Opinion: E-Contracts && IP

 

The essential component of any contract is Consideration in return; unless and until it is restricted to charity, gifts, family affections etc. Now, unless any organization is registered as a non-profit, or, there’s a family affection involved; generally, there must be some kind of consideration involved; until further that isn’t in contravention to any laws of the land, for eg., in case of minors being the signatory, or, unlawful purposes, etc.

Now, if we converge both the E-Contracts && IPR; then there’s a relation that can be included, which I presume so far not being taken into account. We’ve mostly three types of E-Contracts: Shrink-Wrap; Browse- Wrap and Click-Wrap. The concerns are w.r.t. Click-Wrap & Browse-Wrap.

A Need to Re-Implementation of BERNE Convention!

 

Whether it comes to imitating in the mainstream; or the DATA on the Internet which is being used against the provisions of every single reciprocal treaties or TRIPS agreement; which was ought to have been restricted for personal & private use, R&D, academic only; YET, that has been used to train from AIs for 'commercial usage' (against Article 10 & 10bis, 11 ter, 12 of BERNE Convention), to, someone’s ancient knowledge been projected as someone else’s, as the latter being the architect of the same; or, whether the natural habitat & the presence of  its steroidal compounds in lab being extracted (albeit that would come under the ambit of Patents again), and then being claimed as the originator & inventor of the same.

EU’s AI ACT

 

Important Aspects of EU's AI ACT

Opinion

•          ChatGPT alike Generative AI are albeit not being considered as High Risk, but would’ve to adhere with the Copyright Regulations. And as the Copyright Act is governed by the BERNE Convention and there’s no Formality required, unlike in the case of WIPO’s Madrid, PCT & Hague; then that means ChatGPT and its cousins, friends, enemies; have to adhere by the Copyright Laws. This would be troubling for them. As they would’ve to publish the Data used for Training of AI models. If someone remembers, NYT sued ChatGPT because of the same reason. And as I also pointed out in my book and blogs that how algorithms being used by manipulation of DATA to index the pages in search; then that might also come under the ambit of this regulation.

What Defines Originality?

 

Whilst filing for the copyright, of course, one would be asked whether the work is original or translation or adaptation as shown below.

But according to me, what is Copyrightable shouldn’t qualify to implicitly become Original, or be part of the term - > Originality.

International Filing System Has Few Flaws!

 

If we can have copyright reciprocal treaties, why can’t that be the case for patents, trademarks, domain disputes without WIPO being involved? It’s understandable that everything comes down to how the payment at the local prosecution would be made, and as of course, the countries who file for most of patent and trademark applications, or domain name disputes, would end up having control over the arguments and legal nitty-gritties being embedded into the global system. And why the present system not fully serves the point of being contending for uniqueness in the World, without having so much of obstructions, in terms of both prosecution and cost involved. And of course, I’m not soliciting pro-bono. But a system, where uniqueness can evolve without limiting its scope to take action against anyone who adapts, derives, copies, infringe, pass off without permission.

Is PCT Relevant?

 

Notice the difference between the examination/scrutiny/objections in case of trademarks VS that issued in patents. In the former case, from the examination report to the scrutiny; include territorial prior works. Whilst in case of patents, examination reports consist of global prior arts, yet, if in case patent is granted, then rights are territorial only, like in case of trademarks. Exclude Copyrights due to reciprocal treaties.

Certificate of Inventorship Needs An Upgrade

 

In one of my previous blogs https://www.jpranavc.in/2022/12/the-inventors-who-arent-inventors.html , I opined that why every inventor’s actual contribution in the invention must be included; precisely bifurcated, segregated; in the declaration of the inventorship itself, so much so that, once the application becomes public (pre-grant or post-grant), one would be able to know who contributed what in the invention.

When Trade-Secrets Are Tried To Be Superimposed Over Patents!

It should be considered a wrong precedence if in case trade-secrets are being superimposed, or, tried to be superimposed over patents! The ‘generalized’ structure of the claims shouldn’t become the part of the specification anywhere. The non-inclusion of the precise metrics in the claims, in anticipation of then being used the same invention as a trade secret, should be negated in the specification. As the invention itself is restricted to the scope defined by the best method performed, and not wherein in the generalized definition in anticipation of the same invention to be then being considered as the trade secret as well. And there’s a reason behind that.

The Apple Watch Dilemma

 

Remember, Waymo vs Uber involving Levandowski’s case, wherein it was alleged that Levandowski stole trade secrets to then being used by Uber via acquired firm Otto, that Levandowski started, with all its IP assets, ending up Levandowski’s sentencing, whereas Uber-Waymo signing non-disclosed settlement agreement!

