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Critical Analysis Of The Indian Patents Act

Shubhangi Singh
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Critical Analysis Of The Indian Patents Act

INDIAN PATENTS ACT

The Indian Patents Act was framed in 1970 and is officially known as the Patents Act. This act governs the patent system in India and lays down the rules, procedures, and responsibilities for granting patents, defining patentable inventions, and protecting the rights of patent holders.

The act was amended in 1999, 2002, and 2005 to align with the TRIPS Agreement (Trade-Related Aspects of Intellectual Property Rights). The 2005 amendment allowed for the production of patents in the pharma sector.

The purpose of writing this analysis is to critically analyze the Indian Patents Act and know how it acts in the public interest or encourages innovation in the public interest.

HISTORICAL EVOLUTION

The evolution of the Indian Patents Act goes back before the colonial era.

  • During the colonial era, in 1856, the first patent legislation in India was introduced to encourage new and useful inventions. In 1859, the same law was modified to grant exclusive rights for making, using, and selling inventions in India. These laws largely favoured British inventors. During the period 1872-1911, several amendments were made, which led to the making of the Indian Patents and Designs Act of 1911, which further acted as the foundation for Indian patent law.
  • After independence, it was realized that the 1911 act heavily favoured the foreign monopolies, and hence in 1949, the Justice Rajagopalan Ayyangar Committee was formed to review the existing patent system. The Ayyangar Report 1959 highlighted that the existing system discouraged invention as it favoured the foreign monopolies relied on trade, and made essential goods like medicines expensive due to foreign monopolies.
  • The earlier recommendations led to the enactment of the Patents Act. Its main features included patenting the process instead of the product, and patent for food, chemicals, and pharma. Granting a short-term patent for 7 years for chemicals and drugs and 14 years for other inventions. Compulsory licensing to prevent misuse of patents
  • In 1995 India became a member of the World Trade Organization and was required to meet the TRIPS Agreement standards. To align with their standards, India amended its law in three timeframes.
  • In 1999, a mailbox provision for filing product patents was introduced and exclusive marketing rights (EMRs) were provided for up to 5 years or until a product is granted or rejected.
  • In 2002, the amendment modernized the patent system with faster processing and long-term patent terms.
  • In 2005, the amendment reintroduced product patents in all fields, including pharmaceuticals, agriculture, etc. The section 3(d) was also introduced to prevent the evergreening of patents, which ensures that minor modifications to an existing drug cannot be patented unless they show significant efficacy improvement.
  • At present, India balances incentivizing innovation with public health priorities. India is flexible with the TRIPS agreement, it prioritizes public health.

KEY PROVISIONS OF THE INDIAN PATENTS ACT

The Indian Patents Act, of 1970 outlines the legal framework for granting, protection. Enforcement of patents.

  1. Sections 2 and  3 include the clause of the patentable subject matter. It includes the criteria for patentability like novelty, inventive step, and industrial applicability, while section 3 talks about non-patentable inventions.
  2. Section 53 talks about the patent term and rights. It talks about the patent duration and how the patent is granted for 20 years from the filing date, and the rights of the patentee, the exclusive right to make, use, sell, and distribute
  3. Section 84-92 defines the compulsory licensing and lists its grounds and provisions. The government’s role in granting compulsory licensing.
  4. Section 6-43 talks about the application and grant process, and section 6 talks about who can apply for a patent. Section 11 A talks about publication and Section 12 talks about the examination
  5. Sections 64-65 talk about the revocation and surrender of patents. It describes the revocation grounds.
  6. Sections 104-114 describe and talks about the infringement and remedies, patent infringement, and defenses against infringement.

STRENGTHS

India became TRIPS compliant in 2005 and had to amend its provisions to align with the standards, but at the same time, they have retained flexibility to protect the public interest, especially by keeping the patent standard flexible in health and agriculture.

  • The act allows compulsory licensing under specific conditions, for example,  when patented products are not available at affordable prices or are not sufficient in India. This in turn, has been crucial in promoting access to affordable medicines.
  • Section 3 (d) of the act prevents the “evergreening” of patents, which is a slight modification to create new forms of known substances unless they show significant benefit. It prevents frivolous patents from coming up and ensures that genuine innovations are being rewarded
  • The act allows for both pre and post-opposition, which provides a system for challenging patents at any point in time, which improves the quality of patents granted and prevents misuse.
  • The act also incorporates measures that prevent the parenting of traditional and Indigenous knowledge, thus protecting biodiversity and Indigenous knowledge.
  • The act has clear guidelines on what the patentability criteria are that ensure that novel inventions, involve an inventive step and are industrially applicable receive patents. At the same time, certain products which reflect ethical considerations and public welfare
  • This acts as a strong legal framework that ensures efficient administration and at the same time encourages innovation and safeguards public interest.

CHALLENGES

  • Criticism is inflicted by international bodies and corporations on issues of restrictive patentability and compulsory licensing. The critics argue that restrictive patentability under section 3 (d) discourages minor innovation and modification of the product, which can lead to improvements in stability, drug delivery, etc.
  • AS for the compulsory licensing undermines patent protection and reduces any incentives for research and development investment in India.
  • The act does not grant software patents currently. This discourages tech startups and software companies from investing.
  • Enforcement of Patent rights can be slow, and infringement issues are equally slow due to the slow judicial process.
  • The patent application process is often slow due to bureaucratic delays, inefficient executive, and complex legal procedures. The creators have often face delays of -5 years or more, which affects their commercialization and investment opportunities.

