Admission into 2 year LL.

M (Intellectual Property Rights)

Notes on IPR: Concepts
Intellectual property (IP) refers to the creations of the human mind like inventions, literary
and artistic works, and symbols, names, images and designs used in commerce.
Intellectual property is divided into two categories:
Industrial property,
which includes inventions (patents), trademarks, industrial designs, and geographic indications
of source;
and Copyright, which includes literary and artistic works such as novels, poems and plays,
films, musical works, artistic works such as drawings, paintings, photographs and sculptures,
and architectural designs. Copyrights protect original works of authorship, such as paintings,
photographs, musical compositions, sound recordings, computer programs, books, blog posts,
movies, architectural works, and plays. There are some things that are not “creative,” like titles,
names, short phrases, and slogans; familiar symbols or designs; lettering or coloring; and mere
listings of ingredients or contents. Copyrights protect expression and never ideas, procedures,
methods, systems, processes, concepts, principles, or discoveries.
Rights related to copyright include those of performing artists in their performances,
producers of phonograms in their recordings, and those of broadcasters in their radio
and television programs.
Intellectual property rights protect the interests of creators by giving them property
rights over their creations.
The most noticeable difference between intellectual property and other forms of property,
however, is that intellectual property is intangible, that is, it cannot be defined or identified by its
own physical parameters. It must be expressed in some discernible way to be protectable.
Generally, intellectual property encompasses four separate and distinct types of intangible
property namely — patents, trademarks, copyrights, and trade secrets, which collectively
are referred to as “intellectual property.” However, the scope and definition of intellectual
property is constantly evolving with the inclusion of newer forms under the gambit of intellectual
property. In recent times, geographical indications, protection of plant varieties,
protection for semi-conductors and integrated circuits, and undisclosed information
have been brought under the umbrella of intellectual property.
Intellectual Property Rights in general refers to the set of intangible assets including invention,
creation, and contribution to the contemporaneous field of knowledge which is owned and
legally protected by an individual or company from the outside use or implementation without
approved consent. The economic growth, financial incentive and motivation for advanced
innovations imbedded in the balanced legal protection of Intellectual Property Rights entails
proficient, directed and timely updated guidance in the field of Intellectual Property Rights.

Invention is IP, whereas Patent is IPR.

A patent stops others from making your invention. So if I patent my cold fusion invention, no one
else can make my cold fusion device for the next 20 years unless they agree to pay me a
royalty. A patent is a government-granted monopoly to build, sell, and use your invention (and
prevent others from doing so). If you are issued a patent, it’s usually good for 20 years;
however, there are some patents that are only good for 14 years. After 20 years, your patent
expires and anyone can copy, build, and sell your invention. In exchange for the “monopoly,”
you must disclose the details of your invention to the public so that someone “practiced in the
arts” could recreate it. It is important to consider how to best protect your IP as early as
possible. Some aspects can be dealt with contractually. That can be done at any time, but it is
much easier to get other parties to cooperate at an early stage. While trademarks can be filed at
any time, sooner reduces the risk that someone else will file something similar before you do.
Patents can’t be filed at all any later than one year after they become public.
04/01/2024
Paradigm shift – knowledge is power, knowledge is property.
Fortune 500 companies today whose Assets are intangible unlike in the past.
TRIPS – Trade linked to IPR

Success story – realisation that the knowledge in the form of invention, innovation or
some kind of creativity in the form of design, in the form of a GI has now become a
reality:

Valcom IT Services Private Limited (VISPL) is a leading Private Limited Indian Non-
Government Company incorporated in India on 09 February 2012 and has a history of 11
years and 11 months. Its registered office is in Bangalore, Karnataka, India. The
Corporate is engaged in software development and IT consulting services. The
Company's status is Active, and it has filed its Annual Returns and Financial Statements
up until 31 March 2023. It's a company limited by shares with an authorized capital of Rs
1.00 Lakh and a paid-up capital of Rs 1.00 Lakh.
The Corporate currently has active open charges totalling Rs 83.88 Lakhs.
Nithya Raj, Rathna Victor, and Jai Parasher serve as directors at the Company.

Some more success stories - Realisation that the knowledge in the form of design, in the
form of a GI has now become a reality:
Pista House is a chain of Indian bakeries, sweetshops and restaurants located
in Hyderabad, Telangana. It was established in 1997 by Mohammed Abdul Majeed with its
first branch in Shalibanda. Pista House is known for its Haleem, Hyderabadi biryani and
biscuits and has branches in India, US and Canada.
Guntur Sannam or Capsicum annuum var. longum, is a variety of chili pepper that grows
in the districts of Guntur, Prakasam (Andhra Pradesh), Warangal (Telangana),
and Khammam in India. It is registered as one of the geographical indications of Andhra
Pradesh (pursuant to Geographical Indications of Goods (Registration and Protection)
Act, 1999). Etymologically, the name 'Guntur Sannam' has its origin in Telugu, and
indicates two facts: the origin of the fruit, and more importantly, the
strong antecedents arising from Andhra Pradesh. Guntur has been associated with
chilies for decades, and hence the prefix 'Guntur' for the name of this chilli.
Tandur Tur GI Tag : తాండూరు కంది పప్పుకు GI ట్యాగ్ .. తెలంగాణాలో GI ట్యాగ్ పొందిన
ఉత్పత్తు లు ఇవే!
Champagne – another example of GI.

3 important theories of Intellectual Property Rights

1. Natural rights theory: If you are creating something, you must own it. Monopoly is
given to the inventor to recover his investment.
2. Economic incentive theory: Reward for creativity.
3. Public interest theory/Social Trust Theory: IPR to be protected to safeguard the
society at large. The Bolar exemption traditionally allows manufacturers of
generic medicines to benefit from a patent law exemption in certain
circumstances – attempt to commercialize the patent of x by y is acceptable –
once the patent term expired.
Example: Nexavar patented by BAYER used to treat various types of cancer, including
kidney, liver cell and thyroid cancer – Rs 2.84 lacs/patient/monthly dose. Natco pharma,
Hyderabad supplied at Rs 8.88k (and pay some royalty to BAYER). Compulsory licence
was granted to this company.
Health emergency and extreme urgency – in 3 cases TB, Malaria and HIV – the three year
waiting period for granting of commercial licence is not applicable.
INTELLECTUAL PROPERTY CANNOT BE POSSESSED. IT IS INTANGIBLE IN NATURE.
IT IS IN THE FORM OF INFORMATION. IN THE CASE OF COPYRIGHTS, IT IS IN THE
FORM OF EXPRESSIVE INFORMATION. PATENTS PROTECT TECHNOLOGICAL
INFORMATION. IF IT IS TRADEMARK, IT IS SYMBOLIC INFORMATION. DESIGNS
PROTECT THE ORNAMENTAL INFORMATION. IN THE CASE OF GIs, WE ARE
PROTECTING THE GEOGRAPHICAL INFORMATION.

DARJEELING TEA WAS THE FIRST GI REGISTERED IN INDIA.

In the order of social relations, we find the basis of different types of institutions.
Property is one such institution. As all institutions imply relations between individuals,
the institution of property also regulates the relation between individuals apart from
ascertaining their relation with reference to objects as well. Ownership is one such
relation between individuals in respect of use of things. A legal right of ownership
carries with it a legally supported right to use a definite thing for more or less definite
purposes and for definite or indefinite time. All other persons are forbidden to interfere
with the owner in the exercise of his right in respect of the thing owned, upto the point at
which the limits of that right are prescribed by law.
Legal concept of property –
Property rights, historically have been regarded as right in rem. In other words, property
rights attach to persons in so far as they have a particular relationship to something and
confer on those persons the right to exclude a large and indefinite class of other persons
(the world) from the thing.
Jurisprudentially speaking, “what we call the law of property is, in its first place, the
systematic expression of the degrees and forms of control, use and enjoyment, that are
recognised and protected by law.”
Roscoe Pound dissects the right of ownership into 6 sub rights –
1. Right to possess
2. Right to use
3. Right to enjoy the fruits
4. Right to enjoy incidental benefits
5. Right to dispose
6. Right to prohibit others

Discuss the concept of Property and explain the classification of property in modern
times.
Property is any physical or virtual entity owned by an individual or jointly owned by a
group of individuals. It not only includes money and other tangible things of value, but
also includes any intangible right considered as a source or element of income or wealth.
The right and interest which a man has in lands and chattels to the exclusion of others.
 There are two types of property. In legal terms, all property will be classified as either
personal property or real property.

Possessions which can be easily moved and are not fixed in a permanent location such
as furniture, clothing, jewellery, books, and other personal items are classified as
personal property.
Real property may include land, homes, detached garages, patios, swimming pools or
other permanent structures. Crops and other natural resources that are attached to a
piece of land are also considered real property.
Property is basically of two categories: Corporeal and Incorporeal Property. Corporeal
property is visible and tangible, whereas incorporeal property is not. Moreover,
corporeal property is the right of ownership in material things, whereas incorporeal
property is an incorporeal right in rem.

The concept of property refers to the legal right to possess, use, and dispose of
something. It is a key principle in economics, law, and society, defining the relationship
between individuals and the things they claim as their own. Property rights give the
owner the ability to exclude others from using or interfering with the property, subject to
various limitations imposed by law.
The concept of property is foundational to many social, legal, and economic systems
around the world. At its core, property refers to the legal rights that individuals, groups,
or institutions have over assets, resources, or possessions. These rights typically
include the ability to use the property, to earn income from it, to transfer it to others, and
to exclude others from it.

Property rights are crucial because they establish clear guidelines for ownership, use,
and transfer of assets, which in turn helps to create stability, predictability, and
efficiency in economies and societies. These rights are protected and enforced by laws,
and disputes over property are adjudicated by courts or other legal bodies.

Property can be classified in several ways, and it is often divided into two main
categories:
1. Real Property (Real Estate):
Real property refers to land and anything permanently attached to the land, such as
buildings and other structures. It also includes rights that go along with the land, like air
rights and mineral rights. Real property is characterized by its immobility; one cannot
move land or buildings from one place to another.
2. Personal Property (Chattels):
Personal property includes all property that is not real property. It can be further
subdivided into two categories:

a. Tangible Personal Property:

Tangible personal property is anything with physical existence that can be touched and
moved, such as furniture, clothing, vehicles, and tools.
 b. Intangible Personal Property:
Intangible personal property refers to non-physical assets that still have value, such as
stocks, bonds, patents, copyrights, and intellectual property. These rights are often
represented by documents, but the value they represent is not tied to the physical
attributes of those documents.

In modern times, property classification can reflect various legal rights and interests. For
example:
 Intellectual Property:
Intellectual property is a category of intangible property that includes creations of the
mind, such as inventions (protected by patents), literary and artistic works (protected by
copyrights), symbols, names, images, and designs used in commerce (protected by
trademarks).
 Personal vs. Real Property:
The distinction between personal and real property can have significant legal
implications, including how property is transferred, taxed, or treated in legal disputes or
bankruptcy.
 Public vs. Private Property:
Property can also be classified based on ownership. Public property is owned by
governmental entities and is dedicated to public use, while private property is owned by
individuals or corporations and is typically not open to the public without the owner's
permission.
 Movable vs. Immovable Property:
This classification is similar to the distinction between tangible personal property and
real property. Movable property refers to items that can be moved from one place to
another (similar to tangible personal property), while immovable property refers to
property that cannot be moved (similar to real property).

Each of these classifications reflects the broad range of property types that exist in
modern societies and the complex legal frameworks that govern ownership, transfer,
and use of property. Property rights are protected by laws and regulations, and disputes
over property are adjudicated by courts or through alternative dispute resolution
mechanisms. Understanding the classification of property helps in navigating legal,
financial, and social interactions involving the use and exchange of property.

Explain the different theories/Discuss the various theories of Property with special
reference to Labour Theory.
The Theories of property are many based upon the political, economic and social
ideologies. Roscoe Pound (1870-1964), American legal scholar, associated with the
Sociological School of Jurisprudence had classified theories of property under 6
headings:
The most influential French thinker of the enlightenment, Jean-Jacques Rousseau,
elaborated a theory of property based on first occupation justified by labour. The
occupation theory is also referred to as ‘the divine right of grab’. It is one of the oldest
theories. The theory assumes that right to property is based on the original discovery
and occupation. Conversely, it argues that every owner of the property is the original
discoverer and occupant. Hence, the property belongs to him. This theory suggests that
the party who is the original discoverer and occupant of property was entitled to dispose
of those assets. This approach has the advantage of certainty and security as the
person in possession can retain possession until someone else shows a better title.
This philosophy is reflected in the law of property. If you squat on land for many years
and the true owner does not remove you from the property in some circumstances, you
may be acknowledged as ‘owning’ the land. To put an end to this Hobbesian “free for
all”, the people concluded a social contract, which also regulates appropriation. Thus,
Rousseau does not attach too much importance to who owns what; he is more interested
in the creation of a strong State, which subordinates individual rights of ownership to the
community, and the State becomes the sole owner. According to Rousseau, the State
represents the general will of its citizens, and its main objective is to oppose inequality.

John Locke (1632-1704) is the propounder of Labor Theory of Property. He argued that
either by natural reason or religious precepts issued out of revelation, one has to come
to the conclusion that every man born in this world has got the right to live. In order to
live, he has the right to have things necessary for his sustenance which nature gives.
Everyone is entitled for the full produce of his labour. Others have no right on that.
Hence, God has given all things for man to enjoy. According to locke, man owns himself,
and by extension, everything that he produces. His famous theory of labour argues that
by mixing work with nature, the resulting goods will necessarily belong to the worker.
Anyone who adds labour to it makes the things his own property. When a person works,
that labour enters into the object. Thus, the object becomes the property of that person.

The argument of Profounder of Economic Reward Theory Julius Stone is that the
maximum production of goods and services is the aim of the society. It can be achieved
by means of maximum productivity. On scrutiny, it can be found that the quality,
quantity and nature of production is correlated and geared to increase the individual
profits. Private property by itself does not result in the increase of things. It is proved by
experiments that land yielded more fruits under government care than under private
ownership. The economic reason for creating such a property right is also obvious. It is
argued that unless the inventor is given the monopoly right to exploit his invention or
innovation, the inventor will neither have impetus to invent things nor invest huge
amounts of money that the research and development requires for inventing new ideas
and newer technologies. This would adversely affect the progress of every nation.

The Metaphysical basis of property or George Hegel’s Personality Theory of Property

was propounded by writers like Kant and Hegel. According to Kant: “A thing is rightfully
mine when I am so connected with it that anyone who uses it without my consent does
me an injury. But to justify the law of property, we must go beyond cases of possession
where there is an actual physical relation to the object and interference therewith is an
aggression upon personality.” This theory is based on metaphysical ideas of freedom.
Metaphysics is the branch of philosophy that studies the fundamental nature of reality.
According to this Hegel, the property is the objective manifestation of the personality of
 an individual. To quote him: Property makes objective my personal individual will.”
Property is the object on which a person has the liberty to direct his will. Freedom
requires an exclusive spatial sphere, free activity, self assertion and creativity in the
external world. The private property with exclusive right to ownership and user provides
the proper setting for the free expression of personality. RK Laxman’s common man is
an example of personality theory.
Next level of personality theory is metaverse, the virtual world.

Hastings Rashdall’s Philosophical theory of property: According to modern political

philosophers, justification of the institution of property lies in its tendency to promote for
the whole community a well being which is not to be identified with pleasure, but which
includes the development of character and intelligence as well as pleasure. If property is
essential for the development of personality and character, vast masses of people are
deprived of it by the concentration of wealth in the hands of a few under a political and
economic system which adores right to property.

John M Heckling’s Social Trust Theory of Property: It is considered by some great

thinkers that an individual should hold the property not merely for the welfare of himself
and his family, but, should hold the property as trustee for the beneficial enjoyment of
his kith and kin and all others who are connected to him one way or other. In other
words, the owner holds the property as trustee on behalf of the society.

Annexation theory

Theory of prescription

Explain the Jurisprudential aspects of Ownership, Possession and Title.

Jurisprudential aspects of Ownership, Possession and Title refer to the legal principles
and concepts that govern the relationship between individuals, organizations, and the
state in the context of property rights. Here's a brief overview of each concept and their
jurisprudential aspects:

1. Ownership:
Ownership refers to the legal concept that describes the relationship between an
individual or organization and a property or asset. The owner has the exclusive right to
control, use, and dispose of the property as they see fit, subject to the limitations of the
law.

Jurisprudential aspects of ownership:

 Legitimate exercise of dominion and control: The owner has the right to exercise
legitimate control over the property, but this control must be exercised in a way that
does not violate the rights of others.
 Exclusivity: The owner has the exclusive right to control and use the property, and no
one else may use or control it without the owner's permission.
 Property rights: Ownership is a key aspect of property rights, which are the legal rights
that an individual or organization has to a property or asset.
2. Possession:
Possession refers to the actual control or physical custody of a property or asset. In
general, possession is the physical hold or control of a property, but it can also refer to
the legal right to use or control a property.

Jurisprudential aspects of possession:

 Adverse possession: A person who takes possession of another person's property for a
certain period of time, with the intention of acquiring ownership, is said to have acquired
adverse possession.
 Constructive possession: Constructive possession refers to the situation where a
person has control of a property, even if they do not actually take physical possession of
it, due to circumstances such as a mistake or a legal technicality.
 Joint possession: Joint possession refers to the situation where two or more people
have equal rights to a property, and they share the control and use of the property.

3. Title:
Title refers to the legal proof of ownership, which is usually a document or a set of
documents that prove the chain of ownership from the original owner to the present
owner.

Jurisprudential aspects of title:

 Clear and marketable title: A clear and marketable title refers to a title that is free from
any defects or encumbrances that could affect the owner's right to sell or transfer the
property.
 clouded title: A clouded title refers to a title that is not clear or marketable due to defects
or encumbrances, which can affect the owner's right to sell or transfer the property.
 Quiet enjoyment: Quiet enjoyment refers to the legal principle that an owner has the
right to enjoy the possession and use of a property without interference from others, as
long as they have a clear and marketable title.

In summary, ownership, possession, and title are related concepts that are central to
the jurisprudence of property rights. Ownership provides the highest level of control and
rights over property, possession relates to physical control or custody, and title serves as the
legal evidence of ownership or possession. Understanding these concepts is essential for
anyone who wants to navigate the legal complexities of property ownership and use.

May 16, 2023, 3:33 pm

Categories: Intellectual Property
Amitabh Bachchan filed a petition with the high court alleging that individuals were using
his name, voice, and image without his consent to advertise their products and services,
ranging from T-shirts and posters to lotteries and video call applications. In response to
the Amitabh Bachchan petition On Friday, the Delhi High Court issued an interim
injunction prohibiting several individuals from intruding on Amitabh Bachchan's
"publicity rights" as a celebrity. The high court further ordered the Ministry of Electronics
and Information Technology and the Department of Telecommunications to take down
any links or websites provided in the plea that infringed Bachchan's publicity rights.
According to the plea, Bachchan has "personality/publicity/celebrity rights" over every
aspect of his personality because he is a famous person. The plea argues that the
plaintiff (Bachchan) has control over the commercial exploitation of his personality,
name, voice, image, likeness, and other traits that are specifically recognisable and
linked to the plaintiff.

The plea further claims that "no one" is allowed to use, misappropriate, imitate, or use
any aspect of the plaintiff's personality (including but not limited to his name, voice,
image, and any other distinctive elements that are uniquely associated with him) for
commercial gain in any way without the consent and/or express authorization of the
plaintiff. Plea Contends that Bachchan's name, voice, appearance in pictures and other
media, likeness, and distinctive dialogue style are all protected aspects of his
personality.

Analyse the WIPO definition of Intellectual Property.

