite symbol which marks out the origin
of goods from a definite trade source is attached with the goods emanating from such
source. Such a symbol is called a trade mark.
THE FUNCTIONS OF A TRADE MARK (Four functions----4 marks)
A trade mark serves the purpose of identifying the source of origin of goods. Trade mark
performs the following four functions:-1. It identifies the product and its origin. For example, the trade mark Brooke Bond
identifies tea originating from the Company manufacturing tea and marketing it under
that mark.

2. It guarantees its quality. The quality of tea sold in the packs marked Brooke Bond
Tea would be similar but different from tea labeled with mark Taj Mahal.
3. It advertises the product. The trade mark represents the product. The trade mark
Sony is associated with electronic items. The trade mark SONY rings bell of particular
quality of particular class of goods. It thus advertise the product while distinguishing it
from products of Sonys competitors.
4. It creates an image of the product in the minds of the public, particularly comes or
the prospective consumers of such goods. The mark M which stands for the food items
originating from the American fast food chain McDonalds creates an image and
reputation for food items offered by it for sale in the market.

d. What is a copyright? What are its characteristics?

Ans:
Definition of Copyright: (1 mark)
Copyright is a unique kind of intellectual property. The right which a person acquires in
a work, which is the result of his intellectual labour, is called his copyright. The primary
function of a copyright law is to protect the fruits of a mans work, labour, skill or test
from being taken away by other people.
CHARACTERISTICS OF COPYRIGHT (all 7 characteristics----4 marks)
1. Creation of a statute
Copyright is creation of a specific statute under the present law. There is no such things
as common law copyright. No copyright can exist in any work except as provided in the
section 16 of the Act.
2. Some Form of intellectual property
A copyright is a form of intellectual property since the product over which the right is
granted, e.g., a literary work, is the result of utilization and investment of intellect.
3. Monopoly right
Copyright is a monopoly right restraining the others from exercising that right which has
been conferred on the owner of copyright under the provisions of the Act.
4. Negative right
Copyright is a negative right meaning thereby that it is prohibitory in nature. It is a right
to prevent others from copying or reproducing the work.
5. Object of copyright
The object of copyright law is to encourage authors, composers and artists to create
original works by rewarding them with the exclusive right for a specified period to
reproduce the works for publishing and selling them to public. The foundation of Indian

Copyright Law, which is of English origin and provenance has a moral basis, and is
based on the Eighth Commandment, Thou Shalt not Steal (as held by the Supreme
Court in R.G. Anand Case 1978). The fundamental objective of Indian and English
Copyright Law has always been the protection of the fruits of a mans skill, labour and
effort from appropriation by others. Thus protecting, recognizing and encouraging the
labour, skill and capital of another is the object of a copyright.
6. Multiple rights
Copyright is not a single right. It consists of a bundle of different rights in the same
work. For instance, in case of a literary work copyright comprises the right of
reproduction in hard back and paperback editions, the right of serial publication in
newspapers and magazines, the right of dramatic and cinematographic versions, the right
of translation, adaptation, abridgement and the right of public performance.
7. Neighboring rights
Copyright consists not merely of the right to reproduction. It also consists of the right to
works derived from the original works; rights like the right of public performance, the
recording right and the broadcasting right which are as important or even more than the
right of reproduction. Such related rights are termed neighboring rights.
2. Attempt any two of the following:
a. Explain computer software as Intellectual Property and its protection.
Copy right law and computer software: (2 points---2 marks)
a) In India, the Intellectual Property Rights (IPR) of computer software is covered
under the Copyright Law. Accordingly, the copyright of computer software is
protect
b) ed under the provisions of Indian Copyright Act 1957.
c) Major changes to Indian Copyright Law were introduced in 1994 and came into
effect from 10 May 1995. These changes or amendments made the Indian
Copyright law one of the toughest in the world.
Its Protection: (6 points----3 marks)
Since most software is easy to duplicate, and the copy is usually as good as original, the
Copyright Act was needed.
Some of the key aspects of the law are:
According to section 14 of this Act, it is illegal to make or distribute copies of
copyrighted software without proper or specific authorization.
The violator can be tried under both civil and criminal law.
A civil and criminal action may be instituted for injunction, actual damages
(including violator's
profits) or statutory damages per infringement etc.
Heavy punishment and fines for infringement of software copyright.
Section 63 B stipulates a minimum jail term of 7 days, which can be extended up
to 3 years.
b. Explain SCPA Semiconductor Chip Protection Act, in detail.
What is SCPA? (1 mark)

