Law and Justice

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M/s Entertainment Network (India) owner of FM Radia “Radio Mirchi” Ltd filed an appeal in the Supreme Court against M/s Super Cassette Industries Ltd owner of “T-Series” brand.

The matter involved interpretation of Section 31 of the Copyright Act, 1957.

On applications of various Radio Stations for grant of compulsory license to all the radio stations, the Copyright Board at Hyderabad in terms of Section 31(1)(b) of Copyright Act, the Board vide its judgement dated 19.11.2002 fixed the standard rate of payment for a period of two years.  Super Cassettes was not a party therein. The Board fixed royalties initially for a period of two years. An appeal there against was preferred before Bombay High Court.

Meanwhile on 28.1.2003, the appellant filed an application before the Copyright Board at Delhi for grant of compulsory licence in terms of Section 31(1)(b) of the Act against Super Cassettes i.e. respondents. The respondents filed an objection contending that as the suit for infringement was pending before the Delhi High Court, no application for compulsory license could be entertained. The High Court, on an application filed by the appellant, clarified that the respondent was free to canvas its submissions before the Copyright Board that the person infringing the Copyright should not be granted compulsory license. The Board directed the parties to come with their respective witnesses. However, when respondent intended to present oral evidence, it was declined and application was allowed granting a compulsory license to Appellant.

Appellant filed an appeal against the said order before the Bombay High Court questioning the rates of compensation only and was tagged with various other appeals filed against the order dated 19.11.2002 passed by the Copyright Board at Hyderabad. Bombay High Court opined that in terms of Section 31 of the Act, grant of compulsory license on reasonable remuneration is permissible

Respondents preferred two-fold appeals before the Delhi High Court and by judgment dated 30.6.2004, the respondent’s appeal was allowed remitting the matter back to the Copyright Board to reconsider the application of the appellant for grant of compulsory license under Section 31 of the Act after giving adequate opportunity to the parties to adduce evidence and to dispose of the same by a reasoned order. The High Court furthermore directed that the appellant must file an undertaking that it would not broadcast the sound recordings of the respondent. Against said order the present appeal was filed before the Supreme Court of India.

The supreme Court has to deal with two judgments one from the Bombay High Court and another from the Delhi High Court. Whereas the Bombay High Court opined that in terms of Section 31 of the Act, grant of compulsory license on reasonable remuneration is permissible; the Delhi High Court held otherwise.

The Supreme Court vide its judgement dated May 16, 2008 held that as it was a case of abuse, the Board had the jurisdiction to entertain any application for grant of compulsory licence. How far and to what extent appellant has infringed the right of the respondent is a matter which may be taken into consideration by the Board. A suit was filed and injunction was granted. Apart from the fact that the appellant offered to take a license held negotiations with the respondents in the suit as soon as it came to know that Super Cassettes is not a member of PPL, it gave an undertaking. Each case must be considered on its own facts. However, we do not approve the manner in which the Board has dealt with the matter. It has refused to examine the witnesses. It took up the matter on a day for hearing which was fixed for production of witnesses. Supreme Court was of the opinion that the order of the Board should be set aside and the matter be remitted to the Board again for the consideration of the matter afresh on merit and on those terms appeal was allowed.

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India has an acute shortage of law professionals as there are more than half a crore cases pending at various court levels. Supreme Court alone has 50, 000 pending cases to deal with many more thousands piling up every month. These whopping figures do not only show the backlog of legal case but also emphasizes the constantly increasing crime rate in India.

The professions in law industry include that of judges, lawyers, advocates, paralegals, attorneys, legal assistants, legal secretaries, stenotype (court) reporter, legal writing, legal recruiting and justices at various levels. Even law teachers and practitioners are in high demand to train the upcoming law students and trainees. It is a profession that burdens a lot of responsibility and accountability on your shoulders. The ratio of lawyers per lakh is apparently lesser than what it should be and thus the demand for lawyers in India has grown manifold.

In order to cater to the multiplying need of legal professionals in the country, many law courses have been coming up. There are short term and long term courses, diplomas and degrees, distance learning and regular courses offered by law studies.

