The author of a work may relinquish all or any of the rights in the copyright in the
work by giving notice in the prescribed form to the Register of Copyrights and there
upon, such rights cease to exist from the date of the notice.
On receipt of the above notice, the Registrar of copyrights shall cause it be published
in the official Gazette and in such other necessary manner.
The relinquishment of all or any of the rights in the copyright in a work does not
affect any rights subsisting in favour of any person on the date of the above notice.
7.4.Procedure
On a complaint being made to the Copyright Board, the Board, after giving the owner
of the copyright an opportunity of being heard and after holding necessary enquiries,
may direct the Registrar of Copyright to grant to the complainant a licence to
republish the work, perform the work in public or communicate the work to the public
by broadcast, as the case may be, subject to payment to the owner of the copyright
reasonable compensation and subject to other terms and conditions, if necessary. The
Registrar will then grant the licence on payment of such fee as may be prescribed.
10.2.Civil Remedies
10.2.1.Procedure
The procedure before the court in a suit for infringement copyright is governed by the
Code of Civil Procedure.
10.4.Interlocutory Injunction
In order to secure immediate protection from a threatened infringement or from the
continuance of an infringement, a plaintiff may apply for an interlocutory injunction
pending the trial of the action or further orders. An application for such relief is made
along with the plaint supported by affidavit evidence. Very often an ex parte
injunction is also sought, i.e. a temporary injunction granted for a short period, for a
week or so,before the defendant has notice of the suit or is heard.
For obtaining an interlocutory injunction the plaintiff has to establish a prima facie
case and that the balance of convenience is in his favour and that if the interim order
is not granted it will cause irreparable injury to the plaintiff.
The defendant if injured as a result of the injunction, will be entitled to compensation
by virtue of an undertaking as to damages by the plaintiff which is an invariable
condition of the granting of such an injunction. An interlocutory injunction will not be
granted where the defendant might suffer irreparable injury from an injunction
pending trial and the plaintiff can be protected by the defendant being ordered to keep
an account, nor will it normally be granted where a bona fide defence of fair dealing
has been pleaded, or if the plaintiff has been guilty of undue drill coming to the court
or his conduct amounted to acquiescence in the infringement or if there is any
substantial doubt as to the plaintiff's right to succeed. It has been held that in
considering whether to grant an interlocutory injunction the court must look at the
whole case. It must have regard not only to the strength of the claim, but also to the
strength of the defence and then decide what is best to be done. The remedy by way of
interlocutory injunction must not be made the subject
of strict rules.
10.7.2.Slander of Title
If a publisher publishes the work of A under the name of B with the approval of B and
without the consent of A, A may, in the absence of any express or implied contract,
sue the publisher and B for malicious falsehood or slander of title.
Copyright Act provides that the author of a work has the right to claim the authorship
of the work. The Berne Copyright Convention also recognizes this right. If this right is
infringed the author can take proceedings against the persons concerned for the relief
of injunction and damages. The right to claim authorship exists even after the
assignment of the copyright in the work and can be exercised by the legal
representatives of the author.
The plaintiff has to prove that the statement or representations complained of were
false or untrue; that they were made maliciously, that is, without just cause or excuse,
and that the plaintiff has suffered special damage thereby.
Malice in the law of slander of title and other forms of injurious falsehood means
some
dishonest or otherwise improper motive. An intent to injure without just cause or
excuse
is sufficient.
12.1. Patent
A patent is an exclusive right granted to a person who has invented a new and useful
article or an improvement of an existing article or a new process of making an article.
It consists of an exclusive right to manufacture the new article invented or
manufacture an article according to the invented process for a limited period. After the
expiry of the duration of patent, anybody can make use of the invention.
The concept of patent and its essential ingredients like novelty, inventive step, lack of
obviousness and sufficiency of description have remained the same ever since it was
conceived over four hundred years ago.
A patent is a form of industrial property or as it is now called intellectual property.
The owner of the patent can sell this property. He can also grant licences to others to
exploit the patent. The property in a patent is similar in many respects to other forms
of property.
A patent being a creation of statute is territorial in extent. A patent granted in one state
cannot be enforced in another state unless the invention concerned is also patented in
that state.
A patent is not granted for an idea or principle as such, but for some article or the
process of making some article applying the idea.
12.2.Invention
To invent literally means to find out something, to discover something not found or
discovered by anyone before. It is the production or introduction of a new thing for
the first time by exercising ones own mind, skill and labour. It must not be known
to the public prior to the claim made by the inventor.
12.2.1.Definition-Under S. 1(1)(j) of the Patents Act, 1970 (as amended in 2002)
an invention is defined as follows: Invention means a new product or process
involving an inventive step and
capable of industrial application.
The Patent (Amendment) Act 2005 defines new invention to mean any invention
or technology which has not been anticipated by publication in any document or used
in the country or elsewhere in the world before the date of filing patent application
with complete specification i.e. the subject matter has not fallen in the public domain
or that it does not form part of the state of the art. Patent can be granted for either
products or processes. In the case of product patent, the product itself is patented by
the inventor. For example, say if the inventor invents a new drug which can itself
prevent the occurrence of influenza he would get a patent over the product i.e. the
drug itself. This means that the exclusive right to manufacture that drug vests with the
inventor. Consequently, none apart from the one who holds the patent in the product
can manufacture the product
irrespective of the fact that the new manufacturer uses a process completely different
from the patent holder.
