Rajiv Gandhi National University of Law, Punjab

(Established by Punjab Act No. 12 of 2006) Bhadson Road, Sidhuwal, Punjab

(Accredited ‘A’ Grade by NAAC)

Project Submission of
Intellectual Property Right

for
B.A. LL.B. (Hons.) VIth Semester
Session 2020-2021

Topic: Opposition Under Patent Act : An Analysis

Submitted by: Deepak Kilania

Roll No.: 17048
Group No.: 6

A.INTRODUCTION

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 A.1. Evolution of opposition system in india.

A.2. Stages of opposition.

B. Types of opposition in patent law

B.1.Pre -Grant Opposition.

B.2.Post-Grant Opposition.

C. Procedural Difference between Pre-Grant and Post-Grant patent

opposition in india.

D. Authority for invoking opposition in patent law.

D.1.Patent office.
D.2.The intellectual Property applleate Board.

E. Procedure for filling Pre grant opposition under Section 25(1).

F. Procedure for filling Post grant opposition under Section 25(2).

G.Grounds for Opposition under section 25(1) and section 25(2).

H.CASES:-

H.1. Novartis AG vs. Natco Pharma Ltd.

H.2. Hindustan Lever Ltd. Vs. Godrej Soaps.

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G. Inter-Govermental Agreement and Memorendum of understanding
(MOU).

INTRODUCTION
Political economy is the study of production and trade and their relations with law, custom and
government; and with the distribution of national income and wealth. As a discipline, political
economy originated in moral philosophy, in the 18th century, to explore the administration of
states' wealth, with "political" signifying the Greek word polity and "economy" signifying the
Greek word "okonomie" (household management). The earliest works of political economy are
usually attributed to the British scholars Adam Smith, Thomas Malthus, and David
Ricardo, although they were preceded by the work of the French physiocrats, such as François
Quesnay (1694–1774) and Anne-Robert-Jacques Turgot (1727–1781).1

In the late 19th century, the term "economics" gradually began to replace the term "political
economy" with the rise of mathematical modelling coinciding with the publication of an
influential textbook by Alfred Marshall in 1890.1 Earlier, William Stanley Jevons, a proponent of
mathematical methods applied to the subject, advocated economics for brevity and with the hope
of the term becoming "the recognised name of a science".2 Citation measurement metrics from
Google Ngram Viewer indicate that use of the term "economics" began to overshadow "political
economy" around roughly 1910, becoming the preferred term for the discipline by 1920.3 Today,
the term "economics" usually refers to the narrow study of the economy absent other political
and social considerations while the term "political economy" represents a distinct and competing
approach.

1
Marshall, Alfred. (1890) Principles of Economics.

2
Jevons, W. Stanley. The Theory of Political Economy, 1879, 2nd ed

3
Groenwegen, Peter. (1987 [2008]). "'political economy' and 'economics'", The New Palgrave: A Dictionary of
Economics, v. 3, pp. 905–06. [Pp. 904–07.]

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Political economy, where it is not used as a synonym for economics, may refer to very different
things. From an academic standpoint, the term may reference Marxian economics, applied public
choice approaches emanating from the Chicago school and the Virginia school. In common

1. 1 Steiner (2003), pp. 61–62

parlance, "political economy" may simply refer to the advice given by economists to the
government or public on general economic policy or on specific economic proposals developed
by political scientists. A rapidly growing mainstream literature from the 1970s has expanded
beyond the model of economic policy in which planners maximize utility of a representative
individual toward examining how political forces affect the choice of economic policies,
especially as to distributional conflicts and political institutions. It is available as a stand-alone
area of study in certain colleges and universities.

International relations (IR) or international affairs (IA) —

Is the study in interconnectedness of politics, economics and law on a global level. Depending
on the academic institution, it is either a field of political science, an interdisciplinary academic
field similar to global studies, or an entirely independent academic discipline in which students
take a variety of internationally focused courses in social science and humanities disciplines.4 In
all cases, the field studies relationships between political entities (polities) such as sovereign
states, inter-governmental organizations (IGOs), international non-governmental organizations
(INGOs), other non-governmental organizations (NGOs), and multinational corporations
(MNCs), and the wider world-systems produced by this interaction. International relations is an
academic and a public policy field, and so can be positive and normative, because it analyses
and formulates the foreign policy of a given state.