Intellectual property (IP) refers to the creations of the human mind like inventions,
literary and artistic works, and symbols, names, images and designs used in commerce.
Intellectual property is divided into two categories:
Industrial property, which includes inventions (patents), trademarks, industrial designs,
and geographic indications of source;

and Copyright, which includes literary and artistic works such as novels, poems and
plays, films, musical works, artistic works such as drawings, paintings, photographs and
sculptures, and architectural designs. Rights related to copyright include those of
performing artists in their performances, producers of phonograms in their recordings,
and those of broadcasters in their radio and television programs.
Intellectual property rights protect the interests of creators by giving them property
rights over their creations.
The most noticeable difference between intellectual property and other forms of
property, however, is that intellectual property is intangible, that is, it cannot be defined
or identified by its own physical parameters. It must be expressed in some discernible
way to be protectable. Generally, it encompasses four separate and distinct types of
intangible property namely — patents, trademarks, copyrights, and trade secrets, which
collectively are referred to as “intellectual property.” However, the scope and definition
of intellectual property is constantly evolving with the inclusion of newer forms under the
gambit of intellectual property. In recent times, geographical indications, protection of
plant varieties, protection for semi-conductors and integrated circuits, and undisclosed
information have been brought under the umbrella of intellectual property.
The Convention establishing the World Intellectual Property Organization (1967) gives
the following list of the subject matter protected by intellectual property rights:
• literary, artistic and scientific works;
• performances of performing artists, phonograms, and broadcasts;
• inventions in all fields of human endeavor; • scientific discoveries;
• industrial designs; • trademarks, service marks, and commercial names and
designations;
• protection against unfair competition; and
• “all other rights resulting from intellectual activity in the industrial, scientific, literary or
artistic fields.
With the establishment of the world trade Organization (WTO), the importance and role of
the intellectual property protection has been crystallized in the Trade-Related Intellectual
Property Systems (TRIPS) Agreement. It was negotiated at the end of the Uruguay Round
of the General Agreement on Tariffs and Trade (GATT) treaty in 1994.
The TRIPS Agreement encompasses, in principle, all forms of intellectual property and
aims at harmonizing and strengthening standards of protection and providing for
effective enforcement at both national and international levels. It addresses applicability
of general GATT principles as well as the provisions in international agreements on IP
(Part I). It establishes standards for availability, scope, use (Part II), enforcement (Part III),
acquisition and maintenance (Part IV) of Intellectual Property Rights. Furthermore, it
addresses related dispute prevention and settlement mechanisms (Part V). Formal
provisions are addressed in Part VI and VII of the Agreement, which cover transitional,
and institutional arrangements, respectively.
The TRIPS Agreement, which came into effect on 1 January 1995, is to date the most
comprehensive multilateral agreement on intellectual property. The areas of intellectual
property that it covers are:
 Copyright and related rights (i.e. the rights of performers, producers of sound
recordings and broadcasting organisations);
 Trade marks including service marks;
 Geographical indications including appellations of origin;
 Industrial designs;
 Patents including protection of new varieties of plants;
 The lay-out designs (topographies) of integrated circuits;
 The undisclosed information including trade secrets and test data.

 Intellectual Property is loosely defined as creations of the human mind.

 These could be incorporated in creative or inventive works, including distinctive
signs or marks.
 Intellectual Property Rights are legal rights governing the use of such creations.
 All IPRs generally exclude third parties from exploiting protected subject matter
without explicit authorization of the right holder, for a certain duration of time.
 IPRs help encourage creative and inventive activity for orderly marketing of
proprietary goods and services.
 Protection against unfair competition is the underlying philosophy of all IPRs.

Trade-Related Aspects of Intellectual Property Rights (TRIPS), 1994.

The TRIPS Agreement, which came into effect on 1 January 1995, is to date the most
comprehensive multilateral agreement on intellectual property. The areas of intellectual
property that it covers are: copyright and related rights (i.e. the rights of performers,
producers of sound recordings and broadcasting organizations); trademarks including
service marks; geographical indications including appellations of origin; industrial
designs; patents including the protection of new varieties of plants; the layout-designs of
integrated circuits; and undisclosed information including trade secrets and test data.

The three main features of the Agreement are:

 Standards. In respect of each of the main areas of intellectual property covered
by the TRIPS Agreement, the Agreement sets out the minimum standards of
protection to be provided by each Member. Each of the main elements of
protection is defined, namely the subject-matter to be protected, the rights to
be conferred and permissible exceptions to those rights, and the minimum
duration of protection. The Agreement sets these standards by requiring, first,
that the substantive obligations of the main conventions of the WIPO, the Paris
Convention for the Protection of Industrial Property (Paris Convention) and the
Berne Convention for the Protection of Literary and Artistic Works (Berne
Convention) in their most recent versions, must be complied with. With the
exception of the provisions of the Berne Convention on moral rights, all the
main substantive provisions of these conventions are incorporated by
reference and thus become obligations under the TRIPS Agreement between
TRIPS Member countries. The relevant provisions are to be found in Articles 2.1
and 9.1 of the TRIPS Agreement, which relate, respectively, to the Paris
Convention and to the Berne Convention. Secondly, the TRIPS Agreement adds
a substantial number of additional obligations on matters where the pre-
existing conventions are silent or were seen as being inadequate. The TRIPS
Agreement is thus sometimes referred to as a Berne and Paris-plus agreement.
 Enforcement. The second main set of provisions deals with domestic
procedures and remedies for the enforcement of intellectual property rights.
The Agreement lays down certain general principles applicable to all IPR
enforcement procedures. In addition, it contains provisions on civil and
administrative procedures and remedies, provisional measures, special
requirements related to border measures and criminal procedures, which
specify, in a certain amount of detail, the procedures and remedies that must
be available so that right holders can effectively enforce their rights.
 Dispute settlement. The Agreement makes disputes between WTO Members
about the respect of the TRIPS obligations subject to the WTO's dispute
settlement procedures.
In addition the Agreement provides for certain basic principles, such as national and
most-favoured-nation treatment, and some general rules to ensure that procedural
difficulties in acquiring or maintaining IPRs do not nullify the substantive benefits that
should flow from the Agreement. The obligations under the Agreement will apply equally
to all Member countries, but developing countries will have a longer period to phase
them in. Special transition arrangements operate in the situation where a developing
country does not presently provide product patent protection in the area of
pharmaceuticals.
The TRIPS Agreement is a minimum standards agreement, which allows Members to
provide more extensive protection of intellectual property if they so wish. Members are
left free to determine the appropriate method of implementing the provisions of the
Agreement within their own legal system and practice.
  TRIPS is the first international intellectual property law agreement.
 TRIPS is the result of seven years of negotiations – from September 1986 to
December 1993, as part of the Uruguay Round of Multilateral Trade Negotiations
of the General Agreement on Tariffs and Trade (GATT).
 These negotiations were launched at Punta Del Este, Uruguay and formally
concluded in April 1994 at Marrakesh, Morocco along with the other negotiations
of the Uruguay Round.
 TRIPS came into force on the first day of 1995, with the establishment of the World
Trade Organisation.
 When fully implemented, TRIPS will unambiguously strengthen protection of IPRs
almost worldwide.
 It will bring the standards of protection in major developing country members of
the World Trade Organization closer to those that exist in developed countries.
 TRIPS has necessitated changes in the IPR laws of all WTO member countries
without exception.
 However, the changes to be made to the relevant laws, regulations and
procedures of developing countries are, undoubtedly, more drastic. Many
sensitive sectors of economic and social activity in developing countries such as
agriculture, health, education and culture may be affected by the changes
demanded by TRIPS. Future methods of doing business in some of those sectors
in some developing countries may change on account of the increased awareness
and changing attitudes towards IPRs.

Class on 18/1/24
Property
 Economic institution
 Legal institution
 Relationship between humans and things
 Sociological dimension
Property is property when it is recognised by the Society. A dead body is not property.
Classification of Property
 Tangible and Intangible (Goodwill, Reputation, Securities)
WIPO definition on IP includes ‘rights’.
Intellectual property, an intangible property – the creation of minds/mental labour.

Standard Essential Patents (SEP)

Some popular names - Pravin Anand/RK Diwan/Ravi Anand/Laxmi Kumaran/Pratibha M
Singh/Ram Sampath

Patent Agent exam

Various employment opportunities in some of the following areas:
IP vigilance/IP valuation/IP management/IP innovation/IP branding

Copyright is no more a concern of lonely starving authors. It is a threatened species of

the intellectual property rights, thanks to the technological advances.
 Examine the concept of Intellectual Property Rights and the historical background of the
development of intellectual property right.
Intellectual property (IP) refers to the creations of the human mind like inventions,
literary and artistic works, and symbols, names, images and designs used in commerce.
Intellectual property is divided into two categories:
Industrial property, which includes inventions (patents), trademarks, industrial designs,
and geographic indications of source;
and Copyright, which includes literary and artistic works such as novels, poems and
plays, films, musical works, artistic works such as drawings, paintings, photographs and
sculptures, and architectural designs. Rights related to copyright include those of
performing artists in their performances, producers of phonograms in their recordings,
and those of broadcasters in their radio and television programs.

Intellectual property rights protect the interests of creators by giving them property
rights over their creations.

The most noticeable difference between intellectual property and other forms of
property, however, is that intellectual property is intangible, that is, it cannot be defined
or identified by its own physical parameters. It must be expressed in some discernible
way to be protectable. Generally, it encompasses four separate and distinct types of
intangible property namely — patents, trademarks, copyrights, and trade secrets, which
collectively are referred to as “intellectual property.” However, the scope and definition
of intellectual property is constantly evolving with the inclusion of newer forms under the
gambit of intellectual property. In recent times, geographical indications, protection of
plant varieties, protection for semi-conductors and integrated circuits, and undisclosed
information have been brought under the umbrella of intellectual property.

The concept of intellectual property has evolved over centuries, but the formalization of
intellectual property rights is relatively recent in human history. Below is an overview of
the historical background of the development of intellectual property rights:
1. Ancient Period:
o The concept of protecting creators' rights can be traced back to ancient societies. For
instance, in ancient Greece, the state of Sybaris offered one year's monopoly to chefs
who created unique dishes.
2. Middle Ages:
o During the Middle Ages, guilds in Europe began to protect the knowledge and
techniques of their crafts. This was an early form of trade secret protection.
3. Renaissance:
o The Statute of Monopolies in England (1623) is one of the earliest pieces of legislation
that formed the basis for modern patent law. It limited the Crown's ability to grant
monopolies and laid the groundwork for a system where inventors could be granted
exclusive rights for a limited time.
4. 18th Century:
o The Statute of Anne in England (1710) can be seen as the origin of modern copyright
law. It granted authors exclusive rights to their works for a limited period, after which the
works entered the public domain.
o In the United States, the Constitution (1787) granted Congress the power to promote
the progress of science and useful arts by securing exclusive rights to authors and
inventors for limited times.
5. 19th Century:
o The industrial revolution brought significant advancements and an increase in invention
and creativity. This led to the expansion of patent laws in various countries to promote
innovation.
o The Paris Convention for the Protection of Industrial Property (1883) marked a
significant step in international intellectual property protection, setting basic rules for
patents, trademarks, and industrial designs.
o The Berne Convention for the Protection of Literary and Artistic Works (1886) provided
the foundation for the protection of copyright at an international level.
6. 20th Century:
o The establishment of the World Intellectual Property Organization (WIPO) in 1967
helped to coordinate and promote the protection of intellectual property worldwide.
o The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) under
the World Trade Organization (WTO) in 1994 set minimum standards for intellectual
property regulation for its member countries and introduced enforcement mechanisms.
7. 21st Century:
o The digital age has brought new challenges and considerations to intellectual property
rights, such as digital piracy, patent trolls, and the balance between copyright protection
and fair use.
o International treaties continue to evolve, incorporating provisions to address the
complexities introduced by the internet and digital technologies.

Today, intellectual property rights encompass a range of protections, including:

 Patents: Protect inventions and processes for a limited time, typically 20 years from the
filing date.
 Copyrights: Protect original works of authorship, such as books, music, and software.
 Trademarks: Protect brand names, logos, and other identifiers that distinguish goods
and services.
 Trade Secrets: Protect confidential business information from being disclosed or used
without permission.
 Industrial Designs: Protect the aesthetic aspects of products.

These rights are critical for fostering innovation and creativity, providing economic
incentives for individuals and companies to invest in new creations, and contributing to
cultural diversity and technological advancement.

Write short notes on the elements of property.

The elements of property are:
1. Ownership: Ownership is the most fundamental element of property. It refers to the right
of a person to possess, use, enjoy, and dispose of a thing to the exclusion of all others.
Ownership can be absolute or limited, and it can be acquired through various means
such as purchase, inheritance, or gift.
2. Possession: Possession is the actual or constructive control of a thing. It is the physical
power to control or use the thing, coupled with the intent to exclude others from its use
or enjoyment. Possession is an important aspect of property because it gives the
possessor certain rights and remedies against others who may try to interfere with those
rights.
3. Title: Title is the legal right to ownership of a thing. It is the evidence of ownership, and it
can be transferred from one person to another through various means such as sale, gift,
or inheritance. Title can be good or bad, and it can be absolute or limited.
4. Interests: Interests refer to the various rights that a person may have in a property.
These can include the right to possess, use, enjoy, and dispose of the property.
Interests can be created by contract, by operation of law, or by court order. Examples of
interests in property include easements, licenses, leases, and mortgages.
5. Estates: An estate is the degree, quantity, nature, and extent of a person's interest in
real property. Estates can be freehold or leasehold, and they can be further classified
into various types such as fee simple, life estate, and tenancy in common.
6. Transfer: Transfer refers to the process by which ownership of a property is transferred
from one person to another. Transfers can be voluntary or involuntary, and they can be
accomplished through various means such as sale, gift, or inheritance.
7. Limitations: Limitations refer to the restrictions or conditions that may be placed on the
use, enjoyment, or transfer of a property. These can include zoning regulations,
easements, covenants, and restrictions. Limitations can be created by contract, by
operation of law, or by governmental action.

Write short notes on the Constitutional aspects of property.

Constitutional Aspects of Property in India:

1. Right to Property:

 Initially: A fundamental right under Article 19(1)(f) of the Constitution.

 1978: Amended by the 44th Amendment, becoming a Constitutional Right under Article
300A.
 Focus: Protection against arbitrary deprivation of property by the state.

2. Key Provisions:

 Fifth Amendment (Takings Clause): Similar to the US Constitution, prohibits taking of

private property for public use without just compensation.
 Fourteenth Amendment (Due Process Clause): Guarantees fair and reasonable
procedures before property is taken away.
 Article 21 (Right to Life): Encompasses right to livelihood, which can be linked to
property ownership.
 Article 31 (Acquisition of Property): Outlines procedures for compulsory acquisition
of property by the state.

3. Balancing Act:

 State's Power: Constitution grants the state power to acquire property for public
purposes.
 Individual Rights: Constitutional provisions safeguard individual rights against arbitrary
deprivation.
 Judicial Interpretation: Courts play a crucial role in balancing these competing
interests.

4. Key Issues:

 Land Acquisition: Disputes over fair compensation and rehabilitation for displaced
persons.
 Environmental Protection: Balancing property rights with environmental concerns.
 Regulation: Balancing property rights with government's regulatory power in areas like
zoning and pollution control.

5. Conclusion:

 Constitutional provisions offer significant protection for property rights in India.

 Balancing individual rights with public needs remains a complex and evolving challenge.

Jeremy Bentham (1748 – 1832) and Legal Positivism

Rejection of Natural Law: In England, legal positivism was ushered by Thomas Hobbes
followed by Jeremy Bentham and both of them correlated law with Sovereignty and
Utility. While David Hume by his Law of Utility had dethroned natural law from its
hitherto unassailable position, it was left to Bentham to expound in detail the
significance of the doctrine of utility which he said to have learnt from Priestly. It was
Bentham who destroyed and demolished Natural Law systematically and successfully by
giving currency to the concept of utility as the principle of the greatest good of the
greatest number. He remarked:
“Nature has placed mankind under the governance of two sovereign masters Pain and
Pleasure. It is for them alone to point out what we ought to do, as well to determine what
we shall do...They govern us in all we do, in all we say, in all we think”.
By rejecting both natural law and non-positive laws and replacing these by the
hedonistic doctrine of utility, Bentham became the Newton of the legal and moral world.

Censorial and Expository Jurisprudence: Since Bentham was mainly interested in law
reform, he distinguished what he called censorial (evaluative) jurisprudence or science
of legislation from expository (analytical) jurisprudence. Expository (analytical)
jurisprudence was concerned with law as it is, without any regard to its moral or immoral
character. In his book, ‘Limits of Jurisprudence defined’ written in 1782, Bentham
expounded the concept of positive law commanding citizens which they are obliged to
do with a threat of sanction and legal consequences that flow in the event of
disobedience of the command of the sovereign. It is, therefore, Bentham and not John
Austin who is the progenitor of modern analytical jurisprudence.

Class on 25/01/2024
Theory of acquiescence (inert acceptance)
In law, acquiescence occurs when a person knowingly stands by, without raising any
objection to, the infringement of their rights, while someone else unknowingly and
without malice aforethought acts in a manner inconsistent with their rights. As a result of
acquiescence, the person whose rights are infringed may lose the ability to make a legal
claim against the infringer, or may be unable to obtain an injunction against continued
infringement. The doctrine infers a form of "permission" that results from silence or
passiveness over an extended period of time.
Raymond Ltd v Raymond Pharmaceuticals Pvt Ltd on 20/7/2016
The Plaintiffs were incorporated in 1913 as Raymond Woolen Mills Limited, are presently
known as Raymond Limited and claim market leadership as manufacturers of textiles
and ready-made garments. The Plaintiffs and its subsidiaries are also engaged in the
business of personal care products, air charter services, latex products, engineering
tools, film production, advertisement and education services. The Plaintiffs claim
proprietary interest in the Mark created by an employee of the Plaintiffs. The Mark was
adopted as the Plaintiffs' logo more than 80 years ago and it constitutes an essential
feature of the corporate name of the Plaintiffs. The Plaintiffs claim 'Raymond' is a famous
household mark with tremendous reputation and goodwill. Raymond is written in a broad
lettering and style and is an original artistic work as contemplated in the Copyright Act,
1957 registered under the Act with effect from 20 th December, 1993 and the registration
is still valid. The Plaintiffs have registered the Mark in numerous classes under the Trade
Marks Act. Copies of the certificates of the registration are relied upon and annexed to
the plaint. The Plaintiffs have contended that over the years has acquired the status of
very well known and famous mark.
The Defendants, on the other hand, are in the pharmaceutical business and it is the
Plaintiffs' case that the Defendants have unauthorisedly used the Mark in their domain
name www.raymondpharma.com and E-mail address info@raymondpharma.com for its
business purposes. Apart from committing the tort by passing off the defendants are
allegedly riding on the goodwill and reputation of the Mark and such misrepresentation is
likely to cause confusion and deception amongst the public. The Plaintiffs impugn such
unauthorised use.
Acquiescence, delay since August 2009 (when the domain was registered) and laches are
attributed to the Plaintiffs, dis entitling them to any reliefs. The Plaintiffs have filed the
present suit only in 2014 although domain name was stated to have been registered in
2009, a fact about which there is no serious dispute. Objection should have been raised
within 5 years of registration of the other company.
Domain name and Trade mark have 5 year limitation period

Locke’s labour theory is applicable for IPR – True and first inventor.
Author/Creator shall be the first owner for copyrights.

The Marxian theory of private property is a critique of the capitalist system, and it is a
central concept in the works of Karl Marx and Friedrich Engels. According to Marx,
private property refers to the ownership of the means of production (such as factories,
land, and machinery) by a small group of individuals or corporations, which allows them
to exploit the labor of the working class for their own profit.

Marx argued that private property creates a class divide between the bourgeoisie (the
owners of the means of production) and the proletariat (the workers who must sell their
labor to survive). This division of labor allows the bourgeoisie to extract surplus value
from the workers, meaning that they are able to pay workers less than the value of the
goods and services they produce.
Furthermore, Marx believed that private property leads to economic inequality and social
alienation. Workers are alienated from the products they produce, from the process of
production, and from their fellow workers, as they are forced to compete with each other
for jobs and wages.

