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Intellectual Property- Its Meaning and Development in India

“If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it." Thomas Jefferson.

Intellectual Property Rights (IPR) is the privileges given to the owners of works that are created with the help of individual intelligence. These creations can be in the business, technical, fictional and arty domains and can have various forms comprising, of scripts, inventions, software, a suite or a trade name.

The term "intellectual property" was introduced in the case of Davoll et al. v. Brown in October 1845 in the Massachusetts Circuit Court. In this Justice Charles L. Woodbury held that "only in this way can we protect intellectual property, the labors of the mind, productions and interests as much a man's own...as the wheat he cultivates, or the flocks he rears.” Section 1 of the French law of 1791 also stated that "All new discoveries are the property of the author; to assure the inventor the property and temporary enjoyment of his discovery, there shall be delivered to him a patent for five, ten or fifteen years.

The basic purpose of IPR is to guard the rights of an author for his work and simultaneously permit the general public to view his creativity. IPR law also puts time limits on the rights given to these authors so that a balance is maintained. Intellectual property, like any other form of property can become a material of trade, can be owned, sold as well as bought. This type of property is gradually becoming important for ensuring competition in a knowledge based economy.

Intellectual property is divided into the following categories:

 Copyright

 Patents

 Trade Marks

 Design Rights

 Passing off

 The law of Confidential information

Copyrights, are mainly issued for the protection of original expressions of art, literature, music, drama etc. – for example, Pepsi has a copyright on the phrase “Yeh Dil Maange More”

Patents are the rights granted to the inventor on new inventions which are not common – for example, Graham Bell got a patent on his invention of the telephone.

Trademarks are mainly issued for protection of the make or the brand name and symbol that may be used by the brand owner-for example, the name ‘Coca Cola’ is a sheltered trademark and only the makers can use it.

Design is issued for the protection of artistic or visual features in products – for example, a toothbrush with large bristles can get a legal protection for its unique design.

Confidential information and trade secrets can also be protected by imposing restrictions on the physical use of that information and also imposing contractual obligations upon the persons dealing with that information – for example, the formula for making Coca Cola has been kept secret in this manner.

There are various organizations that are working towards the protection of intellectual property. Some of them are as follows:

(a) World Intellectual Property Organization (WIPO) Geneva which sanctions various treaties in the field of intellectual property.

(b) Paris Convention for the Protection of Industrial Property (relating to patents, trademarks, designs, etc.) of 1883.

(c) Berne Convention for the Protection of Literary and Artistic Works (relating to copyright) of 1886.

(d) Patent Cooperation Treaty (PCT) through which patents can be obtained in different countries by filing a single application.

(e) World Trade Organization (WTO), which contains the Trade Related Aspects of Intellectual Property (TRIPS). This agreement creates an obligation on all the members to recognize intellectual property rights in their country.

In India the Department of Industrial Policy & Promotion is the supreme authority for all matters concerning WIPO. There have been remarkable developments in the field of intellectual property in India which is evident from the statistics shown below:

(a) In the year 1999-2000 there were merely 4824 application for patents that were filed whereas in 2006-2007 a total of 28,882 applications have been filed.

(b) There were merely 2824 applications examined in the year 1999-2000 whereas in 2006-2007 the number has gone up to 14,119 in 2006-07.

(c) There was a backlog of 5 lakh cases which has been brought down to zero now.

(d) The process of renewal of Trademarks certificates is now being done instantly and new applications are examined within a week.

(e) In 1999-2000, 8,010 registrations of trademarks were done which has increased to 109,361 now that is almost 13 times of the earlier figure.

(f) In the last four years there were 3.38 lakh trademark certificates issued, however in the last 64 years there were merely 1.65 lakh marks were registered.

(g) There have been 39 Geographical Indications products registrations since September, 2003. These include Darjeeling Tea, Pochanpally Ikat, Chaddar, Mysore Silk, Chanderi Saree, Kullu Shawl, Solapur Bidriware, etc.

