Know the power of the State-of-the-Art

In this technological progressive era, huge amount of data gets generated and added in the prior art every day. Where on one hand keeping pace with technical progress in present times is a challenge and on the other hand, innovation has to happen to ensure sustainable growth. Till the time, you foresee the innovation in a given area of technology, it is impossible to create significantly creative and valuable products. Another issue in technologies such as electronics or software is that innovation cycle is too short, meaning that in no time after you market or commercialise the product, you may see next versions of the product floating around. Considering high cost of R&D and resources, output often is not that meaningful and sustainable.

In most of the companies, before designing R&D in a given area of technology, one important parameter is often missed out, i.e. assessment of “state of the art”. Even though by means of product surveys, competitors products or otherwise, the products available in market are often watched carefully but the wealth of technical information lying in the form of patents is largely ignored. It is important to note that few of the patented technologies actually come in the market, meaning that, there is huge amount of information, in the form of patents, which is not seen in the market. However, assessment of this wealth may help in various ways, such as:

1. It helps you to assess quality of your product and may be after knowing state of the art, you can further fine tune your product or add more value to it.

2. ‘State-of-the-Art’ may reveal many interesting ways of performing an invention, which you would have never thought about and this actually can add lots of value to existing product/process.

3. Assessment of patentability of the invention compared to state of the art becomes clear and easy.

4. The best thing about the information available in the form of a patent is the best mode of performing invention, known to the inventor. In most of the countries, patent law expects inventor to disclose the best mode of working the invention which means that from patent documents you actually get complete technical working of the invention, most of the times with illustrations, drawing and examples. 

“Even though by means of product surveys, competitors products or otherwise, the products available in market are often watched carefully but the wealth of technical information lying in the form of patents is largely ignored.”

5. Based upon State-of-the-Art, if you feel that your invention is significantly better than existing patents, you might consider filing for a patent yourself.

6. Infringement of patent happens when one makes, sells, offers to sale, import patented product or a product made from a patented process without permission of a patent holder. As a result of state-of-the-art search, you might come across a few patents or patent application (not been granted), that are very close to your invention. In such a case, it is worth looking at such patents in details and check for their validity (whether they are legally enforceable) or to see if they have been filed or granted in the country (ies), where you intend to market your product. If there are any such patents, you need to be careful as there are chances that you might be infringing such patents.

7. State of art data can take various forms and interpretation of such data into various graphs can provide you valuable information in terms of key players, active areas of technology, patent filing, publication and grant trends, favorable jurisdictions, international classification etc. This data may play a vital role in formulating patent strategies for the organization.

State-of-the-art is a wealth of knowledge, infact a powerful tool that is important not only to prepare a strong base to formulate your R&D strategies but also assists in multiple ways. It is worth investing time to unfold state-of-art to create innovative, commercially viable and meaningful products to obtain competitive edge in market.

Naming it right!

Santhoshi BS

Starting a new company and thinking about how to name it? Well, naming a company can be as easy as ABC or may get as complicated as it can be! The name of your company becomes a Trademark by which the public recognizes your product. Here are some simple Trademark rules that you need to keep in mind when you are registering the name of your company.

It is generally a trend to give fancy and arbitrary names to a company, since such names are most easily accepted as a Trademark. Though it is tempting to give a name that is related to your product, care should be taken that your brand name is not descriptive, meaning the name should not describe the product it owns. For example: a tyre manufacturing company should not have its name as “High grip”.

“Annapurna”, which is being in use for Food products, cannot be given now for a company that sells fragrances. Such a name would deceive the consumers with a belief that it is a product from the well known Annapurna brand. Also phonetically similar names to the pre-existing/well known brand names are not acceptable Trademarks as it creates confusion to the consumers. In the case of Ranbaxy Laboratories Ltd. vs. Dua Pharmaceuticals Ltd., the plaintiff company manufactured drugs under the trade name "Calmpose", which acts as an anti depressant. Dua Pharmaceuticals manufactured a similar drug and marketed it under the Trademark "Calmprose". The two names were phonetically and visually similar. Notwithstanding this, the packaging and colour scheme of the two were also the same. Ranbaxy countered this by filing a Trademark infringement case against Dua pharma in Delhi High Court. The Court held that there was a very good possibility that both the drugs would be available at

the same store and Calmprose would be sold to the customer and passed off as Calmpose. And since the packaging, colour scheme were also similar, the probability that the customer would get confused was greater. Based on such investigations, the Court then declared an injunction, restraining Dua Pharmaceuticals from selling Calmprose.