 

LANDMARK CASE STUDIES

1. Novartis AG v. Union of India (2013)

  • The key issue of the case was about section 3(d) which delas with evergreening and enhanced efficiency
  • In this case, Novartis has applied a patent for its cancer drug Glivec (imatinib mesylate), claiming it was a more stable and effective version of an existing compound.
  • The Supreme Court in its verdict rejected the application, ruling that modification did not demonstrate any significant enhancement in therapeutic efficacy. This case signified India’s stance against evergreening and ensuring of affordable access to generic versions of life-saving drugs and set a global precedent.

2. Bayer Corporation v. Natco Pharma Ltd. (2012)

  • The key issue of this case was related to compulsory licensing
  • In this case Bayer Corporation held the patent for Nexavar, a cancer treatment drug priced at ₹2.8 lakh per month. Natco Pharma applied for a compulsory license under Section 84, arguing that the drug was unaffordable and not adequately available in India.
  • As a verdict, the controller of patents granted the first-ever compulsory license in India, allowing Natco to sell the drug at a 90% lower price.
  • This case was significant as it not only prioritized public health protection but also established that patents cannot be abused by preventing access to life-saving medicines.

CONCLUSION

The Indian Patents Act, of 1970, has evolved over the years intending to strike a balance between, incentivizing innovation and safeguarding the public interest. The act’s amendments, especially in 2005, aligned the domestic patent laws to the TRIPS Agreement while maintaining flexibilities crucial for public health and access to essential goods.

But challenges still persist. There is regular criticism from international corporations and countries urging India to soften its patent standards. Bureaucratic and difficult to enforce remain one of the main challenges. On top of it, balancing public health with innovations remains a challenge.

Judgments on cases showcase India’s commitment to improving patent law and its enforceability. India should modernize its legal framework to accommodate emerging technologies and mechanisms. Overall, the Indian Patent Act is a model for developing nations, demonstrating that innovation and public health need not be exclusive but can coexist.

Also Read:
Rights of undertrial prisoners in India
How To Send A Legal Notice In India

Case Pendency, Low Disposal Rate alone not ground to dismiss judges from service : SC

Shubhangi Singh
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Case Pendency, Low Disposal Rate alone not ground to dismiss judges from service : SC

The Bench of Justices BV Nagarathna and N Kotiswar Singh held that the low disposal rates alone cannot be a ground for dismissal of the concerned judge from service, especially when external circumstance affect judicial efficiency.

The bench made the observation while setting aside the termination of two judicial officers from Madhya Pradesh who were removed from service by a resolution passed by the Administrative Committee of MP High Court in 2023.

The SC ruled that systemic challenges such as case allocation failure and jurisdiction over police stations must be considered before evaluating a judge for termination

Manan Kumar Mishra re-elected as the Chairman Of BCI for the 7th Consecutive term

Shubhangi Singh
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Manan Kumar Mishra re-elected as the Chairman Of BCI for the 7th Consecutive term

Member of Rajya Sabha and Senior Advocate Manan Kumar Mishra has been re-elected as the chairman of the Bar Council of India for the seventh consecutive term.

Mr. Mishra holds the Rajya Sabha seat from Bihar and represents the BJP. He was elected by 27 lakh members of the legal fraternity. He expressed heartfelt gratitude upon results.

Further, he affirmed that welfare policies for the advocates would be introduced and asserted the importance of an independent Bar. He stated that the Advocates Amendment Bill would be introduced to ensure well being of advocates.

GENDER DISPARITY IN THE CRIMINAL JUSTICE SYSYTEM

Vanshika Sharma
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GENDER DISPARITY IN THE CRIMINAL JUSTICE SYSYTEM

INTRODUCTION 

We see numerous sorts of separation exist in our country—ambiguity based on sex, religion, color, sex, etc. Gender-based confusion drawback is ladies have risen to conceivable outcomes or openings as compared to men. But in a few cases, like in our country, we have conversations about correspondence or comparability. Comparability treatment for everybody in our nation, we see some articles in our CONSTITUTION OF INDIA article 14,15,16 talk about equality. We see or listen to the words of Professor Beth Richie: ‘is the key to understanding better and retort of women as offenders analyzing the status of crime victims.’ We overlook the wrongdoing done by the ladies. The judges have the approaches to men and the ladies denounced of wrongdoing. They are considered stricter than men as compared to women. There is an exceptionally strong need to understand that males or females are the casualties or guilty parties. We don’t require any type of sex discrimination in this. We require correspondence in our law, and we don’t require any sexual orientation predisposition law in criminology.

INDIAN LAWS ARE BIASED FOR MEN

We see that so numerous laws are beneath THE INDIAN PENAL CODE,1860 [ BHARTIYA NYAYA SANHITA,2023]. FAMILY LAW, MARRIAGE LAWS, CUSTODY OF A CHILD LAWS, CRIMINAL LAWS, WORKPLACE AND SOCIAL BENEFIT LAWS. These laws are biased toward men. According to the criminal laws, a boy or man cannot be sexually assaulted, Harassed, Raped, or cruelty because they think that a boy is very strong and they are born a criminal, but they also think that women by birth are victims. Sections of BNS that show the clear biasedness towards men, Section-63 rape, Section- 85 and 86 of cruelty, and Section-75 sexual harassment.

