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Is uniformity still a myth? Aviation Law

The technology and utility of the aviation industry are to transport a person from one place to another and most of the time from one country to another. There are two major theories, a historical perspective, which are pivotal in the International Aviation Law; firstly, freedom of air, secondly theory of sovereignty. The war period reflected reliance on the latter theory, which attracted most of the issues.

Aviation Law doesn’t have a specific nature in order to be classified, it has branches extended to public international laws, privacy laws, finance laws and etc. The aspect of Private International has brought in many questions as to the matter of governing law. A classic example –

“A Frenchman domiciled in Denmark had purchased a passenger ticket for a flight from Geneva to London at a travel agency in Stockholm; he used a Dutch aircraft which crashed on Belgian territory; his widow intends to bring action for damages. Against whom? Before which court? Which law will be applicable – Swedish, French, Danish, Swiss, Dutch, Belgian or English?”

Therefore, the attempt to unification has been started from almost a century ago, after the first World War. When the attempted convention endeavored to achieve maximum unification of the air law, i.e. The Warsaw Convention.

Unification of the Aviation Law –

The first limb of the method of unification is the first convention, signed at Warsaw in 1929, the “Convention for the Unification of Certain Rules relating to the International carriage by Air”. The two most fanciful consideration, which was generally owned by the state, was that the protection of carriage and goods were mandatory and safety of passengers and goods are pivotal. This convention standardised the requirement of documents to be provided by the carrier. Along with it, in case of injury to either goods or person, the presumption of negligence was imposed on the air carrier, which means the claimant need not prove the fault of the air-carrier.

This method of unification followed by the additional protocols which tackled the transition of technology which reflected lacunas in the convention. Firstly, The Hague Protocol signed in 1955, this doubled the prescribed monetary cap for liability that was imposed on air carriers for default. Further, those members who were a member of the Protocol and not to the convention were made to adhere to the provisions of the Warsaw Convention, 1929. The main function of this convention was to bring more nations under the umbrella of the unified aviation law. Secondly, Guatemala Protocol, 1971, it amended the Warsaw-Hague Convention, by increasing the liability capital because of the increasing incidents of air accidents. Thirdly, the Montreal Additional Protocol I, II and III were signed, in order to alter the liability which was earlier imposed in terms of gold. Lastly, the IV additional protocol entered in 1975, came into existence and was the last card to complete, what is known as the Warsaw-System Conventions.

The Second limb to this unification is the Montreal Convention 1999, again known as the “Convention for the Unification of International carriage by Air”. This is the most comprehensive text in the International Aviation Law, as it consolidated the Warsaw-system conventions in one single text. This also included all the Montreal Protocols including the Montreal Protocol IV and the Guatemala Protocol, and the Guadalajara Convention which made ‘actual’ carrier liable. This convention has currently, 120 members and the most effective convention of all time.

The evil of choice of law rules has been done away with to some extent. The attempt of unification has weaved the fabric of International Civil Aviation. The UNIDROIT as an organisation are trying to unify all the private laws of different into one accepted law. The myth of uniformity is turning in to reality, at least in the field of International Aviation Law.

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OPERATION OF PATENTABILITY IN OUTER SPACE

Outer Space, being a Global Common and beyond exclusive jurisdiction, poses recurrent challenges to the application of the patenting system that have to be met with. 

Patents are exclusive rights that are granted to inventors by their national governments to empower them in such a way that others are debarred from making, using or selling that invention for a limited period of usually 20 years. However, since patents are granted by national governments, they are exclusively territorial rights that are bestowed upon the inventor and can be enforced only in the jurisdiction of the patenting government. This seems to briefly sum up the functioning of patents on Earth. The predicament of the operation of patent law in the outer space is an entirely different story and involves many legal and consensual hassles of its own which are going to be dealt with in this article. 

JURISDICTION IN OUTER SPACE:

Outer space does not have any specific definition, however, it is known by many international jurists as the area that begins from the lowest altitude above sea level at which that object can orbit the Earth without using any artificial propulsion systems, approximately 100 km (60 miles).

Article I of the Outer Space Treaty that governs space laws establishes that outer space is beyond the territorial jurisdiction of any state and no state can claim sovereignty over it as it is a global common, free for use, exploration and experimentation by all. 

According to Article VIII of the Outer Space Treaty, every “launching state” which has registered the space object with an appropriate registry, will retain jurisdiction and control over that object and any personnel on-board. 

Thus, analysing the jurisdiction of outer space, patent issues are bound to arise since patent laws are inherently territorial in nature but space has no such territory belonging to a specific State.