 

“It is generally a trend to give fancy and arbitrary names to a company, since such names are most easily accepted as a Trademark” but care should be taken that your brand name is not descriptive, meaning the name should not describe the product it owns.

 Another essential thing to be kept in mind while naming your company is to avoid attaching it with any geographical region. Such names cannot be registered as Trademark but come under the category of Geographical Indication (GI). Some examples are Tirupathi laddu, Tirunelveli Halwa, Mysore silk etc. Such names are usually given to the community who are involved in the manufacture of such goods and are restricted to an individual. In the case of Tata’s Mount Everest vs.  Bisleri, there was a dispute over the Trademark “Himalayan” that was owned by the Tata group. The case was filed by Tata over usage of words “from the Himalayas” on the bottle of Bisleri. In counteraction, Bisleri argued that, “Himalaya” is a word of geographical origin and should be removed from the Trademark registry. In deciding the case, the Intellectual Property Appellate Board said that registration of the word “Himalayan” does not give one the exclusive right to use the term as a Trademark for its product.

This gives an insight about the importance of a thorough Trademark search that needs to be performed before registering your Company name. It is better to give time deciding about the name than facing the legal battles and registration complications later. And always, innovative names will make your customers curious about your product. So go ahead and put your thinking caps ON to start the name game!

Disclaimer: The points listed above are generic and provides only an overview but there are several factors that govern selection and registration of trademark and it shall be worked out on case by case basis.

Christmas with Michael Faraday: The Chemical History of a Candle

“There is not a law under which any part of this universe is governed which does not come into play and is touched upon in these phenomena. There is no better, there is no more open door by which you can enter into the study of natural philosophy than by considering the physical phenomena of a candle.”

 — Michael Faraday, The Chemical History of a Candle

Michael Faraday, a renowned English scientist, had contributed immensely in the area of electromagnetism and electrochemistry. The Chemical History of a Candle, was the title of a series of six lectures on the chemistry and of flames given by Michael Faraday at the Royal Institution in London in 1826. This was the origin of the Christmas lectures for young people that are still given there every year and bear his name. The lecture beautifully described the different zones of combustion in the candle flame, and the presence of carbon particles in the luminescent zone. The lectures were first printed as a book in 1861. These lectures were very popular and Faraday used to derive immense pleasure in communicating the excitement of science to the general public, especially children.

He once said, in an interview, “The best members of my audience are children. They just watch and very little escapes their awareness.’’

Photograph Courtesy: Udit Sharma

Checklist: Filing for a patent

Filing for a patent is a very exciting time for any organization or an individual inventor. Invention results from an innovative mind and putting it into prototype may require long hours of hard work and of course, funds and resources to see the process through to its completion. For individual inventor, it is a pleasure to be called as an inventor, whereas for a business organization, there may be various reasons to file for a patent. Some of the reasons for it could be filing for a patent may add to the number of applications filed in a given financial year or it might be for securing invention before it becomes publicly known or before commencing the public relations activities / a new product launch or commercialization or often getting application number before talking to investors especially in case of start-ups.

Though there are several factors which determine purpose and use of filing for a patent, in order to actually realise benefits of filing a patent application it is critical to analyse following prime factors:

Is invention really worth a patent?

If invention is not in market, often inventors feel that it is novel and there is no need to perform patent search. Patents are a great source of technical information and it makes lots of sense to check them to assess state of art before filing for a patent. Patent law expects invention to be novel, inventive and industrially useful, hence, before proceeding with filing a patent application, make sure that invention fulfils these criteria. Though patent officers are final authorities to decide on patentibility of the invention but still such assessment of patentibility can certainly be done with help of a patent attorney who knows subject matter well. Even if the search reveals that invention is not novel, results of a patent search gives you fairly a good idea and roadmap on how much is already done by others and how to develop your invention further.