As political activity, international relations dates from the time of the Greek historian
Thucydides (c. 460–395 BC), and, in the early 20th century, became a discrete academic field
(no. 5901 in the 4-digit UNESCO Nomenclature) within political science. In practice,

4
François Modoux, "La Suisse engagera 300 millions pour rénover le Palais des Nations", Le Temps, Friday 28
June 2013, page 9. (in French)

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international relations and international affairs forms a separate academic program or field
from political science, and the courses taught therein are highly interdisciplinary. 5

For example, international relations draws from the fields of politics, economics, international
law, communication studies, history, demography, geography,

sociology, anthropology, criminology and psychology. The scope of international relations

encompasses issues such as globalization, diplomatic relations, state sovereignty, international
security, ecological sustainability, nuclear proliferation, nationalism, economic development,
global finance, terrorism, and human rights.

FATCA ( Foreign Account Tax

Compliance
Act ) & CRS – Declaration, Regulations &
Requirements
Enactment of FATCA and signing of IGA
In 2010, the USA enacted “Foreign Account Tax Compliance Act” (FATCA) with the objective
of tackling tax evasion through obtaining information in respect of offshore financial accounts
maintained by the US residents and citizens. The provisions of FATCA essentially provide for
30% withholding tax on US source payments made to Foreign Financial Institutions, unless they
enter into an agreement with the Internal Revenue Service (US IRS) to provide information about
accounts held with them by USA persons or entities (firms/companies/trusts) controlled by USA
persons. Since domestic laws of sovereign countries (including India) may not permit sharing of
client confidential information by FIs directly with the USA. USA has entered into
InterGovernmental Agreement (IGA) with various countries. The IGA between India and USA
was signed on 9th July, 2015. It provides that the Indian FIs will provide necessary information

5
"International Relation", Columbia Encyclopedia (1993) pp.000–0000.

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to the Indian tax authorities, which will be transmitted to USA periodically. Under the IGA, USA
will also provide certain information about Indians having financial assets in the USA. 6

New Global Standards on Automatic Exchange of Information

To combat the problem of offshore tax evasion and avoidance and stashing of unaccounted
money abroad requiring cooperation amongst tax authorities, the G20 and OECD countries
working together developed a Common Reporting Standard (CRS) on Automatic Exchange of
Information (AEOI). The CRS on AEOI was presented to G20 Leaders in Brisbane on 16th
November, 2014.
The Hon’ble Prime Minister of India, speaking on the occasion, supported the new global
standard,

as it would be instrumental in getting information on unaccounted money hoarded abroad and its
eventual repatriation. The CRS on AEOI requires the financial institutions of the “source”
jurisdiction to collect and report information to their tax authorities about account holders
“resident” in other countries, such information has to be transmitted “automatically’ on yearly
basis. The information to be exchanged relates not only to individuals but also to shell companies
and trusts having beneficial ownership or interest in the “resident” countries. Further, the
reporting needs to be done for a wide range of financial products, by a wide variety of financial
institutions including banks, depository institutions, collective investment vehicles and insurance
companies.7

With new markets emerging each day in this era of globalisation, governments and financial
institutions around the world are coming up with ways to combat tax evasion. FATCA and CRS
are two such initiatives. We have covered the following in this article.

1. What is the difference between FATCA & CRS?

2. Foreign Account Tax Compliance Act or FATCA
3. Agreement to implement FATCA between India & US
4. More About FATCA Declaration
6
https://www.incometaxindia.gov.in/Pages/eoi/automatic-exchange-of-information.aspx
7
Ibid.

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 5. Common Reporting Standard or CRS
6. CRS Declaration
7. What are the documents required for FATCA & CRS declarations?

1. Difference between FATCA & CRS at a

glance
The need for a system to validate and improve tax compliance globally has led to the formation
of FATCA and CRS. Before talking about FATCA-CRS compliance, let us understand the
difference between the two below:

a. FATCA
The United States Tax Department launched FATCA in the year 2010 to promote tax compliance
and discourage tax evasion. FACTA stands for Foreign Account Tax Compliance Act.

b. CRS
On the other hand, CRS is roughly a more international version of FATCA. While the former is
only for US persons, the latter is applicable for citizens of every registered country.

