Module 9: Emerging IPR Issues - Assessment

The DABUS case involved Dr. Stephen Thaler filing patent applications listing DABUS (Device for the Autonomous Bootstrapping of Unified Sentience), an AI system, as the inventor. Most patent offices rejected these applications.

The UK Supreme Court in DABUS (2023) unanimously held that under the Patents Act 1977, an inventor must be a natural person. AI machines cannot be named as inventors, and the owner of an AI cannot derive patent rights from inventions made by the AI.

Under the Indian Patents Act, 1970, the term "true and first inventor" implies a natural person. The Act does not contemplate non-human inventors, and AI systems cannot be named as inventors under current Indian law.

Most copyright systems require human authorship for copyright protection. Works generated autonomously by AI without human creative input face challenges because there is no human "author" to whom copyright can be attributed.

Section 2(d)(vi) of the Indian Copyright Act defines the author of a computer-generated work as "the person who causes the work to be created." This provision may potentially apply to AI-generated works, with the person deploying the AI being the author.

Training AI on copyrighted content involves reproduction of those works, raising questions about whether such use constitutes infringement or falls within fair use/fair dealing exceptions. This is a major ongoing legal debate globally.

South Africa granted the first patent listing DABUS as the inventor in 2021. However, South Africa's patent system is a deposit system without substantive examination, so this grant was not based on a substantive legal determination.

Section 3(j) excludes from patentability plants and animals in whole or any part thereof other than microorganisms, including seeds, varieties, and species, and essentially biological processes for production or propagation of plants and animals.

Section 3(j) specifically exempts microorganisms from the exclusion, meaning novel microorganisms (including genetically modified microorganisms) can be patented in India if they meet patentability criteria.

The TKDL documents traditional knowledge in patent-compatible formats to serve as prior art, preventing "biopiracy" - the granting of patents on traditional knowledge that is already in the public domain.

The turmeric patent case (1997) was a landmark victory where CSIR successfully challenged a US patent on wound-healing properties of turmeric, proving it was traditional knowledge. This was one of the first successful biopiracy challenges.

The Nagoya Protocol (2010) is a supplementary agreement to the Convention on Biological Diversity (CBD) that provides a framework for access to genetic resources and the fair and equitable sharing of benefits arising from their utilization.

The National Biodiversity Authority (NBA) under the Biological Diversity Act, 2002 regulates access to biological resources and associated traditional knowledge, and approval is required before seeking IP rights involving Indian biological resources.

Section 10(4)(ii)(D) mandates disclosure of the source and geographical origin of biological material used in an invention in the patent specification. This supports benefit-sharing and prevents biopiracy.

Section 3(d) prevents "evergreening" by excluding patents on new forms, derivatives, or combinations of known substances unless they show significantly enhanced efficacy. This is India's key anti-evergreening provision.

In Novartis v. Union of India (2013), the Supreme Court upheld Section 3(d), holding that the beta crystalline form of imatinib mesylate (Gleevec) did not show enhanced therapeutic efficacy over the known substance and was not patentable.

In Natco Pharma v. Bayer Corporation (2012), the Controller of Patents granted India's first compulsory license for Bayer's cancer drug Sorafenib (Nexavar) under Section 84, based on non-availability and unaffordable pricing.

Section 84 allows any person to apply for a compulsory license after 3 years from the date of grant of a patent if the patented invention is not available to the public at a reasonably affordable price, or the reasonable requirements of the public are not satisfied.

Section 92 provides for compulsory licensing in circumstances of national emergency, extreme urgency, or for public non-commercial use. It allows the government to notify such circumstances and grant licenses without the 3-year waiting period.

Patent linkage connects drug regulatory approval with patent status, preventing generics from obtaining marketing approval while patents exist. India does not have patent linkage, allowing independent regulatory and patent systems.

Section 107A provides the Bolar exemption, allowing use of a patented invention for development and submission of information required for regulatory approval. This enables generic manufacturers to prepare for market entry before patent expiry.

Section 79 of the IT Act, 2000 provides safe harbor protection for intermediaries, exempting them from liability for third-party content if they observe due diligence and act on notice of infringing content.