Provisional or complete application

Provisional application shall be filed if invention is at the stage of idea or if it is critical to claim earliest priority date or if funds need to be arranged in short period of time. However, if experimental results or prototype is ready, it is good idea to file complete application to save cost of drafting provisional application. Often patent attorney will take longer time to draft complete application and therefore, if date of filing is critical, one may opt for provisional application.

 

“Patents are a great source of technical information and it makes lots of sense to check them to assess state of art before filing for a patent.”

Where to file?

It is worth noting that if inventor is resident of India, he shall either file application first in India and wait for 6 weeks before foreign filing or take permission from Indian Patent Office for foreign filing. If one fails to do so, he may be punishable with imprisonment for a term which may extend to two years, or with fine, or with both. For foreign filing of patent application, one may select either filing PCT application or convention application. However, countries where the patent application shall be filed shall be selected very carefully and one shall file only in the countries where there is a market. Filing without reason in undesired jurisdictions results in wastage of money and time.

Commercialization option

Work out on commercialization options as soon as you file application because technology is growing really fast and losing upon the time may not fetch desired attention in the market. You may either opt for commercialising on your own in case you have capacity and willingness to manufacture and sale invention or transfer your rights to someone who has capacity to commercialise your invention. You may transfer your rights by means of license or assignment that shall be in writing and executed in the form of a valid deed.

Is it safe to commercialise?

I am sure most of patent practitioner will agree with me that it is really tough to convince and communicate to the inventors that after filing for a patent, when they actually plan to launch the product in market, it is necessary to check if they are not infringing third party (ies) intellectual property rights. Clearance search, also called as freedom-to-operate search is extremely necessary to minimise risk of infringement of third party (ies) patent rights upon product launch.

The points listed above are generic and provides only an overview but there are several factors that govern worth and market success of the invention and it shall be worked out on case by case basis.

Copying photographs from Internet

By Bindu Sharma

Downloading pictures for website, presentation, article etc from internet is a common practice and excuses often given by violators include, that the photographs were taken because they appeared in a public platform on the internet or there was no copyright notice on the picture. The fact is that no content, written or photographed is available for free unless specified. Even if a photograph on a site is not watermarked, it is still under copyright protection. This means that trademark logos, and images of any company or individual cannot be taken for free.

In India, the Copyright Act, 1957(Act No. 14 of 1957) governs the laws & applicable rules related to the subject of copyrights. Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. In fact, it is a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work. Photograph is an artistic work under copyright and gets protection for sixty years from the beginning of the calendar year next following the year in which the work is first published. Copyright which subsists in a photograph protects not merely the photographer from direct copying of his work, but also from indirect copying to reproduce his work, where a substantial part of his work has been copied.

A French photographer, Christophe Viseux had recently served a legal notice to the Delhi Commission for Women (DCW), for allegedly using an image clicked by him without his consent on billboards advertising its rape victim’s cell. He has demanded Rs 50 lakh as damages. He was driving through Delhi when he noticed several posters bearing his copyrighted photograph of a partially veiled woman that he clicked during a trip to Jaisalmer and uploaded on his blog.

In another case of Khana Khazana, a popular show aired on Zee Network, it was found that they are  regularly stealing photographs from food bloggers and websites for their features. When some of the copyright owners, whose photographs were stolen and featured, complained and asked Zee Khana Khazana to remove the photographs that belonged to their blogs, ZKK apologized saying this was not stealth and that they were using these images to project a visual appeal of their recipes to their ‘fans’. Many of copyright owners voiced themselves on the facebook page of ZKK, and reported the page to facebook also. Some of them  were cautious enough to take screen shots of the posts as evidence. Sensing the agitation, ZKK, and in some cases facebook, removed the posts containing the stolen photographs. ZKK then made a feeble apology and removed all such photographs.

Apart from downloading and using photographs, making painting out of photographs is another form of infringement. A painting made from a photograph is known as a derivative work. But that doesn't mean one can simply make a painting from any photograph without permission of the owner.  Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work.