Differences Between FATCA and CRS 8

One of the biggest differences between FATCA and CRS is the breadth of its design. Whereas
FATCA requires financial institutions to report only those customers who qualify as U.S.
8
https://insights.diligent.com/fatca/fatca-vs-crs-the-difference-is-crucial

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 persons, CRS involves more than 90 countries. Under CRS, virtually all foreign investments
handled by a financial institution become subject to a CRS report.

Due in part to CRS’s wider scope, the nature of the relationships between financial institutions’
country and regulatory authority has also changed. Under FATCA, each country entered into a
separate bilateral intergovernmental agreement with the United States. These agreements had
two main objectives:

• Require local financial institutions to comply with FATCA reporting standards;

• Provide that doing so would not cause financial institutions to breach local data protection laws.

By comparison, CRS represents an international standard, which, by its very nature, is

multinational. Countries wishing to take part in the CRS can do so in a variety of ways. For
instance, they might:9

• Ratify a legal instrument, such as a treaty that provides for the automatic, reciprocal exchange of
information regarding financial accounts. Such instruments might also include a double taxation
agreement that provides for automatic information exchange between the two countries, or a
model convention known as the Multilateral Convention on Mutual Administrative Assistance
on Tax Matters, which is designed to promote international cooperation for the betterment of
international tax laws;

• Sign an OECD model competence authority agreement, wherein both parties agree to abide by
CRS standards of due diligence and exchange information; and

• Enact legislation to impose due diligence requirements on all local RFIs.10

9
https://onlinebusiness.northeastern.edu/blog/whats-the-difference-fatca-vs-crs/

10
http://www.the-best-of-both-worlds.com/crs-vs-fatca.html

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 FATCA CRS

Needs the help of a financial institution to find CRS has 90 countries (except the US)
US persons committed to it – has a wider scope

It is not compulsory to report on financial Reporting your financial accounts is mandatory

accounts always under CRS

Individual account should have more than No de minimis limit under CRS
$50,000 balance

Number of US people reported under Several millions of accounts are reported under
FATCA are only a few thousands CRS

Therefore, both FATCA and CRS prevent offshore investors from avoiding taxes and hoarding
unaccounted cash overseas. However, it required cooperation from the tax authorities from all
the G20 and OECD countries. Finally, the Common Reporting Standard or CRS was introduced.

2. Foreign Account Tax Compliance Act

FATCA came into existence to fight tax evasion and to ensure strict adherence to tax rules. Its
main objective is to identify and prevent offshore tax avoidance by US citizens or residents. In
short, an attempt to track US persons earning from overseas investments and stash assets in other
countries!

FATCA enables financial institutions to withhold tax if the US persons refuse to meet the
documentation requirements. For this, all financial institutions registered under this Act should
immediately notify the US tax department when they come across US persons attempting to
evade tax. Hence, all FATCA-registered banks report such account holders (with the available
information) immediately. This Act has a direct and profound impact on US multinationals and
Foreign Financial Institutions.11
11
"Sec ii B 1 Agreement between the government of the United States of American and the government of the United

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3. US-India agreement to implement FATCA
FATCA ensures tax compliance and transformation at a global level. It presents foreign financial
institutions a chance to improve and streamline their tax reporting process. It also gives them
visibility in the foreign country and gains the trust of investors.

To accommodate FATCA, the government had inserted Rules 114F to 114H and Form 61B in
the Income Tax Act in 2014. The Indian Government also signed the Inter-Governmental
Agreement (IGA) with the United States of America in the year 2015 for the implementation of
FATCA. According to the agreement, Indian tax officials are required to obtain specific account
information from US investors. The goal was to ensure tax compliance by the US citizens while

increasing transparency for their Internal Revenue Service (IRS). This gave a legal basis for the
Reporting Financial Institutions to maintain and report personal and income details.