URGENCY OF AN INTELLECTUAL PROPERTY RIGHTS REGIME IN OUTER SPACE:

There is an obvious and inevitable reason as to why there is an imminent necessity to have an Intellectual Property Rights regime in outer space. This stems from the fact that initially space technologies were undertaken by public entities and were generally governmental space programs funded entirely by the government involving exploratory, experimental and military space operations which were in no way commercialized. However, with the advent of the private sector taking interest in the space technologies and corresponding ventures, it became imperative for intellectual property protection to step in, in order to foster innovation and development in space research and exploration. Without such protection, private players will not be able to not reap the entire benefits of their investments which will attract their dissatisfaction and ultimate removal from this vital sector requiring huge amount of R&D. 

APPLICATION OF INTELLECTUAL PROPERTY LAW IN OUTER SPACE:

The biggest issue that is frequently raised with regards to inventions in outer space is the applicability of national/regional patent law where there is no territorial jurisdiction, as has been discussed earlier. 

However, in order to protect the exclusive rights of the inventors in such an unbounded zone, an international agreement between different governments for the ISS (International Space Station) was formulated to which United States of America, Japan, Canada and ten other member states became signatories on 29th September 1988. This intergovernmental agreement provides that according to its Article 21, each partner will be having jurisdiction over its own registered element which will be in line with the basic principle of both the Outer Space Treaty and the Registration Convention. 

LIMITATION OF THE APPLICABILITY:

As we know, patents are filed by the firms and companies in specifically those countries where there is or there can be a significant market potential for that invented technology. However, the facts surrounding the case study of outer space are entirely different. Since outer space is beyond the scope or adherence to any territorial demarcations, these firms and companies need to apply in every country of the world where they feel a similar space innovation may register itself by a competing firm or industry. Such a behaviour turns out to be really tedious, time-consuming and not in any way cost-efficient. 

CONCLUSION:

The seemingly precarious bridge to gap between Intellectual Property Rights regime and Space Law governance can only be achieved if the international space law principles and international obligations are ethically and justly incorporated into the patenting system, whereby everyone is placed equitably with respect to space technology innovations and there is ensured non-infringement or circumventing of patent rights of already patented space technology.

 

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PATENT HARMONIZATION IN THE GLOBAL ECONOMY

Globalization is a double-edged sword; creating opportunities for companies on one hand and jeopardising their innovation without a proper unified patent regime on the other hand.

There is an undeniable nexus between the phenomenon of globalization and the need for patent harmonization in the global economy. In order to understand their link, the term ‘patent harmonization’ needs to be understood first. Patent harmonization is that process where all the patent regimes of every country are intertwined and moulded in furtherance of a unified patent system, adhered by all, throughout the world. This process of unification of the patent laws of different countries is highly sought after by the international companies and firms who have their chains in different markets of the world. The reason for them seeking patent harmonization contains the explanation as to what sort of a link there is between globalization and patent harmonization. 

Since the advent of globalization, various companies started operating in different spheres of the world, trade barriers started being dissolved and trade agreements started coming into place. All this worked in favour of the companies, except the non-conducive national patent laws of the countries in which they operated. The firms and companies had to apply and obtain for patents separately in every country they wished to get their inventions protected. For the bigger companies it was an easier task due to more capital in place with them, being a disadvantage to smaller companies and people who had established new start-ups and gained a quick international market access due to the assistance of the internet. In such circumstances, where the undesirability of the companies to plod into new markets was seen as a threat to globalization, the urgency to streamline the different patent regimes was seen as a priority. The succeeding sections of the article shall discuss the evolution of patent harmonization in the global economy and the areas where efforts of harmonization have been/are taking place.

EVOLUTION OF PATENT HARMONIZATION:

Paris Convention, 1833:

The Paris Convention applies to the protection of the industrial property that includes patents, trademarks, industrial designs and service marks, etc. The provisions of the Convention lay down the various rights and duties of the contracting States and the common rules regarding patents that need to be adhered to.

Patent Cooperation Treaty, 1970:

The Patent Cooperation Treaty of 1970 was concluded due to the urgent need to have a unified procedure for filing patent applications in order to protect the innovations in its contracting States. 

Cooperation between USPTO, EPO and JPO:

Around the 1970s, the United States Patent and Trademark Office (USPTO), European Patent Office (EPO), and Japanese Patent Office (JPO) started stepping up in coordination and cooperation with each other in the light of the then-recently passed Patent Cooperation Treaty.

World Intellectual Property Organization’s Committee for Draft Treaty:

The World Intellectual Property Organization (WIPO) formed a committee that would look into the ‘Patent Harmonization Treaty’ and make the required changes to address the lacunae in the procedural and substantive areas of the patent laws. The end product was the Draft Treaty of 1990.