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The Semiconductor Chip Protection Act of 1984 was an innovative solution to this new
problem of technology-based industry. While some copyright principles underlie the law,
as do some attributes of patent law, the Act was uniquely adapted to semiconductor mask
works, in order to achieve appropriate protection for original designs while meeting the
competitive needs of the industry and serving the public interest.
How SCPA Operates? (Any 4 features with brief explanation---4 marks)
Although the U.S. SCPA is codified in title 17 (copyrights), the SCPA is not
a copyright or patent law. Rather, it is a law resembling a utility model law. It has some
aspects of copyright law, some aspects of patent law, and in some ways it is completely
different from either.
In general, the chip topography laws of other nations are also utility model laws.
Nevertheless, copyright and patent case law illuminate many aspects of the SCPA and its
interpretation.
1. Acquisition of protection by registration
Chip protection is acquired under the SCPA by filing with the U.S. Copyright Office an
application for "mask work" registration under the SCPA, together with a filing fee. The
application must be accompanied by identifying material, such as pictorial
representations of the IC layersso that, in the event of infringement litigation, it can be
determined what the registration covers. Protection continues for ten years from the date
of registration.
2. Mask works
The SCPA repeatedly refers to "mask works." This term is a remains of the original form
of the bill that became the SCPA and was passed in the Senate as an amendment to the
Copyright Act. The term mask work is parallel to and consistent with the terminology of
the 1976 Copyright Act, which introduced the concept of "literary works," "pictorial
works," "audiovisual works," and the likeand which protected physical embodiments
of such works, such as books, paintings, video game cassettes, and the like against
unauthorized copying and distribution. The term "mask work" is not limited to actual
masks used in chip manufacture, but is defined broadly in the SCPA to include the
topographic creation embodied in the masks and chips. Moreover, the SCPA protects any
physical embodiment of a mask work.
3. Enforcement
The owner of mask work rights may pursue an alleged infringer ("chip pirate") by
bringing an action for mask work infringement in federal district court. The remedies
available correspond generally to those of copyright law and patent law.
4. Functionality unprotected
The SCPA does not protect functional aspects of chip designs. That is reserved to patent
law. Although EPROM and other memory chips topographies are protectable under the
SCPA, such protection does not extend to the information stored in chips, such as
computer programs. Such information is protected, if at all, only by copyright law.
5. Reverse engineering not prohibited
The SCPA permits competitive emulation of a chip by means of reverse engineering.
The ordinary test for illegal copying (mask work infringement) is the "substantial
similarity" test of copyright law, but when the defence of reverse engineering is involved
and supported by probative evidence, then, the accused chip topography must be
substantially identical rather than just substantially similar, for the defendant to be liable
for infringement. Most world chip topography protection laws provide for a reverse
engineering privilege.

c. Explain the procedure for registration of domain names.

Definition: (1 mark)
A domain name is an identification string that defines a sphere of
administrative autonomy, authority, or control on the Internet. Domain names are
formed by the rules and procedures of the Domain Name System(DNS). Domain
names are used in various networking contexts and applicationspecific naming and addressing purposes. In general, a domain name represents an
Internet Protocol(IP) resource, such as a personal computer used to access the Internet,
a server computer hosting web site or the web site itself or any other service
communicated via the Internet. If desired, you can register more than one domain name
at the same time.
Steps of Registration: (9 steps in flow 3 marks)
Registering is done one step at a time as outlined below.
1. Use the Search function to verify that the domain name(s) you'd like is/are
available
2. Select the domain name(s) you want to register
3. Setup your account control panel by entering a UserName and Password
4. Select the number of years you want to register
5. Enter information to register your ownership of the domain name(s) ;Click on
"Continue"
6. Review your contact information. If the same information is to be used for the
Technical, Administrative and Billing contacts, nothing further needs to be done.
However, if there is different person to be listed as the Technical, Administrative
and/or Billing contacts, click on that title to enter their information. If these are
not changed, the registrant (owner) will be listed as all contacts. Click on
"Continue".
7. Enter the DNS - Domain Name Services - data for your website host.
8. Add Web E-mail or E-mail Forwarding (if desired) and confirm that all the
registration information is correct.
9. Review and confirm that item(s) being ordered is/are correct ;Make payment by
credit card - shopping cart is That SSL secured ; Use your browser's Print button
to print a receipt
Conclusion: (1 mark)
your domain name(s) will be registered in real-time. Within 72 hours the domain name
will become accessible on the internet which is the normal internet propagation time -the time for new DNS information to spread to the thousands of name servers all over the
internet.
It is impossible for someone else to register your domain name after you registered it
because our domain name will be verified for availability through shared registration
systems. Basically, these is a universal database of unavailable domain names. These
systems prevent a domain name that has been successfully registered from being
registered by others.
d. What are digital Copyright issues?
About digital Copyright: (1 mark)
The decentralized nature of Internet makes it possible for any user to disseminate a work
endlessly in the cyberspace through an end number of outlets, thereby giving rise to global
piracy.

Estimates of global losses from pirated books, music and entertainment software range
into billions of dollars.
The Internet in a way presents a troublesome situation for copyright holders as the users
become mass disseminators of others copyright material and creates disequilibrium
between the authors and users.
The advent of digital technology, therefore presents legislators with a choice: either
expand or modify existing 'old media notions' or redefine the catalogue of restricted acts.
Taking into account the peculiarities of the new environment , multiple aspects of
issues are discussed as given below. (Any 4 issues with brief explanation---4 marks)
The Right of Reproduction : (Web casting)
The reproduction right has been at the heart of copyright law for more than three hundred
years. Though recognized as a determining right, the reproduction right per se has not been
unambiguously delimited by the international instruments for copyright protection . Due
to the lack of agreement on the right's scope and content, it did not include any provision
that expressly protected the reproduction right The advent of the Internet makes the
delimitation of the reproduction right more problematic in the digital age. Given that any
transmission of protected works over the Internet involves the reproductions transitorily
stored in the connected computers' RAM, the question of whether right owners should be
granted with the control over all temporary reproductions looms large amid the
dematerialized and decentralized nature of the Internet.
The Right of Communication to the Public :(Database protection)
Digital technology blurs the line between different categories of copyrightable works and
the means of communication to the public as well. On the other hand, in the midst of fast
development in digital technology, the computer networks, in particular the Internet,
brings forth a point-to-point way of transmitting works on an on-demand and interactive
basis. The interactivity and individuality afforded by this new method of exploiting works,
makes it possible for any member of the public to have the full discretion in determining
the place and the time one is intended to access and use works in digital form.
Legal Protection of Technological Measures:(Source of protection)
In response to the increasing ease of reproduction and disseminating works over the
internet, copyright owners and their technology have designed entirely novel and more
effective technological measures, to constrain physical access to and use of their
copyrighted works.
The North America Free Trade Agreement, 1992 provides for criminal and civil remedies
against decoding the encrypted program carrying satellite signals and related acts.
Legal Protection of Rights Management Information : (ISP liabilities)
It is important that whenever a work or an object of related rights is requested and
transmitted over the network, the fact of the use is registered together with all the
information necessary to ensure that the agreed payment can be transferred to the
appropriate right owner(s). Various technologies in this respect are available or being
developed which will enable the necessary feedback to the right owners. It is crucial,
however, that such information is not removed or distorted, because the remuneration of
the right owners would in that case not be paid at all, or it would be diverted.
Limitations and Exceptions:(Rights of performance)
From earliest times in the history of copyright, it has been recognized that in certain cases
limitations or exceptions should be placed on the exercise or scope of established rights
and may be termed as internal restrictions, i.e. they are actual or potential restrictions