According to INDIAN LAW, when married men commit suicide within the 7 years of their marriage, if they also write a suicide note in which they write their wife and in-laws are responsible for it. The law will not punish them, and because we don’t have any law for    women for that also. According to them, men are never the victims in any situation, and they ignore the crimes against men, according to the data from the National Crime Record Bureau [2021]. Total suicide was 1,64,033. According to this data, the suicide rate of a married man is 81,063 as compared to married women’s suicide rate of 28,680. The reason for the increase in married men’s suicide rate is that they are sexually abused, harassed at the workplace, live in relationships, and adultery. But there is no law to feel or say that men are also secure and safe. Rape is the 6th biggest crime in our country, but our law thinks or tells us that rape of men is never committed and Rape against men is impossible.

CASE LAWS RELATED TO THE CRIME AGAINST MEN ARE HAPPENING AND THE MEN ARE ALSO NOT PROTECTED OR SAFE

  1. Case law related to domestic violence against men is also happening

CASE – SUSHIL KUMAR V. UNION OF INDIA [2005]

BENCH: JUSTICE ARIJIT PASAYAT AND JUSTICE S.H. KAPADIA

In this case, the Supreme Court of India observed that misuse of law, and the court acknowledged that some women’s misuse of section 498A of IPC was considered as a tool for fulfilling their demands and leading to the wrongful prosecution of men and their families.

Supreme Court gives the significance of the validity of Section 498A of IPC while recognizing the problem of false cases. Laid down the foundation of the subsequent ruling and addressed the issue of false accusations of marital disputes.

  1. Case law related to sexual harassment and rape against men

CASE- NAVTEJ SINGH JOHAR V. UNION OF INDIA [2018]

BENCH: CHIEF JUSTICE DIPAK MISHRA, JUSTICE R.F. NARIMAN, JUSTICE A.M. KHANWILKAR, JUSTICE D.Y. CHADRACHUD, JUSTICE INDU MALHOTRA

In this case, the Supreme Court of India said that the decriminalized homosexuality Section 377 of IPC but emphasized the importance of protecting men from sexual offenses and stressed the fair trial procedures.

  1. Case Law related to workplace harassment against men

CASE: VISHAKHA V. STATE OF RAJASTHAN [1997]

In this case, the workplace harassment guidelines are for women, but the courts have also noticed that men can also be victims of workplace harassment and should have legal resources.

  1. Case Law related to the custody and the parental rights of the men

CASE: GITA HARIHARAN V. RESERVE BANK OF INDIA [1999]

BENCH: JUSTICE SUJATA V. MANOHAR, JUSTICE D.P. WADHWA

In this case, the Supreme Court ruled that fathers also have equal parental rights and should not be discriminated against in custody matters.

CONCLUSION

Gender disparity in the justice system is mainly because of the society. Society doesn’t accept that crime against men is also a serious issue because we live in a country that gives equal rights to everyone, but why don’t they offer equal rights to men and a crime against men? The low criminality rate of women is not an issue, but the issue of sex-based behavior is very big. Both males and females should be treated equally in the criminal justice system, but they aren’t given an equal footing, and because of this, their families also suffer.  More female judges are required to better understand the circumstances.

Also Read:
Rights of undertrial prisoners in India
How To Send A Legal Notice In India

Caste Discrimination and Gender Discrimination under Indian Laws

Shreya Sharma
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Caste Discrimination and Gender Discrimination under Indian Laws

Caste Discrimination and Gender Discrimination under Indian Laws

India, being a multi-cultured country, has historically been plagued by caste and gender-based social inequalities. Constitutional promises of equality notwithstanding, discrimination has been present in some form or another. The Indian legal system has, over time, addressed these through certain provisions, enactments, and judicial orders in order to promote justice and social justice.

Caste Discrimination under Indian Laws

Caste discrimination in India is rooted in the ancient system of caste, which is based on the division of society into hierarchical castes. Caste discrimination is clearly banned by the Indian Constitution, and social justice is served through various provisions:

Article 14: Ensures equality before the law and equal protection of the laws for all citizens.

Article 15(1) & (2): Forbids discrimination on religious, racial, caste, sexual, or place of birth grounds.

Article 17: Eradicates untouchability and makes its practice in any form criminal.

Article 46: Instructs the State to advance the educational and economic welfare of Scheduled Castes (SCs), Scheduled Tribes (STs), and other weaker sections.

In order to enforce these constitutional protections, particular legislation has been brought into force:

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989: It enacts rigorous punishment for the violation of SCs and STs, including social boycotts, exclusion from access to public areas, and bodily harm.

The Protection of Civil Rights Act, 1955: Enforces the eradication of untouchability and equal access to public areas and facilities.

Despite these legal provisions, caste-based discrimination continues in education, employment, and daily life. Judicial pronouncements have played a crucial role in upholding the rights of marginalized communities. The Supreme Court has repeatedly emphasized the need for affirmative action and protection of socially disadvantaged groups.