Is Google Committing a Mistake?

Check the below tweet that I had sent couple of years back (when I was on Twitter) to google (gmail), microsoft (outlook), yahoo (yahoomail); indirectly asking them NOT to delete emails related data, unless & until been explicitly requested by the User itself.
 

 

NOW,

The Trade Mark Case involving ‘Trump Too Small’

 

In one of my previous blog, I discussed how and why using some well-known names or surnames which are already being traded in the market could cause infringement, despite the applicant itself sharing the same/similar name or surname. I cited some examples viz. Trump, Tata, Ford, Gucci & the list goes on. I further wrote another blog on Jack Daniels vs Bad Spaniels case wherein I tried to draw the line (personal views) between liberty vs infringement.

The DPDP Saga

 

Few Questions & Review:

1.   The wordings for the data scraping provisions missing.

2.   The Data Privacy breach penalties are upto 250 crores. Penalty on the Data Principal is 10k.

3.   S.17(1)(d) says: d) personal data of Data Principals not within the territory of India is processed pursuant to any contract entered into with any person outside the territory of India by any person based in India; the exemptions suited for IT/ITES.

The Limits of Fair Use / Fair Dealing

 

There’s a difference between non-infringement vs. becoming actual claimant of the work produced to be then considered as protected under copyright, whether derived/adapted (eg. a theatrical act derived from any book which would explicitly require permission), or, transformed (eg. critical analysis & research that changes characteristics of original work to a greater degree, even without permission under fair use / fair dealing). As non-infringement work isn’t always compounded to be considered as novel minus original; irrespective of the subsequent actions of the original copyright holder; and further, depending on the length & extent of the original work, derived or transformed; question is, can such end products be actually protected under copyright?

The Dilemma of Claims in Patents

 

There’s no (or shouldn’t be any) inflexible rule for drafting claims, for example -> all inventive features should come or characterized or comprised in Claim 1 only as independent or not, & the followed subsequent claims shalt be (in)dependent or derivatives of the first etc.

The Claims (use, method, process/product, composition) shalt define the scope of the invention (whether as independent or dependent) what’s cited in specification. No more, no less! Subject to, they shalt not be loosely connected. By merely discerning Claim 1, one shouldn’t deduce the inventive feature of the Invention, otherwise, what’s the point of drafting claims after such lengthy specifications? Verbose friendly system?  

Data Scraping

 

With the new updated Google’s Privacy Policy read as:

publicly accessible sources 

“For example, we may collect information that’s publicly available online or from other public sources to help train Google’s languageAI models and build products and features like Google Translate, Bard, and Cloud AI capabilities. Or, if your business’s information appears on a website, we may index and display it on Google services;”

Use vs Territorial vs Monopoly

 

If the examination of any patent includes global application citations, then technically, is there any point of considering patent territorial, & furthermore making the use of PCT, then seems more redundant, unlike Madrid in TM, as citations differ in both, wherein latter is more territorially defined.

If mere manufacturing for export is considered as use within any territory w.r.t. TM, then shouldn’t rights being implicitly enabled beyond territory (especially of branded) (UFO Contemporary Inc TM case), even in case of non-use?

Liberty VS Infringement

 

The recent Jack Daniel’s TM Infringement Case once again has raised the question of where the distinction between Liberty and Infringement be drawn.

The case involves infringement of Jack Daniel's TM by VIP Products that made a dog accessory (a chew toy) named as Bad Spaniels along with The Old No.2, on your Tennessee Carpet in it, that resembles the Label, Shape of Bottle, TM of Jack Daniel’s that include Jack Daniel’s along with Old No. 7, Tennessee Whiskey. It’s basically more of a Trade Dress & Shape of Bottle Infringement Case. The Shape of bottle & Shape of the dog toy is same. Label is visually same. Trade Dress seems similar. But yes, both word mark Jack Daniel’s & Bad Spaniels seems different.

ChatGPT vs IP

 

DABUS wasn’t considered as the Inventor as it wasn’t the Natural Person.

What about the content created by ChatGPT? The human input or ChatGPT itself or OPEN AI, Who exactly owns that content?

In one of my earlier blogs, I discussed the case of AI being an Inventor citing example of DABUS. In the case of ChatGPT, I decided to converse with it (conversations assembled in several pages). One of the questions I asked it was to write a poetry on a particular subject. It generated an output (a poem), as anticipated. I repeated the question, but now on a slightly different subject. It generated another new poem but this time with few repeated lines taken from the previous ones.