Marx argued that the only way to overcome these problems is to abolish private property
and replace it with collective ownership of the means of production. This would allow for
a more equitable distribution of wealth and the elimination of class distinctions, leading
to a communist society in which workers would have control over the production
process and the fruits of their labor.

Inventor’s certificate in the erstwhile communist countries.

The WIPO administered Marrakesh Treaty makes the production and international
transfer of specially-adapted books for people with blindness or visual impairments
easier. This WIPO project/initiative is known as TIGAR, the Trusted Intermediaries Global
Accessible Resources project. The TIGAR pilot brings together various institutions
serving the visually impaired community to facilitate access to works in relevant formats
such as audio, large print and Braille.

Equitable Beneficiary Sharing/Access and Beneficiary Sharing

Here's everything you need to know about Odisha's 'Kai Chutney' or red ant chutney,
which recently received the GI tag.
Odisha's red ant chutney gets GI tag, all you need to know about this superfood | Travel - Hindustan
Times
Insects have been consumed as a food source for centuries in communities worldwide.
In Odisha's Mayurbhanj district, red weaver ants are used to make a chutney or a watery
semi-solid paste known as "Kai Chutney." This chutney is renowned in the region for its
medicinal and nutritional properties. On January 2, 2024, this distinctive savoury chutney
was awarded the geographical indication (GI) tag.
Red weaver ants, scientifically known as Oecophylla smaragdina, are notable for their
extremely painful sting, capable of causing blisters on the skin. These ants are
commonly found in the forests of Mayurbhanj, including the Similipal forests, which
constitute Asia's second-largest biosphere.
Hundreds of tribal families in the district make a living by collecting and selling these
insects and chutneys. The ants and their eggs are gathered from their nests and cleaned
before being used. The chutney is made by grinding a mixture of salt, ginger, garlic, and
chilies. Similar red ant chutneys can also be found in other eastern states such
as Jharkhand and Chhattisgarh.
In addition to its culinary appeal, red ant chutney is renowned for its potential health
benefits. The chutney is believed to be a good source of nutrients like protein, calcium,
zinc, vitamin B-12, iron, magnesium, potassium, etc. This unique chutney is also
treasured for its role in the development of a healthy brain and nervous system,
potentially aiding in the management of conditions like depression, fatigue, and memory
loss.
Based on various research and studies, the integration of insects into our diets as a
protein source has been proposed as a potential solution to environmental challenges.
Insects could substitute traditional animal protein sources like cows, which are known
for their significant emissions of heat-trapping gases like carbon dioxide and methane.
This approach has the capacity to mitigate environmental impact and foster a more
sustainable food system.

Kani tribe of Kerala – Jeevani – Herbal medicine – JNTBGRI model.

Using Traditional Knowledge to Revive the Body and a Community
Background Nestled in the tropical forests of the Agasthyamalai hills of the Western Ghats, a
mountain range in Kerala state, India, live the indigenous Kani tribe, traditionally a nomadic
people with a population of almost 25,000. In December 1987, Dr. Palpu Pushpangadan, then
director of the Jawaharlal Nehru Tropical Botanical Garden and Research Institute (JNTBGRI)
in Kerala, was leading a team from the All India Coordinated Research Project on Ethnobiology
(AICRPE) on an ethnobotanical expedition to the Western Ghats. Knowing that the Kani knew
the area better than anyone, Dr. Pushpangadan employed some of them as guides. While
traversing through the rough terrain, the team was surprised that after several hours their Kani
guides did not feel tired, while they themselves were constantly feeling fatigued. Curious as to
why, the observed their guides and saw them continuously munching black fruits of some
plants. Seeing their exhaustion, the Kani guides offered some of the fruit to the AICRPE team.
Upon eating the fruit, the team immediately felt full of energy and vitality.
The Kani have a rich tradition of using wild plants found in the region for health reasons,
and their tribal physicians – known as Plathi – are the exclusive holders of the traditional
medicinal knowledge of the tribe. According to Kani tribal customs, only the Plathi have
the right to transfer and disseminate their traditional medicinal knowledge. Because of
this, the Kani guides were reticent to share with the AICRPE team the source of the
revitalizing fruit. However after a great deal of pressure, the Kani led the team to a plant
known locally as “arogyapacha” (known scientifically as trichopus zeylanicus ssp.
Travancoricus).
Invention
With first-hand experience of the medicinal benefits of arogyapacha, Dr. Pushpangadan
knew that the effect of the plant’s berries was unusual, and that it had significant sales
potential if it proved to be safe. He and his team of scientists took the plant back to
JNTBGRI’s research facilities and began to analyze it through a multitude of chemical
and pharmacological tests. Their research over eight years discovered that not only did
the plant (particularly the fruit and leaves) have anti-stress and immune-stimulating
properties, but it also boosts stamina, relieves fatigue, helps control tumors and
activates the body’s natural defenses and cellular immune system.
After seven years, JNTBGRI’s research isolated twelve active chemical compounds in the
plant that yielded the effects they experienced. The traditional way in which the Kani
used arogyapacha was to eat its fruit. JNTBGRI discovered that crushing the plant’s
leaves was the most effective way to get to the twelve compounds. These chemicals
were then combined with three other plants and TBGRI produced a scientifically verified
and standardized herbal formulation for its reproduction. JNTBGRI named this
formulation “Jeevani,” which means “giver of life.” The product comes in granules and is
mixed with hot water or milk.
Research and Development
With a standardized formulation in hand, JNTBGRI continued its research and
development (R&D) program on Jeevani, particularly through clinical trials in which it
was administered orally to one hundred human subjects in studies involving either
healthy or unhealthy individuals. The research focused on determining the ability of
these people to withstand adverse conditions (such as an increased work load), the
quality of work completed under stress, athletic performance, any increase in mental
alertness and overall work output.
Results of the clinical trials were very successful and Jeevani was found to exert
favorable effects in a number of situations. JNTBGRI’s research scientifically
demonstrated the important medicinal benefits of the arogyapacha plant, and proved that
when used alone or combined with other ingredients, it can be more effective and safer
than ginseng.
JNTBGRI has applied the success of Jeevani to other R&D projects and it believes that
the project is a model for bringing beneficial traditional medicinal plants to the world
market. “Our purpose here is to make sure that these valuable plants remain available,
and that science into their medicinal uses continues,” Dr. Rajasekharan, head of
JNTBGRI’s ethnomedicine division, explained. “We are dedicated to this work. We hope
to initiate more work like the Jeevani project, in time developing other medicines. There
are so many valuable plants that can help people with common health problems.”
Patents
Dr. Pushpangadan and his research team realized that without intellectual property (IP)
protection, they would not be able to generate much revenue from Jeevani. With an
interest in also helping the Kani people through a benefit sharing agreement, Dr.
Pushpangadan also knew that no IP protection also meant there would be no financial
gains for the Kani people. IP protection was thus essential.
Therefore, after successfully finishing R&D and further refining Jeevani, in cooperation
with the Council of Scientific and Industrial Research (CSIR), a premier Indian R&D
organization, JNTBGRI decided to make a patent application in 1994 with the Office of the
Controller General of Patents, Designs & Trademarks of India (IP India) for the
manufacturing process of an herbal sports medicine based on the compounds isolated
from arogyapacha. In 2007, Dr. Pushpangadan became Director General of the Amity
Institute for Herbal & Biotech Products Development (AIHBPD) at Amity University in
Uttar Pradesh. After the original patent application, Dr. Pushpangadan and Amity
University filed an updated application with IP India for Jeevani in 2008. The patent
application (No. 2319/DEL/2008) was published in 2010 but a patent has not yet been
granted.
Licensing
Because JNTBGRI is a research institute, it does not have the capacity to commercialize
any products resulting from its Jeevani invention. Therefore it authorized the licensing of
the technology for manufacturing Jeevani to interested parties. JNTBGRI established a
committee to determine which organization would be most suitable for licensing. The
committee chose Arya Vaidya Pharmacy Ltd. (AVP) of Coimbatore, one of the largest
herbal pharmacies in India, to be the primary manufacturer, and in 1995 AVP signed a
seven year licensing agreement with JNTBGRI and paid a US$50,000 licensing fee.
Under the terms of the agreement, JNTBGRI would receive two percent royalties on any
sales of Jeevani products. The licensing agreement with AVP was primarily to establish a
market for Jeevani products, after which JNTBGRI maintained the right to license its
manufacturing technology to other companies if it so desired. The license agreement
between JNTBGRI and AVP proved to be successful and therefore has been consistently
renewed thereafter.
Commercialization
Initial commercialization of Jeevani was undertaken by AVP. A unique aspect to the
commercialization process is that the land that the Kani people live on is actually owned
by the Indian Forest Department. Because the Forest Department is concerned about the
sustainability of the forests and natural resources of the region, any cultivation of land
requires its prior approval. Large scale manufacturing of Jeevani therefore faced some
significant early challenges, and because of sustainability concerns the Forest
Department initially prohibited any products to be sold that were made from the
arogyapacha plant.
As a solution, JNTBGRI pointed out that only the leaves of the plant needed to be used to
make Jeevani, and that several harvests of the leaves could be made from the perennial
plant each year without actually destroying it. In October 1997, a proposal was made to
the Forest Department and the Integrated Tribal Development Program (ITDP), an
initiative run by the Directorate for Tribal Welfare of the government of Kerala, stipulating
that JNTBGRI was willing to pay the Kani people money for the seeds necessary for the
cultivation of the plant and would subsequently buy the leaves harvested. This was not
only a sustainable solution, but the sale of the leaves would give the Kani an additional,
stable source of income.
To facilitate this arrangement a pilot program for the cultivation of arogyapacha was
carried out with support from the ITDP between 1994 and 1996. Fifty families were given
approximately US$ 40 each for cultivating the plant. JNTBGRI was to buy five tons of the
leaves per month and supply them to AVP for the production of Jeevani. This scheme
was a resounding success, through which many Kani people secured employment and
training in cultivation and harvesting, which provided them with stable income and new
skills they could use for sustainable cultivation of other natural resources in the region.
As a result of this success, the Kani people continue to supply AVP with arogyapacha
leaves through similar programs.
Traditional Knowledge
The use of traditional knowledge for herbal medicines among the Kani tribes inhabiting
the forests of the Western Ghats region is quite rich. The herbal lore that this community
possesses regarding the large number of wild plants in the region has helped them
survive for generations. Their intimate knowledge of the arogyapacha plant and its
revitalizing effects has helped them traverse difficult terrain to find food, shelter and
other resources, and has played a pivotal role in their survival. Combined with the fact
that without the Kani people JNTBGRI would have never even known about arogyapacha,
their traditional knowledge cannot be ignored.
Although the patents do not expressly link Jeevani to the Kani tribe, Dr. Pushpangadan
and his team never took for granted the role the traditional knowledge of the Kani people
played in their discovery of the invigorative effects of arogyapacha. They knew the
importance of the Plathis in Kani culture and their role of passing down traditional
knowledge and medicine through generations, and they had no desire to take advantage
of them. In fact, just the opposite is true, as they and JNTBGRI as a whole wanted to
share the benefits from the commercialization of Jeevani. To that end, JNTBGRI decided
to enter into a benefit-sharing agreement with the Kani people.
In November 1997 a trust consisting of nine Kani tribal members was formed with the
assistance of JNTBGRI. Named the Kerala Kani Samudaya Kshema Trust (the Trust), the
two Kani who imparted the traditional knowledge to JNTBGRI were appointed as
president and vice president of the Trust. The decision to form the trust was made
through a local meeting with Kani tribes. The Trust’s objectives are to promote welfare
and development activities for Kani people in Kerala, to prepare a biodiversity register to
document the traditional knowledge base of the Kani people, and to promote sustainable
use and conservation of biological resources. While some Kani in different regions are
opposed to the Trust, the aim is to have all adult Kani as Trust members so everyone can
equally benefit.
The Trust held its first meeting in March 1999, and shortly thereafter the Kani received
the first payment of US$ 12,500 from the benefit sharing agreement. Funds from the Trust
are earmarked to be used for a variety of projects, such as installing a telephone booth
(the first one the Kani people would have access to) and creating an insurance scheme
that would provide coverage for pregnant women and accidental deaths.
The benefit sharing agreement between JNTBGRI and the Kani people has been
acclaimed as a model for similar agreements around the world. In 2002, JNTBGRI
received the United Nations Equator Prize for its work in fostering the creation of the
agreement. The United Nations Environment Program and the World Trade Organization
have also described the benefit sharing agreement as a global model for recognizing the
traditional knowledge and IP of indigenous people in accordance with the guidelines of
the United Nations Convention on Biological Diversity. As Dr. Pushpangadan says, “we
knew we were doing the right thing.”
In 2006, the agreement entered a new phase when JNTBGRI invited the Kani tribe to form
a Business Management Committee (BMC). The BMC decided to set minimum conditions
for the benefit sharing agreement, such as an increase in license and royalty payments.
This advancement and the overall success of the benefit sharing agreement show how
simple and stable cooperative institutions can inspire confidence in indigenous
knowledge holders, facilitate equitable conduct in the economy and establish trust
between members. It also shows how when agents in formal intuitions such as JNTBGRI
conduct themselves in a selfless manner, they may help establish an atmosphere which
is not self-seeking, ensuring that IP developed from traditional knowledge can be of a
benefit to all involved.

IP Infringement and Enforcement

Although Jeevani’s powerful and safe effects have garnered worldwide attention, due to
high patenting costs JNTBGRI has yet to secure IP protection for it outside of India as of
2010. This has resulted in a few difficulties for JNTBGRI which may possibly inhibit AVP
from international expansion. In 1999, Nutrisciences Innovations LLC (Nutrisciences), a
New York based herbal medicine company, applied to register a trademark with the
United States Patent and Trademark Office (USPTO) for the Jeevani name. For some time
it sold its product in the United States Market without the knowledge of JNTBGRI. When
this came to JNTBGRI’s attention, a dispute erupted and brought considerable media
attention. While the case never officially resolved, Nutrisciences abandoned its
trademark application in 2001.
A similar case happened when Great Earth Inc. (Great Earth), another New York based
supplement and vitamin company, registered a trademark for Jeevani in the United
States in 2000. Great Earth marketed an energy drink called “Jeevani Jolt 1000” that
included the same ingredients as those in the original Jeevani, though it is unclear how
Great Earth acquired arogyapacha. This product did not technically infringe on any IP
because JNTBGRI never filed a trademark registration for Jeevani with the USPTO. As a
result of Great Earth’s product, Jeevani became widely known in North America, and
many other companies have since released products under the Jeevani name or claiming
to be made of Jeevani. Because these companies are purchasing the arogyapacha plant
from suppliers other than AVP, the Kani people are not enjoying any benefits of their
traditional knowledge. Although JNTBGRI would like to take up the issue with the
USPTO, as of 2010 costs of contesting a trademark in the United States are too high,
leaving JNTBGRI with little recourse.
Business Results
Despite the lack of IP protection in major markets such as the United States, Jeevani has
been a big success for JNTBGRI, AVP and the Kani people. Jeevani is now known as the
“ginseng of India” and has been one of AVP’s most successful products. As such
JNTBGRI has regularly renewed AVP’s license to market Jeevani. Perhaps more
important, it has made a significant financial impact on the lives of the Kani people. The
Kani have already received financial injections into their community, and the success of
the benefit sharing agreement has led BMC to propose that the license fee be doubled to
US$ 52,000 and the royalty payment also be doubled from two percent to four percent,
which would translate into more financial gains for the Kani.
Drawing on IP and Benefit Sharing for Development
Recognizing the rights of traditional knowledge holders can make a significant impact on
economic and social development. IP protection is one of the most important tools
through which this recognition can come. Even before the patent applications based on
arogyapacha were granted, they yielded strong financial gains, half of which was shared
with the Kani people. As is this case shows, the effective use of IP in concert with benefit
sharing agreements can go a long way to foster development for traditional knowledge
holders and their communities.

Example of Social Trust theory:

Authorship Collaborative - Case Study: Hoodia Cactus
Case Study: Hoodia Cactus (South Africa)
The Hoodia cactus, native to South Africa, has recently come to the fore of the debate
surrounding bioprospecting and intellectual property rights. The Hoodia cactus, native to
the Kalahari Desert, has been used for centuries by the hunter-gatherer San speaking
tribes of the region (in the past they were commonly referred to as "Bushmen", although
now this designation is recognized as being pejorative, inaccurate and outdated). The
San peoples have long recognized the appetite suppressant qualities of the Hoodia
cactus, and have traditionally chewed the stem to stave off hunger and thirst during long
hunting expeditions in the desert. Scientists from the South African Council for Scientific
and Industrial Affairs learned of the Hoodia's properties and began to study the cactus.
In scientific tests, animals given the cactus lost weight rapidly without any apparent
negative side effects. According to scientists from the South African Council for
Scientific and Industrial Affairs (CSIR), the Hoodia works by "mimicking the effect
glucose has on the nerve cells in the brain, in effect telling us we're full…thus curbing
the appetite." (http://news.bbc.co.uk/2/hi/programmes/correspondant/2947810.stm) Scientists at
the CSIR dubbed the appetite suppressant molecule in the Hoodia "P57". Recognizing
the enormous potential market for the Hoodia outside South Africa, CSIR placed a patent
on P57 and sold the licensing rights to an English biopharmaceutical firm, Phytopharm,
in 1997. Phytopharm then sold the license to American pharmaceutical giant Pfizer for 25
million dollars. Throughout the whole process, however, the San peoples were
completely unaware of what was occurring. In fact, they became aware of it only after the
excessive media coverage of Phyopharm's sale of licensing rights to Pfizer.
The Chief Executive Officer of Phyopharm, Richard Dixey, claimed that CSIR had led him
to believe that "the tribes using the Hoodia cactus were extinct." He went on to say "I
honestly believed that these Bushmen had died out and am sorry to hear they feel hard
done by." (http://education.guardian.co.uk/print/0,3858,4205467-102275,oo.html)
San expert Sandy Gall maintains,
"these ancient peoples have been exploited for years and it is disgraceful that it is still
happening…they have been displaced and dispersed, but for someone to claim they
thought the Bushmen no longer existed is either naïve or deceitful." (ibid)

The CSIR, however, asserts that they had every intention of informing the San peoples
after clinical trials had been completed, and that they are fully committed to benefit-
sharing with proprietors of traditional knowledge. Yet, according to Alex Wijeratna, of the
development charity ActionAid, "this is a major case of biopiracy. Corporations are
scouring the globe looking to rip off traditional knowledge from some of the poorest
communities in the world. Consent or compensation is rarely given."

In 2001 leaders from various San communities met with prominent lawyer and San
advocate Roger Chennels to "plan their strategy against this injustice." Speaking on
behalf of the San peoples, Chennels informed the media that, "they are very concerned…
they do not object to anybody using their knowledge to produce a medicine, but they
would have liked the drug companies to have spoken to them first and come to an
agreement." Shortly after, the San tribes (as represented by Chennels) threatened the
CSIR with litigation. Hoping to avoid international scrutiny and bad press CSIR
consented to entering into talks with the San peoples. Lee Gillespie-White and Eric
Garduno of the International Intellectual Property Institute contend, "a dialogue between
the CSIR and the San tribes was opened and on April 9th, 2002, the San tribes and the
CSIR announced that they had concluded a Memorandum of Understanding (MOU),
which would serve as the basis for benefit sharing negotiations." (Gillespie-White and
Garduno 2002:1) The terms of the MOU state that if P57 enters the market (Pfizer predicts
that the drug will be ready by 2007), the San Peoples will receive six percent of the
royalties incurred. Gillespie-White and Garduno state,

The MOU between the San tribes and the CSIR presents a middle of the road option that
may prove to be the most effective course of action for the protection of TK. Under the
MOU, the CSIR recognized the San as custodians of TK associated with the uses of a
large variety of plant materials, including the Hoodia cactus plant. The San, in turn,
acknowledge that it was necessary for the CSIR to protect the work that had been done
in isolating the active ingredient in the plant and that the CSIR had a right to patent it.

