Assignment 1.docx

Assignment 1 Answer any five of following1. Define the terms:  Patent infringement  Patent Opposition  Product claims  Divisional application Ans- Patent infringement Patent infringement means that a person makes, sells, imports, or uses someone else's patented idea or invention. This is easy, since patents are public documents and all the information is readily available. But it is illegal. If the patent holder sues, the court could direct the defendant to stop the illegal activity. The patent holder could also receive monetary damages for the unauthorized use of the patent. Patented ideas or designs usually have many parts, so a patent infringement could result in several claims. Types of Patent InfringementDirect Infringement Indirect Infringement Induced Infringement Contributory Infringement Literal Infringement Willful Infringement Patent OppositionAn opposition proceeding is an administrative process available under the patent and trademark law of many jurisdictions which allows third parties to formally challenge the validity of a pending patent application ("pre-grant opposition"), of a granted patent ("post-grant opposition"), or of a trademark. Pre-Grant Oppositions Any third party (Opponent) may file a pre-grant opposition during the pendency of a patent application. Such an opposition may be filed at any time after publication of the application but prior to grant provided that a request for examination has been filed. The grounds available for a pre-grant opposition are provided in Section 25(1) of the Indian Patents Act, 1970 (Act) and Rule 55 of the Indian Patent Rules, 2003 (Rules).

Post-Grant Oppositions

A post-grant opposition can be filed by any interested person by serving a Notice of Opposition (Notice) on the Controller. According to the Act, any “person” refers to “any person engaged in, or in promoting, research in the same field as that to which the invention relates”. The time period for filing a post-grant opposition is twelve months from the date of publication of grant of a patent. Product claims"Product-claim is to assert something about any product or to state something as true fact about that product. Claims are text, names, trade marks, pictures and figurative or other signs that convey explicitly or implicitly product characteristics or functions in the labelling, making available on the market and advertising of products. Divisional application – A divisional patent application (sometimes referred to as a divisional application or simply a divisional) is a type of patent application which contains matter from a previously filed application (the so-called parent application). While a divisional application is filed later than the parent application, it may retain its parent's filing date, and will generally claim the same priority. Divisional applications are generally used in cases where the parent application may lack unity of invention; that is, the parent application describes more than one invention and the applicant is required to split the parent into one or more divisional applications each claiming only a single invention. The practice and procedure of filing a divisional patent application varies from jurisdiction to jurisdiction. In most countries, the filing of divisional applications is possible at least as long as the parent patent applications are pending. 2. Enumerate the differences between 'dependent claim' and 'independent claim'. Give examples. Ans- An independent claim stands on its own. A dependent claim makes reference to another claim, so its meaning and scope does not stand on its own. The scope of dependent claim is thus always narrower than that of an independent claim. The independent claims together define the broadest scope of the patent. Independent claims are the broadest claims in the patent application. They start with the indefinite article or word “A”. The dependent claims come after the independent claim and start with the definite article “The” and refer back to the independent claim or one of the dependent claims and further narrow the invention being claimed. The independent claims should also be able to stand on their own and be an invention as written. All elements recited in the claim should be interrelated All applications will contain one or more "independent" claims directed to the essential features of the invention. Any such claim may be followed by one or more claims concerning "particular embodiments" of that invention. It is evident that any claim relating to a particular embodiment must effectively include also the essential features of the invention, and hence must include all the features of at least one independent claim. The term "particular embodiment" should be construed broadly as meaning any more specific disclosure of the invention than that set out in the independent claim or claims

Any claim which includes all the features of any other claim is termed a "dependent claim". Such a claim must contain, if possible at the beginning, a reference to the other claim, all features of which it includes ( for claims in different categories). Since a dependent claim does not by itself define all the characterizing features of the subject-matter which it claims, expressions such as "characterised in that" or "characterised by" are not necessary in such a claim but are nevertheless permissible. A claim defining further particulars of an invention may include all the features of another dependent claim and should then refer back to that claim. Also, in some cases, a dependent claim may define a particular feature or features which may appropriately be added to more than one previous claim (independent or dependent). It follows that there are several possibilities: a dependent claim may refer back to one or more independent claims, to one or more dependent claims, or to both independent and dependent claims. It sometimes occurs that an independent claim refers explicitly to alternative solutions and that these alternatives are also claimed separately in dependent claims. Such claims may seem redundant, but may be important for the applicant in some national procedures if he wishes to restrict his claims. The examiner should object to such claims only if they detract from the clarity of the claims as a whole. A dependent claim referring explicitly to independent claims in two categories as alternatives cannot be objected to on this ground alone. For example, if the invention relates to both a composition and a use of that composition, it is possible for a claim specifying further features of the composition to be made dependent on both the independent claim for the composition and the independent claim for its use.