(h) In the field of designs also the filing of applications has increased from 2874 to 5372 in 2006-07. The number of examined applications has also gone up to 5179 in 2006-07. The registrations in designs have also gone up to 4431 in 2006-07.

Current developments in the Intellectual property in India

(a) Establishment of NIIPM

The Government has already approved the proposal for establishment of a National Institute for Intellectual Property Management (NIIPM) at Nagpur. The Institute will perform training, education and research in this field.

(b) Modernization of the IP Offices

To provide additional employees, establish a higher level of computer network to support on-line processing, strengthen the data base and novelty search facilities, to make the people aware of generation activities, and to provide an access to international treaties/conventions easily the government is planning to modernize the IP offices. This proposal will be taken up in the 11th five year plan.

(c) Madrid Protocol on Trademarks

Madrid Protocol, administered by WIPO, is an uncomplicated, facilitative and lucrative system for the registration of International Trademarks. If India becomes a member of this then the Indian companies will have an advantage of registering their trademarks in all the countries which are the members of this protocol by filing a single application. The amendment of the Trade Marks Act is in progress so that our country can be a member of this protocol.

(d) International Searching Authority (ISA) and International Preliminary Examining Authority (IPEA)

ISA and IPEA’s provide search reports on uniqueness and examination reports on patentability of various inventions. In India a scheme is under consideration to get recognition for the Indian Patent Office as an International Searching Authority (ISA) and International Preliminary Examining Authority (IPEA) under the Patent Co-operation Treaty.

(d) Mashelkar Committee

The Indian government has established a group of technical experts to examine the following patent law issues:

(a) Whether it would be compatible to the TRIPS agreement to limit the grant of patent for pharmaceutical substances only to a new chemical entity or to a new medical entity.

(b) Whether it would be compatible to the TRIPS agreement to exclude micro-organisms from patenting.

The bottom-line is that India is one of the most responsible members of the WTO. Besides creating waves in the global software industry India has framed stringent laws for the protection of IPR in the country. Bill Gates, the chief executive officer of Microsoft Corporation, has rated India as one of the strongest pedestals for software development. It is evident from this statement that if a person like Bill Gates who is so much aware of the IPR issues can designate India as one of the upcoming destinations for the software development then the foreign companies should not worry about the protection of their intellectual property rights while investing in India.

About the Author

Raina Sabharwal
Legal Research Counsel
Mindsprings Solutions (India) Pvt.Ltd.
Website: www.mindsprings.net
Visit Blog:http://lpo-legalprocessoutsourcing.blogspot.com

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Microsoft Kinect (Natal) press conference E3 2010 - Part 4 of 5

Custom Software Development During The Credit Crunch

If your business depends on technological systems for its survival, the last thing you should be doing is suspending crucial development work that could give you the competitive edge. Or if you’re a newbie with a bright idea, holding fire on your dreams could mean someone else beats you to the punch by the time you decide to act. This article examines how business survival depends on evolution and those that decide to wait out the credit crunch could find themselves obsolete.

So your turnover is down, and your customers seem to be window-shopping rather than buying.

What can you do? Batten down the hatches and wait for the economic storm to pass? That might be your natural instinct, but the chances are that by the time you re-appear from your self-imposed exile, your competitive edge may have gone, and rather than re-emerging into a post credit-crunch world where economic recovery offers you fresh opportunities for business prosperity, you could find yourself obsolete.

Survival depends on evolution. Hold still and the world will pass you by.

That’s why if your business depends on technological systems for its survival, the last thing you should be doing is suspending crucial development work that could give you the competitive edge. Or if you’re a newbie with a bright idea, holding fire on your dreams could mean someone else beats you to the punch by the time you decide to act.

So how do you steer your company through an uncertain economic market to the safe shores of a brighter tomorrow?

Firstly, bear in mind that a tough economic market doesn't stop innovation - on the contrary, history informs us that adversity fuels innovation.

