With the rapid technological advancements being made and the virtual world that we are all slowly adapting to, e-commerce sites have been flourishing like never before. With this, the importance of Intellectual Property Rights too have gained importance. The virtual space makes it difficult to detect and protect the Intellectual Property Rights granted to an individual. As it is extremely easy for a cyber criminal to hack and access the data of a person, online intellectual property infringements occur more than the offline ones. The main advantage for the cyber-criminal in this that despite hacking into accounts and accessing the data to misuse it, the anonymity of the offender remains intact and thus there are negligible chances of him getting caught. The icing on the cake is that though there are laws in India addressing cyber-crimes, they are not efficient and stringent enough.

There are various kinds of Intellectual Property Rights such as:

–        Copyrights

–        Trademark

–        Performers rights

–        Database rights

–        Patent

Advantages of Intellectual Property Rights:

–        Exclusive rights are granted to the original creator of the work

–        As exclusive rights are granted to the owner, work can be shared instead of keeping it confidential

–        Aids in both financial and social development

Intellectual Property Rights in Cyber space:

To safeguard and ensure the safety of the businesses that are being carried out in the online medium, the Intellectual Property Rights must be taken care of and protected. It is important to create and ensure an effective property management as well as a protection mechanism. It is the duty of the Intellectual Property Right owner to ensure that no mala fide acts done by the offender to ensure the safety and protection of the content.

There are various types of infringements such as Hyper linking, Framing, Meta tags, Copyright violation, spamming, etc.

The Patent law grants the security and protection of the original content and the inventions made by the authors which is in the form of computer effect which thus falls in the ambit of the cyber jurisdiction. The Patent Act of 1970 provides for the punishment for the unauthorised access and use of patents of other original workers. It penalises this Act and provides for the punishment for up to a period of two years. As per the Section 118, it also penalises for the contravention of secrecy provisions in the field of Intellectual Property Rights. Section 120 of the Patent Law Act punishes for the unauthorised claim into patent rights of an individual with a fine of one lakh rupees.

The main attempt in this field is to protect the original work and the content created by the original worker. A number of treaties such as Trade Related Aspects of Intellectual Property Rights (TRIPS) were accepted at the Berne Convention which provides for the protection and safeguard of original artistic and literary works. Other such treaties are the Deposit of International Designs, the Patent Cooperation Treaty and the WIPO Copyright treaty.

As the vulnerability is high in the cyberspace, it is of utmost importance to make this space safe and secure. A few strategies that could be adopted to ensure this are as follows:

–        Create a safe and secure cyber ecosystem

–        Open standards must be encouraged

–        The Regulatory Framework must be strengthened

–        Mechanisms of IT security must be created

–        More number of E-governance services

–        The core critical information structure must be protected

Intellectual Property Rights in IT based technologies:

There are a few Information Technology Products that are safeguarded as Intellectual Property such as databases, software, hardware and web processes such as e-commerce websites, e-commerce websites with domain names, cyber contracts, trademarks and patents.

Patents in Information Technology:

Any kinds of practical application in the computer device is known to be patentable. Not all soft wares are patentable but devices like pacemakers are very much patentable. A particular computer program is authorised for patenting only when it contributes to an art. If this program enhances the speed and the efficiency of the existing program, it has the eligibility to get a patent for the same program. A few software patents are as follows:

–        Program algorithms

–        Program language translations

–        Menu arrangements

–        OS functions

–        Editing functions and interface features

–        Display presentations

The United States of America has recognised the patents for businesses like online stock trading, gambling, e-commerce, etc.

What is non-patentable?

Soft wares are basically a form of intangible properties that are safeguarded by copyrights and not patents, as in the case of literary and artistic works. Programming languages are treated as any basic languages like English, French, etc are also not patentable but are protected under the copyright law. Many countries have been debating regarding this to make even the software programming languages to be protected under the patent law as the patent law provides for a larger protection. The computer programmes and languages are not considered as a new invention as they only solve a mathematical or a computer related problem and thus is not used in any practical application and field.

Difference between a patent and a copyright?

The protection granted by a patent is much stronger as compared to the protection granted under the copyright act. The patent law safeguards the whole concept with which the invention has been made whereas the copyright safeguards the overall outcome of the invention and the concept. In the programming languages, if any program code has the same function of another, the patent law is said to be violated. Patents have a longer process that includes filing whereas a copyright is effective immediately after they are given the publication right.

In India, the patent once granted is valid only for a period of 14 years whereas the copyright once granted is effective for as long as the original creator lives as well as another 60 years. The patent is known to give a stronger protection to the programming language and it is known to violate the patent if a similar program is made and not the copyright law. Patents are known to be statutory and are thus protected by the Government body that comes within that particular jurisdiction. On the other side, copyrights are known to be a universal right.