Patent Law Treaty, 2000:

The Patent Law Treaty (PLT) was adopted in 2000 but came into force in 2005 with the core objective of harmonizing the procedures related to the national and regional patent applications and making them more lucid for the contracting parties. 

CATEGORIZATION OF PATENT HARMONIZATION

Patent harmonization is a very generic term that includes various aspects of unifying variant patent systems in different parts of the world. This harmonization process can be divided into procedural part which deals with the forms and processes to file the patent applications and the substantive part that deals with the rules and regulations regarding granting of and administering patents. 

Procedural Harmonization:

Procedural harmonization basically focuses on the procedural aspects or the ‘tools’ through which patents can be obtained covering forms and procedures of patent application. These include unified filing date requirements, reference to previously filed applications, claiming priority to an earlier filed application, unity of invention, publication of pending applications, etc. The Patent Cooperation Treaty (PCT) is an apt example for a treaty dealing with procedural harmonization. 

Substantive Harmonization:

Substantive harmonization encompasses the adoption of a unified code of rules for the most important stipulations of patentability. These include the criteria which will determine whether a novel and useful invention has an industrial applicability and meets the condition of an ‘inventive step’ or ‘non-obviousness’, rules concerning the extent of public disclosure of the invention and by which parties is permissible, whether the first to invent or the first to file for patent application will be awarded the patents and whether ‘grace period’ will be allowed following the prior public disclosure of the invention. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) deals with standards and rules of the intellectual property regulation covered under this aspect of harmonization. 

CONCLUSION

Since the international community throughout the decades has garnered consensus on the fact that there is a need for harmonization in the patent laws of different countries of the world and to streamline them into identical laws, half the battle is already won. The only problem lies in the ‘deep harmonization’ of mostly substantive laws which is not an easy and inexpensive task. The only way out is to recognize the difficulties and formulate strategies that complement and supplement each other in creating a singular patent regime while striking a balance to not destroy or subdue the national patents laws of every country.

 

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PATENTING IN BIOTECHNOLOGICAL INVENTIONS

Patenting in biotechnology can be safely arrived at when law and morality are juxtaposed together. 

Patent laws involve no simple application and implementation process as maybe the case with other laws. The patenting system has umpteen restrictions set upon it and a myriad of limitations that it is bound by, due to its conflicting and complicated nature. So, patenting in biotechnology seems like a quagmire through which it seems impenetrable to get through. However, Biotechnology Patents Laws do exist in different spheres of the world, including India itself, the U.S., European Union, Australia, etc. Issuing property rights over intangible property has its own set of difficulties which are dealt with in the various patent laws governing biotechnology. Since the association of biotechnology and patents has been fairly new due to the commercialization potential of biotechnology in recent years, the age-old patenting system has accommodated new subject matter such as DNA sequences, microorganisms, plants and animals which were not intended to be included during the time when the patenting laws were formulated.

BIOTECHNOLOGICAL INVENTIONS: 

Biotechnological inventions cover the ambit of techniques that use living organisms or their parts to produce or modify certain traits/attributes of plant species, animal species and living or non-living microorganisms. All those products that are related to biotechnology are known as “bio-matter” and this bio-matter can be living, non-living and in some cases, a situation between living and non-living like viruses. 

Biotechnological innovations can also be referred to as “genetic engineering” and this genetic engineering has helped create a variety of miraculous new drugs like human insulin, various vaccines, interferons, etc., that are used to treat numerous human ailments such as anaemia, cancer, AIDS, hepatitis, etc. 

These products can be protected by the grants of patents. However, there are certain rules and exceptions to patent protection in various countries for these inventions that will be dealt with hereafter. 

RULES REGARDING PATENTS IN BIOTECHNOLOGY: 

INDIA:

The present legal situation in India is that all inventions pertaining to living matter are patentable. The only exceptions are:

a) the mere discovery of a scientific principle or coming up with an abstract theory or even a discovery relating to living and non-living compounds occurring in nature;

b) the biological processes that are involved in the scientific production/propagation of plants and animals, including microorganisms.

UNITED STATES OF AMERICA:

The authority to grant patents in the U.S. is provided under their Constitution only. They follow a very liberal approach to what can be included in patentable subject matter. It includes any useful and novel machinery, manufacture, process, composition of matter or any such kind of improvement. It basically aims to include almost everything as was settled in the judgment of the famous case, Diamond v. Chakrabarty

A very common issue that arises during the patentability of biotechnology is the distinction between discoveries and inventions. Naturally occurring substances or discoveries are not patentable. However, patentability can be granted to those naturally occurring substances which could not have been made available to the general public if not for technical intervention. 

