The Inter University CENTER FOR INTELLECTUAL PROPERTY RIGHTS STUDIES

LLM on IPR Patent Law and TRIPS Agreement IPR and Computer Programme IPR Elective Course Dissertation Biotechnology and IPR

Patent Law and TRIPS Agreement (4 Credits)

 

Teachers:

 

Prof. N.S. Gopalakrishnan, Professor, HRD Chair on IPR

 

Introduction:

 

            The modern patent system is the out come of the industrial revolution. The development of international trade during the end of 19th century lead to the introduction of international standards for patent protection for inventions. The new technological changes and the changes in the international trading system always influenced the standard setting. The Paris Convention (1883) consisting of minimum international standards was subjected to periodic revisions till 1967. Many contentious issues like patentable subject matter, importation rights, compulsory licencing etc., were left without solution. The scientific revolution in biotechnology and information technology along with the move for globalization of trade let to the setting of new standards through the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS Agreement) under WTO in 1994.; Many developing countries including India has to substantially revise their patent law to satisfy the obligations under the TRIPS. In addition to this patenting of products based on genetic resources and the traditional knowledge associated with it poses new challenges to the patent system. The new international treaties in the area of genetic resources like Convention on Biological Diversity (CBD) and the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGR) added new dimension to patent protection. There are demands for compulsory disclosure of geographical origin of the genetic resources and details of prior informed consent for the use of the traditional knowledge associated with in the application for patent protection. The debate is on whether the criterion for patentability requires reconsideration in the context of new technological changes. This course is intended to address these issues. The focus is on the substantive issues on patent protection rather than on procedural matters.

Objectives:

This course is designed to give the students an insight into the new international issues on patent protection. The course will also address the new issues relating to genetic resources and traditional knowledge in the context of patent protection.

Duration of the Course : One Semester – 4 Credits (60 hours) – (July – December 2003)

Eligibility : Student registered for LL.M in the School of Legal Studies except with IPR Specialization

 

Course Content

 

Module – I       Introduction to Patent Law – (8 hours)

Historical development – General Principles – Test of patentability – novelty, inventive step and commercial utility – Theoretical justification for patent protection

 

Module – II      Development of International Patent system – (8 hours)

Historical development of Paris Convention – Basic Principles of Paris Convention –      Minimum standards – Revision of Paris Convention 

 

Module – III     TRIPS Agreement and Patent System –  (10 hours)

Historical development of TRIPS – Patentable subject matter – pharmaceuticals and agricultural products, biotechnology, - rights and limitations  

 

Module – IV    New International Challenges to Patent System –  (20 hours)

Convention on Biodiversity and TRIPS inter-relationship - Traditional Knowledge and Patent System - prior art and obviousness –  Disclosure requirements - Benefit sharing and contractual agreements – Bone guidelines – International Treaty on Plant Genetic Resources for Food and Agriculture – issues on patenting and farmer's right

 

Module – V      Indian Patent System and International Obligations –  (14 hours)

History of Indian Patent law – Structure of Indian Patent Act 1970 – Patent Amendment Act 1999 – Patent Amendment Act 2002 – new challenges

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IPR and Computer Programme (4 Credits)

 

Course Teachers:     

 

Prof. N.S. Gopalakrishnan, Professor, HRD Chair on IPR  

 

 

Introduction:

 

One of the important justifications for providing intellectual property protection for computer programme is to protect the public interest. This include freedom for the software developers to develop better programmes, availability of alternate programmes for the public and access to programmes at affordable cost with the freedom to use it. Intellectual Property protection is also intended to encourage investment in the development of software industry. There was considerable debate as to the appropriate mode of IPR protection. Considering the fact that computer programme has both literal and functional elements there were arguments for and against including computer programme with in the fold of copyright and patent law. At some point of time there were arguments for developing a sui generis law for the protection of computer programmes. The debate is still on to find out an appropriate IP framework to protect the computer programme keeping the mind the public interest.