Software patent law in India

There is no specific provision pertaining to the protection of software in the Indian Patent Law.[1]The Indian Patent Office does not follow any guidelines with regards to the computer software. As the computer coding programmes and languages are not patentable, depending on the functioning of the particular programme, it may be granted the patent. India has taken a step forward in granting registration for patents.

Cyber laws

India has enacted various legislations such as the Information Technology Act, 2000 which issues various guidelines pertaining to the activities that could be carried out in the cyberspace. As per the cyber laws in India, the Intellectual Properties may be used by anyone strictly only for research purposes, and this does not mean that the researcher can use the exact same work. He must give the credits and references to the original author.

Cyber Crime

A cyber crime is given under the Information Technology Act, 2000 as any unauthorised access into the computer system or network to cause disruption of the data stored and misuse it. The cyber criminal may choose to cause damage to the network by introducing computer contaminants into the software, by hacking into the system. The provisions of the said Act attempt at penalising each cyber offence committed. The punishment differs from case to case depending on the crime committed as well as the facts and circumstances of the case.

Patent misuse:

It is an illegal behaviour committed by the owner of the patent rights. It is an affirmative defence which is recognises the fact that it is possible that the owner of the patent to abuse the exclusive patent right granted to him.[2]

When a patent misuse has been constituted, the patent would be deemed useless. It constitutes an illegal behaviour where the patent owner may constitute a patent misuse: The patent owner may either violate the antitrust laws or improperly widen the scope of the patent with an ill intention to derive profits out of the same. The patent in dispute must be held unenforceable until the dispute has been resolved between the two parties.[3]

For instance, a patent misuse is said to be constituted when the original patent holder tries to expand his product with the particular patent by entering into other licensing agreements. This is the intentional misuse of a patent by the original creator himself.

Patent misuse in the technology industry:

It is extremely easy for technological products to overlap with another similar product which basically constitutes a technological patent infringement or misuse. Following are a few famous cases:

–        The Amazon company made an attempt in adopting the one-click patent.

–        Microsoft and Google resolved a patent issue for over five years regarding the X-Box gaming console as well as the smartphones of the brand name – Motorola.

A few landmark cases pertaining to the misuse and infringement of patent are as follows.

–        The famous case of O’Reilly V. Morse concluded that mere copying of the idea does not constitute the misuse of the patent. Patent misuse is said to be constituted only when the copied idea is executed.

–        In the case of Manufacturing Company V. Convertible Top Replacement Company, it was held that a clear distinction must be made between the repairing of a patented product as well as the reconstruction of a patented product.

–        The famous case of KSR V. Teleflex held that for any inventions made that have an obvious concept, there must not be any patent right. It was said that the patent rights must be given only to innovative inventions.

–        The case of Alice Corporation V. CLS Bank held that a few inventions and ideas are too vague and abstract to be given the patent right.[4]

Apple V. Samsung:

A very famous case in the field of patent infringement is the case of Apple V. Samsung that went on for about 7 years.[5] The dispute revolved around allegations made by Apple that Samsung has copied the phone design, similar features like tapping on the screen to zoom as well as the similarities in the layout of the home screen. The dispute was resolved in the Court of Law in the United States of America. More than 50 patent dispute cases had been filed by the two parties in various countries across the globe such as Italy, Japan, England, France, etc.

In 2010, Apple had sent a notice to Samsung to be aware of copying and creating a similar software and filed a suit in 2011. Samsung denied the accusations by saying that Apple copied the patents of Samsung, but the jury has favoured Apple by asking them to pay a sum of around 1 billion dollars. In the revision trial when the Jury finally said that there has been a mutual patent infringement that has been constituted by both the parties, the companies came into a mutual agreement to drop all the patent infringement cases that had been filed. 16 smartphones that were in the dispute of patent infringement were not available in the market during the trials of the suit. Finally, in 2018, the Supreme Court rejected the plea saying that the patent infringement has occurred but not of the entire device but only a part of it. Samsung was ordered to pay around 540 billion dollars to Apple as compensatory charged for copying of features.

Various guidelines have been issued in various Conventions such as the Berne Convention, OECD Convention on Data Protection, the WIPO Performance and Phonograms treaty, etc. to ensure that the Intellectual Property Rights are safeguarded and not misused even on the wide online platforms. As the world is swiftly adapting to the cyber space and living in a virtual world, the rights of an individual too must be protected with utmost care as it is very easy to fall prey to the cyber-crimes owing to the advantages that the cyber offender has as his identity remains anonymous. The legislations that we have now are not efficient enough and this can be clearly understood with the enormously increasing cyber-crimes on a daily basis.