This is true that what is useful, may not necessarily be an invention. Rather, most of the invented products are not even useful. A company would show their portfolio of Intellectual Property, in which, they’ve piled up patented products, trademarks that are meant to be Proposed to be Used only. Yet, most of that stock never end up in the Market, nor become innovation.
The lucid the law, lucid its implementation. And minimal the terms, the better the understandings. In the end, if the Demand is not filed, then ISA/WO becomes IPRP published before the regional entry. And if the Demand is filed, then the IPRP becomes IPER == IPRP –> II, aka Chapter II, issued by the IPEA. Thus, would it be wrong to call IPER as mere IPRP (interchangeably) without using the term Chapter – II or I, and by mere adding/subtracting the term, IPRP with Demand? Thus, when the Demand is filed, it’s also IPRP, and when the Demand is not filed, then too it’s IPRP. Rather using the terms IPEA -> IPER -> IPRP-Chapter - II; or ISA/WO -> IPRP - Chapter-I; would it be improper to use IPRP without Demand, or IPRP with Demand. In any case, the ISR/WO probably converts to IPRP without demand, or, IPER by IPEA is converted to IPRP-CH-II with Demand.
This is amusing! I read this article (Philosopher finds glitch in worldwide patent laws). But, if you go through my blogs on my blog portal, then not only I’ve found flaws in the Worldwide Patent Laws, but also in the Madrid Procedures, BERNE Convention, w.r.t. Examination Reports issued under the ISA (IPRP, SISA, ISR, or Local FERs), and how they’re in contradiction with the examination reports issued in the Trademark Applications at local laws; and on what grounds the Natural Person / Co-Inventor should include AI and Robots, with respect to Reason and Logic, and many others, and wherein why the AI Systems generating sub-AI Systems should be included under the list of Providers/Deployers/Operators too; First.
Just because I don’t send my writings in any of the formal journals, newspapers; nor I’m a part of academia, corporate or media; and restrict this data further to my own blogs only and furthermore include it in my IP books that I publish separately:
In my previous blogs, I discussed the cusp where AI can, or, ought to have been considered as an Inventor, if not an Applicant, or atleast a Joint Applicant or one of the inventor signing the declaration of inventorship.
Further, I discussed and tried to distinguish w.r.t. computer generated literary works, that in those circumstances, the author ought to have been included under the copyright act universally, restricted to literary and dramatic works only, and NOT the artistic works. I gave the reason, example and analogy of Computer vs. Typewriter whilst including under definition of Section 2(d)(vi) of the copyrights act; the definition which is globally accepted and is as per the BERNE CONVENTION too.
In one my previous blogs I discussed that, even in u/s 10(4)(c) and 10(5) or u/r 13 of Patents, it’s not precisely mentioned how the structure of the Claims should be defined, except the non-mandatory guidelines of WIPO that’s been followed. And if further you read Article 6 of the PCT, it defines that Claims should be precise and concise. But in Rule 6.3 (c) of the Regulations, what exactly it mentions? It states that:
‘where the national law of the designated State does not require the manner of claiming provided for in paragraph (b), failure to use that manner of claiming shall have no effect in that State provided the manner of claiming actually used satisfies the national law of that State.’
What it says; says every section and article around World that defines an Author, when it comes to the computer generated related work:
‘…..in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created…..’
Now, I’m not invoking the Natural person concept in the current scenario. But if you closely look around the definition, it mentions that a computer-generated work, wherein the person who generates that work becomes the author, and not the person who has made that program. But herein the dilemma ensues.
Notice the difference herein, as this section ought to have been only applicable for the ‘literary and dramatic’ works; and NEVER for the ‘artistic’ works. How? Take these examples.
In the EU AI Act of 2024, in the definition of the Provider, it includes two specific terms: first is ‘…..legal person…..’ and another is ‘……puts the AI system into service under its own NAME or TRADEMARK….’. I would be restricting to the Trademark definition that further involves ‘legal person’ and as in my book also, I discussed the famous case of DABUS when deriving an analogy between AI as a Natural Person and the Machine itself.
Now, we are all familiar with the AI machines run by several companies, have their own names. Whether there’s DABUS, GEMINI, CoPilot, Optimus the Tesla Bot, OpenAI, and the list goes on and on.