resulting from the provisions of the instrument itself . The reasons given for imposing such
restrictions may be based on considerations of public interest, prevention of monopoly
control, etc. The limitations on copyright are necessary to keep the balance between two
conflicting public interests: the public interest in rewarding creators and the public interest
in the widest dissemination of their works, which is also the interest of the users of such
works .
Copyright Enforcement in Digital Environment: (Linking)
Global computer-based communications cut across territorial borders, creating a new
empire of human activity and undermining the feasibility and legitimacy of laws based on
geographical boundaries. Digital technology has made copyright enforcement difficult to
achieve. In the online environment, works such as videos, recordings of musical
performances, and texts can be posted anywhere in the world, retrieved from databases in
foreign countries, or made available by online service providers to subscribers located
throughout the globe. Our system of international copyright protection, however,
historically has been based on the application of national copyright laws with strict
territorial effects and on the application of choice-of-law rules to determine which
country's copyright laws would apply.
3. Attempt any two of the following:
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a. Discuss transfer of patent rights in the form of assignment.
What is assignment: (1 mark)
Assignment, as defined in Blacks Law Dictionary, means the transfer by a party of all of
its rights or interest in the property.
In case of intangible property like a patent, the transfer is made through an agreement to
this effect.
The difference between assignment and licence (2 points---2 marks)
1. A licence merely confers a personal privilege to do some particular act(s) which
the licensee can perform. There is no transfer of interest in license.
2. On the contrary, assignment means the transfer of interest in the patent: whole or
in part of the patent rights, e.g., for the whole of India or a part thereof.
Assignee (3 points---2 marks)
1. The person in whose favor a right has been assigned is the assignee and the person
who assigns the right (patentee himself or his agent) is the assignor.
2. In case an assignment has been made in favor of a person who has since died, the
term assignee would denote the legal representative, that is the person who in law
represents the estate of the deceased person.
3. Where assignment is made in favor of two or more persons, they become owners
of such interest in the patent.
b. What are different kinds of assignments?
There can be 3 kinds of assignments : Enlist the three types of assignment:(1 mark)
1. Legal
2. Equitable
3. Mortgage

Explanation:
1. Legal assignment (1 mark) An assignment of an existing patent through an
agreement which has been duly registered is a legal assignment. A legal assignee
has the right to have his name entered in the Register of patents maintained in the
Controllers Office as proprietor of the patent and can thereafter exercise all the
rights conferred on him by the proprietor of patent.
2. Equitable assignment (2 marks) Any document such as letter not being an
agreement, which is duly registered with Controller in which patentee agrees to
give another person certain defined right in the patent with immediate effect, is an
equitable assignment. An assignee in such a case cannot have his name entered in
the Register as the proprietor of patent. He can only have a notice of his interest
entered in the register. He can convert the equitable assignment to legal
assignment by getting a written agreement to this effect and having it duly
registered.
3. Mortgage (1 mark) A mortgage is also a form of assignment. A mortgage is a
document transferring the patent rights either wholly or partly to the mortgagee
with a view to secure the payment of a specified sum of money. The mortgagor
(patentee) is entitled to have the patent re-transferred to him on refund of the money
to the mortgagee. The mortgagee (a person in whose favour a mortgage is made)
is not entitled to have his name entered in the Register as the proprietor, but he can
get his name entered in the Register as a mortgagee.
c. Explain Protecting good will through copy rights.
Ans:
Introduction of Protection of Goodwill (2 points---2 marks)
1. Many country protect unregistered well known marks in accordance to
international obligations.
2. Not only big company but also small scale enterprises have a good chance of
establishing goodwill with customers so that their trademarks are well recognized
and well known that acquires protection without registration, however it is
important to register your trademark, if not the reputation of trademark can be
weekend by unauthorized use of that mark by others.
Every trademark user should be aware of the facts that are related to a number of
trademarks. (3 points---3 marks)
Trademark are registered and protected user the following conditionsi.
The goods and services for which the marks is used and is not identified or
similar to the goods for which the well known mark is being used.
ii. The use of another mark indicates a connection between these goods and the
owner of well known Trademark.
iii. The user of the owner of the Trademark where his interest are likely to be
damaged by such use.
d. What are essential factors for infringement of Trademark?
Ans:
About infringement: ( 1 mark)

Infringement of a trade mark occurs if a person other than the registered proprietor in the
course of trade, in relation to the same goods or services for which the mark is registered,
uses the same mark or a deceptively similar mark.
ESSENTIALS OF INFRINGEMENT (4 points---4marks)
1. The taking of any essential feature of the mark or taking the whole of the mark and
then making a few additions and alterations would constitute infringement.
2. The infringing mark must be used in the course of trade, i.e., in a regular trade
wherein the proprietor of the mark is engaged.
3. The use of the infringing mark must be printed or usual representation of the mark
in advertisements, invoices or bills. Any oral use of the trade mark is not
infringement.
4. Any or all of the above acts would constitute infringement if the same is done in
such manner as to sender the use of the mark likely to be taken as being used as a
trade mark.