Not everyone, however, is hailing the outcome of this case a success. Dr. Tewolde
Berhan Egziabher, of the Institute for Sustainable Development in Ethiopia, said "they
(pharmaceutical firms) are stealing the loaf and sharing the crumbs." Nevertheless,
Egziabher goes on to concede "after centuries of unjust and unfair extraction of our
resources that continues today, this is a small step towards justice."
(http://www.scienceinafrica.co.za/2002/september/biopiracy.htm)

Exercises / 3 suggestions given by GB Reddy Garu

1. Commission on IPR, UK (www.iprcommission.org) – Download and Go through “the
final report”.
2. Go through the WIPO handbook on IPR.
3. DL 101 offered by WIPO world wide academy – 30 hours program to undergo –
online tutor available.

Class on 01/02/24
Competing Rights – promoted by Roscoe Pound.
Competing rights, as explained by the American legal scholar Roscoe Pound, refers to
the conflict that arises when two or more individuals or groups have differing rights,
interests, or claims over the same object or situation. These conflicts occur because the
rights of one party may interfere with the rights of another, leading to a struggle for
dominance or resolution.

For example, imagine a landowner who wants to build a shopping center on their
property, while a nearby community wants to preserve the area as a natural habitat for
local wildlife. Both the landowner and the community have rights, but they conflict with
each other. Competing rights situations require a balance to be struck between the
various claims, taking into consideration the needs and interests of all parties involved.

Pound believed that the law should focus on resolving competing rights by finding a
balance that serves the common good and promotes social welfare. This approach
emphasizes the importance of understanding the broader context and implications of
legal conflicts and finding a solution that benefits society as a whole.
Example: Freedom of expression is subject to public order.
Right to use once own property so as not to damage other’s property.
Refer Herbert Broom’s legal maxims.
Ronald Dworkin – Taking rights seriously
Corpus and Animus possisendi
Possession [ possession or besitz]:
 Maine defines “possession as physical detention coupled with the intention to
hold the thing detained as one’s own”.
 According to SALMOND possession of the material object is the continuing
exercise of a claim to the exclusive use of it.
 Section 110 of the INDIAN Evidence Act 1872 states that who has possession of
the property, is the owner of the property burden of proof lies upon the person
who is claiming prospective ownership.
 Possession is evidence of ownership.
Elements of possession
 The corpus possession or physical element or the thing possessed or objective.
 The animus Domini or the intention or mental or subjective element.
1. The corpus possessionis :
Corpus implies two things:
1. Possessor’s physical relation to the object.
2. Relation of the possessor to the rest of the world.
 There must be some physical contact of a person with the thing which he
possesses so as to give rise to a reasonable assumption that others will not
interfere with it.
 The assurance of non-interference can be secured in the following ways:
 The physical power of the possessor.
 Personal presence of the possessor.
 The protection afforded by the possessor.
2. Animus Possidendi :
 It implies the intention to appropriate to oneself the exclusive use and enjoyment
of the thing possessed.
  It is the conscious intention of the possessor to exclude others from interfering
with his right of possession.
Possession is 9 points of ownership.

Destruction of intellectual property means surrendering/foregoing a patent or a

copyright. Some of the examples are:

CCL – Creative Commerce Licence – started in 2001 – a bi-product of 21 st century –

Lawrence Lessig is the propounder

Copyleft – free open software – Richard Stalman

Opensource journals – For example, OUJIPR or Osmania University Journal of IPR – the
first issue is already out.
ouipr.in/oujipr

IPR in the knowledge era – GB Reddy Garu

Assignment of copyright
Case of Guntur Seshendra Sharma (1927-2007)
Suit filed by his son, G.Satyaki.

Seshendra Sharma is one of the most outstanding minds of modern Asia. He is the
foremost of the Telugu poets today who has turned poetry to the gigantic strides of
human history and embellished literature with the thrills and triumphs of the 20th
century. A revolutionary poet who spurned the pedestrian and pedantic poetry equally, a
brilliant critic and a scholar of Sanskrit, this versatile poet has breathed a new vision of
modernity to his vernacular.Such minds place Telugu on the world map of
intellectualism. Readers conversant with names like Paul Valery, Gauguin, and Dag
Hammarskjold will have to add the name of Seshendra Sharma the writer from India to
that dynasty of intellectuals.

B.A: Andhra Christian College: Guntur: A.P: India

B.L : Madras University: Madras
Deputy Municipal Commissioner (37 Years)
Dept of Municipal Administration, Government of Andhra Pradesh
Parents: G.Subrahmanyam (Father) ,Ammayamma (Mother)
Siblings: Anasuya,Devasena (Sisters),Rajasekharam(Younger brother)
Wife: Mrs.Janaki Sharma
Children: Vasundhara , Revathi (Daughters),
Vanamaali ,Saatyaki (Sons)

Indira Devi Dhanrajgir (born 17 August 1929), better known as Rajkumari Indira, is
an Indo-Anglian poet and photography enthusiast from Hyderabad, India. She was
nominated for the 1973 Nobel Prize in Literature.
Indira was born to Raja Dhanrajgirji Bahadur, a philanthropist, and his wife, Rani Premila
Devi. Her father was noted for having introduced many Western ideas and the
game cricket in Hyderabad, and was of service to the court of Mir Osman Ali Khan,
the Nizam of Hyderabad. She was the oldest daughter of four and was tutored at home by
an English governess. Her paternal grandfather, Raja Saheb Narsinghji Bahadur, was
regarded "as the Rockefeller of the South." The Dhanrajgirs owned palaces in Bombay,
Hyderabad, and Poona.

“నాదొక చిత్రమైన జీవితం”, అనేవాడు శేషేంద్ర తరచుగా. ఆయన ప్రతిభవల్ల సమ్మోహితులైన అభిమానులు, అదేకారణంచేత
అధికారవర్గాలలో పుట్టు కొచ్చిన శత్రు వులు - ఈ రెండు ధ్రు వాల మధ్య ఈ కవి జీవితం గడిచింది. 1968 విశ్వసాహితి నిర్వహించిన
కవితాగో ష్ఠు లలో శేషేంద్ర శర్మ, ఇందిరాదేవి ధనరాజ్ గిర్ల మధ్య ఏర్పడ్డ పరిచయం, ప్రణయంగా మారింది. ఇద్దరు సం. 1970
హళేబీడులో బంధుమిత్రు లసమక్షంలో శాస్త్రోక్తంగా పెళ్ళి చేసుకున్నారు. పరిచయం తొలిదశలో ఇద్దరూకలిసి రచించిన వ్యాసాలని,
సాహిత్యవిశ్లేషణల్ని జంటగా సభాసదులకు వినిపించేవారు. అనతికాలంలో ఇందిరాదేవి స్వాభిలాషని పక్కకి నెట్టి తన శక్తిసామర్థ్యాలని
పూర్తిగా శేషేంద్ర గ్రంథప్రచురణలకు ధారపోసింది, “ఇండియన్ లాంగ్వేజెస్ ఫోరం“ అనే ప్రచురణసంస్థని స్థా పించి భారీ ధనవ్యయంతో
నిర్విరామంగా శేషేంద్ర గ్రంథాలని అన్నిటినీ ఇంగ్లీష్ తర్జు మాసహితంగా ప్రచురించుటయే గాక, ఇతగాడి కుటుంబభాధ్యతలను
అన్నింటినీ తనవిగా పరిగణించింది. ఈ త్యాగశీలురాలు పడ్డ శ్రమ వల్లనే శేషేంద్ర రచనలు నోబెల్ ప్రైజ్ కి నామినేట్ చేయబడ్డా యి అనుట
అతిశయోక్తిగాజాలదు. శేషేంద్ర మరణానంతరం ఈమెకు శేషేంద్ర చిన్నకొడుకు సాత్యకికీ మధ్య జరిగిన వ్యాజ్యంలో కోర్టు వారు ఇచ్చిన
తీర్మానం వల్ల ఈమె శేషేంద్రశర్మ గ్రంధాలమీది ప్రచురణాహక్కులను కోల్పోయింది - ప్రేమించిన భర్త మరణం గోరుచుట్టు మీద
కోర్టు తీర్మానం రోకలి పోటు పడింది.
GI cannot be sold. Not capable of transfer. Can only be inherited. Protected as
collective mark.

Class on 08/02/24
Constitutional aspects of property: US Constitution - Life, liberty and property - due
process of law. Doctrine of eminent domain – power of the government to acquire
private property for public purpose.
 The Fourteenth Amendment addresses many aspects of citizenship and the rights of
citizens. The most commonly used -- and frequently litigated -- phrase in the amendment
is "equal protection of the laws", which figures prominently in a wide variety of landmark
cases, including Brown v. Board of Education (racial discrimination), Roe v.
Wade (reproductive rights), Bush v. Gore (election recounts), Reed v. Reed (gender
discrimination), and University of California v. Bakke (racial quotas in education).
As per the law of the land – Latin lex terrae, or legem terrae. Per legem terrae means "by
the law of the land" or "by due process of law."
Due process of law is a constitutional guarantee that prevents governments from
impacting citizens in an abusive way. In its modern form, due process includes both
procedural standards that courts must uphold in order to protect peoples’ personal
liberty and a range of liberty interests that statutes and regulations must not infringe. It
traces its origins to Chapter 39 of King John’s Magna Carta, which provides that no
freeman will be seized, dispossessed of his property, or harmed except “by the law of the
land,” an expression that referred to customary practices of the court. The phrase “due
process of law” first appeared as a substitute for Magna Carta’s “the law of the land” in a
1354 statute of King Edward III that restated Magna Carta’s guarantee of the liberty of the
subject.
The Fifth and Fourteenth Amendments to the Constitution, which guarantee that no
person shall “be deprived of life, liberty, or property, without due process of law,”
incorporated the model of the rule of law that English and American lawyers associated
most closely with Magna Carta for centuries. Under this model, strict adherence to
regular procedure was the most important safeguard against tyranny. Over time, courts
in the United States have ruled that due process also limits legislation and protects
certain areas of individual liberty from regulation.

1)Doctrine of ‘Eminent domain’

The primary owner of land is the king or in modern sense the elected Government in
power. As such the right of ownership will always remain with the king or the elected
government, notwithstanding the fact that land is transferred to individual citizens for
agricultural or other purposes by the king or the government as the case may be.
The institution of private property has been a controversial topic with conflicting views,
one completely denying the right to own private property and the other supporting the
holding of the private property.
Doctrine of ‘Eminent domain’, in its general connotation means the supreme power of the
king or the government under which property of any person can be taken over in the
interest of general public. However, over the years such taking over the property by the
king or the government has been made possible only after compensating the land owner
of such property.
Thus eminent domain explained as the power of the king or the government to take over
the property of a private person when it is needed for a public purpose. Doctrine of
‘eminent domain’ is based on two maxims namely,
1. salus populi supreme lex esto which means that the welfare of the people is the
paramount law.
2. necessita public major est quan, which means that public necessity is greater than the
private necessity.
Eminent Domain is power of the sovereign to acquire property of an individual for public
use without the necessity of his consent. This power is based on sovereignty of the
State. Payment of just compensation to the owner of the land which is acquired is part of
exercise of this power. Eminent domain power is regarded as an inherent power of the
State to take private property for public purpose. This power depends on the superior
 domain of the State over all the property within its boundaries. An incidental limitation of
this power is that the property shall not be taken without just compensation.
2)Eminent Domain And Constitution
The expression “eminent domain” means permanent (eminent) dominion (domain) of the
state on the property. The power of the State to take private property for public use and
consequent right of the owner to compensate now emerge from the constitution of India.
The Constitution of India also recognizes the power of eminent domain. However, this
power of the state has been in limelight, more for the mischief that it is allegedly imputed
to bring about. Soon after Independence, the Supreme Court was charged with judging
the constitutionality of certain laws, which were intended to abolish the feudal zamindari
(landowning) system
In entry 42 list III of seventh schedule under Indian Constitution, both union and States
government are empowered to enact laws relating to acquisition of property. The use of
eminent domain power for land acquisition is also justified when the public purpose in
question can be served by only a specific piece of land, which has no substitute
Acquisition or taking possession of private property which is implied in clause (2) of
Article 31 of Indian Constitution, such taking must be for public purpose. The other
condition is that no property can be taken, unless the law authorizes such appropriation
contains a provision for payment of compensation in the manner as laid down in the
clause.
3)Limit on the Doctrine
The power of eminent domain was under the scrutiny of the Court. In explaining the
power, the Court held that eminent domain was “the power of the sovereign to take
property for public use without the owner’s consent”.
Meaning is that the power in its irreducible terms i.e.,
1. power to take,
2. without the owner's consent, and
3. for the public use.
4. The reference to the 'sovereign ’ was a portent of one of the problem is that it has
dogged the existence and uses of the eminent domain power, that is, the relationship
between the state and the people. The power to take and the unqualified nature of 'public
use', has made dispossession and mass displacement of people.
The Supreme Court in Sooraram Reddy v. Collector, Ranga Reddy District, has
articulated the following grounds for review of this power:
1. malafide exercise of power;
2. a public purpose that is only apparently a public purpose but in reality a private
purpose or collateral purpose;
3. an acquisition without following the procedure under the Act;
4. when the acquisition is unreasonable or irrational;
5. when the acquisition is not a public purpose at all and the fraud on the statute is
apparent
Although the power to determine what constitutes public purpose is primarily with
government, Courts have powers to review such decisions. In practice, however, the
Courts have generally placed limitation on themselves.
1. Compensation for the property acquired.
2. The interest of the community is always superior to the interest of the individual.
4)Article 300-A and the Doctrine of Eminent Domain
Article 300-A which merely says, “No person shall be deprived of his property save by
authority of law”. Hence, the rights in property can be curtailed, abridged or modified by
the State only by exercising its legislative power. An executive order depriving a person
of his property without being backed by a law is not constitutionally valid.
In addition to that, to say valid it must satisfy the following three tests:
(i) The authority which has enacted the law must have the legislative competency to do
so;
(ii) It must not infringe upon any other fundamental right guaranteed by part III of the
Constitution; and
(iii) It must not violate any other provision of the Constitution.
In Basantibai v. State of Maharashtra the Court did seek to interpret the Article 300-A
favourably to the property owners by reading therein the twin requirements of ‘public
purpose’ and ‘compensation’. Under Article 300-A the legislature cannot sanction the
deprivation of property for a public purpose. However, the Parliament not intended to
confer an absolute right on the legislature to deprive a citizen of his property merely by
the passing of a black-letter law.
5)Distinction between Eminent Domain Power & Police Power
In Chiranjit Lal v. Union of India, Supreme Court held that the eminent domain is the
inherent right in every sovereign State to take and appropriate the private property
belonging to an individual for public purpose. The State under its police power also
regulates the use and enjoyment of private property.
The police power can, however, be distinguished from eminent domain power. While
under police power, State merely regulates the use and enjoyment of property; under the
eminent domain, State can take the property from the owner for public use.
Notwithstanding this all pervasive nature of police power is that exercise of police power
restricted only to maintenance of law and order situation. In as much as police is only an
assisting machinery. This power seems to be synonymous with the power of eminent
domain.
However there is vital difference between these two powers.
1. Eminent domain is a sovereign power exercised subject to public convenience,
with the ultimate object of meeting public welfare and public purposes and where
as the police power is exercised to ensure, interalia that the law and order is
enforced to protect property right, to achieve public purpose etc.,
2. Eminent domain power is unopposed authority subject to payment of
compensation to the person interested and whereas the police power is subject to
scraping of the executive and judicial wing of the government.
3. Eminent domain power originates out of the constitutional provisions and
whereas the police power originates out of legal provisions, which shall not be
contrary to constitutional provisions.
4. Exercise of eminent domain power operates sometimes harshly and unequally
and requires special sacrifices from the persons interested whereas such a
situation does not arise while operating police power.
5. Exercise of the power of eminent domain deprives the right in the property, and
whereas exercise of the police power provides security to the person and property
6)Distinction Between Power of Taxation vis-à-vis Power of Eminent Domain
Powers of taxation and right of eminent domain have much in common. Both are
inherent powers in any government and sometime both operate on property. Besides
this, both are generally asserted for public use and benefit. It is, therefore, not surprising
that both cases confused with each other.
Nevertheless, there is a clear line of demarcation between these two powers. In
Laxmanappa Hanumantappa v. Union of India, it was held that deprivation of property by
imposition or collection of tax does not amount to acquisition or requisition of property
under Article 31(2), which has been deleted by the Constitution (forty fourth amendment)
Act, 1978.
 In Chemili Singh v. Slate of U.P., it has been held that compulsory acquisition of land for
providing houses to dalits cannot be challenged on the ground of violation of right to
livelihood which is an integral part of right to life under Article 21.
The following are some of the differences between the power of imposing taxes and
power of eminent domain.
1. The power of taxation is not exercisable in respect of certain transactions of the society
whose income is below the level of imposing taxes, whereas such exclusion is not, while
exercising the power of eminent domain.
2. The power of taxation of the State is legal power and whereas the power of eminent
domain is an inherent power of the State.
3. Taxation power is exercised to impose and collect taxes and whereas the power of
eminent domain is exercised to acquire and hold immovable property of persons for
public purposes which is a question of fact in each case.
4. While exercising the power of taxation the State need not pay any compensation to the
person connected instead of that citizen has to pay taxes to the State and whereas in
case of power of eminent domain, the State is under an obligation to pay compensation
to the person interested.
5. The power of taxation can be exercised against any property, movable or immovable,
whereas, the power of eminent domain can be exercised generally
===
Nine Justices make up the current Supreme Court: one Chief Justice and eight Associate
Justices. Franklin D Roosevelt – clash with the nine judges (including the chief justice)
in US Supreme Court led to FDR unveiling court packing plan dated 5/2/1937.
In the afterglow of his landslide reelection victory in 1936, President Franklin D.
Roosevelt unveiled on this day in 1937 a court-packing plan that would have added up to
five justices to the Supreme Court with the approval of the Democratic-controlled
Congress. In advancing his Judicial Procedures Reform Bill, FDR reacted to the court’s
repeated striking down of his signature New Deal programs as unconstitutional.
The plan would have allowed the president to nominate one new judge for each federal
judge with 10 years’ service who did not retire or resign within six months after reaching
70. Furthermore, under the proposed legislation, the president could nominate no more
than six younger Supreme Court justices and no more than two on any lower federal
court.
Roosevelt’s initiative failed. Contemporary observers broadly viewed Roosevelt’s
initiative as reflecting unseemly political maneuvering.
Traditionally, administration-sponsored legislation first goes before the House. However,
Roosevelt didn’t consult congressional leaders before announcing the bill, which
stopped any chance of passing the bill in that body. Rep. Hatton W. Sumners (D-Texas),
the House Judiciary Committee chairman, refused to endorse the bill, actively chopping
it up within his panel to block the bill’s chief indented effect of expanding the Supreme
Court.
Congressional Republicans decided to remain silent on the matter, denying the
Democrats the opportunity to use them as a unifying force. Republicans then watched
from the sidelines as the Democrats split in the ensuing Senate fight.
Historian Michael Parrish observed in 1983 that “the protracted legislative battle over the
court-packing bill blunted the momentum for additional reforms, divided the New Deal
coalition, squandered the political advantage Roosevelt had gained in the 1936 elections,
and gave fresh ammunition to those who accused him of dictatorship, tyranny, and
fascism. When the dust settled, FDR had suffered a humiliating political defeat at the
hands of Chief Justice [Charles Evans] Hughes and the administration’s congressional
opponents.”
Roosevelt, who died in office in 1945 at 63 while in his fourth term, ultimately prevailed in
establishing a majority friendly to his New Deal initiatives on the court.
===
Indian Constitution
 Right to Property was a part of fundamental rights in Part-3 of the Indian Constitution.
 The 44th Amendment Act of 1978 deleted the Right To Property by repealing article
19(1) (f) and Article 31.
 Article. 19 (1) (f) ensures that any person’s right against his property remains
protected.
 Article 31, on the other hand, guarantees the right to private ownership and the right
to enjoy and dispose of property, free of restrictions.
 Article 300A was added to the constitution in Part 12, under the ‘Right To Property.
 The status of the Right To Property was then changed from the Fundamental Right to
Legal Right. It does not belong to the basic structure of the constitution as well.
 Important rights related to the property are:
 The right of possession
 The right of control
 The right of exclusion
 The right to derive income
 The right of disposition
Original articles 19(1f) and 31 guaranteed right to property. it was abolished as
fundamental right and retained as constitutional right – in 1978. Consequently, Land
reform laws were enacted by States as land is the state subject.
===
The Curious Case of ‘Due Process’ in the Indian Constitution
The Constituent Assembly considered an American-style 'due process' clause for the
Constitution but adopted a formula to limit judicial review. Unwilling to heed that
limitation, judges fashioned doctrines to better protect the right to life and liberty.
“The President will see you now, sir,” Rose Conway, the White House executive
secretary, announced to her waiting guest. In the Oval Office, a beaming Harry Truman
rose to greet his silver-curly-haired and elegantly dressed visitor. It was a cold yet sunny
fall afternoon. The president’s calendar for that day, 19 November 1947, was full. But
Indian Ambassador Asaf Ali had managed to get an appointment for his guest from Delhi,
Benegal Narsinga Rau, to see Truman.
Rau was the principal adviser to India’s Constituent Assembly, which was debating a
constitution for the newly independent country. Having prepared the first version of the
proposed charter, Rau was in the United States to meet constitutional experts on a trip
that also took him to Canada, England, and Ireland.
After BN Rau left the White House, he called on Justice Felix Frankfurter of the U.S.
Supreme Court. A leading public intellectual and jurist, Frankfurter closely followed
political developments in India. Rau shared his first draft with Frankfurter. Upon
reviewing it, Frankfurter vehemently objected to a clause which guaranteed that no
person’s “life or personal liberty” could be taken away except “by due process of law.”
Rau had borrowed this language from the American Constitution’s Fourteenth
Amendment. But Frankfurter warned Rau that the term “due process of law” could
embolden Indian judges to indiscriminately invalidate economic and welfare laws, duly
enacted by the people’s representatives, for violating an individual’s liberty.
Returning to Delhi, Rau reported Frankfurter’s views to the Constituent Assembly’s
president. By then, the assembly’s drafting committee had begun preparing an official
draft constitution for public consultation. The draft constitution, published in February
1948, pointedly omitted the expression “due process of law” from Rau’s basic draft. In its
place, the draft constitution provided that no person could be deprived of their life or
personal liberty “except according to procedure established by law.”
===
9th schedule – 90% cases were land related. Any law in the 9 th schedule cannot be
challenged/immune from judicial review.
Case of Kameshwar Prasad Singh v State of Bihar
IR Coelho v State of TN – Judicial review was declared way back in 1973 – as a Basic
feature – 9th schedule inclusion can be challenged after 24/4/1973
80 enactments included after 24/4/1973 – which can be challenged.