Ques-3. List out the grounds of opposition of a trademark.? Explain with suitable case laws. Ans- Filing and prosecution of trade mark opposition, is one of the most significant remedies available with the brand owner for protecting his or her trade mark. This is one of the earliest opportunity given to the public as a whole, including but not limited to an affected party whose trade mark rights may be hindered/ diluted, by an unscrupulous applicant who has made an attempt for registration of a similar or deceptively similar trade mark and sought statutory protection by hoodwinking the original prior registered/ unregistered trade mark owner as well as the office of the Registrar of Trade Marks. An opposition can be filed by any person (Opponent), who may be from India or outside India, which is a kind of protest by the Opponent, opposing the application for registration of a trade mark. If a trade mark application which is violating the intellectual property rights of any person or entity is not opposed within the stipulated period of limitation, the same proceeds for registration. Once a trade mark is registered, it acquires a statutory recognition, and its subsequent cancellation becomes an onerous and cumbersome exercise in the juxtaposition of trade mark opposition. Once a trade marks gets registered, getting protection from the court of law also becomes complicated, because at times the courts may not be inclined to disturb a trade mark which has been registered by the Registrar of Trade Marks, who is considered to be a specialist authority in trade mark matters. In case, a person feels that the registration is likely to affect his intellectual property rights associated with his trade mark, it should always be

preferred that opposition is properly filed within the period of limitation and prosecuted diligently. If, the opportunity of opposing a trade mark is lost, it is lost forever and the damage caused may be irreparable. The basic intent behind publishing the trade mark in the Trade Marks Journal is to give notice to the public at large about the trade mark which is being proposed to be registered, to enable any interested party to oppose the registration. It is important to note that registration of a trade mark can be opposed, only after the trade mark application is advertised in the Trade Marks Journal, which is a kind of official gazette For filing a notice of opposition, the period of limitation of 4 months from the date of the advertisement or re-advertisement of the trade mark in the Trade Marks Journal is extremely important, as this time is non-extendable for any reason, whatsoever. It is also important to adhere to all the strict timelines and limitation prescribed under the law, during the process of the prosecution of the trade mark opposition proceedings, as any lapse can lead to the abandoning of trade mark opposition by the Registrar of Trade Marks. Once the opportunity of opposing a trade mark is missed, the only viable remedy left is to file a petition for cancellation of the trade mark before Intellectual Appellate Property Board (IPAB) or the Registrar of Trade Marks. The grounds and reasons for opposing a trade mark will depend on the facts and circumstances of each and every case. However, some of the basic grounds for opposing a trade mark may be as under: 1. The trade mark is similar or deceptively similar to the trade mark of the Opponent; 2. The trade mark is similar or identical to the registered trade mark or pending trade mark of the Opponent, and is for similar or allied and cognate, goods or services; 3. The trade mark is generic and descriptive in nature; 4. The resemblance of the trade mark to the well-known trade mark of the Opponent. 5. The Applicant has filed the trade mark application malafidely or with bad faith; 6. The Applicant is not the actual owner of the trade mark; and 7. The registration of trade mark is likely to deceive the public or cause confusion.

Ques-4 Explain the rationale that copyright protects the expression and not the idea. Supplement your answer with examples. Ans-

It is a traditional copyright doctrine that copyright protects only expressions and not the Ideas behind such expressions. This Idea/Expression Dichotomy is considered as the central axiom by the courts while determining what is protected in infringement cases. The essence of copyright lies in this very distinction between expressions and unprotected

ideas.

