Patent Cooperation Treaty

Posted on February 15, 2012 by Chandan

In order to examine the Patent Cooperation Treaty (PCT) it is necessary that we should have a clear understanding what about PCT is and the purpose of PCT. The Washington Diplomatic Conference on the Patent Cooperation Treaty took place from May 25 to June 19, 1970. The Patent Cooperation Treaty was signed in Washington at the very end of the conference, i.e., on June 19, 1970. The Treaty entered into force on January 21, 1978 initially with 18 Contracting States. The first international applications were filed on June 1, 1978. The Treaty was subsequently amended in 1979, and modified in 1984 and 2001.

PCT is an international patent law treaty. It provides a unified procedure for filing patent applications to protect inventions in each of its Contracting States. A patent application filed under the PCT is called an international application or PCT application. An international patent application (PCT Application) has two phases: The first phase is the international phase in which patent protection is pending under a single patent application filed with the patent office of a contracting state of the PCT. The second phase is the national and regional phase which follows the international phase in which rights are continued by filing necessary documents with the patent offices of separate contracting states of the PCT. A PCT application, as such, is not an actual request that a patent be granted, and it is not converted into one unless and until it enters the “national phase”. The international application needs to be filed in one language only. At least one applicant (either a physical or legal person) must be a national or resident of a Contracting State to the PCT, otherwise no international filing date is accorded. In most member states, the applicant or at least one of the applicants of the application is required to be a national or resident of the state of the receiving office where the application is filed. Applicants from any contracting state may file an international patent application at the International Bureau in Geneva[1].

Upon filing the international application, all Contracting States are automatically designated. An international patent application has the same standing during the international phase as if a national or regional patent application had been filed in every contracting state of the PCT.

Eighteen months after the filing date or the priority date if any, the international application is published by the International Bureau (IB) of World Intellectual Property Organization, based at Geneva, Switzerland in one of the eight languages of publication i.e. Arabic, Chinese, English, French, German, Japanese, Russian and Spanish[2].

[1] Under Rule 19(1)(iii) of PCT Regulations a PCT application can be filed at the International Bureau in Geneva irrespective of the Contracting State of which the applicant is a resident or national.

[2] Rule 48(3) of the PCT Regulations provides for the Languages in which the publications can be made.

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Software Patent Vs Software Copyright

Posted on February 15, 2012 by Chandan

Software patents, like all other patents, give an inventor the right to exclude all others from making, selling, or using an invention for a certain number of years. In return, the patentee discloses his or her “best method” of implementing the invention; thereby relinquishing trade secrets that might otherwise be enforced forever. To obtain a patent, an applicant must convince Patent Office examiners that the invention would not be obvious to a “person of ordinary skill in the art” who is familiar with all the “prior art,” which includes previous patents and publications.

In contrast, copyright inheres in books, poems, music, and other works of authorship, including computer programs, from the moment they are created. Registering one’s work with the Copyright Office is a simple, inexpensive procedure that has important benefits (it is a precondition for filing suit, for example), but the copyright itself is automatic when the work is fixed on paper or on disk.

Copyright and patent protect different things. Copyright protects expression but not underlying ideas. Patents protect useful processes, machines, and compositions of matter. Traditionally “processes” have included methods of physically transforming materials but not business methods or mental steps. Thus, computer programs fall somewhere between the traditional territories of copyright and patent.

From the 1960s to the early 1980s, the Patent Office and the courts grappled with the question of whether algorithms[1] are patentable as either processes or machines. Early on, the some patent offices granted some patents for processes built into computer hardware that today would be contained in software, but it was reluctant to grant patents for programs per se.

However, the CCPA maintained that computer programs were patentable and overturned numerous Patent Office decisions denying patentability. The U.S. Supreme Court vindicated the Patent Office in the decision of Gottschalk Versus Benson (1972) holding that mathematical algorithms were not patentable subject matter. Still, the CCPA continued to uphold patentability in other cases. Finally, in Diamond v. Diehr (1981), a sharply divided Supreme Court upheld the patentability of a process for curing rubber that included a computer program. The majority concluded that programs that did not preempt all uses of a computer algorithm could be patented at least when used in a traditional process for physically transforming materials.