EUROPEAN UNION:

The countries of European Union follow the principle that any invention which is novel, has an inventive step and has an industrial application is a subject to patentability. Discoveries are expressly excluded, however, discoveries that involve a technical intervention cease to make it a discovery and thus, can be patented. 

Another principle that E.U. adheres to is that if any invention is at loggerheads with the public order or morality of the society, it is not patentable. Examples include cloning of human beings or using the human embryos for industrial and commercial testing. 

CONCLUSION: 

It becomes very difficult for law to join hands with protecting the intangible property rights of biotechnology patents. The only way to get about this problem is through striking a balance between property rights of biotechnological inventions and the greater good that is served to the human community at large. 

 

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PATENTING POLICY AND SOFTWARE: THE INDIAN CASE STUDY

India’s software patenting approach allows for judicious use of patent protection, resulting in the alleviation of the risks involved of trivial patents that would have otherwise choked the innovation and drive of the software industry.

India’s Information Technology sector is the most forthcoming in terms of export and research and development, with various IT sector hubs like Bengaluru, Hyderabad, Chennai, etc., present across the length and the breadth of the sub-continent, outsourcing most of the software. With such dynamism and rapid evolution in the IT and software region taking place, innovation needs to be boosted through a proper administration of software patenting that will augment the pace of research in the area and enhance productivity.  

Today, India’s software patenting machinery is in accordance with the revised guidelines of 2016 that also resonate in the original Indian Patents Act, 1970 guidelines for software patents. However, the need for these revised guidelines arose due to the ineffectual and flawed guidelines that were issued on August 21, 2015. The subsequent sections of the article will deal with the unforeseeable evolution that took place in the software patenting policies since the inception of the Indian Patents Act of 1970 and discuss the changing guidelines in detail.

INDIA’S SOFTWARE PATENTS LAW

According to Indian Patents Act, 1970:

In accordance with the Indian Patents Act, 1970 only those software innovations can be patented under Section 3 which have been developed in combination with a specific kind of hardware. Software innovations in isolation or patenting of software ‘per se’ is clearly outlawed. Thus, in order to apply for patent applications for software, the hardware should be either fully or partially dependent on this inventive software that is averring for the patent rights. 

According to guidelines of August 21, 2015:

The Indian Patent Office issued guidelines on 21 August, 2015 that allowed software to be patented ‘per se’. These guidelines were in total contradiction to the statutory provisions of 1970 that proscribed patenting software ‘per se’. Regulation 5.1 of this notification legitimized the patenting of software that is new in combination with a hardware that isn’t new. This was not previously the case where only new software fixed with new hardware could be patented. In addition to this, the new regulation also specified that any software innovated which is in furtherance of a ‘technical effect’ is patentable.

In connection with the above rule, regulation 6.1 laid down the factors to determine whether a software causes the furtherance of a technical effect. The criteria formulated to determine the technical advancement was very vaguely constructed which would have set up an avenue for floods of patent applications, in turn hindering the growth of the IT industry in India with only the rich firms and industries benefitting as they possess the money capital to handle patent litigation in comparison to smaller enterprises.

According to the ambit of the revised guidelines of 2016:

The new guidelines, which have been warmly greeted by several civil society organisations, have finally reverted to the old statutory provisions which do not grant patents to only ‘computer related programs’ or software ‘per se’. These guidelines have also brought about clarity to the criterion of furtherance of technical effect by laying down a comprehensive test which will identify whether the invention in practicality has any economic significance or actual technical progressiveness in it or not. These guidelines have also added that if the software doesn’t possess any inherent industrial applicability, then it cannot acquire patents. For instance, since a technique of playing a game involves intellectual activity and doesn’t really show industrial applicability, it is not patentable. These amended directives also include the rule to disclose and break down the entire invention on pen and paper so as to analyse the veracity of its claim for patent applicability. If the disclosure requirements are adequately met, the patent application further proceeds for examination. The last requirement to be satisfied in the new regulations charted out in these guidelines is that the ingredients of the patent claim shall be verified and admissibility won’t be on the basis of the type or form of the claim or application as it can be misleading.

CONCLUSION

Even though India has revised and re-revised its software patent regulations throughout the years, they are more firmly in place at the present and disallow erosion of the software industry in the country by not sanctioning laid-back acceptance of patent claims. India’s methodology is more pragmatic when it is compared to international software patenting norms, as internationally software patenting follows a confused approach, making it less stringent to obtain patents for software.

 

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THE RELATIONSHIP OF COMPETITION AND PATENT LAW AND POLICY: A CRITICAL ANALYSIS

Competition law and Patent law are at conflicting ends, but a positive relationship between the two can be derived if a balance is achieved. 