The 2021 IT Rules require significant social media intermediaries (with 5 million+ users) to appoint grievance officers, comply with takedown requests within 36 hours for certain content, and maintain traceability of message originators in some cases.

In MySpace v. Super Cassettes (2016), the Delhi High Court addressed intermediary liability for copyright infringement, holding that platforms hosting user content need notice of specific infringing content before they can be held liable.

Content ID and similar systems are automated tools that identify copyrighted content in user uploads, allowing rights holders to block, monetize, or track usage. They represent private ordering solutions to online copyright management.

John Doe (Ashok Kumar) orders are used in India to obtain injunctions against unknown infringers. Courts have issued such orders directing ISPs to block websites hosting pirated content, particularly for films.

Dynamic injunctions allow rights holders to add mirror sites, redirect URLs, and new infringing sites to existing blocking orders without obtaining fresh court orders each time. Indian courts have started granting such orders.

The GI Act was enacted in 1999 and came into force on September 15, 2003. It provides for registration and protection of geographical indications relating to goods in India.

Darjeeling Tea was the first product to receive GI registration in India (GI No. 1) in 2004. It is also protected as a GI in multiple countries worldwide.

GI registration in India is valid for 10 years and can be renewed indefinitely for successive 10-year periods. Unlike patents, GIs can be perpetually renewed as long as the quality standards are maintained.

The Basmati rice controversy arises because Basmati is traditionally grown in the Indo-Gangetic plains spanning both India and Pakistan. Both countries claim GI rights, making international protection complex, especially in the EU.

Under the GI Act, applications can be made by any association of persons, producers, organization, or authority established to represent the interests of producers of the concerned goods. Individual producers cannot apply alone.

GIs are collective, community rights that cannot be assigned, transmitted, or licensed. They belong to all producers in the defined geographical area who meet the quality standards, unlike trademarks which can be individually owned and transferred.

The Protection of Plant Varieties and Farmers' Rights (PPVFR) Act was enacted in 2001. It is a sui generis system that balances breeders' rights with farmers' rights, as required under TRIPS Article 27.3(b).

Section 39 of PPVFR Act grants farmers the right to save, use, sow, resow, exchange, share, or sell farm produce including seed of a protected variety, provided they don't sell it under the protected variety's brand name.

Plant varieties must satisfy the NDUS criteria: Novelty, Distinctiveness, Uniformity, and Stability. These are similar to UPOV requirements but the PPVFR Act also recognizes extant varieties and farmers' varieties.

Under the PPVFR Act, the term of protection is 18 years for trees and vines, and 15 years for other crops, and 9 years for extant varieties. This reflects the longer development cycles for perennial plants.

The National Gene Fund under PPVFR Act supports benefit sharing with farming communities, conservation of genetic resources, and compensation claims from farmers whose traditional knowledge has been used in variety development.

In PepsiCo v. Gujarat farmers (2019), PepsiCo sued farmers for growing its registered potato variety FL-2027 (used for Lay's chips). After public outcry, PepsiCo withdrew the suits, highlighting tensions between plant variety rights and farmers' rights.

The Designs Act, 2000 replaced the earlier Designs Act, 1911. It came into force on May 11, 2001, and provides for registration and protection of industrial designs in India.

Under Section 2(d), a design means features of shape, configuration, pattern, ornament, or composition of lines or colors applied to any article, whether 2D or 3D, by any industrial process, that appeals to the eye.

Design registration in India is initially valid for 10 years from the date of registration, which can be extended by another 5 years upon payment of the prescribed fee, for a maximum total of 15 years.

The key requirement for design registration is novelty or originality. The design must be new and not previously published or used in India or elsewhere. Unlike patents, inventive step is not required.

Features dictated solely by technical or functional requirements cannot be registered as designs. Design protection is for aesthetic features, not technical solutions. Purely functional features should seek patent protection instead.

India acceded to the Hague Agreement in 2019 (effective September 2019). This allows Indian applicants to file international design applications through WIPO and enables foreign applicants to designate India in their international applications.