4. Attempt any two of the following:

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a. What are disadvantages of IP licensing?
What is IP Licensing (1 mark)
Disadvantages: (4 points----4 marks)
1. Though IP licensing is beneficial to both licensor & licensee, sometimes
through licensing, the owner may lose his control on the technology & there
may be great risk of piracy & exploitation by unauthorized parties.
2. It may so happen that the licensee develops technology around the product,
he has the license for & make the original licensor to lose his superiority.
3. The revenue from the licensee depends on his performance. Hence the
licensor loses the revenue to that extent. For the licensee, the technology
may become redundant in short span of time & he may have to go in for a
new one at a higher price.
4. In case the technology is not tested, the licensee will be at great risk of
losing the money if relevant risk aversion clauses are not stipulated in the
agreement. Hence, in IPR licenses agreement, the terms & conditions need
careful drafting.
b. Explain in brief the civil remedies in enforcing intellectual property rights.
About Enforcing IPR: (1 marks)
1. Every right holder under the IPR is subject to the right to seek review by a judicial
authority. These rights of the defendant should be an action without prejudice.
2. In case of infringing cases the authority can dispose these infringing goods as per
their rights. Hence only in exceptional circumstances related to infringing goods
these need not be disposed.
Civil remedies:- (All 6 points---4 marks)
1. The right holders concerning to the enforcement of IPR has to provide a written
notice within a stipulated timeframe to the defending party.
2. Parties shall be allowed to have representatives to fight their cases individually.
3. All parties during proceedings are entitled to their claims and need to present
relevant evidence.

4. These procedures provide identification and protection of confidential

information.
5. The opposing party in appropriate cases needs to produce evidence which
specifies the situation related to the case.
6. In cases where the parties are not allowed to access their goods in such cases the
judicial authorities make the final decisions based on the evidences presented by
the parties who are adversely affected by the denial of access to information.
c. Explain practical aspects of licensing.
About Practical aspects of Licensing (2 marks)
Practical aspects of Licensing permission from one person to another to undertake some
activity a license agreement is formal and is in a written format which legally abides all
the rules and regulations of the national law in this country .
A license agreement includes two parties the licensor and the licensee.
The licensor is the one who owns the intellectual property and agrees this property and
agrees this property to be use by another person. The licensee is the one who receives the
right to use the intellectual property for exchange of payment .Hence , a license in as an
agreement which is in partnership between IP owner ( licensor ) and the authorized user
( licensee ) under certain conditions for which monetary compensations paid .Thus, a
license grants the licensee the rights to use property but without transferring the
ownership of the property.
The Intellectual property effective conditions [Determination Factor] (3 factors---3
marks)
Intellectual property License can be effective if 3 conditions are met.
1) The licenser or must be the owner of the property.
2) The IP must be protected by the law or at least by eligible protection.
3) The license must specify the rights of the licensee and the payment required that
need to be paid for the IP assets which are given in exchange as per the license
agreement which is clearly stated.
d. Classify and explain the licensing agreement.
Five types with brief explanation---5 marks
A licensing agreement is a partnership between an IP owner(licensor) & someone
who is authorized to use such rights (licensee), in exchange for an agreed payment(
fee or royalty). A variety of such licensing agreements are available, which may
be broadly categorized as follows:
Technology license
Joint venture license
Franchising or
trade-mark license
Copyright license
In practice, sometimes all IP rights form the part of one agreement. These types of
agreements are often observed in mergers & acquisitions, Joint ventures or take overs.
In the international context, a formal licensing agreement is possible only if the IPR
licensor, who wishes to license, is also protected in the other country or countries of
interest. If IP is not protected in other country or countries then licensing in that country
is not possible as licensor would have no legal right to put any restrictions on its use by
any other party.

5. Attempt any two of the following:

a. Explain the scope of cyber laws.
Ans :
About cyber laws: (1 mark)
Scope explanation---8 valid points with brief explanation---4 marks
b. What is UDRP (Uniform Domain-Name Dispute Resolution Policy)? Explain.
About domain name dispute: (1 mark)
A domain name dispute is a conflict that arises when more than one individual or group
believes it has the right to register a specific domain name. Most commonly a domain
name dispute would occur when a domain name similar to a registered trademark is
registered by an individual or organization who is not the trademark owner.
What is UDRP? (1 mark)
The Uniform Domain-Name Dispute-Resolution Policy (UDRP) is a process established
by the Internet Corporation for Assigned Names and Numbers (ICANN) for the resolution
of disputes regarding the registration of internet domain names. All domain name
registrars must follow the ICANN's Uniform Domain-Name Dispute-Resolution Policy
(UDRP). The UDRP currently applies to all generic top level domains.
About UDRP and ICANN: (6 valid points---3 marks)
c. Explain briefly the issues of Enforcement of rights relevant to patent protection in digital
media.
Enforcement of Patent Rights: (Valid 10 points---5 marks)
In most systems, a patent is the right enforceable in a court, usually to prevent the
manufacture, sale and use of a patented invention. It is not, as many people think,
permission to practice the patented invention, which may be subject to restrictions
for other reasons such as security or public health. Application is made to the court
to stop the unauthorized manufacture, sale or use of the invention, so that the court
may grant the appropriate order and stop the infringement. In practice, however,
the process is less straightforward than it sounds. Assessing the Scope of Patent
Rights
When thinking about patent enforcement, a patentee must first assess what he has
patented. It is now a feature of just about all patent systems that a patent must
include either a specification containing claims or a description, claims or any
required drawings (depending on the terminology of the particular law). In most
systems, the claims are decisive, as they define the scope of protection sought and
eventually granted through the patent. The specification or the description and
drawings may be used to interpret the claims, which must be fully supported by
them.
Most inventors use the services of a patent attorney to write the specification for
them. An inventor may not fully understand the specification, and particularly may
have difficulties in understanding the claims. Even where the patentee has some
idea of the exclusive right granted to him in his own country, it is very rare for him
to know with any precision what rights he may have in corresponding patents in
other jurisdictions. The patentees first real understanding of the extent of his
patent rights often only comes to him when he is considering enforcement.