The world has long debated and unarguably still continues to debate about the co-existence of the IP laws and the Competition laws that are prevalent together in every part of the world. The debate revolves around the issue whether one is detrimental to the effectiveness of the other or not. To gain a better understanding of this disputation and what possible amends can be made in order to strike a constructive balance, one needs to understand the two concepts individually. 

COMPETITION LAW:

Competition law is a law which basically stimulates and promotes the market competition in an economy by regulating the companies and industries which gain a monopoly in the market and are in a position to influence the market forces, other industries as well as consumers. Competition law, in a nutshell, aims to regulate the anti-competitive trade practices which are against the requisites of healthy competition. 

The Competition law in India is fairly new and is exercised through the Competition Act, 2002 and is enforced by the Competition Commission which was constituted in March 2009. 

PATENT LAW:

Different countries are governed by different patent laws. The patent laws empower the inventors by providing them protection relating to both the processes and products that are invented. 

When a product is produced, the patent safeguards the inventor by providing an undivided right which prevents other unauthorized competitors/ persons from making, using, selling or importing that product.

In the case of processes, the patentee receives a similar exclusive right to prohibit any unauthorized competitor/ person from using, selling or importing the process and the product that is produced by the process is also covered under the protection. 

In India, the law governing patents is the Patents Act 1970, along with the Patent Rules 1972, which came into force on 20th April 1972. 

RELATIONSHIP BETWEEN BOTH THE LAWS:

Both benefit consumers and foster economic growth:

Competition and patent law both promote public welfare and act as catalysts in the boosting of the economy.

Through the competition policy, more firms and companies come forward and compete against each other to provide the newest innovations and efficient technological/biotechnological processes that are more cost-efficient in terms of manufacturing them, that can enhance their profits and competitiveness in the market. This helps both the industries in the economy and the consumers who are provided with the technology of their satisfaction. 

Also, through the patent policy, since the patentees are given protection for twenty years from the date of filing the patent application, more innovations are conceived which provide capital, among other incentives to the firms due to exclusivity and since novel information and technology is dispersed in the society, it benefits the consumers as well. 

Thus, they act to promote the same cause.

Patents can hamper innovation which in turn hinders competitiveness:

In the case of questionable patents, competition may be obstructed in the areas where these patents have been awarded. For example, a questionable patent is such which contains claims that are extremely broad and include a lot of fields. So if a person patents an invention that comes in the ambit of the field in which patent has already been obtained, then it can block the patentee’s ability to exploit its own invention as it will end up infringing the property rights of the first patent i.e. the questionable one. Thus, this will dissuade competitors from making innovations where questionable patents are concerned. 

Unreasonable patents can arouse dissatisfaction amongst firms:

Sometimes, patents are granted to those inventions that do not fulfil the paramount requisites on the basis of which patents are provided. Obvious and petty inventions, especially in the case of software technology are granted, which in turn cause vexation to the firms and vitiate the competitive mood. 

Questionable patents complicate business planning:

Since questionable patents create an environment which are conducive to the creation of licensing difficulties, exorbitant royalties for the usage of the patented product and can create precariousness in the research and development area for firms, it complicates the business planning because firms need to now rack their brain on a whole new level to be able to create products which don’t infringe the property rights of other products that maybe so used in this process.

CONCLUSION:

The various facets of the relationship between the two laws have been spread out above which show us how their intermingling creates complication, consensus and conflict at the same time. However, in the light of the need to strike a balance between the two, competition law should be promoted but not at the cost of limiting anybody’s avenue for receiving a patent. 

At the same time, before granting questionable and invalid patents, patent application should be evaluated by third parties who have expertise in that field so as to grant patents only to very deserving inventions. At the same time, a legislation should be enacted that publishes all patent applications eighteen months after the filing of the patent so as to save the cost and energy of the competitor who can invest in designing a new product by being informed before-hand about the products that have been already invented. Furthermore, litigation should be fully-fledged open as a means to challenge and review patent claims. 

 

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PATENTS: ARE THEY BOLSTERING ECONOMIC GROWTH OR NOT?

The economic growth derived out of the patenting system outweighs the drawbacks it carries.

In the 21st century, it is assumed that everyone is fully abreast of the real-time and theoretical utility of the patenting system which is used in almost all the countries of the world today. Under a World Trade Organization’s (WTO) agreement, patents are to be made available to all the member states for any technological inventions that are novel, useful and non-obvious. The system of patents is not a century-old practice, it has been in use since the “Age of Enlightenment” and since then, has been protecting the interests of the inventors of various products and processes. This being said, it may as well be assumed that the system of patents is all about the rewards and does not involve any scourging costs. However, there are always two sides to a coin and the flip-sides cannot go unnoticed. It is very imperative to weigh the balance in this context and see how much of a boon or a bane is the patenting system for any economy since economies are the fundamental structures on which the prosperity of every nation lies upon.