Protection by patent protection and copyright constitute two different means of legal protection which may cover the same subject-matter, such as computer programs, since each of these two means of protection serves its own purpose. Software is protected as works of literature and thus any software written is automatically covered by copyright. This allows the creator to prevent another entity from copying the program and there is generally no need to register code in order for it to be copyrighted.

Patents cover the underlying methodologies embodied in a given piece of software, or the function that the software is intended to serve, independent of the particular language or code that the software is written in. Copyright prevents the direct copying of some or all of a particular version of a given piece of software, but do not prevent other authors from writing their own embodiments of the underlying methodologies. Copyright can also be used to prevent a given set of data from being copied while still allowing the author to keep the contents of said set of data a trade secret.

In many countries, computer programs are protected under copyright. The major advantage of copyright protection lies in its simplicity.  Copyright protection does not depend on any formalities such as registration or the deposit of copies in the 151 countries party to the Berne Convention[2] for the Protection of Literary and Artistic Works.  This means that international copyright protection is automatic – it begins as soon as a work is created.  Also, a copyright owner enjoys a relatively long period of protection, which lasts, in general, for the life of the author plus 50 or, in certain countries, 70 years after the author’s death.

In contrast, a patent must be applied for, in principle, in each country in which you seek patent protection.  In order to enjoy patent protection, an application for a patent shall comply with both formal and substantive requirements, and a patented invention shall be disclosed to the public. These requirements can be legally and technically complex, and their compliance often requires a legal expert’s assistance.  Compared with copyright protection, the term of protection is much shorter, namely, in general, 20 years from the filing date of the application.

Then why do many people seek to patent their software-related inventions?  One of the strongest reasons is that copyright protection extends only to expressions, and not to ideas, procedures, methods of operation or mathematical concepts as such.  Although copyright protects the “literal expression” of computer programs, it does not protect the “ideas” underlying the computer program, which often have considerable commercial value.

However, due to the complex requirements for the grant of patents, the costs for obtaining and enforcing a patent may be costly.  Unless you have important financial resources, it may be worth considering whether patenting your software-related innovation is the best way to protect your product.  The possibility and feasibility of using other types of intellectual property, such as trademarks, industrial designs and trade secret protection, may also be considered.

[1] Elemental processes on which computer programs are built.

[2] Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland in 1886.

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TRIPS Agreement

Posted on February 15, 2012 by Chandan

In order to examine the TRIPS Agreement it is necessary that we should have a clear understanding about the TRIPS Agreement is and the purpose of TRIPS Agreement. The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement administered by the World Trade Organization (WTO) that sets down minimum standards for many forms of intellectual property (IP) regulation. It was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade[1] (GATT) in 1994.

Specifically, TRIPS contains requirements that nations’ laws must meet for: copyright rights, including the rights of performers, producers of sound recordings and broadcasting organizations, geographical indications, including appellations of origin, industrial designs, integrated circuit layout-designs, patents, monopolies for the developers of new plant varieties, trademarks, trade dress[2] and undisclosed or confidential information. TRIPS also specify enforcement procedures, remedies, and dispute resolution procedures. Protection and enforcement of all intellectual property rights shall meet the objectives to contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.

The TRIPS agreement introduced intellectual property law into the international trading system for the first time and remains the most comprehensive international agreement on intellectual property till date. In 2001, developing countries, concerned that developed countries were insisting on an overly narrow reading of TRIPS, initiated a round of talks that resulted in the Doha Declaration. The Doha declaration is a WTO statement that clarifies the scope of TRIPS, stating for example that TRIPS can and should be interpreted in light of the goal “to promote access to medicines for all.”

TRIPS has been criticized by the alter-globalization movement. Members of the movement object, for example, to its consequences with regards to the AIDS pandemic in Africa[3].


[1] General Agreement on Tariffs and Trade (GATT) was the outcome of the failure of negotiating governments to create the International Trade Organization (ITO). GATT was formed in 1947 and lasted until 1994, when it was replaced by the World Trade Organization.

[2] Trade dress is a legal term of art that generally refers to characteristics of the visual appearance of a product or its packaging (or even the design of a building) that signify the source of the product to consumers

[3] The HIV/AIDS epidemics spreading through the countries of Sub-Saharan Africa are highly varied. Although it is not correct to speak of a single African epidemic, Africa is without doubt the region most affected by the virus.