Law colleges in Delhi can be listed as:

Amity Law School, Saket, New Delhi
Faculty of Law, Jamia Millia Islamia, New Delhi
Guru Gobind Singh Indraprastha University, New Delhi
The Indian Law Institute, Bhagwandas Road, New Delhi

Important Universities across India includes:

University of Bombay, Faculty of Law, Maharashtra.
University of Lucknow, Faculty of Law, Lucknow
University of Madras, Faculty of Law, Madras
University of Mysore, Faculty of Law, Mysore, Karnataka
Andhra University, Faculty of Law, Visakhapathnam, Andhra Pradesh
Bangalore University, Faculty of Law, Jnana Bharathi, Bangalore
Barkatullah University, Department of Law, Bhopal
Department of Law, University Campus, Kariavattom, Kerala
Government Law College, Churchgate, Mumbai
Government Law College, Kerala
Pondicherry University, Faculty of Law, Kalapet, Pondicherry
Shivaji University, Faculty of Law, Maharashtra
Sri. Venkateswar, University, Faculty of Law, Andhra Pradesh
Aditya College of Law, Agra, UP
ILS Law College, Pune
Bharathi Vidyapeeth, Pune, Maharashtra
Bharathiar Univeristy, Faculty of Law, Coimbatore, Tamil Nadu.
Dr. Ambedkar College of Law, Wadala, Mumbai
KLE Society’s Law College, Bangalore, Karnataka
Kurukshetra University, Sirsa, Haryana
Mahatma Gandhi College of Law, Gwalior, Madhya Pradesh
National Law School of India University, Bangalore

Law studies are mostly associated with lawyers but law students do not need to necessarily become lawyers. They can build a career in the fields related to education, politics, business, paralegal and research, journalism, civil service, court administration and court officers.

The profession of Law asks for strong organizational skills and communication abilities coupled with a logical and analytical understanding. The legal system of a country is expected to peacefully resolve disputes while protecting society’s best interests. The remuneration in this career varies and depends broadly on the specialized or general career you choose like in civil law, criminal law, income tax law, international law, constitutional law, corporate law, patent law, labor law, etc.

Eligibility Required:

There are two ways of studying law courses in India. The options are:

-Pursuing a three year LLB after graduation, or

-BA LLB (Honors), a five year course after 10+2

You can also opt for two year Post Graduate Programmes in Law (LLM).

Usually, the scores at graduation level make you eligible to take up the law course but some universities conduct entrance tests like All India Entrance examination.

Further, one year internship is compulsory that may be completed in the final year of the course. These courses offer a combined theoretical and practical training that includes court attendance, legal aid centres and research projects.

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“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.

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Supreme Court of India in its civil appellate jurisdiction adjudicated on a Patent dispute titled J. Mitra & Co. Pvt. Ltd. versus Asst. Controller of Patents & Design. & Ors..

The Supreme Court granted the leave and directed the High Court to adjudicate the matter in interest of justice for only two appeals of such kind were pending in the High Courts. The special circumstances arises because of dichotomy introduced for the first time by the Patents (Amendment) Act, 2005, in the Patent Law between “opposition to the pre-grant” and “opposition to the post-grant of patent” and “appeals against order passed by Controller of Patents under pre Grant or post grant opposition”.

It would be wise to state the brief facts of the matter in tabular form for better understating of the matter.

26.03.1999 Section 116 of the Indian Patents Act, 1970 amended by the Patents (Amendment) Act, 1999 w.e.f. March 26, 1999 that provides for appeal to High Court against orders passed by the Controller of Patents. At that time only provision/remedy to oppose the grant of patent was pre grant opposition.

14.6.2000 J.Mitra & Company Pvt. Ltd. the appellant herein filed an application for grant of Patent

25.06.2002 Patents (Amendment) Act, 2002 was promulgated by Legislature and to hear appeals against orders passed by the Controller Appellate Board established under Section 83 of the Trade Marks Act, 1999 was made the Appellate Board for the purposes of Patent Act (under Section 116) and under Section 117A provision was made that appeal against order of Controller under Section 25 (pre Grant Opposition) and other provisions shall lie only in the Appellant Board. But Section 116 and 117A were not notified and brought into force. Still at that time only provision to oppose the grant of patent was pre grant opposition under Section 25 and same brought into force vide Notification dated 20.5.2003.

