FUNAMENTALS OF INTELLECTUAL PROPERTY IN SPECIFIC TO PATENTS AND PROTECTION OF SOFTWARE BASED INVENTIONS AND THE LEGAL POSITION IN SOFTWARE PROTECTION AS AN EDUCATIVE APPROACH WERE DISCUSSED.

1. 1
R.KUMARAVENKATESAN M.L(IPR).,
Educative approach

2. 2

3. 3
PROPERTY
 Owned by a
person
 Registered under
an authority
 Claimed / prevent
others from
claiming
 Assignable,
transferable,
mortgageable
PROPERTY
 TANGIBLE PROPERTY
 MOVABLE PROPERTY
 IMMOVABLE PROPERTY
 INTANGIBLE PROPERTY
 RIGHTTO INDIVIDUL REPUTATION
 INTELLECTUAL PROPERTY

4. 4
INTELLECTUALPROPERTYRIGHT
 INTELLECTUAL-
CAPACITY,CREATIVITY,IDEA,KNOWLEDGE,
 PROPERTY-
OWNED,REGISTERED,POSSESSED
 RIGHT-
CLAIMED,EXERCISED,EXPLOITED
THE RIGHT ASSOCIATED WITHTHE IDEA OR
CREATION OF MIND WHCH IS APPLIED,
OWNED AND EXPLOITED BY A PERSON

5. 5
INTELLECTUALPROPERTY
CLASSIFICATION
INDUSTRIAL PROPERTY LITERARY PROPERTY
 PATENTS
 TRADE MARKS
 DESIGNS
 INTEGRATED CIRCUITS
AND LAYOUT
DESIGNS
 COPY RIGHTS
 NEIGHBOURING
RIGHTS
PERFORMERS RIGHTS
BROADCASTING
REPRODUCTIONRIGHTS

6. 6
Maximum period of protection of various IP
rights
 PATENT
 TRADEMARK
 COPYRIGHT
 DESIGNS
 LAYOUT DESIGNS
 GEORAPICAL
INDICATIONS
 PLANT VARIETIES
 20 years (renewed every year)
 No limit (renewed every 10th year)
 Life time of the author plus 60 years / (vary
between type of work)
 10 +5 year(renewed after 10th year)
 10 years
 No limit (renewed every 10th year)
 18 years, 15 years (renewed after 6th year/9th

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I P LEGISLATIONS IN INDIA
1. PATENTS ACT , 1970
2. TRADE MARKS ACT, 1999
3. COPY RIGHT ACT , 1957
4. DESIGNS ACT , 2000
5. SEMICONDUCTOR INTEGRATED CIRCUITS AND LAYOUT
DESIGNS ACT, 2000
6. GEOGRAPHICAL INDICATIONS OF GOODS (REGISTRATION
AND PROTECTION) ACT,1999
7. THE PROTECTON OF PLANT VARIETIES AND FARMERS
RIGHTS ACT,2001

8. 8
Patent definition
 Latin term patere, "to lay open" (i.e., to make available for public
inspection), In English term letters patent, royal decree granting
exclusive rights to a person.
 Patents in the modern sense originated in 1474, in the Republic of
Venice
 A patent is a form of intellectual property. It consists of a set of
exclusive rights granted by a sovereign state/government to a true
and first inventor or their assignee for a limited period of time in
exchange for the public disclosure of an invention.
 Patent is an exclusive right granted to a person who has invented a
new and useful article or an improvement over an existing article.

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Need for the protection of Patents
 Encouragement
 Inducement
 Reward
 Transfer and dissemination of technology
 Commercial exploitation by the inventor
 Preventing others from exploiting the right
 Healthy competition
 Development of a nation
 Reveal the intellectual capability of the inventor

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Patent right
 Exclusive right(monopoly)
 Granted for a limited period of time
 Territorial in nature
 Assignable, licensable, transferable and mortgage able
right
 Proprietary right
 Legally enforceable
 Registrable before a competent authority
 Commercially exploitable

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Persons entitled to apply for patents
 True and first inventor
 Assignee of the true and first inventor
 Legal representative of any deceased person who
immediately before his death was entitled to make such
application