If you’re an innovator, the chances are that the factors that came together to spark your bright idea in the first place may be there for others to draw the same conclusions from. Innovation very rarely happens in a vacuum and, referring to history again, it’s the first person to capitalise on an idea that wins (take, for example, the invention of the light bulb – Thomas Edison succeeded in making the first practical prototype, but he wasn’t the first, or the only person working on the light bulb).

However, without cash flow to grow your idea into something tangible, an idea is all it will remain.

With banks and lending institutions making it very difficult for companies to raise the capital necessary to undertake large custom software projects, it is perhaps understandable that some businesses may be tempted to put their software projects on hold until the market recovers - or to settle for an off-the-shelf substitute that ‘makes-do’ for now. As attractive as this may seem, the risk is that an off-the-shelf solution could ultimately hamper your business objectives if the system isn’t right for you, which could result in having to make business sacrifices later on.

It’s also worth remembering that a tough market can give customers a better hand than in times of plenty. As a potential client, you can negotiate more ‘bang for your buck’, so offsetting the cost of undertaking the project.

And if you do decide to go ahead, it’s important to keep control of your software development project. To do that, the solution is to outsource the work to a reliable software house with a good track record – but you need to be careful and do your research.

Big software houses can be expensive, as well as impersonal. Small software houses can lack resources or developer expertise. Look for a consultancy somewhere in the middle. Look at their website for contact information. Chances are that if the phone number is difficult to find, they’re not the best communicators, which could spell trouble ahead.

Spend some time getting your idea right. Make sure you know what you want your idea to do and what you expect from a software developer. If you’re clear on how you want the software to function, chances are so will the software developer.

Remember also that if you’re serious about developing your idea, it’s always a good idea to run it past a software consultancy before you embark on spending serious amounts of cash. A consultancy can assess the technical feasibility of your plans and provide that extra, independent analysis of the business risks associated with your idea, so that you can move forward with confidence. Some developers will provide free initial advice, so you can see what’s involved. You’d be surprised at how many ideas fall at this crucial first hurdle.

Choosing a custom software company

Before approaching a software development company, work out your exact requirements in the form of a basic analysis. This includes the requirements from an end user point of view and a rough design specification. Here's what UK-based custom software company, Blueberry Consultants (http://www.bbconsult.co.uk) advises:

• Research the Web for custom software development companies that have undertaken similar projects.
• Check the consultancy’s technology expertise
• Ask for client testimonials.
• See if the software consultancy gives a free detailed quote based on the best spec you have.
• Assess the costs involved and whether you can afford it.
• Check that the project can be completed in the timeframe you want.
• Make sure you get on with the people who will directly work on your project and that they have the necessary expertise to get the job done. This is easiest to assure in a medium-sized company that isn't too large to be impersonal or too small to lack resources.

Top ten questions to ask your developer:

1. What is your policy on copyright?

Good Answer: The customer owns all copyright once the project is paid for. If the developer uses internal libraries, a royalty-free, perpetual, transferable licence is granted.

Bad Answer: The developer retains copyright and provides the customer with a licence to use the system.

Blueberry advises: If you are paying to have software written, the developer should hand over (assign) all copyrights in the system at the end of the project. A few disreputable companies try to get customers to sign a contract where they only pass over a licence to use the software. The developer is then legally entitled to ask for further fees in the future, even though the customer has paid for the development.

1. Will your system be built on top of any other platform or system?

Good Answer: No, the system will be all new code built with standard tools and libraries.

Bad Answer: The system will be built on top of our fantastic XYZ platform.

Blueberry advises: Some developers try to reduce costs by building systems on top of third-party or in-house 'platforms'. The problem with such an approach is that it leads to problems with maintenance and licensing. The developer is unlikely to release source code to his wonderful platform, so if there is a serious problem it is difficult to get another company to take over. You should ensure that all source code to the whole system is available.

1. Will your system use or depend on third-party libraries or systems?

Good Answer: Yes, but we will ensure that you can buy licences to such systems, and these costs are clear.

Bad Answer: I'm not sure... maybe.