In my previous blog, I opined that the trademarks shouldn’t be removed or rectified in the register, if in case of non-use; unless of course, in case in the event of non-renewal. Further, I rather suggested a proposition that the trademarks shall be suspended if in case of non-user, rather being opened for the public at large to assert the rights on it (except in case of honest concurrent user); because, if there’s no need of compulsory license required in the case of trademarks, in the case of designs, or in the case of domain names; then the provision of compulsory USER doesn’t make any sense in case of trademarks, designs and domain names; whereas, if anyone remembers, domain names once used to be FREE; yet, it is understandable, that costs needs to be covered; yet, my proposition as defined below and in my previous blog, could be applicable.
My blogs explore Dilemmas in IP & Domain Name Disputes; and any Opposition is always welcomed!
Under S. 146 (2) and R. 131 (1), one needs to file the Statement of Working of a Patent, once every Three Financial Years, albeit earlier it used to be annually. Which is of course justifiable, as in case in the event of non-working of Patents, and as the Inventions are genuinely considered and made for the benefit of the society, then either the patented invention can be revoked due to its non-working, or, the process of Compulsory License can be initiated u/s 84.
Just an Opinion!
Now, if one looks at Paragraph 4(k) of the UDRP Policy, then the scenario of non-implementation / approaching independent resolution w.r.t to the decision of the Panelist(s) (one or three) is as mentioned:
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My contention is (could be opposed too) that the remedy available for the cctld (let's say at any national dispute redressal level for eg. INDRP), would be more robust if being compared to what remedy is available for the gtld domain name disputes at UDRP Provider(s). The reasons I would surmise:
A dilemma I discussed about the infringement invoking retrospective rights between the period of publication and date of grant. But the question ensues, what about the period between priority and date of publication, which has not been discussed by many, even explicitly not been mentioned in the act itself, as per my knowledge and belief, and if I’m not wrong!
One is familiar with the infringement proceedings with respect to the trademark, as in that case, the mark needs to be registered first, in case the proprietor wants to act w.r.t. infringement. The mark should be valid & subsisting. And if in case registration pending/not registered, then the option is of passing off. Thus, even if the mark is not registered, one has the legal remedy to initiate the passing off action. But what happens in case of Patents (from an Indian perspective), between the timeline when the patent is -> filed and before the grant (not yet granted)?
Just alike PR + Recommendations == Trash! So as AI built on the foundation of random DATA, would eventually be an AI Trash!
Further, it seems, the companies are now updating in their agreements, terms & conditions too w.r.t. Artificial Intelligence Content for a better transparent system, which is a welcome step! Under Your (User) Content, they’re mentioning that the IP rights belongs to the USER only (if they truly hold); and further, under their artificial intelligence services, they’re including that the USER of their AI services, would not use the services for WEB Scraping, WEB Harvesting, WEB DATA Extraction, Weighing the Models, To Create/Train/Improve other AI Models; which is again a welcome step (and that I’ve also mentioned in my previous blogs), and as per the BERNE Convention & TRIPS Agreement, which would stop its wrongful Commercial Usage and also building of Clutter in the AI industry as well, which would help in building a better AI!
The essential component of any contract is Consideration in return; unless and until it is restricted to charity, gifts, family affections etc. Now, unless any organization is registered as a non-profit, or, there’s a family affection involved; generally, there must be some kind of consideration involved; until further that isn’t in contravention to any laws of the land, for eg., in case of minors being the signatory, or, unlawful purposes, etc.
Now, if we converge both the E-Contracts && IPR; then there’s a relation that can be included, which I presume so far not being taken into account. We’ve mostly three types of E-Contracts: Shrink-Wrap; Browse- Wrap and Click-Wrap. The concerns are w.r.t. Click-Wrap & Browse-Wrap.
Whether it comes to imitating in the mainstream; or the DATA on the Internet which is being used against the provisions of every single reciprocal treaties or TRIPS agreement; which was ought to have been restricted for personal & private use, R&D, academic only; YET, that has been used to train from AIs for 'commercial usage' (against Article 10 & 10bis, 11 ter, 12 of BERNE Convention), to, someone’s ancient knowledge been projected as someone else’s, as the latter being the architect of the same; or, whether the natural habitat & the presence of its steroidal compounds in lab being extracted (albeit that would come under the ambit of Patents again), and then being claimed as the originator & inventor of the same.
Important Aspects of EU's AI ACT
Opinion
Whilst filing for the copyright, of course, one would be asked whether the work is original or translation or adaptation as shown below.
But according to me, what is Copyrightable shouldn’t qualify to implicitly become Original, or be part of the term - > Originality.