12. Rights of patentee
An exclusive right over the patented product and patented process
to;
a) Manufacture
b) Use
c) Offering for sale, selling or importing in to India for sale
d) Prevent others from make, use, sell, import the patented product /
product directly obtained through that patented process and
commercially exploiting the patent.
e) Assign, transfer and issue license
f) Surrender the patent
g) Sue in case of infringement
h) Claim remedies upon proving the infringement
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13. 13
Patentability
Patentability is the ability / character of the invention to make itself eligible for a
grant of patent by the patent offices. The criteria of eligibility includes;
1. Novelty
2. Inventive Step
3. Industrial Applicability
4. Utility and in addition
5. The invention should not fall under the category of inventions
‘INVENTIONS NOT PATENTABLE’ mentioned under Sections 3 and 4 of
the Patents Act,1970

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Patentability - novelty
 it does not form the state of the art
 it has not been described orally
 it has not been published before the date of filing the patent
application
 It has not been used before the date of filing the patent
application

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Patentability-inventive step

 Technical advance as compared to the existing
knowledge or Having economic significance or
 Both technical advance and economic significance and
 All the above mentioned features makes the invention
non obvious to a person skilled in the art.”
Besides the above features the invention
 can able to be manufactured in an industry and
 It must possess utility ( usefulness) to the mankind

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Inventions patentable
EXHAUSTIVE LIST NOT LIMITED
 Art(technology), Process, Method of manufacturing;
 Machine, apparatus, instrument or other Articles;
 Substances, compositions or formulations produced
by Manufacturing process;
 Computer Software to be applied in a Technical
application to Industry or programmed in a
hardware
 Food products / Chemicals / Medicines and bulk
drugs/ fertilizers

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Inventions not patentable
 Frivolous or obvious and contrary to natural laws
 Contrary to public order or morality or prejudicial to human,
animal or plant life and health or to the environment.
 Mere discovery of the scientific principle or the formulation of
an abstract theory or discovery of any living thing or non-living
substances occurring in nature
 Mere discovery of new form of known substance without any
enhancement in the efficacy new property or mere new use
for known substance or the mere use of a known process,
machine or apparatus-unless the known process results to
new products or employs at least one new reactant.
 Mere admixtures of substances.

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INVENTIONS NOT PATENTABLE
Inventions not patentable
 Mere arrangement / rearrangement or duplication of known
devices functioning independently in a known way.
 Method of agriculture and horticulture;
 Any process for the medicinal or surgical, curative
prophylactic, diagnostic, therapeutic or other treatment of
human beings, animals to render them free of disease or to
increase their economic value or that of their products;
 Plants and animals in whole or any part thereof other than
micro-organisms but including seeds, varieties and species
and essentially biological process for production or
propagation of plants and animals;
 A mathematical or business method or algorithms.

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Inventions not patentable
 literary, dramatic and musical works and aaesthetic creations
including cinematography and television production.
 Method for performing mental act or playing game.
 Presentation of information.
 Topography of Integrated Circuits.
 Invention which in effect, is traditional knowledge or which is
an aggregation or duplication of known properties of
traditionally known components.
 Inventions relating to Atomic Energy

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Patent prosecution - Stages
I. FILING OF APPLICATION under section.7 or 54 or 135 or 7(1A)
II. REQUEST FOR EARLY PUBLICATION under section.11A(2)
PUBLICATION AFTER 18 MONHS under section.11A
III. REQUEST FOR EXAMINATION under section.11B
IV. EXAMINATION under section under section12
V. SEARCH FOR ANTICIPATION BY THE EXAMINER under section.13
VI. CONSIDERATION OF ‘FER’ BY CONTROLLER under section.14
VII. REFUSAL / AMENDMENT OF THE APPLICATION under section.15
VIII. ANTICIPATION PROCEEDINGS IF ANY under section.18
IX. OPPOSITION PROCEEDINGS IF ANY under section.25
X. SECRECY DIRECTIONS IF ANY under sections.35 to 42
XI. GRANT OF PATENTS under section.43