Whether parliament can amend any part of the constitution ?

Whether parliament power is unlimited ? – Yes. You cannot alter the basic structure
doctrine.
Law cannot violate fundamental rights. Amendment also cannot.
===
Marbury v. Madison (1803) is a legal case in which the U.S. Supreme Court asserted for
itself and the lower courts created by Congress the power of judicial review, by means of
which legislation, as well as executive and administrative actions, deemed inconsistent
with the U.S. Constitution could be declared unconstitutional and therefore null and void.
State courts eventually assumed a parallel power with respect to state constitutions.
Marbury v. Madison is important because it established the power of judicial review for
the U.S. Supreme Court and lower federal courts with respect to the Constitution and
eventually for parallel state courts with respect to state constitutions. Judicial review,
power of the courts of a country to examine the actions of the legislative, executive, and
administrative arms of the government and to determine whether such actions are
consistent with the constitution. Actions judged inconsistent are declared
unconstitutional and, therefore, null and void. The institution of judicial review in this
sense depends upon the existence of a written constitution.
The conventional usage of the term judicial review could be more accurately described
as “constitutional review.”
The exercise of judicial review would help to ensure that the judiciary remained a
coequal branch of government alongside the legislative and executive branches. The
exercise of judicial review helped the federal judiciary check the actions of Congress and
the president and thereby remain a coequal branch of government alongside
the legislative and executive branches.
Constitutional judicial review is usually considered to have begun with the assertion
by John Marshall, fourth chief justice of the United States (1801–35),
in Marbury v. Madison (1803), that the Supreme Court of the United States had the power
to invalidate legislation enacted by Congress.
Background
In the weeks before Thomas Jefferson’s inauguration as president in March 1801, the
lame-duck Federalist Congress created 16 new circuit judgeships (in the Judiciary Act of
1801) and an unspecified number of new judgeships (in the Organic Act), which Adams
proceeded to fill with Federalists in an effort to preserve his party’s control of
the judiciary and to frustrate the legislative agenda of Jefferson and his Republican
(Democratic-Republican) Party. Because he was among the last of those appointments
(the so-called “midnight appointments”), William Marbury, a Federalist Party leader from
Maryland, did not receive his commission before Jefferson became president. Once in
office, Jefferson directed his secretary of state, James Madison, to withhold the
commission, and Marbury petitioned the Supreme Court to issue a writ of mandamus to
compel Madison to act.
Marbury and his lawyer, former attorney general Charles Lee, argued that signing and
sealing the commission completed the transaction and that delivery, in any
event, constituted a mere formality. But formality or not, without the actual piece of
parchment, Marbury could not enter into the duties of office. Despite Jefferson’s
hostility, the court agreed to hear the case, Marbury v. Madison, in its February 1803
term.
Some scholars have questioned whether Marshall should have removed himself from the
case because of his prior service as Adams’s secretary of state (1800–01). Certainly, later
judicial standards would have called for recusal, but at the time only financial
connections to a case led judges to step aside, as Marshall did in suits regarding Virginia
lands in which he had an interest. The Republicans, always quick to criticize Marshall,
did not even raise the issue of the propriety of his sitting in the case.
The issue directly presented by Marbury v. Madison can only be described as minor. By
the time the court heard the case, the wisdom of Jefferson’s desire to reduce the number
of justices of the peace had been confirmed (and the Judiciary Act of 1801 had been
repealed); Marbury’s original term was almost half over; and most people, Federalists
and Republicans alike, considered the case to be moot. But Marshall, despite the political
difficulties involved, recognized that he had a perfect case with which to expound a basic
principle, judicial review, which would secure the Supreme Court’s primary role
in constitutional interpretation.
The decision
The chief justice recognized the dilemma that the case posed to the court. If the court
issued the writ of mandamus, Jefferson could simply ignore it, because the court had no
power to enforce it. If, on the other hand, the court refused to issue the writ, it would
appear that the judicial branch of government had backed down before the executive,
and that Marshall would not allow. The solution he chose has properly been termed a
tour de force. In one stroke, Marshall managed to establish the power of the court as the
ultimate arbiter of the Constitution, to chastise the Jefferson administration for its failure
to obey the law, and to avoid having the court’s authority challenged by the
administration.
Marshall, adopting a style that would mark all his major opinions, reduced the case to a
few basic issues. He asked three questions:
(1) Did Marbury have the right to the commission ?
(2) If he did, and his right had been violated, did the law provide him with a remedy ?
(3) If it did, would the proper remedy be a writ of mandamus from the Supreme Court?
The last question, the crucial one, dealt with the jurisdiction of the court, and in normal
circumstances it would have been answered first, since a negative response would
have obviated the need to decide the other issues. But that would have denied Marshall
the opportunity to criticize Jefferson for what the chief justice saw as the president’s
flouting of the law.
Following the arguments of Marbury’s counsel on the first two questions, Marshall held
that the validity of a commission existed once a president signed it and transmitted it to
the secretary of state to affix the seal. Presidential discretion ended there, for the
political decision had been made, and the secretary of state had only a ministerial task to
perform—delivering the commission. In that the law bound him, like anyone else, to
obey. Marshall drew a careful and lengthy distinction between the political acts of the
president and the secretary, in which the courts had no business interfering, and the
simple administrative execution that, governed by law, the judiciary could review.
Having decided that Marbury had the right to the commission, Marshall next turned to the
question of remedy, and once again found in the plaintiff’s favour, holding that “having
this legal title to the office, [Marbury] has a consequent right to the commission, a refusal
to deliver which is a plain violation of that right, for which the laws of his country afford
him a remedy.” After castigating Jefferson and Madison for “sport[ing] away the vested
rights of others,” Marshall addressed the crucial third question. Although he could have
held that the proper remedy was a writ of mandamus from the Supreme Court—because
the law that had granted the court the power of mandamus in original (rather than
appellate) jurisdiction, the Judiciary Act of 1789, was still in effect—he instead declared
that the court had no power to issue such a writ, because the relevant provision of the
act was unconstitutional. Section 13 of the act, he argued, was inconsistent with Article
III, Section 2 of the Constitution, which states in part that “the supreme Court shall have
original Jurisdiction” in “all Cases affecting Ambassadors, other public Ministers and
Consuls, and those in which a State shall be Party,” and that “in all the other Cases
before mentioned, the supreme Court shall have appellate Jurisdiction.” In
thus surrendering the power derived from the 1789 statute (and giving Jefferson a
technical victory in the case), Marshall gained for the court a far-more-significant power,
that of judicial review.
Marshall’s masterful verdict has been widely hailed. In the face of attacks on
the judiciary launched by Jefferson and his followers, Marshall needed to make a strong
statement to maintain the status of the Supreme Court as the head of a coequal branch
of government. By asserting the power to declare acts of Congress unconstitutional
(which the court would not exercise again for more than half a century), Marshall claimed
for the court a paramount position as interpreter of the Constitution.
Although Marbury v. Madison set an abiding precedent for the court’s power in that area,
it did not end debate over the court’s purview, which has continued for more than two
centuries. In fact, it is likely that the issue will never be fully resolved. But the fact
remains that the court has claimed and exercised the power of judicial review through
most of U.S. history—and, as Judge Learned Hand noted more than a century later, the
country is used to it by now. Moreover, the principle fits well with the government’s
commitment to checks and balances. Few jurists can argue with Marshall’s statement of
principle near the end of his opinion, “that a law repugnant to the constitution is void,
and that courts, as well as other departments, are bound by that instrument.”
=======
HM Seervai – Constitution of India – 3 volumes in OU library.
=======
CrIchel Down affair, 1954 – A case study of ministerial responsibility in England -
The Crichel Down affair was a British political scandal of 1954, with a subsequent effect
and notoriety. The Crichel Down Rules are guidelines applying to compulsory
purchase drawn up in the light of the affair.
Crichel Down land
The case centred on 725 acres (2.93 km2) of agricultural land at Crichel Down, near Long
Crichel, Dorset. Much of the land in question was part of the estate of Crichel House,
owned by the 3rd Baron Alington. The land was purchased compulsorily in 1938 by
the Air Ministry for use for bombing practice by the Royal Air Force. The purchase price
when it was requisitioned was £12,006.
In 1940, the owner died on active service in the RAF, and the Crichel estate passed in
trust to his only child, Mary Anna Sturt (then aged 11), who married Commander Toby
Marten in 1949.
In 1941, Winston Churchill gave a promise in Parliament that land would be returned to
its owners after the Second World War, when it was no longer required for the purpose
for which it had been bought but the promise was reneged on.[citation needed] Instead
the land (then valued at £21,000) was handed over to the Ministry of Agriculture who
vastly increased the price of the land beyond the amount the original owners could
afford (£32,000) and leased it.
Aftermath
In 1949, Toby and Mary Marten (daughter of the third Lord Alington), now the owners of
the Crichel estate, began a campaign for the government's promise to be kept, by a
return sale of the land. They gained a public inquiry. This inquiry was conducted by
Sir Andrew Clark QC whose report was damning about actions in the case taken by those
acting for the government. Archive material later released caused some shift in
interpretation. In 1954, the minister responsible, Sir Thomas Dugdale, announced that
Marten could buy the Crichel estate part of the land back, and told the House of
Commons he was resigning.
The resignation of Dugdale has been taken as a precedent on ministerial responsibility,
even though the doctrine supposed to arise from the affair is only partially supported by
the details. Lord Carrington, Dugdale's junior minister, offered his resignation but was
told to stay on. In 1959, Dugdale was raised to the peerage as Baron Crathorne.
Crichel had another fight against "authority" in the 1990s when Commander Marten
objected to plans to redevelop a former paper mill the estate had sold to the local council
in the mid-1950s. A fictional version of the affair was used in an episode of Foyle's
War broadcast on ITV on 7 April 2013, which examined the conflict between "the greater
good of the State" and natural justice as it affects government and the security services.
The Crichel Down affair is also mentioned in The Late Scholar, a detective novel by Jill
Paton Walsh.
Analysis
In 2002 Roger Gibbard wrote,
In the history of modern parliament, the Crichel Down affair takes on momentous
significance, and has been described as a 'political bombshell'. The public inquiry into
the Crichel Down events revealed a catalogue of ineptitude and maladministration and
resulted directly in the resignation of the Secretary of State for Agriculture (Sir Thomas
Dugdale), then a senior cabinet position, and was the first case of Ministerial resignation
since 1917. Whilst the underlying case was, in the scale of things, trivial, involving the
transfer of some seven hundred acres of mediocre agricultural land in Dorset, the
ramifications for subsequent government procedure have been enormous, and it is
regarded as one of the key events leading to the creation of the post of Ombudsman.
Crichel Down was probably the first instance of close and very public scrutiny being
directed at a Minister of the Crown in the execution of his duties.
===

IPR – in the first list of 7th schedule.

Doctrine of eminent domain will be applicable in the private domain in case of IPR.
Eminent domain, power of government to take private property for public use without the
owner’s consent. Constitutional provisions in most countries require the payment
of compensation to the owner. In countries with unwritten constitutions, such as the
United Kingdom, the supremacy of Parliament makes it theoretically possible for
property to be taken without compensation, but in practice compensation is
paid. Confiscation is the term most often used in contrast to eminent domain to describe
the taking of property by the state without compensation.
===
FIRST ASSIGNMENT
Write short notes on all the topics given below.
Write in your own hand writing. Only manuscripts will be accepted.
Verbatim reproduction of downloaded material or AI generated material will not be
accepted.
Each answer shall contain a minimum of 100 words.
Students are required to submit the completed assignments on or before the second
internal examination duly indicating the following details:
 Branch
 Batch
 Year and Semester
 Paper
 Name of the Candidate with Roll #
 Name of the Professor

Write short notes on all the topics given below.

1. Legal concept of property
2. Emergence of intangible property
3. Labour theory of property
4. Economic reward theory of Intellectual Property
5. Austinian definition of Ownership
6. Title in the context of IPRs
7. Power of eminent domain
8. Doctrines of bona vacantia and escheat
9. Industrial property
10. WIPO definition of Industrial Property
11. Intellectual Property Rights and Public Interest
12. Intellectual Property Rights in virtual world
13. Digital copyright
14. Well known trademarks
15. Non conventional trademarks
16. Creative commerce license
17. GRTK (Genetic Resources and Traditional Knowledge)
18. Patenting computer related inventions
19. Intellectual Property in traditional, cultural expressions(TCEs)
20. Bioprospecting of Intellectual Property under the Biological Diversity Act.

Legal concept of property

Property is a legal concept that refers to the rights and interests that individuals or
entities have over tangible or intangible assets. It encompasses the ownership,
possession, and control of such assets, as well as the ability to use, transfer, or dispose
of them as per one's will.
Jurisprudentially speaking, “what we call the law of property is, in its first place, the
systematic expression of the degrees and forms of control, use and enjoyment, that are
recognised and protected by law.”
Roscoe Pound dissects the right of ownership into 6 sub rights –
1. Right to possess
2. Right to use
3. Right to enjoy the fruits
4. Right to enjoy incidental benefits
5. Right to dispose
6. Right to prohibit others
The concept of property also involves the idea of exclusivity, meaning the owner has the
right to exclude others from using or enjoying the property. However, these rights are
not absolute and are subject to limitations imposed by law, such as zoning laws or
intellectual property laws.

Emergence of intangible property

Intangible property refers to non-physical assets like patents, copyrights, trademarks,
trade secrets, and brand names. These types of assets have increased in importance
with the rise of technology and knowledge-based industries.

In the past, most wealth was derived from tangible property like land, factories,
equipment, etc. But in modern economies, a large share of corporate value and
economic activity is based on intangible assets. For example, tech companies derive
most of their value from intellectual property rather than physical assets.

Stronger intellectual property laws and regulations have helped turn ideas, creations,
and business know-how into legally recognized and marketable property. Things like
software codes, drug formulas, artistic works etc. can now be owned and licensed as
intangible property.

Globalization and digitalization have further boosted the value of brands, designs,
proprietary data and other knowledge-based assets which can now be exploited
worldwide through online platforms. Their value doesn't depreciate with physical
distance.
Valuing and accounting for intangible assets poses unique challenges given their non-
physical nature. But methods like discounted cash flow analysis are now commonly
used to determine their worth for corporate acquisitions, taxation purposes etc.
Protection of intangible property through patents, copyrights etc. is now seen as
important for incentivizing innovation in knowledge industries and digital technologies
which drive modern economies.
Labor theory of property
John Locke (1632-1704), English Philosopher was among the most famous philosophers
and political theorists of the 17th century and is best known as a proponent of limited
government. He is the propounder of Labor Theory of Property. He argued that either by
natural reason or religious precepts issued out of revelation, one has to come to the
conclusion that every man born in this world has got the right to live. In order to live, he
has the right to have things necessary for his sustenance which nature gives. Everyone
is entitled for the full produce of his labour. Others have no right on that. Hence, God
has given all things for man to enjoy. According to locke, man owns himself, and by
extension, everything that he produces. His famous theory of labour argues that by
mixing work with nature, the resulting goods will necessarily belong to the worker.
Anyone who adds labour to it makes the things his own property. When a person works,
that labour enters into the object. Thus, the object becomes the property of that person.
However, Locke held that one may only appropriate property in this fashion if the
Lockean proviso held true, that is, “...there is enough, and as good, left in common for
others”.
Economic reward theory of Intellectual Property
The argument of Julius Stone, the profounder of economic theory is that the maximum
production of goods and services is the aim of the society. It can be achieved by means
of maximum productivity. On scrutiny, it can be found that the quality, quantity and
nature of production is correlated and geared to increase the individual profits. The
desire for individual profits which is paramount, subordinates all other ends, useful to
society. Secondly, private property by itself does not result in the increase of certain
things. It is proved by experiments that land yielded more fruits under government care
than under private ownership. The economic reason for creating such a property right is
also obvious. It is argued that unless the inventor is given the monopoly right to exploit
his invention or innovation, the inventor will neither have impetus to invent things nor
invest huge amounts of money that the research and development requires for inventing
new ideas and newer technologies. This would adversely affect the progress of every
nation.

Austinian definition of Ownership

Page 286 Jurisprudence and Legal Theory by VD Mahajan

WIPO definition of Industrial Property

Intellectual Property Industrial property legislation is part of the wider body of law known
as intellectual property (IP) which refers broadly to the creations of the human mind. IP
rights protect the interests of innovators and creators by giving them rights over their
creations. The Convention Establishing the World Intellectual Property Organization
(1967) does not seek to define IP, but lists the following as protected by IP rights:
• literary, artistic and scientific works;
• performances of performing artists, phonograms and broadcasts;
• inventions in all fields of human endeavor;
• scientific discoveries;
• industrial designs;
• trademarks, service marks, and commercial names and designations;
• protection against unfair competition; and
• “all other rights resulting from intellectual activity in the industrial, scientific, literary or
artistic fields”.
The importance of protecting IP was first recognized in the Paris Convention for the
Protection of Industrial Property (1883) (Paris Convention) and the Berne Convention for
the Protection of Literary and Artistic Works (1886) (Berne Convention). Both treaties are
administered by the World Intellectual Property Organization (WIPO). Countries generally
have laws to protect IP for two main reasons:
• to give statutory expression to the rights of creators and innovators in their creations
and innovations, balanced against the public interest in accessing creations and
innovations;
• to promote creativity and innovation, so contributing to economic and social
development

The Two Branches of Intellectual Property

IP is usually divided into two branches, namely industrial property and copyright.