Gender Discrimination under Indian Laws

Gender discrimination is a serious problem in India, impacting women across different areas such as education, employment, inheritance, and personal liberty. The Indian Constitution and legal framework offer various safeguards and rights to counter gender inequality:

Article 14: Guarantees equality before the law and equal protection of laws.

Article 15(3): Permits the State to make special provisions for women and children in order to attain substantive equality.

Article 16: Ensures equality of opportunity in government employment.

Article 39(d): Mandates the State to provide equal pay for equal work to both men and women.

There have been some laws passed to prohibit gender discrimination:

The Dowry Prohibition Act, 1961: Penalizes the institution of dowry, which has been a leading reason for gender violence.

The Protection of Women from Domestic Violence Act, 2005: Offers legal recourse to women undergoing domestic violence.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013: Requires safe working conditions for women and establishes guidelines for handling harassment.

The Hindu Succession (Amendment) Act, 2005: Provides daughters with equal rights in ancestral property, promoting gender equality in inheritance law.

Judicial activism has been instrumental in promoting gender justice. Pioneering verdicts, including Vishaka v. State of Rajasthan (1997), set out rules to avert sexual harassment at the workplace. Likewise, the Supreme Court’s decision in Joseph Shine v. Union of India (2018) decriminalized adultery, reaffirming gender equality in personal laws.

Conclusion

Though India has achieved considerable legal progress in eradicating caste and gender discrimination, social attitudes still remain challenging. Effective enforcement of laws, enhanced awareness, and social reform are required to root out discrimination and bring about actual equality. The judiciary, the legislature, and civil society must join hands to enforce constitutional values and bring justice to all.

Also Read: 
Rights of undertrial prisoners in India
How To Send A Legal Notice In India

Legality of Object and Consideration: Agreements Against Public Policy

Sakshi Singh
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5
Legality of Object and Consideration: Agreements Against Public Policy

Legality of Object and Consideration: Agreements Against Public Policy

Agreements are necessary in both business and private transactions. But keep this in mind: not all agreements can be legally enforced. A central concept of contract law is that the objective and worth of a contract must be legal. If they conflict with public policy, the contract is void.

This article explores the law within contracts, why legal objects and consideration are important, and why agreements can be in conflict with public policy. You will understand by the end of this why contracts become void and how public policy comes into play.

Understanding Legality of Object and Consideration

For a contract to be enforceable, it needs to meet certain basic requirements. Two main components are:

  • Object– This is the purpose or subject of the contract.
  • Consideration– This refers to what is exchanged between the parties, like money, goods, or services.

To be valid, both the object and consideration must be legal and not oppose public policy. If either one is illegal, the contract is void from the start.

Legality of Object

The object of the contract must be legal. In case the object is illegal activity, fraud, or immoral goals, the contract is void. Illegal objects in a contract include:

  •  Contracts for smuggling or drug dealing
  • Contracts concerning bribery or graft
  •  Arrangements connected to criminal conduct
  • Agreements that infringe on civil liberties illegally

Legality of Consideration

Consideration should also be legal for a contract to stand. When the consideration is illegal, the contract collapses. Some of the illegal considerations include:

  • Payment for an illegal act (like employing another person to do something illegal)
  • Exchange of stolen goods
  • Contracts involving fraud or deception

Legal Rules on Legality of Object and Consideration

Various legal systems have provisions to ensure contracts remain within the ambit of law. For example, in India, Section 23 of the Indian Contract Act, 1872 provides that a contract is void if:

  • Its object is illegal under law
  • It beats any legal provision
  •  It is fraudulent
  • It inflicts harm to another individual or property
  • It is against public policy or immoral

There are similar standards in English Law and other legal systems across the globe, which ensure that contracts are in line with legal and ethical standards.

Agreement against public policy 

Public policy serves as a guardian of public values. A contract can be void even if it does not technically violate the law if it is contrary to public policy. Courts have the power to declare contracts that are prejudicial to public interest as invalid.

What is public policy?

Public policy is a broad and evolving term that varies geographically. Typically, a contract is presumed to be against public policy if it:

  • Damages the public good
  •  Promotes corruption or falsehood
  • Supports immoral actions
  • Destroys justice or legal proceedings
  •  Restricts fundamental rights

Courts are empowered to determine whether or not a contract goes against public policy in light of the prevailing social, economic, and legal scenario.

Common Types of Agreements Against Public Policy

There are a few types of agreements that are frequently held to be void on the grounds of violation of public policy. Some of the most common among them are given below:

1. Agreements Restricting Trade

Unfairly restrictive contracts of trade or competition are generally void. Although reasonable non-compete agreements are valid in employment contracts, excessively wide ones can be invalid.

Example:

A contract that prohibits a former worker from practicing their profession for life will probably be contrary to public policy.

2. Contracts Facilitating Corruption or Illegal Activities

Bribery, illegal commissions, or unlawful political donations are against public policy in contracts.

Example:

A business providing a government official with a share of profits in return for a contract would be deemed void.

3. Agreements Blocking Justice

Agreements that interfere with legal processes, conceal evidence, or seek to affect the courts are not enforceable.

Example:

A contract in which a person is paid not to give testimony in court is contrary to public policy.