21. PATENTING IN COMPUTER SCIENCES
21
SOFTWARE
PROGRAMMES

22. SOFTWARE PATENTS
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Operating Systems, File
Systems
Graphics and Windowing
Systems
Compilers and Simulators
Cryptography and data
compression ,Multimedia
Word processors,
Spreadsheets
micro-blogging patents
audio-video patents
Webpage and web service
patents
XML patents
Image processing patents

23. Software patents
 "patent on any performance of a computer realized by means
of a computer program".
 Patents granted to software programming techniques and
computer-implemented inventions are generally grouped under
the term software patents.
 Only from 1981 in US software patents were allowed.
 The patent was granted on August 17, 1966 in British for "A
Computer Arranged for the Automatic Solution of Linear
Programming Problems" (efficient memory management for
the simplex algorithm) FIRST SOFTWARE PATENT
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24. SOFTWARE -INDIAN PATENT SCENARIO
AND ISSUES
 Section: 3(k) a mathematical or business method or a computer program
per se or algorithms;
 3(m) a mere scheme or rule or method of performing mental act or method
of playing game;
 software is different from other engineering and mechanical inventions.
 Software technology is evolving much faster than other industries, the
period of protection is longer.
 Softwares, per se, are intangibles and not protected by patents,
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25. Software copyright law in India
 Indian copyright act of 1957 is amended to extend its
coverage to computer software also. Computer programs
received statutory recognition as a `literary work'
 India has one of the most modern copyright protection laws
in the world.
 Major changes to Indian Copyright Law introduced in June
1994 include :
 the definition of computer program,
 explains the rights of copyright holder,
 position on rentals of software,
 the rights of the user to make backup copies, and
 punishment and fines on infringement
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26. Rights under copy right protection:
 1) To reproduce the work in any material form including the
storing of it in any medium by electronic means;
 (2) To issue copies of the work to the public not being
copies already in circulation;
 (3) To perform the work in public, or communicate it to the
public;
 (4) To make any cinematographic film or sound recording in
respect of the work;
 (5) To make any translation of the work;
 (6) To make any adaptation of the work;
 (7) To do, in relation to a translation or an adaptation of the
work any of the acts specified in relation to the work in the
above;
 (8) To sell or give on commercial rental or offer for sale or
for commercial rental any copy of the computer program.
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27. Patents V/s Copyright in software patents
 Patent protection is much stronger whereas copyright protection is longer.
 Patent law protects the functional elements. Copyright protects the form
in i.e. originality of expression
 In case of patents if different code achieve same function then it violates
patent law.
 Copyrights become effective the moment they are published whereas
patents need to be registered.
 Copyrights last for authors’ life plus 60 years whereas patents are granted
for a period of 20 years in India.
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28.  No need to patent the same inventive concept for every invention,
patenting once is enough. Whereas, copyright protection is effective for
that creation only and needs registration/ publishment for all the other
creations even though with same concept.
 Patents provide much stronger protection to software.Development of
software using known algorithm or logic but using different language is is
a patent violation but not a copyright violation.
 Under copyright laws, protection is available only to the form or
expression of an idea and not to the idea itself.
 algorithms are mere ideas and cannot be protected under the copyright
law.
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Patents V/s Copyright in software patents

29. COMPUTER AIDED INVENTIONS/ FIELDS
 e-commerce, e-gambling, e-banking, e-money,
e-publishing
 Computer aided design, computer aided
management, computer aided monitoring,
computer aided education, computer aided
manufacturing,
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30. PROVISIONAL
SPECIFICATION
COMPLETE
SPECIFICATION
PUBLICATION
REQUEST FOR
EXAMINATION
FIRST
EXAMINATION
REPORT
RESPONDTO
OFFICE ACTION
FURTHER
EXAMINATION
REPORT
WITHIN 12MONTHS FROM
PROVISIONAL SPECIFICATION
AFTER 18 MONTHS
FROM PROVISIONAL
WITHIN 48 MONTHS FROM
THE PROVISIONAL
WITHIN 6 MONTHS FROM
THE DATEOF REQUEST WITHI 12MONTHS
FROMTHE FER
EARLY PUBLICATION
(OPTIONAL)
PRE GRANT
OPPOSITION IF ANY
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