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Thus the basis for enforcement of patent rights is established at the start of the
patenting process when the patent specification is written by the inventor or the
inventors patent attorney. The examination process in the Patent Office can
modify the original wording. The inventor will normally try to avoid any
modification which will result in a limitation of the scope of protection, for any
reduction in the scope of protection makes it easier for a competitor to avoid
infringement. If a competitor can easily supply the market with something that is
equivalent to the invention, but does not infringe the patent, then the patent may
be of limited commercial value. Patent Office examiners should try to remember
this when an applicant for a patent steadfastly resists amending his claims in order
to overcome an objection, but instead tries to deal with the objection by argument.
While acceding to an amendment might lead to the early grant of a patent on the
application, it may also lead to a patent right of doubtful commercial utility.
Evaluating Validity and Infringement of a Patent
Having assessed the scope of the patent right, the next task is for the patentee to
decide if there is infringement. Before committing himself to the financial risk of
a patent case which can be among the most time-consuming and expensive of
all forms of litigation a patentee, unless he is very wealthy and relaxed about
money, must make some attempt to forecast whether he can be successful.
The issue of infringement is very rarely considered on its own. Patents, like other
forms of intellectual property, do not only affect the parties to a dispute; they have
an effect on the public at large. This being the case, it is normally considered that
a patent which can be shown to be invalid cannot be enforceable. In spite of the
examination of patent applications during prosecution, no patent system guarantees
the validity of a granted patent. In a patent enforcement action, therefore, a
defendant will usually add to any defense of non-infringement a further defense,
often in the form of a counterclaim, that the patent is invalid and hence not
enforceable even if infringed. In some jurisdictions, the issues of infringement and
validity are heard together. In others, the question of validity is heard separately
by a different court or it may be referred to the Patent Office.
Because of the principle that no invalid patent should be enforceable, the defendant
in a patent action is usually allowed to bring in evidence of invalidity at any stage
of the proceedings, and in some jurisdictions even during the trial itself. As a result,
the position of the patentee during patent enforcement proceedings tends to
deteriorate as a defendant makes searches and often finds evidence which is
relevant to validity.

d. What are the different roles of Certifying Authorities? Explain.

Certifying Authority (any 3 roles---3 marks)
(1) Any person may make an application to the Certifying Authority for the issue of a
Digital Signature Certificate in such form as may be prescribed by the Central
Government.
(2) Every such application shall be accompanied by such fee not exceeding twenty-five
thousand rupees as may be prescribed by the Central Government, to be paid to the
Certifying Authority Provided that while prescribing fees under sub-section (2) different
fees may be prescribed for
Different classes of applications.
(3) Every such application shall be accompanied by a certification practice statement or
where there is no such statement, a statement containing such particulars, as may be
specified
by
regulations.

(4) On receipt of an application under sub-section (1), the Certifying Authority may, after
consideration of the Certification practice statement or the other statement under subsection (3) and after making such enquiries as it may deem fit, grant the Digital Signature
Certificate or for reasons to be recorded in writing, reject the application :
Provided that no Digital Certificate shall be granted unless the Certifying Authority is
satisfied that(a) the application holds the private key corresponding to the public key to be listed
in
The Digital Signature Certificate
(b) the applicant holds a private key, which is capable of creating a digital
signature;
(c) the public key to be listed in the certificate can be used to verify a digital
signature affixed by the private key held by the applicant : Provided further that no
application shall be rejected unless the applicant has been given a reasonable
opportunity of showing cause against the proposed rejection.
What does CA should certify: (4 points---2 marks)
A Certifying Authority while issuing a Digital Signature Certificate shall certify that- (
(a) it has complied with the provisions of this Act and the rules and regulations made there
under;
(b) it has published the Digital Signature Certificate or otherwise made it available to such
person
relying
on
it
and
the
subscriber
has
accepted
it;
(c) the subscriber holds the private key corresponding to the public key, listed in the Digital
Signature
Certificate;
(d) the subscriber's public key and private key constitute a functioning key pair;
(e) the information contained in the Digital Signature Certificate is accurate; and
(f) it has no knowledge of any material fact, which if it had been included in the Digital
Signature Certificate would adversely affect the reliability of the representations made in
clauses (a) to (d).