Copyright
Copyright relates to literary and artistic creations, such as books, music, paintings and
sculptures, films and technology-based works (such as computer programs and
electronic databases). In certain languages, copyright is referred to as authors’ rights.
Although international law has brought about some convergence, this distinction reflects
a historic difference in the evolution of these rights that is still reflected in many
copyright systems. The expression copyright refers to the act of copying an original
work which, in respect of literary and artistic creations, may be done only by the author
or with the author’s permission. The expression authors’ rights refers to the creator of an
artistic work, its author, thus underlining that, as recognized in most laws, authors have
certain specific rights in their creations that only they can exercise, which are often
referred to as moral rights, such as the right to prevent distorted reproductions of the
work. Other rights, such as the right to make copies, can be exercised by third parties
with the author’s permission, for example by a publisher who obtains a license to this
effect from the author.

Industrial Property
The broad application of the term “industrial property” is set out in the Paris Convention.
Industrial property takes a range of forms, the main types of which are outlined here.
These include patents for inventions, industrial designs (aesthetic creations related to
the appearance of industrial products), trademarks, service marks, layout-designs of
integrated circuits, commercial names and designations, geographical indications and
protection against unfair competition. In some cases, aspects of an intellectual creation,
although present, are less clearly defined. What counts then is that the object of
industrial property consists of signs conveying information, in particular to consumers,
regarding products and services offered on the market. Protection is directed against
unauthorized use of such signs that could mislead consumers, and against misleading
practices in general.

“Industrial property shall be understood in the broadest sense and shall apply not only
to industry and commerce proper, but likewise to agricultural and extractive industries
and to all manufactured or natural products, for example, wines, grain, tobacco leaf, fruit,
cattle, minerals, mineral waters, beer, flowers, and flour.” Paris Convention – Article 1(3)

Industrial property

11. As regards industrial property, it has already been mentioned that this
expression is sometimes misunderstood as relating to movable or immovable
property used for industrial production, such as factories, equipment for
production, etc. However, industrial property is a kind of intellectual property and
thus related to creations of the human mind. Typically, such creations are
inventions and industrial designs. Simply stated, inventions are solutions to
technical problems, and industrial designs are aesthetic creations determining the
appearance of industrial products. In addition, industrial property includes
trademarks, service marks, commercial names and designations, including
indications of source and appellations of origin, and the protection against unfair
competition. Here, the aspect of intellectual creations--although existent--is less
prominent, but what counts here is that the object of industrial property typically
consists of signs transmitting information to consumers, in particular, as regards
products and services offered on the market, and that the protection is directed
against unauthorized use of such signs which is likely to mislead consumers, and
misleading practices in general.

12. The expression "industrial" property may appear as not entirely logical
because it is only as far as inventions are concerned that the main segment of
economy that is interested in them is industry. Indeed, in the typical situation,
inventions are exploited in industrial plants. But trademarks, service marks,
commercial names and commercial designations are of interest not only to
industry but also and mainly to commerce. Notwithstanding this lack of logic, the
expression "industrial property" has acquired, at least in the European languages,
a meaning which clearly covers not only inventions but also the other objects just
mentioned.

13. In the hall of the WIPO building in Geneva, there is an inscription in the cupola
whose text2 tries, in a few words, implicitly to define intellectual works. It also
tries to convey the reasons for which intellectual works should be "property," that
is, why their creators should enjoy advantages secured by law. Finally, the
inscription invokes the duty of the State in this field. Naturally, the inscription
makes no claim to legal exactitude. Its intent is to stress the cultural, social and
economic importance of protecting intellectual property.

INVENTIONS

14. As has already been sais, inventions are new solutions to technical problems.
This is not an official definition. Most laws dealing with the protection of
inventions do not define the notion of inventions. However, the WIPO Model Law
for Developing Countries on Inventions (1979), contained a definition which reads
as follows: "`Invention' means an idea of an inventor which permits in practice the
solution to a specific problem in the field of technology."

Patents

15. Inventions are characteristically protected by patents, also called "patents for
invention." Every country which gives legal protection to inventions--and there are
more than 140 such countries--gives such protection through patents although
there are a few countries in which protection may also be given by means other
than patents, as will be seen below.

16. But first, let us consider what a patent is.

17. The word "patent," at least in some of the European languages, is used in two
senses. One of them is the document that is called "patent" or "letters patent."
The other is the content of the protection that a patent confers.

18. First of all, let us deal with the first sense of the word "patent," that is, when it
means a document.

19. If a person makes what he thinks is an invention, he, or if he works for an

entity, that entity, asks the government--by filing an application with the patent
office--to give him a document in which it is stated what the invention is and that
he is the owner of the patent. This document, issued by a Government authority,
is called a patent or a patent for invention.

20. Not all inventions are patentable. Generally, laws require that, in order to be
patentable, the invention must be new, it must involve an inventive step (or it must
be non-obvious), and it must be industrially applicable. These three requirements
are sometimes called the requirements or conditions of patentability.

21. The conditions of novelty and inventive step must exist on a certain date. That
date, generally, is the date on which the application is filed. However, in a certain
case it will not matter if the conditions no longer exist on that date. That case is
regulated in the Paris Convention for the Protection of Industrial Property ("the
Paris Convention") and concerns the situation where the application of a given
applicant concerning a given invention is not the first application of that applicant
for that invention, but a later application by the same applicant (or his successor
in title) for the same invention. For example, the first application was filed in
Japan and the second in France. In such a case, it will be sufficient that the
conditions of novelty and inventive step exist on the date on which the first (the
Japanese) application was filed. In other words, the second (the French)
application will have a priority over any applications filed by other applicants in
France between the date of the first (Japanese) and the second (French)
application, provided the period between the two dates does not exceed 12
months. Because of such priority, the advantage thus assured to the applicant is
called "right of priority."

22. It is customary to distinguish between inventions that consist of products and

inventions that consist of processes. An invention that consists of a new allow is
an example of a product invention. An invention that consists of a new method or
process a known or new alloy is a process invention. The corresponding patents
are usually referred to as a "product patent," and a "process patent," respectively.

23. Now, let us deal with the other sense of the word "patent," namely when the
word "patent" relates to the content of the protection that the patent confers.

24. The protection that a patent for invention confers means that anyone who
wishes to exploit the invention must obtain the authorization of the person who
received the patent--called "the patentee" or "the owner of the patent"--to exploit
the invention. If anyone exploits the patented invention without such
authorization, he commits an illegal act. One speaks about "protection" since
what is involved is that the patentee is protected against exploitation of the
invention which he has not authorized. Such protection is limited in time.
According to Article 33 of the Agreement on Trade-Related Aspects of Intellectual
Property Rights ("the TRIPS Agreement") which was concluded in 1994, the term
of protection must not end before the expiration of a period of twenty years
counted from the filing date.

25. The rights, the protection, are not described in t he document called a
"patent." Those rights, that protection, are described in the patent law of the
country in which the patent for invention was granted. The patent laws of
Members of the TRIPS Agreement have to comply with Section 5 of Part II of the
said Agreement which sets out, in its Article 28, the exclusive rights conferred by
a patent. The other provisions, relating to patents, of the said Agreement
deal, inter alia, with patentable subject matter, conditions on patent applicants
and the reversal of burden of proof in respect of process patents. The rights,
usually called "exclusive rights of exploitation," generally consist of the following:

- in the case of product patents, the right to prevent third parties from making,
using, offering for sale, selling or importing the product that includes the
invention; and

- in the case of process patents, the right to prevent third parties from using the
process that includes the invention, and to prevent third parties from using,
offering for sale, selling or importing products which were made by the process
that includes the invention.

26. It has been mentioned ealier that, if anyone exploits the patented invention
without the authorization of the owner of the patent for invention, he commits an
illegal act. However, as already stated, there are exceptions to this principle,
because patent laws may provide for cases in which a patented invention may be
exploited without the patentee's authorizatio, for example, exploitation in the
public interest by or on behalf of the government, or exploitation on the basis of a
comulsory licence. A compulsory license is an authorization to exploit the
invention, given by a governmental authority, generally only in very special cases,
defined in the law, and only where the entity wishing to exploit the patented
invention is unable to obtain the authorization of the owner of the patent for
invention. The conditions of the granting of compulsory licenses are also
regulated in detail in laws which provide for them. In particular, the decision
granting a compulsory license has to fix an adequate remuneration for the
patentee, and that decision may be the subject of an appeal. It should be noted
that the TRIPS Agreement, in particular in its Articles 27.1 and 31, establishes a
number of obligations with respect to the use of a patented invention without the
authorization of the owner of the patent. Member of that Agreement have to
comply with these requirements the most important of which no longer permits
the grant of compulsory licenses on the ground of failure to work or insufficient
working of an invention if the protected product is lawfully imported into the
territory of the Member concerned.

27. In conclusion, it can be stated that, among the means by which inventions are
protected, patents are by far the most important. However, protection of
inventions as utility models deserves mention.

Utility Models
28. Utility models are found in the laws of a limited number (about 20) of countries
in the world, and in the OAPI regional agreement. In addition, some other
countries (for example, Australia and Malaysia) provide for titles of protection
which may be considered similar to utility models. They are called "petty patents"
or "utility innovations." The expression "utility model" is merely a name given to
certain inventions, namely--according to the laws of most countries which contain
provisions on utility models--inventions in the mechanical field. Utility models
usually differ form inventions for which ordinary patents for invention are
available mainly in three respects: first, in the case of an invention called "utility
model," either only novelty but no inventive step is required or the inventive step
required is smaller than in the case of an invention for which a patent for
invention is available; second, the maximum term of protection provided in the
law for a utility model is generally shorter than the maximum term of protection
provided for a patent for invention; and third, the fees required for obtaining and
maintaining the right are generally lower than those applicable to patents.
Moreover, in certain countries there is a also a substantial difference in the
procedure for obtaining protection for a utility model: This procedure is generally
shorter and simpler than the procedure for obtaining a patent for invention.
INDUSTRIAL DESIGNS
29. Generally speaking, an industrial design is the ornamental or aesthetic aspect
of a useful article. Such particular aspect may depend on the shape, pattern or
color of the article. The deisgn must appeal to the sense of sight. Moreover, it
must be reproducible by industrial means; this is the essential purpose of the
design, and is why the design is called "industrial."
30. In order to be protectable, an industrial design must, according to some laws,
be new and, according to other laws, original.
31. Industrial designs are usually protected against unauthorized copying or
imitation. Under Article 26.3 of the TRIPS Agreement, the duration of protection
available shall amount to at least 10 years. Members of the said Agreement are
also obliged to ensure taht requirements for securing protection of textile
designs, in particular in regard to any cost, examination or publication, do not
unreasonably impair the opportunity to seek and obtain such protection.
32. The document which certifies the protection may be called a registration
certificate or a patent. If it is called a patent, one must, in order to distinguish it
from patents for invention, always specify that it is a patent for industrial design.
INTELLECTUAL PROPERTY IN RESPECT OF INTEGRATED CIRCUITS
33. The question of the type of protection to be given to the layout-design, or
topography, of integrated circuits is relatively new. Although prefabricated
components of electrical circuitry have been used for a long time in the
manufacture of electrical equipment (for example, radios), large scale integration
of a multitude of electrical functions in a very small component became possible
only a few years ago as result of advances in semiconductor technology.
Integrated circuits are manufactured in accordance with very detailed plans or
"layout-designs."
34. The layout-designs of integrated circuits are creations of the human mind.
They are usually the result of an enormous investment, both in the terms of highly
qualified experts, and financially. There is a continuing need for the creation of
new layout-designs which reduce the dimensions of existing integrated circuits
and simultaneously increase their functions. The smaller an integrated circuit, the
less the material needed for its manufacture, and the smaller the space needed to
accommodate it. Integrated circuits are utilized in a large range of products,
including articles of everday use, such as watches, television sets, washing
machines, automobiles, etc., as well as sophisticated data processing equipment.
35. Whereas the creation of a new layout-design for an integrated circuit involves
an important investment, the copying of such a layout-design may cost only a
fraction of that investment. Copying may be done by photographing each layer of
an integrated circuit and preparing masks for the production of the integrated
circuit on the basis of the photographs obtained. The high cost of the creation of
such layout-designs, and the relative ease of copying, are the main reasons for
the protection of layout-designs.
36. Layout-designs of integrated circuits are not considered industrial designs in
the sense of the laws providing for the registration of industrial designs. This is
because they do not determine the external appearance of integrated circuits, but,
rather, the physical location, within the integrated circuit, of each element having
an electronic function. Moreover, layout-designs of integrated circuits are not
normally patentable inventions, because their creation usually does not involve an
inventive step, although it requires a great amount of work by an expert. Further,
copyright protection may not apply if it is determined, under national law, that
layout-designs are not copyrightable subject matter. Due to the uncertainty
surrounding the protection of layout-designs, national, regional and international
efforts focused on the question of what type and scope of protection would be
appropriate.
37. On May 26, 1989, under the auspices of WIPO, the Treaty on Intellectual
Property in Respect of Integrated Circuits was adopted at Washington, D.C.,
United States of America. The Treaty has not entered into force but its substantive
provisions have, to a large extent, been adopted in the TRIPS Agreement. The
main features of the protection mandated under the Treaty can be summarized as
follows.
38. A layout-design is defined in the Treaty as the "three-dimensional disposition,
however expressed, of the elements, at least one of which is an active element,
and of some or all of the interconnections of an integrated circuit, or such a three-
dimensional disposition prepared for an integrated circuit intended for
manufacture." Such a layout-design is considered protectable under the terms of
the Treaty if it is the result of its creator's own intellectual effort and is not
commonplace among creators of layout-designs and manufacturers of integrated
circuits at the time of its creation.
39. The protection required under the Treaty, as modified in the TRIPS Agreement,
is the prohibition, for a period of at least ten years, of the performance of the
following acts, without the authorization of the holder of the right:
(i) reproducing, whether by incorporation in an integrated circuit or otherwise, a
protected layout-design in its entirety or any part thereof, except the act of
reproducing any part that does not comply with the requirement of originality; and
(ii) importing, selling or otherwise distributing for commercial purposes, a
protected layout-design or an integrated circuit in which a protected layout-design
is incorporated.
40. The manner in which these rights in a layout-design are to be secured is not
mandated by the Treaty. Thus, a Contracting Party is free to implement its
obligations under the Treaty through a special law on layout-designs (a solution
which is more and more frequent), or its law on copyright, patents, utility models,
industrial designs, unfair competition or any other law or a combination of any of
those laws.
41. Contracting Parties are free to provide that registration of a layout-design is a
prerequisite to protection.
42. The rights in layout-designs provided for under the Treaty are subject to three
exceptions. Firstly, a third party is able to perform any act with respect to a layout-
design for the purposes of evaluation, analysis, research, or teaching. Secondly, a
third party may copy a layout-design or part thereof in order to prepare a second,
original, layout-design. According to the Treaty, such a second layout-design is
not to be regarded as infringing rights held in the first layout-design. Thirdly, a
third party may perform any act in respect of a layout-design that was
independently created.
TRADEMARKS
43. A trademark is a sign used on, or in connection with the marketing of, goods.
Saying that the sign is used "on" the goods means that it may appear not only on
the goods themselves but on the container or wrapper in which the goods are
when they are sold. Saying that the sign is used "in connection with the
marketing" of the goods refers mainly to the appearance of the sign in
advertisements (newspaper, television, etc.) or in the shop windows of the shops
in which the goods are sold. Where a trademark is used in connection with
services, it may be called "service mark." For example, service marks are used by
hotels, restaurants, airlines, tourist agencies, car-rental agencies, laundries and
cleaners. All that has been said about trademarks applies also, mutatis mutandis,
to service marks.
44. In general, it may be said that a trademark performs four main functions.
These functions relate to the distinguishing of marked goods or services, their
origin, their quality and their promotion in the market place.
45. The first function of a trademark is to distinguish the products or services of
an enterprise from products or services of other enterprises. Trademarks facilitate
the choice to be made by the consumer when buying certain products or making
use of certain services. The trademark helps the consumer to identify a product or
service which was already known to him or which was advertised.
46. In view of the fact that a trademark has the function of distinguishing, only
distinctive signs are capable of serving as trademarks, and the main purpose of
protecting trademarks is to ensure that only distinctive signs are used and that
confusion among trademarks is prevented.
47. The second function of a trademark is to refer to a particular enterprise which
offers the products or services on the market, i.e. give an indication as to the
origin of the goods or services for which the mark is used.
48. Trademarks do not only or not always distinguish products or services as
such. They distinguish them in their relationship to a particular enterprise,
namely, the enterprise from which the products or services originate. Thus
trademarks distinguish products or services from one source, from identical or
similar products or services from other sources, namely, the various enterprises
which offer such products or services. This function is important in the definition
of the scope of protection of trademarks. The decisive test for that protection is
whether the average consumer, in view of identical or similar trademarks relating
to products or services of the same kind or of similar kinds, may believe that
those products or services originate from one and the same enterprise.
49. The third function of trademarks is to refer to a particular quality of the
products or services for which the trademark is used. This function is not always
recognized. In fact, the quality function of trademarks is one of the most
controversial issues of trademark law.
50. The reasons for maintaining that trademarks have the function of referring to a
particular quality of the products or services for which they are used may be
summarized as follows: a trademark frequently is not used by only one enterprise
since the trademark owner may grant licenses to use the trademark to other
enterprises; it is accordingly essential that licensees respect the quality standards
of the trademark owner. Moreover, trading enterprises often use trademarks for
products which they acquire from various sources. Thus, products, although not
originating from one and the same enterprise, nevertheless have to correspond to
certain common characteristics and quality standards which are applied by the
trademark owner. A trademark owner therefore guarantees that only products that
correspond to those standards and quality requirements will be offered under the
trademark. In such cases, the trademark owner is not responsible for producing
the products but rather--and this may be equally important--for selecting those
that meet these standards and requirements. This argument is supported by the
fact that even where the trademark owner is the manufacturer of a particular
product, in the manufacturing process parts are frequently used which have not
been produced by the trademark owner but which have been selected by him.
51. The question whether a quality-guarantee function for trademarks is to be
recognized has practical significance in connection with trademark licensing. In
this connection, it is generally agreed that the licensee must respect certain
quality standards set by the trademark owner.
52. A controversial issue arises in respect of the question whether the trademark
owner himself may change the quality and, if he does so, what are the
consequences with respect to the trademark. Various approaches to solve this
question are at present under discussion but there does not yet exist a generally
accepted solution.
53. The fourth and last function of trademarks is to promote the marketing and
sale of products and the marketing and rendering of services.
54. This function recently has become more and more important. Trademarks are
not only used to distinguish or to refer to a particular enterprise or a particular
quality but also to stimulate sales. A trademark which is to fulfill that function
must be carefully selected. It must appeal to the consumer, create interest and
inspire a feeling of confidence. This is why this function sometimes is called the
"appeal function."
55. Trademarks which overemphasize the appeal function may run the risk of
being misleading. This is to be kept in mind in the selection of trademarks, for
misleading trademarks are excluded from protection.
56. Any sign, or any combination of signs, capable of distinguishing the goods or
services of one undertaking from those of other undertakings, shall be capable of
constituting a trademark. Such signs, in particular words including personal
names, letters, numerals, figurative elements and combinations of colours as well
as any combination of such signs, shall be eligible for registration as trademarks
(TRIPS Article 15.1). Most countries require that trademarks for which protection
is desired be registered with a government authority. The protection that laws give
to a trademark consists essentially of making it illegal for any entity other than the
owner of the trademark to use the trademark or a sign similar to it, at least in
connection with goods for which the trademark was registered or with goods
similar to such goods. The TRIPS Agreement sets out, in its Article 16, the rights
conferred by trademarks including, in particular, well-known marks.
57. The TRIPS Agreement also deals, inter alia, with the protectable subject
matter, the term of protection, the requirements of use as well as licensing and
assignment.
TRADE NAMES
58. Another category of objects of industrial property is "commercial names and
designations."
59. A commercial name or trade name--the two expressions mean the same thing--
is the name or designation which identifies the enterprise. In most countries, trade
names may be registered with a government authority. However, under Article 8 of
the Paris Convention for the Protection of Industrial Property, a trade name must
be protected without the obligation of filing or registration, whether or not it forms
part of a trademark. Protection generally means that the trade name of one
enterprise may not be used by another enterprise either as a trade name or as a
trademark or service mark and that a name or designation similar to the trade
name, if likely to mislead the public, may not be used by another enterprise.
GEOGRAPHICAL INDICATIONS
60. Finally, among commercial designations there are also geographical
indications.
61. The TRIPS Agreement (Articles 22 to 24) establishes certain obligations as
regards the protection of geographical indications, which are defined therein, for
the purposes thereof, as "indications which identify a good as originating in the
territory of a Member, or a region or locality in that territory, where a given quality,
reputation or other characteristic of the good is essentially attributable to its
geographical origin." The notions of "indications of source" and of "appellations
of origin," which are used in the Paris Convention, encompass geographical
indications as defined by the TRIPS Agreement.
62. An indication of source is constituted by any denomination, expression or
sign indicating that a product or service originates in a country, a region or a
specific place (for instance, "made in ..."). As a general rule, the use of false or
deceptive indications of source is unlawful.
63. An appellation of origin is constituted by the denomination of a country, a
region or a specific place which serves to designate a product originating there,
the characteristic qualities of which are due exclusively or essentially to the
geographical environment, in other words to natural and/or human factors. The
use of an appellation of origin is lawful only for a certain circle of persons or
enterprises located in the geographical area concerned and only in connection
with the specific products originating there (for instance, "Bordeaux").
PROTECTION AGAINST UNFAIR COMPETITION
64. The last object of the protection of industrial property is the protection against
unfair competition. Such protection, required under Article 10bis of the Paris
Convention, is directed against acts of competition that are contrary to honest
practices in industry or commerce. The following in particular constitute acts of
 unfair competition in relation to industrial property: all acts of such a nature as to
create confusion with the establishment, the goods or the industrial or
commercial activities of a competitor; false allegations in the course of trade of
such a nature as to discredit the establishment, the goods or the industrial or
commercial activities of a competitor; and indications or allegations the use of
which in the course of trade is liable to mislead the public as to the characteristics
of goods.
65. The protection against unfair competition supplements the protection of
inventions, industrial designs, trademarks and geographical indications. It is
particularly important for the protection of know-how, that is: technology or
information which is not protected by a patent but which may be required in order
to make the best use of a patented invention.
66. The TRIPS Agreement contains, in its Article 39, provisions on the protection
of undisclosed information (trade secrets). In the course of ensuring effective
protection against unfair competition as provided in Article 10bis of the Paris
Convention, Members of the TRIPS Agreement are required to provide natural and
legal persons the possibility of preventing information lawfully within their control
from being disclosed to, acquired by, or used by others without their consent in a
manner contrary to honest commercial practices so long as such information:
(a) is secret in the sense that it is not, as a body or in the precise configuration
and assembly of its components, generally known among or readily accessible to
persons within the circles that normally deal with the kind of information in
question;
(b) has commercial value because it is secret; and
(c) has been subject to reasonable steps under the circumstances, by the person
lawfully in control of the information, to keep it secret.