Blueberry advises: There are many powerful libraries available to developers, and these do save a lot of time. However, such libraries may be licensed to the developer, not to the end customer, and this either presents a future additional cost, or a maintenance issue. Similarly, the system may be designed to work with external systems like MS SQL Server, which have associated costs. The developer should make sure the customer understands all such costs.

1. Do you have source code control?

Good Answer: Yes. All code written by our developers is placed into a central source code control system, which is backed up off-site nightly.

Bad Answer: What is source code control?

Blueberry advises: When software is being written by a team, the team members need to share code between each other. A source-code control system makes this easy, and is a very standard tool. All professional developers should use source-code control. There is a possible argument that source code control is not required if the project only has one developer, but we would still recommend it be used, because it ensures that code is backed up to a central location. The source code should be backed up nightly to another location, otherwise there is always a risk that it might be lost.

1. Who collects requirements from the customer? Do they have development experience?

Good Answer: A senior manager with development expertise talks to the customer to understand their requirements.

Less Good Answer: Our salesperson talks to the customer first, and then brings in the development expert later.

Blueberry advises: Obtaining the correct requirements from the customer is absolutely crucial to the success of any project. Whilst the best salesperson may be trained to do this, our experience is that using a person with development expertise makes this process more reliable and far quicker, because it eliminates communication errors. Of course, the development expert must have the business and communication skills to build a rapport with the customer.

1. Do you have people who can help with System Deployment and Firewall Configuration?

Good Answer: Yes, we have an in-house systems administrator, who can help with any necessary firewall or other systems configuration.

Less Good Answer: Your IT department should do this, or we can maybe recommend someone.

Blueberry advises: The IT department in most companies usually has very competent people, but they are often extremely busy, which can result in unnecessary delays during deployment. The skills required to install a new system can involve multiple people within the IT department,  e.g. one person to configure the firewall, another to work with the database. If the development company has in-house people to do this, it can save quite a lot of time.

1. How long have you been in business?

Good Answer: Ideally, at least three years. More is better, but are they up to date with new technologies?

Blueberry advises: Obviously, a company that has been in business longer is likely to be more stable than a new start-up. The first three years of any business are the toughest, so look more carefully at companies younger than this. However, there are disadvantages to older businesses, particularly in technology, as they might not be up to date.

1. How many developers do you have?

Good Answer: Ideally, at least 6, but not more than 30.

Blueberry advises: A company with less than 6 developers is likely to have tighter resource constraints than a larger firm. Development projects are often extended beyond their original deadline, and with a smaller company this can often mean that new projects cannot start on time. A smaller firm will also have less people to draw on to solve technical problems.

1. What languages do you use for programming?

Good Answer: C#, .NET, VB.NET, C++

Bad Answer: Visual Basic 6, Microsoft Access, Delphi

Blueberry advises: The right language for a project depends on the project requirements. However, Visual Basic 6 is no longer supported by Microsoft, and absolutely should not be used for new projects. Microsoft Access is very popular for workgroup systems, and is effective at this level, but it is not suited for larger projects. Code Gear's Delphi - which was Borland Delphi - is a very strong tool, but it's difficult to find people to update the code.

1. Do you use any form of logging in your software?

Good Answer: Yes, our software writes detailed logs.

Bad Answer: No, we rely on debugging the program before we give it to you.

Blueberry advises: All programs will have bugs - this is unfortunate, but true. Programmers have very powerful tools to help remove bugs, but these tools generally only work on the programmers own computer. This is unfortunately no help in solving bugs that happen on the customers' computer. The best solution to this problem is to add code to the software so that it writes detailed logs on exactly what happens. When a problem occurs at the customers' site, the program should send the log to the development team, who can then fix it. Unfortunately, writing logs takes extra effort, and many programmers don't do this routinely.

About the Author

Blueberry Consultants Ltd

http://www.bbconsult.co.uk

Unit T1, The Arch
48-52 Floodgate Street
Birmingham B5 5SL
United Kingdom

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