Many

people

have

raised

their

contentions

to

the

idea/expression dichotomy, but none of them have tried understanding and identifying the root of this problem. An idea can in no way exist separate from an expression. Either there is a manifestation, or the idea cannot exist. The main reason behind this is that one can only differentiate the form when the idea has been substituted for some form of writing or other kinds of expression that is when the idea of the writer has been equated to such writing/ expression by him. Thus, drawing a difference between idea and expression cannot decide what is protectable under the Law of Copyrights. Rather, the distinction is to b made between the expressions that are protectable and those that are not, under the Copyrights Act, 1976. The thesis of this blog is that the difference between expression and idea is misguided and irrelevant regarding deciding for infringement cases. Copyright does not prevent others from using the ideas or information shown by the author’s work. It relates to the literary, musical, graphic, or artistic form in which the author articulated intellectual concepts. Section 102(b) makes it clear that the protection of copyright does not cover any idea, technique, procedure, system, manner of operation, idea, norm, or discovery, irrespective of the form in which it is defined, elucidated, demonstrated, or embodied in such work. Some concern has been expressed in the case of copyright in computer programs that

should

extend protection to the method

or procedures

implemented by the programmer, rather than merely to expressing his ideas via “writing”. Section 102(b) is intended, amid other things, to make clear that the expression implemented by the programmer is the copyrightable component in a computer program, and that the real processes or methods embodied in the program are not within the range of the copyright law.Section 102(b) in no way expands or contracts the range of copyright protection under the existent law. Its purpose is to restate, in the perspective of the new single Federal system of copyright, that the basic dichotomy concerning expression and idea remains unbothered. The District Court of the Southern District of New York recently gave the summary for the justification of the idea/expression dichotomy: The idea/expression dichotomy, although an inexact tool, has not been abandoned because any better way for the settlement of the two conflicting interests of the society which make available the basis to grant and limitations on

the

protection

of

copyright,

both

fulfilling

individual

creativity

and

nevertheless allowing the growth and developments grounded on the same subject matter by any person, other than the actual author, has not yet been discovered. The dichotomy of idea/expression is now customarily applied to all areas that need protection, including many recent developments like the computer programs. In 1879, the Supreme Court chose in Baker v. Selden {FN43: 101 U.S. 99 (1879)} that the copyright of a book that portrayed a particular accounting procedure did not ensure the structures necessary to utilize the system. There is no uncertainty that work on the subject of accounting, though only illustrative of well known structures, may be the question of copyright; but, then, it is claimed only as a book. Such a book may be illustrative either of old structures, or of an totally new system; and, reflected as a book, as the effort of an author, handing over information on the subject of accounting, and

consisting of detailed descriptions of the art, it may be a very appreciated achievement to the practical knowledge of the public. But there is a clear difference between the books, as such, and the skill which it is intended to demonstrate. The mere declaration of the scheme is so evident that it needs hardly any argument to support it. The same difference may be established of every other skill as well as that of accounting. A treatise on the structure and use of medications, be they old or fresh; on the manufacture and use of watches, or ploughs, or churns; or on the combination and use of colors for painting or dyeing; or on the manner of drawing lines to yield the effect of perception, would be the subject of copyright; but none would argue that the copyright of the treatise would provide the exclusive right to the skill or manufacture described within it. Example- In 1954, the Supreme Court reiterated the principle that copyright shields expression, but not functions. In the case Mazer v. Stein, the Court addressed the scope of protection of copyright for a sculpture that shaped the base of a lamp. It was found that copyright shielded the artistic traits of the sculpture, but not the functional traits linked with being the base of a lamp. Unlike a patent, a copyright provides no particular right to the art revealed; protection is given only to the expression of an idea and not the idea itself. In the case of Baker v. Selden, the Court said that a copyrighted book on a unique system of accounting was not infringed by a comparable book using a similar strategy which accomplished similar outcomes where the suspected infringer made an unlike arrangement of the columns and used different headings. The difference is exemplified in the case Fred Fisher, Inc. v. Dillingham, once the court speaks about the two men, each an expert, individually making maps of the same region. Though the maps are alike, each may attain the exclusive right for making copies of his own particular map, and yet none of them will infringe the other’s copyright. Similarly, a copyrighted directory is not infringed by a comparable directory which is the creation of independent work.

The test of whether something is not a protectable idea or a protectable expression is characteristically ad hoc, and organizations of law have been established through court cases for dissimilar types of copyrighted works. But many themes run through most idea-expression explores.

Ques-5 How will you plan to ensure protection of confidential information in your research team?