4. Agreements Promoting Divorce or Immoral Behavior

Contracts inducing adultery, fornication, or other immoral conduct, and divorce are void.

Example:

An agreement to pay another person to dissolve a marriage is not enforceable.

5. Agreements Limiting Personal Freedom

Agreements that unreasonably limit personal freedoms or exploit individuals are not valid.

Example:

A contract compelling a person into involuntary servitude or bonded labor is against public policy.

Important Court Cases on Agreements Against Public Policy

Various court rulings have influenced how public policy is viewed in contract law:

1. Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Co. (1894)

In this English case, a firearm manufacturer covenanted not to compete with his former employer for 25 years. The court held that although some restraints on trade are permissible, excessively wide ones violate public policy.

2. Gherulal Parakh v. Mahadeodas Maiya (1959)

The Supreme Court in India held that a contract entered into for gambling purposes is against public policy and therefore is not enforceable.

3. Pearce v. Brooks (1866)

An agreement for the hire of a carriage to a prostitute was held void, since it was an agreement to do an immoral act.

Consequences of Entering into Agreements Against Public Policy 

If a contract is seen as against public policy, it can lead to serious legal outcomes:

1.It is void and cannot be enforced – Courts will not uphold such contracts.

2. No legal recourse – Parties can neither recover damages nor enforce the agreement.

3. Potential legal penalties – In certain cases, parties may be subject to fines or civil sanctions.

4. Damage to reputation– Companies or persons engaging in unethical contracts stand the risk of tarnishing their reputation.

Conclusion: Ensuring Legality in Contracts

In order to ensure that a contract is legally valid, the parties must verify that its object and consideration are in harmony with legal criteria and public policy. A few important details to keep in mind are given below:

  •  Always verify the legality of contract terms before signing.
  • Avoid contracts that involve crime, fraud, or immorality.
  • Consult legal experts if you have doubts regarding whether a contract holds validity.
  • Protect contracts from causing harm to public interest or violating fundamental rights.

All of us, ranging from companies to citizens and lawmakers, must be well-versed in these principles of law so as not to make invalid contracts. Courts will go on refining their interpretations in light of social needs and moral considerations to ensure fairness and justice prevail.

Got specific contracts you’d like to talk about? Feel free to post your questions in the comments!

Also Read:
Rights of undertrial prisoners in India
How To Send A Legal Notice In India

UCC Aims to protect rights of live in relationships: Uttarakhand HC

Shubhangi Singh
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UCC Aims to protect rights of live in relationships: Uttarakhand HC

The Uttarakhand HC Bench consisting Justices Manoj Kumar Tiwari and Ashish Naithani heard two PILs, one filed by a social activist and another by live-in couple challenging the constitutional validity of State’s UCC Laws.

The petitioner argued that the UCC laws  has enabled excessive state surveillance and policing which infringes right to privacy and overrides constitutional morality.

In response, the bench noticed that live-in relationships are becoming much more prevalent but don’t have full social acceptance and the code aims to protect the parties in the relationship- especially the women and children born out of it.

Investigation, Inquiry and trail Under BNSS

Shreya Sharma
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Investigation, Inquiry and trail Under BNSS

Investigation, Inquiry, and Trial under Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023

The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 supersedes the Code of Criminal Procedure (CrPC), 1973 and brings profound reforms to the criminal justice system in India. The BNSS is designed to rationalize the investigation, inquiry, and trial procedures so that speedy justice is delivered, victim protection is improved, and the enforcement of legal proceedings through technology is facilitated.

1. Investigation under BNSS, 2023

1.1 FIR (First Information Report) Registration

– Section 173 of BNSS requires the police when they are given information regarding a cognizable offence, to register an FIR forthwith.
– The zero FIR mechanism enables an FIR to be registered in any police station, irrespective of jurisdiction, ensuring speedy action.

1.2 Investigation Time Limits

– Tightly regulated time limits have been brought in to avoid delays in investigations:
– In minor offences, 90 days for investigation is prescribed.
– The period of investigation for serious crimes can be expanded to 180 days subject to the approval of the court.
– It maintains prompt justice and curtails custodial interrogation on a large scale.

1.3 Technology and Investigation

– BNSS stipulates the involvement of forensic information, electronic recording, and computerized surveillance so as to reinforce the authenticity of investigations.
– Investigators need to gather CCTV footage, call records, and electronic transactions to make cases more robust.
– BNSS provides for online lodging of complaints and electronic submission of evidence, making investigation processes more contemporary.

1.4 Police Custody and Arrest Procedures

– Police custody can now be extended to 15 days under BNSS, but the maximum period of detention cannot be more than 60 days without charging a charge sheet.
– The rights of the accused should be explained to them, and legal representation must be made available.

1.5 Summary Investigation for Minor Offenses

– For the alleviation of court burdens, BNSS provides for summary investigations in minor cases.
– Fines or warnings may be issued by the police without submitting a formal charge sheet for minor offenses.

2. Inquiry under BNSS, 2023

2.1 Definition of Inquiry

– Inquiry is a judicial proceeding where a judicial magistrate investigates evidence prior to framing charges against the accused.
– It decides if there is prima facie evidence to initiate a criminal trial.

2.2 Magistrate’s Power in Inquiry

– The magistrate may:
– Call witnesses and record statements.
– Order further police investigation, if necessary.
– Release the accused if evidence is lacking.