If we can have copyright reciprocal treaties, why can’t that be the case for patents, trademarks, domain disputes without WIPO being involved? It’s understandable that everything comes down to how the payment at the local prosecution would be made, and as of course, the countries who file for most of patent and trademark applications, or domain name disputes, would end up having control over the arguments and legal nitty-gritties being embedded into the global system. And why the present system not fully serves the point of being contending for uniqueness in the World, without having so much of obstructions, in terms of both prosecution and cost involved. And of course, I’m not soliciting pro-bono. But a system, where uniqueness can evolve without limiting its scope to take action against anyone who adapts, derives, copies, infringe, pass off without permission.
Notice the difference between the examination/scrutiny/objections in case of trademarks VS that issued in patents. In the former case, from the examination report to the scrutiny; include territorial prior works. Whilst in case of patents, examination reports consist of global prior arts, yet, if in case patent is granted, then rights are territorial only, like in case of trademarks. Exclude Copyrights due to reciprocal treaties.
In one of my previous blogs https://www.jpranavc.in/2022/12/the-inventors-who-arent-inventors.html , I opined that why every inventor’s actual contribution in the invention must be included; precisely bifurcated, segregated; in the declaration of the inventorship itself, so much so that, once the application becomes public (pre-grant or post-grant), one would be able to know who contributed what in the invention.
It should be considered a wrong precedence if in case trade-secrets are being superimposed, or, tried to be superimposed over patents! The ‘generalized’ structure of the claims shouldn’t become the part of the specification anywhere. The non-inclusion of the precise metrics in the claims, in anticipation of then being used the same invention as a trade secret, should be negated in the specification. As the invention itself is restricted to the scope defined by the best method performed, and not wherein in the generalized definition in anticipation of the same invention to be then being considered as the trade secret as well. And there’s a reason behind that.
Remember, Waymo vs Uber involving Levandowski’s case, wherein it was alleged that Levandowski stole trade secrets to then being used by Uber via acquired firm Otto, that Levandowski started, with all its IP assets, ending up Levandowski’s sentencing, whereas Uber-Waymo signing non-disclosed settlement agreement!
Check the below tweet that I had sent couple of years back (when I was on Twitter) to google (gmail), microsoft (outlook), yahoo (yahoomail); indirectly asking them NOT to delete emails related data, unless & until been explicitly requested by the User itself.
In one of my previous blog, I discussed how and why using some well-known names or surnames which are already being traded in the market could cause infringement, despite the applicant itself sharing the same/similar name or surname. I cited some examples viz. Trump, Tata, Ford, Gucci & the list goes on. I further wrote another blog on Jack Daniels vs Bad Spaniels case wherein I tried to draw the line (personal views) between liberty vs infringement.
Few Questions & Review:
1. The wordings for the data scraping provisions missing.
2. The Data Privacy breach penalties are upto 250 crores. Penalty on the Data Principal is 10k.
3. S.17(1)(d) says: d) personal data of Data Principals not within the territory of India is processed pursuant to any contract entered into with any person outside the territory of India by any person based in India; the exemptions suited for IT/ITES.
There’s a difference between non-infringement vs. becoming actual claimant of the work produced to be then considered as protected under copyright, whether derived/adapted (eg. a theatrical act derived from any book which would explicitly require permission), or, transformed (eg. critical analysis & research that changes characteristics of original work to a greater degree, even without permission under fair use / fair dealing). As non-infringement work isn’t always compounded to be considered as novel minus original; irrespective of the subsequent actions of the original copyright holder; and further, depending on the length & extent of the original work, derived or transformed; question is, can such end products be actually protected under copyright?
There’s no (or
shouldn’t be any) inflexible rule for drafting claims, for example
-> all inventive features should come or characterized or comprised in Claim
1 only as independent or not, & the followed subsequent claims shalt be (in)dependent
or derivatives of the first etc.
The Claims (use, method, process/product, composition) shalt define the scope of the invention (whether as independent or dependent) what’s cited in specification. No more, no less! Subject to, they shalt not be loosely connected. By merely discerning Claim 1, one shouldn’t deduce the inventive feature of the Invention, otherwise, what’s the point of drafting claims after such lengthy specifications? Verbose friendly system?
With
the new updated Google’s Privacy Policy read as:
publicly accessible sources
“For example, we may collect
information that’s publicly available online or from other public sources to
help train Google’s languageAI models and build products and features like Google
Translate, Bard, and Cloud AI capabilities. Or, if
your business’s information appears on a website, we may index and display it
on Google services;”
If the examination of any patent includes global application citations, then technically, is there any point of considering patent territorial, & furthermore making the use of PCT, then seems more redundant, unlike Madrid in TM, as citations differ in both, wherein latter is more territorially defined.