It has been held that a method or process is a manufacture if it
results in the production of some vendible product, or
improves, or restores to its former condition a vendible product or
has the effect of preserving from deterioration some vendible products to which it
is applied.
A patent can be obtained only for an invention which is new and useful. The invention
must relate to a machine, article or substance produced by manufacture, or the process
of manufacture of an article. A patent may also be obtained for an improvement of an
article or of a process of manufacture. In regard to medicine or drug and certain
classes of chemicals no patent is granted for the substance itself even if new, but a
process of manufacturing the substance is patentable.
The applicant for a patent must be the true and first inventor or a person who has
derived title from him, the right to apply for a patent being assignable. He must give a
full and sufficient disclosure of the invention and specify the precise limits of the
monopoly claimed. The invention claimed must be novel and must not be obvious to
those who are skilled in the art to which it relates.
The three essential requirements of a patentable invention are novelty, inventiveness
(i.e. inventive step or lack of obviousness) and utility. There are some inventions
which may satisfy the above criteria but are still not patentable.
14.5.Reliefs
The reliefs available to a successful plaintiff in a suit for infringement include:
1. an injunction, and
2. either damages or account of profits.
The power to grant reliefs is subject to certain restrictions. Thus where the patent is
endorsed licences of right, and the infringing defendant is ready and willing to
take a compulsory licence no injunction will be granted. In the case of innocent
infringement no, damages or account of profits will be granted. Damages or account
of profits may be refused in respect of infringement committed after a failure to pay
the renewal fee within the prescribed period. In certain circumstances damn or
account of profits will not be granted in respect of the use of the invention before the
date of amendment where the specification has been amended after its publication. If
the patent is held to be only partially valid, reliefs may be granted in respect of the
valid claims which is infringed,provided the plaintiff proves that the invalid claim was
framed in good faith and with reasonable skill and knowledge.
14.5.1.Interlocutory Injunction
The plaintiff may at the commencement of the action move for an interim injunction
to restrain the defendant from committing the acts complained of until the hearing of
the action or further orders.
The principles upon which an interlocutory injunction may be granted in a patent
action are the same as in any other action, namely, that the plaintiff should make out a
prima facie case and also that the balance of convenience lies in his favour. In patent
actions it may frequently happen that the defendant is able to show that there are
substantial grounds for disputing the validity of the patent and often also that there are
good reasons for saying that his apparatus does not infringe the plaintiff's claim. If
either of those circumstances are shown to be present, the court may not grant an
interlocutory injunction. The onus of showing a prima facie case which lies on the
plaintiff is a heavy one and that it is comparatively easy for the defendant to establish
a defence sufficient to prevent the grant of such an injunction. The remedy by
interlocutory injunction is kept flexible and discretionary and is not made the subject
of strict rules.The object of an interlocutory injunction is to protect the plaintiff
against injury by violation of his rights for which he could not be adequately
compensated in damages recoverable in the action if he succeeds at the trial. The court
must weigh one need against another and determine where the balance of convenience
lies. In granting the injunction the court must be satisfied that the claim is not
frivolous or vexatious; in other words, that there is a serious question to be tried.
Various factors are taken into consideration in deciding the balance of convenience,
such as whether the patent is a new one or an old one, whether the defendant's trade is
a new one or an old established one and so on. If a patent is a new one, challenging its
validity may be sufficient for a refusal of an injunction, but if the patent is sufficiently
old and has been worked, the court would, for the purpose of temporary injunction
presume the patent to be a valid one. Even if a likelihood of infringement is
established, interlocutory injunction will be refused if there is a serious attack on the
validity of the patent. If the patent relied on will expire before the action can be heard,
the balance of convenience can be considered against the grant of an interlocutory
injunction.
14.5.3.Assessment of damages
In assessing damages the sole question is what is the loss sustained by the patentee by
reason of the unlawful sale of the defendants goods. The loss must be the natural
and direct consequence of the defendants' acts. The object of damages is to
compensate for loss or injury. The general rule is that the measure of damages is to be,
so far as possible, that sum of money which will put the injured party in the same
position as he would have been in, if he had not sustained the wrong. There are two
essential principles in valuing the damages, first, that the plaintiffs have the burden of
proving their loss; second, that defendants being wrongdoers, damages should be
liberally assessed but the object of this is to compensate the plaintiffs and not to
punish the defendants.
The measure of damages may be estimated by applying the following principles:
1. Where the patentee manufactures the product and does not grant licences, the
measure of damages will be the profit which would have been realized by the owner
of the patent if the sales of the infringing articles had been made by him.
2. Where the patent is exploited through the granting of licences for royalty payments,
the measure of damages which the infringer must pay will be the sums which he
would have paid by way of royalty, if instead of acting illegally, he had acted legally.
The solution to this problem will depend upon the evidence as the rates of royalty may
vary from time to time.
3. The pecuniary equivalent of the injury resulting from the natural consequences of
the acts done by the defendants. An estimate should be made of the number of articles
the plaintiff did sell less by reason of the acts of the defendants. Then find the profit
that they would have made upon each article.
4. Where only a part of a complex machine is protected by a patent the importance of
the patented part to the whole machine should be considered. If it forms the very
essence of the machine damages may be measured by the profit on the whole
machine; otherwise account should be taken only of the patented part.