2.3 Use of Video Conferencing in Inquiry

– BNSS encourages witness statements to be taken through video conferencing, particularly in cases of vulnerable victims.
– Remote recording of electronic evidence and expert testimonies by courts saves time.

3. Trial under BNSS, 2023

3.1 Nature of Trials Under BNSS

BNSS categorizes trials into various types depending upon the gravity of the crime:

1. Sessions Trial (Serious Offenses)
– Held in Sessions Court for serious offenses such as murder, rape, and terrorism.
– Tried by a Public Prosecutor.
– The court is required to pass a judgment within 45 days of finishing hearings.

2. Warrant Trial (Serious to Moderate Offenses)
– Held for offenses where the punishment can be more than two years’ imprisonment.
– The court ensures that both sides put forward their evidence before charging.

3. Summons Trial (Minor Offenses)
– Held for offenses where the punishment is less than two years.
– Summary proceedings provide for rapid disposal of cases.

4. Summary Trial (Petty Offenses)
– Employed for offences such as public nuisance, petty theft, and disorderly behavior.
– The accused can be fined or simply sentenced by the magistrate.

3.2 Trial in the Absence of the Accused (Section 299)

– If an accused individual doesn’t turn up within 90 days, the court can try the case in absentia.
– It doesn’t allow criminals to escape punishment by absconding.

3.3 Use of Technology in Trials

– BNSS enables:
– E-courts and online hearings to expedite disposal of cases.
– Video conferencing of witness testimonies to provide protection.
– Online submission of evidence and documents to facilitate proceedings.

3.4 Fast-Track Courts for Horrendous Offences

– BNSS prescribes the institution of fast-track courts to try rape, human trafficking, and child offence cases.
– They are expected to provide justice in 6 months.

4. Protection of the Victim and Victim Rights Under BNSS

4.1 Compensation to Victims (Section 357)

– Compensation can be ordered by courts for victims even in the absence of conviction of the accused.
– The government can establish a Victim Compensation Fund to provide immediate monetary relief.

4.2 Witness Protection (Section)

– BNSS brings in witness protection programs to provide safety to important witnesses in serious cases.

– Identity protection, relocation, and police protection are some of the measures taken for protection.

4.3 Medical Care to Victims

– Hospitals must give emergency medical treatment to crime victims such as assault and sexual violence without seeking prior police approval.

– Hospital authorities can face penalties for failure to do so.

5. Major Reforms and Highlights of BNSS, 2023

– The imposition of firm time frames for investigation and trial guarantees speedy justice.

– Improvement in the protection of the victim, including compensation, medical treatment, and security for witnesses.

– Application of digital evidence and technology updates the criminal justice process.

– Fast-track courts give priority to cases of heinous crimes, clearing case backlogs.

– Summary procedures for petty offences assist in decongesting courts.

BNSS, 2023 represents a momentous transformation in India’s criminal justice system with a focus on efficiency, accountability, and transparency in investigation, inquiry, and trial. BNSS seeks to safeguard the interests of victims, accused persons, and members of the general public while improving accessibility and transparency within the legal framework.

Also Read:
Rights of undertrial prisoners in India
How To Send A Legal Notice In India

A Critical Analysis of the Trade Mark Act

Sommya Kashyap
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A Critical Analysis of the Trade Mark Act

1. Introduction

The Trade Mark Act constitutes the primary legislation governing trademark protection, embodying the statutory framework for registration, protection, and enforcement of trademark rights. Under Section 2(1)(zb) of the Act, a trademark is defined as a mark capable of being represented graphically and distinguishing the goods or services of one person from those of others. This foundational definition sets the stage for the comprehensive protection regime established by the Act.

2. Historical Background 

The modern Trade Mark Act evolved from the common law doctrine of passing off, as established in Perry v Truefitt (1842) 6 Beav 66. The transition from common law to statutory protection was marked by the introduction of formal registration systems. The landmark case of Reddaway v Banham [1896] AC 199 established the principle that descriptive words could acquire distinctiveness through use, a concept now codified in Section 9(1) of the Act.

3. Relevant Laws and Regulations

Section 9 of the Act establishes absolute grounds for refusal of registration, while Section 11 delineates relative grounds. These provisions are supplemented by the Trade Mark Rules, which provide procedural guidelines for registration and opposition. Section 18 prescribes the application process, requiring submission of specific documentation as detailed in Rule 29 of the Trade Mark Rules.

The Act interfaces with international obligations through Section 154, which implements treaty obligations including the Madrid Protocol and the TRIPS Agreement. Section 23 provides for convention applications, ensuring compliance with Article 6quinquies of the Paris Convention.

4. Key Judicial Precedents

The interpretation of distinctiveness under Section 9 was extensively analyzed in Société des Produits Nestlé SA v Cadbury UK Ltd [2017] EWCA Civ 358, where the court established stringent criteria for shape marks. The scope of well-known trademark protection under Section 29(4) was examined in Toyota Jidosha Kabushiki Kaisha v M/s Prius Auto Industries Ltd & Others (2018) 2 SCC 1, addressing transborder reputation.