If mere manufacturing for export is considered as use within any territory w.r.t. TM, then shouldn’t rights being implicitly enabled beyond territory (especially of branded) (UFO Contemporary Inc TM case), even in case of non-use?
The
recent Jack Daniel’s TM Infringement Case once again has raised the question of
where the distinction between Liberty and Infringement be drawn.
The case involves infringement of Jack Daniel's TM by VIP Products that made a dog accessory (a chew toy) named as Bad Spaniels along with The Old No.2, on your Tennessee Carpet in it, that resembles the Label, Shape of Bottle, TM of Jack Daniel’s that include Jack Daniel’s along with Old No. 7, Tennessee Whiskey. It’s basically more of a Trade Dress & Shape of Bottle Infringement Case. The Shape of bottle & Shape of the dog toy is same. Label is visually same. Trade Dress seems similar. But yes, both word mark Jack Daniel’s & Bad Spaniels seems different.
DABUS
wasn’t considered as the Inventor as it wasn’t the Natural Person.
What
about the content created by ChatGPT? The human input or ChatGPT itself or OPEN
AI, Who exactly owns that content?
In one of my earlier blogs, I discussed the case of AI being an Inventor citing example of DABUS. In the case of ChatGPT, I decided to converse with it (conversations assembled in several pages). One of the questions I asked it was to write a poetry on a particular subject. It generated an output (a poem), as anticipated. I repeated the question, but now on a slightly different subject. It generated another new poem but this time with few repeated lines taken from the previous ones.
The moment a common name starts appearing in several different inventions associated with distinct subjects/domain/expertise (exclude computer science); one should conclude that he/she is the mere Investor/Owner/Assignee. The real Inventors’ are different, bounded by the Non-Disclosure/Employer-Employee Contract/Assignment; & that Investor/Owner just added their own names without adding any Inventive or Novel theory into that Invention. This has been happening for Decades. And according to me, this practice of adding names to Patents in the inventions wherein those who’ve neither contributed theoretically nor technically anything; should be stopped, everywhere. How this could be achieved?
Can
Sounds be trademarked? Yes! Via sonogram, musical notes and actual
recording of thirty seconds, that can identify any product merely via sound, rather,
visually. Copyrightable? Yes!
Can
Voice be trademarked? Nope! Copyrighted? Sort of, via collection of well-known
personality traits + performer’s rights & moral rights (copyright) +
protection of life & personal liberty (constitution). But it should be
extremely well-known, at least territorially.
Can Names/Surnames be trademarked? Yes. But are Conditional!
As we know, there’re different classes in TM & one acquires exclusive rights over the TM in a class (which again, consists of several set of different goods/services) w.r.t. goods or services manufactured or proffered. But what if there’re two different goods or services falling under the same class, and further, there’re two contenders for the exclusive rights or user, of the same TM?
Let’s say, you were granted a Patent. Then the intimation letter would’ve clearly instructed you to pay the annuity renewal fee U/S 142 (4), also read with U/S 53, payable w.r.t. 3rd year onwards from the Date of Patent i.e. (filing date) before expiration of second year from the date of patent; and furthermore within 3 months (or not later than the extended period of 9 months) from the date of recordal of Patent in the Register. Albeit, the said fees is supposed to be filed within that duration; but somehow the renewal fees wasn’t deposited, & the Patent ceased to exist. So what’s the remedy?
The
present blog isn’t my subject specific domain, yet, thought to write about this.
There was a discussion regarding -> whilst the Industrial Dispute covered the definition of Workman (S.2s) & the Employer (S.2g), it circumvented on defining an Employee (eg. let’s say Software Engineers). So, the way Workman is covered against Laying Off, Retrenchment etc.; Employees, as mentioned above, should’ve also been covered. For example, IT or Finance Sector Employees protected from being Laid Off or Retrenched, especially at the time of Recession or amidst the likes of Covid lockdown.
An
assignment in TM can’t create parallel exclusive rights nor territorial different
exclusive rights, for similar goods or services.
A registered user is the user of any registered TM, u/s 49; becomes registered, post filing a proposed application for the same jointly with registered proprietor of the said TM (owner); along with the TM user agreement executed with the latter; whereas, a permitted user is the user of the trade mark permitted to use by the registered proprietor via written agreement.