Hence, think before you download photographs from internet as you may be infringing copyright. Safest options are either seek permission from copyright owner in writing, preferably in the form of a license agreement to use photograph or refrain from using the same.

 

Photograph courtsey: Udit Sharma

Certain acts that dont deem to be infringement

A patent gives exclusive rights to the patentee to use, sell, manufacture and import the product into the country where the patent is granted. While a process patent gives the rights to exclusively use the process and prevents everyone else to use, sell and manufacture the product that is developed through this process. Any violation to these rights without the permission from the patentee would cause patent infringement. However there are certain exceptional Acts where the use of patented invention without consent of the patentee doesn’t constitute infringement.  Section 107 of Indian Patents Act details such exceptions.

In certain countries including India, the generic drug makers are allowed to use the patented invention without the consent of the patentee for development and submission of information required under law. This provision is called Bolar-like provision or Regulatory provision.  This provision came into existence from the case of Roche Products v. Bolar Pharmaceuticals. Roche is a discovery based pharmaceutical whereas Bolar is a genetic drug maker. Roche holds a patent over the drug Valium. Bolar intended to submit an Abbreviated New Drug Application (ANDA) to the FDA for a similar drug containing the same active ingredient as to Valium. Hence Bolar used the patented chemical in its experiments, before its patent expiry in order to determine if the generic version is bioequivalent to Valium. Roche responded to this by filing a suit for patent infringement. The District court of Eastern District of New York declined Roche’s appeal saying that no infringement had taken place owing to the experimental nature of Bolar’s work. The Court of Appeal for the Federal Circuit however disagreed with Bolar’s argument as it intended to sell its generic product in competition with Roche’s Valium, soon after its patent expiry and stated that the exemption does not apply to experiments which have commercial objective. Bolar argued that such violation of exemption would extend the monopoly of Roche over Valium even after its patent expiry. Thus in 1984, in response to Roche v Bolar judgement, and in an attempt to promote competition by simplifying authorisation for generics while maintaining appropriate protection for the interests of research-based pharmaceutical manufacturers, the US Congress passed the Drug Price Competition and Patent term Act  (known as Hatch-Waxman Act). This law permits the use of patented products in experiments for the purpose of obtaining FDA approval and it established the modern system for FDA approval of generic drugs.

Another instance where an exception made for infringement is in the case of Parallel import. A parallel import is said to occur when a product sold by a patent holder in one country is exported by a buyer to another country with the price for the same patented product being higher. The purpose of the parallel import is to check the abuse of patent rights and to control the price of the patented product. Pharmaceutical companies follow the practice of differential pricing of drugs according to the purchasing capacity of the prospective consumer in a target country. As a result, the same drug may be expensive in a developed country and relatively cheap in developing countries. This principle of differential pricing forms the basis of parallel trade. It enables countries in which drugs are expensive to import them from cheaper markets.

On March 23, 1995, a decision regarding parallel imports was delivered by the Tokyo High Court. BBS Kraftfahrzeug Technik A.G. ("BBS") of Germany held both German and Japanese patents for certain aluminum automobile hubcaps. The hubcaps were legitimately purchased in Germany by a Japanese company which was engaged in the export of the relevant goods to Japan where an affiliated Japanese company was engaged in the sale of the goods. These two companies were virtually under the same management when the goods were imported into Japan for sale at a price lower than that charged by BBS dealerships in Japan. Subsequently, BBS filed suit for patent infringement in Tokyo District Court in June of 1994. The district court found that the two companies had infringed the BBS Japanese patent. However, on appeal the judgment in favor of BBS was reversed. In reversing the district court, the High Court held that the patentee's right to enforce its Japanese patent against the imported goods had been exhausted since the patentee had legally transferred title to a rightful purchaser of the patented product.

By enlarge though the patentee enjoys exclusive rights for his product/process, Indian Patent Act also contains certain exceptions for the public benefit and prevent the abuse of patent rights by the patentee.