20.11.2004 The application was notified by the Patent Office after scrutiny

Span Diagnostics Limited opposed the application under the provisions of Section 25 as stood then (Pre Grant Oppositon)

04.04.2005 The Legislature enacted the Patents (Amendment) Act, 2005 w.e.f. 01.101.2005 but not all provisions were simultaneously brought into force. Only certain sections of the Patents (Amendment) Act, 2005 were brought into force. Provisions for Pre Grant as well as Post Grant Opposition were made. But Section 117A was amended and expression Section “25” was replaced with Section 25(4),effectively meaning that appeal shall lie against order passed under Section 25(4) i.e. order passed by Opposition Board in Post Grant Patent. The Legislature allowed appeals only against decision passed by the Controller in a Post Grant Opposition not pre Grant Opposition. Though the provisions of Section 25 were brought into effect, but the provisions of Section 116 and 117A were not brought into effect.

21.03.2005 Pre-grant opposition was filed under Section 25(1) of the Patent Act. It is to be noted that Patent (Amendment) Act, 2005 was enacted only after filing of this opposition on 04.04.2005 but was brought into effect from 01.01.2005. Therefore only provision available for opposition on such date was under the Patent (Amendment) Act, 2002.

23.08.2006 Pre Grant Opposition was rejected by the Controller of Patents. And as the Section 116 and 117A was not enacted on such date only remedy was to file Appeal under the provisions of Section 116 of Patent (Amendment) Act, 2002 that provides for filing the appeal before the High Court.

22.09.2006 The patent was granted. From here contention of Appellant arises, that after grant of Patent

19.10.2006 Appeal filed before the High Court against the order passed by the Controller of Patents in the patent opposition being FAO no. 292/2006 & 293/2006.

02.04.2007 Provisions of Section 116 and 117A, brought into effect by notification by the Legislature

03.04.2007 Provisions of Section 117G, that called for transfer of all pending proceeding against any order or decision of Controller and all cases pertaining to revocation other than on a counter claim in a suit for infringement and rectification of register pending before any High Court to the Appellate Board was brought into effect by notification by the Legislature. The Appellate Board may proceed with the matter either de novo or from the stage it was so transferred.

In words of Hon’ble Supreme Court “This matter is a classic illustration of the confusion which has emerged on account of the postponement of in-part commencement of Patents (Amendment) Act, 2005.”

The enactment of Patents (Amendment) Act, 2005, introduced for the first time a dichotomy in the Patent Law between “opposition to the pre-grant” and “opposition to the post-grant of patent” and also as to “appeal” that may be preferred against any orders that may be passed by the Controller of Patents in opposition proceedings. No doubt, the Amendment Act of 2005 brought major structural change in the Indian Patent Law as per India’s Obligation under WTO/GATT. As per the amendment the appeals against orders passed under the post-grant opposition by the Controller shall lie before the Appellate Board and not to the High Court. But the enabling provision i.e. Section 117A was not brought into force till April 2, 2007. Therefore, appeal if any has to be preferred before the High Court under Section 116 of the Patent (Amendment) Act, 1999.

Though the provisions for an appellate forum to hear appeals against order passed by the Controller of Patents were enacted by legislature in 2002, the Govt was not able to start functioning of the Appellate Tribunal till April 2007 and hence Section 116 and 117A were not brought into force.

The Legislature intended to provide for only one statutory appeal against order passed by the Controller that too in a Post Grant Opposition to the Appellate Board but by not bringing Amending Section 61 into force till April 02, 2007, appeals filed during the interregnum i.e. between 01.01.2005 to 01.04.2007, as in this case, became vulnerable and liable to be dismissed as misconceived as contended by the appellant before Supreme Court.

Supreme Court observed “quite often the commencement of an Act is postponed to some specific future date or to such date as the Appropriate Government may, by notification in the Official Gazette, appoint. At times provision is made for appointment of different dates for coming into force of different parts of the same Act.”

“An Act cannot be said to commence or to be in force unless it is brought into operation by legislative enactment or by the exercise of authority by a delegate empowered to bring it into operation.”

The Court while applying the above tests to the present case found that for the first time a dichotomy was introduced in the Patent Law by providing vide Section 25(1) for “opposition to pre-grant” and vide Section 25 (2) for “opposition to post-grant” of paten under the Patents (Amendment) Act, 2005. Earlier, there was no “post-grant opposition” and the only provision of challenge was a “pre-grant” challenge under Section 25 (1). By Patents (Amendment) Act, 2005, under Section 25(2) right is granted to an “aggrieved person” to challenge the patent even after its grant and the grounds of challenge are identical to Section 25(1) of the Act. Therefore giving a right after grant but limiting the right to only an “aggrieved person” and fixing the limitation period to one year after grant.