The test for deceptive similarity under Section 29(2) was refined in Cadila Healthcare Ltd v Cadila Pharmaceuticals Ltd (2001) 5 SCC 73, establishing a comprehensive multi-factor analysis for trademark infringement.

5. Legal Interpretation and Analysis

Section 31 of the Act grants trademark registration for ten years, renewable under Section 25. The statutory interpretation of these provisions was clarified in ITC Limited v Nestlé India Limited (2015) 64 PTC 49, particularly regarding the scope of rights conferred by registration under Section 28.

Non-traditional marks receive protection under Section 2(1)(zb), though their registration faces heightened scrutiny as demonstrated in Colgate Palmolive Company v Anchor Health and Beauty Care Pvt Ltd 2003 (27) PTC 478 Del, concerning the distinctiveness of color combinations.

6. Comparative Legal Perspectives

The Indian Trade Mark Act shares similarities with the UK Trade Marks Act 1994, particularly in statutory definitions and grounds for refusal. Section 29’s infringement provisions parallel Article 9 of the EU Trade Mark Regulation (2017/1001). The treatment of well-known marks under Section 11(2) aligns with Article 6bis of the Paris Convention, as interpreted in N.R. Dongre v Whirlpool Corporation (1996) 5 SCC 714.

7. Practical Implications and Challenges

Section 134 of the Act addresses jurisdictional issues in enforcement, while Section 135 provides for relief in infringement actions. The Delhi High Court in Microsoft Corporation v Kurapati Venkata Jagdeesh Babu 2014 (60) PTC 590 (Del) addressed challenges in online enforcement, particularly concerning domain names and e-commerce platforms.

8. Recent Developments and Trends

Recent amendments to the Act have strengthened protection against cybersquatting, as reflected in Section 2(1)(r)’s expanded definition of “mark.” The introduction of Section 23(1) facilitating electronic filing aligns with digital transformation initiatives. The interpretation of these provisions was addressed in People Interactive (I) Pvt Ltd v Vivek Pahwa and Others (2016) 65 PTC 619 (Bom).

9. Recommendations and Future Outlook

Legislative reforms are recommended to strengthen Section 115 concerning criminal penalties for trademark infringement and to expand Section 29 to explicitly address social media infringement. The framework established in Bloomberg Finance LP v Prafull Saklecha 2013 (56) PTC 243 (Del) suggests the need for enhanced statutory provisions addressing digital marketplace violations.

10. Conclusion and References

The Trade Mark Act’s effectiveness relies on the interplay between statutory provisions and judicial interpretation. From Section 2’s definitions to Section 159’s rule-making powers, the Act provides a comprehensive framework for trademark protection, though continuous adaptation is necessary to address emerging challenges.

References:

  1. Trade Marks Act, 1999
  2. Trade Marks Rules, 2017
  3. Paris Convention for the Protection of Industrial Property, 1883
  4. TRIPS Agreement
  5. Madrid Protocol
  6. Kerly’s Law of Trade Marks and Trade Names (16th Edition, 2017)
  7. Christopher Wadlow, The Law of Passing-Off (5th Edition, 2016)
  8. Journal of Intellectual Property Rights (2020-2024)

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The Impact of Intellectual Property Rights on India: A Legal Analysis

Sommya Kashyap
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The Impact of Intellectual Property Rights on India: A Legal Analysis

Introduction

India’s relationship with Intellectual Property Rights (IPR) has evolved significantly since its independence, marking a transformative journey from a patent-averse nation to an increasingly IP-conscious economy. The integration of international IP standards, particularly after India’s accession to the TRIPS Agreement in 1995, has fundamentally reshaped the country’s legal and economic landscape. This transformation reflects India’s commitment to fostering innovation while balancing social welfare concerns, particularly in crucial sectors like pharmaceuticals and agriculture.

Historical Background and Legal Context

The evolution of IPR in India begins with the Patents Act of 1911, inherited from British colonial rule. This period was characterized by a legal framework that primarily served colonial interests rather than domestic innovation. The watershed moment came with the enactment of the Patents Act, 1970, which marked India’s sovereign approach to IP protection. This legislation deliberately weakened product patent protection to foster domestic industry growth, particularly in the pharmaceutical sector, leading to India’s emergence as a global generic medicine hub.

Relevant Laws and Regulations

The modern Indian IPR framework comprises a comprehensive set of legislations that align with international standards while maintaining domestic priorities. The Patents Act, 1970, amended significantly in 2005, remains the cornerstone of India’s patent regime. It introduces stringent patentability criteria and provides mechanisms for compulsory licensing, ensuring a balance between innovation protection and public access. The Copyright Act, 1957, amended in 2012, addresses contemporary challenges in digital rights management while protecting creative works. The Trade Marks Act, 1999, offers robust protection for commercial identifiers and has been instrumental in building brand value in the Indian market. The Geographical Indications of Goods Act, 1999, plays a crucial role in protecting India’s rich cultural heritage and traditional products.

Key Judicial Precedents

The Indian judiciary has played a pivotal role in shaping IPR jurisprudence. The landmark case of Novartis AG v. Union of India (2013) fundamentally influenced patent law interpretation, particularly Section 3(d) of the Patents Act. The Supreme Court’s decision upheld India’s unique approach to patentability criteria, emphasizing the need for genuine innovation over incremental changes. In Entertainment Network v. Super Cassette Industries Ltd. (2008), the Supreme Court established crucial principles regarding statutory licensing in copyright law, balancing creator rights with public interest. The Bajaj Auto Ltd. v. TVS Motor Company Ltd. (2008) case set important precedents for IP dispute resolution, emphasizing the need for expeditious handling of intellectual property cases.