That is why, I’m going to lay down the pros and the cons to this whole “protecting scheme” and see how beneficial it is for the economies in specific, and the masses in general.

PROS:

  1. Promotes Innovation: An example would seal the deal. If a student creates a work of art in school, she is praised by the teacher who rewards her exclusively if she shares her art-work with the class. Similarly, the inventors benefit through the patents in such a way that further provides an incentive for more innovation and investment in research and development. This happens mainly because patentees, in addition to getting financial bolstering, are also awarded academic recognition and intra-research institute promotions.
  2. Economic Growth and Investments: Capitalizing on inventions through patenting can easily be done as it creates great market potential of its inventions in the market overseas and locally. Also, patents provide an impetus to the national economy by attracting foreign investment and products can be produced for exporting.

In addition, patents help in exchanging “traditional know-how” and innovation through licence agreements between industries. Its benefits are not one-sided as the local inventor gets capital and access to international markets if overseas companies exploit the inventions of local companies and the foreign companies and markets through this exchange can brush up or embellish their skills and developmental research in that field.

  1. Improving Existing Innovations: If patents were not in use today, many of the inventors would probably conceal the essential details of their inventions behind closed doors and leave the world in an agonizing mystery, which would also stop other researchers around the world from building on the patented innovation or/and coming up with new inventions on related subjects which could only be possible by the knowledge sharing promoted by patents. 

CONS:

 

  • Unequitable Rewards: If two researchers independently come up with the same invention, the inventor who first applies for patent protection will be the sole beneficiary, not the other, whose work may have been more ground-breaking or utilitarian. 
  • Un-equal Balance of Payments: If a country’s net imports of intellectual property outweigh it’s outsource and export, then the inflow of capital is not equal to the outflow through the way of payment of license fees and royalties for the usage of the innovations whose patents are owned by international companies. 
  • Withholding Information: Many a time, an inventor withholds information and the details of his invention by withholding the application of patent protection due to the simple reason of not being in a position to apply or being wary about innovation requisites for granting of patents. This might further stall the work of other researchers who could have made significant use of the knowledge sharing if the patents were applied for earlier.

 

CONCLUSION:

Therefore, summing it up through an analytical overview of the topic, it can be safely concluded that the costs and risks involved in the patenting system can be intelligibly overlooked considering the greater good that follows to both the economy as an entity, and to the inventor and user as an individual. 

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PRESERVATION OF TRADITIONAL KNOWLEDGE THROUGH PATENTS

The fact that Traditional Knowledge is being widely discussed in different international forums points out to the fact that it encompasses both opportunities and challenges.

Indigenous and native communities who through the decades and centuries have preserved and propagated the traditional knowledge sources that have been developed by their communities and have been prevalent in their environment since time immemorial, treasure this traditional knowledge as a part of maintaining their very own cultural identities. This very traditional knowledge forms the basis of their ways of life and endows their cultural values, spiritual beliefs, intellectual vitality, and holistic development. However, in the recent years, many international companies and industries have tried and many a time been successful in obtaining patents for inventions that have been derived from the traditional knowledge given by these indigenous communities for their own commercial and economic advantages, without sharing the benefits with these communities or taking their prior consent. The local communities end up feeling that their traditional knowledge base is being misappropriated and that their right to exclusive utilization of these knowledge resources is being infringed.

The more shadowy side to the picture is that there are no proper and formal patent laws in place to protect this traditional knowledge base of the communities from misappropriation and infringement. The subsequent sections of the article will be dealing with the challenges that the local communities face by the virtue of being traditional knowledge holders and the rest of the sections will deal with the various protection methods that are available worldwide, emphasis being on the patent system as a means of protecting traditional knowledge and the additional provisions that have been set-up in order to reduce illegal patents on traditional knowledge around the world. 

CHALLENGES FACED BY TRADITIONAL KNOWLEDGE HOLDERS

The various troubles that are faced by the local communities who are the traditional knowledge holders are listed as the following:

  1. Loss of the traditional knowledge: There are many factors that impinge on the communities who possess and disseminate the traditional knowledge to the future generations which causes this knowledge to be irretrievably lost. Some of these factors can include acculturation, migration, subjugation of traditional lifestyles by modern lifestyle techniques, external social and environmental burdens, etc. 
  2. Lack of respect for such knowledge: Most of the times, the person administering or teaching about the traditional knowledge-based remedies and medicines does not isolate or describe each chemical compound that it is made up of individually, due to which the modern scientists, physicians and the general masses develop a sort of skepticism regarding that person’s expertise. This results in disregarding their knowledge and years of experience and taking away the respect and appreciation that they deserve. 
  3. Commercial exploitation of traditional knowledge: The most pertinent problem faced by these knowledge holders to date is the fact that their knowledge is commercially exploited without taking their prior consent or equitably sharing the benefits so derived. This problem mainly results because there is no formal IP system in place, there is a lack of a unified voice of these communities, obscure policies concerning utilization and protection of the traditional knowledge is prevalent in most of the countries.