Here are five recommendations APA's Science Directorate gives to help researchers steer clear of ethical quandaries: 1. Discuss intellectual property frankly COVER STORY

Five principles for research ethics Cover your bases with these ethical strategies. By DEBORAH SMITH Monitor Staff January 2003, Vol 34, No. 1 Print version: page 56

Not that long ago, academicians were often cautious about airing the ethical dilemmas they faced in their research and academic work, but that environment is changing today. Psychologists in academe are more likely to seek out the advice of their colleagues on issues ranging from supervising graduate students to how to handle sensitive research data, says George Mason University psychologist June Tangney, PhD. "There has been a real change in the last 10 years in people talking more frequently and more openly about ethical dilemmas of all sorts," she explains. Indeed, researchers face an array of ethical requirements: They must meet professional, institutional and federal standards for conducting research with human participants, often supervise students they also teach and have to sort out authorship issues, just to name a few. Here are five recommendations APA's Science Directorate gives to help researchers steer clear of ethical quandaries: 1. Discuss intellectual property frankly Academe's competitive "publish-or-perish" mindset can be a recipe for trouble when it comes to who gets credit for authorship. The best way to avoid disagreements about who should get credit and in what order is to talk about these issues at the beginning of a working relationship, even though many people often feel uncomfortable about such topics. "It's almost like talking about money," explains Tangney. "People don't want to appear to be greedy or presumptuous." APA's Ethics Code offers some guidance: It specifies that "faculty advisors discuss publication credit with students as early as feasible and throughout the research and publication process as appropriate." When researchers and students put such

understandings in writing, they have a helpful tool to continually discuss and evaluate contributions as the research progresses. However, even the best plans can result in disputes, which often occur because people look at the same situation differently. "While authorship should reflect the contribution," says APA Ethics Office Director Stephen Behnke, JD, PhD, "we know from social science research that people often overvalue their contributions to a project. We frequently see that in authorship-type situations. In many instances, both parties genuinely believe they're right." APA's Ethics Code stipulates that psychologists take credit only for work they have actually performed or to which they have substantially contributed and that publication credit should accurately reflect the relative contributions: "Mere possession of an institutional position, such as department chair, does not justify authorship credit," says the code. "Minor contributions to the research or to the writing for publications are acknowledged appropriately, such as in footnotes or in an introductory statement." The same rules apply to students. If they contribute substantively to the conceptualization, design, execution, analysis or interpretation of the research reported, they should be listed as authors. Contributions that are primarily technical don't warrant authorship. In the same vein, advisers should not expect ex-officio authorship on their students' work. Matthew McGue, PhD, of the University of Minnesota, says his psychology department has instituted a procedure to avoid murky authorship issues. "We actually have a formal process here where students make proposals for anything they do on the project," he explains. The process allows students and faculty to more easily talk about research responsibility, distribution and authorship. Psychologists should also be cognizant of situations where they have access to confidential ideas or research, such as reviewing journal manuscripts or research grants, or hearing new ideas during a presentation or informal conversation. While it's unlikely reviewers can purge all of the information in an interesting manuscript from their thinking, it's still unethical to take those ideas without giving credit to the originator. "If you are a grant reviewer or a journal manuscript reviewer [who] sees someone's research [that] hasn't been published yet, you owe that person a duty of confidentiality and anonymity," says Gerald P. Koocher, PhD, editor of the journal Ethics and Behavior and co-author of "Ethics in Psychology: Professional Standards and Cases" (Oxford University Press, 1998). Researchers also need to meet their ethical obligations once their research is published: If authors learn of errors that change the interpretation of research findings, they are ethically obligated to promptly correct the errors in a correction, retraction, erratum or by other means. To be able to answer questions about study authenticity and allow others to reanalyze the results, authors should archive primary data and accompanying records for at least five years, advises University of Minnesota psychologist and researcher Matthew McGue, PhD. "Store all your data. Don't destroy it," he says. "Because if someone charges that you did something wrong, you can go back." "It seems simple, but this can be a tricky area," says Susan Knapp, APA's deputy publisher. "The APA Publication Manual Section 8.05 has some general advice on what to retain and suggestions about things to consider in sharing data."