4. FATCA declaration for NRIs

Effective from January 2016, they made it mandatory for all Indian and NRI investors (existing
and new) to file a FATCA self-declaration. While the details might be slightly different with
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each financial institution, the standard information they mandate are: a. Name
b. Permanent Account Number (PAN)
c. Address
d. Place (city/state) of birth
e. Country of birth
f. Nationality
g. Gross Annual Income
h. Occupation

Kingdom of Great Britain and Northern Ireland to improve international tax compliance and to implement FATCA"

12
https://cleartax.in/s/fatca-crs-compliance

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i. Whether the resident of another country? If yes, then the country of residence, Tax ID number,
and type
The declaration asks explicitly to include the USA as a country of residence if you are a US
citizen or a green cardholder. This holds even if you have moved to India and are now an Indian
resident. Further, this declaration specifies that the Central Board of Direct Taxes (CBDT) has
already covered this issuance in the rules 114F-114H. As a result, the tax authorities will have
access to all relevant information. Therefore, please intimate the respective financial institution
within 30 days in case of any change in the above information.

5. Common Reporting Standard or CRS

The Organisation for Economic Cooperation and Development (OECD) developed the Common
Reporting Standard (CRS) for Automatic Exchange of Information (AEoI). CRS mandates
financial institutions across countries to provide respective tax authorities information about their
citizens and their wealth overseas. This can help governments in obtaining information about the
financial assets held by its citizens internationally – for tax reasons. Till now, more than 90
countries have agreed to follow this global standard.

India too has signed a multilateral agreement to transfer personal and account information of
another country’s citizen to their respective tax authority. Article 6 of the Convention on Mutual
Administrative Assistance in Tax Matters under the CRS rules refers to this.

6. CRS Declaration
Most of the details mandated under CRS self-declaration are similar to that of FATCA. However,
CRS covers taxpayers from over 90 countries, as opposed to FATCA, which is applicable only
for the US taxpayers. You can download the CRS self-declaration form from any offshore

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mutual fund website. Alternatively, you may also visit the fund house service centres or the
Asset Management Company (AMC) office.

Submit the self-declaration either online or offline at any of the fund company branches. For
instance, Registrar and Transfer Agencies such as CAMS offer this service. To complete the
registration, you will be required to enter the OTP, generated using your PAN number. CRS
declaration is nothing but an extension of the Know Your Customer (KYC) documents.

7. Documents for FATCA & CRS declarations

All foreign financial institutions in India mandates US persons to submit the following
documents:

a. PAN Card
b. Passport

c. Government-issued IDs like Voters ID or Aadhaar

The Government of India will identify the investor as a resident or an NRI on this declaration.
Central Board of Direct Taxes (CBDT) will release notifications for all NRI investors on the
necessary information.

Tax-evasion is not a problem unique to one country. Therefore, the solutions should be at a
global level. The focus is more on the global transparency and consistency of compliance among
the registered nations. In essence, FATCA and CRS have indeed gone a long way in reducing tax
evasions and non-compliance globally in recent years. Therefore, US individuals, including NRI
investors, should be aware of these regulations, especially if they are planning to invest in
offshore funds.13

13
https://cleartax.in/MyAccount/start?ref=logo

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 INTER-GOVERNMENTAL AGREEMENT AND MEMORANDUM OF
UNDERSTANDING (MOU) BETWEEN GOVERNMENT OF INDIA AND
GOVERNMENT OF USA TO IMPROVE INTERNATIONAL TAX COMPLIANCE AND
TO IMPLEMENT FOREIGN ACCOUNT TAX COMPLIANCE ACT OF USA 14 Whereas,
an Inter-Governmental Agreement and Memorandum of Understanding (MoU) between the
Government of the Republic of India and the Government of the United States of America to
improve International Tax Compliance and to implement Foreign Account Tax
Compliance Act of the United States of America was signed at New Delhi on the 9th day of July,
2015 (hereinafter referred to as the said Agreement and enclosed herewith as Annexure);

And whereas, the date of entry into force of the said Agreement is the 31st day of August, 2015,
being the date of notifications of completion of necessary internal procedures as required for
entry into force of the said Agreement in accordance with Paragraph 1 of Article 10 of the said
Agreement;

Now, therefore, in exercise of the powers conferred by section 90 of the Income-tax Act, 1961
(43 of 1961), the Central Government hereby notifies that all the provisions of the said
Agreement between the Government of the Republic of India and the Government of the United
States of America for the exchange of information with respect to taxes, as set out in the said
Agreement, shall be given effect to in the Union of India with effect from the 31st August, 2015,
that is, the date of entry into force of the said Agreement.

14
https://pib.gov.in/newsite/printrelease.aspx?relid=123113

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