6. Attempt any two of the following:

a. When was IT Act, 2000 amended? Enlist the major changes incorporated in the
amendments.
Ans:
Introduction--about the need of IT Act and its amendments: (1 mark)
An Act to provide legal recognition for transactions carried out by means of
electronic data interchange and other means of electronic communication, commonly
referred to as electronic commerce, which involve the use of alternatives to paperbased methods of communication and storage of information, to facilitate electronic
filing of documents with the Government agencies. It is considered necessary to give
effect to the said resolution and to promote efficient delivery of Government services
by means of reliable electronic records. BE it enacted by Parliament in the Fifty-first
Year of the Republic of India.
Two major changes---Sec 1 and Section 2(2 marks each---4 marks)
Sec 1. Short Title, Extent, Commencement and Application (any 4 points---2
marks)

10

(1) This Act may be called the Information Technology Act,2000. [As Amended by
Information Technology (Amendment) Act 2008]
(2) It shall extend to the whole of India and, save as otherwise provided in this Act, it
applies also to any offence or contravention hereunder committed outside India
by any person.
(3) It shall come into force on such date as the Central Government may, by
notification, appoint and different dates may be appointed for different provisions
of this Act shall be constructed as a reference to the commencement of that
provision.
(4) Nothing in this Act shall apply to documents or transactions specified in the First
Schedule by way of addition or deletion of entries thereto.
(5) Every notification issued under sub-section (4) shall be laid before each House of
Parliament.
Sec 2. Definitions (any 4 terms---2 marks)
(1) In this Act, unless the context otherwise requires,
(a) Cyber Appellate Tribunal means the Cyber Appellate * Tribunal
established under sub-section (1) of section 48 (* Regulations omitted)
(b) Cyber caf means any facility from where access to the Internet is offered
by any person in the ordinary course of business to the members of the
public.
(c) Digital Signature Certificate means a Digital Certificate means a Digital
Certificate issued under sub-section (4) of section 35.
(d) Electronic Record means data, record or data generated, image or sound
stored, received or sent in an electronic form or micro film or computer
generated micro fiche.
(e) Electronic Signature means authentication of any electronic record by a
subscriber by means of the electronic technique specified in the second
schedule and includes digital signature.
(f) Electronic Signature Certificate means an Electronic Signature Certificate
issued under section 35 and includes Digital Signature Certificate.
(g) Indian Computer Emergency Response Team means an agency established
under sub-section (1) of section 70 B.
(h) Information includes data, messages, text, images, sound, voice, codes,
computer programmes, software and databases or micro film or computer
generated micro fiche.
b. What does chapter 5 of IT Act, 2000, Secure Electronic records & secure digital
signatures specify? Explain briefly.
Ans :
Secure electronic record : (1 mark)
Where any security procedure has been applied to an electronic record at a specific
point of time. Then such record shall be deemed to be a secure electronic record from
such point of time to the time of verification.

Secure digital signature : (2 marks)

If, by application of a security procedure agreed to by the parties concerned, it can be
verified that a digital signature, at the time it was affixed, wasunique to the subscriber affixing it
capable of identifying such subscriber.

created in a manner or using a means under the exclusive control of the subscriber
and is linked to the electronic record to which it relates in such a manner that if the
electronic record was altered the digital signature would be invalidated then such
digital signature shall be deemed to be a secure digital signature.
Security procedure. (2 marks)
The Central Government shall for the purposes of this Act prescribe the security
procedure having regard to commercial circumstances prevailing at the time when the
procedure was used, including the nature of the transaction.
the level of sophistication of the parties with reference to their technological
capacity.
the volume of similar transactions engaged in by other parties.
the availability of alternatives offered to but rejected by any party.
the cost of alternative procedures, and
the procedures in general use for similar types of transactions or communications.

c. What are the conditions under which Intermediary gets exemption from liability?
Who are intermediaries: (1 mark)
Intermediaries, such as hosts, transitory communication systems, information location
tools etc are widely recognized as essential mechanism in the wheel of exercising the
right to freedom of expression on the Internet. Most major jurisdictions around the world
have introduced legislations for limiting intermediary liability in order to ensure that this
wheel does not stop spinning.
Act and its provision: (1 mark)
India amended Section 794 of the Information Technology Act 2000(hereinafter referred
to as the Act) in 2008 and joined the club of nations that limit intermediary liability.
Though the guiding principles for intermediary liability policy in India are derived from
the European Union E-Commerce Directive , such principles have been incompletely,
incorporated into the Rules without adapting them to the requirements of India in the
current context.
Conditions under which Intermediary gets Exemption: (6 conditions---3 marks)
a) Intermediary may claim that the takedown notice region is not applicable to
search engines as they fall within the scope of the exemption offered by Rule
3(3)provision(a). The rule includes temporary or transient or intermediate
storage of information automatically within the computer resource as an intrinsic
feature of such computer resource.
b) If the system of contextual advertisements has been subcontracted by
Intermediary to another intermediary, as a result of which, Intermediary does not
have any particular control over the advertisements. Thus he exempted.
c) If the author had not established himself as an affected party then the
intermediary will be exempted from liability
d) If the intermediary builds sufficient grounds to claim benefit of the exemption in
Rule 3(3) provision(a). This provision is essentially meant to provide an
exemption for techniques such as packet switching, statistical multiplexing or any
other store and forward techniques.
e) If an intermediary had not appointed a Grievance Officer as required under Rule
3(11) or modified its content policy as required under Rule 3(2) then he or she
may be exempted.