Class on 15/2/24 begins at 19:10 Hrs and finishes by 20:00 Hrs.

Supreme Court of India
Rameshwar Prasad & Ors vs Union Of India & Anr on 24 January, 2006
Writ Petition (civil) 257 of 2005
Bench: K.G. Balakrishnan, B.N. Agrawal, Ashok Bhan, Arijit Pasayat
JUDGMENT: J U D G M E N T (With WP (C) Nos. 255, 258 and 353 of 2005)
Case Background
In February 2005, after the state elections, as no party or alliance could muster the
required majority of 122 seats in the 243-member House, Bihar saw a hung assembly.
 Following several meetings with political parties, the Governor came to the
conclusion that no party or coalition could attain a majority in the Assembly.
  On March 6, 2005: Governor wrote to the President of India, recommending a
President’s rule in the state under Article 356, keeping the assembly in
‘suspended animation’ (this meant that the assembly could neither be dissolved
nor could it conduct its business).
 The day after, two notifications were issued which declared President’s Rule in
Bihar and transferred the President’s powers to the Governor, subject to his final
control and superintendence.
 At the same time, a group of 17 independent MLAs and three smaller parties
extended their support to the NDA group to form the government.
 Governor sent two reports to the President:

 The first one was on April 27, 2005, which warned of attempts to
manipulate the election process by offering incentives such as posts and
money. The report recommended fresh elections to prevent distortion of
democracy.
 The second report was sent less than a month later on May 21, 2005, in
which the Governor recommended the dissolution of the existing Assembly
and reiterated the need for fresh elections, noting that LJP had sided with
the JD(U).
 The Union Cabinet promptly forwarded the reports to the President for his assent,
which is required for the dissolution of an Assembly and the conducting of fresh
elections.
 Following the dissolution of the Bihar Assembly, different parties organised
protests and strikes across the state.
 Rameshwar Prasad and three other MLAs from the dissolved House filed a
petition before the Supreme Court challenging the constitutionality of the
Presidential Proclamation of May 23, 2005. They requested that the dissolution of
the Assembly be deemed “unconstitutional.”
 Despite the pending petitions before the SC, the Election Commission of India
(ECI) announced fresh elections and declared the dates of new elections in the
state of Bihar. This decision created a challenging situation as the Supreme Court
had not yet made a ruling, and the election outcome could potentially complicate
matters.
Rameshwar Prasad Case Supreme Court Verdict
On October 7, 2005, a Constitution Bench led by the then Chief Justice of India Y K
Sabharwal gave a concise verdict.
 The court declared the President’s Proclamation of dissolving the state Assembly
unconstitutional. However, the court decided not to reinstate the Assembly due to
the upcoming elections.
 The Supreme Court ruled that the Governor must be kept away from controversies
such as disqualifying members of the Legislative Assembly. Therefore, the
Constitution has provisions such as Article 192(2), which mandates the Governor
to seek the opinion of the Election Commission and act accordingly. Similarly,
Article 103(2) of the Constitution contains a similar provision for Members of
Parliament.
 The court declared that even though the Governor was the primary actor, the
Union Council of Ministers should have scrutinized the Governor’s report before
hastily accepting it as true. The court stated that the Governor had misguided the
 Council of Ministers, resulting in the Council’s advice to the President and the
issuance of the challenged Proclamation.
 The court deemed the Governor’s actions as insincere and claimed that the
underlying motive was to prevent a political party from attempting to form the
Government.

Artice 31(a), 31(b), 31(c)

9th schedule – immunity from judicial review.

Supreme Court of India

Minerva Mills Ltd. & Ors vs Union Of India & Ors on 31 July, 1980
Equivalent citations: 1980 AIR 1789, 1981 SCR (1) 206
Minerva Mills Ltd. and Ors. v. Union Of India and Ors. is a key Supreme Court of India
case that applied and evolved the Constitution of India's fundamental structure concept.
The Supreme Court made important clarifications on the application of the fundamental
structure concept in the Minerva Mills case. The court found that the constitution limits
parliament’s ability to modify the constitution. As a result, the parliament cannot use its
limited authority to grant itself infinite authority. Furthermore, a majority of the court
decided that parliament’s ability to alter is not the same as its power to destroy.
THE CASE’S FACTS
The Sick Textiles Undertakings (Nationalization) Act, 1974, was passed by Parliament. It
was established to fulfil a goal of wide public interest, namely, the reconstruction of the
textile company’s poor assets and the development of a feasible solution.
Its goal was to ensure that goods were available at reasonable costs so that the general
population would not be harmed. Minerva Mills Ltd. was a textiles firm with a limited
liability corporation. It was in the silk clothing manufacturing industry.
Under Section 15 of the Industries (Development Regulation) Act, 1951, the Central
Government constituted a committee to investigate the functioning mechanism of
Minerva Mills Ltd. in 1970.
The petitioner raised various points in his pleadings. It contested the central
government’s order to seize management and control of Minerva Mills Ltd.; it contested
the constitutionality of the 39th Amendment Act, which introduced the Sick Textile
Undertaking (Nationalization) Act under Entry 105 of the 9th Schedule; and, finally, it
contested Article 31 B of the Constitution. All of these claims, however, are addressed in
a separate set of petitions. The current petition addresses only a few specific topics.
THE CASE’S ISSUE
The following are the case’s significant issues:
Is the Constitution (42nd Amendment) Act of 1976, Sections 4 and 5, constitutional?
Is Article 368’s clauses 4 and 5 constitutionally valid?
DECISION
A majority of the judges, including Chief Justice Y.V. Chandrachud, Justice N. L.
Untwalia, Justice A. C. Gupta, and Justice P. S. Kailasam, handed down the decision.
Justice P. N. Bhagwati wrote the dissenting opinion.
1) THE EFFECTIVENESS OF THE 42ND AMENDMENT ACT OF 1976 (ARTICLE 31C)
Article 31 C was amended by Section 4 of the 42nd Amendment Act. Article 31 C was
amended in such a way that the Directive Principle of State Policy was given supreme
power. Article 39 (b) and (c) of the Constitution were amended to safeguard the statute
from any form of review or challenge under Article 14 or 19.
2) ARTICLE 368’S VALIDITY
CLAUSE 5 OF ARTICLE 368 a) (BASIC STRUCTURE DOCTRINE)
When looking at clause 5 of Article 368, the court emphasised that any provision that
provides an organ of the state infinite authority is unconstitutional. The ability to alter
that is with Parliament is restricted, according to it.
Minerva Mills case 1980
Judgment:
The Supreme Court ruled that Parliament has the authority to change the Constitution
without jeopardising the fundamental structural concept.
Fundamental rights can be amended by Parliament as long as they are consistent with
the basic structural theory.
The section that limited Judicial Review was knocked down by the Court.
The 42nd Amendment Act of 1976 was passed in response to this decision, which stated
that all or any Directive Principles of State Policy would take precedence over the
Fundamental Rights of Articles 14 and 19.
The case’s facts
Minerva Mills is a textile mill in Bengaluru’s vicinity. In 1970, the Central Government
created a committee under Section 15 of the Industries Development Act, 1951, in
response to a significant drop in Minerva mill production.
In October 1971, the committee delivered its findings to the federal government. The
National Textile Corporation Limited, established under the Industries Development Act
of 1951, was given permission by the Central Government to take over the administration
of the Minerva mills.

salus populi suprema lex esto (Latin: "The health [welfare, good, salvation, felicity] of
the people should be the supreme law"; "Let the good [or safety] of the people be the
supreme [or highest] law"; or "The welfare of the people shall be the supreme law") is a
maxim or principle found in Cicero's De Legibus.
There must be harmony between fundamental rights and Directive principles of state
policy.

Supreme Court of India

I.R. Coelho (Dead) By Lrs vs State Of Tamil Nadu & Ors on 11 January, 2007
The IR Coelho Case marks the historical judgment of IR Coelho v. the State of Tamilnadu.
Popularly known as the 9th schedule case, the nine judges’ bench was supervised by the
tenth Justice of India, Mr. Y.K.Sabharwal published a unanimous judgment on 11th
January 2007. In this letter, he endorsed the judiciary’s authority to review or revise any
law that destroys the basic structure of the constitution in fundamental rights, even
though they are put in the 9th Schedule of the Indian Constitution.
 It established the value of judicial review and the judiciary’s authority in this area.
 Article 31-B of the Indian Constitution was extensively discussed in the case,
along with the 9th Schedule of the Indian Constitution.
  Through this lawsuit, the legislature’s attempt to shield measures that
violate fundamental rights from judicial review was defeated.
 Kesavananda Bharati v. State of Kerala (1973) was cited as a precedent in the
ruling. Finally, the judiciary’s authority as the last arbiter of legal interpretation
was restored.
9th Schedule of the Indian Constitution
The Ninth Schedule of the Indian Constitution contains a list of central and state laws
that the courts cannot challenge. The government introduced articles 31A &31B to
safeguard the laws and regulations that dealt with agricultural reform and obliterate
the Zamindari system.
 The First Amendment was ratified in 1951 when the Ninth Schedule was added to
the Constitution.
 A list of federal and state legislation that is immune from judicial review is
included in it. The Indian Constitution’s Article 31-B is explained in great length in
the Ninth Schedule.
 Originally, it had 13 laws that focused on land reforms, but it now has 284 laws
that encompass things like mines, trade, and reservations.
The 9th Schedule of the Indian Constitution effectively tied the judiciary’s hands. By
merely including it in the Ninth Schedule, which is outside the purview of judicial review,
a statute may be shielded from being deemed invalid by the judiciary even if it infringes
basic rights. The Ninth Schedule’s retroactive character is a crucial component. If a statute is
added to the Ninth Schedule of the Indian Constitution after being ruled unconstitutional,
it will be regarded as legal and a component of the schedule as it takes effect.
In the IR Coelho Case, Justices Altamas Kabir, B.P. Singh, S.H. Kapadia, C.K. Thakker,
and Justice Ashok Bhan were on the bench, along with Justices Y.K. Sabharwal, D.K.
Jain, Arijit Pasayat, P.K. Balasubramanyan, and S.H. Kapadia.
The court’s judgment in the IR Coelho Case stated that:
 The Indian Constitution’s fundamental design is its core. Even though it is in the
Ninth Schedule, any legislation amendment that conflicts with Part 3 of the Indian
Constitution will be overturned by the judicial review process.
 Each proposed amendment to the Constitution must be evaluated on its own
merits. The effect and impact criteria should be considered when establishing if a
law harms or obliterates the fundamental structure. Using the effect and impact
test, the legitimacy of an amendment is determined by its effects on the
Constitution as a whole rather than by the specific section of the Constitution that
is being changed.
 All Constitutional modifications enacted after April 24, 1973 must pass a test to
see if they adhere to the fundamental principles of the Constitution, which are
stated in Article 21, read in conjunction with Articles 14 and 19.
 Any law cannot be exempt from judicial examination because it is a part of the
fundamental framework.
 This court has already upheld the Ninth Schedule’s validity. Hence it will not be
subject to challenges based on the rules stated in the ruling. A statute that
violates Article 21 read with Articles 19 and 14, as well as the guiding principles
thereunder, and that was added to the Ninth Schedule after April 24, 1973, can be
contested.
The IR Coelho Case has genuinely strengthened the hold or the power of the basic
structure doctrine in the Indian Constitution, emphasizing the consequences of
amendments, if violative, should certainly be struck down. For instance, striking down
NJAC (99th constitutional amendment terming it unconstitutional).
Judicial review is the most sensible and impacting technique to deal with the laws
infringing and relating to fundamental rights.

De Lolme, a French philosopher said – British Parliament is all powerful, it can make and
unmake anything except making a man, a woman and making a woman, a man.

The definition of parliamentary sovereignty is that the parliamentary body of a

government cannot be curbed by another branch of government. Under this concept, the
parliament can also reprove and control the other branches of government. This is
especially important in a constitutional monarchy, as parliamentary sovereignty restricts
the actions of monarchs through a constitution. It also enables parliaments to make laws
and ensure that they are followed. Many monarchies have parliamentary sovereignty, but
this explanation of parliamentary sovereignty and its application will focus on the
evolution of the idea in the United Kingdom.

Parliamentary sovereignty means that parliament is superior to the executive and

judicial branches of government, and can therefore enact or repeal any law it
chooses. It is a cornerstone of the UK constitutional system and also applies in some
parts of the Commonwealth such as Canada. The idea of parliamentary sovereignty is
neatly summed up by 19th century constitutional theorist A V Dicey:
“Parliament…has, under the English constitution, the right to make or unmake any law
whatsoever; and, further, …no person or body is recognised by the law of England as
having the right to override or set aside the legislation of Parliament.”
In theory, the UK parliament could enact legislation which oppresses 95% of the
population if it chose to do so, however the political consequences of such a measure
mean that in practice this is very unlikely to happen.

The lord chancellor is a member of the Cabinet and is, by law, responsible for the
efficient functioning and independence of the courts. In 2005, there were a number of
changes to the legal system and to the office of the lord chancellor. Formerly, the lord
chancellor was also the presiding officer of the House of Lords, the head of the judiciary
of England and Wales and the presiding judge of the Chancery Division of the High Court
of Justice. The Constitutional Reform Act 2005 transferred these roles to the lord
speaker, the lord chief justice and the chancellor of the High Court respectively.

Sir Ivor Jennings, chief drafter of Ceylon

Read the book ‘The constitution defaced and defiled’ by Nani Palkhivala
R & R Act
Kacha Devayani story – related to IP Rights and infringement.
Once there was a war between the gods and the demons. The king of the demons was
Vrishaparva and he had a daughter named Sharmistha. The demons were a force to
reckon with as their guru, Shukracharya, knew the art of reviving the dead. With his art of
Sanjeevani, he brought back many dead demons to life in the battle.
Indra, the king of the deities, was worried about this. He went to Guru Brihaspati with his
concern and informed him about his worry. The Guru advised him that one of them
should go to Shukracharya and learn from him the knowledge of bringing the dead to life.
Indra doubted that Shukracharya would teach them the knowledge, to which the Guru
said that for a Guru, knowledge is equal to friends and foes.
The assembly of the gods was called and a proposal was made in the assembly about
who should go to learn the vidya from Shukracharya. No one was ready to go for fear of
the invincible demons. At last, Kacha, the son of Guru Vrihaspati, agreed to do the task.
He reached Guru Shukracharya and worshiped at his feet. Seeing the young man, the
teacher asked "Who are you and why have you come here?"
Introducing himself, Kacha said, "I am Kacha, the son of Guru Brihaspati." I have come
here to learn Mrit Sanjivani Vidya from you."
Shukracharya laughingly said how can I teach the coveted knowledge to a person from
the enemy side. To this Kacha said that for a Guru, both enemies and friends are equal,
which means there is no enemy for him.
Shukracharya said with a laugh, "You are very clever. I am ready to teach you the Vidya
but I have some conditions, and only after fulfilling them, I can teach the Vidya." The
Guru asked Kacha to graze his cows while being hungry and thirsty. If he succeeded in
the task, only then the Guru would teach him the skill.
Kacha said yes to this and started grazing their cows. Kacha soon became a part of the
gurukul and as time went by, Shukracharya's daughter Devyani fell in love with Kacha.
However soon word spread in the enemy camp that Kacha is learning the art of reviving
the dead from Shukracharya. They decided to get Kacha killed before he could learn the
knowledge. One day, Kacha went to the forest for cattle grazing. As he was out, the spies
of the demons got Kacha killed. In the evening, the cows returned home but Kacha did
not come. Worriedhaving waited for some time, Devyani informed her father that the
cows had returned but Kacha had not come.
Shukracharya saw with his yogaval (divine powers) and informed his daughter that
Rakshasau had killed Kacha. Heartbroken, Devyani pleaded with her father to revive
Kacha. At the behest of Devayani, Shukracharya went to the forest and resurrected
Kacha.
A few days passed and Kacha had gone to his regular business of cattle rearing. This
time again, the cows returned but Kacha didn’t. Devyani got upset and went to her father
and said, "Father, Kacha has not come again today." Shukracharya said that today Kacha
has been killed and burnt. Devyani pleaded with her father, "You can make him alive even
by mixing a bone." He said yes. And again he revived Kacha and brought him home.
Everything was going well. Realizing that Shukracharya would always bring Kacha back
from the dead, the asuras began to plot a way to kill Kacha that would make
Shukracharya hesitate before bringing him back. This time Brishaparva killed Kacha and
set him ablaze and made powder of his bones and mixed it with wine and gave it to
Shukracharya.
When Kacha did not come in the evening, Devyani went to her father and said, "Father,
today Kacha did not come." When the Guru saw with the power of yoga, he said,
"Daughter, today a disaster has happened."
When the daughter asked what happened, he said, "Today I have a stomach ache. I have
been tricked and Kacha is in my stomach." Shukracharya told Devayani that if he were to
revive Kacha, only one of them would survive as Kacha would tear through his stomach
when he came back to life. He passed on the secrets of the Sanjivani Mantra to the yet-to-
be-revived Kacha, and after Kacha emerged from his guru’s stomach, he used the
secrets he had learned to revive Shukracharya back.
Shukracharya was pleased with this noble act of Kacha and blessed him. When Kacha
started leaving after learning Vidya, Devyani blocked his way. Kacha asked what she was
doing. Devyani replied, "Take me along with you. I love you and want to marry you."
'How can I marry you, you are my teacher's daughter. Because of my resurrection, you
became my sister and how can I marry my sister? So leave my way. And let me go."
Kacha categorically refused that it could ever happen. Devyani got angry and said, "I will
not let you go like this, you are leaving a woman in agony, so I curse you that this
knowledge of yours will be useful only once. After that, you will forget it."
Kacha got very angry after hearing this and said, "Devyani, you have done very wrong by
being blind in love, now I curse you with sorrow that you will not get married in any
Brahmin clan because you have broken all the rules."
And so a sad Kacha left for the heavens to use his knowledge for the benefit of his folks
while the heartbroken Devyani stayed back at his father's hermitage. This is how the one-
sided love story of Kacha and Devyani ended.