The APA Ethics Code requires psychologists to release their data to others who want to verify their conclusions, provided that participants' confidentiality can be protected and as long as legal rights concerning proprietary data don't preclude their release. However, the code also notes that psychologists who request data in these circumstances can only use the shared data for reanalysis; for any other use, they must obtain a prior written agreement. 2. Be conscious of multiple roles APA's Ethics Code says psychologists should avoid relationships that could reasonably impair their professional performance or could exploit or harm others. But it also notes that many kinds of multiple relationships aren't unethical--as long as they're not reasonably expected to have adverse effects. That notwithstanding, psychologists should think carefully before entering into multiple relationships with any person or group, such as recruiting students or clients as participants in research studies or investigating the effectiveness of a product of a company whose stock they own. For example, when recruiting students from your Psychology 101 course to participate in an experiment, be sure to make clear that participation is voluntary. If participation is a course requirement, be sure to note that in the class syllabus, and ensure that participation has educative value by, for instance, providing a thorough debriefing to enhance students' understanding of the study. The 2002 Ethics Code also mandates in Standard 8.04b that students be given equitable alternatives to participating in research. Perhaps one of the most common multiple roles for researchers is being both a mentor and lab supervisor to students they also teach in class. Psychologists need to be especially cautious that they don't abuse the power differential between themselves and students, say experts. They shouldn't, for example, use their clout as professors to coerce students into taking on additional research duties. By outlining the nature and structure of the supervisory relationship before supervision or mentoring begins, both parties can avoid misunderstandings, says George Mason University's Tangney. It's helpful to create a written agreement that includes both parties' responsibilities as well as authorship considerations, intensity of the supervision and other key aspects of the job. "While that's the ideal situation, in practice we do a lot less of that than we ought to," she notes. "Part of it is not having foresight up front of how a project or research study is going to unfold." That's why experts also recommend that supervisors set up timely and specific methods to give students feedback and keep a record of the supervision, including meeting times, issues discussed and duties assigned. If psychologists do find that they are in potentially harmful multiple relationships, they are ethically mandated to take steps to resolve them in the best interest of the person or group while complying with the Ethics Code. 3. Follow informed-consent rules When done properly, the consent process ensures that individuals are voluntarily participating in the research with full knowledge of relevant risks and benefits. "The federal standard is that the person must have all of the information that might reasonably influence their willingness to participate in a form that they can understand

      

 



and comprehend," says Koocher, dean of Simmons College's School for Health Studies. APA's Ethics Code mandates that psychologists who conduct research should inform participants about: The purpose of the research, expected duration and procedures. Participants' rights to decline to participate and to withdraw from the research once it has started, as well as the anticipated consequences of doing so. Reasonably foreseeable factors that may influence their willingness to participate, such as potential risks, discomfort or adverse effects. Any prospective research benefits. Limits of confidentiality, such as data coding, disposal, sharing and archiving, and when confidentiality must be broken. Incentives for participation. Who participants can contact with questions. Experts also suggest covering the likelihood, magnitude and duration of harm or benefit of participation, emphasizing that their involvement is voluntary and discussing treatment alternatives, if relevant to the research. Keep in mind that the Ethics Code includes specific mandates for researchers who conduct experimental treatment research. Specifically, they must inform individuals about the experimental nature of the treatment, services that will or will not be available to the control groups, how participants will be assigned to treatments and control groups, available treatment alternatives and compensation or monetary costs of participation. If research participants or clients are not competent to evaluate the risks and benefits of participation themselves--for example, minors or people with cognitive disabilities--then the person who's giving permission must have access to that same information, says Koocher. Remember that a signed consent form doesn't mean the informing process can be glossed over, say ethics experts. In fact, the APA Ethics Code says psychologists can skip informed consent in two instances only: When permitted by law or federal or institutional regulations, or when the research would not reasonably be expected to distress or harm participants and involves one of the following: The study of normal educational practices, curricula or classroom management methods conducted in educational settings. Anonymous questionnaires, naturalistic observations or archival research for which disclosure of responses would not place participants at risk of criminal or civil liability or damage their financial standing, employability or reputation, and for which confidentiality is protected. The study of factors related to job or organization effectiveness conducted in organizational settings for which there is no risk to participants' employability, and confidentiality is protected. If psychologists are precluded from obtaining full consent at the beginning--for example, if the protocol includes deception, recording spontaneous behavior or the use of a confederate--they should be sure to offer a full debriefing after data collection and provide people with an opportunity to reiterate their consent, advise experts.