The Inventors' Who Aren't Inventors'!

 

The moment a common name starts appearing in several different inventions associated with distinct subjects/domain/expertise (exclude computer science); one should conclude that he/she is the mere Investor/Owner/Assignee. The real Inventors’ are different, bounded by the Non-Disclosure/Employer-Employee Contract/Assignment; & that Investor/Owner just added their own names without adding any Inventive or Novel theory into that Invention. This has been happening for Decades. And according to me, this practice of adding names to Patents in the inventions wherein those who’ve neither contributed theoretically nor technically anything; should be stopped, everywhere. How this could be achieved?

Sound, Voice, Names, Memes, Face!

 

Can Sounds be trademarked? Yes! Via sonogram, musical notes and actual recording of thirty seconds, that can identify any product merely via sound, rather, visually. Copyrightable? Yes!

Can Voice be trademarked? Nope! Copyrighted? Sort of, via collection of well-known personality traits + performer’s rights & moral rights (copyright) + protection of life & personal liberty (constitution). But it should be extremely well-known, at least territorially.

Can Names/Surnames be trademarked? Yes. But are Conditional!

Different Goods, Same Class, TM!

 

As we know, there’re different classes in TM & one acquires exclusive rights over the TM in a class (which again, consists of several set of different goods/services) w.r.t. goods or services manufactured or proffered. But what if there’re two different goods or services falling under the same class, and further, there’re two contenders for the exclusive rights or user, of the same TM?

Restoration of Patents

 

Let’s say, you were granted a Patent. Then the intimation letter would’ve clearly instructed you to pay the annuity renewal fee U/S 142 (4), also read with U/S 53, payable w.r.t. 3rd year onwards from the Date of Patent i.e. (filing date) before expiration of second year from the date of patent; and furthermore within 3 months (or not later than the extended period of 9 months) from the date of recordal of Patent in the Register. Albeit, the said fees is supposed to be filed within that duration; but somehow the renewal fees wasn’t deposited, & the Patent ceased to exist. So what’s the remedy?

I.D.A.

 

The present blog isn’t my subject specific domain,  yet, thought to write about this.

There was a discussion regarding -> whilst the Industrial Dispute covered the definition of Workman (S.2s) & the Employer (S.2g), it circumvented on defining an Employee (eg. let’s say Software Engineers). So, the way Workman is covered against Laying Off, Retrenchment etc.; Employees, as mentioned above, should’ve also been covered. For example, IT or Finance Sector Employees protected from being Laid Off or Retrenched, especially at the time of Recession or amidst the likes of Covid lockdown.

Registered Proprietor, Registered or Permitted User & Assignment in TM

 

An assignment in TM can’t create parallel exclusive rights nor territorial different exclusive rights, for similar goods or services.

A registered user is the user of any registered TM, u/s 49; becomes registered, post filing a proposed application for the same jointly with registered proprietor of the said TM (owner); along with the TM user agreement executed with the latter; whereas, a permitted user is the user of the trade mark permitted to use by the registered proprietor via written agreement.

Trade Secrets, Confidentiality & IP (Patents & Copyrights)

Suppose you conceptualized a theme of a Dinosaur Combat with the surrounding nature similar to of that era, & further disclose it to someone else, make this individual sign with you an NDA, for any mutual future production work. Later, this individual, without disclosing you, makes a short or long series or flick, about a Dinosaur combat with similar theme containing elements (elements that define an expression of an idea) of the same era. Is it breach of confidentiality?  Further, are Trade Secrets dissimilar or similar to that of protection acquired by Patents? 

The Reply in Madrid System

 

The earlier few blogs already covered the Madrid System (which is nothing but what resides alike inside a Mall (WIPO) with different showrooms (Contracting Parties (member nations)) in it, where you decide in which shop (designated Contracting Party) you want to approach for your TM to be registered whereas Mall (WIPO) is merely checking security at entry (Irregularities) whilst entering the Mall & guiding you further to different shops with an entrance fee). Also, the previous blogs covered the PCT (Patents), Hague (Design), WIPO Domain Disputes Redressal (UDRP), G.I., Evidence in IP, some part of IT etc., where, when & how to approach & reply &, the further coming blogs would deep dive furthermore into it.

Digital Copyrights

 

There shouldn’t be any distortion in the hereinunder flow:

Start -> Author -> Publisher -> Distributor (if any, of publisher(s)) -> Seller -> End User -> Stop.