f) Intermediary will not get exemption if he or she deletes the comments from the
takedown notice intentionally. The comments include the following:
(i) The comment on the impugned URL is "racially and ethnically objectionable"
as provided in Rule 3(2)(b) of the Rules
(ii) The comment on the impugned URL is "hateful" as provided in Rule 3(2)(b)
of the Rules.
(iii) The comment on the impugned URL is "disparaging" as provided in Rule
3(2)(b) of the Rules.
(iv) The comment on the impugned URL is "defamatory" as provided in Rule
3(2)(b) of the Rules.
(v) The comment on the impugned URL "violates any law for the time being in
force" as provided in Rule 3(2)(e) of the Rules read with Sections 124A, 153A,
153B, 292A, 295A and 499 of the Indian Penal Code 1860.
d. What does chapter 9 of IT Act, 2000, Penalties & Adjudication cover?
Five major points of focus. (5 marks)
1.Penalty of damage of computer, computer system, etc.
If any person without permission of the owner or any other person who is incharge of a
computer, computer or computer network,(a) accesses or secures access to such computer, computer system or computer network;
(b) downloads, copies or extracts any data, computer data base or information from such
computer, computer system or computer network including information or data held or
stored in any removable storage medium;
(c) introduces or causes to be introduced any computer contaminant or computer virus
into any computer, computer system or computer network;
(d) damages or causes to be damaged any computer, computer system or computer
network, data, computer data base or other programmes residing in such computer,
computer system or computer network;
(e) disrupts or causes disruption of any computer, computer system or computer
network;
(f) denies or causes the denial of access to any person authorised to access any computer,
or computer network by any means ;
(g) provides any assistance to any person to facilitate access to a computer, computer
system or computer network in contravention of the provisions of this Act, rules or
regulations made thereunder ;
(h) charges the services availed of by a person to the account of another person by
tampering with or manipulating any computer, computer system, or computer network,
he shall be liable to pay damages by way of compensation not exceeding one crore
rupees to the person so affected.
Explanation.- For the purpose of this section,(i) "computer contaminant" means any set of computer instructions that are designed(a) to modify, destroy, record, transmit data or programme residing within a computer,
computer system or computer network; or
(b) by any means to usurp the normal operation of the computer, computer system, or
computer network;
(ii) "computer data base" means a representation of information, knowledge, facts,
concepts or instructions in text, image, audio video that are being prepared or have been
prepared in a formalised manner or have been produced by a computer, computer system
or computer network and are intended for use in a computer, computer system or computer
network;

(iii) "computer virus" means any computer instruction, information, data or programme
that destroys, damages, degrades or adversely affects the performance of a computer
resource or attaches itself to another computer resource and operates when a programme,
data or instruction is executed some other event takes place in that computer resource;
(iv) "damage " means to destroy, alter, delete, add, modify or rearrange any computer
resource by any means.
2. Penalty for failure to furnish information, return, etc.
If any person who is required under this Act or any rules or regulations made thereunder
to(a) furnish any document, return or report to the Controller or the Certifying Authority
fails to furnish the same, he shall be liable to a penalty not exceeding one lakh and fifty
thousand rupees for each such failure;
(b) file any return or furnish any information, books or other documents within the time
specified therefore in the regulation fails to file return or furnish the same within the time
specified therefor in the regulations, he shall be liable to a penalty not exceeding five
thousand rupees for every day during which such failure continues;
(c) maintain books of account or records, fails to maintain the same, he shall be liable to
a penalty not exceeding ten thousand rupees for every day during which the failure
continues.
3. Residuary penalty
Whoever contravenes any rules or regulations made under this Act, for the contravention
of which no penalty has been separately provided, shall be liable to pay a compensation
not exceeding twenty-five thousand rupees to the person affected by such contravention
or a penalty not exceeding twenty-five thousand rupees.
4. Power to adjudicate
(1) For the purpose of adjudging under this Chapter whether any person has committed a
contravention of any of the provisions of this Act or of any rule, regulation, direction or
order made thereunder the Central Government shall, subject to the provisions of subsection (3), appoint any officer not below the rank of a Director to the Government of
India or an equivalent officer of a State Government to be an adjudicating officer for
holding an inquiry in the manner prescribed by the Central Government.
(2) The adjudicating officer shall, after giving the person referred to in sub-section (1) a
reasonable opportunity for making representation in the matter and if, on such inquiry,
he is satisfied that the person has committed the contravention, he may impose such
penalty or award such compensation as he thinks fit in accordance with the provisions of
that section.
(3) No person shall be appointed as an adjudicating officer unless he possesses such
experience in the field of Information Technology and legal or judicial experience as
may be prescribed by the Central Government.
(4) Where more than one adjudicating officers are appointed, the Central Government
shall specify by order the matters and places with respect to which such officers shall
exercise their jurisdiction.
(5) Every adjudicating officer shall have the powers of a civil court which are conferred
on the Cyber Appellate Tribunal under sub-section (2) of section 58, and(6) all proceedings before it shall be deemed to be judicial proceedings within
the meaning of sections 193 and 228 of the Indian Penal Code;

(7) shall be deemed to be a civil court for the purpose of section 345 and .46 of the Code
of Criminal Procedure, 1973.
5. Factors to be taken into account by the adjudicating officer
While adjudging the quantum of compensation under this Chapter, the adjudicating
officer shall have due regard to the following factors, namely :(a) the amount of gain of unfair advantage, wherever quantifiable, made as a result of the
default;
(b) the amount of loss caused to any person as a result of the default;
(c) the repetitive nature of the default.

7. Attempt any three of the following:

a. List out the basic principles of design rights.
The basic principles of design rights are: (Any 5 rights with brief explanation---5
marks)
1. The rights of exclusive use of design is registered under the Designs Act 2000.
This Act is enforced from the date of registration.
2. If the Design Act has been registered, it can be further extended from the original
period of registration.
3. Right to protect the design from piracy which causes infringement. Any person
responsible for infringing a registered design and found guilty is liable to a fine
of rupees not exceeding 25000.
4. The registered owner has the right to file a suite for recovery of damages so that
his reputation does not get affected and he can recover this by getting an amount
not exceeding Rs. 50000.
5. The registration of design includes the provisions of section 20 of Design Act
2000, which includes that the government can use certain design under various
circumstances when the article is not made available to the public at reasonable
prices.
6. Section 11 of Designs Act 2000 provides the term for registration which may be
extended to further 5 years till a maximum period of 15 years.
b. Explain in brief the enforcement of data protection.
(All 6 points with brief explanation---5 marks)
If the information commissioner finds that the DPA has been breached by a
DC, he serves an enforcement notice on DC
The notice indentifies the breach or commission, and specifies how to correct
it
Failure to comply is an offence
However, a DC may appeal t the DP tribunal
With the approval of the director of Public Prosecutions, legal
proceedings may follow, which could result is a fine.
Enforcement data protection act in media.
The DPA has special provision for journalism, and artistic or literary
purposes
Basically, journalists may hold personal data for journalistic
purposes only if the data are necessary to reconcile the rights
to privacy with the rules governing freedom of expression.