The code also says psychologists should make reasonable efforts to avoid offering "excessive or inappropriate financial or other inducements for research participation when such inducements are likely to coerce participation." 4. Respect confidentiality and privacy Upholding individuals' rights to confidentiality and privacy is a central tenet of every psychologist's work. However, many privacy issues are idiosyncratic to the research population, writes Susan Folkman, PhD, in "Ethics in Research with Human Participants" (APA, 2000). For instance, researchers need to devise ways to ask whether participants are willing to talk about sensitive topics without putting them in awkward situations, say experts. That could mean they provide a set of increasingly detailed interview questions so that participants can stop if they feel uncomfortable. And because research participants have the freedom to choose how much information about themselves they will reveal and under what circumstances, psychologists should be careful when recruiting participants for a study, says Sangeeta Panicker, PhD, director of the APA Science Directorate's Research Ethics Office. For example, it's inappropriate to obtain contact information of members of a support group to solicit their participation in research. However, you could give your colleague who facilitates the group a letter to distribute that explains your research study and provides a way for individuals to contact you, if they're interested. Other steps researchers should take include: Discuss the limits of confidentiality. Give participants information about how their data will be used, what will be done with case materials, photos and audio and video recordings, and secure their consent. Know federal and state law. Know the ins and outs of state and federal law that might apply to your research. For instance, the Goals 2000: Education Act of 1994 prohibits asking children about religion, sex or family life without parental permission. Another example is that, while most states only require licensed psychologists to comply with mandatory reporting laws, some laws also require researchers to report abuse and neglect. That's why it's important for researchers to plan for situations in which they may learn of such reportable offenses. Generally, research psychologists can consult with a clinician or their institution's legal department to decide the best course of action. Take practical security measures. Be sure confidential records are stored in a secure area with limited access, and consider stripping them of identifying information, if feasible. Also, be aware of situations where confidentiality could inadvertently be breached, such as having confidential conversations in a room that's not soundproof or putting participants' names on bills paid by accounting departments. Think about data sharing before research begins. If researchers plan to share their data with others, they should note that in the consent process, specifying how they will be shared and whether data will be anonymous. For example, researchers could have difficulty sharing sensitive data they've collected in a study of adults with serious mental illnesses because they failed to ask participants for permission to share the data. Or developmental data collected on videotape may be a valuable resource for sharing, but unless a researcher asked permission back then to share videotapes, it would be unethical to do so. When sharing, psychologists should use established techniques when possible to protect confiden-tiality, such as coding data to hide identities. "But be







aware that it may be almost impossible to entirely cloak identity, especially if your data include video or audio recordings or can be linked to larger databases," says Merry Bullock, PhD, associate executive director in APA's Science Directorate. Understand the limits of the Internet. Since Web technology is constantly evolving, psychologists need to be technologically savvy to conduct research online and cautious when exchanging confidential information electronically. If you're not a Internet whiz, get the help of someone who is. Otherwise, it may be possible for others to tap into data that you thought was properly protected. 5. Tap into ethics resources One of the best ways researchers can avoid and resolve ethical dilemmas is to know both what their ethical obligations are and what resources are available to them. "Researchers can help themselves make ethical issues salient by reminding themselves of the basic underpinnings of research and professional ethics," says Bullock. Those basics include: The Belmont Report. Released by the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research in 1979, the report provided the ethical framework for ensuing human participant research regulations and still serves as the basis for human participant protection legislation (see Further Reading). APA's Ethics Code, which offers general principles and specific guidance for research activities. Moreover, despite the sometimes tense relationship researchers can have with their institutional review boards (IRBs), these groups can often help researchers think about how to address potential dilemmas before projects begin, says Panicker. But psychologists must first give their IRBs the information they need to properly understand a research proposal. "Be sure to provide the IRB with detailed and comprehensive information about the study, such as the consent process, how participants will be recruited and how confidential information will be protected," says Bullock. "The more information you give your IRB, the better educated its members will become about behavioral research, and the easier it will be for them to facilitate your research." As cliché as it may be, says Panicker, thinking positively about your interactions with an IRB can help smooth the process for both researchers and the IRBs reviewing their work.