MECHANISMS FOR THE PROTECTION OF TRADITIONAL KNOWLEDGE

There are mainly two types of approaches in the IP system for the protection of traditional knowledge:

  1. Positive protection: Through this, the traditional knowledge holders can take action or seek remedies against any practice of misuse of traditional knowledge. These can include the existing IP laws and legal systems that are in place, including the law of unfair trade practices, those IP rights that have been adapted to focus on traditional knowledge and ‘sui generis’ systems in IP laws and independently that give rights to traditional knowledge holders. For example, in Foster v Mountford, the plaintiffs successfully argued that the publication of a scared-secret materials book titled Nomads of the Australian Desert should be banned due to breach of confidence by the anthropologist Dr. Mountford and that the book can also challenge the social and religious stability of this hard-pressed community.
  2. Defensive protection: Through this method, the knowledge holders can safeguard their rights by blocking any person trying to exercise illegitimate or invalid IP rights over traditional knowledge. The most important form of defensive protection is through the use of patents. Using defensive protection through the patent system can prevent others from patenting traditional knowledge illegally. For example, if the relevant traditional knowledge is made available in the public domain through publication in a journal before the patent has been applied for, then the traditional knowledge becomes prior art. Due to it becoming a prior art, the traditional knowledge cannot be said to be novel or inventive and a patent cannot be validly claimed over it. However, since traditional knowledge as prior art isn’t given much importance, its significance should be increased so that patents aren’t given to traditional knowledge that already exists in the public domain and is ignored as prior art.

The Government of India, recognizing the inadequacy in the Patents Act, 1970 have put up certain provisions that can safeguard the Indian traditional knowledge. This has been done by establishing the Traditional Knowledge Digital Library (TKDL) with the objective of preventing any sort of misappropriation of Indian traditional knowledge on Ayurveda, Unani and Siddha medicinal systems. This library makes available Indian traditional knowledge which are already in public domain, to the patent examiners around the world so that patent applications that claim patents over Indian traditional knowledge are rejected at the examination stage itself. For example, in the famous case where the U.S. Patent and Trademark Office granted a patent for the use of turmeric to treat wounds was later revoked because the medicinal properties of turmeric were already documented in ancient Indian Sanskrit texts and formed a part of the traditional knowledge of India.

CONCLUSION

As has been made clear through the above discussion, the present IP systems, new or expanded, have proven to be inadequate in more ways than one. This calls for taking account of the needs and expectations of the traditional knowledge holding communities through sui generis methods and involving international bodies like the World Intellectual Property Organization (WIPO) to build a solid legal foundation to safeguard their rights.

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THE RELATIONSHIP BETWEEN COMPETITION AND PATENT LAW AND POLICY: A CRITICAL ANALYSIS

Competition law and Patent law are at conflicting ends, but a positive relationship between the two can be derived if a balance is achieved.

The world has long debated and unarguably still continues to debate about the co-existence of the IP laws and the Competition laws that are prevalent together in every part of the world. The debate revolves around the issue of whether one is detrimental to the effectiveness of the other or not. To gain a better understanding of this disputation and what possible amends can be made in order to strike a constructive balance, one needs to understand the two concepts individually. 

COMPETITION LAW:

Competition law is a law which basically stimulates and promotes the market competition in an economy by regulating the companies and industries which gain a monopoly in the market and are in a position to influence the market forces, other industries as well as consumers. Competition law, in a nutshell, aims to regulate the anti-competitive trade practices which are against the requisites of healthy competition. 

The Competition law in India is fairly new and is exercised through the Competition Act, 2002 and is enforced by the Competition Commission which was constituted in March 2009. 

PATENT LAW:

Different countries are governed by different patent laws. The patent laws empower the inventors by providing them protection relating to both the processes and products that are invented. 

When a product is produced, the patent safeguards the inventor by providing an undivided right which prevents other unauthorized competitors/ persons from making, using, selling or importing that product.

In the case of processes, the patentee receives a similar exclusive right to prohibit any unauthorized competitor/ person from using, selling or importing the process and the product that is produced by the process is also covered under the protection. 