Under the TRIPS Agreement there is express provision to protect computer programme under copyright law. Almost all jurisdictions in the world today protect computer programme under copyright law. There are many conceptual and practical problems in treating computer programme as literary work under copyright law. The idea-expression dichotomy of the protection of computer programme with in the copyright framework is the most important. There is also an argument that the nature of the protection under the copyright is inadequate to take care of the interest of the industry. As a response to this some of the countries particularly US started protecting functional elements of the computer programme under the patent law. Though initially algorithms were declared as unpatentable subject matter the US courts extended patent protection to computer programmes if it leads to a tangible result. This has been done in the context of software industries in US moving from service sector to product development. There are many who argue that protecting computer programme will adversely affect the growth of software industry. But major software industries are advocating for patent protection in other countries also for the growth of the industry. The TRIPS Agreement seems flexible regarding patenting of software.

In India copyright protection for computer programmes was introduced in 1984 when there was uncertainty regarding the nature of intellectual property protection that could be afforded to computer progrmme internationally. This it appears to have enabled the Indian industry to lay a sound foundation for growth. The growth of software industry based on off shore software development gave justification for introducing another set of amendments in 1994 and 1999. These amendments provide not only a strong protection but also the necessary freedom to do reverse engineering for the purpose of developing new programmes or to develop inter-operable programmes.

            Considering the fact that many legal systems now extend patent protection to computer programmes the Indian Patent Amendment Act passed by Parliament in 2002 introduced provisions to facilitate patenting of software products in India. It is feared that this will have significant impact on the development of software industry and users in India. The course is intended to examine the implications of this provision in the light of developments taking place in England and US in the context of WTO obligations.

            To tackle the problem of monopoly by software industries, free software movement started in US. Public interest groups developed alternate programmes to safeguard the public interest. Similar developments may take place in India too. The impact of our law on the software industry needs in-depth study. The course also addresses the legal bases of General Public Licence and its use in the Indian context.

 

Objectives:

 

            This course is designed to equip the students with the ability for an in-depth analysis of the legal issues involved in the ongoing debate on the protection of computer programme under copyright law and patent law based on the legal developments in England and US. The examination of issues would be in the context of WTO obligations.

 

Eligibility:                   Student registered for LL.M in the School of Legal Studies with                                                 IPR Specialization

 

Course Content

 

 

Module – I       Introduction to Computer Programme – (6 hours)

Basic concepts of computer science – concepts, terminology and principles – Distinction between computer programme and software – elements of computer programme – algorithm – computer languages – method of software development – materials used for software development – literal and functional elements of computer programme. 

 

 

Module – II      Introduction to IP Protection for Computer Programme  – (6 hours)

Historical development of IP protection of software – contractual agreements – Role of IBM – Cases on contractual violations

 

 

Module – III     Computer Programme and Copyright protection  –  (20 hours)

Historical development of Copyright protection for computer programme – Concept of originality - Idea-expression dichotomy - Originality in Computer programmes - Look and feel - abstraction, filtration and comparison - protection of non-literal elements - US and English case law development – fair use - TRIPS obligations – Copyright protection of computer programmes in India - originality, rights, fair use, remedies.

 

 

Module – IV    Computer Programme and Patent protection –  (20 hours)

Development of patent protection of computer programme in US – Algorithm as patentable subject matter - Patentability of computer related invention - Computer programme as a “means to an end” for patent protection – patent of business methods - TRIPS obligations - Patent protection for computer programme in India - implications

 

 

Module – V      IP protection of Computer Programme Alternatives –  (8 hours)

Free software movement – legal validity of GPL agreements – patenting software and challenges to open source movement

 

 

Select Reading List:

 