15

So, investigable journalists & political satirists or commentators are not

treated as Data Controllers
Enforcement Data protection in internet
The UK/EU legislation seems fairly strong. But can trans-border transfer of
data

c. What are the rights granted for registration of design?

Ans: (5 rights---5 marks)
1. A person has the right for exclusive use of the design which is subject to the
provision of Design Act, 2000. Hence the Design registered under this act can be
used from the date of registration.
2. If the design provision gets expired then the applicant can extend the period of
design by paying the prescribed fees.
3. Every person has a right to protect the design from piracy. Any person
responsible for infringing the registered design then he is liable to pay a fine of a
sum not exceeding 25,000.
4. Under section 20 of the design Act, 2000. There are exceptions in case of using
the design related to the government. Hence the government can use the
registered design which prohibits other person to use this design under certain
circumstances
5. Section 11 of the Design Act, 2000 has provided extension period if the
registered design gets expired. Hence the maximum period of extending the
registered design is for 15 years
d. Explain how licensing for technology is considered.
Ans: (4 points---4 marks)
1. By a technology licensing agreement, the licensor authorizes the licensee to use the
technology under certain agreed terms and conditions.
2. It is therefore, a contract freely entered into between two parties and contains terms &
conditions so agreed upon.
3. Through a technology licensing agreement, it is possible to improve the quality of
existing product or develop and manufacture a new product by using the patents or
trade secrets owned by others.
4. This may also include entering into a new market or extending in the existing market
for a product by acquiring the patent rights.
For example: (1 mark)
Tata Steel has obtained a process technology patent for making hybrid rollers used
in sinter plants. This patent is now licensed to Jyoti Cero Rubber to get potential
revenue over next three years. Looking at the wider market Tata Steel is licensing
this technology to other competent parties.
e. Explain Copyright issue in India. Explain Copyright in WWW.
(3 issues with explanation---5 marks
First issue--1 mark
Remaining 2 issues---4 marks)
i. The traditional concept of copyright has given place to a more complex
meaning to cope up with the advancements in the nature of works and the
mediums of their expressions that merit protection under the Copyright
Law. Innumerable issues arise in the process of a virtual tug of war
between the copyright holders and their infringers. Stringent remedies are

ii.

iii.

devised to safeguard the intellectual property rights and amendments have

been made in the legislation governing IPR in India and Information
Technology Act, 2000 has been enacted to be in tune with the
international concerns reflected in the WIPO Treaties and other
International documents.
The Copyright Act, 1957 has been enacted by the Parliament in the
exercise of its legislative powers conferred by Entry 49 of the Seventh
Schedule to the Constitution of India with a view to amend and
consolidate the law relating copyright. As provided in Section 16, no
person shall be entitled to copyright or, any similar right in any work,
whether published or unpublished, otherwise than under and in
accordance with the provisions of this Act or of any other law for the time
being in force.
The Parliament enacted the Information Technology Act, 2000 which
provides legal recognition to electronic record and digital signatures. The
expression electronic record as defined by Section 2(1)(t) of that Act
means, data, record or data generated image or sound stored, received or
sent in an electronic form or micro film. Tampering with computer source
documents is made an offence under Section 65 of the Act, which
provides that, whoever knowingly or intentionally conceals, destroys or
alters or intentionally or knowingly causes another to conceal, destroy or
alter any computer source code used for a computer, computer
programme, computer system or computer network, when the computer
source code is required to be kept or maintained by law for the time being
in force, shall be punishable with imprisonment upto three years, or with
fine which may extend upto two lakh rupees, or with both.

f. What is Cyber Appellate Tribunal? What are its powers?

About Cyber Appellate Tribunal: (1 mark)
Procedure and powers of the Cyber Appellate Tribunal (point 1 for 1 mark
Point 2 for 2 marks
Point 3 for 1 mark)
(1) The Cyber Appellate Tribunal shall not be bound by the procedure laid down by the
Code of Civil Procedure, 1908 but shall be guided by the principles of natural justice
and, subject to the other provisions of this Act and of any rules, the Cyber Appellate
Tribunal shall have powers to regulate its own procedure including the place at which it
shall have its sitting.
(2) The Cyber Appellate Tribunal shall have, for the purposes of discharging its
functions under this Act, the same powers as are vested in a civil court under the Code of
Civil Procedure, 1908, while trying a suit, in respect of the following matters, namely : (a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents or other electronic records;
(c) receiving evidence on affidavits;
(d) issuing commissions for the examination of witnesses of documents;
(e) reviewing its decisions;
(f) dismissing an application for default or deciding it ex parte;
(g) any other matter which may be prescribed.

(3) Every proceeding before the Cyber Appellate Tribunal shall be deemed to be a judicial
proceeding within the meaning of sections 193 and 228, and for the purpose of section 196
of the Indian Penal Code and the Cyber Appellate Tribunal shall be deemed to be a civil
court for the purposes of section 195 and Chapter XXVI of the Code of Criminal
Procedure, 1973.