Legal Interpretation and Analysis

Indian courts have developed a distinctive approach to IPR interpretation, consistently emphasizing the need to balance private rights with public interest. This approach is particularly evident in pharmaceutical patent cases, where courts have upheld stringent patentability criteria while ensuring compliance with TRIPS obligations. The judiciary has also recognized the importance of protecting traditional knowledge and cultural expressions, developing unique interpretative frameworks that acknowledge India’s rich cultural heritage.

Comparative Legal Perspectives

India’s IPR regime stands distinct from both developed and developing nations. While countries like the United States and European Union members maintain stronger patent protection, India has crafted a middle path that acknowledges its developmental needs while respecting international obligations. This approach has influenced other developing nations, particularly in areas of pharmaceutical patents and traditional knowledge protection.

Practical Implications and Challenges

The implementation of IPR laws in India faces several challenges. Patent examination backlogs, enforcement difficulties, and varying judicial interpretations across different High Courts create uncertainty for stakeholders. The pharmaceutical sector particularly experiences tensions between innovation protection and affordable healthcare access. Additionally, the protection of traditional knowledge and preventing bio-piracy remain ongoing challenges.

Recent Developments and Trends

The National IPR Policy of 2016 marks a significant shift towards strengthening IP protection while maintaining public interest safeguards. Recent judicial decisions have increasingly focused on standardizing IP enforcement procedures and adapting to technological advancements. The trend towards expedited patent examinations and increased digitization of IP offices reflects modernization efforts.

Recommendations and Future Outlook

The future of IPR in India requires focused attention on reducing procedural delays, strengthening enforcement mechanisms, and harmonizing judicial approaches. Establishing specialized IP benches in High Courts, enhancing technological infrastructure for IP offices, and developing comprehensive guidelines for traditional knowledge protection are crucial steps forward.

Conclusion

India’s IPR regime represents a unique balance between promoting innovation and ensuring public access to protected works. The success of this approach is evident in the growth of India’s pharmaceutical industry and increasing domestic patent filings. Moving forward, maintaining this balance while adapting to new technological challenges will be crucial for India’s continued development in the global IP landscape.

References

Legal Statutes and Regulations

  • The Patents Act, 1970 (as amended up to Patents (Amendment) Act, 2005), Government of India.
  • The Copyright Act, 1957 (as amended in 2012), Government of India.
  • The Trade Marks Act, 1999, Government of India.
  • The Geographical Indications of Goods (Registration and Protection) Act, 1999, Government of India.
  • The Protection of Plant Varieties and Farmers’ Rights Act, 2001, Government of India.

Case Law

  • Novartis AG v. Union of India, (2013) 6 SCC 1 – Supreme Court of India.
  • Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd., (2008) 13 SCC 30 – Supreme Court of India.
  • Bajaj Auto Limited v. TVS Motor Company Limited, (2008) 10 SCC 308 – Supreme Court of India.
  • Bayer Corporation v. Union of India, (2014) 60 PTC 277 (Bom) – Bombay High Court.
  • Monsanto Technology LLC v. Nuziveedu Seeds Ltd., (2019) 3 SCC 381 – Supreme Court of India.

Government Publications

  • National Intellectual Property Rights Policy, Department for Promotion of Industry and Internal Trade, Government of India, 2016.
  • Manual of Patent Office Practice and Procedure, The Office of Controller General of Patents, Designs and Trade Marks, 2019.
  • Report of the Technical Expert Group on Patent Law Issues, Government of India, 2006.

International Agreements

  • Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), World Trade Organization, 1995.
  • Paris Convention for the Protection of Industrial Property, 1883 (as amended).
  • Patent Cooperation Treaty, World Intellectual Property Organization, 1970.

Academic Literature

  • Basheer, Shamnad. “India’s Tryst with TRIPS: The Patents (Amendment) Act, 2005.” Indian Journal of Law and Technology, Vol. 1, 2005.
  • Kumar, Shashank P. “The Current State of Patent Litigation in India.” Journal of Intellectual Property Rights, Vol. 19, 2014.
  • Reddy, Prashant. “The Patents Act, 1970: A Critique.” Indian Journal of Intellectual Property Law, Vol. 5, 2012.

Reports and Studies

  • World Intellectual Property Organization. “World Intellectual Property Indicators 2023.” WIPO Publication.
  • Pharmaceutical Research and Manufacturers of America. “Special 301 Submission 2024.” PhRMA Publication.
  • Indian Pharmaceutical Alliance. “India Pharma Vision 2024: Propelling Access and Innovation.” IPA Report.

Online Resources

Policy Documents

  • Draft National Innovation Policy, 2023, Ministry of Commerce and Industry, Government of India.
  • Guidelines for Processing of Patent Applications, Indian Patent Office, 2023.
  • Revised Guidelines for Examination of Computer-Related Inventions, Office of the Controller General of Patents, Designs and Trade Marks, 2023.

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