  1. Computer Programme
    1. Pamela Samuelson et.al. “A Manifesto Concerning the Legal Protection of Computer Programs”, 1994 Columbia Law Rev. 2308.
    2. Peter S. Menell, “Challenges of reforming intellectual property protection for computer programme”, 1994 Columbia Law Rev. 2644.
    3. Paul Goldstein, “Comments on Manifesto Concerning the Legal Protection of Computer Programs, 1994 Columbia Law Rev. 2573.
  2. Copyright Protection
    1. University of London Press v. University of Tutorial Press, [1916] 2Ch.601.
    2. R.G. Anand v. Dulex Film, AIR 1978 S.C. 1613.
    3. Baker v. Seldon, 101 U.S. 99 (1879).
    4. Feist v. Rural Telephones, 499 US 340 (1991).
    5. Apple v. Franklin, 714 F.2d 1240 (1983).
    6. Whelan v. Jaslow,  797 F.2d 1222 (1986).
    7. Lotus v. Paper Back, 740 F. Supp 37 (1990).
    8. Computer Associates v. Altai, 775 F.Supp 544 (1991).
    9. Sega v. Accolade, 977 F.2d 1510 (1992).
    10. Atari v. Nintendo, 975 F.2d 832 (1992).
    11. Lotus v. Borland, 49 F.3d 807 (1995).
    12. Leslie Melville, “Computer Software and the Relevance of Copyright ”, [1980] EIPR 354.
    13. Daniel J. Fetterman, “The Scope of Copyright Protection for Computer Programs: Exploring the Idea/Expression Dichotomy, 20 IPLR, 399 (1988).
    14. Julian Velasco, “The Copyrightability of non literal elements of computer programs, 27 IPLR 329 (1995)
  3. Patent
    1. Gottschalk v. Benson, 409 US 63 (1972).
    2. Parker v. Flook,  437 US 584 (1978).
    3. Diamond v. Diehr, 450 US 175 (1981).
    4. In re Freeman, 593 F.2d 1237 (1978).
    5. In re Abele, 684 F.2d 902 (1982).
    6. In re iwahashi,  888 F.2d 1370 (1989).
    7. In re Arrhythmia, 958 F.2d 1053 (1992).
    8. In re Alappat, 33 F.3d 1526 (1994).
    9. In re Beauregard, 53 F.3d 1583 (1995).
    10. Bank Street Case (1998)
    11. AT & T Corporation case (2000)
    12. Allen B. Wagner, “Patenting Computer Science: Are Computer Instructions Writings Patentable? 1998 The John Marshall Jol. Of Computer and Information Law,
    13. Jur. Strobos, “Stalking the exclusive ptatenable software: Are there still Diehr or was it just a Flook?”, 6 Harv. J. of Law and Technology, 363 (1992-93).
    14. John Swinson, “Copyright or Patent or Both: An Algorithamtic appeal to Computer Software Protection”, 5 Harv. J. of Law and Technology, 145 (1991).

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IPR Elective Course Dissertation

 

Introduction:

 

Students opting IPR as specialization may opt for writing a dissertation in the place of elective courses  carrying 14 credits in the third semester. The dissertation is prepared under the guidance of teachers offering IPR courses. The topic of the dissertation, methodology, pattern of presentation etc. etc., are determined by the student in consultation with the teacher. The teachers entrusted with the supervision of the dissertation work shall help the student in identifying, analyzing and presentation of the problem in the dissertation. Unless and until the supervising teachers approve and signs up the dissertation the candidate shall not be permitted to submit the dissertation. The dissertations are submitted to the University 15 days after the completion of the IV Semester. The syndicate shall appoint examiners for valuing the dissertation. There is also a viva voce examination based on the dissertation work. The written work consists of 300 marks and 100 marks for the viva voce examination. The grades obtained for the dissertation shall be added to the aggregate grade obtained for other papers.

IPR Dissertations are in the Following areas:

Teacher:

Prof. N.S. Gopalakrishnan, Professor, HRD Chair on IPR

Dr. T.G. Agitha, Research Officer, HRD Chair on IPR  

 

  • Copyright
  • Patent
  • Design
  • Trademark
  • Traditional Knowledge
  • Domain Names
  • Biodiversity
  • World Trade Organization
  • Information Technology
  • Geographical Indications

Copyright

1. Copyright Law and Protection of Engaged Authors in India, Mr. P. Lawwell Man

2. Copyright and Digital Technology, Mr. Sidharthan P.S.

3. Copyright Issues of Cultural Institutions: An Empirical Study, Mr. Vizzy George

4. Judicial Analysis of the Copyright Law in India, Mr. M. Anil Kumar

5. Software Contracts, Ms. Mini N. Nair

6. Copyright Protection to Technological Measures and Access Control, Ms. Dhanalakshmy C.N

Patent

1. Limitations on Patent Rights: A Study with Special reference to Pharmaceuticals Patents, Mr. Benoy K. Kadavan  

2. Conceptual Issues on Patenting Biotechnological Inventions, Nimmi V.C.

3. Exclusion of Patent on the ground of Public Order and Morality: A comparative study, Unni Raja, T.I.

4. Determining standards of patentability for Pharmaceuticals in India: A comparative study, Mr. Balagopal. R.

5. Patent Co-operation Treaty: S study with special reference to India, Mr. Rajaraman A.K.       

6. Management of Patents in an Academic Environment: A study with special reference to CUSAT, Ms. Sangeetha Abraham.

7.Patent Protection For Computer Programs In India - Yogesh A Pai.