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Patenting Of Softwares: An Introduction

Posted on February 15, 2012 by Chandan

Modern society relies heavily on computer technology.  Without software, a computer cannot operate. Software and hardware work in tandem in today’s information society.  So it is no wonder that intellectual property protection of software is crucial not only for the software industry, but for other businesses as well.

In order to have a better understanding of the subject, we should first have a clear understanding as to what is computer software. The term ‘Software’ in India has been defined under the Income Tax Act, 1961 and the Copyright Act, 1957. Explanation (b) of Section 80 HHE of the Income Tax Act, 1961 defines “Computer Software” to mean any computer programme recorded on any disc, tape, perforated media or other information storage device and includes any such programme or any customized electronic data which is transmitted from India to a place outside India by any means. The Copyright Act, 1957 gives a more appropriate definition, Section 2(ffc) defines “Computer Programme” as a set of instructions expressed in words, codes, schemes or any other form including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result.

Patentability of computer software is controversial as well as debatable. Law regarding Patenting of computer software differs from country to country and the same will discussed later on. So far as the Indian Scenario is concerned, Section 3(k) of the Patents Act provides that a mathematical or business method or computer programme per se or algorithms is not invention for the purposes of Patent Act. A decent explanation to Section 3(k) has been given by Justice Yatindra Singh[1] in his book titled “Cyber Law”[2]. The relevant extract is being reproduced hereunder:

“The word ‘computer programme’ is modified by the word ‘per se’. This word means standing alone, or by itself, or in itself. It shows that under Section 3(k) a computer programme standing alone or by itself cannot be patented. Nevertheless it also means that if a computer programme is not standing alone then it may be patented; it leaves doubts regarding its scope. The courts may interpret it in the same manner as the Europeans are doing or could go all the way as is being done in the US: of course its finer boundaries will be determined when courts actually interpret these words”

To summarize, it is amply clear, Patenting of Software in India is controversial and confused subject and the law regarding Patenting of Software can be better understood when the courts starts interpretation of the same. Prima facie, from a reading of the above provisions it is clear that unlike US, India has adopted a very conservative approach to patenting of software.

[1] Hon’ble Justice Yatindra Singh is a Senior Judge of the Allahabad High Court

[2] Justice Yatindra Singh, Cyber Laws 66 (Universal Law Publishing Company, Delhi, 2007)

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Corruption And Anti-Money Laundering

Posted on February 15, 2012 by Chandan

Contributed By:
TANIYA PANDEY
SEMESTER VI, B.A. LL.B. (Hons.)
Faculty of Law, University of Allahabad

INTRODUCTION

Corruption is a global problem which poses serious threat to the development of a country and its people. States, developed or developing, are equal victims of this problem.

Corruption, apart from affecting the public at large, also causes reduced investment, lack of respect for the rule of law and human rights, undemocratic practices and diversion of funds intended for development and essential services, affects government’s ability to provide basic services to its citizens. Most importantly, corruption has the greatest impact on the most vulnerable part of a country’s population, the poor. Further, corruption today has become one of the most salient manifestations of the organized crime syndicate of the globalized world, which has grave national and international ramifications.[1]

Corruption in its different manifestations was condoned in all societies since antiquity; however, in the recent years this phenomenon has received greater deal of attention from the international community than before. In fact, the degree of attention attributed to combat corruption has been unprecedented that the effort made at the international level has paved the way for the negotiation and adoption of five legally binding international anti-corruption instruments within a short span of time.[2] These international and regional agreements have attempted to establish a legal framework and harmonize international rules to combat corruption.

The classic case of corruption is bribery[3], where the bribe giver promises or offers to the bribe taker a benefit such as a gift, money or other advantage in exchange for an act or omission in the performance of his or her official function. While it is commonly believed that bribe takers work for the public sector it must be stressed that it occurs equally in the private sector.