THE HON'BLE SRI JUSTICE G.V.SEETHAPATHY

Born on 22-11-1950 at Nellore. Graduated from Andhra Loyola College, Vijayawada and
studied Law in Osmania University, Hyderabad.
Also worked as Registrar (Judicial), Registrar (Vigilance) and Registrar (Administration),
High Court of Andhra Pradesh from May 1997 to December 2002. Worked as Secretary,
Law Department, Government of Andhra Pradesh.
Elevated to the Bench as Additional Judge, High Court of Andhra Pradesh and was
sworn in on 24-05-2006. Appointed as permanent Judge, High Court of Andhra Pradesh
w.e.f. 19-12-2007 F.N. Retired on attaining the age of superannuation on the afternoon of
21-11-2012.

Class on 22/2/24 begins at 18.40 Hrs and finishes by 20.00 Hrs.

Historical Evolution of Patent System

The modern patent system dates back to the year 1421 when Florence in Italy, granted
the first recorded patent to Filippo Brunelleschi, for the design and use of a ship, the
Badalone ("sea-going monster"). The Badalone - intended to ferry supplies up the Arno
River to the city for the building of the Florentine cathedral dome, which Brunelleschi
was the designer of. Badalone sank during delivery of a load of white marble intended
for use in constructing the dome. The Venetian Senate passed the first patent law in
1474, granting limited duration monopoly for original devices. This law embodied the
principles of patent protection as we know them today.
In England in 1449, King Henry IV granted that country's first patent for stained glass
manufacturing. In England during this time, a patent was a government-granted
monopoly, so could be as much a right to manufacture or trade as well as the right to
deny others to do so. The present day Patents were called the Monopolies in England
and other countries.

Diamond v. Chakrabarty, 447 U.S. 303 (1980) - unctad

was a United States Supreme Court case dealing with whether living organisms can
be patented. Writing for a five-justice majority, Chief Justice Warren E. Burger held that
human-made bacteria could be patented under the patent laws of the United States
because such an invention constituted a "manufacture" or "composition of matter".
Justice William J. Brennan Jr., along with Justices Byron White, Thurgood Marshall,
and Lewis F. Powell Jr., dissented from the Court's ruling, arguing that because
Congress had not expressly authorized the patenting of biological organisms, the Court
should not extend patent law to cover them.
In the decades since the Court's ruling, the case has been recognized as a landmark case
for U.S. patent law, with industry and legal commentators identifying it as a turning point
for the biotechnology industry.
Genetic engineer Ananda Mohan Chakrabarty, working for General Electric, developed
a bacterium (derived from the Pseudomonas genus and now known as Pseudomonas
putida) capable of breaking down crude oil, which he proposed to use in treating oil
spills. General Electric filed a patent application for the bacterium in the United States
listing Chakrabarty as the inventor, but the application was rejected by a patent
examiner, because under patent law at that time, living things were generally understood
to not be patentable subject matter under 35 U.S.C. § 101.
General Electric and Chakrabarty appealed the examiner's decision to the Board of
Patent Appeals and Interferences. The Board however agreed with the examiner that the
bacterium was not patentable under current law. General Electric and Chakrabarty
thereafter appealed the Board's decision to the United States Court of Customs and
Patent Appeals. This time, General Electric and Chakrabarty prevailed with the court
overturning the examiner's decision and holding "the fact that micro-organisms are alive
is without legal significance for purposes of the patent law." The Patent Office, in the
name of its Commissioner, Sidney A. Diamond, appealed this decision to the Supreme
Court.
The Supreme Court heard oral argument from the parties on March 17, 1980 and issued
its decision on June 16, 1980. In a 5–4 ruling, the Court ruled in favor of Chakrabarty and
affirmed the decision of the Court of Customs and Patent Appeals. under the Court's
precedents, "laws of nature, physical phenomena, and abstract ideas" were not
patentable. However, the Court held that these precedents were inapplicable to
Chakrabarty's case as he was not trying to patent a "natural phenomena" but rather a
human-made bacterium that he, himself, had developed.
Patent protection is available for a micro-organism that is artificially constructed rather
than naturally occurring.

Patent for Chimera

In 1997, with the support of the social critic Jeremy Rifkin of the Foundation on
Economic Trends in Washington, D.C., Professor Stuart A. Newman undertook to apply
for a patent on embryos and fullterm creatures containing human along with nonhuman
cells – so-called “chimeras” that he had no intention of producing... The public had only
just learned (to widespread surprise) about the cloning of Dolly the sheep and the
announcement of the production of versatile and controversial embryonic stem (ES) cells
from human embryos was still a year in the future. In those innocent days less than a
decade ago the prospect of fabricating creatures that were part-human and part-beast
would have appeared to most people like something out of Greek mythology or the
pages of a fantasy novel. Indeed, it had been a century since the British writer H.G. Wells
had published in 1896, the science fiction novel “The Island of Dr. Moreau”, the story of
a visionary scientist whose well-motivated experiments along these lines led to death
and destruction. The classic work focuses on a mad scientist’s experiments
involving vivisection (Vivisection, operation on a living animal for experimental rather
than healing purposes; more broadly, all experimentation on live animals.) to address
such issues as evolution and ethics.

In the age of rapidly advancing artificial intelligence (AI) technologies, there’s often a
concern that humans may become obsolete, replaced by intelligent machines. However,
humans remain as vital as ever when overseeing and managing AI systems. Integrating
AI technologies with human expertise and oversight is crucial to ensure ethical decision-
making, maintain accountability and mitigate potential risks. The oversight of usage of
AI vests in humans.

Ongole cattle are an indigenous cattle breed that originates from Prakasam District in the
state of Andhra Pradesh in India. The breed derives its name from the place the breed
originates from, Ongole. The Ongole breed of cattle, Bos indicus, is in great demand as it
is said to possess resistance to both foot and mouth disease and mad cow
disease. These cattle are commonly used in bull fights in Mexico and some parts of East
Africa due to their strength and aggressiveness. They also participate in traditional bull
fights in Andhra Pradesh and Tamil Nadu. Cattle breeders use the fighting ability of the
bulls to choose the right stock for breeding in terms of purity and strength. The mascot
of the 2002 National Games of India was Veera, an Ongole Bull. The breed's breeding
tract spans across Andhra Pradesh's East Godavari, Guntur, Ongole, Nellore, and
Kurnool districts, as well as the coast from Nellore to Vizianagram. Hardiness, disease
resistance, and the ability to thrive on little food are all traits associated with the breed.
Ongole cattle were widely exported to the United States for beef production, Brazil for
beef and milk production, Sri Lanka, Fiji, and Jamaica for draught, Australia for heat
tolerance and beef, and Switzerland for disease resistance.
The Brazilian government has sought permission from the Andhra Pradesh Biodiversity
Board to take 5,000 embryos of the famous Ongole breed of cattle, also known as the
“Brahman”. Brazil already has 2.5 crore cows of this breed but wants to breed more
through surrogacy and has offered to pay $500 per embryo. The request is pending with
the Ministry of Animal Husbandry of Andhra Pradesh.

“Brazil, which has smuggled Ongole bulls and cows from India since 1960s, has been
selling beef to almost 26 countries. The Ongole cows also give a record 45 litres of milk
per day, making them the most productive cattle in the world,” former chairman of the AP
Biodiversity Board Dr Hampaiah said. The hardy and disease-resistant Ongole breed
saved the South American country when the “mad cow disease” wiped out all the other
American and European breeds. However, sources said the Andhra Pradesh government
is concerned about the illegal trade of the Ongole bull in the international market through
the annual cattle competitions in different parts of the country. The government has
noted that during such cattle competitions in Nandyal, Emmiganur and Tadipatri, agents
from Ahmadabad have offered up to Rs 40 lakh for the winning Ongole bull. “These
competitions are the gateways for such illegal cross-border cattle trade,” said an official
from the Animal Husbandry department. As a result of the illegal transport of embryos
and semen to Brazil and other countries, the real Ongole breed has disappeared from
India. Most of the Ongole cattle here are cross breed of the Holstein Friesian or Jersey
breeds because of flawed artificial insemination policies in the name of increasing milk
production and the belief that Indian breeds are aggressive and the foreign ones are
docile. “In recent months, a farmer from Kurnool tried to buy a pure Ongole from Brazil
and they demanded Rs 7 crore per bull,” Hampaiah said, stressing the need to further
develop the breed which is in demand world over. Ongole (also known as “Nellore”)
cows are beautiful, majestic animals with light grey hair coat, upward pointing horns and
a shorter ear compared to the “American Brahman”. According to Mullapudi Narendra
Nath, the Secretary of the Ongole Cattle Improvement Society, the Ongoles are no longer
restricted to the six districts of AP but are now an international breed, spread across the
Americas, a few countries in Africa, the Far East and Australia.
Punganur is a dwarf dual purpose cattle breed and mainly confined to Chittoor district of
Andhra Pradesh. This breed was developed by Rulers of Punganur area and hence
named after the area. The breeding tract is confined to the taluks of Punganur and
adjacent taluks of Vayalpad, Madnapalli and Palamaner in Chittoor district of Andhra
Pradesh. It is mainly maintained at Livestock Research Station, Palamaner, Chittoor
district, Andhra Pradesh, attached to Shri Venkateswara Veterinary University, Tirupati.
It is white, grey or light brown to dark brown or red in colour. Sometimes, animals with
white colour mixed with red, brown or black coloured patches are also seen. Well-noticed
by its short stature, the breed has a broad forehead and short horns. The horns are
crescent shaped and often loose curving backward and forward in males and lateral and
forward in females. Known for draught resistance, it can thrive well on dry fodder
feeding. The bullocks are used for agricultural operation in light soil as well as for driving
carts for transportation and special races. Average milk yield of the breed is 546 Kg per
lactation (ranging from 194 to 1100 Kg) with 5% average milk fat. The Punganur breed's
milk has a high fat content. While cow milk normally has a fat content of 3 to 3.5 per cent,
the Punganur breed's milk contains 8 per cent.

Patents grant the exclusive right to make, use, and sell an invention, and an inventor can
gain this monopoly-like right only by filing a patent application. In addition, even before a
patent is granted, a patent application gives you the right to claim patent pending status,
which is useful in marketing an invention and selling your product or company to
investors. In India, After filing a patent, within 12 months, details of patent must be
provided.

Gutenburg
William Caxton

Sustained effort to protect IP after Industrial Revolution

 Territoriality – protection of a country.
 Bi-lateral/Multilateral protection.
 International protection.
 Global protection. – 1995 onwards

Patents Act 1790 of USA

Promotion and protection of useful arts

 Paris convention
 Berne convention
 Madrid agreement
1883 (Paris Convention) – 1994 (TRIPS)
Trade Aspects of Intellectual Property Rights Systems
Article 3
National Treatment
1. Each Member shall accord to the nationals of other Members treatment no less
favourable than that it accords to its own nationals with regard to the protection (3) of
intellectual property, subject to the exceptions already provided in, respectively, the
Paris Convention (1967), the Berne Convention (1971), the Rome Convention or the
Treaty on Intellectual Property in Respect of Integrated Circuits. In respect of performers,
producers of phonograms and broadcasting organizations, this obligation only applies in
respect of the rights provided under this Agreement. Any Member availing itself of the
possibilities provided in Article 6 of the Berne Convention (1971) or paragraph 1(b) of
Article 16 of the Rome Convention shall make a notification as foreseen in those
provisions to the Council for TRIPS.
2. Members may avail themselves of the exceptions permitted under paragraph 1 in
relation to judicial and administrative procedures, including the designation of an
address for service or the appointment of an agent within the jurisdiction of a Member,
only where such exceptions are necessary to secure compliance with laws and
regulations which are not inconsistent with the provisions of this Agreement and where
such practices are not applied in a manner which would constitute a disguised
restriction on trade.
Article 4
Most-Favoured-Nation Treatment
With regard to the protection of intellectual property, any advantage, favour, privilege or
immunity granted by a Member to the nationals of any other country shall be accorded
immediately and unconditionally to the nationals of all other Members. Exempted from
this obligation are any advantage, favour, privilege or immunity accorded by a Member:
(a) deriving from international agreements on judicial assistance or law enforcement of a
general nature and not particularly confined to the protection of intellectual property;
(b) granted in accordance with the provisions of the Berne Convention (1971) or the
Rome Convention authorizing that the treatment accorded be a function not of national
treatment but of the treatment accorded in another country;
(c) in respect of the rights of performers, producers of phonograms and broadcasting
organizations not provided under this Agreement;
(d) deriving from international agreements related to the protection of intellectual
property which entered into force prior to the entry into force of the WTO Agreement,
provided that such agreements are notified to the Council for TRIPS and do not
constitute an arbitrary or unjustifiable discrimination against nationals of other Members.
Article 5
Multilateral Agreements on Acquisition or Maintenance of Protection
The obligations under Articles 3 and 4 do not apply to procedures provided in
multilateral agreements concluded under the auspices of WIPO relating to the acquisition
or maintenance of intellectual property rights.

What is Special 301 Report/watch list ?

U.S. Priority Watch List for IPR
The Special 301 Report is prepared annually by the Office of the United States Trade
Representative (USTR) that identifies trade barriers to United States companies and
products due to the intellectual property laws, such
as copyright, patents and trademarks, in other countries.
The “Special 301” process is a unilateral step taken by the US under their Trade Act,
1974 to put pressure on countries to enhance Intellectual Property Rights (IPR)
protection beyond the TRIPS pact. It is an extra territorial application of the domestic law
of a country and is not reasonable under the overall WTO regime. India has a sound
legislative, administrative and judicial framework to protect IPRs which meets its
obligations under the Trade Related Intellectual Property Rights (TRIPS) Agreement while
making use of the flexibilities provided in the international regime to address its
developmental concerns. USTR creates an annual list of countries, known as the Special
301 list. The USTR also groups these countries in three categories. The most egregious
violators are designated as Priority Foreign Countries (PFC), serious offenders are listed
on the Priority Watch List (PWL), and less serious offenders in the Watch List (WL).
India continues to be on the ‘Priority Watch List’ of the United States Trade
Representative (USTR) for lack of adequate Intellectual Property (IP) rights protection
and enforcement, according to the USTRs Annual Special 301 Report.
Key Points - Concerns:
 Copyright laws not incentivising the creation and commercialisation of content.
 An outdated trade secrets framework.
 India restricted the transparency of information provided on state-issued
pharmaceutical manufacturing licenses.
 India continues to apply restrictive patentability criteria to reject pharmaceutical
patents.
 Absence of an effective system for protecting against the unfair means to obtain
marketing approval for pharmaceuticals and certain agricultural chemical
products.
 India maintains extremely high customs duties directed to IP-intensive products
such as medical devices, pharmaceuticals, Information and Communications
Technology (ICT) products, solar energy equipment, and capital goods.
 India was ranked among the top five source countries for fake goods by
the Organization of Economic Development and Cooperation (OECD) in 2019.
 The government’s 2019 draft Copyright Amendment Rules, if implemented, would
have “severe” consequences for Internet-content rights holders as the proposed
rules broadened the scope of compulsory licensing from radio and television
broadcasting to online broadcasting.
 Trademarks: Trademark counterfeiting levels were “problematic” and there were
“excessive delays” in obtaining trademarks due to a lack of examination quality.
It urged India to join the Singapore Treaty on the Law of Trademarks, a treaty that
harmonises trademark registration.


Raising the bar

Stricter standards of IPR protection
Full Belly thesis

Karel Vasak – classification of 3 generations of human rights

Based on liberty - First-generation human rights, sometimes called "blue rights", deal
essentially with liberty and participation in political life. They are fundamentally civil and
political in nature: They serve negatively to protect the individual from excesses of the
state. First-generation rights include, among other things, the right to life, equality before
the law, freedom of speech, freedom of religion, property rights, the right to a fair trial,
and voting rights.
Based on equality - Second-generation human rights are related to equality and began to
be recognized by governments after World War II. They are fundamentally economic,
social, and cultural in nature.
Based on Fraternity (common brotherhood) - Third-generation human rights are those
rights that go beyond the mere civil and social, as expressed in many progressive
documents of international law, including the 1972 Stockholm Declaration of the United
Nations Conference on the Human Environment, the 1992 Rio Declaration on
Environment and Development, and other pieces of generally aspirational "soft law".
Also known as Solidarity human rights, they are rights that try to go beyond the
framework of individual rights to focus on collective concepts, such as community or
people.

TRIPS contains some transitional provisions

The TRIPS Agreement gives all WTO Members transitional periods so that they can meet
their obligations under it. The transitional periods, which depend on the level of
development of the country concerned, are contained in Articles 65 and 66.
Developed country Members have had to comply with all of the provisions of the TRIPS
Agreement since 1 January 1996. However, all Members, even those availing themselves
of the longer transitional periods, have had to comply with the national treatment and
MFN treatment obligation as of 1 January 1996.
For developing countries, the general transitional period was five years, i.e. until
1 January 2000. In addition, the Agreement allowed countries in transition from a
centrally-planned into a market economy to delay application until 2000, if they met
certain conditions.
The TRIPS Agreement provided special transition rules for a situation where a
developing country did not provide product patent protection in a given area of
technology on 1 January 2000. This provision was especially relevant to pharmaceutical
and agricultural chemical inventions. According to Article 65.4, a developing country
could delay the application of the TRIPS obligations on product patents to such areas of
technology until 1 January 2005.The “non-backsliding” clause in Article 65.5 forbid
developed and developing country members and members transitioning to a market
economy availing themselves of transitional periods from reducing the level of
protection of intellectual property in a way which would result in a lesser degree of
consistency with the requirements of the Agreement.
For those countries on the United Nations list of least-developed countries, the
transitional period was initially eleven years with the possibility of extension upon duly
motivated request. It has been extended three times, and is now set to run until 1 July
2034, or until a member ceases to be an LDC, whichever comes first.
In the situation where patent protection is not provided for pharmaceutical and
agricultural chemical products commensurate with the TRIPS provisions on scope of
patentable subject matter as of 1 January 1995, Articles 70.8 and 70.9 provide for
additional transitional arrangements.