Though the Legislature further intended to limit the right to appeal only to post grant oppositions and obliterate appeal from “pre-grant proceedings” but the Executive did not bring the enacted law (Chapter XIX having provisions for appeals to the appellate board i.e. Section 116 and 117 A to H) into force vide a notification simultaneously along with other provisions of the Act especially Section 25 (1) and (2). As a result the chapter XIX containing amended Sections 116 and 117A(2) were not brought into force only on 2.4.07 (and 117G on 03.04.2007) whereas the concept of “Pre grant” and “Post-grant” oppositions were already brought into force w.e.f.1.1.2005. In words of the Hon’ble Supreme Court:

“This is where the legislative intent got defeated during the interregnum.”

During that period only the Respondent filed appeals against the orders rejecting the Pre Grant Oppositions by Controller of Patents being FAO No. 292/06 and 293/06 before the High Court under Section 116 of the Patents (Amendment) Act, 1999 , as it stood on date of filing of appeal i.e. October 19,2006”. On the date of filing of appeal, the amended Section 117A, suggested by Patents (Amendment) Act, 2005, was not brought into force, therefore, the Patents (Amendment) Act, 1999 prevailed under which an appeal lay before the High Court.

The Supreme Court held “Taking into account the complexities involved in this case, on account of a hiatus created by reason of the law not being brought into force in time, we are of the view that the first appeals, filed by respondent no.3 in the High Court being FAO No.292/06 and FAO No.293/06, would remain in the High Court. The said appeals would be heard and disposed of by the High Court in accordance with law under Section 116 of the said 1970 Act as it stood on 19.10.06. The High Court will hear and decide the validity of the Order passed by the Controller dated 23.8.06 rejecting “pre-grant opposition” filed by respondent no.3. We are informed that there are hardly one or two matters of this nature which are pending.

Therefore, we are of the view that respondent no.3 cannot be let without remedy. In the special circumstances of this case, particularly when after 2.4.07 appeals against orders rejecting “pre-grant opposition” are not maintainable and particularly when FAO No.292/06 and FAO No.293/06 were filed by respondent no.3 prior to 2.4.07 under the old law, we are of the view that these two appeals shall be heard and decided by the High Court in accordance with law. The Appellate Board after 2.4.07 is entitled to hear appeals only arising from orders passed by the Controller under Section 25(4), i.e., in cases of orders passed in “post-grant opposition”. Therefore, there is no point in transferring the pending FAO No.292/06 and FAO No.293/06 to the Appellate Board which has no authority to decide matters concerning “pre-grant opposition”. Moreover, it may be noted that even Section 117G, which refers to transfer of pending proceedings to the Appellate Board, is also brought into force vide Notification dated 3.4.07. Keeping in mind the peculiar nature of the problem in hand, we are of the view that ends of justice would be subserved if the High Court is directed to hear and decide the appeals bearing FAO No.292/06 and FAO No.293/06 in accordance with law as it then stood, i.e., under Section 116 under Patents (Amendment) Act, 1999 against Orders passed by the Controller in “pre-grant opposition” proceedings.

The Section 6 of the General Clauses Act 1897 clarified the position of law and intent:

6. Effect of repeal.- Where this Act , or any Act made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not—

….

c). affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

The provision along with ratio laid down by Hon’ble Supreme Court in GSK case concerning the Exclusive marketing rights (GSK Case) made amply clear that where any enactment is repealed, it shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed, unless, a different intention appears.

Applying the same ratio in the present matter, though the rights were accrued to respondent before the provisions of Section 116 as envisaged under Patents (Amendment) Act, 2005 was enacted, but the provisions of Section 117A made very clear that intention of legislature is different i.e. no appeal shall lie against any order passed by Controller of Patents in Pre Grant Oppositions.

The pendency of only very few such appeals against pre grant orders during the interregnum made the Hon’ble Supreme Court to keep the matter with the High Court. Otherwise, the interpretation of “appealable orders” under 117A read with 117G might have settled the position of law as to what about the provisions against which right to appeal is taken away subsequently.

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