Suppose you conceptualized a theme of a Dinosaur Combat with the surrounding nature similar to of that era, & further disclose it to someone else, make this individual sign with you an NDA, for any mutual future production work. Later, this individual, without disclosing you, makes a short or long series or flick, about a Dinosaur combat with similar theme containing elements (elements that define an expression of an idea) of the same era. Is it breach of confidentiality? Further, are Trade Secrets dissimilar or similar to that of protection acquired by Patents?
The earlier few blogs already covered the Madrid System (which is nothing but what resides alike inside a Mall (WIPO) with different showrooms (Contracting Parties (member nations)) in it, where you decide in which shop (designated Contracting Party) you want to approach for your TM to be registered whereas Mall (WIPO) is merely checking security at entry (Irregularities) whilst entering the Mall & guiding you further to different shops with an entrance fee). Also, the previous blogs covered the PCT (Patents), Hague (Design), WIPO Domain Disputes Redressal (UDRP), G.I., Evidence in IP, some part of IT etc., where, when & how to approach & reply &, the further coming blogs would deep dive furthermore into it.
There
shouldn’t be any distortion in the hereinunder flow:
Start
-> Author -> Publisher -> Distributor (if any, of publisher(s)) ->
Seller -> End User -> Stop.
For example, In 2009, Amazon Kindle had to delete e-book copies of 1984 & Animal Farm at the end user’s accounts’ as there was a break in the above chain work flow, as the uploading publisher had no relevant rights directly with author or its assigned publisher or distributor, thus leaving Amazon not having rights to execute contract with the end user buyers/readers’ (somewhat similar to void-ab-initio).
Both context &
concept of Assignment in IP differs as explained:
G.I. - > Herein, any right acquired via registration isn’t a subject matter of assignment (S.24) whereas right of any authorized user (as explained in previous blog) would be passed via succession only.
One of my previous blog briefed about UDRP process for cybersquatting (TM) related disputes, in-depth, from filing - complaint, response; to selecting panel members to time period involved. URS is another light version mechanism used to resolve cybersquatting disputes with almost similar process. Whereas, the present blog briefly explains miscellaneous domain related issues, when arisen &, where to approach.
Article 22-24 of TRIPS Agreement (as already discussed in previous blog in detail with examples of limited suspension of IP rights w.r.t to covid vaccines amidst Covid biowarfare) defines Geographical Indication (G.I.), Whereas, Article 15-21 elucidate about Trademark (TM) (again, as already explained in-depth upto how to globally handle in one of my previous blog). But what exactly is the difference between TM & G.I. & further, can TM be registered as G.I.? To differentiate it with G.I., here’ a small definition:
Digital forensic (of course, isn’t my domain) involves analysis of vulnerabilities via logs, metadata, flow control, network connections, registry data, event logs, storage, file integrity, etc. to detect and track security incidents & compile such data as evidence. This blog basically surrounds electronic records aka evidence w.r.t. IP only, which is in continuation with one of my earlier blog elucidating concept of Online Contracts; and of course further, along with it, my alternate concern + suggestion. Basically, these things hardly change (except the Tech part), which are written in several other similar books, articles or journals. And writing case precedences is mere an act of compilation.
If we can interpret a sentence into several different or distinct meanings, then that framed sentence only is flawed. And that also implies to any legal definition. I’m absolutely not endorsing in verbatim studies or discussing question of law itself, BUT still, what can be precisely defined, (s)could be defined. And this is the reason that for more than millennium, holy wars were unleashed because of misinterpretation of sentences. This ain’t Science, that works on successive steps. Framing of Sentences are in our hands & can be drafted unambiguously.
Is DABUS an Inventor?
Well, the UK, US & EPO don’t think so, whereas, South Africa has another opinion. In my Blogs, I always TRY, NOT to discuss or write repetitive cases or laws or case precedences, rather, produce novel arguments, precise notions or prototypes aka blue prints, for certain practices or system that can be changed for good. And what’s the harm adding probable contentions amongst several other already existing!
The extensive commercial use along with a well-known status on paper gives someone the exclusive rights to be a proprietor of one’s own Surname or even Name, over Others. For example, suppose your surname/name starts or ends with Tata or Trump or Sony or Gucci or Ambani or similar known alike; and you decide to launch your own products or services with your surname/name, anticipating that you’re merely using your own surname/name for its commercial exploitation & have an exclusive rights to do that & further not being in any case infringing/passing off any said surname/name as mentioned supra, which have already acquired a well-known status on paper. Well, you can’t do that & would basically end up infringing/passing off the above trade marks/trade names aka well-known surnames/names.
Let’s separate trademarks, designs, G.I., Patents, and Domain Name Disputes for a moment first, when it come to the infringement proceed...
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