Corruption is prevalent both at the petty and at the grand level. Petty level corruption is likely to be widespread in developing countries where ordinary citizens have to pay bribes in order to obtain basic services such as passports and birth certificates from government departments. Grand corruption, on the other hand, is likely to transcend borders and may involve a variety of factors ranging from multinational corporations, local and foreign public officials to politicians. This type of corruption where huge amounts of cash and expensive luxury items change hands in return for ‘favours’ is by no means restricted to developing countries.

ANTI-MONEY LAUNDERING

Corruption is a crime which has as its ultimate aim the enjoyment of ill-gotten proceeds. In instances of grand corruption some form of laundering activity is likely to take place in an attempt to disguise the illegitimate source of wealth. An effective Anti-Money Laundering (AML) regime will have in place measures aimed at identifying and investigating such laundering activity and at using the evidence obtained in bringing the persons concerned to justice. It will also have in place measures aimed at preventing the dissipation or loss of the proceeds of crime and recovering and/or confiscating them. An effective AML regime can therefore make a significant contribution to the fight against corruption in at least two main ways: (i) it could help uncover evidence of criminal activity through identification of suspicious movements of financial assets, thus increasing the chances of a successful prosecution of the perpetrator of the crime; (ii) it also enables the tracing of criminal proceeds to facilitate their preservation, recovery and ultimate return to their rightful owner. In the case of State assets which have been pilfered by corrupt officials, these may be returned to their rightful use.

This potential contribution has been recognized in a number of regional and international conventions on corruption, which, besides creating a number of criminal offences covering a range of corrupt behaviour, also emphasise the importance of preventing the legitimatization of illicitly obtained funds, that is, money laundering. Amongst these, the UNCAC (United Nations Convention against Corruption) has attracted over a hundred ratifications from both developed and developing countries. The UNCAC is one of the most comprehensive anti-corruption instruments. It criminalises money laundering (Article 23) and includes a range of preventive mechanisms as well as dealing with the proceeds of corruption (Article 14).

However, the international anti-corruption conventions and AML standards seem to be dovetailing to an appreciable degree. But with regard to the potential contribution that AML could make to the fight against corruption, it must be acknowledged that there are several areas where there are limitations to AML’s powers. Thus, while AML can be of great value in the fight against grand corruption (and indeed has proved itself to be so in the past) its limitations must be recognized and it should be viewed as only one of a number of tools which must be employed in the fight against corruption.

CONCLUSION

Corruption is a multi-faceted problem that requires a multi-faceted solution. A number of different tools, both legal and non-legal need to be used to deter the commission of the offence in the first place and, where the offence is committed, to prevent those who have committed it from enjoying the proceeds of their crime. Though AML cannot put a stop to corruption, it can be very effective in achieving the latter aim, especially in cases of grand corruption. AML can also play a significant role in tracing and recovering the proceeds of corruption. Whenever this is done the far-reaching negative effects and implications of corrupt behaviour, especially grand corruption, may be assuaged.

[1] For corruption related issues see generally: “Combating Corruption under International Law,” Duke Journal of Comparative and International Law, 2000; Ali Reza Deihim, “Current Developments: African Campaign against Corruption”, Indian Journal of International Law, vol. 42 (2002); Dimitri Vlassis, “The Negotiation of the Draft United Nations Convention against Corruption”, UN Convention Against Corruption, (ISS, November 2004); Lucinda A. Low, “The Inter-American Convention Against Corruption: A Comparison with the United States Foreign Corrupt Practices Act”, Vanderbilt Journal of Transnational Law, vol. 38, 1998;

[2] The United Nations Convention against Corruption, 2003 (hereinafter UNCAC or the Convention); The African Union Convention on Preventing and Combating Corruption and Related Offences, 2002 (hereinafter AU Convention); the Organization of American States Inter-American Convention against Corruption, 1996 (hereinafter OAS Convention); the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transaction, 1997 (hereinafter OECD Convention); and United Nations Convention on Transnational Organized Crimes, 2000 (hereinafter TOC Convention).

[3] Other forms of corruption include trading in influence (where a person offers to affect or influence the decision-making of a person performing functions within the public sector or private sector in return for an advantage for him or herself or another), embezzlement (misappropriation of property or funds entrusted legally to a person in their formal capacity) and illicit enrichment (the significant increase in the assets of a person for which a reasonable explanation cannot be given by the person concerned).

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