For example, In 2009, Amazon Kindle had to delete e-book copies of 1984 & Animal Farm at the end user’s accounts’ as there was a break in the above chain work flow, as the uploading publisher had no relevant rights directly with author or its assigned publisher or distributor, thus leaving Amazon not having rights to execute contract with the end user buyers/readers’ (somewhat similar to void-ab-initio).

Assignment in IP

 

Both context & concept of Assignment in IP differs as explained:

G.I. - > Herein, any right acquired via registration isn’t a subject matter of assignment (S.24) whereas right of any authorized user (as explained in previous blog) would be passed via succession only.

Domain Disputes

 

One of my previous blog briefed about UDRP process for cybersquatting (TM) related disputes, in-depth, from filing - complaint, response; to selecting panel members to time period involved. URS is another light version mechanism used to resolve cybersquatting disputes with almost similar process. Whereas, the present blog briefly explains miscellaneous domain related issues, when arisen &, where to approach.

G.I. vs TM

 

Article 22-24 of TRIPS Agreement (as already discussed in previous blog in detail with examples of limited suspension of IP rights w.r.t to covid vaccines amidst Covid biowarfare) defines Geographical Indication (G.I.), Whereas, Article 15-21 elucidate about Trademark (TM) (again, as already explained in-depth upto how to globally handle in one of my previous blog). But what exactly is the difference between TM & G.I. & further, can TM be registered as G.I.? To differentiate it with G.I., here’ a small definition:

Electronic Evidence w.r.t. IP

 

Digital forensic (of course, isn’t my domain) involves analysis of vulnerabilities via logs, metadata, flow control, network connections, registry data, event logs, storage, file integrity, etc. to detect and track security incidents & compile such data as evidence. This blog basically surrounds electronic records aka evidence w.r.t. IP only, which is in continuation with one of my earlier blog elucidating concept of Online Contracts; and of course further, along with it, my alternate concern + suggestion. Basically, these things hardly change (except the Tech part), which are written in several other similar books, articles or journals. And writing case precedences is mere an act of compilation. 

Design<->TM (When Juxtaposed)!

 

If we can interpret a sentence into several different or distinct meanings, then that framed sentence only is flawed. And that also implies to any legal definition. I’m absolutely not endorsing in verbatim studies or discussing question of law itself, BUT still, what can be precisely defined, (s)could be defined. And this is the reason that for more than millennium, holy wars were unleashed because of misinterpretation of sentences. This ain’t Science, that works on successive steps. Framing of Sentences are in our hands & can be drafted unambiguously.

AI, The Inventor?

 

Is DABUS an Inventor?

 

Well, the UK, US & EPO don’t think so, whereas, South Africa has another opinion. In my Blogs, I always TRY, NOT to discuss or write repetitive cases or laws or case precedences, rather, produce novel arguments, precise notions or prototypes aka blue prints, for certain practices or system that can be changed for good. And what’s the harm adding probable contentions amongst several other already existing!

Exclusive Rights on Name-Surname in TM!

 

The extensive commercial use along with a well-known status on paper gives someone the exclusive rights to be a proprietor of one’s own Surname or even Name, over Others. For example, suppose your surname/name starts or ends with Tata or Trump or Sony or Gucci or Ambani or similar known alike; and you decide to launch your own products or services with your surname/name, anticipating that you’re merely using your own surname/name for its commercial exploitation & have an exclusive rights to do that & further not being in any case infringing/passing off any said surname/name as mentioned supra, which have already acquired a well-known status on paper. Well, you can’t do that & would basically end up infringing/passing off the above trade marks/trade names aka well-known surnames/names.

Theranos Trial!

 

Basics:

How do we define an Invention?

It’s a product or process built with novel inventive step(s) capable of being industrial applicable.

 

There’re no words alike may, might, method, probable in any Claims Section of any Patent Application, as Claims are precise, concise, elucidated with exact values or measurements.

Disruption in Legal System!

 

The other day, I was leafing through online & came across to one of the presidential debates wherein one contender Ms. Fiorina contended for a Three page taxation code instead of 73,000 pages in US, which was rebutted by everyone else. There’s another debate going on, including in India, of abolishing taxes for good, as it creates load on only few honest tax payers. I’m sailing on the similar ship as a common man wherein to see the entire legal system being minimalistic but unparalleled. AI is an option, & of course is in use at many places, BUT, until General AI is built & planted everywhere with full Autonomy, it’s unworkable. Till then, it has to be done through human intervention.