In India, the law governing patents is the Patents Act 1970, along with the Patent Rules 1972, which came into force on 20th April 1972. 

RELATIONSHIP BETWEEN BOTH THE LAWS:

Both benefit consumers and foster economic growth: Competition and patent law both promote public welfare and act as catalysts in the boosting of the economy.

Through the competition policy, more firms and companies come forward and compete against each other to provide the newest innovations and efficient technological/biotechnological processes that are more cost-efficient in terms of manufacturing them, which can enhance their profits and competitiveness in the market. This helps both the industries in the economy and the consumers who are provided with the technology of their satisfaction. 

Also, through the patent policy, since the patentees are given protection for twenty years from the date of filing the patent application, more innovations are conceived which provide capital, among other incentives to the firms due to exclusivity and since novel information and technology is dispersed in the society, it benefits the consumers as well. 

Thus, they act to promote the same cause.

Patents can hamper innovation which in turn hinders competitiveness: In the case of questionable patents, competition may be obstructed in the areas where these patents have been awarded. For example, a questionable patent is such which contains claims that are extremely broad and include a lot of fields. So if a person patents an invention that comes in the ambit of the field in which patent has already been obtained, then it can block the patentee’s ability to exploit its own invention as it will end up infringing the property rights of the first patent i.e. the questionable one. Thus, this will dissuade competitors from making innovations where questionable patents are concerned. 

Unreasonable patents can arouse dissatisfaction amongst firms: Sometimes, patents are granted to those inventions that do not fulfill the paramount requisites on the basis of which patents are provided. Obvious and petty inventions, especially in the case of software technology are granted, which in turn cause vexation to the firms and vitiate the competitive mood. 

Questionable patents complicate business planning: Since questionable patents create an environment which is conducive to the creation of licensing difficulties, exorbitant royalties for the usage of the patented product and can create precariousness in the research and development area for firms, it complicates the business planning because firms need to now rack their brain on a whole new level to be able to create products which don’t infringe the property rights of other products that maybe so used in this process.

CONCLUSION:

The various facets of the relationship between the two laws have been spread out above which show us how their intermingling creates complication, consensus and conflict at the same time. However, in the light of the need to strike a balance between the two, competition law should be promoted but not at the cost of limiting anybody’s avenue for receiving a patent. 

At the same time, before granting questionable and invalid patents, patent application should be evaluated by third parties who have expertise in that field so as to grant patents only to very deserving inventions. At the same time, a legislation should be enacted that publishes all patent applications eighteen months after the filing of the patent so as to save the cost and energy of the competitor who can invest in designing a new product by being informed before-hand about the products that have been already invented. Furthermore, litigation should be fully-fledged open as a means to challenge and review patent claims. 

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AFFIRMATIVE ACTION PROGRAMS

‘A tool to level the employment opportunities for all individuals’

An Affirmative Action plan or program is considered to be an organization tool structured to make sure that every individual gets an equal employment opportunity. A central idea underlying affirmative action is that with time, an employer’s workforce will usually demonstrate the gender, racial, and ethnic outline of the manpower from which the employer selects and employs.

Affirmative Action programs consist of a characteristic component that includes a number of quantitative methods that are designed to assess the framework of the workforce employed in a particular business unit and compare it to the structure of the related workforce. 

Affirmative Action programs also consist of action-oriented programs. If women and minorities are not getting proper employment opportunities at a rate to be expected given their availability in the related workforce in a business unit, the employer’s affirmative action program should include specific practical steps that are designed to tackle this problem of underutilization of a specific section of the workforce.

Constructive Affirmative Action programs must also include an internal examination and reporting systems as a method of calculating the employer’s progress towards achieving the workforce that would be expected in the absence of any discrimination prevailing.

An Affirmative Action program also assures equal employment opportunity by systematizing the employer’s adherence to equality in every aspect related to the employment process. Consequently, being a part of its Affirmative Action program, an employer observes and examines its employment selections and remuneration systems to assess the impact of those systems on women and minorities.

An Affirmative Action program is therefore much more than just a paperwork exercise. An Affirmative Action program includes those strategies, practices, and mechanisms that the employer implements to make sure that all applicants who are qualified enough for a particular post and the existing employees are receiving an equal opportunity for employment, selection, promotion, and every other term and perks associated with employment. 

Preferably Affirmative Action is an element of the way the employer conducts its business in a day-to-day basis. OFCCP (Office of Federal Contract Compliance Program) has found out that when an Affirmative Action program is addressed with this perspective being a powerful administration tool, there lies a positive relationship between the existence of Affirmative Action and the absence of discrimination in a business entity.