Cardiovascular Medical device sector: a Patent landscape Report

Medical devices are now a pervasive part of modern medical care. The medical device industry includes a wide range of products for various kinds of therapeutic area and diseases. It is comprised of the companies that are involved in developing, manufacture, and market medical apparatuses, instruments, equipment, devices and supplies. The medical device sector comprises of different types of products ranging from simple bandages to life sustaining implantable devices. Owing to the increased prominence of cardiac diseases in the country, exploring the cardiovascular device sector would show the trend, pitfall and the growth of innovation in this area.

This report encompasses patents filed in cardiovascular device sector in the Indian Patent office and also includes Patents that have entered though PCT. This analysis involves several types of cardiovascular devices that include commonly known devices such as Pacemaker, Angiographs, ECG and also latest sophistications such as Coronary Stents, Artificial Heart Valve, Cardiac Assist device etc. Coronary stent is a small tube that is inserted into the coronary arteries to widen its wall thereby treating blockages. Artificial heart valve is of two types: biological and mechanical heart valve; they are replaced when the natural heart valve malfunctions and it obstructs the blood flow between the chambers of the heart. Cardiac assist device is a broad term which refers to the devices that support or substitute the function of the heart during cardiac arrest or a cardiac surgery.

1)      No. of Patents Granted/published in different sectors of Cardiovascular devices

The category cardiac medical device is a generic category of devices that could not be classified into any of the mentioned categories. This category involves devices useful during the cardiac surgery, cardiac defibrillator, angioplasty device etc. Largest number of patents is filed in the Heart valve sector, with a significantly large pool of under-served patients; represent the biggest opportunity for the leading medical equipment and devices manufacturers. This is followed by Stents that contributes to the major part of the total minimally invasive vascular interventional devices market used in coronary and peripheral procedures. No much research activity is taking place in the area of angiographs and heart implant sector in India, which means that such older techniques are replaced by the advanced sophistications in recent years.

2)      Patent filings by Geography                                                                              

The graph 2 represents the number of granted patents and published applications those of Indian origin and which have entered Indian national phase through PCT application. It shows that cardiovascular market is dominated by the international players and very meagre contribution by the Indian companies. The expanded view shows the geographical distribution of PCT applications. United States of America generates overwhelming majority of the PCT applications filling in this field, followed by Germany, Australia, Canada, France and UK. Israel has granted patents in India territory; indicates the interest of applicant to enter Indian market. Further Japan also shows to arise with PCT applications in Indian National phase.

3)      Key players in the industry

The report summarizes that foreign companies like Koninklijke Philips Electronics and Sunshine Heart Company Pvt. Ltd are the top key players in cardiovascular medical device in India.

These companies have involved in intellectual gains of their devices through patents.  Cardiovascular medical devices by Koninklijke Philips Electronics includes Stents (2 granted patents), Monitoring device (4 published applications), Magnetic resonance imaging involved in cardiac disease diagnosis (1 in granted patents and 1 published application) and Computed topography (2 granted patents). This data reveals that Philips is actively involved in Patenting their cardiovascular device innovation and marketing in India. Sunshine Heart Company Pvt. Ltd., a US-Australia based medical device company is engaged in the design and development of C-Pulse heart assist devices. The Company has only one operating segment, which is the research and development of heart assist devices and keenly involved in innovation of cardiac assist devices. All India institute of medical science is the only Indian player in this field. Medtronic Inc. (U.S.) is the world’s leading medical technology company specializing in implantable and invasive therapies. Medtronics in India have 2 granted patents in Heart valve sector and 2 granted patents in other Cardiac medical device. 

Conclusion

Cardiovascular medical devices in Indian market have made enormous growth in last five years and the growth rate of technological convergence in medical device will become deeper over time. There is considerable work being done at the interface between mechanical and electronic engineering, with bioscience, in developing sophisticated cardiovascular devices such as life sustaining stents, prosthetic heart valves, sophisticated operational tools, Imaging technologies and ultra modern diagnostic kits, and many more on the list. The number of granted patents and applications are increasing every year in way giving enough space for the innovators to apply their technical skills by innovating new equipments in the field of cardiovascular medical devices. Indian market for medical supplies and disposables is dominated by the domestic manufacturers, whereas importers dominate the costly and high end medical equipments. Thus, the report emphasises that India is emerging as a biggest market for the medical giant to invest their intellectuals in the Indian patent pool.