Nominee vs Successor

 

IP too is subjected to inheritance. One may bequeath to Trust or via Will to its beneficiary Successors or if intestate, then proceeded via Succession act or if part of employment, then irrelevant as the company/firm owns it unless entered into with any special employment provisions. Other ways of transferring rights are through mortgage, license, assignment. And if co-owners, then it’s an undivided right, unless any agreement contrary in force; and rights which further cannot be shared or assigned by either one unless taken consent of the other. 

Right to be Forgotten!

 

DELETE! But What & Why?

 

That’s the dilemma in Right to be Forgotten. Is it Right to Privacy? Or is it an obstruction in Freedom of Speech? 

 

Already Modern Historians have done lot of damage in the World. So, is Right to be Forgotten another trick to obliterate actual Historical Facts whilst rewriting contentious Events?

The Usage of Term Invent!

This short blog contends, why using the term invent for any new word or phrase or expression is basically inappropriate or unreasonable.

As, one might have come across writings alike - ‘…that person actually invented those word(s) or expression(s)….!’  For eg. let’s consider the term ‘poverty porn’. Technically, that’s not invent nor invention or innovation.

Apple’s Privacy Dilemma!

 

This is continuation of my previous blog covering the R.4(2) of new IT guidelines, which also included the Apple’s dilemma of creating back door for unlocking the iPhone in San Bernardino case for National Security. The current blog is related to the scanning of User’s Data for identification of CSAM (Child Sexual Abuse Material) content, but, at the Client’s Side. And would this Apple’s feature negate its long standing repute of adhering to User’s Privacy, come what may? I’ll elucidate this point by point. 

The Anthology in TRIPS

A comprehensive Agreement with the most recent amendments + anthology of different pre-existing IP Treaties / Conventions viz. ICIT (For Integrated Circuit (IC) Design Layout), BERNE (For Copyrights i.e. Literary / Artistic Works), PARIS (For Industrial IP alike PAT/TM/Designs), ROME (For Performance, Broadcasting, Phonograms); constitute TRIPS Agreement. 

WIPO Arbitration w.r.t. IP & its Advantages!

 

As long as there are No Strings Attached….

 

Earlier few blogs briefly elucidated (Policy & Rules) facets of UDRP process for Domain Name Disputes adjudication w.r.t. Trademarks (cybersquatting). Further, WIPO ADR is another way to resolve Disputes w.r.t IP, initiated by the Claimant (one who initiate arbitration) in front of the Tribunal comprising of Arbitrator(s) at the Centre (WIPO) filed, only if & in accordance with the Arbitration Agreement entered between two Parties, which is a must. The compliance of Awards (awarded within three months post closure of proceedings) is given under Article 66 of the Arbitration Rules & shall be effective & binding, just alike any other Arbitration Award, which has limited scope of Appeal, except in cases of correcting technical defects, even at local level.

Singularity in Adjudication!

 

My next immediate blog regarding WIPO ADR Procedures & Rules for IP Arbitration, defines the scope of how adjudicating any matter could become robust via simplified step by step procedures, policies & rules; as, to my understanding, such are missing at other places. This blog elucidates reasons why simplicity & singularity are indispensable in modern times. 

Question of Fact or Law w.r.t. IP & an Alt Proposition!

 

The question of law is decided by presiding officer/judge. Question of fact by circumstantial exhibits. And its conclusion is reached whilst concluding the above two with case precedences aka case laws. For example, can a commonly used initial name be given an exclusive proprietorship rights under trade mark; becomes a mixed matter i.e. both question of law & fact.

Gain-of-Function & Patents

 

Thumb Rule:

Anything Novel Synthetic is Patentable. Natural isn’t as comes under ambit of Discoverable.

 

But when it comes to gain-of-function researches & kindred inventions, I strongly believe that they must be prosecuted as equalled to an invention kindred to Atomic Energy. Alike S.4 of IPA or S.20 of Atomic Energy Act or U.S.C. S.181 etc., wherein any invention is bound to be scrutinized by respective Government & if so found related to, could be withheld or restricted for publishing or grant or is transferred instantly. Thence, similarly, if & when any Patent kindred to gain-of-function research is ever filed, the said member nation must adhere to similar provisions as mentioned supra w.r.t. Atomic Energy, before reaching at the International Filing Process via Paris Convention or Direct (as already elucidated in detail in my previous blog).

Intent in Copyright

 

The foundation principle of law anywhere in short may be considered as, ‘Nothing is an offence until the intention (mens rea) is known, taking into account -> right vs right || right vs wrong || wrong vs wrong in any given circumstances.’ Wordings of my definition differ, but never its principle of working. As long as its context is justifiable & prudent, even if it’s beyond the in verbatim written jurisprudence. So, same goes for IP.