Design

Protection of Unregistered Designs in India, Ms. Kavitha Chalakkal

Trademark

1. Expansion of Property Rights in Trademarks using Passing off Remedy: A Study with Special Reference to New Advertising and Marketing Trends, Ms. Alice P.

Traditional Knowledge

1. The Protection of Traditional Knowledge in Genetic Materials, Ms. Veena P

2. IPR Protection of new varieties of Farmers – A critique of the PV Act 2001 Ms. Lucky George

Domain Names

 Uniform Domain Name Dispute Resolution Policy, Mr. Biju Mattam

Biodiversity

1. Legal Control of Access to Genetic Resources: A comparative study with special reference to India, Prabha S. Nair

2. IPR Protection of Undisclosed Databases on Genetic Resources, Ambily S. Raj

World Trade Organization

Review of Dispute Settlement Mechanism under WTO: A study with special reference to IPR disputes, Padeep Padman

Information Technology

Digital Signature: Technical Lacuna and Legal Enforciability, Mr. Shanmugham D. Jayan

Geographical Indications

1. International Standards for Protection of GI – Implication for India, Aravind Kumar Babu

2. Conflict between GI and Trademark – A Study with Special Reference to TRIPS Agreement, Ms. Dhanya

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Biotechnology and IPR (Elective paper) - 4 Credits

 

Teacher: 
 
Dr. Sarita G.Bhat, Sr. Lecturer

Department of Biotechnology, CUSAT

 

 

1.     Introduction to Biotechnology

Concept of biotechnology- Traditional and modern,  Biotechnology through the ages. Basic techniques in biotechnology- Fermentation, Recombinant DNA technology, Protoplast fusion, cell fusion, cell and tissue culture, Immobilization. Scope and importance of biotechnology in the new millennium

 

2.     Agricultural and food biotechnology

Transgenic plants, synthetic seeds, terminator gene technology; virus free seedlings for economically important crops; applications of plant tissue and cell culture,

Trangenic animals, animal vaccines development and production, artificial animal breeding; live-stock production, Recombinant DNA technology and rumen bacteria

Milk based products and lactic acid bacteria; probiotics, genetically modified foods; fermented foods; applications of biosensors in food; Single cell protein

 

3.     Health care biotechnology

Diagnostic kits; recombinant DNA based drugs and pharmaceutical; cell culture based pharmaceuticals; gene therapy; concepts in vaccine development; DNA vaccines; stem cell and their applications; Monoclonal and polyclonal antibodies

 

4.     Industrial biotechnology

Biopharmaceuticals, vitamins, organic acids, enzymes, specialty chemicals, polysaccharides, biofertilizers, biopesticides, microbial starter cultures, pigments, colorants, culture collections , Gene bank

 

5.     Environmental biotechnology

Solid waste management using biocatalysts; Municipal sewage treatment;  Industrial waste water treatment; bioremediation; water pollution; Pollution control;  use of genetically modified organisms (GMOs) and the release of GMOs into the environment; biodiversity conservation; ore leaching; microbial fouling and corrosion; impact of biological weapons.

 

6.     Bioethics, biosafety and IPR

Ethical and moral issues in biotechnological research; human rights issues, biopiracy;  biosafety practices; norms for the release of GMOs, ; special guidelines for recombinant DNA research in India; IPR and parenting issues.

References:

1.Biotechnology,the biological - MD Trevan, S. Boffey, KS Goulding, P. Stanbury. Tata McGraw hill publ.1987

2. Biotechnology- Keshav Trehan, Wiley Eastern Ltd. 1990.

3.Biotechnology-Fundamentals and application-SS Purohit and SK mathur, Agrobios, India, 2000

4. Biotechnology-John E.Smith, 3rd Ed. Cambridge University Press.1996.

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